Skip to main content

Full text of "A treatise on the law of copyholds and customary tenures of land: with an appendix containing the Copyhold Acts of 1852, 1858, 1887, the principle forms used by the Board of Agriculture, precedents of assurances, and forms"

See other formats


Google 


This  is  a  digital  copy  of  a  book  that  was  preserved  for  generations  on  library  shelves  before  it  was  carefully  scanned  by  Google  as  part  of  a  project 

to  make  the  world's  books  discoverable  online. 

It  has  survived  long  enough  for  the  copyright  to  expire  and  the  book  to  enter  the  public  domain.  A  public  domain  book  is  one  that  was  never  subject 

to  copyright  or  whose  legal  copyright  term  has  expired.  Whether  a  book  is  in  the  public  domain  may  vary  country  to  country.  Public  domain  books 

are  our  gateways  to  the  past,  representing  a  wealth  of  history,  culture  and  knowledge  that's  often  difficult  to  discover. 

Marks,  notations  and  other  maiginalia  present  in  the  original  volume  will  appear  in  this  file  -  a  reminder  of  this  book's  long  journey  from  the 

publisher  to  a  library  and  finally  to  you. 

Usage  guidelines 

Google  is  proud  to  partner  with  libraries  to  digitize  public  domain  materials  and  make  them  widely  accessible.  Public  domain  books  belong  to  the 
public  and  we  are  merely  their  custodians.  Nevertheless,  this  work  is  expensive,  so  in  order  to  keep  providing  tliis  resource,  we  liave  taken  steps  to 
prevent  abuse  by  commercial  parties,  including  placing  technical  restrictions  on  automated  querying. 
We  also  ask  that  you: 

+  Make  non-commercial  use  of  the  files  We  designed  Google  Book  Search  for  use  by  individuals,  and  we  request  that  you  use  these  files  for 
personal,  non-commercial  purposes. 

+  Refrain  fivm  automated  querying  Do  not  send  automated  queries  of  any  sort  to  Google's  system:  If  you  are  conducting  research  on  machine 
translation,  optical  character  recognition  or  other  areas  where  access  to  a  large  amount  of  text  is  helpful,  please  contact  us.  We  encourage  the 
use  of  public  domain  materials  for  these  purposes  and  may  be  able  to  help. 

+  Maintain  attributionTht  GoogXt  "watermark"  you  see  on  each  file  is  essential  for  in  forming  people  about  this  project  and  helping  them  find 
additional  materials  through  Google  Book  Search.  Please  do  not  remove  it. 

+  Keep  it  legal  Whatever  your  use,  remember  that  you  are  responsible  for  ensuring  that  what  you  are  doing  is  legal.  Do  not  assume  that  just 
because  we  believe  a  book  is  in  the  public  domain  for  users  in  the  United  States,  that  the  work  is  also  in  the  public  domain  for  users  in  other 
countries.  Whether  a  book  is  still  in  copyright  varies  from  country  to  country,  and  we  can't  offer  guidance  on  whether  any  specific  use  of 
any  specific  book  is  allowed.  Please  do  not  assume  that  a  book's  appearance  in  Google  Book  Search  means  it  can  be  used  in  any  manner 
anywhere  in  the  world.  Copyright  infringement  liabili^  can  be  quite  severe. 

About  Google  Book  Search 

Google's  mission  is  to  organize  the  world's  information  and  to  make  it  universally  accessible  and  useful.   Google  Book  Search  helps  readers 
discover  the  world's  books  while  helping  authors  and  publishers  reach  new  audiences.  You  can  search  through  the  full  text  of  this  book  on  the  web 

at|http: //books  .google  .com/I 


r 


«J70< 


^ 


A   TREATISE 


ON 


THE  LAW  OF  COPYHOLDS 


AlTD 


i 


CUSTOMARY  TENURES  OF  LAND: 

CONTAIinNO 

THE  COPYHOLD  ACTS  OF  1852,  1858,  1887; 

TffS  PRINCIPAL  F0BM8  USED  BY  THE  BOARD  OF  AGBIOULTVRE ; 

PRECEDENTS  OF  ASSURANCES,  AND  FORMS. 


SECOND  EDITION 

BY 

'      V  CHARLES  L-  ELTON, 

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

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

"  The  OHgim  of  English  EUiory,  ^." 

▲ND 

HERBERT  J.   H.  MAOKA.T, 

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


LONDON : 

TVILDY    AlSrr>    SONS, 

LINCOLN'S    INN    ARCHWAY,    W.O., 

1893 


\ 


loivdon: 

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


PREFACE 

TO. 

THE   SECOND   EDITION. 


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

The  Appendix  will  be  found  to  contain  the 

latest  instructions  and  forms  relating  to  inclo- 

sures,  the  exchange  and  partition  of  copyholds, 

and  the  enfranchisement  of  land  of  all  tenures 

from  manorial, dues  and  incidents.    A  few  prece- 

a2 


IV  PREFACE  TO  THE  SECOND  EDITION. 

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

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

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


33,  ChAJTOEBT  liANEy 

December,  1892. 


(  ▼  ) 


PREFACE 

TO 

THE    PIEST    EDITION. 


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


Yl  PREFACE  TO  THE  FIR8T  EDITION. 

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

C.  ELTON. 


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


(     vu     ) 


TABLE  OF  CONTENTS. 


PAOB 
Tabub  op  Cabes j^ 

Tabus  of  Statutes  gited \Tn^ 

^^aaasyiAnonB 1^^ 


Chapter  I.— Intbodvctoby 1 ^20 

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

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

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

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

VI-— Incidents  of  Copyhold  Estates      .       .   157 219 

vu.— Incidents  of  Copyholds  {continued)  and 

Manobial  Fbanchises  ....  220—247 

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

IX.— Manobial  CoiTBTS 300—323 

X. — Eyidencb 324 348 

XL— EZTINOUISHMENT  AND  EnFBANCHISEUENT.  349 — 443 


APPENDICES. 

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

Form  of  application  for  exchange       ....    453 

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


Vm  TABLE  OP  CONTENTS. 

Appendices — continued*  page  | 

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

Form  of  adyertisement        .        •        .        .        .        .    464 

Application   to   the   Board   of  Agriculture  for  a  J 

F^yisional    Order    for    the    regulation    of   a  ^ 

common 464 

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

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

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

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

Enfranchisement  forms : — 

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

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

Ag^reement  between  lord  and  tenant  or  owner  that  il 

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

Information  to  be  furnished  to  the  Board  of  Agri-  ^ 

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

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

Consent  of  lord  to  include  reserved  rights       •        .    481  ' 

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


f 


TABLB  OF  00NTSKT8.  IS 

Enfiaiichisemeiit  Fonufl — continued,  page 

Appointment  of  valuer  by  lord  or  tenant  or  owner  .    482 

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

Appointment  of  umpire  by  valuers  ....    483 

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

Appointment  of  valuer  or  umpire  by  the  Board  of 
Agriculture 484 

Declaiation  as  to  lord's  title 484 

Dedsion  of  valuer  or  valuers 485 

Decision  of  umpire 486 

Determination  of  Board  of  Agriculture   .  .  488 

Appointment  of  trustees 488 

Beceipt  for  compensation  money     ....  489 

Deed  of  enfranchisement  of  copyholds     .        .        .  490 

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

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

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

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

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

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

from  the  court 496 

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

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

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

admittance  ia  claimed 497 

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


X  TABLE  OP  OONTBNT0. 

Appendices — continued,  page 

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

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

tenant  and  second  default  recorded  ....    498 

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

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

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

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

the  surrender  is  made  to  him 499 

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

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

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

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

No.  17.  Yoluntary  grant  in  court  for  lives  successively 

where  the  previous  estate  has  fallen  in     .        .        .    502 

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

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

for  the  purpose  of  exchanging  the  lives    .        .        .    503 

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

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

a  purchaser 504 

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


TABLE  OF  0ONTBNT8.  XI 

PAGE 

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

No.  23.  Preoept  to  seize  quouaque  after  proclamationB  for 

heirs  of  deceased  tenant 506 

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

custom  to  compel  surrenderee  to  take  admittance     .    506 

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

seize  quou$que 506 

No.  26.  Licence  to  demise 506 

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

manorial  courts 507 

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

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

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

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

XL— The  Copyhold  Act,  1852 523—539 

XTT.— The  Copyhold  Act,  1858 540^555 

XHL— The  Copyhold  Act,  1887 556—571 

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


INDEX 589 


TABLE  OF  CASES. 


A. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


XIV  TABLB  OF  CASES. 

PAQH 

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

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

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

293,  307 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anon.,  3  Wils.  126 276 

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

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

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

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

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

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

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

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

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

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

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

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

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

Poph.  105 36 

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

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


TABLE  OF  CASES.  XV 

PAOJC 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


I 

I 


XYl  TABLE  OF  CASES. 


B. 

PiiOB 

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

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

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

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

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

Baker,  OarriU  v.,  1  Brownl.  227 275 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


•  • 


TABLE  OF  CASES.  XVU 

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

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

209,  210,  212 

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

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

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

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

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

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

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

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

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

Baylis,  Oaldwall  v.,  2  Mer.  408 226 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bennett  v,  Beeye,  Willes,  227 258 

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

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

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

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


XVm  TABLE  OF  CASES. 

PAOB 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

707  -  -  -. 250 

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

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

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

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

N.  S.  Z.  B.  223 248 

Blewitt's  Case,  Ley,  47 48 

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

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

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

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

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

210,  212 

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

591 118 


TABLE  OF  CASES.  XIX 

PAOB 

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

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

Boothby,  Lee  v.,  1  Keb.  720 347 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b2 


XX  TABLE  OF  GASES. 

PiiOB 

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

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

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

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

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

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

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

167,  182,  186 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


TABLE  OF  GASB8. 

FAOK 

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

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

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

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

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

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

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

Bury,  Price  v.,  2  Dr.  11 82 

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

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

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

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


0. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


XXn  TABLB  OF  CASES. 

PA.QK 

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

Oarr  v.  Singer,  2  Ves.  603 27 

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

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

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

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

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

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

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

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

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

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

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

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

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

237,  328,  338,  340 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


TABLB  OF  CSASB8.  ZZIU 

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

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

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

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

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

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

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

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

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

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

141,  144,  146,  167 

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

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

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

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

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

134,  149,  157 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11  Mod.  57 62 

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

N.  S.  67 41 

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


XXIY  TABLB  OF  CA0B8. 

PAOB 

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

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

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

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

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

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

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

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

263,  273,  275 

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

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

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

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

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

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

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

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

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

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

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

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

Cowlam  V.  Slack,  15  East,  108 259 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


TABLE  OF  CASB8.  XXV 

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

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

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

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

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

Guddon  v.  Tite,  1  Qiff.  395 196 

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

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

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

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

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

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

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

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

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

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

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


D. 

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

Dalby,  Hartop  v.,  Hetl.  14 10 

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

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

Daniel,  Curtis  v.,  10  East,  273 236 

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

Daniel  v.  Wilkin,  7  Ex.  429 332 

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

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

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

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

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

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

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

DaTies  v.  Selby,  Cro.  Eliz.  825 161 

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

Dayiee's  Case,  Cro.  Eliz.  611 242 

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

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


7LXYI  TABLB  OF  CASES. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


«• 


TABLB  OF  CA0B8.  XXVU 

PAOB 

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

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

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

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

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

152,  224,  505 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


•  •• 


XXTUl  TABLE  OF  CA8B8. 

PAOB 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

219,  222,  223,  224 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8  Jur.  486 222 

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

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


TABLE  OF  CASES.  ZZIX 

PAOS 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


E. 

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

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

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

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

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

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

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


XXZ  TABLE  OT  CASES. 

PAOB 

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

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

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

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

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

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

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

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

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

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

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

EUis  V.  Bowles,  WUles,  638 276 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

186 187,  323 

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

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

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

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

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

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


TABLE  07  CASES.  XXXI 

PAOE 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

73,  83,  186 

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

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

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

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

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

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

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

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

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

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


XZXU  TABLE  OP  CASES. 

FAOB 

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

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

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

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

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

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

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

Fort  V.  Ward,  Moo.  667 268 

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

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

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

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

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

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

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

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

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

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

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

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

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

189 

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

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

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

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

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


G. 

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

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

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

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

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

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


•  •• 


TABLE  OF  CASES.  XXZIU 


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

105 ;  17  Jnr.  926 88,  89,  191 

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

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

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

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

E.  c 


ZXXIV  TABLE  OF  CASES. 

PAGB 

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

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

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

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

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

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

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

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

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

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

Godld  v.  White,  K.  683 27 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

234,  273 

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

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

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

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

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

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

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


TABLE  OF  CASES. 

Plffli 

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

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

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

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

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

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

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

GriffitB,  Boe  d.  Noden  v.,  4  Bnir.  1062       -  -  -  62, 183 

Giiggs  V.  Gibeon,  14  W.  B.  819            -  -           -  -  377 

Grimatead  v.  Marlowe,  4  T.  B.  717            -  -  -     -  260 

Grimstone,  Ex  parte,  4  Bro.  0.  C.  236  n.  -           -  -    71 

Groom,  Great  Yarmouth  (Mayor,  &c.  of)  v.,  1  H.  &  G.  102     -  246 

Groom,  Wilks  v.,  6  De  G.  M.  &  G.  206  -           -  -    98 

Groome,  Pratt  v.,  16  East,  236       -           -  -  *     -    16 

Grymes  v.  Peaoock,  1  Buls.  17  -           -  -           -  268,  367 

Guildford  (Earl  oQ,  Bamett  v.,  11  Ezch.  19;  24  L.  J.  N.  S.    • 
Ex.  281 ;  1  Jur.  N.  8.  1142 149 

Guise,  Groome  v.,  4  Bing.  N.  0. 148 ;  6  Scott,  463 ;  3  Hodges, 

277 210 

Gullett  V.  Lopee,  13  East,  348 262 

Gunner,  Grant  v.,  1  Taunt.  436  -  -  -       126,  279 

Gwinnell,  Doe  d.  BiddeU,  1  a  B.  682        -  -  -     -  161 

Gyde,  Lingwood  v.,  L.  B.  2  C.  P.  72;  36  L.  J.  N.  8.  0.  P.  10 ; 
16  L.  T.  N.  8.  229 ;  16  W.  B.  311     -  -  -       392,  626 

Gyppen  v.  Bunney,  Cro.  Eliz.  604  -  -  -  -     -    64 


H. 

Haddon  {or  Hall)  v.  Airowsmith,  Gro.  Eliz.  461 ;  Owen,  72 ; 

Poph.  106 36 

Hagberton,  Horsey  v.,  Cro.  Jao.  229  -  -  -     -  276 

Halcraff  8  (Lady)  Case,  4  Bep.  30  b.    -  -  -  -308 

Hale,  Beg.  v.,  9  A.  &  E.  339;  1  P.  &  D.  293;  8  L.  J.  N.  8. 
aB.  83 230 

Hall  V.  Bromley,  36  Ch.  Div.  642;  66  L.  J.  N.  8.  Oh.  722;  66 

L.  T.  N.  8.  683 ;  36  W.  B.  669         -  -         72,  73,  74, 191 

Hall r.  Byron,  4  Oh. Div.  667 ;  46  L.  J.  N.  8.  Oh.  297 ;  36L.T. 

N.  8.  367 ;  26  W.  B.  317  -  -  -  -  274,  307 

HaD  V.  Ohichester  (Earl  of)  v.,  17  L.  T.  121  214,  216,  218,  337 

Han-Dare  v.  Hall-Dare,  31  Oh.  Div.  261  -  -  -     -    32 

TTi^n^  Doe  d.  Bennington  v.,  16  East,  208         -  -       313,  346 

Hall  V.  Harding,  1  W.  Bl.  673;  4  Burr.  2426        -  -     -  266 

c2 


XXXYl  TABLE  OF  CASES. 

PAOB 

Hall  V.  Nottmgliam,  1  Ez«  Diy.  1  ^5  L.  J.  N.  8.  Ex.  50;  33 
L,  T.  N.  S.  697 ;  24  W.  E.  68     -  -  -  -     -  298 

Hallett,  Queen's  College,  Oxford  v.,  14  East,  489        -  -  276 

Halton  V.  Hassel,  2  Stra.  1042       -  -  -  .     .  177 

Hammerton  v.  Honey,  24  W.  E.  603   *  -  -         19,  341 

Hammond  v.  Bradstreet,  10  Ezch.  390 ;  23  L.  J.  N.  S.  Ex.  332-  836 

Hammond  v.  Hobart,  4  Eep.  27  b        -  -  176,  176,  189 

Hamner,  Att,-Gen.  r.,  27  L.  J.  N.  S.  Ch.  837;  34  L.  T.  N,  S. 
379 ;  4  Jut.  N.  8.  761 ;  6  W.  E.  804      -  -  -     -  828 

Hanmer  v.  Chance,  4  De  Q.  J.  &  8.  626 ;  34  L.  J.  N.  8.  Ch. 
413;  llJur.N.  8.397;  13W.E.666;  12  L.  T.  N.  8. 163  -236, 

237,328,338,340 

Hanslip^  Daniel  v.,  2  Ley.  67   -           -           -  -       266,  262 

Hardbam,  Cheesman  v.,  1  B.  &  Aid.  706   -  -            -      -  291 

Harding,  East  v.,  Cro.  Eliz.  498           -            -  -            -  224 

Harding,  HaU  v.,  1  W.  Bl.  673 ;  4  Burr,  2426  -            -      -  266 

Hardinge,  Thompson  v.,  1  C.  B.  940;  14  L.  J.  N.  8.  C.  P.  268 ; 

9  Jut.  927 2,324 

Hardwicke  (Earl)  v.  QajidjB  (Lord),  12  M.  &  W.  761  -  -  196 
Hardy,  Bowlston  v.,  Cro.  Eliz.  647;  6  Eep.  104b;  Moo.  463  -  239 
Hardy  v,  Eeeyes,  4  Ves.  jun.  466  -  -  -  -     -  227 

Harecourt's  (8ir  8imon  de)  Case,  Yearb.  Trin.  12  Hen.  Ylli. 
lo.  2,  pi.  2     -  -  -  -  -  .       262, 264 

Harrington  (Earl  of),  Widdowson  v.,  IJ.  &  W.  632  62,  72,  163 

Harris  v.  Dayison,  16  8im.  128      -            -           -  -      -  326 

Harris  v.  Jay,  4  Eep.  30  a        -           -           -  -           -  308 

Harris,  Trotter  v.,  2  Y.  &  J.  286   -           -           -  -     -  244 

Harrison,  Doe  d.  Le  Keux  v.,  6  Q.  B.  631 ;  14  L.  J.  N.  8.  Q.  B. 
77 ;  9  Jur.  104 163 

Harrison,  Eooper  v.,  2  K.  &  J.  86  -  -  -  -     -    12 

Hart,  In  re,  Ex  parte  8Ghool  Board  for  London,  41  Ch.  Diy.  647 ; 
68  L.  J.  N.  8.  Ch.  762 ;  60  L.  T.  N.  8.  817 ;  38  W.  E.  61  -  27,  368 

Hartop  V.  Dalby,  Hetl.  14  -  -  -  -     -    10 

Hartopp,  Flowerv.,  6Beay.  476  -  -  -  -    76 

Hartopp,  Eobertson  v.,  43  Ch.  Diy.  484 ;  69  L.  J.  N.  8.  Ch.  663 ; 
62  L.  T.  N.  8.  685  ...  -      264,266,279 

