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Page 665

ib.. D.

FREEBENCH-continued.
right to freebench.. Page 77, 78, 474-477,

485, 542
plaint of, is excepted in the abolition clause of

the statute of limitations, 3 & 4 Will. 4, c.

27..78, 290, nQ,473, nQ, App.743, n., 751, n.
reference to the custom of the manor of Chel-

tenham, by which a widow's right to admis-
sion, and to bring ejectment, is not defeated

by the alienation of the husband alone.. 78
held by the Court of Queen's Bench in Doe &

Gwinnell, that dower attached according 10
the value of the property at the husband's
death : that it was not necessary for the
husband's death to be presented by the next
homage, and the dower then assigned by
them, for that the homage were placed by the
custom in the office of Sheriff: that the
dower was well assigned by awarding a third
part of the property of each owner, and by

dividing the houses into chambers
See A?mITTANCE; COURTS OF EQUITY; FINE;

HERIOT.

78, n.

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FREE FISHERY-continued.
is held by grant, and considered as a royal

franchise
the right ought to be at least as old as the
reign of Hen. 2

ib.
and does not admit of presumption
the term extended by some books to public

rivers, though not arms of the sea ib.
fishing with stake nets on the sea coast, near

the mouth of a river, not prohibited by the
Scotch law

ib.
whether persons having a right to fish with

nets and cobles can be restrained from fish.
ing with stake nets

ib.
there cannot be a prescriptive right to fish in

the sea, as annexed to certain tenements, ib.
the import of free fishery, several fishery, and

common of piscary, and their several distine-
tions

665, 666
common of piscary may be prescribed for as
appendant to land

665, a.
whether ownership of the soil is necessarily
included in a several fishery

666
fishery in a navigable river described "separalem

piscariam," is an incorporeal and not a ter•
ritorial hereditament

ib.
but when the terms of the grant are unknown,

the grantee is presumed to be owner of the
soil

ib.
particular privileges are inconsistent with a
mere incorporeal fishery

ib.
which is not rateable under 43 Eliz. ib., D.
the case of Scratton & Brown, showing that the

courts incline to the construction of a terri.
torial right

666
and confirming The King & Lord Yarborougk,

that lands imperceptibly added 10 demesnes

by alluvion belong io the lord .. ib., n.
every subject may fish in navigable rivers, 667
the king's prerogative right being confined to
whale and sturgeon

ib.
the rule extends to arms of the sea, when no

exclusive right exists prescriptively,
a subject may have a prescriptive right to a

several fishery in an arm of the sea
a several fishery in a navigable river may pass

as appurtenant to a manor
each lord has a moiety of the fishery, when a

river, not navigable, is the boundary of two
when no manorial franchise exists, the right of

fishery in such rivers is in the proprietors of

the adjoining lands
and generally extends ad filum medium aqua, ib.
the franchise of free fishery may be lost by non-

user or abuser
but the misuser of one of several franchises is

not a forfeiture of the whole 668, 11.
unless when one is wholly dependent on the

others
See Navigable Rivers; SEA Spore.
FREE WARREN ; is one of the manorial rights
excluded from the operation of 4 & 5 Vict

.
c.35, by the 82d sect., unless expressly como

muted
can only be claimed by grant or prescription,
may exist in a forest by prescription, : 662
bui there must be an allowance of it in Eyre,

ib.

ib.

FREEBURGH. See LEET

.. 675
FREEMAN, implies a freeholder, and extends
to sole corporations

621, n.
FREE CHASE OR PARK; is one of the ma-

norial rights excluded from the operation of
4 & 5 Vict. c. 35, by the 82nd sect., unless
expressly commuted

660, n.
is either by a grant of lands so denominated, or
by a licence to convert grounds to that use,

660
being a collateral inheritance, a person may

have a free chase as belonging to his manor
in his own woods

ib., n.
the chase remains after purchase of grounds
within it..

ib.
free chases or parks considered as smaller
forests, but are not subject to the forest laws,

660
but there are instances of grants of royal forests
to a subject

ib., n.
can only be claimed by grant or prescription,

660
a determination of vert, venison, or inclosure,
amounts to a disparkment

ib., n.
what are denominated beasts of chase or park,

661, n.
commonable rights may exist as well in forests
as in chases or parks

ib,

ib.

manors

1

ib.

ib., 668

ib,

661, 1).

