Imágenes de páginas




damore) not to extend to the heir of one who
died before admittance, but this would seem
to have been by the strictness of the custom,

Page 31, 32
when destroyed

32, 545
semble, that unity of possession in the lord will

destroy the custom of copyhold lands in the

nature of gavelkind or borough-English.. ib.
not destroyed by severance of the freehold ..7
10 seize as forfeited for want of claim, within a

fixed period, is not binding on persons be-
yond sea, or under any disability.. 24, 288,

semble, that a custom requiring the expression

of a husband's consent on the face of the
surrender, is not void in law

whether a custom negativing the right to sur-

render to the use of a will could have been

22, n.
or would have been bad as suggested by Lord

Thurlow in Pike & White, (reference to the
judgment delivered by Lord Abinger in Doe &
Llewellin, in which the Court of Exchequer
inferred that copyholds passed by will, a

contrary custom not being found,] 212,213,0.
confirmation of the decision in Rex v. Rigge,

that a custom for the steward to prepare all
surrenders is good

531 & n.
reference to the customs of the Forest of

See Descent; Evidence; Estate Tail;

Fair; GUARDIAN; LEET; Lunatic; Pont-



but when no custom exists, such a grant does
not create either a copyhold or freehold inte-

Page 23
a custom to make grants without the consent of

the homage would tend to annihilate rights
of common altogether, and therefore be un-

.. ib.
a custom against the king's prerogative is not

22, n.
cannot control the right to dispose of the equi-
table ownership by will

24, n.
inconsistent with ihe doctrine of resulting trusts,
held by M. R. to be unreasonable

a custom that a wife shall not have her dower

unless claimed within a year and a day is

a custom extending the principle of general

occupancy to copyholds is good 24,51
semble that a claim under a reasonable custom

is within 2 & 3 Will. 4, c. 71, “ for short-
ening the time of prescription in certain

25, D., 523, n.
that act is far from sanctioning an unreasonable

25, n.
a single act unresisted

may be evidence of, but
will not make a custom .. 26, 61, 503, 504
one custom may be subservient to another.. 26,

may be reasonable, though to the prejudice of
an individual

the existence of a custom is to be tried by a
jury of the county

the existence of, may be established by evidence
of practice alone

26, 126
the law takes notice of general customs, as

gavelkind, &c., but others must be specially

ib., 32, 515
the proof rests with him who alleges it.. 26, 27
one may be pleaded against another 27
the same exactness is not required in equity as
at law in setting forth a custom

is construed favourably when in maintenance

of a copyhold interest
and strictly when in deprivation of it

when silent as to descent or collateral matters,
it is regulated by the common law.. 27, 28,

29, 43
when reputation is admissible evidence 28
a liberal construction of, is induced by the title
of freebench

attaches to a lineal descent

ib. 44
a particular custom as to descent attaches to
an estate pur autre vie

and to a rent granted de novo, or reserved out
of copyholds

and to a resulting use or reversion in fee .. ib.
but where a descent is according to the custom
of gavelkind or borough-English, the words

right heirs” were only descriptio persona
where there was no limitation to the ancestor,
and the descent was to the heir at common law:

but now see 3 & 4 Will. 4, c. 106, s. 2.. ib.
the custom of descent extends to trust estates,
with an exception ..

but not to executory or implied trusts ib.
nor to lands purchased by the lord 30, 31
nor to allotment of waste land in respect of an
ancient copyhold

held in Fane & Barr (cited in Clements & Scu-

[ocr errors]


villein socage



holds, or Privileged Copyholds);
semble, that customary freeholds passing by

surrender and admittance, are on a fooling
with pure copyholds with regard to the
bankrupt laws

83, n., 302, n.
erroneously stated in Doe & Parke, that cus-

tomarybolds were first mentioned in the bank-
rupt act of 6 Geo. 4, c. 16

302, n.
origin and nature of the tenure

were anciently called privileged villenage or

called by Lord Coke copyholds of frank tenure,

and said to be most usual in ancient demesne,

and to fall within the same consideration as
copy holds

their chief distinction from copyholds is in not
being held at the will of the lord..561, 562,

the freehold interest is vested in the lord..564,

565, 567, 572
as well when they pass by deed and admittance,

as when they pass by surrender and admittance,

575, 576
but in the case of Bingham & Wood gate,

where the custom required a bargain and
sale as well as a surrender, the M. R. beld


[ocr errors]

an jnrolment of a customary conveyance under

a special custom, held not 10 be an admit.