Hassell,  Halton  v.,  2  8tra.  1042  -  -  -  -  177 

Hatherton  (Lord),  Anglesey  (Marq.  of)  v.,  10  M.  &  W.  218 ;  12 
L.  J.  N.  8.  Ex.  67 237,342 

Hayering-atte-Bower  Manor  d.  (8teward  of),  Eex  v.,  6  B.  &  Aid. 
691 336 

Hayiland  {or  Hayyland),  Hungerford  v.,  3  Buls.  323 ;  W.  Jon. 
132 •       203,210 

Hawker,  Breeze  v.,  14  Sim.  360     -  -  -  -     -  346 

Hawkins,  Gallard  v.,  27  Ch.  Diy.  298 ;  63  L.  J.  N.  8.  Ch.  834 ; 
51  L.  T.  N.  8.  689 ;  33  W.  E.  31       -  -  -       221,  222 


•  • 


TABLE  OF  CASB8.  XZZTU 

PAOV 

Haywaid  v.  Caimiiigion{or  OuiiHigton),  2  Keb.  290,  311 ;  1  Sid. 
a54-  -  -,-  -  -  -       255,  2d9 

Haywaxd  v.  Pile,  L.  E.  5  Oh.  214;  41  L.  J.  N.  S.  Ch-  778 ;  26 
L.  T.  N.  S.  900;  20  W.  B.  736  -  -  -  -      -  432 

Howard  v.  Eaw,  6  H.  &  N.  308 ;  30  L.  J.  N.  S.  Ex.  178 ;  4 
L.  T.  N.  S.  519   -  -  -  -  52,  174,  175,  191 

Heakin,  Doe  d.  Beck  v.,  6  A.  &  E.  495;  2  N.  &  P.  660  -  328 

Hearfield,  Wilberforoe  v.,  5  Oh.  Div.  709 ;  46  L.  J.  N.  S.  Oh. 
584 ;  25  W.  E.  861 335 

Heath  v.  Elliott,  4  Bing.  N,  0.  388;  6  Scott,  172 ;  1  Am.  170-  252 

Hedd  V.  Ohalener,  Oro.  Eliz.  149 198 

Heddy  v.  Wheelhonse  {or  Welhouse),  Oro.  Eliz.  558, 591 ;  Moo. 
474    -  -  -  .  -  -     138,  240,  241, 244 

Hellier,  Doe  (i.  Tarrant  v.,  3  T.  E.  162      -    151,152,153,156,182, 

219,  222,  223,  224 

Helliwell,  Brace  v.,  5  H.  &  N.  609 ;  29  L.  J.  N.  S.  Ex.  297    -  238 

Hemet  (or  Hemmett),  Eolkard  v.,  5  T.  E.  417  n. ;  2  W.  Bl. 
1061 273,280,315 

Hemingway,  Bex  v.,  1  Barnard.  436  -  -  -     -  306 

Hempston,  Sands  v.,  2  Leon.  109         -  -  -  -    49 

Hendon  Manor  (Lord  of),  Eex  v.,  2  T.  E.  484       -  64,  72,  190 

Henley,  Ex  parte  Lord,  Li  re  London  &  S.  W.  By.  Oo.,  29 
Beav.  311 ;  31  L.  J.  N.  S.  Oh.  54 ;  9  W.  E.  350       -         47,  352 

Herbert,  Pain  v.,  dted  2  Keb.  158  ....  130 

Herbert,  Tenham  (Lord)  v.,  2  Atk.  483  -  -  -  266 

Hewet  tf.  Norberow,  1  Bnla.  52      -  -  -  -     -  196 

Hexham  Manor  (Lord  of),  Eex  v.,  5  A.  &  E.  559 ;  1  N.  &  P. 
53 ;  2  H.  &  W.  397;  -6  L.  J.  N.  S.  K  B.  33  -  69,  89 

Hext «.  Gill,  L.  E.  7  Oh.  699 ;  41  L.  J.  N.  S.  Oh.  761 ;  27L.T. 
N.  a  291 ;  20  W.  E.  957  ...      232,  234,  353 

Heydon  v.  Smith,  13  Eep.  67  -  -  -  -  -  231 

Heydon's  Oaae,  3  Eep.  7  a. ;  Moo.  128       -  -      121,  124,  225 

Heywood,  Anderson  v.,  3  Leon.  221 ;  4  Leon.  38         -  -  154 

Hoy's  WiU,  9  Haie,  221 100 

Blckringill,  Eeble  v.,  11  Mod.  74        -  -  -  -  238 

Hicks,  Eoe  d.  JefFereys  v.,  2  Wils.  13        -  -  -  80,  224 

mcks  V.  SalHtt,  3  De  G.  M.  &  G.  782 ;  22  L.  J.  N.  S.  Oh.  571 ; 
18Jnr.  915 13,91,275 

Hide  V.  Newport,  dted  Moo.  185   -  -  -  -     -  350 

Higford,  Oox  v.,  2  Vem.  664 223 

Higgins  V.  Grant,  Oro.  Eliz.  18      -  -  -  -     -    12 

mi,  Barker  v.,  2  Oh.  Eep.  218  -  -  -  -    67 

HiU,  Laoey  v.,  L.  E.  19  1^.  346 ;  44  L.  J.  N.  S.  Oh.  215 ;  32 
L.  T.  N.  S.  48 ;  23  W.  E.  285     -  -  -  166,  516 

TTill  Portland  (Dnke  of)  v.,  L.  E.  2  Eq.  765 ;  35  L.  J.  N.  S. 
Ch.  439  ;  12  Jur.  N.  S.  286 ;  15  W.  E.  38  -  2,  237,  250,  324,  340 


XZXViii  TABLE  OF  CASBS. 

PAGE 

Hill,  StephenBon  v.,  3  Burr.  1273  -  -  -  .     .      2 

Hillary  v.  Waller,  12  Yes.  jun.  239      -  -  -       218,  338 

Hilton  v.  QraiiTille  (Earl),  5  a  B.  701 ;  D.  &  Mer.  614 ;  in 
Chanc,  Cr.  ft  Ph.  283 ;  4  Beay.  130 ;  10  L.  J.  N.  S.  Ch.  398-  233, 

234,273 

Hinton  v,  Hinton,  2  Yes.  631  -  -  -  -  63,  67,  166 

Hitch,  Lawrence  v.,  L.  B.  2  Q.  B.  184,  n.-  -  -     -  321 

Hiz  v.  Oaidiner,  2  Buls.  196    -  -  -  -  -  200 

Hoare,  Wilaon  v.,  10  A.  ft  B.  236 ;  2  B.  ft  Ad.  360 ;  2  P.  ft  D. 
669;  9  L.  J.  K  B.  263  -  -  -  176,  179,  180,  181,  182 

Hobart  v.  Hammond,  4  Bep.  27  b         -  -  176,  176,  189 

Hobeon  v.  Todd,  4  T.  B.  71 266 

Hockley  {or  Stuckley),  Fitch  v.,  Cro.  Eliz.  44*2 ;  4  Bep.  23a    -  64, 

73,  83,  186 

Hoddesden,  Jackman  v.,  Cro.  Eliz.  361      -  -  34,  36, 176,  229 

Hodges,  Holdage  v.,  1  Ley.  106  -  -  -  -  326 

Hodges,  Turner  v.,  Hutt.  101        -  -  -         36, 36, 221 

Hodgson,  Myers  v.,  1  0.  P.  Diy.  609 ;  46  L.  J.  N.  S.  0.  P.  603 ; 

34  L.  T.  N.  S.  881 ;  24  W.  B.  827  -  -  382,  623 

Hodgson,  Boe  d.  Parry  v.,  2  Wils.  129  ...  169 

Hoe  V.  Taylor,  Cro.  Eliz.  413 ;  4  Bep.  30  b  -  -     14,  16 

Holdage  v.  Hodges,  1  Ley.  106  •         -  -  -  -  326 

Holder  d.  Sulyard  v.  Preston,  2  Wils.  400  -  -         88,  89,  191 

Holdfast  d.  WooUams  v.  Clapham,  1  T.  B.  600 ;  4  Burr.  1962  -  63, 69 
Holland  i;.  Lancaster,  2  Yent.  134  -  -      170,  208,  210 

Holloway  v.  Berkeley,  6  B.  ft  C.  2 ;  9  D.  ft  B.  83;  6  L.  J. 

KB.  1 187,  204,  206 

Holroyd  v.  Breare,  2  B.  ft  Aid.  473      -  -  -  -  300 

Holworthy,  Whitechurch  v.,  4  M.  ft  S.  340 ;  19  Yes.  jun.  213  -  232 
Honey,  Hammerton  v.,  24  W.  B.  603  -  -  -         19,  341 

Honour,  Wheeler  v.,  1  Sid.  68        -  -  -  -  189, 190 

Honywood  v.  Foster,  30  Beay.  1 ;  30  L.  J.  N.  S.  Ch.  930;  7 

Jur.  N.  S.  1264;  9  W.  B.  866;  4  L.  T.  N.  S.  786    -         30,  346 
Honywood  v.  Honywood,  L.  B.  18  Eq.  306 ;  43  L.  J.  N.  S.  Ch. 

662;  30  L.  T.  N.  S.  671 ;  22  W.  B. 749  -  -  -     -  227 

Hook  V.  Hook,  1  Hem.  ft  M.  43  -  -  -  -  146 

Hopkins,  Down  v.,  4  Bep.  29  b;  Cro.  Eliz.  323     -  -  42,  308 

Homcastle  V.  Charlesworth,  11  Sim.  316 ;  18  L.  J.  N.  S.  Ch.  36  -  118 
Horsey  v.  Hagberton,  Cro.  Jac.  229  -  -  -     -  276 

Horton  v.  Bookman,  6  T.  B.  760  -  -  -  -  342 

Horton,  Grafton  (Duke  of)  v.,  2  Bro.  P.  C.  284     -  -  43,  174 

Hoskins,  Ford  v.,  Cro.  Jao.  368  -  -  -  -    43 

Hoskins  v.  Bobbins,  Pollerf.  13 ;  2  Wms.  Saund.  320      -  266,  276 
Hotham  (Lord),  Att.-Gen.  v.,  Turn,  ft  B.  209  -  -  347 


TABLE  OF  CASB8.  XXXIX 

PAOB 

Hougham  v.  Sandys,  6  L.  J.  Gh.  67  -  -  -     -  140 

Houghton,  Northumberland  (Duke  of)  v.,  L.  E.  6  Ex.  127     -  243 

Howard,  Inre,  3W.B.605-  -  -  -  -99 

Howard  v.  Barilet,  Hob.  181  -  -  -  - 161, 162 

Howard  v.  CaTendiah,  Cro.  Jac.  621    -  -  -  -  159 

Howard,  Yerulam  (Earl)  v.,  5  Moo.  &  P.  148 ;  7  Bing.  327 ;  9 
L.  J.  C.  P.  69 177 

Howard,  Wright  v.,  1  8.  &  S.  190        -  -  -  -    78 

Hoyte,  Bex  v.,  6  T.  B.  430  -  -  -  -     -  329 

Hudleston  v.  Whelpdale,  9  Hare,  775  -  -  -  -  188 

Hudflon,  Otvay  «.,  2  Vom.  583     -  -  -  -  27,  161 

Hudflon,  Phillips  v.,  L.  B.  2  Gh.  243    -  -  •       332,  334 

Hughes,  In  re,  W.  N.  (1884)  53 101 

Hughes  V.  Games,  Sel.  Gas.  Gh.  temp.  King,  62  -  -  280 

Hughes  V.  Wells,  9  Hare,  749 ;  16  Jur.  927  -  -      -  222 

Hull,  Ex  parte,  7  DowL  690 318 

Hull  V.  Sharbrook,  Gro.  Jac  36     -  -  -  .     .    68 

Hulse,  Andrews  v.,  4  K.  &  J.  392 ;  27  L.  J.  N.  S.  Gh.  655 ;  4 
Jut.  N.  S.  581 226 

Humberstone,  Blemmerhasset  v.,  Hutt.  65 ;  W.  Jon.  48         -  349 

Humphrey,  Peer  v.,  2  A.  &  E»  495  -  *  -     -  203 

Hundred  of  Mulyerton  (Lord  of),  Bex  v.,  3  A.  &  E.  284  -  302 

Hungerford,  Hayiland  {or  Havyland)  v.,  W.  Jon.  132 ;  3  Buls. 
323 203,210 

Hunt,  Farmer  v.,  Willes,  638        -           -  -           -     -  276 

Hunt,  Whiteeld  v.,  2  Doug.  727,  n.     -  -           -           -  189 

Hunter,  Maraham  v.,  Gro.  Jac  253            -  -           *     -  268 

Huntington,  Doe  d.  Beay  v.,  4  East,  271  -         6,51,324,353 

Hurd,  Sdisbury  d.  Gooke  v.,  Gowp.  481     -  -            - 160, 165 

Hutt,  Ex  parte,  7  DowL  690 ;  3  Jur.  1105  -           -           -  315 

Hutton,  Doe  d.  Andrew  v.,  3  B.  A  P.  643  -  -           -     -  143 

Hutton,  Boe  d.  Ashton  v.,  2  Wils.  162  ...  15a 


Idle  V.  Gook,  1  P.  Wms.  70;  2  Salk.  620;  2  Ld.  Baym.  1144; 

11  Mod.  57 62 

Inoe,  Elliott  v.,  7  De  Qt.  M.  &  G.  475         -  -  -     -    55 

IndoBure  Gommissioners,  Musgraye  v.,  L.  B.  9  Q.  B.  162 ;  43 
L.  J.  N.  8.  Q.  B.  80;  30  L.  T.  N.  8.  160 ;  22  W.  E.  295      -  274 

Ingleton  Manor  (Lords  of),  Beg.  v.,  8  Dowl.  693 ;  4  Jur.  700  -    29 

Ingram  v.  Tothill,  1  Mod.  216;  2  Mod.  93       -  -  -  207 

Ireland,  Boe  d.  Johnson  v.,  11  East,  280    -  153,  219,  338,  355 

Ireland,  Soane  v.,  10  East,  259  ...  10,  301,  327 


Xl  TABLB  OF  CASBS. 

FAOB 

Irwin  (Yisct.)  v.  Simpflon,  7  Bro.  P.  G.  306  -  -     -  3S4 

lyatt,  Eyerixiffham  v.,  L.  B.  7  Q.  B.  683;  L.  B.  8  Q.  B.  388; 
42  L.  J.  NT  8.  a  B.  203;  28  L.  T.  N.  S.  672;  21  W.  B. 
962 23,  191 

lyatfc i;.  Mann,  3  M.  &  Or.  691;  4  Soott,  N.  S.  342  -247,283 


J. 

Jaokman  v.  Hoddesden,  Cro.  Eliz.  351  -  -       34,  36,  176,  229 

Jaokfion,  Graliam  i;.,  6  a  B.  811 ;  14  L.  J.  N.  S.  Q.  B.  129;  9 
Jut.  276  -  -  -  -  -  -  -     -    67 

Jackson,  Middleton  v.,  1  Bep.  in  Oh.  33  -           -           -  176 

JadLBon  V.  Neal,  Cro.  Eliz.  396 ;  4  Bep.  26  b  -         13,  36,  229 

Jaoomb  v.  Turner,  (1892)  1  a  B.  47     -  -           -           -  120 

James,  Dixon  v.,  1  Freem.  273       -           -  -           -     -  276 

James,  Taylor  v.,  Godb.  160     -           -  -           -           -  241 

James  v.  Tutney,  Cro.  Oar.  497 ;  W.  Jon.  421  -           -  16,  307 

Jay,  Haiiis  v.,  4  Bep.  30a       -           -  -           -           -  308 

Jeans  v.  Cooke,  24  Beay.  613 ;  27  L.  J.  N.  S.  Ch.  202 ;  4  Jur. 
N.  S.67 41 

Jefleiy,  Boe  d.  Bennett  v.,  2  IL  &  S.  92    -  27,  237,  338,  346 

Jekyll,  Garland  v.,  2  Bing.  273;  9  Moore,  602;  2  L.  J.  0.  P. 
227    T  -  -  -  -  166, 187,  204,  205,  208 

Jenkins,  Blewett  v.,  12  C.  B.  N.  S.  16        -  -      211,  232,  236 

Jenkins,  Bandall  v.,  1  Mod.  96  -  -  -  -  138 

Jenner,  Biddell  v.,  10  Bing.  29       -  -  -  -     -  160 

Jenney,  Doe  d.  Whitbread  v.,  6  East,  622 ;  2  Smith,  116  -  73,  163, 

186 

Jennings,  Bridgman  v.,  1  Ld.  Baym.  734  -  -           -     -  334 

Jeryis,  Preston  v.,  1  Vem.  326             .  -           -           -  129 

Jew,  GFeorge  d.  Thombnry  v.,  Amb.  627    -  *           -    62,  83 

Joddzell,  Berell  v.,  2  T.  B.  416            -  -           -           -  269 

Johnson  v,  Barnes,  L.  B.  8  C.  P.  627 ;  42  L.  J.  N.  S.  C.  P. 
269;  29  L.  T.  N.  S.  66 269,  270 

Johnson  v.  Smart,  1  Bo.  Abr.  608,  pi.  14  -  -  -    36 

Johnstone  v,  Spencer  (Earl),  30  Ch.  Diy.  681 ;  63  L.  T.  N.  S. 
602;34W.B.  10 178,340 

Joliffe,  Bex  v.,  2  B.  ft  C.  64;  3  D.  ft  By.  240  -  -       302,  340 

Jones,  Att.-Gen.  v.,  2  H.  ft  0.  347 ;  33  L.  J.  N.  S.  Ex.  249 ; 
1  L.  T.  N.  S.  966 328 

Jones,  Cooper  v.,  26  L.  J.  N.  S.  Ch.  240 ;  2  Jnr.  N.  S.  59       -    99 

Jones  V.  Jones,  6  Hare,  440  -  -  -  -     -  188 

Jones,  Lloyd  v.,  6  C.  B.  81 ;  17  L.  J.  N.  S.  C.  P.  206 ;  12  Jnr. 
667 260 

Jones,  Powdrell  v.,  2  Sm.  ft  G.  407 ;  24  L.  J.  N.  S.  Ch.  123    -  166 


TABU  OF  0ASB8.  xli 

Jones  V.  Bichanls,  6  A.  &  E.  530;  2  N.  &  P.  747;  W.  W.  &^^^^ 
D.  276  -  -----«  262 

Jones  If.  Bobin,  10  a  B.  620;  17  L.  J.  N.  S.  Q.  B.  122;  12 
Jnr.  308  -  -  -  -  -  .  -      -  252 

Jordaii,  Whitbread  v.,  1  Y.  &  C.  Ex.  303;  4  Y.  &  0.  Ex.  566; 
4  L.  J.  N.  S.  Ex.  Eq.  38       -  -  -  .  74^32 

Jorden  v.  Stone,  Hutt.  18  -  -  -  -  -     -  162 


K 

Kay,  Gay  v.,  Cro.  Eliz.  661       -  -  -  -  -    49 

Keble  v.  Hickrmgill,  11  Mod.  74    -  -  .  .     .  238 

Keck,  Neeve  v.,  9  Mod.  106     -  -  -  .  -    67 

Keen  v.  Kirby,  2  Mod.  32-  -  -  -  -.54 

Kellow  V.  Bowden,  1  Show.  244  -  -  -  -  141 

Kelsey,  Underbill  v.,  Cro.  Jac.  226  -  -  .     .  153 

Kemp,  Wright  v.,  3  T.  B.  470  -  -  -  -  .    62 

Kempe  v.  Garter,  1  Leon.  55  -  -  .  .     .  132 

Kensington  (Lord)  v.  Mansell,  13  Ves.  jun.  240  -       185,  187 

Kenflit,  Bichardson  v.,  5  M.  &  Gr.  485 ;  6  Scott,  N.  B.  419  : 

12  L.  J.  N.  S.  C.  P.  154  -  -  .  .  .     -  177 

Kenay  v.  Bichardson,  Cro.  Eliz.  728     -  -  .  -    35 

Kent,  Druiy  v.,  Cro.  Jeo.  14  -  -  -  -     -  262 

Keir  V.  PawBon,  25  Beav.  394;  27  L.  J.  N.  8.  Oh.  594;  4  Jnr. 