661

660, n.
reference to expositions of the forests laws, 660
the several courts by which their arbitrary cha-
racter was maintained

ib., n.
many disafforestments by the charter of 9

Hen. 3, and by that act and subsequent
statutes, and also by long disuser, a great
relaxation effected of the severities of the
forest laws

661, n.
the franchise may be lost by non-user or abuser,

667, 668
FREE FISHERY, &c.; is one of the manorial

rights excluded from the operation of 4 & 5
Vict. c. 35, by the 82 sect., unless expressly
commuted

664, n.
a free fishery is generally considered as an

exclusive right of taking fish in an arm of
the sea

664, 665

ib., o.

1

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..

FREE WARREN---continued.
in trespass against a gamekeeper, he must show

the grant of free warren Puge 661, n.
the grant gives a right of property in beasts and
fowls of warren

661
what are so denominated

ib., n.
the franchise implies an exclusive power of
killing game

662
but it is not necessarily an exclusive right, for

by prescription there inay be a right to fowl
in the warren of another

ib., n.
the right of property continues only so long as
the animals continue within the franchise,

664
but is not changed by their being hunted into

the grounds of another person
an alienation of the lands is an extinguishment
of the franchise

661, 664, n.
but it may be reserved

661
a warren appendant 10 a manor will not pass

by the general word "appurtenances”.. 662
nor will the right pass de novo merely by the

general words of " free warren, &c.” (Carr
v. Smith)

661, n.
the effect of the words "and to have free war-

ren in all demesne lands in the manor, &c."
(Att. Gen. v. Parsons)

662, n.
any right of property in game ratione soli is
clearly subservient to the franchise of free

662 to 664
a right to appoint a warrener is incident to the
grant

664, n.
the franchise may be lost by non-user or abuser,

667, 668
See GAME; DEMESNES.
FRILAZIN. See Leet.

42

warren

GAME-continued.

lief in equity, having no other claim than to
a proportion of the profits derived from letting
the privilege

.. Page 664, n.
the right will be presumed as against a stranger,

664, n.
but it is possessory only

ib.
GAVELKIND; the law takes notice of the cus-

tom of gavelkind and borough-English, 26
by 79 sect. of 4 & 5 Vict. c. 35, the customary

descent, freebench, and curtesy, abolished as
to land of that tenure included in any com-
mutation agreement, but such land to be
held as copyhold, and conveyed as before,
and the provision as to freebench and cur.

tesy not to apply in the cases stated, 26, 27,n.
by 80 sect., the custom as it prevails in Kent
not to be affected

27, n.
all lands in England said to be of the nature of

gavelkind before the Conquest
lands of that tenure are within the rule that
equity will in some cases supply a surrender,

FRUITS OF TENURE. See Escueat; Es.

TRAYS; DEODANDS, &c.

FUTURE INTERESTS; may be devised under

1 Vict. c. 26, s. 3, and disposed of by deed
under 8 & 9 Vict. c. 106, s. 6

G.

GAME ; whether the sole right of property in
game is in the king

662, 663, n.
whether lords of manors have any rights founded
on the prerogative title

663, n.
or any right of sporting under the operation of
the game laws

ib.
their powers over game extended by 1 & 2
W. 4, c. 32

220
a younger child taking by descent by the cus-

tom of gavelkind or borough-English, is not
compellable to bring a copyhold into hotchpot
under the statute of distributions

44
lands are forfeited for high treason, but do not
escheat for felony

637
nor is the king entitled to year and day waste,

ib,
See ADMITTANCE; DESCENT; Escueat.
GLEBE. See EXCHANGES.
GRAND SERJEANTY, tenure of

611, n.
GRANT; grantee in possession may enter with
out a formal admittance

96
grantee for life in reversion may enter and bring

ejectment without admittance, on determina-
tion of prior estate

ib.
distinguishable from admittance

ib.
cannot be made for a longer term in the tenancy

than the lord has in the seigniory 97, 98
the lord cannot regrant by copy after executing

a common law assurance, or if the land be
extended, or assigned to a wife in a writ of
dower : but if kept in hand, or let at will, he
or his heirs, &c., may regrant, and the grantee
will hold discharged of the extent or dower,

14, 15, 98
but a lease by the king will not prevent a re-
grant

15, n., 198
an exception of the court baron in the grant of

a manor is void, but the rule does not apply
to a grant by the king

98, n.
an exception of the courts and perquisites is
bad as to the courts

ib.
a grant by copy for the lives of others succes.

sively does not give an interest to the cestui
que vies, unless by custom

99
a grant to father and son is good if he has one

son only, but is void for uncertainty if he
have more than one

ib.
it is sufficient to create an estate, if the person

intended to take is named in the habendum
of the copy, though not named in the grant,

ib.
x x 2

567, n.,

ib.
reference to 13 sect. of 1 & 2 Will. 4, c. 32,

authorizing lords of manors to appoint game.
keepers for preserving or killing game for
their use, and to seize dogs, nets, &c., used
by uncertificated persons for taking or killing
game

ib.
rights may be lost by non-user 663, n.
by what acts they may be extinguished, and

the effect of such extinguishment .. 664, n.
whether a right of property in game is vested
in the owner of the land ratione soli 662,

