« AnteriorContinuar »
The Court Day.
Manor Rolls, On the day appointed for the court, the steward is to Minute Book. S be prepared with the rolls of the manor for such references as may be necessary to his guidance as the judge of the court, upon any applications for admittance, or for licenses, &c., and for the inspection of the tenants of the manor, on payment of the accustomed fees (g); and he is also to be prepared with a minute book for recording the proceedings of the day, the style of the court being already written in it.
Steward's appointment. Should it be the first court holden by the steward for the particular manor, it is usual and proper for him, previous to the opening of the court, to read his appointment to the stewardship to the tenants assembled.
Opening the Court. The bailiff is then to open the court by an audible proclamation thus:-"Oyez; All manner of persons that owe suit and ser
nants of every jury, to take from me my tryal which the law gives to me; and if you will try issue by les than twelve, you may impannel three or four of the friends to the parties; and to have no number certain under twelve, but to have such a number as the steward pleaseth, and to be at his choice, how many shall be sworn of a jury, and how many shall be impannelled, is inconvenient where there are more within the manor to be impannelled; and so it seems if there be not twelve to try the issue, they fail of power to minister law and to do justice; and copyholder may sue by bill in chancery, where there are not twelve homagers within the manor, or in action of trespass at the common law, and the party ought to be admitted in the lord's court, to the intent to bring trespass at the common law, and there law is more truly administered than in court barons; and also if any sue in court barons for copyhold, he shall make his protestation to sue in nature of his writ at common law, and the process and proceedings shall be according to the course of the common law, and they shall join issue according to the course of the common law, and there (venire facias) is, that they shall cause to come twelve free and lawful men according to the course of the common law, and for that it seems that tryal of issues there between parties shall be by twelve and not by less."
Vide also Kitch. 223, where he adds, "Enquest shall be by custom of the realm between party and party, in a court of record, by twelve at the common law,” cites Dr. and Stud. f. 14. Again, in the same page he says, "verdict of eleven shall not be taken," cites 41 Ass. 11; 41 Edw. 3, f. 31, and 29 Edw. 3, f. 33. And again, in the same page, 'Every inquisition taken in the sheriff's turn shall be by twelve, and the same law is said there in a leet by the equity of the statute of 6 Hen. 4, fol. 3. Notwithstanding, seek if less than twelve may try issue between parties in the court of a lord of copyhold, or not, where there are not twelve within the manor; for it is held by some, that it shall be tried by less, and I have seen a trial between three or four. But I intend it is hard, and especially where there are twelve and more copyholders within the manor, and also it appears in the register, that an action was removed out of the court baron, because there were but four suitors, and so I conclude, issue for copyholders shall not be tried by less than twelve, 6 Hen. 4, f. 1." Ibid. p. 224; vide also Co. Litt. 155 b, n. 3.
(g) These references will be greatly facilitated by keeping a very correct index book of all copyhold assurances, voluntary grants, licenses, &c., under an alphabetical entry of the names of the copyholders of the manor.
vice to the customary court baron of -, here this day to be holden for the manor of or that have been summoned to appear at this court, draw near and give your attendance, every tenant answering to his name as he shall be called."
Suit roll. The suit roll should then be called over, marking against such of the tenants as appear [ap.], and against such as are duly essoined [ess.] (h).
Swearing the homage. This being done the homage are to be sworn (i), and their names written in the minute book, marking against them as they are sworn, "SW.," and when sworn, the steward is to give them their charge.
Breviat of charge. Unless any new tenant should be on the homage, this charge is usually confined to a brief detail of the business to be transacted, as far as the proposed acts of transmission of copyhold lands within the manor have come to the steward's knowledge, and to the reminding the homage of their duty to present the death of any tenants since the last court, in order that the lord may claim his advantages of heriot, &c.; and that the estates of such deceased copyholders may be put upon proclamation; and to present for inrolment any surrenders taken out of court by the tenants, or the bailiff or reeve (when that is allowed by the usage of the manor) and likewise any acts by which the copyhold tenements may have been forfeited to the lord, as by executing a feoffment with livery, leasing for a term of years without license, committing waste, or the like.
Full charge. But when there are any new tenants, it may be proper to give the charge more at length, calling the attention of the homage to the following detail of their duty, (and with such additional observations in conclusion, as the particular business of the day may seem to require on the part of the steward, as the judge of the court;) viz.