N.  8.425 415,416,528 

Kett,  Parker  r.,  12  Mod.  467 310 

Kettlewell,  Scott  v.,  19  Yes.  jnn.  335  -  -  .  .  i63 

Kidoai,  Meere  v.,  Godb.  175  -  -  -  .     .  224 

Eng  V.  Dilliflton  {or  Dillington),  3  Mod.  221;  1  Salk.  386;  1 

iVeem.  494;  Garth.  41 ;  Comb.  118  -  -  .  67,  80,  154, 

177,  178 
King  V.  Moody,  2  Sim.  &  8.  579;  4  L.  J.  Gh.  227  -  351,  352 
King  V.  Turner,  1  Myl.  &  K.  456   -  -  -  -  91,  148 

£ng,  Wharton  v.,  3  Anst.  659  -  -      43,  173,  174,  344 

Kingsbridge  BlghwAj  Board,  Pitts  v.,  19, W.  B.  884;  25  L.  T. 

N.  S.  195 260 

King^s  College,  Cambridge,  Ex  parte,  (1891)  1  Gh.  333;  64 
L.  T.  N.  S.  623  .  -  .  .     '      .  .'     .  43e 

KingsweU,  Worledg  v.,  Cro.  Eliz.  794  -  -  -       269,  357 

Kirby,  Keen  v.,  2  Mod.  32  -  -  .  .     .    54 

Erby  v.  Sadgiove,  1  B.  &  P.  13;  6  T.  B.  483;  3  Anst.  892    -263, 

264,  273,  275 
Kirwood,Mxntonv.,L.B.3Gh.  614;  L.B.lEq.449;  35L.J. 

N.  8.  Gh.393;   12  Jnr.  N.  8.  86 ;   14W.  B.  274;    13  L.  T. 

N.  S.  751  -  -  -  -  -  -  63,  355 


xlii  TABLE  OF  CASES. 

PAGE 

Kitchen  v.  Enight,  Mcdell.  373           -           -  -           -  266 

Kite  V.  Queinton,  4  Bep.  25  a.        -            -            -  68, 94,  347 

Knight,  Kitchen  v.,  Mcaell.  373          -            -  -            *  266 

Knight,  Winchester  (Bishop  of)  v.,  1  P.  Wms.  406  -  227, 236 

Knoll,  Peter  v.,  Cro.  Eliz.  32    -           -           -  -           -  198 


L. 

Lacey  V.  Hill,  L.  B.  19  Eq.  346;  44  L.  J.  N.  S.  Ch.  216;   32 
L.  T.  N.  8.  48 ;  23  W.  B.  285      -  -  -  - 166, 516 

Lacy  V,  Anderson,  cited  1  Swanst.  398  n.,  445 ;   Gho.  Gas.  Ch. 
155    -  -  -  -  -  -  -  -  164 

Lake  v.  Plaxton,  10  Ex.  196 ;  24  L.  J.  N.  S.  Ex.  52  -     -  279 

Lakin,  Doe  d.  Hughes  v.,  7  G.  &  P.  481  -  -  -  335 

Lambert,  Garr  v.,  L.  B.  1  Ex.  168 ;   4  H.  &  G.  257 ;    35  L.  J. 
N.  8.  Ex.  121 ;  12  Jur.  N.  8.  194;  13  W.  B.  499  -   251,  270,  271 

Lambirth,  Wood  v.,  1  Ph.  8 ;  5  Jur.  741  -  -        93,  165 

Lancashire  and  Yorks.  Bail.  Go.,  Be,  Ex  parte  Macaulay,  23 
L.  J.  N.  8.  Gh.  815 110 

Lancaster  v.  Holland,  2  Vent.  134  -  -  -     170,  208, 210 

Lancaster  v,  Popham,  2  Bep.  in  Gh.  134  -  -  -  176 

Land  Gommissioners  for  England,  Beg.  v.,  23  Q.  B.  Diy.  59 ; 
58  L.  J.  N.  S.  Q.  B.  313 ;  37  W.  B.  538  -  -  -  395,  559 

Lane,  Fisher  v.,  2  W.  BL  834 348 

Lane,  Glover  v.,  3  T.  B.  445  -  -  -        10,  276,  327 

Lane,  Lewis  v.,  2  Myl.  &  K.  449  -  -  -  -    42 

Lane,  Be,  12  W.  B.  710 99 

Lane's  Gase,  2  Bep.  16  b.  -  -  -  -  -  350 

Langley,  Beale  v,  {or  Bell  and  Langley's  Gase),  2  Leon.  209 ; 
4  Leon.  230         -  -  -  -  -  -  13,  202 

Lanyon  v.  Game,  2  Wms.  Saund.  165;  1  Ley.  294 ;  1  Vent.  91 ; 
1  Sid.  473 ;  2  Keb.  505         -  -  -  -        198,  199 

Lascelles  v.  Onslow  (Lord),  2  Q.  B.  Diy.  433 ;   46  L.  J.  N.  S. 
Q.  B.  333 ;  36  L.  T.  N.  S.  469 ;  25  W.  B.  456    -  -  279, 339 

Lashmer  v.  Ayery,  Gro.  Jac.  126  ....  166 

Lathbury  v.  Arnold,  1  Bing.  217    -  -  -  -     -  262 

Latton,  Erbery  v.,  1  Leon.  190  -  -  -  -  308 

Lawes,  Doe  d.  Winder  v.,  7  A.  &  E.  195 ;    2  N.  &  P.  195 ;   W. 
W. &  D.  484;  7  L.  J.  N.  S.  a  B.  97     -  -  -   73,  183 

Lawnd,  Simonds,  v.,  Gro.  Eliz.  239      -  -           -           -    79 

Lawrence,  Grosser.,  9  Hare,  462  -  -           -           -     -    76 

Lawrence  v.  Hitch,  L.  B.  2  Q.  B.  184  n.  -           -           -  321 

Lawson,  Bradshaw  v.,  4  T.  B.  443  -  -           -       10,  300,  353 

Lea,  Watkins  v.,  6  Yes.  jun.  633         -  -           -            -    39 


TABLE  OF  CASES.  xUu 

PAOB 

Leoonfield  (Lord)  t;.  Dixon,  L.  B.  3  Ex.  30;  37  L.  J.  N.  B.  Ex. 
33 ;  17  L.  T.  N.  S.  288;  16  W.  B.  167   -  -  -      -  240 

Lechford's  Case,  8  Bep.  99  a     -  -  -  -  -154 

Lee  V.  Bayes,  18  C.  B.  699;  26  L.  J.  N.  S.  C.  P.  249 ;  2  Jur. 
N.  S.  1093 242 

Lee  V.  Boothby,  1  Keb.  720            -           -           -  -     -  347 

Lee  V.  Edwards,  1  Brownl.  173             -           -           -  -  269 

Leeds  (Duke  of),  Att.-Qeii.  v.,  2  Myl.  ft  K  343     -  -     -  222 

Leeds  (Duke  of)  v.  Strafford  (Earl  of),  4  Yes.  jun.  181-  -  228 

Le  Fleming,  Shutileworth  v.,  19  0.  B.  N.  S.  687  -  -     -  269 

Leicester  Forest  (Case  of),  Gro.  Jac.  166           -           -  246,  336 

Leman,  Minet  tf.,  20  Beay.  269;  7  De  Q.  M.  ft  Q.  340;  24 
L.  J.  N.  S,  Ch.  646 ;  1  Jnr.  N.  S.  692    -  -  -     -  114 

Lemman,  Denny  t;.,  Hob.  136  -----  176 

Lemon  v.  Blackwell,  Skin.  191       -  -  -  .     .    13 

Lempriere,  Guthbert  v.y  3  M.  ft  S.  168  -  *  -  -    60 

Lenthall  v.  Thomas,  2  Eeb.  267     -  -  -  -      -  229 

Lepingwell,  Bunting  v.,  4  Bep.  29  a;  Moo.  169;  Skin.  468     69,  62 

Lewin,  Att-Qen.  v.,  1  Coop.  61 ;  8  Sim.  366 ;  6  L.  J.  N.  S.  Ch. 
204;  IJnr.  234- 61 

Lewis  V.  Branthwaite,  2  B.  ft  Ad.  437  ;  9  L.  J.  E.  B.  263       -  236 

Lewis  V.  Lane,  2  Myl.  ft  K.  449     -  -  -  -     -    42 

Lewis  V.  Talbot,  1  C.  M.  ft  B.  496        -  -  -       243,  331 

Lidiard  and  Jackson's  and  Broadley's^Oontract,  42  Ch.  Diy. 
264 ;  58  L.  J.  N.  S.  Ch.  786;  61  L.  T.  N.  S.  322;  37  W.  E. 
793 153,  219,  338,  366 

Lightfoot,  Butler  v.,  3  Leon.  239  -  -  -  .     .     64 

Lingwood  v.  Gyde,  L.  E.  2  C.  P.  72;  36  L.  J.  N.  S.  C.  P.  10; 

16  L.  T.  N.  S.  229 ;  16  W.  E.  311    -  -  -       392,  626 

Lipeoombe,  Abington  v.,  1  Q.  B.  776;  1  Q.  ft  D.  230;  6  Jur. 
261 200,203 

Lipscombe,  Bland  t^.,  4  E.  ft  B.  712,  n. ;  3  Com.  Law  Bep.  261 ; 

24  L.  J.  N.  S.  Q.  B.  166,  n.;  24  L.  T.  N.  S.  92;  1  Jut. 

N.  S.  707,  n. 260 

Lireipool  Dock  Acts,  In  re,  1  Sim.  N.  S.  202        •  -     -  110 

Llandaff  (Bishop  of),  Lushbigton  v.,  2  N.  E.  491  9,  17,  138,  326 
Llewellyn,  Dunrayen  (Earl  of)  v.,  16  Q.  B.  791 ;  19 L.  J.N.  S. 

Q.  B.  388 ;  10  Jur.  1089  -  -  261,  269,  330,  331 

Lloyd  V. Jones,  6 C. B.  81 ;  17 L. J. N. S. C.  P. 206 ;  12Jur.667-  250 
Lbyd  r.  Powis  (Earl  of),  4  E.  ft  B.  485  -  -  -  274 

Locke,  Bush  v.,  3  CL  ft  F.  721 ;  9  BIL  N.  S.  1      -  -     -  136 

Locke  V.  Colman,  1  MyL  ft  Gr.  423 ;  2  Myl.  ft  Gr.  42,  636  -  144 
Locke  V,  Southwood,  1  MyL  ft  Gr.  441 ;  afiOrmed,  H.  L.  wb 

wmi.  Bush  V.  Locke  -  •  •  -  -       135,  159 

Lodge,  Deyonshixe  (Duke  of)  v.,  7  B.  ft  G.  36       -  «•     -  239 


Xliv  TABLE  OF  CASES. 

Lofield's  Oase,  10  Bep.  106  a    -  -  -  -  -  205 

Lomax,  Brisco  v.,  8  A.  &  E.  198;  3  N.  &  P.  308 ;  1  W.  W.  & 
H.  235 ;  2  Jur.  682 332 

Lomaz,  Ourzon  v.,  5  Esp.  60    -     •       -  -  -  10,  248,  327 

Lonsdale,  Bigg  v.,  11  Exoh.  654;  1  H.  &  N.  923  (Ex.  Gh.) ; 
26  L.  J.  N.  S.  Ex.  196;  3  Jur.  N.  8.  390  -  -     -    16 

Londesboroi^li  (Lord)  v.  Foster,  3  B.  ft  S.  805 ;  9  Jur.  N.  S. 
1173;  52L.  J,N.8.0.B.  225;  8L.T.N.S.  240;  11 W.  B. 
593 182,  183 

London,  Brixton  and  South  Coast  Bail.  Go.,  Stoneham  v., 
L.  B.  7  a  B.  1 ;  41  L.  J.  N.  S.  Q,  B.  1 ;  25  L.  T.  N.  S.  788; 
20  W.  B.  77 295 

London  (Commissioners  of  Sewers  of)  v,  Glasse,  L.  B.  7  Ch. 
456;  L.  B.  19 Eq.  134 ;  L.  B.  15  Eq.  302 ;  44  L.  J.  N.  S.  129 ; 
31  L.  T.  N.  S.  495 ;  23  W.  B.  102  -  -  -  252,  267 

London  (Corporation  of),  Chilton  v.,  7  Ch.  DiY.-562,  735;  47 
L.  J.  N.  8.  Ch.  433 ;  38  L.  T.  N.  8.  498 ;  26  W.  B.  474       -  261 

London  and  South  Western  Bail.  Co.,  Ecclesiastical  Commis- 
sioners v.,  14  C.  B.  743 ;  2  Com.  Law  Bep.  1797 ;  23  L.  J. 
C.  P.  177 ;  18  Jur.  911 107, 194 

London  and  South  Western  Bail.  Co.,  Li  re,  Exparte  Lord 
Henley,  29  Beay.  311 ;  31  L.  J.  N.  S.  Ch.  54;  9  W.  B.  350  -  47, 

352 

London's  Case,  dted  Godb.  269      -  -  -  -     -  230 

Long,  Baspole  {or  Baspool)  v.,  Yely.  1;  Cro.  Eliz.  879; 
Noy,  42 67,80 

Long  V.  Collier,  4  Buss.  267  -  -  -  -     -    76 

Lopes,  Gullett  v.,  13  East,  348  -  -  -  -  252 

Loyelace  v.  Loyelace,  Cro.  Eliz.  40  -  -  -     .  136 

Loyeless,  Boe  d.  Cosh  v.,  2  B.  &  Aid.  453        -  -  50,  63 

LoyeUv.  LoyeU,3Atk.  11 21 

Lowe  v.  Carpenter,  6  Exch.  825  ....  285 

Lowther  v.  Caledonian  Bail.  Co.,  (1892)  1  Ch.  73;  61  L.  J. 
N.  S.  Ch.  108 ;  66  L.  T.  N.  S.  62 ;  40  W.  B.  225      194,  195,  419 

Lowiher,  Fawoet  v.,  2  Yes.  300            -           -  -68,  139,  184 

Lowther  v.  Baw,  2  Bro.  P.  C.  451              -           -  .  171,  348 

Lucas,  Bex  v.,  10  East,  235      -           -            -  -           -  314 

Lufkin,  Doe  d.  Nunn  v.,  4  East,  221 ;  1  Smith,  90  -     -  230 

Lushii^rton  v.  Lkndaff  (Bishop  of),  2  N.  B.  49  9,  17,  138,  326 

Luter,  Melwich  v.,  4  Bep.  26  a      -           -           -  13,  34,  301,  308 

Luttrel  V.  Weston,  Cro.  Jao.  308          -           -  -           -    35 

Luttrel's  Case,  4  Bep.  86  a            -           -           -  -  257,  272 

Lutwyohe  v.  Lutwyohe,  Cases  temp.  Talbot,  276  -           -  142 


TABLE  OP  GASBS.  xlv 


PAOB 

MiacauIaT,  Ex  parte,  Be  Lancashire  ft  York.  Bail.  Go.,  23  L.  J. 
N.  S.  Oh.  816 110 

Macaulay,  Price  v.y  2  De  G.  M.  ft  Q.  339  -  -  -   78,  219 

Maclean,  Bowser  v,,  2  De  Q.  F.  ft  J.  416 ;  30  L.  J.  N.  S.  Oh.  273-  234 

Ttfaitland,  Willingale  v.,  L.  B.  3  Eq.  103;  36  L.  J.  N.  S.  Ch. 
64 261 

Major  T.  Brandwood,  Gro.  Oar.  260     -  -           -           -  199 

Malster,  Beeve  v.,  Gro.  Gar.  410    -           -  -      129,  140,  146 

Maltster,  Bowden  v.,  Gro.  Gar.  42        -  -           -           -  122 

Man,  Drory  v.,  1  Atk.  96  -           -           -  -           -      -  184 

Mann,  lyatt  v.,  3  M.  ft  Or.  691 ;  4  Scott,  N.  S.  342    -       247,  283 

Mansell,  Kensington  (Lord)  v.,  13  Yes.  jnn.  240  -           -  186, 187 

Mantel,  Woodland  v.,  Flowd.  94          -  -           -        198,  199 

Mardiner  v.  Elliott,  2  T.  B.  746     -           -  -           -  161, 236 

Marlowe,  Qiimstead  v.,  4  T.  B.  717     -  -           -           -  260 

Marsh  v.  Smith,  1  Leon.  26           -           -  -           .     .    lo 

Marshall,  Gooperv.,  IBuir.  269;  2 Ld.Ken«  1;  IWils.  61   -261, 

263,  273,  276 

Marsham  v.  Hunter,  Gro.  Jao.  263       -  -           ...  268 

Marsham,  York  (Dnke  of)  v..  Hard.  432    -  -           -     -  124 

Martin,  Doe  d,  Lempriere  v.,  2  W.  BL  1148  -           -           -    34 

Marje's  Case,  9  Bep.  HI  b            -           -  -           -  266,  276 

Mason  v.  Gsesar,  2  Mod.  66      -           -  -           -           -  263 

Mason,  Doe  d.  Mason  v.,  3  Wils.  63           -  -            237,  338 

Mason,  Fraser  v..  11  Q.  B.  Div.  674  (0.  A.);  62  L.  J.  N.  S. 
Q.  B.  ©43 ;  48  L.  T.  N.  S.  269 ;  31  W.  B.  660     -      174, 176,  189 

Mason,  Bowles  v.,  1  Brownl.  132 ;  2  Brownl.  86  -       236,  342 

Mason,  Shelley  v.,  cited  6  Yin.  Abr.  112,  114  -           -     -  229 

Mathewman,  Burdet  v.,  OLayt.  107       -           -  -           -  241 

Mathews  v.  Feayer,  1  Ooz,  Oh.  Oa.  278     -  -           -  66,  123 

Mathias,  Att-Gen.  v.,  4  K.  ft  J.  679 ;  27  L.  J.  N.  S.  Oh.  761  -  248, 

260 

Matthew  v.  Osborne,  13  0.  B.  919 ;  22  L.  J.  N.  S.  0.  P.  241 ; 
17Jur.  696 64 

Matthews,  Barwick  v.,  6  Tannt.  366 ;  1  Marsh.  60      -  -  249 

Mattock,  Snook  v.,  6  A.  ft  E.  239  -  -  -  -     61,  61 

Maule,  Weayer  v.  2  B.  ft  M.  97  -  -  -  -    60 

Maw,  Seamen  v.,  3  Bing.  378 ;  11  Moore,  243 ;  4  L.  J.  0.  P.  97-    66 

Mawson,  Barnes  v.,  1  M.  ft  S.  77  -  -  -      233,  328,  331 

May  9.  Milton,  Dyer,  133  b 136 

May  V.  Street,  Gro.  Eliz.  120         -  -  -  -     -  326 

Mead,  Garland  v.,  L.  B.  6  Q.  B.  441 ;  40  L.  J.  N.  S.  Q.  B.  179 ; 
24  L.  T.  N.  S.  421 ;  19  W.  B.  1166    -      72,  84,  87,  88,  188,  616 


zlyi  TABLE  OF  CASES. 

