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court

COURT BARON- continued.
and that the stewardship may be granted in
reversion

Page 609
grant of the stewardship 10 two for a term of

years is good
a bishop may grant the stewardship of a manor
for life, if usually so granted before 1 Eliz.

.. 609, n.
S. 2. Of the services due from freehold tenants.
FEUDAL SYSTEM.–Observations on the feudal
constitution

609, &c.
possessions were allodial previous to its intro-
duction into England

609, 610
definition of a feud

610
proper feuds were purely military; the others

were denominated improper feuds ib.
reference to a distinction between allodial and

beneficiary possessions
a feudal maxim is, that all lands are held of
the king

610
our ancestors voluntarily submitting to this

fiction of tenure
KNIGHT-Service ; definition of the tenure

610, &c.
escuage sometimes confounded with it 610, n.
proper knight-service abolished by 12 Car. 2,

610
part of its prerogative abolished by 16 Car. I
the several fruits of that tenure, viz. relief,

primer seisin, wardship, livery, aids and
Escheat ..

611
the services were occasional, but restrained to

forty days, and not wholly uncertain .. ib.
Grand-SERJEANTY ; definition of the tenure,

which was an honourable species of knight-

service
reserved by 12 Car. 2

567, n., ib.
PETIT-SERJEANTY; not mentioned in the act,
but still exists

611, n.
and deemed a dignified branch of socage tenure,

ib.
FRANK-ALMOIGN; shown to be a spiritual

567, 611, 612, n.
it was reserved by 12 Car.
SOcage TexURE, defined

612
its resemblance in some respects to knight.
service ..

ib.
burgage and guvelkind included in Socage

tenure
Their peculiar descent

ib.
the testamentary power over socage lands created

by particular statutes
Homage; the nature of the ancient service of
homage

613, 614
abolished by 12

Car.
2

COURT BARON- continued.
the husband is to do feally for the wife,

Page 614
except perhaps for copyhold lands
an infant is excused (but a case cited contra)

615
is to be iterated on every change of the lord,

and every new purchase or descent 614
as it is to be done on oath, it cannot be per-

formed by attorney
a contrary usage in France

ib, o.
fealiy may be received by the steward or
bailiff :

.. 615
it is usually respited, which seems expedient

,
unless it be the only service rendered .. ib.
seizin of fealty is a seizin of all other services, ib.
the lord's remedy for fealty

616
fealty and casual services are not within the

statute of limitation, 32 Hen. 8 615, n.
Suit of Court; is due to the court baron from

all freehold tenants of the manor ..615, 616
the suit may be done by attorney

363, 616
but such atorney cannot be appointed by parol,

363, n., 616
how suit is to be performed by joint-tenants

and coparceners
the husband is to perform suit for the wife..ib.
the remedy for suit of court is by distress in-
finite

ib.
which is a pledge only, and cannot be sold, ib.
and therefore can in no case be deemed ex.
cessive

ib.
the remedy does not extend 10 suit in hundred

ib.
nor to suit under tenure created since the sta.
tute of quia emptores, except by reservation,

617
RENTS; Heriots. (See these services under

their proper titles.)
Relief; is a fruit of service, and not properly
a service

618
sometimes due by reservation, or by custom.. ib.
is of feudal origin

ib.
whether originally paid in money or in arins,
&c.

619
frequently confounded with the heriot ib.
the distinction between them

ib
relief reduced to some certainty by Will, 1, ib.
exacted arbitrarily by William 2

ib.
restricted by Henry l:
compositions for relief established by the
charters of King John and Henry 3 ..

619,

620, n.
the amount of a relief paid by the different
degrees of nobility

620, n.
relief for socage lands, fixed at a year's rent by

ib. n.

tenure

ib.

.

ib.

ib. n.

613, n.