First. Reminding the homage that it is their province to present the death of any of the tenants since the last general court, and whether they left any heir inheritable by the custom, and any surrenders taken out of
(h) Ante, pt. 1, p. 363. It behoves every lord of a manor to call over the names of the copyholders at each general court, in order that the tenants may be the better enabled to watch over his interests, and to defeat any attempt to convert the copyhold into freehold tenure. We have seen that copyholds were within the statute of non-claim, 4 Hen. 7, when the fine was levied by a disseisor, ante, pt. 1, p. 81, 82; and it was decided in Margaret Podger's case, 9 Co. 105, that the lord was not allowed five years after the death of the copyholder, even if he had been a copyholder for life, but must have made his claim within five years after the fine was levied. It must
not, however, be supposed, that it was in the power of the copyholder covinously to effect a bar to the lord by a feoffiment aud fine; the contrary was decided in Fermor's case, 3 Co. 77, Toth. 165, where the copyholder continued in possession, and paid his rent; and was recognized in the above case of Margaret Podger. See also Co. Litt. 330 b, N. 1; ante, pt. 1, pp. 434, 435. But see the act of 3 & 4 Will. 4, c. 74, abolishing fines and recoveries, referred to ante, pt. 1, p. 57, and extracted, post. And see as to the operation of a feoffment, 8 & 9 Vict. c. 106, s. 4.
(i) See the oath, post, "Forms of Precepts, &c." [B.]
court by themselves or other tenants of the manor, or the bailiff or reeve, when such a custom prevails (k).
Secondly. Impressing upon them the particular necessity of their informing themselves of any alienation of copyhold property within the manor by a common law assurance, and especially by deed of feoffment either with or without a fine, and whether by way of sale or mortgage, or otherwise, which alienation by feoffment would be a forfeiture to the lord of the estate so conveyed, and ought therefore more particularly to be presented in court for his instruction (1).
Thirdly. The necessity also of their inquiring of any leases of copyhold property (or of any mortgage by demise operating as a lease) beyond the term of a year, or any greater term permitted by the custom of the manor, without the license of the lord for so doing; and which would also be a forfeiture, and presentable at the court (m).
Fourthly. Whether any of the copyhold tenants have been convicted of treason, or felony (n), or been outlawed for any capital crime (o), or have committed voluntary waste by pulling down houses, barns, or other outbuildings (p), cutting down trees, digging for mines or the like: or permissive waste, by neglecting to repair buildings, or injury to lands in not attending to the ordinary rules of cultivation (g), or have inclosed where no inclosure has been before, or removed or abated an ancient inclosure or land mark (r).
Fifthly. Whether any purchase has been within the manor by an alien, or other persons incapacitated from purchasing or holding copyhold tenements (s).
Sixthly. Whether any encroachments have been made on the waste of the lord, in order to their immediate removal, as a possession for twenty years would be deemed adverse as to the lord (t).
And lastly, charging the homage of their duty to inquire of all other things concerning the lord's interest, or which in their consciences ought to be inquired of as between the lord and tenant, or as between tenant and tenant, and to make due presentment thereof accordingly (u).
Presentments. The homage are generally prepared with their presentments, but if not, they are to retire and consider of them.
The next step is, for the steward to enter in his minute book the several presentments of deaths, surrenders out of court, acts of forfeiture, &c., and
(k) Ante, pt. 1, p. 125.
(1) Ante, pt. 1, p. 434.
(m) Ante, pt. 1, p. 436, &c. (n) Ante, pt. 1, P. 439.
(0) Ante, pt. 1, p. 442.
(p) In Doe d. Grubb v. The Earl of Burlington, 5 Barn. & Adol. 507, the jury having found that no damage ensued from the pulling down of a barn, the Court of B. R. held that the act was not waste. Ante, pt. 1, p. 442, 443.
(9) Ante, pt. 1, p. 442, 443.
(r) Ante, pt. 1, p. 445.
(s) Ante, pt. 1, p. 109, 455 et seq. (t) Ante, pt. 1, pp. 431, 442, 469; Fisher, 180.
(u) N. B. The steward is not bound to receive any presentments whereby the rights of the lord may be prejudiced; 1 Ca. & Op. 172.
also a minute of any surrenders, warrants to enter satisfaction on conditional surrenders by way of mortgage, licenses to demise, &c., taken or granted since the last court by the lord, or by the steward, or any person acting under his deputation.
The several surrenders and warrants out of court should then be indorsed thus:- "Presented and inrolled at a court held for the manor of to which the foreman and another homager are to subscribe their names.
Proclamations. When any tenant's death is presented, the bailiff should notify it at the door of the court by proclamation, thus:
"If any one can make any title or claim to the copyhold tenements holden of this manor, whereof A. B. lately died seised, let him appear, and he shall be admitted, and in default, the same will be taken into the hands of the lord, for want of a tenant: this is the [1st] proclamation."