PAOB 

Medgate,  QomerBall  v.,  Yely.  194  -  -  -  -     -  197 

Mee,  Doe  d.  Cawthom  v.,  4  B.  &  Ad.  617;  1  N.  ft  M.  424      -  346 

Meer  and  Forton  Manor  (Lord  of),  Bex  v.,  2  D.  ft  By.  824     -  178 

Meere  v.  Kidout,  Godb.  176  -  -  -  -     -  224 

MelloT  V.  Spateman,  1  WmB.  Saund.  339  -    248,  260,  263,  264 

Melwich  v.  Luter,  4  Bep.  26  a        -  -  -  13,  34,  301,  303 

Merdiant  Tailors'  Go.  (Master  of),  Bex  v.,  2  B.  ft  Ad.  lid       -  314 

Michel,  Bullen  v.,  2  Price,  399 334 

Middleton  v.  Jackson,  1  Bep.  in  Ch.  33  -  -  -  176 

Middleton  (Lord),  Pullen  v.,  9  Mod.  483    -  -  -     -    22 

Mndmaj  (Lady),  Bex  v.,  5  B.  ft  Ad.  254 ;  2  N.  ft  M.  778       -  224 

Miles,  De  la  Warr  (Earl)  v.,  17  Ch.  Diy.  535 ;  50  L.  J.  N.  S.  Ch. 
754 ;  44  L.  T.  N.  S.  487 ;  29  W.  B.  809  -   19,  250,  255,  343,  344 

Milfax  V.  Baker,  1  Ley.  26  -  -  -  -     -  224 

Mill  V,  New  Forest  Commissioner,  18  C.  B.  60;  25  L.  J.  N.  S. 
C.  P.  213 ;  2  Jut.  N.  S.  520 237 

Miller  v.  Warmington,  IJ.  ft  W.  484        -  -  -      -  228 

Mills,  Paterson  v.,  19  L.  J.  N.  S.  Ch.  310 ;  15  Jur.  1  -  -  143 

Mills'  Trusts,  Li  re,  37  Ch.  Diy.  312;  40  Ch.  Div.  14  (C.  A,); 
67  L.  J.  N.  8.  Ch.  466 ;  60  L.  T.  N.  S.  442 ;  37  W.  B.  81    -  97, 

101,  567 

Milton,  May  v..  Dyer,  133  b 136 

Milton  (Inhabitants  of),  Bex  v.,  1  C.  ft  K.  58        -  -     -  336 

Minet  v.  Leman,  20  Beay.  269 ;  7  De  Q.  M.  ft  Q.  340 ;  24  L.  J. 

N.  S.  Ch.  545 ;  1  Jur.  N.  S.  692       -  -  -  -  114 

Minet  v.  Morgan,  L.  B.  11  £q.  284 ;  L.  B.  8  Ch.  361 ;  42  L.  J. 

N.  8.  Ch.  627 ;  28  L.  T.  N.  8.  573 ;  21  W.  B.  467  -  252,  316 
Minton  v.  Eirwood,  L.  B.  3  Ch.  614  ;  L.  B.  1  Eq.  449 ;  35  L.  J. 

N.  8.  Ch.  393 ;  12  Jur.  N.  8.  86 ;  14  W.  B.  274 ;  13  L.  T. 

N.  8.  751 -  63,  365 

Mitohel  V.  Neale,  2  Yes.  679    -  -  -  -  -    68 

Mitford,  Nicholls  v.,  20  Ch.  Diy.  380 ;  51  L.  J.  N.  8.  Ch.  485; 

30  W.  B.  509 297 

Molineux,  Clifton  v.,  4  Bep.  27  a         -  -  -  -  301 

Monopolies,  Case  of,  11  Bep.  84  b  -  -  -  -238,273 

Monro  v.  Taylor,  8  Hare,  61    -  -  -  -  -    75 

Montague's  (Lady)  Case,  Cro.  Jac.  301      -  35,  224,  229,  230 

Moody,  King  v.,  2  8im.  ft  8.  579 ;  4  L.  J.  Ch.  227  -  351,  352 
Moore,  Drury  v.,  1  8tark.  102        -  -  -  -     -  283 

Moore  v,  Moore,  2  Yes.  696 ;  Amb.  279 ;  1  Dick.  66    -  -    27 

Moore  v.  Bawson,  3  B.  ft  C.  332 ;  5  D.  ft  By.  234  -     -  270 

Moore  v.  Webster,  L.  B.  3  Eq.  267 ;  36  L.  J.  N.  8.  Ch.  429 ; 

16  W.  B.  167;  15  L.  T.  N.  8.  460    -  -  -  -  166 

Morgan,  Doe  d»  Haiman  v.,  7  T.  B.  103    -  -  .      -    so 


I  TABLE  OF  CAfiM.  xlvii 

PJkflB 

Morgan,  Minet  v.,  L.  B.  11  Eq.  284 ;  L.  B.  8  Oh.  361  *  48  L.J. 
N.  S.  Ch.  627  ;  28  L.  T.  N.  8.  673 ;  21  W.  B.  467    -       252,  815 

Morgan  v,  Morgan,  5  Madd.  408    -  -  •  ^^      *  166 

Morgan  v,  Scndamore,  2  Bep.  in  Ch.  184      .   •  •  «  176 

Morgan's  Case,  8  Mod.  296  -  -  -  -     -  321 

Morley  v.  Clifford,  20  Ch.  Div.  763 ;  51  L.  J.  N.  S.  Cfc.  687 ;  46 
L.  T.  N.  S.  661 ;  30  W.  B.  606         -  -  -       249,  256 

Morley,  Cnddon  v.,  7  Haie,  202     -  -  -  -     -  227 

Monice,  Twining  v.,  2  Bro.  C.  C.  326  -  -  -  -    78 

MorriB,  Orogate  v.,  2  Biownl.  146  -  -  -  -     -  264 

Moiris  V.  darkflon,  3  Swan.  668  ....  182 

Morris  v.  Dimes,  1  A«  &  E.  654     -  -  -  -     -  239 

Morris,  Doe  d.  Wood  v.,  2  Taunt.  62    -  -  -  -  229 

Morris,  Downe  (Visct.)  v.,  3  Hare,  394 ;  3  L.  J.  N.  S.  Ch.  337 ; 
8  Jut.  486-  -  -  -  -  -  -222 

Mors  V.  Webbe,  1  Brownl.  180 ;  2  Brownl.  297  -           -     -  270 

Mono  V.  Faulkner,  1  Anst  11  ....  132 

Morse,  Goodtitle  d.  Faulkner,  v.,  3  T.  B.  366  -           -  64,  148 

MosGTop,  Dayidson  v,  2  East,  66          -           -  -           -  302 

Moselej,  Edwards  v.,  Willes,  192  -           -  -           -     -  200 

Modey  V.  Chadwick,  7  B.  ft  C.  47  n.     -           -  -           -  246 

Modey  v.  Walker,  7  B.  &  0,  40     -     ,       -  -           -     -  245 

Monlton  v.  Camronz,  4  Ezch.  17         -           -  -           -    65 

Mnnleton  v.  Bamett,  2  H.  ft  N.  663 ;  27  L.  J.  N.  S.  Ex.  125 ; 
4  Jiir.  N.  S.  139 130,  133,  143 

Murhall,  Challoner  v.,  2  Yes.  jnn.  624  -  -  27,  165,  358 

Murrell  v.  Smith,  4  Bep.  24b         -  -  -  -     -  202 

Mnsoott,  Doe  d.  Twining  v.,  12  M.  ft  W.  832;  14  L.  J.  N.  S. 
Ex.  185 162, 175,  182 

MnsgraTe  v.  Cave,  Willes,  319      -  -       16,  17,  247,  256,  258 

MosgraTe  v,  Inclosnre  Commissioners,  L.  B.  9  Q.  B.  162 ;  43 
L.  J.  N.  S.  Q.  B.  80;  30  L.  T.  N.  S.  160;  22  W.  B.  295     -  274 

Myers  v.  Hodgson,  1  0.  P.  Div.  609 ;  46  L.  J.  N.  S.  C.  P.  603; 
34  L.  T.  N.  S.  881 ;  24  W.  B.  827     -  -  -       382,  523 


N. 

Nanson  v.  Barnes,  L.  B.  7  Eq.  250;  20  L.  T.  N.  S.  154;  17 
W.  B.  429 83 

Nash  V.  Coombs,  L.  B.  6  Eq.  61 ;  37  L.  J.  N.  S.  Ch.  600 ;  16 
W.  B.663 w  -293 

Naah  v.  Derby  (Earl  of),  2  Yem.  637         -  -  -     -  223 

Kawton,  Woadson  v.,  2  Stra.  777  -  -  -  -  262 

Nayler  v.  Strode,  2  Ch.  Bep.  392    -  -  -  -     -    54 


Zlviii  TABLE  OF  GASES. 

Naylor  and  Spendla's  Contract,  In  le,  34  Gh.  Diy.  217 ;  56  L.  J. 
N.  S.  Ch.  453;  56  L.  T.  N.  S.  132 ;  35  W.  R.  219    -       104,  192 

Neal  V.  Jackson,  4  Bep.  26  b ;  Cio.  Eliz.  395  -         13,  36,  229 

Neale,  Mitohel  v.,  2  Yes.  679 58 

Neeve  v.  Keck,  9  Mod.  106  -  -  -  -     -    67 

Neville's  Case,  11  Eep.  17  a      -  -  -  -  -    14 

Newoomen  v.  Barkham,  2  Vem.  729 ;  Oh.  Prec.  464  -      -  145 

New  Forest  Commissioner,  Mill  v.,  18  0.  B.  60;  25  L.  J.  N.  S. 
C.  P.  213;  2  Jut.  N.  S.  520 237 

Newlyn,  Pearoe  v.,  3  Madd.  186     -  -  -  -     -    75 

Newport,  Hide  v.,  cited  Moo.  185         ....  350 

Newton  v.  Shafto,  1  Sid.  267 ;  1  Lev.  172  -  -      128,  134, 141 

Nicholls  V.  Mitford,  20  Oh.  Div.  380 ;  51  L.  J.  N.  S.  Ch.  485 ; 
30  W.  B.  509  -  -  -  -  .  -  297 

Nicholls  V.  Parker,  14  East,  331,  n.  -           -           -     -  331 

Nichols,  Thomas  v.,  3  Lev.  40  -  -           -           -           -  275 

Nicholson  v.  Nicholson,  1  Tarn.  319  -           -           -     -    82 

Nickolson,  TJpperton  v.,  L.  B.  6  Ch.  436  -           -           -    78 

Noble,  Gale  v.,  Oarth.  432  -           -  -           -           -     -      2 

Noble,  Bichards  v.,  3  Mer.  673  ....  227 

Noel  V.  Weston,  6  Madd.  60           -  -           -           .     -    68 

Norberow,  Hewet  v.,  1  Buls.  62  -            -            -            -  196 

Norfolk  Bail.  Co.,  Cooper  v.,  3  Exch.  646 ;  6  Bailw.  0.  94 ;  18 
L.  J.  N.  S.  Ex.  176;  13  Jur.  195  -  -      107,  323,  420 

North  V.  Strafford  (Earl  of),  3  P.  Wms.  150     -  -       190,  212 

Northampton  (Mayor,  &c.  of)  v.  Ward,  2  Stra.  1238  -     -  245 

Northampton  Market,  Case  of,  cited  2  Inst.  220  -       244,  245 

Northumberland  (Duke  of).  Grey  v.,  13  Ves.  jun.  236;   17 
Ves.  jun.  281 232 

Northumberland  (Duke  of)  v.  Houghton,  L.  B.  5  Exch.  127    -  243 

Northwick  (Lord)  v.  Stanway,  3  B.  &  P.  346;  6  East,  56  -  14,  174, 

176,  189,  279,  284 

Nottingham,  Hall  v.,  1  Ex.  Div.  1 ;  45  L.  J.  N.  S.  Ex.  50 ;  33 
L.  T.  N.  S.  697;  24  W.  B.  58  -  -  -  -  298 


O. 

Oakley  v.  Smith,  1  Eden,  261 ;  Amb.  368  -  -           -     -  118 

O'Connor,  Devonshire  (Duke  of)  v.,  24  Q,  B.  Div.  468;  59 
L.  J.  N.  S.  a  B.  206;  62  L.  T.  N.  S.  917 ;  38  W.  B.  420    -  240 

Odiham  v.  Smith,  Cro.  Eliz.  589           -           -  -            -  203 

Ohmd  V.  Burdwiok,  Cro.  Eliz.  460  -           -  -           -     -  159 

Oland'sCase,  5Bep.  116  a        -            -            -  -            -163 

Oldfield,  Orowder  v.,  6  Mod.  19 ;  1  Salk.  170  -            -269,  337 


TABLB  OF  CASES.  zlix 

OHyer  v.  Taylor,  1  Atk.  474     -  -  -  -  •    50 

Olley,  Doe  d.  Garrod  v.,  12  A.  ft  E.  481 ;  4  P.  ft  D.  275    -     -  346 

Onslow  (Lord),  Lasoelles  v.,  2  a  B.  Diy.  433 ;  46  L.  J.  N.  S. 
Q.  B.  333 ;  36  L.  T.  N.  S.  459;  25  W.  B.  456  -       279,  339 

Qrdeway  v.  Orme,  1  Buls.  183        -  -  -  -     -  260 

Orme,  Qrdeway  v.,  1  Buls.  183  -  -  -  -  260 

Osborne,  Matthew  v.,  13  0.  B.  919 ;  22  L.  J.  N.  S.  C.  P.  241 ; 
17  Jut.  696 64 

Osborne  v.  Steward,  3  Mod.  230  -  -  -  -  199 

Otway  V.  Hudson,  2  Vem.  583       -  -  -  -  27,  161 

Onndle  Manor  (Lord  of),  Bex  v.,  1  A.  ft  E.  283;  3  N.  ft  M. 
484;  3  L.  J.  N.  S.  K  B.  117  ...    24,  60,  89 

Owen  V.  Be  Beauyoir,  16  M.  ft  W.  547 ;   5  Exch.  166  (Ex. 
Cb.) 214,  216,  217 

Owen,  Thorp  v.,  2  Sm.  ft  G.  90 ;  18  Jur.  441 ;  2  W.  B.  208    -  137 

Owen  V. Wynn, 9 Oh. Diy.  29 ;  38 L. T. N. S. 623 ;  26W.B.644  315 

Oxley  V.  Watts,  1  T.  E.  12       -  •  -  -  -  241 


P, 

Padkhnrst^  Smith  v.,  3  Atk.  135  -  -  -  -  230 

Packington,  Boraeford  v.,  1  Leon.  1  -  -  .  162,  224 

P^wick  tf.  Tyndale,  1  E.  ft  E.  184 ;  28  L.  J.  N.  S.  Q.  B.  90 ; 
33  L.  T.  N.  S.  125 ;  5  Jnr.  N.  S.  476;  7  W.  B.  53        -  201,  526 

Page  V.  Dnberley,  2  T.  B.  391        -  -  250,  275,  277,  279,  280 

Page's  Caae,  Gro.  Jac.  671        -  -  -  -  -    44 

Pain  V.  Herbert,  cited  2  Eeb.  158 130 

Palmer,  Griffin  v.,  1  Brownl.  43  -  -  -  -  325 

Palmer,  Pairott  v.,  3  Myl.  ft  K.  639  -  -  -     -  227 

Paramore  tf.  Greenslade,  1  Sm.  ft  G.  541;  23  L.  J.  N.  S.  Ch.  34 ; 
17  Jnr-  1064 .    76 

Pkrk,  Cannon  v.,  2  Eq.  Gas.  Abr.  226        -  -           .     .    66 

Parke,  Doe  d,  Danson  v.,  4  A.  ft  E.  816  -           -           -    51 

Parker  v.  Bleeke,  Cro.  Oar.  568      -           -  -           -     -  165 

Parker  v.  Gage,  1  Show.  81      -           -  -           -       199,  203 

Parker  v.  Eett,  12  Mod.  467           -           -  -           -     -  310 

Parker,  Nicholls  v.,  14  East,  331,  n.    -  *           -           -  331 

Ptoker,  Boe  d.  Beebee  v.,  5  T.  B.  26          -  -     338,  339,  343 
P&rkyns  {or  Perkins)  v.  Titos,  Garth.  12 ;  3  Mod.  132       - 173, 175 

PhoTott  V.  Pahner,  3Myl.  ft  £.  639      -  -           -           -  227 

P&rry  v.  Thomas,  5  Ex.  37             -           -  -           -     -  260 

Parsons,  Att-Gen.  v.,  2  Or.  ft  J.  279 ;  2  Tyr.  223       -  11,  239 

Parsons,  Zonoh  d>  Abbott  v.,  3  Burr.  1794  -            .     .    55 

B.  d 


1  TABLB  OF  CA8S8. 

PAfiB 

Passingliam  v.  Pitty,  17  C.  B.  299^  26  L.  J.  N.  Ek  0.  P.  4;  2 
JtiT.  N.  S.  837    -  -  -  -  -  -     6, 824 

Pasfcon  V.  TJtbert,  litt.  Bep.  264  ...       223,228 

Paterson,  Qreen  v.,  32  Oh.  Piv.  9/^ ;  66  L.  J.  N.  S.  Gh.  181 ;  64 
L,  T.  N.  S.  738 ;  34  W.  E.  724  -  -  -  r  30,  346 

Paterson  v.  Mills,  19  L.  J.  N.  S.  Ch.  310         -  -  -  143 

Patorson  v.  Paterson,  L.  B.  2  Eq.  31 ;  36  Beay.  606 ;  12  Jur. 
N;  S.  408 ;  14  W.  E.  601 ;  14  L.  T.  N.  S.  320    -  -     -    99 

Pateson  v.  Danges,  1  £eb.  287  ....  153 

Patrick  y.  Stubbs,  9  M.  &  W.  830 ;  11  L.  J.  N.  8.  Ex.  281  -  274,  276 

Paulter  v.  Gornhill,  Cro.  Eliz.  361  -  -  -     -  167 

PawBon,  Eerr  v.,  26  Beay.  394 ;  27  L.  J.  N.  S.  Ck  694 ;  4  Jut. 
N.  S.  425 416,416,628 

Payne  v.  Barker,  0.  Bridg.  18  -  -       66,  130,  133,  139 

Payne,  Shepherd  v.,  12  0.  B.  N.  S.  414      -  -  -     -  322 

Peach,  Baldwin  v.,  1  Y.  &  G.  Ex.  463  -  -  -  -  218 

Peachy,  Somerset  (Puke  of),  1  Stra.  447 ;  2  Eq.  Gas.  Abr.  222 ; 
6  Vin.  Abr.  117 ;  Prec.  Oh.  668  -  -'  -      223,  227,  229 

Peacock,  Grymes  v.,  1  Buls.  17  -  -  -       268,  367 

Peacock,  Whitton  v.,  3  MyL  &  K.  326  -  -      123,  219, 224 

Peaice  v.  Newlyn,  3  Madd.  186  ..        -  •  -  -    76 

Pearoy,  Wells  v.,  1  Bing.  N.  G.  666  -  -  -     -  262 

Peardon  v.  Underbill,  16  Q.  B.  120 ;  20  L.  J.  N.  S.  Q.  B.  133 ; 
15  Jut.  466 266,272 

Peek  v.  Spencer,  L.  E.  6  Gh.  648 ;  39  L.  J.  N.  S.  Gh.  638 ;  18 
W.  E.  668  - 267 

Peer  v.  Humphrey,  2  A.  &  E.  496        -  -           -           -  203 

Pemberton,  Wirty  v.,  2  Eq.  Gas.  Abr.  279-  -           -  202,  209 

Pemble  v.  Sterne,  T.  Eay.  166  -           -  -           -           -  349 

Pembroke,  Taylor  v.,  cited  2  B.  &  Ad.  364  -           - 179, 180 

Pendleton,  Ghapman  v.,  2  Brownl.  293  -           -       199,  204 

Penhallow,  Smartle  v.,  6  Mod.  63 ;  3  Salk.  181 ;  2  Ld.  Eaym. 
994 -  -40,42 

Pennant,  Firebrass  d.  Symes  v.,  2  WilB.  264   -  -  -    49 

Pennifather,  Gkrke  v.,  4  Eep.  23  b  -        47,  48,  74,  148,  149 

Penny,  Valentine  v.,  Noy,  146  ...       260,  266 

Penryn  (Mayor,  &o.  of)  v.  Best,  3  Ex.  Diy.  292     -  -     -  246 

Peppin,  Shakespear  v.,  6  T.  E.  741  -  126,  260,  276,  279 

Perkins  v.  Titus.    See  Parkyns  v,  Titus. 