tance within the stamp act Page 575, n.
held in Doe å Danvers, ihat a will to direct the

uses of a surrender of a customary estate,

was not within the statute of frauds .. 576
and that such will was not a creation or decla-

ration, or assignment of a trust within the
7th section of the act

semble, that a recovery might have been suf-

fered in the Common Pleas of customary
freeholds, passing by surrender in a borough

563, n.
are not within the meaning "frank-tenements,"

but the tenants have a customary freehold

interest, though not a freehold tenure . . 563
not being members of the county court, they

were incapable of voting at elections prior to
2 Will. 4, c. 45

566, 567
except for waste, or other freehold land allotted

in respect of their customary estate, when
the tenure was not altered by act of parlia-

whether the lord can seize as in the case of
ordinary freeholds

the wife is not dowable of a trust estate ..568,

569, n.
their distinction from ordinary copyhold must

be observed in the mode of pleading 568
a custom that the grantee by deed should be

admitted in the lifetime of the grantor, is

24, 284, n., 568, n.
a right of entry, when passing by surrender and

admittance, was not tolled by descent, 569, n.
whether a devise of an equitable interest must

not have been attested according to the sta-
tute of frauds, when the lands passed by deed
and admittance

268, n., 569
semble, that customary freeholds are subject to

special, but not to general occupancy .. 570
and that they were not extendible under 13
Edw. 1, of elegit

ib. &c.
they are not within the statutes of partition,

577, 578
prescription by customary freeholder in a que
estate, is good

517, n.



ouster, except some peculiar species of de

forcement, as of dower .. Page 477
the several writs of entry, and their application

to the different species of ouster .. 477, 478
the writ of intrusion was maintainable by the re-

mainder-man, after determination of an estate

pur autre vie ; and by a devisee .. 478, 0.
plaint of assize of mort d'ancestor 473, 479
plaint of assize of novel disseisin 473, 480
limitation of possessory


by 32 Hen. 8, c. 2, was fifty years

except in novel disseisin (that is, if grounded

on the possession of the demandant himself)
which was thirty years

the limitation of fifty years extended to writs of

481, n.
the writ of intrusion was not one of the excepted

cases as to disallowance of costs in real ac-

491, n.
the fifty years extended to customary and pre-
scriptive rents and services

but not to casual services, as fealty, &e... ib.
Sir Edward Coke and other subsequent writers,

following Rastell's ed. of the stats., made
this forty years for rents, &c.

ib. n.
semble that the 50 years was reckoned from

the seizin of the ancestor, and not the death
of the particular tenant

and that ihe grantor or settler was to have been

considered an ancestor of the remainder-man
within the meaning of 32 H. 8.

the word “predecessor " in the act had rela-

tion to corporations only, and not to a tenant
for life

482, n.
taking possession under a defective title remits
to a prior title

plaints in nature of the grand writ of right,

473, 483, &c.
the mere writ of right was applicable only to an
estate in fee simple

but was not alone applicable, as a writ of es.

cheat, in nature of a writ of right, lay for the
lord on the death of a tenant in fee simple;
(but an ejectment is the proper mode of try.
ing the lord's title ;)

483, D.
the lord had the remedy of formedon in reverter

on the death of tenant in tail without heirs

inheritable, and there being no remainder, ib.
and of intrusion or ejectment, if a copyholder

in fee in remainder or reversion died without
heirs, and afterwards the tenant for life died,
and a stranger entered

even before the stat. de donis the reversioner

had the remedy of a formedon in the reverter
upon a gift to a man and the heirs of his
body, who aliened before he had issue, and
afterwards died without any

after the stat. de donis, a tenant in tail by de.

scent, or in remainder, had a peculiar writ of
right called also a formedon

but there was no formedon in remainder at
common law

55, D.
a formedon was applicable to an entry or abate-

ment by a stranger, upon the decease of the
ancestor, tenant in tail

483, 484, 1).
the writ of formedon was limited by stat. 21

Jac. c. 16, to twenty years
the twenty years in the case of a formedon in

the descender began to run when the title de.

[ocr errors]

CUSTOMARY PLAINTS ; if received, sem-

ble that the want of admittance would not
avail the tenant

290, n.
abolished by 3 & 4 Wii: 4, c. 27; (except -a

plaint of freebench) ib., 314, n., 473, n.
copyholders must implead and be impleaded in
the lord's court

the rule is applicable to copyholds held of a
manor of ancient demesne

their possessory and auncestrel nature distin.