&c., 664, n.
even if the right to sport over a manor were

established, a cestui que trust is without re-

Page 99

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GUARDIAN-continued.
in socage, may acquire a settlement by resi-
dence on the estate

Page 399, n.
semble, that the father can appoint a guardian
under the statute of Charles the second

83, 397
when the office ceases

397
the lord may seize quousque, if neither the in-

fant nor his guardian appear after three pro-

clamations, or personal summons ib.
or appoint a guardian for the purpose of ad-

mittance and recovery of the fine under 1
Will. 4, c. 65, (repealing 9 Geo. 1, c. 29)

53, 397, 398
suit of court is to be performed by the infant,
not by the guardian

398
but the infant is excused the services till four.

ib.
neither the infant nor guardian liable to do
fealty

ib.
an infant is not affected by the acts of the
guardian

ib.
how the office may be forfeited

.. ib.
the duties and powers of the guardian ib., 399
the guardian is accountable to the infant in

like manner as a socage guardian, excepe
under a special custom

398
See ADMITTANCE ; SETTLEMENI.
HALLMOTE COURTS; SHIRE HALL, &c.
See LEET

678, 0., ib.

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GRANT-continued.
where the custom authorizes a grant in fee, any

less estate may be created
under a custom to grant for three lives, a grant

for two, or for one life only is good ib.
so under a custom to grant for life, a grant may
be made durante viduitate

ib.
and under a custom to grant to three, habendum

to them successively sicut nominantur, and
not aliter, a grant to A, and his assigns for
his own life and the lives of two others is
good

ib.
under a custom to grant in fee or for life solum-

modo, a grant may be made to A. for life,
remainder to B. and the heirs of his body

ib.
the effect, by custom, of the words " sequels in

"right,”” him and his,” &c. ib., 100, 148
sometimes grants are made in fee and for life in
the same manor

100
frequently, although the grant be to several,

the first person named takes for life, and so
every one in succession

149
is one of the acts which might have been done

without the form of a court, and therefore
good, though made at a court held out of

103
a legal interest held to have been acquired by

the mere entry of the grant on the court rolls

out of court
and although no court holden subsequently,
[sed quere]

ib.
of copyhold land, may by s. 87 of 4 & 5 Vict.

c. 35, be made by the lord or steward out of
court, and either in or out of the manor

102, n.
the steward cannot make voluntary grants, ex-

cept by special authority .. 114, 458, 546
what things may be granted by copy

104
what persons are incapacitated to take as
grantee3

107, &c.
See Lord of the Manor ; LICENCES TO DE-

MISE, &c.; Waste Lands.

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manor

ib., n.

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GUARDIAN ; cannot be appointed by the lord
as of common right

53
but by custom the lord may appoint a guardian
to an infant

ib., 397
or give the custody to his bailiff

53
and the bailiff need not be admilled ib.
and by custom the lord may assign one to

take the profits without account during non-
age

ib.
when no special custom exists, the wardship
belongs to the socage guardian

397
which means the next of kin to whom the

e copy•
hold cannot descend

ib.
until the intant is fourteen, the courts should

be held and grants and admittances made in
the name of ihe socage guardian

. 91, n.,

App. 755, n.
whether the father is socage guardian since 3
& 4 Will. 4, c. 106

91, n.
guardianship in socage is superseded if the

father exercise his testamentary power under
12 Car. 2, c. 24, by which he may appoint
the guardianship to continue till twenty-one,
or for any less time

App. 756, n.
effect of the marriage of a feme guardian in
socage

91, n.

275

1

HEIR; a copyholder could not have limited an

estate to his right heirs as purchasers ; so the
heir took by descent, and not by purchase,

when the two rights met .. 43, 44, 143, 276
and equally so when there is a limitation in
the same instrument to the ancestor for life

30
the rule extended equally to a devise to the

heir, with an executory devise over, and 10

a devise from the heir upon a contingency
and to a devise to the heir charged with debts

(but now as to the above rule see 3 & 4

Will. 4, c. 106, s. 3, App. 1068).44, 276
of a purchaser who has taken a surrender, may

claim to be admitted as by descent, but
must give effect to any devise, or other dis-

position, by the ancestor of the equitable
not bound to claim admittance until present-

ment of the ancestor's death and proclama.
tion, or personal summons to appear ata
court

287

284

estate

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HEIR-continued.
when an heir beyond sea is bound by a custom

to seize as for a forfeiture after proclama-
tions, and when not

Page 288
is tenant to many purposes before admittance

126, 140, 290, 311
he way enter, and maintain trespass, and bring

ejectment before admittance 290, 311
and even surrender on payment of the lord's
fine

290
and perhaps take a surrender

126
and might have devised before admittance
before 1 Vict. c. 26 ..