620

. 613, n.
Fealty ; observations on the service of fealty,

613, 614
is incidental to and inseparable from every
tenure

613
except frank-almoign, and such as hold at will
or by sufferance

ib.
is to be done by tenant for life

614
and in some cases by tenant for years ib.

by tenant at will, by custom ib.
a woman, if of age, is to do fealty

the 40th law of Will. I
is not within the limitation of fifty years by 32
Hen. 8, c. 2, for avowry, &c.

ib.
but avowant must allege seisin of the services,

620, n.
the statute of limitation of 3 & 4 Will. 4, c. 27,
seems not to extend to reliels

il
whether the lord shall have action of debt for
relief

620
the lord may distrain for the proper relief
but not for relief by reservation or custom,

unless he can prescribe for the remedy..621

613, n., 620

and ev

ib.

COURT BARON- continued.
his executors or administrators shall bave action

of debt, but cannot distrain. Page 618, n. 620
wager of law was not allowed in this action,

621, n.
distress for relief is not saleable under 4 Geo. 2,

620, n.
relief is incident of common right to socage

tenure, the title therefore need not be set
forth in replevin

621
acceptance of rent from new tenant does not

bar the relief due from the previous one..ib.
relief cannot be apportioned, therefore none

payable on the death of one of several co-
parceners

ib.
relier custom is frequently payable on aliena-
tion as well as on death

621, n.

S. 3. Amercements.

..

an

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626

ib. 1.

COURT BARON-continued.
the cattle of a stranger or lessee cannot be dis-
trained for amercement Page 624, n.

S. 4. By-Laws.
in court baron are good by custom or prescrip-
tion

625
the custom must be reasonable, and therefore a

by-law in court baron will not bind a
stranger

ib.
whether it is otherwise if the by-law is for the
public good

ib.
prescription to make by-laws to alter an in-

heritance is bad, but to qualify it only is
good (examples)

625, 626
are to be made by the homage, and cannot be

made by the steward, though with their
consent

626
presentment of the breach of by-law not neces-
sary

ib.
the necessity of it need not be averred in re-
plevin ..

ib.
notice of it is unnecessary

ib,
cattle distrained for breach of by-law are pre-
sumed to belong to the offender

ib.
the penalty for breach of a by-law is in nature
of a fine, and therefore is not affeerable

623, 626
unless perhaps when the fine is discretionary,

623
penalty for by-law is recoverable, in the ab.

sence of custom or prescription, by action of

debt only
wager of law was allowed in this action .. 627
now abolished

S. 5. Plaints in nature of personal actions.
pleas of a personal nature were formerly deter.
minable by wager of law

.627
the manner of waging law
but by prescription pleas were determinable by
jury

627
trial might always have been by jury, with
consent of the parties

ib.
suitors are not compellable to be sworn between

party and parly, unless by charter or pre-
scription

ib.
and except formerly in a writ of right patent, ib.
but are to be sworn for the lord as to articles

inquirable in court baron ..
the stat. Westm. 2, c. 36, for punishing lords

and stewards encouraging suits, extends to
courts baron and courts leet

ib.
the process is summons and distress infinite, 627
the distress cannot be sold, except by custom, ib.
nor are the goods forfeited, though the king be
lord

628
by special custom a levari facias may be
awarded, and the goods sold

ib.
but the custom must be pleaded

ib,
sometimes by custom a venditioni exponas

awarded after third attachment
supersedeas lies if a debt be divided to reduce
the plaint below forty shillings

628
and of this wager of law was formerly al.
lowed

ib.
proceedings are rendered illegal by want of

ib.
presumption of summons preceding attachment
is favoured

ib

ib. n.

sum

an amercement imports a moderate assessment
by the equals of the offender

621
it is to be assessed by the homage only ib.
this to be inferred froin Magna Charta, c. 14,
and Westm. I, c. 6

621, 622
what is implied by the word " freeman” in the
first statute

621
by prescription the steward may assess
amercement

622
but then it must be affeered

ib.
and if debt be brought, the affeerment must be
shown

ib.
the practice of affeering amercements arose out

of the above statute of Magna Charta .. ib.
it appears sufficient for the homage to amerce

in a particular sum without affeerment.. ib.
but the reasonableness of the sum is usually
submitted to affeerors

ib,
it should seem more usual to amerce in general
terms, and then for affeerors to ascertain the

623
the affeerment of an amercement must be at
the same court

622
a moderata misericordia lies when the amerce-
ment is immoderate, and there is no affeer-

623
the process upon it is alias and pluries and at-
tachment

..

ib. n.