473, n.
process upon, is analogous to the common law

the Court of Common Pleas not having juris.

diction as to copyholds, the writ of accedas
ad curiam to remove a cause to that court,
Hias been superseded with costs

the nature of real injuries. (See these under

their distinct heads of OUSTER, &c.] .. 474
the possessory remedies were plaints in the na-

ture of writs of entry or of assize 476
the writ of entry was applicable to all cases of




been enforced by an application to the Court
of Common Pleas for a mandate to put the
party into possession by the posse manerii,
but probably the Court of B. R. would have
enforced the execution of the lord's precept
to the bailiff

Page 489
the judgment would probably be held to sus-
tain an ejectment

489, n.
the limitation in plaints in nature of the writ of

right was sixty years, if founded on the seizin
of the ancestor; and thirty years is founded
on the demandant's own seizin

but an uninterrupted possession even for sixty

years would not have created a title, when
the right of entry was suspended by the con-
tinuance of a prior estate

an estate might have been enjoyed adversely

for many hundred years, and yet been reco-
vered by a reinainder-man or reversioner in
fee, not by writ of right after an adverse pos-
session for sixty years, but by ejectment
brought within twenty years after the right of
entry accrued. Taylor & Horde; Doe &

by 3 & 4 Will. 4, c. 27, entry or action to re-

cover land, limited to twenty years, but with
an allowance of ten years from the termina-
tion of disability

App. 1024, &c.
and to 40 years even in cases of disability,

App. 1028


ib. n.

ib. n.


scended to the first heir in tail, unless he lay
under some legal disability :-and once be-
ginning to run, no subsequent disability
would have availed

Page 484
but a possession even for thirty years might not

have been adverse
the law as to disabilities was altered by 3 & 4
W. 4, c. 27 (post, tit. " Ejectment,”)

App. 1028, &c.
the stat, of 21 Jac. rendered the writ of forme.

don almost obsolete, the remedy by ejectment
being equally available, but a formedon had
sometimes been preferred, as affording better
means of obtaining information of the title
relied upon by the defendant

the writ of quod ei deforceat was given by the

stat. of Westm. 2 to tenants in tail, and for
life, &c., when barred of entry, or by reco-
very on non-appearance in a possessory suit,

but not after recovery upon defence, and bence

the practice of common recoveries
one coparcener who was deforced by another

might have had a writ of right de rutionubili
parte, distinguishable from the possessory
remedy of a nuper obiit

plaints in analogy to the above remedies at
common law were available to copyholders,

plaints in nature of writs of right were not so

complicated as real suits at common law, ib.
but the same accuracy was requisite in the
pleadings ..

the established practice not to allow a demand-

ant to amend, confirmed by the cases of
Tooth & Boddington and Worley & Blunt,

486, 487
but the rigour of the practice had been relaxed
under special circumstances, Webb & Lane,

a case in which the court refused to set aside

the proceedings for irregularity, in conse-
quence of an alteration in the return day of
the writ of summons

486, n.
when the demandant was not permitted to
amend, he was not allowed to discontinue,

nor would a new trial have been granted, ex-

cept in a case of fraud or where manifest in-
justice would have resulted from the refusal,

a distinction made in favour of the tenant on

application to withdraw a demurrer, and
plead de novo

the writ of right lay concurrently with all other

real actions, as well as after them ib.
how seizin was to have been alleged, and the

relative claims of the demandant and tenant

487, 488
great precision was requisite in describing the

estate sought to be recovered, but the rule
relaxed in Goodtitle & Otway

after issue joined the judgment was final; con-
tra on recovery by default

false judgment did not lie of copybolds ib.
but the relief was by pelition to the lord ib.
and equity would interpose in any unconscien-
tious proceeding

488, 489
a judgment in the lord's court could not have


DAMAGES; on plaints in the lord's court, how

76, 77, 81, 489
DEBT ; will lie for the lord's fine

the action not within the stat, of limitation of
21 Jac.

but is limited to six years by 3 & 4 Will. 4, c.

82, n., 356, n.
when it will lie for rents

See Court Baron (tit. Amercements); INFANT.
DECENNARIES; DECINERS [desiners or dosi-

ners] ; See LEET.
DECINERS; surrenders are taken by, in the

manor of Kettering, under a special custom,
and presented and inroiled at the following

126, n.
DE DONIS, statute of, does not extend to

54, &c., 86
DEFORCEMENT; its nature defined (tit. Cus-
tomary Plaints)

474, &c.
DEMESNES ; the word in its ordinary significa-

tion is applicable only to the lands which
the lord of the manor either actually or po-
tentially has, in propriis manibus