Peter  v.  Knoll,  Gro.  Eliz.  32 198 

Petty  V,  Eyans,  2  Brownl.  40         -  -  -  -      -    36 

Petty  V.  Wase,  Winch,  3 94 

Philips  V.  Brydges,  3  Ves.  jun.  120  -  -  -      -    27 

PhiUips  V.  BaU,  6  G.  B.  N.  S.  811  ;  29  L.  J.  N.  8.  G.  P.  7;  6 
Jut.  N.  S.  48  -  -  -  -13,  50,  93,  324,  363 


TABLE  OP  CASES.  U 

PAOa 
Fhmips  V.  Hudson,  L.  R  2  Gh.  243  -  -  -332,  334 

PhiUips  V.  Smiih,  14  M.  A  W.  589 ;  15  L.  J.  N.  S.  Ex.  201  -    225, 

227 
Fhmippe,  Freeman  tf.,  4  M.  &  S.  486  -         173,  174,  330,  339 

Phypers  v.Ebum,  3  Soott,  634 ;  3  Bing.  N.  0.  250 ;  2  Hodges, 
230;  6L.  J.  N.  S.  0.  P.  20        -  -  -  -      -  185 

Pickard,  Twynam  v.,  2  B.  ft  Aid.  105  -  -  -  -  123 

PickersgOl  v.  Grey,  30  Beay.  352 ;  31  L.  J.  N.  S.  Gh.  394 ;  8  Jnr. 
N.  8.  632:  10  W.  E.  207 ;  5  L.  T.  N.  8.  706      -  -     -    21 

Pile,  Howard  v.,  L.  B.  5  Oh.  214;  41  L.  J.  N.  8.  Oh.  778;  26 
L.  T.  N.  8.  900;  20  W.  B.  736      -  -  -  -  432 

PiDdngton,  8taii}iop  t^.,  1  Sid.  314 27 

Pilkington,  York  (Mayor  of)  v.,  1  Atk.  282     -  -  -  266 

Pindar  v.  Wadswortih,  2  East,  154 266 

Pinsent's  Case,  cited  1  Preem.  494       -  -  -  -  177 

Pitts  V.  Eongsbridge  Highway  Board,  19  W.  B.  884 ;  25  L.  T. 
N.  8. 195 260 

Pitty,  PaBHinghaTn  v.,  17  0.  B.  299;  25  L.  J.  N.  8.  C.  P.  4;  2 
Jnr.  N.  8.837 6,324 

Plaxton  V.  Dare,  10  B.  &  0.  17      -  -  -  -     -  335 

Plaxton,  Lake  v.,  10  Ex.  196 ;  24  L.  J.  N.  8.  Ex.  52  -  -  279 

Player  v.  Boberts,  W.  Jon.  243      -  -  -  •     •  232 

Playters  v.  Abbott,  2  MyL  &  K  97 ;  3  L.  J.  N.  8.  Oh.  57       -  189 

Pleydell  v.  Gosmoor,  Hntt.  66        -  -  -  -     -  241 

Podger's  Oaae,  9  Bep.  104a      ...        54,  62,  124,  184 

Polley  y.  PoUey,  31  Beav.  363 137 

Popbam  V,  Lancaster,  2  Bep-.  in  Ob.- 134  ...  176 

Porter  v»  Porter,  Gro.  Jac.  100       -  -  -  -     -    84 

Porter  v.  Sacbeyerill,  Cro.  Oar.  482      -  -  -  -  268 

Portland  (Duke  of)  v.  Hill,  L.  B.  2  Eq.  765;  35  L.  J.  N.  8. 
Ob.  439 ;  12  Jnr.  N.  8.  286 ;  15  W.  B.  38  -        2,  237,  250, 

324,  340 

Partman  v.  Seymour,  9  Mod.  280         -  -  -  -    83 

Potts,  Doe  d.  Gibbon  v.,  2  Dongl.  710        -  -  *     -  351 

PowdreU  v,  Jones,  2  Sm.  &  G.  407;  24  L.  J.  N.  8.  Gb.  123     -  165 

Powell,  Pricbard  v.,  10  Q.  B.  589 ;  15  L.  J.  N.  8.  a  B.  166 ; 
10  Jnr.  154 252,  331 

Powell,  Beg.  v.,  1  Q.  B.  352;  4  P.  &  D.  719;  5  Jnr.  605         -    72 

Powis  (Earl  of),  Lloyd  tr.,  4  E.  ft  B.  485   -  -  -     -  274 

Pratt  V.  Groome,  15  East,  235  -  -  -  -  -    15 

Prawie,  Boyd  v.,  14  W.  B.  1009 ;  14  L.  T.  N.  8.  753         -     -    30 

Preston,  Holder,  d.  Snlyard  v.,  2  Wils.  400     -  -    88, 89, 191 

Preston  V.  Jeryis,  1  Vem.  325        -  -  -  -     -  129 

Pretty  v.  Solly,  26  Beay.  606 416 

Price  V.  Macanlay,  2  De  G.  M.  &  G.  339   ...  78,219 

d2 


lii  TABLE  OF  GASES. 

PAQB 

Price  V.  WoodhouBe,  3  Ezch.  616 ;  18  L.  J.  N.  S.  Ex.  271       -  339 

Frichaid  v.  PoweU,  10  Q.  B.  589;  16  L.  J.  N.  S.  Q.  B.  166; 
10  Jup.  164 262,  331 

Priokett,  Steel  v.,  2  Stark.  463       ...  280,328 

Protheroe,  Dameiell  v.,  10  Q.  B.  20 ;  16  L.  J.  N.  S.  Q.  B.  170; 
llJur.  331 6,200 

Proude,  Qreen  v.,  1  Mod.  117        -           -  -           -      -  326 

Pryoe  v.  Bury,  2  Dr.  11            -           -  -           -           -    82 

Pullen  V,  Middleton  (Lord),  9  Mod.  483     -  -           -     -    22 

Pulvertoft  V.  Pulvertoft,  18  Ves.  inn.  84  -           -           -    66 


Queen's  College,  Oamliridge,  £x  parte,  27  L.  J.  N.  S.  Ch.  178 ; 
4  Jut.  N.  S.  19 404 

Queen's  OoUege,  Oxford  t;.  Hallett,  14  East,  489         -  -  276 

Queen's  College,  Oxford,  Warrick  v.,  L.  B.  6  Ch.  716 ;  L.  B. 
10 Eq.  106 ;  40  L.  J.  N.  S.  Ch.  780;  26  L.  T.  N.  S.  264 ;  19 
W.  B.  1098  -  -  -  6,  249,  260,  261,  267,  267,  316 

Queinton,  Kite  v.,  4  Bep.  26a  -  -  -  -    68, 94, 347 

Quinlej,  Sympson  v.,  1  Vent.  88    -  -  -  -  128, 134 


B. 

Badford,  Dugworth  v„  W.  Jon.  462  ->           -           -           -  361 

Badford  v.  Wilson,  3  Atk.  816        -  -           -           -     -    27 

Baindle,  Brown  v.,  3  Ves.  jun.  266  -           -           -  63,  67,  166 

Bainer,  Yaxley  v.,  1  Ld.  Baym.  44  -           -           -     -  196 

Bandall,  Chantrell  v.,  1  Lev.  20  -           -           -       169,  221 

Bandall  v.  Jenkins,  1  Mod.  96        -  -            -            -      -  138 

Bandall  v.  Soory,  Cro.  Car.  813  -           -           -           .  207 

Bandfield  v.  Bandfield,  3  De  G.  E.  &  J.  766;  1  Dr.  &  Sm.  310; 
31  L.  J.  N.  S.  Ch.  113;  8  Jur.  N.  S.  Oh.  161 ;  6  L.  T.  N.  S. 
698  ------        73,  186,  186 

Banger,  Ashmead  {or  Ashmond)  v.,  1  Ld.  Baym.  661 ;  12  Mod. 

378;  2  Salk.  638;  1  Com.  71  -  -  -  -  231 

Batdiffe  v.  Chaplin,  4  Leon.  242    -  -  -  .-194 

Baw,  Hayward  v.,  6  H.  &  N.  308;  30  L.  J.  N.  S.  Ex.  173;  4 
L.  T.  N.  8.  619         -  -  -  -      62,  174,  176,  191 

Baw,  Lowther  v.,  2  Bro.  P.  0.  461  -  -  -171,343 

Bawes  v.  Bawes,  7  Sim.  624 ;  6  L.  J.  N.  S.  Ch.  114     -  -  314 

Bawlins,  Brown  {or  Bourn)  v.,  7  East,  409 ;  3  Smith,  406  -      -      6 

Bawlinson,  Green  v.,  Poph.  127 ;  3  Buls.  237  -  -  -  191 


TABLV  07  0A8B8.  lui 

PAGE 

Bawson,  Moore  II.  3  B.  ft  C.  332;  5  D.  ft  By.  234-  -     -  270 

BawBon,  Bnmsey  v.,  2  Keb.  410  -  -  -  •  262 

Bebow  V.  Biokerion,  Tiin.  7  Qeo.  L,  Exch.,  cited  Bob.  Gay. 

100 138 

Bee0,EYanBi;.,  lOA^ftE.  161;  2P.  ftD.  626      -  -     -  332 

Beeye,  Bennett  tf.,  WiUes,  227  -  -  -  -  258 

Beeye  v.  Malster,  Ore.  Oar.  410     -  -  -       129,  140,  146 

Beeyee,  Hardy  v.,  4  Ves.  jun.  466        -  -  -  -  227 

Beg.  V.  Agardsley  Manor  (Lord  of),  5  Dowl.  19     -  -      -    72 

Beg.  V.  Bedfordshire  (Inhabitants  of),  4  E.  ft  B.  535    -       329,  330 

Beg.  V.  Bishop's  Stoke  Manor  (Lord  of),  8  Dowl.  608 ;  4  Jnr. 
630  - 52,312 

Beg.  V.  Bucdengh  (Duchess),  6  Mod.  150 ;  1  Salk.  358  ;  Holt, 
128;  2  Ld.  Baym.  792 10 

B^.  V.  Ghorley,  12  a  B.  515 ;  12  Jur.  822  -  -  270,  271 

B€^.  V.  Ck>rbett,  1  E.  ft  B.  836;   22  L.  J.  N.  8.  Q.  B.  335 ;   17 
Jnr.  1024 61,  73,  90,  183 

B^.  V.  Dendy,  1  E.  ft  B.  829;   B.  0.  C.  Ill;  22  L.  J.  N.  S. 
a  B.  39,  247 ;  17  Jur.  970  -  «  -  -  72, 150 

Beg.  V.  Dudley  (Earl  of),  a  B.  Diy.  June,  1884  -         88,  188 

Beg.  V.  I>ullingham  Manor  (Lady  of),  8  A.  &E.  858;  1  P.  &D. 
172;  1  W.  W.  ft  H.  865 185 

Beg.  V.  Eton  College,  8  a  B.  526        -  -  -  52,  187, 322 

Beg.  V.  Eyans,  1  Q.  B.  355,  n         -  -  -  -     -    72 

B^.  V.  Eyerdon  Manor  (Lords  of),  16  L.  J.  Q.  B.  N.  S.  18     -  187 

Beg.  V.  Garland,  L.  B.  5  a  B.  269;   39  L.  J.  N.  S.  Q.  B.  86; 
22  L.  T.  N.  8.  160 ;  18  W.  B.  429    -  -  -    72,  88, 188 

Beg.  V.  Hale,  9  A.  ft  E.  359 ;   1  P.  ft  D.  293;  8  L.  J.  N.  8. 
Q.  B.  83 230 

Beg.  V.  Ingleton  Manor  (Lords  of),  8  Dowl.  693 ;  4  Jur.  700  -    29 

B^.  V.  Land  Oonmussioners  for  England,  23  Q.  B.  Div.  59 ;  58 
f .  J.  N.  8.  a  B.  313;  37  W.  B.  538      -  -  -  395,  559 

Beg.  V.  Powell,  1  a  B.  352;  4  P.  ft  D,  719;  5  Jur.  605  -    72 

Beg.  V.  Begistrar  of  Deeds  for  Go.  of  Middlesex  (Lord  Truro), 
21  a  B.  Diy.  535  (0.  A.) ;  W.  N.  (1888)  91,  158  -      -  359 

Beg.  V.  Truro  (Lord).    See  Beg.  v,  Begisbrar  of  Deeds  for  Go. 
of  Ifiddlesex. 

Beg.  V.  Wanstead  Manor  (Lord  ol),  23  L.  J.  Q.  B.  N.  8.  67 ; 
18  Jur.  310 92,  188 

B^.  V.  Weedon  Beck  Manor  (Lords  of),  13  Q.  B.  808 ;  18  L.  J. 
N.  S.  Q.  B.  289;  13  Jur.  1121 96 

Beg.  V.  WeUeeley  (Lord),  2  E.  ft  B.  924  -  -       152,  188 

Beg.  V.  Wilson,  3  B.  ft  8.  201 ;  32  L.  J.  !N^.  8.  a  B.  9 ;  9  Jur. 
N.  8.  439;  7  L.  T.  N.  8.  326;  11  W.  B.  70         -  -89, 191 

Beg.  V.  'V^^tohf ord  Manor  (Steward  of),  7  Dowl.  709 ;  3  Jur. 
533 -72 

Beg.  tf.  Woodham  Walter  Manor,  10  B.  ft  8.  439  -  -     -  186 


liV  TABLE  OF  GASES. 

PAGE 

Begistrar  of  Deeds  for  Co.  of  Middlesex  (Lord  Truro),  Bag.  v., 
21  Q.  B.  Div.  636 ;  W.  N.  (1888)  91,  168      -  -  -  359 

Bennett,  Bex  v.,  2  T.  B.  197  -           -           -           -     -  150 

BeveU  v.  JoddieU,  2  T.  B.  416  -           -           -           -  289 

Bex  V.  Allgood,  7  T.  B.  746 316 

Bex  V.  Banks,  3  Burr.  1462      -  -            -            -            -  302 

Bex  V.  Bonsall  Manor  (Lord  of),  3  B.  ft  0.  173;  4  D.  &  By. 
826 -183,322 

Bex  V.  Boughey,  1  B.  &  0.  666  -  -  -  -  178 

Bex  v.  Brewers' C!o.  (Masterof),  3B.  &0. 172;  4 D.& By. 492-  160 

Bex  V.  Capper,  6  Price,  217     -  -  -  -  -    12 

Bex  V.  Coggan,  6  East,  431 ;  2  Smith,  431  -  -  72,  182 

Bex  V.  OotteriU,  1  B.  &  Aid,  67  -  -  -  -  244 

Bex  V.  Dickenson,  1  Wms.  Saund.  136      -  -  -     -  302 

Bex  V,  Hayeruig-atte-Bower  Manor  (Steward  of),  6  B.  &  Aid. 
691 336 

Bex  V.  Hemingway,  1  Bamaid*  436  -  -  -      -  306 

Bex  V.  Hendon  Manor  (Lord  of),  2  T.  B.  484  -  -   64,  72,  190 

Bex  v.  Hexham  Manor  (Lord  of),  6  A.  &£.  669;  1  N.SP.63; 
2  H.  &  W.  397 ;  6  L.  J.  N.  S.  K.  B.  33  -  -  -     69,  89 

Bex  V.  Hoyte,  6  T.  B.  430 329 

Bex  V.  Hundred  of  Milverton  (Lord  of),  3  A.  &  £.  284      -     -  302 

Bex  V.  Joliffe,  2  B.  ft  C.  64;  3  D.  ft  By.  240  -  -        302,  340 

Bex  V.  Lucas,  10  East,  236  ....      -  314 

Bex  V.  Meer  and  Forton  Manor  (Lord  of),  2  D.  ft  By.  824       -  178 

Bex  V.  Merchant  Tailors'  Co.  (Master,  &c.  of),  2  B.  ft  Ad.  116  -  314 

Bex  V.  Mildmay  (Lady),  6  B.  ft  Ad.  264;  2  N.  ft  M.  778  -     -  224 

Bex  V.  Milton  (Inhabitants  of),  1  C.  ft  E.  68  -  -  -  336 

Bex  V.  Oundle  Manor  (Lord  of),  1  A.  ft  E.  283 ;  3  N.  ft  M. 
484 ;  3  L.  J.  N.  S.  £.  B.  117     -  -  -  24,  60,  89 

Bex  V.  Bennett,  2  T.  B.  197     -  -  -  -  -  160 

Bex  V.  Bigge,  2  B.  ft  Aid.  660 312 

Bex  V.  Bowland,  3  B.  ft  Aid.  130         -  -  -  -  302 

Bex  V.  Smith,  4  Esp.  Ill 244 

Bex  V.  Southwood,  6  Man.  ft  B.  414    -  -  -  -    83 

Bex  V,  Stanton,  Cro.  Jao.  269        -  -  -  -   14,  300 

Bex  V.  Thruscross  (Lihabts.  of),  1  A.  ft  E.  126;  3  N.  ft  M.  284  347 

Bex  V.  Tower,  4  M.  ft  S.  162 314 

Bex  V.  Warblington  (Lihabts.  of),  1  T.  B.  242       -  -     -  282 

Bex  V.  Wilby  (Lihabts.  of),  2  M.  ft  S.  604       -  -  -  169 

Bex  V.  Willes,  3  B.  ft  Aid.  610 224 

Bex  V.Wilson,  10  B.  ft  0. 80;  6  Man.  ft  B.  140;  8  L.  J.  K  B. 
101 83,  88,  89,  91,  160 

Beynolds  v,  Woodham  Walter  Manor  (Lord  of),  L.  B.  7  C.  P. 
639 ;  41  L.  J.  N.  S.  C.  P.  281 ;  27  L.  T.  N.  S.  374  -      394.  396, 

626,  626,  632 


TABLE  Oy  CABV8.  Iv 

PAOB 


Bliodes,  Barlow  v.,  1  Or.  &  Meee.  439        -  -  -      .  269 

Itidiards  v,  Bassett,  10  B.  <&  0.  657      -  -  -       307,  333 

Bicharda,  Jones  v.,  6  A.  &  E.  630;  2  N.  &P.  747;  W.  W.  &  D.' 