..

ib. n.

ib.
two persons cannot join in the writ, as they
ought to be amerced severally

ib.
for amercement without cause trespass lies..ib.
neither the lord nor steward of court baron can
fine or imprison

ib.
nor amerce for a private trespass to the lord..ib.
except perhaps by custom

ib.
distress does not lie for amercement in court
baron ..

624
except by prescription

ib.
and except as to ihe king

ib.
the remedy is action of debt
in which wager of law was allowed ib.
the bailiff can only distrain by special war-
rant

ib.
and the precept must be pleaded ib.
when the bailiff is not punishable in trespass, ib.
he should be sworn
what must be pleaded by defendant in trespass
on distress for an amercement

624
an amercement is lost by the death of the
tepant

.. 624, 625

ment

..

ib.

ib. n.

summons

COURT BARON (Customary)-continued.
the usual periods of holding customary courts,

Page 5, 362, 363
semble, that the court would have been lost

before 4 & 5 Vict. c. 35, if there were not
two suitors

5
special customary courts are sometimes holden,

5, 6
whether a grantee of the freehold of all or part

of the copyholds may hold a court; the au-

thorities are opposed to the right .. 9, &c.
is attended by two copyholders only, whether

one who had previously surrendered could

act in giving effect to such surrender .. 232
semble, that a mortgagor in possession may hold

91, D.
by 4 & 5 Vict. c. 35, may be held without ho.

magers, but other accustomed formalities not
dispensed with

102, n., 109, 0.
See LORD OF THE MANOR; WASTE LANDS.

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courts

COURT LEET. See LEET.

COURT BARON- continued.
a capias cannot be awarded in court baron,

except by charter or prescription Page 628
nor does writ of error lie there

ib.
but the party may have false judgment ib.
proceedings in court baron are traversable, and

should therefore be pleaded at length .. ib.
in replevin the plaint cannot be removed by

plaintiff or defendant without special cause
shown ..

ib.
re-caption lies on distress for the same cause
after removal of the plaint

ib, n.
an interlocutory judgment may be set aside,

but a new trial cannot be granted, nor a
verdict be set aside, except for irregularity,
fraud or surprise .

629
S. 6. Writ of Right Patent.
could only have been brought by tenant in fee
simple ..

.629
how it was to be sued, and to whom directed, ib.
the several sorts

629, n.
there must have been fifteen days between the
teste and tbe return

ib.
the duty of the steward on receiving the writ,

629
the lord was compellable to hold his court, 630
formerly brought in the court baron and re-

moved, but was afterwards usually made re-
turnable immediately into the Common Pleas,

ib.
but the writ must have stated that the lord had
remitted his court

ib.
and it was sufficient if the lord's licence was cer-
tified after the writ was issued

ib.
must have been brought within sixty years on
the ancestor's seizin

ib.
and thirty years on the demandant's own
seizin

ib.
general principles and rules of pleading in a
seal suit

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COURT ROLLS; entry thereon must be forth-

with made of all surrenders, grants, admis-
sions, wills, &c., accepted or made by, or
delivered to the lord or steward, or bis de-
puty, under 4 & 5 Vict. c. 35; and such
entries to be considered as made pursuant to

a presentment by homagers.. 102, n., 222, 0.
the custody of, belongs to the lord, and the

steward has been ordered to deliver them to
the receiver in a cause

.. 118, D.
a court of equity will decree an amendment in
a case of fraud

204
an entry reformed by the steward's minute

book, but the lord required to be made a
party to the suit

ib.
not shown whether a previous application bad

been made to the lord as chancellor of his
own court

204, 205, D.
strictly speaking, are not records 494
and an averment of an error in them is ad.
mitted ..