266
but he is not entitled, before admittance, to be

sworn on the homage, por could he have
maiotained a plaint in the nature of an assize

290
may forfeit before admittance

140
is ter-lenant against the lord refusing admit-

290, 291
after admittance the heir may have trespass
against the lord

290
though his admittance is not necessary, except

in respect of the lord's fine, yet he cannot
defeat the lord's right by waiving admit.
tance

341
his heir may enter should he die before ad-
mittance

291
such death will not prevent dower or curtesy, ib.
and after entry by the heir, there shall be a
possessio fratris

ib.
how compellable to give effect to the ancestor's
intention

294
admittance of, is not necessary when by the

lord's act a court cannot be held 314
lakes by way of resulting trust on a surrender or

devise for partial purposes of conversion, 413
of a trustee has no equity against the lord upon
the death of a cestuy que trust without heirs

408
See ADMITTANCE ; Descent; Devise; En.

CROACHMENT; EVIDENCE; Five; For-
FEITURE; FREEBENCH; MORTGAGE; Trus.

HERIOTS-continued.
custom, the choice then being in him

Page 371
the lord on seizure may avow the taking as bis

own beast; and by seizing reduces ibat to
his possession wherein he had a property at
the death of the tenant

ib.
the seizure may be out of the manor

372
what must be set forth in pleadings ib.
when the lord must prescribe for it ib.
is attendant on the reversion or seigniory .. ib.
is said to be due on death of tenant in fee only,

but this is doubtful; and clearly a heriot
may be reserved on a particular estate .. ib.
whether an heriot by reservation in deed (or

suit heriot) is distinguishable from heriot
service

372, 373
a clear distinction in the remedy between
ancient and modern grants

373
a reservation of a heriot by deed is construed

strictly, and therefore would not be payable
by an assignee, unless named

ib.
and separate distresses would be requisite under
each reservation

ib.
whether the act of distraining is not an election

by the lessor, under a disjunctive reservation
whether the heriot service shall be multipled

373, 374
and whether due on deata of particular tenant,

when the whole fee is parled with .. 374
again, whether any distinction when the par-
ticular tenant takes by act of law, as in
curtesy and dower, and when he takes by
the act of the party, as under a grant for
life, &c.

ib,

tance

ib,

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TEES.

HERBAGE; may be granted by copy, 104, 158

one person may have the prima tonsura as
copyhold, and another the soil as freehold

158, n.
HERIOTS; the extinction of, was one of the ob-

jects of the late commutation and enfran.
chisement act

369, n.
semble, that the act embraces heriots payable
in respect of freeholds

ib.
their origin

369, 370
different customs established in different manors

370
Heriot Service, is by reservation on feudal do-
pation

ib.
iberefore it lies in render, and the remedy is by
distress

ib.
which distress may be of the goods of a stranger

ib.
the distress is within 7 Hen. 8, c. 4 ; 21 Hen.
8, c. 19; and 11 Geo. 2, c. 19

ib.
but an avowry for the distress is not within the
statute of limitation, 32 Hen.8, c. 2.. 82, n.,

370
heriot service sometimes also lies in prender,

and then the lord may seize as for heriot

Heriot Custom is by immemorial usage in a
particular manor

375, &c.
is more frequently due on death

375
but sometimes upon alienation also, or on
alienation only

ib.
a custom for a heriot from every person dying

within the manor would be void as to
strangers

ib., n.
a composition within time of memory would
not be binding

ib.
under a peculiar custom entitling the lord, on

descent, to the best quick catile and to a
pecuniary payment if the tenant let the land,
and the lord should not be answered the best
heast commonly manuring it, held that where
the tenant died after letting the land, the
lord was only entitled to the pecuniary pay.
ment

ib.
is due in respect both of copyhold and free.
hold lands

375
and lies in prender only, therefore the lord
cannot distrain

ih.
may be due after the death or alienation of tenant

for life or years as well as tenant in fee ..ib.
is due on the death of a reversioner 376
distinction between freeholds and copyholds

when particular estates are carved out, each
particular copyhold tenant holding of the
lord

ib.
may be claimed by custom on the death of the
head of a body politic

ib.
is due on death of the trustee, not of the ces

ib.

que trust

..

