Слике страница
PDF
ePub
[ocr errors]
[ocr errors]

EVIDENCE--continued.
the answers of tenants to interrogatories put to

them at an assession court, 1 Eliz., were
allowed to be read, without producing the
interrogatories, which could not be found

Page 505, 506, n.
a survey deemed inadmissible, there being no
inquisition or commission

506, n.
the presumption of the proprietory right in slips

of waste is in favour of the owner of the ad.
joining inclosure, whether freeholder, lease.
holder or copyholder; tbe lord therefore

must show some act of ownership, 506
but the evidence which applies to larger por.

tions of waste, applies also to slips commu.
nicating with them

ib.
evidence of acts of ownership by the lord upon

slips of ground in one part of a manor, may
be extended to acts on similar lands in ano.
ther part, the unity of character or ownership
being matter for the judge to determine upon,
in the consideration of the admissibility of the
evidence (Doe & Kemp)

506, 507
reference to the judgment of the Court of Ex.
chequer in Doe & Kemp

507, 508
and 10 a recent case, deciding that a lease being

a grant of all mines within a certain district,
evidence of acts of ownership in different
parts of the district was sufficient proof of

possession of the locus in quo 507, n.
proof that land had never been assessed to the

poor rates, deemed very slender evidence of
the property not being within the parish,

667, n.
the presumption made in favour of the owner

of inclosed lands adjoining to slips of waste,
is extended to lands bound by the sea shore

508
leases of minerals, &c., in other parts of the

inclosed waste, are not receivable in evidence
for the lord, unless it be first shown that the
locus in quo forms part of one entire waste,

to which the leases are applicable .. 509
payment of a dominal rent on three occasions,

after thirty years' occupation free of rent,
held to be evidence that the occupation began
by permission

ib.
evidence of shooting and appointing a game-

keeper, &c., does not assist a claim to the
right to the soil..

ib., n.
breaking down fences three days previously to

an action of ejectment, deemed sufficient
evidence of the revocation of any presumed
licence

ib.
evidence of an uninterrupted possession for

EVIDENCE-continued.

left cannot be given upon an issue of de in-
jurid

Page 510, o.
in an assize, if tenant pleaded nul tort nul dis.

seisin, he could not have given evidence of a
release after the disseisin, but of a release
before he might

ib.
a tenant in a writ of right who joined the mise

upon the mere right, could not have given in
evidence a collateral warranty, but must
have pleaded it

.. ib.
See BOUNDARY ; Commons; DiscLAIMER ;

Fine ; FORFEITURE; PRESUMPTION ; QUIT

Rent; SURVEY.
EXCHANGE ; by copyholders, must be effected

by surrendering to each other, (reference to
a case of joint-tenants]

123
reference to 4 & 5 Will. 4, c. 30, “ 10 facilitate

the exchange of lands lying in common
fields."

ib. n., App. 1070
may be made of parsonage and glebe for copy-
holds by 55 Geo. 3, c. 147.. 201, 202, App.

974
EXCOMMUNICATE; persons excommunicated

may receive a grant of copybolds .. 108
EXECUTOR AND ADMINISTRATOR ; are

authorized by 3 & 4 Will. 4, c. 42, to dis-
train for arrears of rent due to their testator
or intestate

88, n.
of grantee pur autre vie are entitled to copy-

holds by the statute of wills, 1 Vict. c. 26,
to be distributed as assets, and so also when
they take as special occupants .. 52, 89,

313, D., 351, n.
must be admitted to a term of years in cops.
holds

.. 300
and pay a fine

349
See ADMITTANCE; Devise; POWER.
EXECUTORY DEVISE; a fee upon a fee may

be limited of copyholds as well as freeholds,
by devise

.. 170, &c.
EXECUTORY INTERESTS; may be disposed
of by deed under 8 & 9 Vict. c. 106, s. 6

401, n., App. 1130
EXECUTORY TRUSTS. See Trust ESTATES;

TRUSTS.