.. 496
but they are evidence, as being of a public
nature.

ib.
the demandant was not allowed to amend, ib. n.
the tenant began

630
See AMERCEMENT; DEODAND; ESCHEAT ;

Estrays; Fairs (Markets, Tolls, 8c.);
FELO DE SE; FREE Chase or Pank; FREE
FISHERY; FREE WARREN; HERIOTS ; Quit
RENTS; SERVICES; Treasure Trove;

WAIF; WRECK.
S. 7. Fruits of Tenure and Seignioral Franchises.
See these under their distinct titles; viz. Es.

CHEAT ; FELO DE SE; DEODAND; ESTRAYS;
WAIF; WRECK: TREASURE Trove; FAIRS;
MARKET; Tolls; Free Chase or Park;

FREE WARREN; Free FISHERY, &c.
COURT BARON-(Customary); is for copy-

holders only, and incident to every manor
where there are copyholds

4
the lord or steward is judge in it ib., 119
and the lord presides ihere as chancellor .. 97
not necessary that there should be free tenants
within the manor

4, 5
may be held at any place within the manor..4
and out of the manor, by custom

5
and even after sunset

ib.
fifteen days is the proper notice, but a shorter
time will do

ib.

494
the courts of law and equity enforce an inspec.
tion of them by persons interesied 494,

495, 533, 534
demand of inspection cannot be made by an
agent only.

495, n., 532, D.
by the new rules for uniformity of practice, a
rule for their inspection is absolute in the

first instance in all the courts of law 495
when and how they may be amended.,203, &c.
See Evidence; MANDAMUS ; COURTS OF

EQUITY; DEPOSIT.
COURTS OF EQUITY ; in a bill for surrender

of a copyhold estate held for lives, the lord
must be made a party

145, a.
will interpose, if the lord refuse to give relief as

chancellor of his own court 231, n.
a bankrupt is not a necessary party to a bill of
foreclosure

304, n.
prior incumbrancers on freehold and copyhold

property of a trader who dies intestate, ought
not to be made parties to a bill for payment
of his debts out of his freehold and copybold
estates

535, 536

COURTS OF EQUITY-- continued.
lord was left to his legal remedy in all cases,

Page 536
but a bill for discovery of waste is demurrable,

ib. n.

tance

ib.

ib. n.

cases..

COURTS OF EQUITY-continued.
will correct proceedings in the lord's court, if
against conscience

Page 66, 539
if the manor belong to the king, how to sue, 539
will not interpose as against a purchaser, after

a lapse of many years ; nor would have
decreed the lord to entertain a plaint by
remainder-man, in nature of error or false
judgment, after an intail spent for a great
length of time ..

66, 489, 539
will compel the lord to hold a court 533
will compel the acceptance of a surrender, ib.
will also enforce an application for admit-

ib.
but not unless the party can show a colourable

title, and a reasonable prospect of succeeding
at law

ib.
the power was first assumed in courts of equita-
ble jurisdiction

ib.
would have assisted an heir in discovering whe-

ther any copyholds unsurrendered to will, ib.
but seeking relief to which the party is not en-

titled, will support a general demurrer .. ib.
will order court rolls to be produced for inspec-

tion of a person claiming an interest under

them
and to be produced for inspection in a question

between lords of different manors on a bill
for discovery

534
equity has refused its aid to a steward ap-

pointed by a testamentary guardian to com-
pel a steward appointed by trustees to deliver
up court rolls
will entertain a bill for a commission to set out

estovers according to a custom..424, 425, n.
and to set out boundaries, and distinguish

copyholds from freeholds 435, n., 534
but only under special circumstances, a confu-

sion of lands not being per se a sutlicient
ground for interposition, unless occasioned
by the defendant, or those under whom he
claims ..