662, n.
after severance they cannot reunite, if the de-

misable quality has been destroyed 14
no ground for a supposed distinction between a

tenancy escheating, and a purchase by the


[ocr errors]

a person to take as purchaser may be described

from every course of descent Page 29
so the words “right heirs" are sometimes only
descriptio persone

by 3 & 4 Will. 4, c. 106, where the heir takes
by purchase, under a limitation to tbe beirs
of the ancestor, the land descends as if the

ancestor had been the purchaser 30, n.
a person may take as heir in special tail without

being heir general
but no person can prescribe a mode of descent

not sanctioned by the general rule of law, or
by custom

the heir would have taken by descent, and not

by purchase, when the two rights met, 43, 143
so when there was a limitation in the same in.
strument to the ancestor for life

the cases went upon the supposition that the
heir had no election ..

the rule extended equally 10 a devise to the

heir with an executory devise over, and to a

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

44, 276
by 3 & 4 Will. 4, c. 106, under a devise to the
heir, he takes by the will, and not by descent,
s. 3

43, n., 143, B.
a limitation to the person conveying, or bis
heirs, will create an estate by purchase, s. 4,

44, n., 143, n., 295, n.
and a lineal ancestor takes as heir, in preference
to collaterals, s. 6

143, o.
so a father is preferred to a brother or sister,

43, n., 143, a.
by what form of surrender or devise the descent
may be prevented

there is the same jus representationis in cus-

tomary descent as at common law ib.
and it takes place iu descents of copy holds in
nature of gavelkind and borough-English

29, 31, 32
the customary descent of gavelkind extends to

but not of borough-English, except by custom ib.
the rules by which the course of descent is con-

tinued or broken extend to copyholds, but
not to the prejudice of the lord

the descent not changed by a recovery ib., 66
is changed by admillance of a mortgagee

44, 194
when the descent is according to the custom of

borough-English or gavelkind, a younger
child is not compellable to bring a copyhold
into hotchpot

of copyholds would not have tolled an entry,

an instance of a subsequent grant by copy
being aided in equity

Page 15, n.
See CopynoldS; DERELICT Lands; MANOR ;



DEODAND; not specified among the manorial

righis 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

643, n.
definition of, and its origin

643, 644
the rule of the Court of B. R. to limit the find.

ing of the jury to as small a sum as possible,
bas been acied upon in several recent in-

644, n.
is inquirable by the coroner

nothing is forfeited, until found by inquisition
to have been the cause of death

but the inquisition has relation to the death, ib.
and after the inquisition, the sheriff is answer.
able for the value

and may levy it on the town where it fell ib.
so that ihe value ought to be found ib.
the forfeiture is saved by the party not dying
within a year and a day

is to the king, or his grantee

and cannot be claimed by prescription ib.
formerly, but no longer, disposed of by the
crown for charitable uses

no longer any distinction between the death of

a person being and not being within the age
of discretion, when killed by any animal,

644, 645
a clear distinction between death occasioned in
aquá dulci and aquâ salsa

in the latter there can be no deodand, even if it
be an arm of the sea

the merchandize of a ship is not forfeited by a
death occasioned by a fall from the vessel,

646, n.
that which is the immediate cause of death, as

a wheel of a carriage, or part of the loading

of it, is alone forfeited 645, 646, 647
bul forinerly all things moving to the death
were considered deodands

645 & n.
the value of the wbeel, or other thing forfeited,

is set by the coroner's inquest, and taken in
lieu of it

when the violence of a stream is influential to

the death, a horse or carriage on or in which

the person is riding will not be forfeited, 646
it is immaterial to whom the ownership of that

which is the cause of death may belong ib.
nothing can be forfeited as a deodand which
forms part of, or is affixed to, the freehold,

646, 647
whether a hay-rick is forfeited when the death is

occasioned by a fall from it 647, n.
DEPOSIT ; the rule that it creates an equitable
mortgage confirmed

541, n.
See Copies or Court Roll.

(and see 3 & 4 Will. 4, c. 27, s. 39) 46
a right of entry no longer barred by.. 47, p.

86, n., 377, n.
semble, that under a limitation to A. and bis

heirs, or his executors or administrators, for
the life of B., the heirs in the one case, and
the executors or administrators in the other,
would take as special occupants, and not by

351, n.
observations on the subject of descent of copy
holds enfranchised under 4 & 5 Vict. c. 35,

26, 27,0.
See Borough-English; COPYHOLDS ; Cus•


DERELICT LANDS ; belong to the crown, but

lands imperceptibly added to demesnes by
alluvion, &c., belong to the lord,

32, 33, 666, n.

DESCENT; of copyholds is governed by the

rules of common law 27, 28, 29, 43

242, n.

ib., n.

DETINUE; lies for heriots ..