[blocks in formation]
[ocr errors]

.. 342

except perhaps by custom
but a lease with licence is extendible, 48, D.,

461
See ELEGIT.

EXTINGUISHMENT; the term is more imme.

diately applicable to a transfer of the copy.
bold interest to the lord

... 544
a conveyance to the lord by any form, or any

twenty years, without any acknowledgment,
will bar the lord's right

ib.
payment of a small acknowledgment, even after

iwenty years, is evidence that the occupation
was permissive

ib.
possession of a cottage is not necessarily ad-

verse, but may be presumed to have com-
menced with the lord's permission ib.
when the plaintiff makes title in the lord of a

manor by forfeiture, he must give evidence
that his lessor is lord, and that ihe defendant
is a copyholder, and commited a forfeiture

510
evidence of there being sufficiency of common

act indicatory of an intention to relinquish
the tenancy, is an extinguishment of the
copyhold interest

ib.
a release to the grantee of the freehold is equally
an extinguishment

13, D., 544
but the severance by the lord's grant is not in
itself an extinguishment ..

544, 0.

EXTINGUISHMENT-continued.
the extinguishment is for the benefit of a mort.

gagee or devisee of the manor .. Page 544
and it had been considered that it was for the

benefit of a remainder-man, and of a person

entitled under an executory devise over.. ib.
but in the case of Bingham & Woodgate, the

Master of the Rolls held that the union of
the fee of a customary freehold with the
estate for life of the lord of the manor, was a
suspension only of the seigniory during the
lord's life, the customary fee descending to
his heir, and that an extinguishment takes
place only when the two estates have the
same duration

545
whether a conveyance to a lord by disseisin
is an extinguishment

EXTINGUISHMENT-continued.

as an extinguishment of the portion of inte-
rest only, and the latter as an absolute ex.
tinguishment

Page 548
if the conveyance of the freehold interest were

on condition, the copyhold interest would not
revive on entry for condition broken, 98,

548, n.
the lord pro tempore cannot prejudice a re-

maioder-man or reversioner 98, 548
acceptance of the office of bailiff is not an ex-

tinguishment of the copyhold interest, 548, n.
nor is a lease for years of the manor merged

by acceptance of the stewardship for life, ib.
the law of merger applies to copyholds, but is

quite distinct from that of extinguishment;
therefore a lease by copybolder in remainder
will not be drowned by the surrender of the

life interest to the remainder-man 549
and if a remainder-man grant a rent charge,

and then accept a surrender of the life inte-

rest, the rent shall commence presently, 550
a surrender of the lease of a manor does not

affect an interest derived under the title of
the lease

549
reference to the case of Burlon v. Barclay and

Perkins, on the doctrine of merger and sus.
pension

547, 0.
acceptance by a copyholder of a conveyance,

or lease for years, of the manor, or his be-
coming entitled to the manor by descent,
would be an extinguishment of the copyhold
interest, (but not so as to prevent a re.grant)

547, 548
semble, that a lease of copyholds would merge
by an assignment of it to the lessor

550
a right, or a power over copyholds, coupled

with an interesi, may be extinguished by a
deed of release, and, in the case of a feme co-
vert, by surrender

196 & n.
See ExFRANCHISEMENT ; RELEASE.

..

[ocr errors]

F.

[ocr errors]

FAIR, appendant, may by custom be granted by
copy

104
FAIRS, MARKETS, TOLLS, &c.; are part

ib.
the copyhold interest is extinguished by escheat
or forfeiture

ib.
so also the customs and privileges annexed 10
it

.. ib.
semble that the rule extends to copyholds

where the tenure is in nuture of gavelkind
or borough-English, though the unity of pos-
session does not destroy the custom of gavel.

kind or borough-English lands, 32, 545 & n.
to be recollected that so long as the demisable

quality subsists, the land may be re-granted
again by copy

15, 98, 545
and the rule applies to an escheat 16, 545
and to commonable rights

545
but the copyhold interest may be suspended

only by an union with the freehold, as if the
copyholder become seized of the manor, or
of the freehold interest of his own copy hold,

in right of another, or vice versa 546
and by the marriage of a copy holder with a
feme seignioress, the copyhold interest will be

suspended during the coverture only ib.
cases of extinguishment by the wife's accept-
ance of a freehold interest

ib.
whether the lord of a manor on whom a copy.