534
the interest of all the parties concerned must
be before the court

.. 535
the courts lean to make the parties bear the ex-
pense equally, though their interests

may

be
unequal

lessees of copyholders may be restrained in

equity from committing waste, being punish-
able in waste

536
will not relieve against a forfeiture by leasing
without licence

436, 536
or by wilful waste

536
except under very peculiar circumstances ib.
but will relieve in cases of permissive waste, or

waste by a stranger, or where the case ad-
mits of compensation

463, 536, n.
equity has relieved where the timber was cut
on one copyhold for the repairs of another,

463, 536
and directed an issue to try quo animo timber
was cut ..

ib.
and would relieve if the act were done under
a colour of right

ib.
has compelled the lord to permit a copyholder

to sue at law without forfeiture .. 536, n.
when there is a doubtful right between the

lord and tenant, equity will restrain the as-
sertion of it until the question has been tried
at law ..

536
and where by the custom the copyholders are

dispunishable of waste, will restrain the heir,
taking by way of resulting trust until a con-

tingentevent, from committing waste,536,537
and interpose in favour of a remainder.man,
and generally between parties as in freehold

426, 433, n., 437
and will relieve in all cases where the party
cannot have redress at law

537
will entertain a bill calculated to avoid a mul.
tiplicity of suits

534, n., 537
and therefore sustain a bill to establish the

right of tenants to the profits of a fair .. 537
but one tenant cannot institute a suit on a ge-
neral right

ib.
a bill of peace may be brought by or against

the lord, even though the parties have a life
interest only

ib.
equity has entertained such a bill where the

tenants opposed the lord's approvement under
the statute of Merton, and actions of trespass
had been brought against them

ib.
a decree against the lord will not bind copy-

holders not parties to the suit .. 537, n.
will interpose under all circumstances of fraud
(examples)

537, 538
by 3 & 4 Will.4, c. 27, a suit in equity limited

to the period of a right of entry, or distress

or action, when the remedy is at law 538
in the case of a concealed fraud, the twenty

..

534, n.
a disputed right must be first tried at law, ex-
cept the case require some discovery of facts,

534, 535
to sustain a bill for a commission to set out

boundaries, the plaintiff must show a clear
title to some land in possession of the defend-
ant, but the title need not appear by defend-
ant's admission

535
the court will relieve by a commission, or an
issue, as will best advance the justice of the

ib.
will not direct an issue on the same question,
after several trials at law

ib.n.
will entertain a bill to establish a general right
to tolls

535
but upon fair legal objections being raised, the

court will retain the bill, with liberty to the

plaintiff to bring an action at law
by consent of parties will refer the question of

the existence of a custom to the master .. ib.
under particular circumstances equity will

grant an injunction against act that is
forfeiture, though formerly supposed that the

years allowed begins to run from the time it
might, with reasonable diligence, have been
discovered

538, 539
the act protects a purchaser having no know-
ledge of the fraud

539, n.
although a surrender be absolute, equity will

decree a redemption on evidence of its being
designed as a security only

539
gave effect to certain moral obligations by

supplying a surrender, or relieving against
an ill presentment, or the want of present-
ment of a surrender

ib.

case ..

ib.

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estate

ib. n.

COURTS OF EQUITY-continued.
may order a trustee to surrender, though the

cestuy que trust object .. Page 539
on account of the generality and vagueness of

descriptions in court rolls, equity does not
favour objections to a title to copyholds for
want of identification with the description in
the contract for sale

539, 540
equity directs the immediate distribution of
purchase money, without regard to contin.
gent expenses; a purchaser of copyholds held
therefore not to be eutitled to have a sum
retained in court to meet a contingent fine,

540
a security may be good in equity though ex-

tinguished at law, as in the case of a bond
by a husband to his wise before marriage for

securing a sum to her if she survived him, ib.
will entertain a bill by mortgagee not in posses.

sion, and before admittance, for a decree of
foreclosure

540, 541
after the decree, the mortgagee may bring eject-
ment

ib.
whether the mortgagee, after taking possession,

could sue on the covenant or bond 541
when there is no covenant, and the equity of

redemption has not been foreclosed or re-
leased, whether the heir or executor of mort.

