tody or authority

53

certain powers are given to committees by par-
ticular acts of parliament
ib., n.
copyholds are not within 6 Geo. 4 and prior
statutes, as to conveyances of estates vested
in lunatics, but are expressly named in 1
Will. 4, c. 60
89, App. 1011
provision made for the admittance of lunatics
to copyholds by 1 Will. 4, c. 65.. App. 1015
the Court of Chancery has no power under 11

Geo. 4 & 1 Will. 4, c. 65, or 3 & 4 Will. 4,
c. 74, to authorize the committee to grant
leases for twenty-one years
App. 1018,
1019, n.
See BARON AND FEME.

M.

MANDAMUS-continued.

render the legal estate, there being no heir of
the last trustee, and being a fitter tribunal
Page 526, n.
the aid is extended to the customary heir..528
although the application may be in furtherance
of a scheme to defeat the lord's right to a
fine; and although there should be no dis-
claimer by devisees (The King v. Sir T. M.
Wilson)
528, &c.
it has been granted to compel the admission of
the heir of a trustee, where the cestuy que
trust died without heirs, to enable him to
try his title

408

and it is granted to compel the lord or steward
to accept a surrender
525, 527, 530
the case of The King v. Boughey, Bart... 530
and either of the whole or a portion of the
lands of the copyholder, or of the whole or
a portion of his interest
the power of the court has been questioned,
but is established by several stated cases

525

527, &c.
the court has refused the writ in several stated
instances, where the party had a specific
legal remedy
525, 526, n.
but having a remedy in equity is no answer to
an application for a mandamus 525, n.
conceded that a mandamus is never granted to
compel a mere ministerial officer to do his
duty
526
in The King v. The Borough of Midhurst, the
writ was granted to compel the lord to
hold a court, and the homage to present
certain conveyances of burgage tenements
entitling the purchasers to be sworn in bur-
gesses, and to vote for members of parlia-

ment

527

no relief by mandamus by reason of proceed-
ings in a plaint having been improperly set
aside, but it must have been sought in a
proceeding in nature of a petition of right, or
in equity
489, 530, 531

cannot go to the steward alone
531
the rule induced the court to quash a manda-
mus for compelling an admission by the
steward of the queen's manor of Richmond,
in which case, as the writ could not go to
the sovereign, the party left to the only an-
cient remedies, a bill in equity or a petition
of right
531 & n.
will issue to compel an enrolment of a surrender
taken by copyhold tenants under a special

fine

custom
531
but was refused where there was a custom for
the steward to prepare all surrenders ib.
an application for, refused where the surrender
was by the customary heir of his reversionary
interest, his object being to avoid the descent
ib., 532
an application for the writ to enforce an entry
on the rolls of a deed of grant of customary
freeholds refused, where there was a cus-
tomary mode of barring estates tail, and the
case held not to be within the 53rd section
of 3 & 4 Will. 4, c. 74
531, n.

it is also granted to compel an inspection of
court rolls by a person claiming an interest
under them, and having a prima facie title

Y Y

532

MANDAMUS-continued.

and it is not necessary that any cause should
be depending

Page 532
it is only when no action is depending that the
ib., n.
when an action is depending, the inspection
will be enforced by a rule of the court..495,
532, n.
whether a freehold tenant has a right to inspect
court rolls, although no cause be depending
532, n.
it lies to restore the steward of a court leet
527, 608, 703, 704

motion is for a mandamus

but was refused in one case
608, n.
whether it lies for the steward of a court baron
527, 608
Ile's case in 1 Vent. favourable to the opinion
that it lies for the steward of a customary
court
526, 527, 608
but it is rendered doubtful by other authorities
526, 527, n., 608
will issue to compel the holding of a court leet
forthwith, and to appoint proper officers
532, n., 713, n.
and to enrol a resiant, to enable him by the
usage to vote for members of parliament
713, n.
but the connexion between the leet and corpo-
ration must be established by affidavit ib.
it lies to compel the steward to administer the
oath of office to a constable chosen at the
leet
715, n.
it has been granted to the bailiffs of a corpora-
tion to which the manor formerly belonged,
to permit a court leet to be held in the guild-
hall, in order to an inquiry whether it could
be held elsewhere
532, n.
it does not lie to compel the holding of a court
leet for the purpose of having the oath of
allegiance administered to an inhabitant, ib.
nor for the inspection of the records of a court
leet, unless some satisfactory reason be as-
signed
ib.
the return to a mandamus must be certain and
explicit, and not argumentative .. 528, n.
without a special custom, will not issue to
compel a licence for digging brick earth, or
532, 533

other act of waste..

MINES; reference to the commutation and en-

franchisement act, recognizing the import-
ance of the lord's proprietary interest in
mines by the exclusion of it from the opera-
tion of the act, unless by express convention,
and by the power given to tenants to grant
rights of way, &c., in and over their lands,
to enable the lord to win and carry away the
419, n.
minerals
a distinction as to the mode of stating the facts
and consideration in an agreement for com
mutation, and in an enfranchisement deed, ib.
the words "lands and mines" will pass the
open mines only

427, n.