hold descends, is tributory to the lessee of
the manor; and, if an extinguishment, whe-
ther the lessee would not have relief in
equity

546, 547
the annexation of the freehold to the copyhold

is also an extinguishment, as by the accept-
ance from the lord of a lease for years of the
copyhold

547
or a conveyance or lease of the manor

ib., 551, n.
even if the conveyance were in joint-tenancy,

or of the reversion expectant on a lease for
years

547 & n.
or by descent of the major to a copy holder, 547
whether a descent of the manor to an upad.

mitted mortgagee of a copyhold would ope.
rate as an extinguishment of the copyhold
tenure

549
the acceptance of a lease of the copyhold would

be an absolute extinguishment 547, 548
but in the other instances the lord might re-
grant by copy

548
an extinguishment is also produced by the

copyholder's joining with the lord in a feoff-
ment of the manor

ib.
the law distinguishes between a conveyance of

a portion of the copyhold interest to the lord,
and of a portion of the freehold interest to
the tenant; the former being held to operate.

of the manorial rights excluded from the
operation of 4 & 5 Vict. c. 35, by the 82 s.,

unless expressly commuted 656, n.
are annexed to many manors

656
may be claimed by grant or prescription ib,
the grant is usually preceded by a writ of ad
quod damnum

656, 657
even then a grant which creates a nuisance
may be repealed, and how

657
and an action lies by a private owner of a
market who is injured

ib., D.
an uninterrupted user even for twenty years
creates a prima facie right

657
but is no protection against proceedings for an
usurpation

ib,
assise of nuisance lay, when a fair or market
was set up without patent

ib., n
encouraging a market is at most a misdemea-

nour and no usurpation of franchise, there.

fore quo warranto does not lie
whether an information in nature of quo war-

ranto for an usurpation upon the crown can

ib.

[blocks in formation]

tance

FAIRS, &c.- continued

be granted on the application of a private
person

Page 657, n.
the remedies given to the grantee or owner

against a person erecting a stall on his own
ground near to the market, or persons selling
in private houses

657
a custom to erect booths, &c., on the waste
during fairs, is good

ib.
long uninterrupted usage will be a bar to an
action

658
whether the grantee of a newly created market

can maintain an action against a person sel-

ling marketable articles in bis own shop ib.
a fair or market, under a general grant, may be
held at any convenient place

ib.
and when limited to a particular vill, may be
removed to any part of it

ib.
and after notice, trespass lies for going on the
soil in the old market place

ib.
a court of piepoudre is incident to the grant of
a fair or market

ib.
so also the right to appoint a clerk, with rea-
sonable fees of office

ib.
the court of piepoudre is a court of record ib., n.
the nature of its jurisdiction

ih.
tolls are not necessarily incident to a fair or
market

659
tenants in ancient demesne have a qualified

exemption from toll .. 582, 583, 657, n.
when the toll granted is unreasonable, it is a
free fair or market, and the grant of toll void

659
particular words in the grant of a fair held not

to signify tolls,” being simply a grant;-
aliter if it had been a charter of confirmation,
supported by usage

ib., n.
the exaction of an outrageous toll entitles the
king to seize the franchise

659
toll traverse may be claimed by prescription ;

so also toll thorough for reasonable cause;
(Brett v. Beales)

ib.
a special consideration not necessary to support
a claim to toll traverse

ib., n.
what evidence is requisite to support the claim,

ib.
persons interested may from necessity be com-
petent witnesses

ib.
reference to the distinction made between toll
traverse and toll thorough

ib.
when equity will interfere to enforce the lord's
right to toll

658, n.
although toll may not be demandable, the

owner may claim stallage and piccage 659
the remedy for this is trespass

ib.
stallage and piccage are derived from the right
to the soil

ib., n.
a table in an open market is considered as a
stall

FEALTY-continued.

the lord, and every new purchase or descent,
if required, and so differs from homage,

Page 361, n.
See Court BARON; SERVICES.
FEES; are established by custom

392
must be reasonable when no evidence of usage

393
prescription for a lord to have a fee for holding
a general court is bad

ib., n.
contra for a special court

ib.
by custom the steward may have the sole right

of preparing surrenders 24, 25, 393, n.
an excess insisted upon is recoverable in an
action on the case