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HERIOTS-continued.
and on death of disseisee, not of disseisor

Page 377
unless (in freehold cases) the entry of disseisee

was tolled [N. B. entry no longer tolled by
descent, &c., see 3 & 4 Will. 4, c. 27, s. 39]

ib., n.
is due on the death of the surrenderor, and not
of an upadmitted surrenderee

377
whether admission of the heir of surrenderee
will alter the case

ib., n.
semble, that the heir of a surrenderee would be

compellable in equity to make good to the
lord any loss by the neglect of his ancestor
to take admittance

ib.
is not due on the death of a person having an
interesse termini only

376
as lo heriots payable on the death of copar-

ceners, joint-tenants and tenants in common,
(the principle of law being that a beriot is
payable only when the tenant dies solely
seised)

377, &c.
semble, that the doctrine of sole seizip is not

applicable to an alienation by joint-tenants,
where by the custoin an alienation heriot is
payable

377, n.
the cases of Garland & Jekyll, and Holloway

& Berkeley, overruling Attree & Scult, as to
the effect of a reunion of undivided shares

378, &c.
whether the case cited from Fitz. in Garland

& Jekyll and Holloway & Berkeley is still
open for discussion

381, n.
no heriot payable on the death of feme covert

384
or of husband seized in his wife's right .. 385
when payable by tenant in dower, and by the
curtesy

ib.
when payable on the death of a bankrupt.. ib.
is payable for each separate tenemeni, except
by custom

385, 386
what must be alleged in pleading in such a
case, and what need not

ib.
when due on alienation, will multiply both by

disposition of the interest and of the land
itself

386
and separate heriots would continue, though

parts of the land aliened should re-unite, ib.
how extinguishable, and a distinction between
beriot service and heriot custom

ib.
under a custom to have a heriot on the death

of every tenant, the lord will be entitled to a
heriot, although he purchase part of the te-
nancy

ib.
the lord's property in heriots arises immediately

on the death or alienation, and he is bound
by his election

387
the election is in the tenant when the render is
of an or, &c.

371
the lord should seize without delay, as lie would

be concluded by a sale in market overt, 387
whether the lord would not be presumed to

have waived his right after lapse of time, ib.
but the lord's right cannot be defeated by a

devise, or by a fraudulent disposition, ib.,389
it is a good plea that the property was not in

the tenant at the time of bis death or aliena-
tion

387
bill lies in equity for the discovery of the best
beast

388

HERIOTS--continued.
an executor is said to be concluded by delivery
of his own beast

Page 388
a sole right of property in the beast seems to be
essential

377, 388
the best dead good is confined to a personal

chattel, and is no charge on the land .. 388
where and how a heriot may be seized, ib., 389
the lord's remedy is trover or detinue, when
seizure cannot be made

389
the beast of a stranger cannot be seised even

by custom, but a custom to distrain the

cattle of a stranger is good .. 389, 390 & 1.
the person replevying must show it was not the
tenant's beast

390
when no heriot is due, the owner may replevy,
or have trover or trespass

ib.
an immemorial custom to have a heriot for

every undivided share must be distinctly
shown in pleading

ib.
what evidence is required to support an avowry
for a heriot in kind

ib.
the lord cannot avow generally, but must state
the custom with precision

391
how to avow for heriols when a feme covert is
lady of the manor

ib.
during the vacancy.of a see, whether any legal

remedy for, although included in the inandate
of the crown for the restoration of the tem-
poralities

454, n.*
See Bisuops; COURTS OF EQUITY; HEIR.
HOGRINGER; is a public officer.
See HAYWARD (tit. Court Leet.) .. 719, 720

& n., App. 1145 & .
HOMAGE ; copyholders are so called ..6

ib., App. 745, 746, 1143
whether a woman can act as an bomager, 364,

604, n., 616
a widow cannot be of the homage to present,
unless the husband died without an heir

364, 616
See BOUNDARY; FREEBENCII; WASTE Lands.
HONOUR ; the seigniory of a lord paramount, ?
sometimes only one court held for the several
manors within it

5
HOTCHPOT. See DESCENT ; GAVELKIND.
HUNDRED; HUNDRED COURT. See LEET.

their duly

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IDIOT; may receive a grant of copyholds.. 108

how ordered for his copybolds 52, 53
INCAPACITY; is removed by the lord's ad-
mittance

100, 109
what persons are and are not incapacitated to

take a grani of copyholds .. 107, &c.
INCLOSURE. See AWARD; LORD OF THE

MANOR.

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