429

a copyholder has the possession of the subsoil,
although he has no property in it
the authorities as to trees on the surface of the

soil equally apply to minerals below, ib., D.
are part of the demesnes, and not a distinct
property from the freehold .. 19, 20, 429
should, therefore, be expressly reserved when
intended to be excepted out of a grant
waste, or the enfranchisement of copyholds, ib.
and it is not sufficient merely to reserve all
royalties, &c.

of

ib.

MINES-continued.
may be a distinct possession from the manor,
with reference to the statute of limitations

Page 430
and twenty years' possession of copper mines
may establish a right against the lord, even
when entitled to tin mines
431
a copyholder has the same possessory interest
in mines as in trees
427
but has no proprietory right, except by custom
ib., &c.
therefore he cannot open and work new mines
without the licence of the lord, or by custom
427
nor can the lord do so in the absence of a
custom, without the consent of the tenant, ib.
but would be liable to an action of trespass for
entering on copyhold land to bore for mines
and veins of coal
428

by custom a copyholder of inheritance, or for
life with power to renew or to nominate a
successor, may have a proprietory right in
mines

427

under a grant of the inheritance of freehold
land, even if mines are named, they cannot
be opened by a person having a particular
interest only
ib., n.
though a lessee may work mines that are
opened, yet his opening new mines is

waste

ib.

ib.
as to royal mines where the crown has a bare
reservation
a copyholder may dig for marl to lay on the
land
428, n.
coals, when dug, belong to the lessee, who may
maintain trover
ib.

bill in equity lies for an account against the
executor of a customary tenant opening
mines
428, 431
and trover lies for ore dug thereout
ib.
he who has the surface may maintain trespass
for breaking the sub-soil
429
but in frequent instances in the northern
counties, the title to the land is in one, and
the title to the mines in another
ib.
the presumption is in favour of the person in
possession of the land, but may be rebutted
by evidence that others had raised and car-
ried away the minerals

the case of Rowe & Brenton

..

ib.
430

431

evidence of a right to cut timber is not evi-
dence of a power to dig mines
but a custom to dispose of one sort of mineral
may be evidence of a right to dispose of an-
other
ib.
distinction in equity between mines and timber,
in decreeing an account under a bill for an
injunction
ib.
equity will grant an injunction against opening a
mine, if no custom is shown, yet only with a
view to try the right
531, 532
but with such a custom, it will not restrain even
a tenant for life from opening pits to pursue
old veins
431, n.
nor will equity grant an injunction against
working mines already open 432, 433
and is slow to interpose by injunction where
mines are in a state of working, but will
direct a trial at law of a disputed right, 432, n.

manor

MORTGAGE; the effect of a purchase of copy-
holds by the lord, after a mortgage of the
33, &c.
the unknown heir of mortgagee is within the
8th sect. of 11 Geo. 4 & 1 Will. 4, c. 60,
although a constructive trust only (and see
4 & 5 Will. 4, c. 23, s. 2, in App.)..85, n.
semble, that a mortgagor in possession may
hold courts
91, n.
observations on conditional surrenders 194
See ADMITTANCE; EJECTMENT; EQUITY OF
REDEMPTION; NOTICE TO QUIT; STEWARD;
WARRANT OF SATISFACTION.

MORTMAIN; acts extend to copyholds

199, 200
distinction between legacies to be applied in
the purchase of land, and in melioration of
land already in mortmain
200, 201
and when inseparably connected with a void
devise, or applicable, at discretion, to several
purposes, some of which only are void..201
a gift of residuary personalty to entreat a grant
of waste for charitable objects held void
201, n.
money charged on copyhold by a void bequest
held to belong to the devisee and not to the
635, n.
See CHARITABLE USES; PREROGATIVE RIGHT;
SURRENDER TO WILL.

crown

..

NOTICE; from a donee does not bind a pur-
chaser of the donor
202
See EVIDENCE; LORD OF THE MANOR; TRUST
ESTATES; VOLUNTARY SURRENDER.

NOTICE TO QUIT: not rendered necessary
by the covenant of a mortgagor, so long as
he continued in possession, to pay a yearly
rent to the mortgagee
466, n.
not necessary, even after twenty years' posses-
sion, if not adverse
509, n.
where possession began by permission, and an
ejectment was brought against the heir within
five years from the passing of 3 & 4 Will. 4,
c. 27, under 15th sect., held that neither
notice to quit nor demand of possession was
necessary
ib.

NOVEL DISSEIZIN (tit. Customay Plaints.)
473, 479

NUISANCES. See LEET

0.

. 737

See FREE FISHERY.

OCCUPANCY; there can be no general occu-
pancy of copyholds

24, 50
51

but there may be a special occupancy
there can be no general occupancy of anything
which lies in grant
ib., n.

but the 2d branch of 12 Car. 2, c. 3, applies to
the grantee pur autre vie of a rent-charge,
and his executors will be entitled to it.. 51
and as pecial custom extending the principle of
general occupancy to copyholds is good

24, 51
rents are (in common parlance) the subject of
special occupancy
51, n.
reference to Vict. c. 26, as to copyhholds,
though no special occupant

52

a special occupant must be admitted and pay a

fine

See EXECUTORS AND ADMINISTRATORS.