393
perhaps an indictment would lie for extortion, ib.
distinct fees for each distinct copyhold included

in one copy cannot be charged, except by
usage (Everest & Glyn)

394
but the steward can recover for his additional
trouble on a quantum meruit

ib.
a surrender to uses may operate as a severance
of particular lands

393, D.
the case of Searle & Mursh appears to have

been decided on evidence of usage, 393, 394
the rule as to multiplication of fees is confined
to those payable for surrender and admit-

394
distinct fees were not chargeable on suffering a
recovery of separate copyholds by one plaint

ib.
each undivided share is a distinct copyhold for

the steward's benefit, when separate fees are
payable by custom for each distinct tede.

ib.
the case of Aitree & Scutt, establishing this
principle

ment

ib,
the party entitled to stallage may wave the
tort, and bring assumpsit

ib.
the franchise may be forfeited by non-user and
mis-user

659, 660
and the patent is to be repealed by writ of
scire facias

660
FALSE JUDGMENT; does not lie of copy-

66, 473, n., 488

394, 395
but the right is not generally insisted upon, 395
one set of fees only due on admission in copar-

cenary, unless the coparceners elect to be
admitted separately

ib.
the steward may refuse admittance until his
fees are paid

284, n., App. 944
FEE SIMPLE CONDITIONAL; how distin-
guishable from fee-tail

55
is converted into an absolute fee by merger in
the possibility of reverter

ib., 1.
is created by a surrender to a man and the

heirs of his body, except by custom 56
for what purposes the condition is performed

by having issue
See BANKRUPT.
FEE TAIL. See EstATE TAIL.
FEE UPON A FEE (tit. Surrender); 166, &c.
FEES. See FINE; STEWARD.
FELO DE SE, not specified among the manorial

rights excluded from the operation of 4 & 5
Vict. c. 35, by the 82 s., unless expressly
commuted, but embraced by the general
words of that section

638, n.
what constitutes the offence 638 & n.
his goods and chattels do not pass by a grant
of bona et catalla felonum

638
nor will debts pass by a grant of the goods and
chattels of felons, or felons of themselves,

ib., o.

55, 56

holds,

FEALTY; is to be iterated on every change of

ib.

[ocr errors]

FELO DE SE-continued.

contra, as to ready money Page 638, n.
when a grant of omnia bona et catalla will pass

specialties and debts, and when not
no person under the age of discretion, or non
compos, can be felo de se

639
the offence is saved by not dying within a year
and a day after the act

ib.
chattels both real and personal are forfeited by
the offence

ib.
what joint chattels are and are not forfeited by it

ib, & n.
the chattels are not forfeited until the finding
by the coroner's inquisition

640
but the inquisition has relation to the act, 639
the act is not a corruption of blood, therefore
inheritances are not forfeited

ib.
nor a wife barred of dower

ib.
reference to the act of parliament by which

corruption of blood is taken away, except in
treason and murder

ib., n.
the forfeiture is to to the king, or his grantee, 639
and a title cannot be made to it by prescription

ib.
the crown usually authorizes a grant of admi.

nistration to a creditor of the deceased, ib., n.
the effect of a grant of the chattels of felons

of themselves, as to chattels claimed under a
franchise forfeited by attainder of treason
after the grant

ib,
jeference to 4 & 5 W. & M. c. 22, preventing

the necessity of pleading grants of felons'
goods, deodands, &c., to the coroner's inqui-
sition, and of inrolling the whole of the

639, 640, n.
since which coroners have discontinued return-

ing their inquisitions into B. R... 640, n.
the coroner's inquisition should find whether

the party had any chattels, and specify the
same; but the omission may be supplied by
a melius inquirendum

ib.
what must be pleaded by a grantee, if trespass

be brought for seizure, after such finding, ib.
the goods of a felo de se are not liable for his
debts in the hands of the queen

640
nor in the hands of a grantee, except to satisfy

crown debts
the finding by coroner's inquisition must be on

FELO DE SE-continued.

action of debt; and a scire facias for debts
of record

Page 642
how such action of debt is to be brought, and
what must be pleaded

ib., n.
the forfeiture is saved by pardon before inquisi-
tion is found

643
but not by a general pardon after inquisition, ib.
which, however, may operate as a release of a
debt

ib.
FEME COVERT; the husband must concur in

any disposition of copyholds of which she is
tenant in tail, [3 & 4 Will. 4, c. 74, s. 40]

57, n.
was authorized by 1 Will.