•276    -  r  -  -  -  .  .  .262 

Bichardfl  v.  Noble,  3  Mer.  673         -  -  -  -      .  227 

Bichapdflon,  Glaas  v.,  2  De  G.  1£  &  G.  658;  22  L.  J.  N.  8.  Ch. 

105;  17  Jup.  926 88,  89,  191 

Bichardson  v.  Kenait,  5  M.  &  Gr.  485;  6  Soott,  N.  B.  419 :  12 
L.  J.  N.  S.  C.  P.  154      -  -  .  -  .     .  177 

Bichardson  v.  Kensy,  Cro.  Eliz.  728     -  -  -  -    35 

Biddell  v,  Jenner,  10  Bing.  29       -  -  -  .      _  160 

Bidden  v.  Biddell,  7  Sim,  529;  5  L.  J.  N.  S.  Ch.  132  -  -    74 

Bider  V.  Wood,  1  K.  &  J.  644 ;  24  L.  J.  N.  8.  Ch.  737      -130,139 
Bigg  V.  Lonsdale,  11  Exoh.  654 ;  1  H.  &  N.  923  (Ex.  Ch.) ;  26 

L.  J.  N.  S.  Ex.  196;  3  Jnr.  N.  8.  390  -  -  -     16 

Bigge,  Bex  r.,  2  B.  &  Aid.  650 312 

Bight  d.  W^lls  (Dean  and  Chapter  of)  v.  Bawden,  3  East, 

260 -  -  41,69,602 

Bippon,  Durham  (Bishop  of)  v.,  4  L.  J.  Ch.  32      -  -      -  228 

Bivers  (Lord)  w.  Adams,  3  Ex.  Div.  361 ;  48  L.  J.  N.  8.  Ex. 

47;  39  L.  T.  N.  8.  39;  27  W.  B.  381  -  -  .  261 

Bivet  V.  Dovne,  2  Brownl.  279      -  -  .  .     -  211 

Bivef  8  Case,  4  Bep.  22  b  -  -  -  -       157,167 

Boberts  v.  DixweU,  1  Atk.  607       -  -  -  -     J  140 

Boberts,  Deed.  King  Wm.  IV.  ».,  13  M.  A  W.  520     -  -  334 

Boberts,  Players  v.,  W.  Jon.  243   -  -  .  -     -  232 

Bolrin,  Jones  v.,  10  Q.  B.  620;  17  L.  J.  N.  8.  a  B.  122;  12 

Jnr.  308-  -  -  .  -  .  .252 

Bobbins,  Hoakins  v.,  PoUexf .  13 ;  2  Wms.  8annd.  320       -  255,  275 
Bobertson  v.  Hartopp,  43  Ch.  Div.  484 ;  59  L.  J.  N.  8.  Ch.' 

653 ;  62  L.  T.  N.  8.  585        -  -  -  264,  266,  279 

Bobmson  v,  Dnleep  Singh,  11  Ch.  Div.  798 ;  48  L.  J.  N.  8.  Ch. 

758 ;  39  L.  T.  N.  8.  313 ;  27  W.  B.  21   -  246,  247,  274,  279 

Bobinson,  8elby  v.,  2  T.  B.  768  -  .  -  -  260 

Bobinson,  Wray  v.,  L.  B.  1  C.  P.  490;  14  L.  T.  N.  8.  434       -  240 
Boby  V.  Twelves,  8ty.  423  -  -  -  .     .    59 

Boebock,  Calcraft  v.,  1  Yes.  jon.  221  -  -  .  .    78 

Boe  d.  Ashton  v,  Hutton,  2  Wils.  162        -  -  .     .  156 

Boe  d,  Beebee  V.  Parker^  5  T.  B.  26     -  -  338,  339,  343 

Boe  d.  Bennett  v.  Jeflery,  2  M.  &  8.  92     -  27,  237,  338,  345 

Boe  d.  Cosh  v.  Loveless,  2  B.  &  Aid.  453         -  -  50,  63 

Boe  d.  Crow  If.  Baldwere,  5  T.  B.  104        -  -  -     -  '  26 

Boe  d.  Hale  v.  Wegg,  6  T.  B.  708        -  .  .  .351 

Boe  d,  Jeffreys  v.  Hidks,  2  Wils.  13  -  .     '       -  80,  224 

Boe  d.  Johnson  v.  Ireland,  11  East,  280  «    153,  219,  338,  355 


Ivi  TABLE  OF  0ASB9. 

PA0X 

Boe  d.  Noden  v.  Qrifflts,  4  Burr.  1952       -  -  -   62,  183 

Boe  d.  Parry  v.  Hodgson,  2  Wils.  129  -  -  -  -  169 

Boe,  Doe  d.  Bast  v.,  2Biiir.  1046-  -  -  -     -  325 

Bogers,  Be,  L.  B.  1  C.  P.  47 56 

Bogers  v.  Allan,  1  Gamp.  309         -  -  -  .      .  335 

Bogers  v.  Birkmire,  2  Stra.  1040 ;  Lee  temp.  Hardw.  245  -  200, 203 

Bogers  v.  Wood,  2  B.  &  Ad.  245 330 

Booper  v.  Harriflon,  2  K.  &  J.  86         -  -  -  -    12 

Bose  V,  Ounynghame,  11  Yes.  jnn.  550      -  -  -     -    67 

Botherham  v.  Qreen,  Gro.  Eliz.  594     -  -  -  -  270 

Bowbotham  v.  Wilson,  8  H.  L.  Gas.  348;  30  L.  J.  N.  S.  Q.  B. 
49;  6  Jur.  N.  S.  965  -  -  -  -  -      -  234 

Bowden,  Kellow  v.,  1  Show.  244          -           -  -           -  141 

Bowden  v.  Malster,  Gio.  Gar.  42    -           -  -           -     -  122 

Bowe  V.  Brenton,  8  B.  ft  G.  737 ;  3  Man.  ft  By.  361      45,  333,  343 

Bowe,  Galmady  v.,  6  B.  ft  G.  861  -           -  -           -     *  328 

Bowknd,  Bex  v.,  3  B.  ft  Aid.  130        -           -  -           -  302 

Bowles,  Ellis  v.,  Willes,  638 276 

Bowles  V.  Mason,  1  Brownl.  132 ;  2  BrownL  85  -       235,  342 

Bowleston  v,  Alman,  Gro.  Eliz.  748           -  -           -     -  197 

Bowley,  Appleton  v.,  L.  B.  8  Eq.  139  -           -  -           -  166 

Bmnney  v.  Eve,  1  Leon.  100          -           -  -            -    -  154 

Biimsey  v.  Bawson,  2  Keb.  410            -           •  -           -  262 

Bundle  v.  Bundle,  2  Yem.  264       -           -  -           -     .    41 

Byder,  Li  re,  20  Gh.  Div.  514 ;  30  W.  B.  417  -  -       414,  532 


S. 

Sacheyerill  v.  Porter,  Gio.  Gar.  482  -  -  -     -  268 

Sadgroye,  Kirby  v.,  1  B.  ft  P.  13 ;  6  T.  B.  483;  3  Anst.  892    -  263, 

264,  273,  275 
St.  Paul  V,  Dudley  (Yisct.),  15  Yes.  jun.  167         -  -  351, 352 

Salisbury  d,  Gooke  v.  Kurd,  Gowp.  481  -  -       160,  165 

Salisbury  (Marq.  of)  v.  Gladstone,  9  H.  L.  Gas.  692 ;  34  L.  J. 
N.  S.  G.  P.  222 ;  8  Jur.  N.  S.  625 ;  4  L.  T.  N.  S.  849 ;  9  W.  B. 
930 ;  affirming  6  H.  ft  N.  123  -   19,  208,  233,  234,  236,  252,  342 

Salisbury  (Marq.  of)  and  London  ft  N.  W*  Bail.  Go.,  Li  re, 
(1892)  1  Oh.  75,  n. ;  66  L.  T.  N.  S.  63,  n.     -  -  -  418 

Salisbury's  (Lord)  Gase,  1  Ley.  63  -  -  -     -  153 

SaUitt,  Hicks  v.,  3  De  G.  M.  ft  G.  782 ;  22  L.  J.  N.  S.  Gh.  571 ; 
18  Jur.  915   -  -  -  -  -  -  13, 91,  275 

Sanders,  Doe  d.  Duke  of  Norfolk,  3  Dougl.  303    -  -     -  161 

Sands,  Att-Gen.  v.,  Hardr.  488 ;  3  Gh.  B.  33  -  -  221 

Sands  v.  Drury,  Gro.  Eliz.  814       •  -  -  -      -    16 


••* 


TABLE  OF  CASES.  IvU 

PAGB 

Sands  v,  Hempston,  2  Leon.  109  -  -  -  -    49 

Sandys  (Lord),  Haidwicke  (Earl)  v.,  12  M.  ft  W.  761        -     -  196 

Sandys  Hougham  v,,  6  L.  J.  Gh.  67     -  -  -  -  140 

Sanndera  v.  Welch,  cited  1  Salk.  57  -  -  -     -  325 

Savage's  Case,  2  Leon.  109      -  -  -  -  -  167 

Sawyer,  Wame  v.,  1  EoU.  E.  48    -  -  -  -      .  173 

Scales,  Curtis  v.,  14  M.  ft  W.  444 ;  14  L.  J.  N.  S.  Ex.  318  - 179, 196 

Scamon  v.  Maw,  3  Bing.  378;  11  Moore,  243 ;  4  L.  J.  0.  P.  97    56 

School  Board  for  London,  Ex  parte.  In  re  Hart,  41  Ch.  Diy. 
647;  68  L.  J.  N.  S.  Ch.  752 ;  60  L.  T.  N.  8.  817;  38W.  E. 
61 27,368 

Schwinge  v.  Dowell,  2  F.  ft  F.  846  -  -  -     -  282 

Soory,  Bandall  v.,  Cro.  Car.  313  -  -  -  -  207 

Scott,  Benson  v.,  4  Mod.  251 ;  12  Mod.  49 ;  Garth.  275 ;  Comb. 

233;  3  Ley.  386 ;  1  Salk.  186 ;  Skin.  406  -       63,  160,  165 

Scott,  Cape  v.,  L.  E.  9  a  B.  269 ;  43  L.  J.  N.  S.  a  B.  65 ;  30 
L.  T.  N.  S.  87 ;  22  W.  E.  326  -  -  -       252,  266 

Scott  V.  Fawoet,  Dick.  299 118 

Scott  v.  Kettlewell,  19  Yes.  jnn.  336    -  -  -  -  163 

Scratton  v.  Brown,  4  B.  ft  C.  485;  6  D.  ft  Ey.  536  -      -  243 

Scodamore,  Clement  v.,  1  P.  Wms.  63;  6  Mod.  120     -      128,  130, 

134,  141,  144,  146,  167 

Scodamore,  Morgan  v.,  2  Eep.  in  Ch.  134  -  -  -     -  176 

ScuUy,  Archbold  v.,  9  H.  L.  0.  360;  7  Jur.  N.  S.  1169  -  214 

Scutt,  Attree  v.,  6  East,  476 ;  2  Smith,  449  187,  204, 205,  206 

Seaman  v.  Woods,  24  Beav.  372;  27  L.  J.  N.  S.  Ch.  538 ;  4 
Jnr.  NT.  8.  725 91 

Seorle  v.  Cooke,  43  Ch.  Div.  519 ;  59  L.  J.  N.  S.  Ch.  259;  62 
L.T.  N.  S.  211  .  -  .  •    228,400,417,660 

Sebright,  Carter  v.  26  Beay.  374 ;  28  L.  J.  N.  S.  Ch.  411 ;  6 
Jnr.  N.  S.  286 ;  7  W.  E.  225 189 

Selby,  Dayiee  v.,  Cro.  Eliz.  826  ....  161 

Selby  V.  Eobinson,  2  T.  E.  768 260 

Seymour,  Portman  v.,  9  Mod.  280        -  -  -  -    83 

Shafto,  Newton  v.,  1  Sid.  267;  1  Ley.  172  -      128,  134,  141 

Shakespear  v.  Peppin,  6  T.  E.  741  -  -  126,  250,  275,  279 

Sharbrook,  Hull  v.,  Cro.  Jac.  36  -  -  -  -    68 

Sharpe  v.  Beohenowe,  Lntw.  398  -  -  -  -     -  246 

Shaipe,  Chapman  v.,  2  Show.  184        -  -  -  -  201 

Shaw,  Dickens  v.,  Hall,  Sea  Shore  (ed.  1875),  App.  -     -  242 

Shaw  V.  Taybr,  Hob.  176         -  -  -  -  -  203 

Shaw  V.  Thompson,  4  Eep.  30b     -  -  -  -     -  163 

Shelley  v.  Mason,  cited  6  Yin.  Abr.  112,  114    -  -  -  229 

Shelton,  Doe  (f .  Shelton  v.,  3  A.  ft  E.  266  ;  4  N.  ft  M.  857      -    56 
Shepherd  v.  Payne,  12  C.  B.  N.  S.  414       -  •  -     -  322 


tviii  TABLE  OF  GAflER. 

PAGB 

Sheppard  v.  Woodford,  5  M.  ft  W.  608 ;  9  L.  J.  N.  S.  Ex.  90  - 182, 

184 
Shirland  v.  White,  cited  Co.  Litt.  122a  -  -  -  274 

Shirley,  Ex  parte,  5  Bing.  N.  S.  226 ;  7  DowL  268 ;  3  Jur. 
125    -  -  -  -  -  -  -  -    66 

Shorditch,  Standred  v.,  Oro.  Jac.  680         -  -  -      -  266 

Shuttlewoith  v.  Gamett,  Garth.  90       -           -  -  -  189 

Shuttleworth  v.  Le  Fleming,  19  0.  B.  N.  S.  687  -  -      -  269 

Silva,  Tilbury  v.,  46  Oh.  Div.  98 ;  63  L.  T.  N.  S.  141  260,  368 

Sime,  Qraham  v.,  1  East,  632         -            -  -  •  76,  190 

Simonds  v.  Lawnd,  Oro.  Eliz.  239        -           -  -  -    79 

Simpson,  Irwin  (Yisct.)  v.,  7  Bro.  P.  0. 306  -  -     -  334 

Singer,  Oarr  v.,  2  Yes.  603       -           -           -  •  -    27 

Sisson,  Doe  d.  Forster  v.,  12  East,  62         -  -  -     -  339 

Sitwell,  Att.-Gen.  v.,  1  Y.  ft  0.  Ex.  669;  6  L.  J.  N.  S.  Ex. 
Eq.  86  -  -  -  -  -  -  -    12 

Slack,  Oowlam  v.,  16  East,  108  ....  269 

Sleeman,  Doe  d.  Molesworth  v.,  9  Q.  B.  298 ;  16  L.  J.  N.  S. 
Q.  B.  338 ;  10  Jur.  668  -  -  -  -  -      -  329 

Smalley,  Everall  v.,  1  Wils.  26;  2  Stra.  1197  -  -  -    27 

Smart,  Johnson  v.,  1  Bo.  Abr.  608,  pL  14  -  -  -      -    36 

Smart  v.  Smart,  In  re  Smart,  18  Oh.  Diy.  166 ;  30  W.  E.  43  -  126, 134 
Smartle  v,  PenhaUow,  6  Mod.  63 ;  3  Salk.  181 ;  2  Ld.  Baym.  994 

40,  42 
Smith  V.  Adams,  18  Beay.  499;  6  De  Q,  M.  ft  Q.  712;  24  L.  J. 

N.  S.  Oh.  258;  18  Jur.  968  -  -  -  -69,  168,  162 

Smith  V,  Baker,  1  Atk.  385  -  -  .  .     .    43 

Smith  V,  Barrett,  1  Sid.  161      -  -  -  -  .  286 

Smith,  Beaufort  (Duke  of)  v.,  4  Exch.  460 ;  19  L.  J.  N.  S.  Ex.  97-  333 
Smith  V.  Brownlow  (Earl),  L.  B.  9  Eq.  241 ;  21  L.  T.  N.  S. 

739 ;  18  W.  B.  271    -  -  -  -  260,  267,  276 

Smith,  Exeter  (Earl  of)  v.,  Oarter,  177  ...  302 

Smith  V,  Feyerell,  2  Mod.  6  -  -  -  -269,  264 

Smith  V.  Qarland,  2  Mer.  128         -  -  -  .     .    66 

Smith,  Heydon  v.,  13  Bep.  67  -  -  -  -  -  231 

Smith,  Marsh  v.,  1  Leon.  26  -  -  .  .     .    10 

Smith,  Murrell  v.,  4  Bep.  24  b  -  -  -  -  .  202 

Smith,  Oakley  v.,  1  Eden,  261 ;  Amb.  368-  -  -     -  118 

Smith,  Odiham  v.,  Oro.  Eliz.  689  ....  203 

Smith  V.  Packhurst,  3  Atk.  136      -  -  -  .     -  230 

Smith,  Phillips  v.,  14  M.  ft  W.  689;  16  L.  J.  N.  S.  Ex.  201    226, 227 
Smith,  Bex  v.,  4  Esp.  Ill  -  -  -  -  .     .  244 

Smith,  Sowerby  v.,  L.  B.  9  0.  P.  624 ;  43  L.  J.  N.  S.  0.  P. 