OVERSEERS. See CHURCHWARDENS ;

TUTES.

351

STA-

104

ib.

the mere allegation of being seized or otherwise
well entitled, a ground of demurrer
the copyhold tenure must be pleaded, when
lands are held of a manor which is ancient
demesne, or it might be inferred that they
were pleadable in the lord's court by writ of
right close, or at common law as part of the
demesnes

..

512

how to plead common out of the manor before
ib., 517, n.

and after enfranchisement

a plea of justification under an alleged custom
for the tenants of a particular copyhold, is
not supported by evidence of a general custom
512

ib.

so a plea that the widow is entitled to an estate
for life, is not supported by evidence of a
widow's estate only
in actions, &c. relating to the copyhold of a
feme covert, it must be pleaded that the hus-
band and wife are seized in right of the wife,

PLEADING-continued.

and not that the husband alone is seized
Page 512, 513
any admittance may be pleaded as a grant, 513
and it is sufficient to allege the admittance of
the ancestor as a grant, and to show the de-
scent and entry, without admittance ib.
but not merely to plead the seizin of the an-
cestor and the descent
semble, that although in copyholds it is suffi-
cient to show the grant of the lord, yet in
customary freeholds the estate of the surren-
deror must be shown

ib.

ib.
but when the title does not come in question,
as in replevin, it is unnecessary to show ad-
mittance
ib.
it is not sufficient for a vendor to aver his rea-
diness, and his offer to make a title and to
surrender, but he must show an actual sur-
render, or an offer to convey, and refusal,
and what title he had
it is unnecessary, however, to detail the title,
and the plaintiff need only aver his seizin in
fee, that the title was made perfect, and that
he had always been ready, and had offered
to convey

..

ib.

ib.

it is for the purchaser, and not the vendor, to
prepare and tender the conveyance ih., n.
plea of a grant for lives in reversion, as a grant
in possession, is incurable
513, 514
in trespass for entering copyholds and boring
for coals, and a justification under the lord,
the plaintiff must traverse the liberty of work-
514
ing the mines

but the court will permit the replication to be
amended
ib.

the case of Proud & Hollis as to the mode of
pleading a right of way asserted by the land-
lord of a copyhold occupied by a tenant, ib.
if a surrender be pleaded as taken by the hand
of a steward supposed to have no right, the
traverse should be general that no surrender
515
was made
where issue is taken on a surrender pleaded
into the hands of tenants, it is to be tried
where it was alleged to be done, and not
where the manor is
the steward's name must be stated in pleading
a grant of copyholds
ib., n.
performance of the condition may be pleaded
under a bond for quiet enjoyment, when a
forfeiture is occasioned by the vendee's own
515

act

..

ib.

in debt on bond, the plaintiff must show that he
was evicted by lawful title
ib., n.
in case, for not performing a promise to sur-
render, the plaintiff must allege that he made
a request to the defendant to surrender..515
and a demurrer will hold if the plaintiff assign
a particular mode of surrender, and the custom
is not shown
but a general custom need not be alleged ..ib.
under a covenant to surrender, a purchaser

murrer..

ib.

need not show a court to have been holden, ib.
plaintiff is entitled to costs of pleading, when
one of several pleas is adjudged bad on de-
ib., 516
the new rules established that a defendant who
had obtained judgment on demurrer upon
one of several counts, was entitled to deduct
his costs from the costs of the plaintiff on

PONENDIS (de non ponendis.) See ANCIENT
DEMESNE.

PORTGERIEVE (PORTREEVE); some-
times elected at the leet
690, n., 713
not incompatible with the office of steward; so
under a custom for a court of pleas to be held
before the steward and portreeve, or their
deputy or deputies, a court may be held by
a person appointed deputy by one in whom
both offices are united
690, n.
PORTMOTE COURT. See LEET.. 675, n.

POSSESSIO FRATRIS, may be of a copy-
hold, on an actual possession, even before
admittance
44, 45, 291
the possession of a termor by surrender is suffi-
cient

45

POSSIBILITIES (coupled with an interest);
may be disposed of by will under 1 Vict. c.
26, s. 3, and by deed under 8 & 9 Vict.
c. 106, s. 6
App. 1130
POUND; breach of
738, App. 1142
POUNDKEEPER; reference to sect. 4 of 5 &
6 Will. 4, c. 56, and to a case deciding that
the person who is bound to supply the animal
with food, is the party at whose instance it
was impounded
719, 720, n.
See HAYWARD.

POWER; no longer necessary to give a sub-
stantial share to each of the objects, although
the power is not exclusive (1 Will. 4, c. 46)
253, n.
over copyholds by special custom, though
joined with an interest, cannot be executed
128
by attorney