4, c. 65, (repealing
former statutes,) to suffer a recovery by at-
torney, (but see 3 & 4 Will. 4, c. 74)

66, 67 & n.
may be a grantee of copyholds

107
but cannot take under an immediate grant from
her husband

ib.
her purchase is good until the husband disagree

108
under an agreement by the husband before
marriage, may devise a good title in equity

132, 267
but her marriage is a revocation in law of a
previous will

128, 129, 267
and a suspension of any previous surrender

128, 215, 267
by s. 77 of 3 & 4 Will. 4, c. 74, she may re-
lease or extinguish a mere right or power,
by deed, to be acknowledged as mentioned
in s. 79, and the husband concurring

129, n., App. 748
what powers may be executed by her 129, 130
semble, that she may exercise a power of nomi-

nation, or a power appendant, or in gross,
given to her whilst sole

129
a power given to her, notwithstanding her co-
verture, does not disable her from making a
will after she becomes sole

130
will of, is not made valid by 1 Vict. c. 26,
except it would have been so prior to that

233, n.
semble, that she is bound by a custom to seize

grant

[ocr errors]
[ocr errors]

act

view of the body
the coroner acts both judicially and ministe-
rially

ib. and n.
his duty; and what is requisite to be shown by

the inquisition 640, 641 and n., 643
if full in substance, the coroner may be served

with a rule to amend a defect in form 643
whether a coroner can act by deputy 641
he may be committed for a false return, 642, n.
is not obliged to return the depositions unless

under special circumstances 641, n.
what presentment is to be made when the body
cannot be found

641
when and how the coroner's inquisition may

be traversed, or a melius inquirendum be
obtained

641, 612
or the inquisition set aside

642, n.
if the chattels are withheld, the queen may

proceed by information in the Exchequer in
nature of trover, and for debts by informa-
tion there, or in B. R.

642
a grantee of the goods may bring trover, and

as forfeited after proclamations 288 and n.
whether entitled by descent, or surrender to

will, or otherwise, she may claim to be ad-
mitted under the act of 1 Will. 4, c. 55,

(repealing 9 Geo. 1, c. 29,) 289, App. 1015
the act gives the lord a remedy for his fine

341, App. 1016
whether she could have conveyed a trust or

equitable interest in copyholds by a fine in
the Court of Common Pleas prior to the act
of 3 & 4 Will. 4, c. 74, abolisbing fines

69, 70
May, under 8 & 9 Vict. c. 106, s. 7, by deed

disclaim an estate or interest in heredita-
ments of any tenure

App. 1130
See ADMITTANCE; BARON AND FEME; FINE;
FORFEITURE ; FREEBENCH ;

Heriots ;
Power; PROTECTOR; SERVICES; Suro

ib.

i

ib.

RENDER.

FEOFFMENT OF COPYHOLDS, with livery

of seizin was a forfeiture, but not without
livery

434, 446
reference to 8 & 9 Vict. c. 106, s. 4 g. 434, n.
FINE-continued.

FEUDAL SYSTEM; may be traced back to

the Saxon polity Page 579, 580, n.
but was not fully established till about the

middle of the reign of William the Con-
queror

ib., 609
the heriot is a badge of it

369
See Court BARON (s. 2).
FINES, SUR-CONUZANCE, &c.; operated as

a bar both to the lord and copyholder when
levied by a disseisor

70, 81
but a fine levied by a copy holder, or by collu-
sion, was void against the lord, 70, 71, 82,

434, 435
in the manor court would not have barred an
estate tail, except by custom

170
but would perhaps have concluded a copy-
holder's interest

ib.
abolished by 3 & 4 Wiui. , c. 74, Äpp. 1036
See Feme CoverT; FORFEITURE.