290;  31L.  T.  N.  S.  309;  23W.B.79         -  -  -240 

Smith,  Symms  v.,  Oro.  Oar.  299     -  -  -  .     .    53 


XABLB  OF  CA9BJ9.  lix 

PAOX 

Smith  V.  TriggB,  1  Stra.  487      -  -  -  -  -    (H 

Smith,  Tyson  v.,  9  A.  &  B.  406 ;  1  P.  &  D.  307 ;  W.  W.  A  D. 
749  - 237,246 

Smith's  Oaae,  W.  Jon.  272 282 

Smithflon  v.  Gage,  do.  Jac.  526     -  -  -  -     -    66 

Snag  V.  Fox,  Palm.  342  -  -  -  -  -  204 

Snape,  Gibbons  v.,  1  De  G.  J.  &  S.  621;  32  Beay.  130;  33 
L.  J.  N.  S.  Ch.  103 ;  9  Jnr.  N.  S.  1096 ;  9  L.  T.  N.  8.  132 ; 
11  W.  R.  1087 30 

Sneyd  v.  Sneyd,  1  Atk.  442 362 

Snook  V.  Mattock,  6  A.  ft  E.  239  -  -  -  61,  61 

Saow  V.  GutiLer,  1  Keb.  667  •  -  -  -     -  346 

Soone  V.  Iieland,  10  East,  269  -  -  -  - 10,  301,  327 

SoUy,  Prttty  v.,  26  Beay.  606         -  -  -  -     -  416 

Somerset  (Duke  of)  v.  France,  1  Stra.  664-40,  171,  183,  343 

Somerset  (Dnke  of),  Peachy  v.,  1  Stra.  447 ;  2  Eq.  Gas.  Abr. 
222 ;  6  Yin.  Abr.  117 ;  Free.  Oh.  668      -  -      223,  227,  229 

Sonthwood,  Lock  v.,  1  Myl.  &  Gr.  441;  affirmed  H.  L.  nib  nom. 
Bosh  v.  Locke  -  -  .  -  .       135,  159 

Sonthwood,  Bex  v.,  6  Man.  &  B.  414  -  -  .      -    83 

Soworby  v.  Smith,  L.  B.  9  0.  P.  624 ;  43  L.  J.  N.  S.  0.  P.  290; 
31  L.  T.  N.  S.  309;  23  W.  B.  79       -  -  -  -  240 

Sparke,  Weeks  v.,  1  M.  &  S.  679    -  -  .      331,  336,  340 

Spateman,  Mellor  v.,  1  Wms.  Saiind.  339         -    248,  260,  263,  264 

Spencer  (Earl),  Johnstone  v.,  30  Gh.  Diy.  681 ;  63  L.  T.  N.  S. 
502;34W.  B.10 178,340 

Spencer,  Peek  v.,  L.  B.  6  Gh.  648 ;  39  L.  J.  N.  S.  Gh.  638;  18 
W.  B.  668 267 

Spooner  v.  Day,  Gro.  Gar.  432;  W.  Jon.  376  -            -      -  247 

Spray,  Denn  d.  Goodwin  v.,  1  T.  B.  466    -  -      126,  134,  339 

Staoey  v.  Mph,  1  Myl.  &£.  196           -  *            -            -    91 

Staker,  Styant  v.,  2  Yem.  260        -           -  -           -  269, 367 

Stammers  v.  Dixon,  7  East,  200 ;  3  Smith,  261  -         16,  329 

SUndzed  v.  Shozditch,  Gro.  Jac  680          -  -           -     -  266 

Stanhop,  Pmdngton  v.,  1  Sid.  314        -  -           -           -    27 

Stanton,  Bex  v.,  Gro.  Jac.  269       -           -  -            -   14,  300 

Stanway,  Northwick  (Lord)  v.,  6  East,  66 ;  3  B.  &  P.  346       -  14, 

174,  176,  189,  279,  284 

Steel  V.  Pri(^6tt,  2  Stark.  463  -  -  -  -       280,  328 

Steele  v.  Walker,  28  Beay.  466       -  -  -  .     .    94 

Steere,  Arundel  (Gonntess  of)  v.,  Gro.  Jac.  26  -  -  -  267 

Stephens,  Att.-Gen.  v.,  6  De  G.  M.  ft  G.  Ill ;  1  K  &  J.  724  -  228 

Stephens  v.  Baily,  Nels.  Oh.  Bep.  106        -  -  -     -  222 

Stephens  V.  TyreU,  2  Wils.  1 66 

Stephenson  v.  Hill,  3  Bnrr.  1273    -  -  -  -     -      2 


XX  TABLB  OF  GAflBS. 

PAOB 

Sterne,  Pemble  v.,  T.  Bay.  165  -  -  -  -  349 

Sterry,  Dnnwich  (Bailiffs  of)  v.,  1  B.  ft  Ad.  831     -  -      -  243 

Steward,  Osborne  v.,  3  Mod.  230         -  -  -  -  199 

Stokes  V.  Verryer,  1  Mod.  112 139 

Stone,  Jurden  v.,  Hutt.  18       -  -  -  -  -  162 

Stone,  Sutton  v.,  2  Atk.  101  -  -  -  -     62,  81 

Stoneham  v.  London,  Brighton  and  South  Coast  Bail.  Co.,  L.  B. 
7  a  B.  1 ;  41  L.  J.  N.  S.  a  B.  1 ;  25  L.  T.  N.  S.  788;  20 
W.  B.  77 295 

Stott  V.  Stott.  16  East,  343 272 

Strafford  (Earl  of),  Leeds  (Duke  of)  v.,  4  Yes.  jun.  180  -  228 

Strafford  (Earl  of).  North  v.,  3  P.  Wms.  148  -  - 190,  212 

Strata  Meroella,  Case  of  the  Abbot  of,  9  Bep.  24  a        12,  240,  241, 

242,  243,  245 

Street,  May  v.,  Oro.  EHz.  120  -  -  -  -  -  326 

Strickland,  Doe  d.  Bayer  v.,  2  a  B.  792 ;  2Q.&  D.  278 ;  11 
L.  J.  N.  S.  a  B.  305 48,211 

Strickland,  Fawcett  v.,  Willes,  57         -  -  -       277, 278 

Strode,  Nayler  v.,  2  Oh.  Bep.  392  -  -  -  -      .    54 

Stubbs,  Patrick  v.,  9  M.  ft  W.  830 ;  11  L.  J.  N.  S.  Ex.  281  -  274, 275 

Stuokley  {or  Hockley),  Fitch  v.,  4  Bep.  23  a;  Oro.  Eliz.  442; 

54,  73,  83,  186 

Styant  v.  Staker,  2  Yem.  250  -            -            -  -       269,  357 

Sussex  (Earl  of),  Burridge  v.,  2  Ld.  Baym.  1292  -            -      -  326 

Sutton  V.  Stone,  2  Atk.  101       -           -           -  -           62,  81 

Swans,  The  Oase  of,  7  Bep.  15  b    -           -  -           -     -  241 

Swansea  (Mayor,  ftc.  of),  Beaufort  (Duke  of)  v.,  3  Exch.  413 ; 
4  L.  T.  N.  S.  453 328 

Swayne's  Oase,  8  Bep.  63  a       -  -  -  -       227,  352 

Sylyester,  Thomas  v.,  L.  B.  8  Q.  B.  368 ;  42  L.  J.  N.  S.  237 ; 
29  L.  T.  N.  S.  290;  21  W.  B.  912     -  -  -  -  400 

Symms  v.  Smith,  Oro.  Oar.  299      -  -  -  .      -    68 

Symonds,  Beale  v.,  16  Beay.  406  -  -  -  -  222 

Sympson  v.  Quinley,  1  Yent.  88     -  -  -  - 128, 134 


T. 

Talbot  V.  Lewis,  1  0.  M.  ft  B.  495        -  -  -       243,  331 

Talbot's  Oase,  8  Bep.  104  b  -  -  -  -  199,  205 

Talmadge  {or  Talmash),  Zinzan  v.,  PoUexf.  561 ;  T.  Jon.  142; 
T.  Bay.  402  -  -  -  -  -  -  40,  53 

Tanistry,  Oase  of.  Day.  28  b  -  -  19,  128,  218,  340 

Tayemer  v.  Oromwell  (Lord),  Oro.  Eliz.  353 ;  4  Bep.  27  a     69,  305 

Taylor,  Bourne  v.,  10  East,  189  -  -  -  *  232 


TABLS  OF  CAS£S.  Ixi 

PAOB 

Taylor  v.  Devey,  7A.ftE.  409 836 

Taylor,  Brans  v.,  7  A.  &  £.  617  -  -  -       332,  333 

Taylor,  Hoe  v.,  4  Bep.  30  b ;  Gro.  Eliz.  413  -  -     14,  16 

Taylor  v.  James,  Qodb.  150      -  -  -  -  -  241 

Taylor,  Monro  v.,  8  EEare,  51         -  -  -  .     -    75 

Taylor,  Oliyer,  1  Atk.  474 50 

Taylor  v.  Pembroke,  cited  2  B.  ft  Ad.  361  -  -  179,  180 

Taylor,  Shaw  v.,  Hob.  176       -  -  -  -  -  203 

Ttefldale,  Atkinson  v.,  3  Wils.  278 ;  2  W.  BL  817  -  264,  275 

Teigh,  Bromfield  v.,  2  Ley.  87  ....  276 

Tenbam  (Lord)  v.  Herbert,  2  Alk.  483      -  -  -     -  266 

Thetford  v.  Thetford,  1  Leon.  204        -  -  *  -    11 

Thiryefcon  v.  GoUier,  Ohj.  Gas.  48  -  -  -  -     -  308 

Thomas,  Abergsrenny  (Lord),  3  Anst.  668,  n.  -         43,  174 

Thomas,  Lenthall  v.,  2  Keb.  267 229 

Thomas  v.  NichoUs,  3  Ley.  40  -  -  -  •  -  275 

Thomas,  Pairy  v.,  5  Ex.  37  -  -  -  -     -  260 

Thomas  v.  Sylyester,  L.  B.  8  a  B.  368;  42  L.  J.  N.  S.  Q.  B. 
237 ;  29  L.  T.  N.  S.  290 ;  21  W.  B.  912        -  -  -400 

Thompson,  Betts  1;.,  L.  B.  6  Gh.  732;  25  L.  T.  N.  S.  363;  19 
W.  B.  1098 249,  267,  276 

Thompson,  Doe  d.  Burgess  v.,  5  A.  ft  E.  532;  1  N.  ft  F.  215 ; 
2  H.  ft  W.  451 ;  6  L.  J.  N.  S.  K.  B.  57        -  -  -    70 

Thompson,  Doe  d.  Daiid  v.,  13  Q.  B.  670;  18  L.  J.  N.  S.  Q.  B. 
326 63,  74,  149 

Thompeony  Driyer  d.  Berry  v.,  4  Taunt.  294    -  -  56,  60 

Thompson  v.  Haidinge,  1  G.  B.  940;  14  L.  J.  N.  S.  G.  P.  268 ; 

9  Jnr.  927 2,  324 

Thompson,  Shaw  v.,  4  Bep.  30b  -  -  -  -  163 

Thoip  V.  Owen,  2  Sm.  ft  G.  90;  23  L.  J.  N.  S.  Gh.  286 ;  18 

Jnr.  441 ;  2  W.  B.  208 137 

Throscross  (Inbabts.  of),  Bex  v.,  1  A.  ft  E.  126 ;  3  N.  ft  M. 

284 347 

Throstout  d.  Gower  v.  Gunningham,  2  W.  BL  1046  -     -    83 

Tilbury  v.  Silya,  45  Gh.  Diy.  98 ;  63  L.  T.  N.  S.  Ill  -  250,  358 
!nte,  Goddon  v.,  1  GifF.  395  -  -  -  -      -  196 

Titos,  Parkyns  (or  Perkins)  v.,  3  Mod.  132 ;  Garth.  12  -  173,  175 
Todd,  Ghrayenor  v.,  4  Bep.  23  a  -  -  -     25,  42,  49 

Todd,  Hobson  v.,  4  T.  B.  71  -  -  -  -     -  265 

Tofield,  Doe  d.  Tofield  v.,  11  East,  246  -  -^   62,  64,  69 

Tomkins,  Doe  d.  Blacksell  v.,  11  East,  185      -  53,  62,  84,  148 

Tomline,  Att-Gen.  v.,  15  Gh.  Diy.  150  (G.  A.) ;  5  Gh.  Diy.  750; 

46 L.  J.  N.  S.  Gh,  654;  36L.T.  N.  S.  684;  25  W.  R  802  -234, 

235,  280,  285,  286 


bdi  TABLB  OF  GASB8. 

PAoa 
Tomline,  Ex  parte,  Be  Walton-cam-Tniinley  Manor»  21  W.  B. 
476 ;  28  L.7r.  N.  8.  12  -  -  •  -  -    12 

Torkington,  Beadsworth  v,,  1  a  B.  782 ;  1Q.&  D.  482 ;  6  Jut. 
339 260 

TothiU,  Ingram  v.,  1  Mod.  216;  2  Mod.  93      -  -  -  207 

Tower,  Bex  v.,  4  M.  &  S.  162  -  -  -  -     -314 

Townley  v.  Gibson,  2  T.  B.  401  -  -  -  -  287 

Towns,  Doe  d.  Carlisle  v.,  2  B.  &  Ad.  585 ;  9  L.  J.  K.  B.  278  -    51 

Traheme  v.  Gardner,  5  E.  &  B.  913;  25  L.  J.  N.  S.  Q.  B.  201; 
2  Jut.  N.  S.  394        -  -  -  -52,  73, 188,  208, 313 

Trash  v.  Wood,  4  Myl.  ft  Or.  324;   9  L.  J.  N.  S.  Ch.  105 ;  4 
Jut.  669 140 

Tredway  v.  Potherley,  2  Vem.  367  -  -  .   80, 184 

Tregonning,  Blewettv.,  8A.  ftE.  554;  5N.ftM.234;  4L.J. 
N.  S.  K  B.  223 248 

Tresidder,  Doe  d.  Tresidder  v.,  1  Q.  B.  416 ;  1  G.  ft  D.  70;  10 
L.  J.  N.  S.  a  B.  190;  5  Jur.  931  -  -  -  35,  230 

Tresider,  Dunstan  v.,  5  T.  B.  2  -  -  -  -  272 

Treyor,  Garbutt  v. ,  15  0.  B.  N.  S.  650 ;  1  Har.  ft  By.  69 ;  33  L.  J. 
N.  S.  0.  P.  73 ;  9  L.  T.  N.  S.  535 ;  12  W.  B.  471  - 150,  324 

Triggs,  Smith  v.,  1  Stra.  487 64 

Trinity  College,  Cambridge  v.  Browne,  1  Yem.  441  -     -  202 

Troake,  FoUet  t^.,  2  Ld.  Baym.  1186    -  -  -  -  276 

Trotter  v.  Blake,  2  Mod.  229  -  -    .       -      175,  230,  344 

Trotter  v.  Harris,  2  Y.  ft  J.  285  -  -  -  -  244 

Truby,  Doe  d.  Wightwiok  v.,  2  W.  Bl.  944  -  -     -    27 

Tnieman,  Doe  d.  Boyer  v.,  1  B.  ft  Ad.  736 ;  9  L.  J.  K  B.  119- 152, 

224,  505 

Truro  TLord),  Beg.  v.    See  Beg.  v.  Begistrar  of  Deeds  for  Co.  of 
Midolesex. 

Tudge,  Baldwin  v.,  2  Wils.  20 197 

Turner  v.  Benny  {or  Benson),  1  Mod.  61 ;  1  Ley.  293 ;  2  Keb. 
660 51 

Turner  v.  Hodges,  Hutt.  101    -  -  -  -  35,  36,  221 

Turner  v.  Jacomb,  (1892)  1  Q.  B.  47  -  -  -      -  120 

Turner,  Bing  v.,  1  Myl.  ft  K  456        -  -  -         91,  148 

Turner  v.  West  Bromwich  Union  (Ghiardians  of),  9  W.  B,  155 ; 

3L.  T.  N.  S.  662  -  -  -  -      153,219,337 

Tutney,  James  v.,  Cro.  Car.  497 ;  W.  Jon.  421  -  -         15,  307 

Twelyes,  Boby  v..  Sty.  423  -  -  -  -     -    59 

Twining  v.  Morrice,  2  Bro.  C.  C.  326   -  -  -  -    78 

Twynam  v.  Fickard,  2  B.  ft  Aid.  105         -  -  .     -  123 

Tylee  v.  Webb,  6  Beay.  552      -  -  -  -  .82 

Tyndflle,  Padwick  v.,  1  E.  &E.  184;  28  L.  J.  N.  S.  Q.  B.  90; 

33  L.  T.  N.  S.  125 ;  5  Jur.  N.  S.  676 ;  7  W.  E.  53  -  201,  526 


TABLE  OP  CASES.  Ixili 

TAam 

Tyiell,  fitephans  v.,  2  YHla.  1  *  -  *  -  -    66 

Tyningliam^s  Case,  4  Bep.  36  b      -  -  251,  258,  268,  357 

Tyrwhitt,  Wynne  v.,  4  B.  &  Aid,  376  -  •  -  -  346 

Tyson  V.  Sraifch,  9  A.  &E.406;  1  P.  &  D.  307;  W.  W.  &  D. 
749  -  - 237,245 

Tyssen-Amlmrst,  Bi^lis  v.,  6  Ch.  Diy.  500 ;  46  L.  J.  N.  S.  Ch. 
718 ;  37  L.  T,  N.  S.  493        -  -  -  -       253,  254 

Tyason  v.  Olaxke,  3  Wils.  541        -  -  -      280,  282,  284 


UnderhiU  v.  Selsey,  Cro.  Jac  226       -  -  -  -  153 

Underbill,  Peaidon  v.,  16  Q.  B.  120;  20 L.  J.  N.  S.  Q.  B.  133; 
15  Jut.  465         -  .  .  -  .  -256,272 

IJppeiton  V.  I^Gkolflon,  L.  E.  6  Gb.  436  -  •  -    78 

Upaber,  Evans  v.,  16  M.  ft  W.  675;  16  L.  J.  N.  S.  Ex.  185   - 187, 

323 

Upton,  Welcome  v.,  6  M.  &  W.  536  -  -  -     -    16 

Utbert,  Fasten  v.,  litt.  Bep.  264         -  -  -       223,  228 


V. 

Valentine  v.  Penny,  Noy.  145        -  -  -  -  250,  255 

Yangban  v,  Atkins,  5  Burr.  2764         -  -      63,  131,  162,  165 

Yemon,  Doe  d.  Yemen  i;.,  7  East,  8 ;  3  Smitb,  6  -  -     64,  68 

Yemon's  Case,  4  Bep.  1  a         -  -  -  -  -  164 

Yenryer,  Stokes  v.,  1  Mod.  112       -  -  -  -     -  139 

Yenilam  (Earl)  v,  Howard,  5  Moo.  &  P.  148 ;  7  Bing.  327 ;  9 
L.  J.  0.  P.  69 177 

YUlebois,  Camaryon  (Earl  of)  v.,  13  M.  &  W.  313;  14  L.  J. 
N.  8.  Ex.  233 337 

Yinoent,  Att.-Gen.  i;.,  Bunb.  192 ;  2  Eq.  Gas.  Abr.  378     -     -  227 


W. 

Wade  V.  Baker,  1  Ld.  Baym.  130  -            -           -           -  170 

Wade,  Forder  v.,  4  Bro.  0.  0.  520  -  -            -      162,  166,  186 

Wadswortb,  Pindar  v.,  2  East,  154  -            -            -            -  266 

Wainewrigbt  v.  Elwell,  1  Madd.  627  -            -            -     64,  91 

Wakefield,  Bucdeagb  (Duke  of)  v.,  L.  B.  4  H.  L.  Gas.  377 ; 
36  L.  J.  N.  S.  Gb.  441 ;  28  L.  T.  N.  S.  102  -  -       234,  236 

Walker  v.  Abingdon  (Earl),  10  L.  J.  N.  S.  Gb.  289 ;  5  Jur. 
714  -  - 43 

Walker  v.  Denne,  2  Yes.  jnn.  170        -  -  -  -  221 


Ixiv  TABLE  OF  GASES. 