DEVISE ; a limitation by will to A. and his

heirs, and if he should die without leaving
any child, 10 B., creates a fee conditional,

there being no custom to intail Page 55, n.
by 1 Vict. c. 26, copyholds and customary
freeholds are devisable, with the formalities
prescribed by s. 9.-(A general reference to

ihe statute in p. 233, n.) 211, n., 233, n.
and the right extends to estates pur autre vie,
(s. 3)

52, 125, n., 233, n.
and to contingent, executory, and other future
interests, (s. 3)

138, n., 418, n.
by custom copyholds were devisable without a
surrender to will, even before the late stat,
of 55 Geo. 3, c. 192

lands possessed at the date of the will passed

by a general devise, although the words of a
subsequent surrender to will were future,

213, 214
a devise containing a description applicable to

after purchased lands would have passed
them, when surrendered to uses already de-

a feme covert cannot devise pursuant to a sur-

render made when sole 128, 129, 215, 267
by a joint tenant pursuant to a surrender to
will, is good, though the surrender be not
presented till after his death

since 1 Vict. c. 26, a parol will of copyholds,
and a parol revocation of a will, not good,

235, n.
prior to the late stat. of 55 Geo. 3, c. 192, a

general devise of all real estates wonld not
have passed copyholds (but see Doe & Lud-
lam, infra)

unless under an evident or constructive inten.

the intention was implied from a surrender to

236, 239
the cases of Chapman & Hart, and Byas &

236, 237
implied also when the testator had no freeholds,

237, 238
reference to Church & Mundy and Judd &
Pralt, &c.

presumption of the intention would not have

been raised, even in favour of creditors,

where there were freeholds 236, 238
unless the freeholds were insufficient, 236, 238,

distinction between creditors, and wife or chil.
dren, in raising the presumption of intention,

238, 239
when the intention would have been presumed

from superadded words, such as " which I
have surrendered to the use of my will,” or
" and which I have surrendered, &c.,” or
" the copyhold parts thereof having been sur-
rendered, &c."

239, 240
the cases of Struit & Finch and Osenforth &

but words similar to the above were sometimes

construed as a mistaken afhrmation, and not
as exceptive

240, 241
by s. 26 of 1 Vict. c. 26, customary, copyhold
and leasehold estates pass by a general devise

the words " freehold and copyhold lands."

raised the presumption of passing unsur-
rendered copyholds, even if the testator
possessed others which had been surrendered,

Page 241
authorities and dicta which appeared to the

author to be irreconcilable with the case of
Doe & Ludlam, which decided that after the
act of 55 Geo. 3, c. 192, a general devise of
real estates would pass copyholds not surren-
dered to will, although the testator had free-

241, &c.
the decision in Doe & Ludlam confirmed by

the Vice Chancellor
the rule in Rose & Bartlett, 7 Car. 1, excluding

leaseholds from the operation of a general
devise of land, did not apply to leases for

241, n.
whether under a general devise of lands, copy-

holds of inheritance and leaseholds for years
would have passed (Roe d. Pye v. Bird),

246, 247
whether the act of 55 Geo. 3 supplied a sur.

render in favour of a power of sale 247
or so as to defeat a widow's freebench ib., n.
the construction is not governed by any express
legal terms, but the intention is the guide,

copybolds pass by the words “my copyhold

ground rent
the words "property," "estate,” &c., may
pass the interest as well as the land .. 247,

whether the fee will pass to executors in trust

to sell, by the words “goods, chattels, estate
and effects"

248, 0.
even the words “personal estate or property '

will pass copyholds, where the intention is

Paris & Miller, in which the word "share

was held to pass the fee, decided on the ef-
fect of that word alone, and the devise being

of the actual existing interest 248, 249, n.
by 28 s. of 1 Vict. c. 26, the fee or other whole
estate passes without words of limitation, on-

less a contrary intention appears 249, n.
the whole remainder of all those lands, &c,
after a devise for life, held to pass a fee,

248, 249
my share of the B. and other estates, held to

248, n.
the effect of general introductory words
my worldly estate, &c."

and of the word “ hereditaments .;*

and of the words “all I am worth,

pass a fee

as to

&c. ;;

236, n.
how debts are to be raised when charged on

both freehold and copyhold 239, n.

a charge which might continue beyond the life
of the devisee will induce the construction of

so also a charge in gross, or of debts, &c. ib.
but only where the devisee is charged person

250, n.
general words or terms of locality may restrain

the effect of the word “estate,” &c. 250
but the words "all the said estates,” engralied

on a devise of “messuages, lands," &c. for
life, pass a fee

an estaie in fee in a prior devisee, may be im-

plied from subsequent limitations ib.
a fee will pass by an exception out of land
devised in fee

251, n.

a fee


« AnteriorContinuar »