FINE; the payment of fines and fees by devisees
regulated by the 4th section of 1 Vict. c. 26

233, n.
reference to the provisions of 4 & 5 Vict. c. 35,

as to the terms of commutation of arbitrary
admission fines, and of quit rents, heriots,
and the lord's proprietary interest in timber,
&c. &c.

315, 316, n.
is due to the lord on the act of admittance, 315
but is sometimes payable on the change of the
lord

316
the case of The Duke of Somerset v. France, ib.
when payable on the change of the lord, the

change must be by the act of God 317
the heir might keep the lord out of his fine by

delaying admittance, but on the other hand
the lord, on seizure quousque, would not be

bound to account for the rents 287, 288
by the special custom of some manors, no fine

is payable by the customary heir 316
is payable by the purchaser

317
the nonpayment is no breach of covenant to

surrender at the costs of the vendor ib.
in some manors it is certain, in others un-
certain

ib.
must be reasonable, and not exceed two years'
value, deducting quit rents 317, 335, 336,

338
allusion by C. B. Macdonald to the establish-
ment of the rule as 10 two years' value

318, n.
whether a local drainage, or fen rate, ought to
be deducted

344, n.
a full fine seldom exacted

318
to what case the rule as to two years' value
does and does not extend

ib. 319
ancient authorities on the subject 318 & n.
is relaxed on the admittance of joint-tenants,

320
from whom, however, one fine only is due, 321
which under the rule settled by the cases of

Taylor & Pembroke, and Wilson & Hoare,
can never amount to four years' improved
value

ib. & n.
the case of Wilson & Hoare

321, &c.
by custom, persons already customary tenants

pay a small fine only on admission to other
copyholds

319
the purchase of a small estate to avoid a fine by

admission to a larger estate (under a special
custom), is not a fraud on the lord

Page 319, 320
the meaning of the word " sesqui” 320, n.
the more usual custom as to fines on grants of
copyholds for lives

320
fully settled by the case of Wilson & Hoare,

that on an admission of joint-lepants, the
fine must be assessed on the principle of two
years' value in respect of the surrenderee or
devisee first named in the admission, half
that amount in respect of the second, half
the last sum in respect of the third, and so
halving downwards as to any additional per.
sops admitted

334
a full report of the proceedings in Wilson &

Hoare, in the Exchequer Chamber, and after-

wards in the Queen's Bench 326, &c.
Lord Avinger's judgment in Sheppard & Wood.

ford, in the Court of Exchequer, which re-
cognized the above principle of assessment

in the case of joint-tepants 295, 296, 2.
and established that a person surrendering to

the use of himself and others must be re-
admitted, and fine

296, D.
suggestion that under peculiar circumstances, a

court of equity would interpose to deprive the

lord of a fine on such re-admission 322, 2.
the lord must be satisfied with a fine from an

appointee, and cannot compel the admission
of the appoinlor, although he has both a
power and an interest, [The King v. The

Lord of the Manor of Oundle] 175, n.
the case of Grant & Astle on the subject of

arbitrary fines, and deciding that the lord
is not bound to allow any sum for land tax

335
and that he must assess a separate fine for

each separate tenement, and can only re-
cover the sum assessed and declared upon,

338 to 340
the certainty of a fine must be decided by the
court rolls

340
and will be disproved by a variation in a long
series of ancient court rolls

ib.
a few contradictory instances will not be evi.
dence either way

ib.
may be relatively certain

ib.
the heir, by waiving admittance, cannot defeat
the lord of his fine, for he may seize quousque

341
in case of infancy, or coverture, or lunacy, the

lord may seize quousque, or adopt the pro-

visions of the aci of l 'Will. 4, c. 65 .. ib.
the heir not entitled to surrender, except on

satisfying the lord the customary fine .. ib.
is payable by the infant and not by the guar.
dian

ib.
is not payable by a surrenderee, if he dispense

with admission, except by custom ib.
but in case of the deaih of a surrenderor, his

heir must be admitted and pay a fine .. ib.
for this reason, semble, that a single fine only is

payable by the heir of a surrenderee .. ib.
but if the heir of a copyholder die before ad-

mission, the lord gets a double fine .. 342
must be paid upon admittance under a forfeited C

condition, and on the re-admission of the
surrenderor

ib.

« ПретходнаНастави »