And if no claim should be established at the same court, a like proclamation is to be made at the succeeding general court, and to be repeated at the third general court, should no claim be established at the second.
So when there is a custom to compel a surrenderee to be admitted, if any surrender made out of court is presented, or if any surrender be made in court, the bailiff is to notify such surrender, thus:
“A. B. [the surrenderee] come into court, and be admitted to the copy"hold tenements holden of this manor, and surrendered to your use by "C. D., or the same will be seized into the lord's hands."
Surrenders in court. If any tenant should desire to make a surrender in court of all or part of his copyhold lands, the steward, by reference to the court rolls, is to satisfy himself that the person is seised for the estate he proposes to transmit to another, and, since the act 48 Geo. III. c. 149, is to make the copyholder sign a declaration of the proposed surrender being made on a sale, or mortgage or otherwise, and, if on a sale or mortgage, of the amount of the consideration money to be paid, in order that the sum may appear on the face of the court rolls, and of the copy thereof to be delivered to the purchaser or mortgagee, and by which the amount of the stamp duty is to be regulated.
And then (the copyholder holding one end of the rod, or other symbol, and the steward holding the other end,) the steward is to say, "You sur"render into the hands of the lord of this manor, by my hands and ac"ceptance by the rod, All, &c., with their appurtenances, and all your es"tate and interest therein, to the use of C. D. and his heirs for ever, according to the custom of this manor."
Should the surrender be for life only, or other particular estate, the words in italics are to be omitted, and others substituted to meet the particular case.
If the surrender be conditional by way of mortgage, the steward will add," But on the express condition, that this surrender is to be void, on "payment to the said C. D. of £- and lawful interest for the same, on "the- day of next [or as the case may be"]. And the copyholder is to answer affirmatively, relinquishing the rod or other symbol into the steward's hand.
Examination of feme covert. When the surrender is of the copyhold of the wife, or when the alienation of the husband does not defeat the wife's customary dower (x), she is to join in the surrender, and is previously to be questioned by the steward, apart from her husband, as to her voluntary consent to the proposed act, the same as on levying a fine of freehold lands prior to the act of 3 & 4 Will. IV. c. 74 (y).
Arrears of rent. It would seem that a copyholder is not chargeable with any arrears of rent due before his admission, so that previous to the admittance of any new tenant the steward should ascertain that no rent remains due (z).
Admittances. If any persons attend to be admitted, the steward is to investigate their claims, with reference to the title as it already appears upon the court rolls, or may be deduced by will, or intestacy, or otherwise, and to make a short minute of the circumstances, to enable him afterwards to draw out the admission in due form; and when the will or other document is very long, and it cannot be left with him, he will require to have a copy or full extract from it.
Being satisfied of the claimant's right to admittance, the steward (he having hold of one end of the rod or other symbol, and the claimant holding the other) is to say: "The lord of this manor, by me his steward, "doth admit you tenant to the copyhold tenements holden of this manor, "of which A. B. lately died seised, [or which have been surrendered to your use, at this court, by A. B.,] [or which were surrendered by A. B., to your use, on the day of]. And this is to hold to you and your heirs, "[or as the case may be] at the will of the lord, by the accustomed fine, heriot, rents, and services; in token whereof I deliver to you this rod,"
(x) Ante, pt. 1, p. 72, et seq., p. 134. (y) Ante, pt. 1, p. 130, et seq.; post, p. (751).
The 77th section of the above mentioned act, authorizing married women to convey by deed, expressly excepts the case of a copyhold, where the wife, or she and her husband in her right, may be seised for an estate at law, and which prior to the act could have been passed by a surrender.
By the 90th section, a surrender either in or out of court by a husband and wife of copyhold lands, in which she alone, or she and her husband in her right may have an equitable estate, the wife being separately examined as if the estate were an estate at law, will bind the wife and all persons claiming under her; and all surrenders made prior to the act, of lands similarly circumstanced, the wife having been separately examined by the person
taking the surrender, are thereby declared to be valid.
Although a surrender is the preferable mode of conveyance, yet the author apprehends that an equitable estate in fee, or for life, of a married woman, in copyholds, may be conveyed by deed under the 77th section, such deed being acknowledged by her in the manner directed in the 79th section.
See as to the mode of barring an equitable estate tail of a feme covert in copyholds, post (751), n. (i).
And note, that the release or extinguishment by a feme covert of a mere right, or a power, in regard to copyhold lands, is to be effected by a deed, (s. 77,) the deed being acknowledged as directed by the 79th section, and the husband concurring in it. (z) Ante, pt. 1, p. 366.