gagee is entitled, in equity, to the mortgaged
in a suit for foreclosure, the lord will be en-

titled to his taxed costs if required to do an
act, viz. to grant admittance, although there

may be no reply to his answer .. ib.
the rules of equity as between two or more
mortgagees

541
there must be fraud, concealment or gross neg-

ligence to postpone a prior mortgagee of the
legal estate, although he has not possession
of the title deeds

ib.
but title deeds will not be taken from a second

mortgagee who had not notice of the first
security, except on payment of the debt due
to him

541, 542
no distinction in this respect between a deposit

of title deeds of freehold property, and copies
of court roll and other evidence of title to
copy holds

542
the jurisdiction of, extends to a widow's claim
to freebench

ib.
arrears from the death of the husband decreed,

though iwelve years had elapsed before the

bill was filed ..
the courts adopted the principle of the statutes
of limitation

COURTS OF EQUITY-continued.
equily has entertained a bill for the discovery

of the best beast, as a heriot .. Page 388
but where there was no trust, would not assist

the lord who sought by a bill to establish a
custom to have a heriot from freehold tenants
on alienation or death

ib.
will not relieve against wilful waste, or a for-

feiture by leasing without licence 443, n.
contra, under special circumstances, for a for.
feiture by cutting timber

ib.
See AGREEMENT; Assets; BOUNDARY; COURT

Rolls; Deposit ; Equity or REDEMPTION;
SEQUESTRATION; SURRENDER ; SURRENDER

To Will; Trust.
CREDITORS ; surrenders are supplied in their
favour

217, 238, 239
CROWN DEBTORS; reference to 2 Vici.c. 11,

for the better protection of purchasers agaiost

judgments, crown debtors, &c. 88, n.
[The act will be found in the Appendir, p. 990.)
CROWN GRANT. See NAVIGABLE RIVERS.
CROWN LANDS. See Woods AND FORESTS.
CUI IN VITA, and Cui ante divortium, writs
of

81, 478
CURIA REGIS. See Aula REGIS.
CURTESY ; is by custom only

46, 79
the quantity and duration of estate is therefore

governed by the custom of each manor .. 79
forinerly termed the husband's dower ib. a.
when the custom attaches on taking a copyholder

to wife, it is essential that the wife should
be seized at the time of marriage

79
and when on the wife's dying seized, the dying

seized is essential, but ihe custom would not
operate unfavourably to the husband, as no
disposition could be made by the wife with-

out his concurrence
whether having issue is essential, when it is not
expressly required by the custom

80
is of a trust
essential that the husband have a seizin in law

or equity during the coverture, and he has no
title therefore if the wife has a separate inte

..
when it is of a portion only of the land, assign.

ment and entry seem to be vecessary
is not affected by the non-admittance of the
wife, who takes by descent

ib.
is not prevented by death of the heir before ad-

mittance
admittance to an estate by
the fine on admittance
an heriot is due on the death of a tenant by the

curtesy
but probably not unless the husband had been

admitted, when by the custom such admit-

tance could be compelled
See ADMITTANCE.
CUSTOM; to be supported, must be immemo-

rial, reasonable and certain
examples both ways
by custom the lord may grant waste land by

copy
the custom presumed by length of possession, 18

79, 80

ib.

rest

ib.

ib.

291

298

349

385

ib.

-22

ib. &c.

17, 19

..

542
adverse possession therefore of an equity of re-

demption for twenty years, produced the
same effect as abatement, intrusion, &c.,
with respect to legal estates

. ib.
prior to 4 & 5 Vict. c. 35, had no power to de.

cree a partition of copyholds between joint
tenants or tenants in common

543
but the power is created by the 85th sect. of

that act
have not jurisdiction to stay proceedings on a
mandamus

525, n.
nor, in strictness, any restraining power over

criminal procecutions; contra in actions of
trespass vi et armis, or on indictment at ses.
sions, under special circumstances

ib. 8.

ib. n.

.. ib.

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