PAOB 

Walker,  Doe  d.  Eyans  v.,  15  Q.  B.  28 ;  19  L.  J.  N.  S.  Q.  B. 
293 348 

Walker,  Moeley  v.,  7  B.  &  C.  40    -  -  -  -      .  245 

Walker,  Steele  v.,  28  Beay.  466  -  -  -  -    94 

Walker  v.  Walker,  1  Ves.  54 164 

Waller,  Hillary  ».,  12  Ves.  jun.  239     -  -  -       218,  338 

Walters  v.  Webb,  L.  E.  5  Ob.  531 ;  39  L.  J.  N.  S.  Cb.  677 ; 
18W.B.  587 72,219 

Walton-cum-Trimlev  Manor,  Be,  Ex  parte  TomlLae,  21  W.  B. 
475 ;  28  L.  T.  N.  8.  12 12 

Wanstead  Manor  (Lord  of).  Beg.  v.,  23  L.  J.  N.  S.  Q.  B. 
67 ;  18  Jur.  310 92,  188 

Warblington  (Inbabts.  of),  Bex  v.,  1  T.  B.  242  -  -  282 

Ward,  Bolton  v.,  4  Hare,  530 ;  14  L.  J.  N.  S.  Ob.  361 ;  9  Jur. 
591 118 

Ward,  Fort  v..  Moo.  667           -           -  -  -           -  268 

Ward,  Nortbampton  (Mayor,  &c.  of)  v.,  2  Stra.  1238         *     -  245 

Ward  V.  Ward,  7  Excb.  838     -           -  -  -       270,  271 

Wannington,  Miller  v.,  IJ.  &  W.  484       -  -  -     -  228 

Wame  v.  Sawyer,  1  Bolle,  B.  48          -  -  -           -  173 

Warner,  Ex  parte,  19  Ves.  jiin.  202           -  -  -     -    82 

Warren,  Ely  (Dean  &  Cb.  of)  v.,  2  Atk.  189  -  227,  250,  272,  343 

Warrick  v.  Queen's  College,  Oxford,  L.  B.  6  Cb.  716 ;  L.  B.  10 
Eq.  105;  40  L.  J.  N.  S.  Ob.  780;  25  L.  T.  N.  S.  254;  19 
W.  B.  1098  -  -  -  6,  249,  250,  251,  257,  267,  315 

Wase  V.  Petty,  Wincb.  3           -  -            -            -            -    94 

Watkinfl  v.  Lea,  6  Ves.  jun.  633     -  -           -           -     -    39 

Watling,  Wells  v.,  2  W.  Bl.  1233  -           -           •           -  265 

Watts,  Oxley  v.,  1  T.  B.  12            -  -            -            -      -  241 

Weaver  v.  Maule,  2  B.  ft  M.  97  -           -           -           -    60 

Webb,  Tylee  v.,  6  Beav.  552           -  -           -           -      -    82 

Webb,  Walters  v.,  L.  B.  5  Cb.  531 ;  39  L.  J.  N.  S.  Cb.  677 ; 
18W.E.  587 72,219 

Webbe,  Mors  v..  1  Brownl,  180;  2  Brownl.  297  -  -  270 

Webber,  Doe  d.  Nortb  v.,  5  Scott,  189 ;  3  Hodges,  203      -      -    53 

Webster,  Moore  v.,  L.  B.  3  Eq.  267 ;  36  L.  J.  N.  S.  Cb.  429 ;  15 
W.  B.  167 ;  15  L.  T.  N.  S.  460  -  -  -  -  166 

Weddell,  Wilson  v.,  Yelv.  144       -  -           -           -     64,  69 

Weedon  Beck  Manor  (Lords  of),  Beg.  v.,  13  Q.  B.  808;  18 

L.  J.  N.  S.  Q.  B.  289 ;  13  Jur.  1121  -            -            -    96 

Weekly,  Abbot  v.,  1  Lev.  176        -  -           -            -     -  298 

Weeks  v.  Carvel,  Noy,  106       -           -  -           -           -  135 

Weeks  v.  Sparke,  1  M.  &  S.  679     -  -            -      331,  335,  340 

Wegg,  Boe  d.  Hall  v.,  6  T.  B.  708        -  -            -            -  351 

Welob,  Saunders  v.,  cited  1  Salk.  57  -           -            -     '-  325 


TABLE  OF  CASES.  IxtT 

FAOB 

Welcome  v.  Upton,  6  M.  ft  W.  536      -  -  -  -    16 

Welledey,  Eeg.  v.,  2  B.  &  B.  924  -  -  -  -      -  152 

WeUedey  (Visct.)  v.  Withers,  4  B.  &  B.  750 ;  24  L.  J.  N.  8. 
a.  B.  134;  1  Jur.  N.  S.  706-  -  -  -         92,  191 

Wells  V.  Abraham,  L.  R.  7  a  B.  554;  41  L.  J.  N.  S.  Q.  B. 
306;  26  L.  T.  N.  S.  433;  20  W.  B.  659  -  -  -      -  242 

Wells,  Blaker  v.,  28  L.  T.  N.  S.  21      -  -  -  -  413 

Wells,  Hughes  v.,  9  Hare,  749  ;  16  Jur.  927  -  -      -  222 

Wells  V.  Pearcy,  1  Bing.  N.  0.  556      -  -  -  •  252 

Wells  V.  Watling.  2  W.  Bl.  1253 265 

Welsh  {or  Welche)  Froafel  {or  ProsweU)  v.,  Cro.  Jac  403 ; 
Godb.  268 ;  3  Bals.  216         -  -  -  -         68,  151 

Wentworth  (Lady)  v.  Clay,  Oas.  temp.  Fmch,  263  -    280,  281,  306, 

308 

West  Bromwich  XJnioxi  (Guardians  of),  Turner  v.,  9  W.  B.  155 ; 

3  L.  T.  N.  8.  662      -  -  -  -  153,  219,  337 

Weston,  Luttrel  v.,  Oro.  Jac.  308  -  •           -  -     -    35 

Weston,  Noel  v.,  6  Madd.  50    -  -           -  -           -    58 

Westwiok  v.  Wyer,  4  Eep.  28  a-  -           -  .-63 

Wharton  v.  King,  3  Anst  659  -            -      43,  173, 174,  344 

Wheate,  Bnrgess  v.,  1  W.  BL  123;  1  Bden,  177    -  -221,  222 

Wheeler  v.  Honour,  1  Sid.  58  -  -            -  -       189,  190 

Wheeler^s  Case,  4  Leon.  240            -  -            •  -      -  159 

Wheehonae  {or  Welhouse),  Heddy  v.,  Gio.  Bliz.  558,  591 ;  Moo. 
474 138,  240,  241,  244 

Whelpdale,  Huddleston  v.,  9  Hare,  775     -  -  -      -  188 

Whitaker,  Doe  d.  Boberts  v.,  3  N.  &  M.  225    -  -        204,  303 

Whitbread  v,  Jordan,  1  Y.  &  G.  Bx.  303 ;  4  Y.  &  0.  Bx.  566; 

4  L.  J.  N.  8.  Ex.  Eq.  38  -  -  -  -74,82 

White,  Goold  v.,  K.  683 27 

White  V.  Shirland,  cited  Go.  Litt.  122  a      -  -  -      -  274 

Whitechurch  v.  Holworthy,  4  M.  &  8.  340 ;  19  Yes.  jun.  214  -  232 

Whitfield  V.  Hunt,  2  Doug.  727,  n.  -  -  -      -  189 

Whitton  V.  Peacock,  3  Myl.  ft  E.  325  -  -  123,  219,  224 

Wich,  Baker  v.,  1  8alk.  56 325 

Widdowson,  Harrington  (Barl  of),  1  J.  ft  W.  532       -    62,  72,  163 

Wigg,  Fisher  v.,  1  P.  Wms.  14      -  -  -  -   62,  182 

'VniberfoToe  v.  Hearfield,  5  Gh.  Div.  709 ;  46  L.  J.  N.  8.  Gh. 
584;  25W.  E.  861 335 

Wnby  (Lihabts  of),  Bex  v.,  2  M.  &  8.  504  -           -     -  169 

Wilkes  V.  Broadbent,  1  Wils.  63 ;  2  Stra.  1224-  -         19,  233 

Wilkin,  Daniel  v.,  7  Ex.  429 332 

Wilks  V.  Groom,  6  De  G.  M.  ft  G.  205             -  -           -    98 

WiUoock  V.  Windsor,  3  B.  &  Ad.  43           -  -            -     -  302 

WiUee,  E»  v.,  3  B.  &  Aid.  510           -           -  -           -  224 

B.  « 


Ixri  TABLB  OF  CAiBES. 

PAOB 

WiUes,  Wilson  v.,  1  East,  121 ;  8  Smith,  167         -      250,  252,  342 

Williams,  Davies  v.,  16  Q.  B.  546;  20  L.  J.  N.  S.  Q.  B.  330; 
15  Jur.  752  -  -  -  -  -  -        260.  264 

Williams,  Doe  d.  Clayton  v.,  11  M.  &  W.  803 ;  12  L.  J.  N.  8. 
Ex.  429  -  -  -  -  -  -  -      -     10 

Williams,  Doe  d.  Dunraven  v.,  7  0.  &  P.  332  -  -  -  248 

Williamson,  Emson  v.,  1  Eo,  Abr.  933       -  -  -      -  357 

Willingale  v.  Maitland,  L.  B.  3  Eq.  103;  36  L.  J.  N.  S.  Ch.  64  -  261 

Willis  V.  Willis,  34  Beav.  340 164 

Willowes'  Case,  13  Eep.  1  -  -  -  -      176,  230,  231 

Wilson,  Be,  3  De  G.  J.  &  S.  410;  32  L.  J.  N.  S.  Ch.  191 ;  7 
L.  T.  N.  S.  772  ;  11  W.  E.  295 HO 

Wilson  V,  Allen,  IJ.  &  W.  611  -  -      69, 151,  354,  355 

Wilson,  Arden  v.,  L.  R.  7  0.  P.  535  ;  41  L.  J.  N.  S.  0.  P.  273 ; 
26  L.  T.  N.  S.  887  ...  -  393,526 

Wilson,  Brabant  v.,  L.  B.  1  Q.  B.  44 ;  35  L.  J.  N.  S.  a  B.  49 ; 
12  Jut.  N.  S.  24 ;  14  W.  E.  28 ;  6  B.  &  S.  979        -        393,  417 

Wilson,  Doe  d.  Dormer  v.,  4  B.  &  Aid.  303      -  -  -    62 

Wilson,  Doe  d.  Perry  v.,  6  N.  &  M.  809  -  -  -  148 

Wilson  V.  Hoare,  10  A.  &  E.  236 ;  2  B.  &  Ad.  350 ;  2  P.  ft  D. 
659;  9  L.  J.  K.  B.  253   -  -  -  176,  179,  180,  181,  182 

Wilson,  Eadford  v.,  3  Atk.  815  ...  -    27 

Wilson,  Beg.  v.,  3  B.  &  S.  201 ;  32  L.  J.  N.  S.  Q.  B.  9;  9  Jnr. 
N.  8.  439 ;  7  L.  T.  N.  8.  326 ;  11  W.  R.  70  -  -         89,  191 

Wilson,  Rex  v.,  10  B.  &  C.  80;  5 Man.  ft  R.  140;  8  L.  J.  K.  B. 
101 83,88,89,91,150 

Wilson,  Rowbotham  v.,  8  H.  L.  Cas.  348 ;  30  L.  J.  N.  8.  Q.  B. 
49;  6  Jut.  N.  8.  965 234 

Wilson  V.  Weddell,  Yelv.  144         -  -  -  -     64,  69 

Wilson  V.  Willee,  7  East.  121 ;  3  8mith,  167    -  250,  252,  342 

Wilson's  Estate,  In  re,  2  J.  ft  H.  619 ;  32  L.  J.  N.  8.  Ch.  191 ; 
7  L.  T.  N.  8.  191 ;  11  W.  R.  294  -  -  -      -  419 

Winchester  (Bishop  of)  v.  Knight,  1  P.  Wms.  406        -       227,  236 

Windham  v.  Giubilei,  40  L.  J.  N.  8.  Ch.  505 ;  24  L.  T.  N.  8. 
653 314 

Windsor,  Willcock  v.,  3  B.  ft  Ad.  43    -  -  -            -  302 

WingBeld,  Costard  v.,  2  Leon.  44  •            -  -  -      -  257 

WinmiU,  Boulcott  v.,  2  Camp.  261        -  -  280,  282,  284,  311 

Winn,  Beauchamp  (Earl)  v.,  L.  R.  6  H.  L.  223  -  -     -  238 

Winsmore,  CKxiwin  v.,  2  Atk.  525         -  -  -            -  160 

Wirty  V.  Pemberton,  2  Eq.  Cas.  Abr.  279  -  -  -202,  209 

Wiseman  v.  Cotton,  1  8id.  135  -           -  -  9,  127,  158,  327 

Witchford  Manor  (Steward  of),  Reg.  v.,  7  DowL  709;  3  Jnr. 
533 72 

Withers,  Wellesley  (Viscfc.)  v.,  4  E.  ft  B.  750;  24  L.  J.  N.  8. 
Q.  B.  134;  1  Jut.  N.  8.  706  -  -  -  -         92,  191 


TABLE  OF  CASES. 


Ixyii 


"Witliers  V.  Withers,  Amb.  161        -           -  -  -  22,  125 

Woadson  v.  Nawton,  2  Stra.  777           -            -  -  -  262 

Wood,  Ekton  v.,  2  Myl.  &  K.  678  -            -  -  -314,  347 

Wood,  Glouceflter  (Bishop  of)  v.,  Winch.  46,  67  -  -  202 

Wood  V.  Lambirth,  1  Ph.  8;  6  Jur.  741     -  -  -  93,  166 

Wood,  Eider  v.,  1  K  &  J.  644 ;  24  L.  J.  N.  S.  Oh.  737-        130,  139 

Wood,  Eogera  v.,  2  B.  &  Ad.  246   -            -  -  -      -  330 

Wood,  Traah  v.,  4  Myl.  &  Or.  324);  9  L.  J.  N.  S.  Oh.  106;  4 
Jut.  469 140 

Woodford,  Sheppard  v.,  6  M.  ft  W.  608 ;  9  L.  J.  N.  S.  Ex.  90  -  182, 

184 

Woodgate,  Bingham  v.,  1  B.  &  M.  32;  TamL  183;  8  L.  J.  Oh. 
46 2,361 

Woodham  Walter  Manor  (Lord  of).  Beg.  v,,  10  B.  &  S.  439     -  186 

Woodham  Walter  Manor  (Lord  of),  Beynolds  v.,  L.  B.  7  0.  P. 
639 ;  41  L.  J.  N.  S.  0.  P.  281 ;  27  L.  T.  N.  S.  374   -      394,  396, 

626,  626,  632 

WoodhooBe,  Olarkson  v.,  6  T.  B.  412,  n. ;  3  Dong.  189      -  284,  339 

Woodhonse,  Price  v.,  3  Exch.  616;  18  L.  J.  N.  S.  Ex.  271      -  339 

Woodin,  Gonge  v.,  King's  Bench,  1734,  Elton,  Ten.  Kent,  189  -  138 

Woodland  v.  Mantel,  Plowd.  94     -  -  -  - 198, 199 

Woods,  Seaman  v.,  24  Beay.  372 ;  27  L.  J.  N.  S.  Oh.  638 ;  4  Jur. 
N.  S.  725 91 

Worledg  v.  Kingswell,  Oro.  Eliz.  794         -  -  -  269,  357 

Worledge  v.  Benbury,  Oro.  Jac.  436 ;  2  Buls.  216 ;  1  Boll.  E.  1 2  -    36 

Wray,  Eobinson  v.,  L.  B.  1  0.  P.  490 ;  14  L.  T.  N.  S.  434  -      -  240 

Wright  V.  Banks,  3  B.  &  Ad.  664         -  -  -  -  148 

Wright  V.  Howard,  1  S.  &  8.  190 78 

Wright  V.  Kemp,  3  T.  E.  470   -  -  -  -  -    62 

Wroot,  Doe  d.  Shewen  v.,  6  East,  132 ;  1  Smith,  363        -     .    79 

Wrof  s  Oase,  cited  Litt.  E.  26 83 

Wycherley  v.  Wycherley,  2  Eden,  176       -  -  -      -    67 

Wyer,  Westwick  v.,  4  Eep.  28  a  -  -  -  -    63 

Wynn,  Owen  v.,  9  Oh.  Div.  29;  38  L.  T.  N.  S.  623;  26  W.  E. 
644 316 

Wynne  v.  Oookes,  1  Bro.  0. 0.  616  -  -  -     -  355 

Wynne  v.  Tyrwhitt,  4  B.  ft  Aid.  376    -  -  -  -  346 


Y. 

Yaxley  v.  Eainer,  1  Ld.  Eaym.  44             -  -            -     -  195 

Yetmhister  Case,  Noy,  2          -           -           -  -           -  173 

York  (Duke  of)  v.  Maraham,  Hard.  432     -  -            -      -  124 

York  (Mayor,  &c.  of)  v.  Pilkington,  1  Atk.  282  -            -  266 

e2 


IXTiii  TABLS  OF  CASB8. 


PAOB 

Zinzan  v.  Talmadge  {or  Talmash),  Pollexf .  561 ;  T.  Jon.  142 ; 
T.  Bay.  402 40,  63 

Zouch  d.  Abbot  v.  Parsons,  3  Btur.  1794   -  -  -     -    65 

Zouch  d,  FoTse  v.  Forse,  7  East,  186 ;  3  Smith,  191     -    33,  69,  89 

Zouche  (Lord)  V.  Dalbiac,  L.  B.  10  Ex.  172 ;  44  L.  J.  N.  S.  Ex. 
109 ;  33  L.  T.  N.  S.  221 ;  23  W.  B.  664  -  -  -  216,  218 


(  i^  ) 


TABLE  OF  STATUTES  CITED. 


PAOa 

20  Hen.  m.  Statute  of  Merton:— 

o.  1  (DamageB  on  writ  of  dower)  124,  163 

c.  2  Power:  Emblements:  Will)  163 

o.  4  (Approvement)    125,  276,  278,  286 

c.  10  (Attomeys) 197 

4£dw.  Lsb.  1  {Eztmta  Mmerii) 4,  833 

18  Edw.  I.  et.  1.  Statate  of  Westminster  Hie  Second : — 

o.  1  {Be  JDonia  Conditumahbut) 26,  122 

c.  18  (Execution:  Elegit) 122 

o.  46  (Approvement  of  wastes) 125,  275,  276,  286 

18  Edw.  I.  o.  1  {Quia  £mptores)  . .  10,  11,  12,  198,  207,  251,  258,  325,  363 

17  Edw.  H.  St.  1,  c.  6  (jDe  Pterogati^a  Regis :  Tenure  in  eapiU) 10 

22  Edw.  IV.  c.  7(Inclosureof  wastes:  Timber) 296 

4  Hen.  Vn.  c.  24  (Knee)    124,  126 

11  Hen.  Yn.0.  23,  Priy.  (EHsgaveUing    9 

16  Hen- Vm.  0.  19,  Priv.  (Dlsgavelling) 9 

27Hen.  Vin.  c.  10  (Statate  of  Uses)    24,61,  123,163,  164 

o.26(Wales)    128 

o.  28^ionasterie8)  • , 138 

81  Hen.  vm.  o.  3  (Disgavelling)    9,  327 

0.  13  (Monaster!^ 138 

32  Hen.  vm.  o.  1  (Statate  of  Wills)     82 

o.  2  (Limitation) 212 

o  28  rLeases^  123 

c!  29,  Priv.  (OswaUbeK^VNoUs-Gav  128 

o.  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 


lflll 

Mi 

1 

in 

1 

i 

<i 

■i 

8^  A 

'■'t 

m 

8-1.3 

1 

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. 


«*^   fn 


PRINTED  BT  0.  F.   BOWOBTH,  -OBBiLT  NBW  8TBEET,  FBTTEB  LAITE,  E.a 


DLAPIJ0U2 

A  tPMllM  on  tiM  Imv  of  oopyli 


3  6105  044  262  454