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(or other symbol, and which the steward relinquishes into the hand of the new tenant].
The preceding observations, although applicable only to copyholds of inheritance, will render it unnecessary to lay down any particular rules for the steward's guidance, when the copyholds are held for lives. The only material variation in those cases is, that the copyholder for lives, when desirous of adding or exchanging a life, surrenders absolutely to the lord for the existing life or lives, to the intent that he will re-grant for the old and new lives, and the steward signifies that the lord by his hands grants seisin accordingly.
And when the reversionary cestui que vies have a legal interest, and there is no special custom authorizing the first life to destroy the whole estate (a), they must join in the surrender.
Fine. When the fine is certain, or the lord and tenant have agreed on the amount, it is then to be paid with the steward's fees, and also the court fees, (being usually a small payment to the bailiff on every surrender and admittance;) but if the fine be uncertain, and no agreement has been made, the steward is to assess it, and appoint a day and place for the payment (6).
Fealty. It was at this stage of the court business that the oath of fealty, now usually, if not invariably, commuted by a small payment, and entered as respited, was administered (c).
Surrender to will. When admittance has taken place, the copyholder may, notwithstanding the provisions of the act 1 Vict. c. 26, s. 3, surrender his estate to the uses of his will(d), which surrender is to be made in the manner already explained, the uses of the surrender being thus stated by the steward, viz. “ to the use of such person or persons, for such “ estate or estates, intents and purposes, as he (the copyholder) by his last “ will and testament in writing already made, or afterwards to be made, “ hath given, devised, directed, or appointed, or shall give, devise, direct
or appoint the same.”
Precept to seize. If three proclamations have been made as to any copyhold tenement, or if the party intitled to admission has been served personally with notice to appear at the court, and the heir or other person so intitled should not attend and claim to be admitted, the steward is to issue a precept to seize the same (e) in the form [C] (post, “ Forms of Precepts, &c.").
Surrender to bar an estate-tail under 3 & 4 Will. IV. c. 74. By the operation of this statute a different course was prescribed to the steward, when a copyholder, subsequently to the 31st of December, 1833, attended in court for the purpose of barring an estate-tail, and of acquiring an absolute or base customary fee.
If the party should not have been already admitted, either separately, or by the previous admission of the particular tenant, under the rule of law that an admission of a tenant for years or for life is the admission of all in
(a) Ante, pt. 1, pp. 27, 124.
and n. (a).
(e) Ante, pt. 1, p. 285; but it would seem that a written precept to seize is not absolutely necessary; ante, pt. 1, p. 288.
remainder, he is, of course, first to be admitted tenant of the estate in tail, and then, under the 15th, 40th, and 50th sections of the above mentioned act (f), he must surrender to the use of himself in fee, or to
particular uses as he may desire (9).
Should the party be tenant in tail in remainder, he is to be informed by the steward that a surrender by him alone would only create a base fee, though under the 19th section of the above act he might afterwards, with the concurrence of the particular tenant, intitled for a term of years determinable on a life or lives, or any greater estate, as protector of the settlement under the 34th section of the act(h), or alone after the determination
(f) The 16th section enacts that the ficient if the affidavit discloses the contents, power of disposition shall not be exercised and not necessary to annex a copy of the by women tenants in tail er provisione viri, deed. Ante, pt. 1, p. 61, n. (o). under 11 Hen. 7, c. 20, except with the (1) The consent of the protector to a assent required by that act. And the disposition of copyhold lands may be given 18th section has provided that the power to the person taking the surrender, or by shall not extend to cases where the rever- deed. If the consent be given in court, sion is in the crown, or to tenants in tail the entry of the surrender on the rolls is to after possibility of issue extinct. And the contain a statement that the consent had 20th section prohibits the issue of tenants been given, and if the surrender be made in tail from barring their expectancies. out of court, the memorandum of surrender
(8) By the 50th section, a disposition must contain a statement that the consent by a tenant in tail, whose estate shall be had been given, and be signed by the proan estate at law, must be by surrender, tector; (s. 52). And if the consent be but a disposition by a tenant in tail, whose given by deed, such deed, executed by the estate shall be merely an estate in equily, protector, must be produced to the lord or may be either by a surrender, or by deed, steward at the time when the surrender as provided for by the 53rd section, and shall be made, and the lord or steward is by which equitable tenants in tail of copy- to indorse on the deed an acknowledghold lands are authorised to dispose of ment that the same was produced within such lands by deed, and the deed is not the time limited, and to cause such deed required to be inrolled otherwise than and indorsement to be entered on the by entry on the court rolls (see sect. 54). court rolls, and after entry thereof, is to The 53rd section also requires that if there indorse and sign a memorandum thereon, shall be a protector, he shall consent to testifying such entry on the court rolls ; such disposition by a distinct deed, to be (s. 51). entered on the court rolls, and the lord or When a married woman is the protector, steward to indorse or sign a memoran
she and her husband are as one owner, dum thereon, testifying the entry thereof unless the prior estate was settled to her on the rolls. And it also provides that separate use, and then she alone is the every disposition by deed by an equitable protector of the settlement; (s. 24). tenant in tail of copyholds, shall be void The 45th section enacts that a married against any person claiming the lands for woman being, either alone or jointly with valuable consideration under any subse- her husband, protector of a settlement, quent assurance, duly entered on the court may in the same manner as if she were a roll, unless such deed of disposition be en- feme sole give her consent to the dispotered thereon before the entry of such sub- sition of a tenant in tail. sequent assurance.
Under the 27th, 28th, and 31st secOn an application to inrol a deed of dis- tions, no woman in respect of her dower, position under the 53rd section, it is suf- nor a bare trustee, heir, executor, admi
of the particular estate, acquire an absolute customary fee by an ordinary surrender.
If the tenant in tail be a feme covert, she may acquire an absolute customary fee when intitled in possession, or a base fee when intitled in remainder, or, in the latter case, an absolute reversionary fee, the protector of the settlement concurring, by a surrender from herself and her husband, the wife being examined by the steward as to her voluntary consent; such surrender is to be made to the use of the wife and her heirs, or to
other uses that may be desired (ö).
Adverse Customary Plaints(k). At this stage of the proceedings, the bailiff should make further proclamation thus: “Oyez; If any person will enter any plaint, let him come into court and he shall be heard.”
The steward will then enter any plaints in the order they are tendered (1).
Amercements. If any copyholder should have been amerced for nonattendance or otherwise (m), an entry should now be made thereof by the steward ; and such amercement is to be affeered by two of the oldest
nistrator or assign, is to be deemed the above statute, ante, pt. 1, pp. 57, 61. protector of the settlement, except that (k) N.B. By 3 & 4 Will. 4, c. 27, under a settlement made prior to the act, plaints in nature of possessory actions and the person, who, being a bare trustee, writs of right were abolished from 31st would, if the act had not passed, have been December, 1834, with the exception of a the proper person to make the tenant to
plaint for freebench; and except that by the precipe, is to be deemed the protector. the 37th section a real action was permitAnd see s. 28, as to the person to be the ted to be brought at any time before the protector when there shall be more than 1st June, 1835, where, on the 31st Deone estate prior to an estate tail, and the cember, 1834, the party had not a right of owner of any such prior estate shall be
entry, but was entitled to maintain such excluded from being the protector by be- action, and although the twenty years had ing a bare trustee, heir, &c.
expired: and that by the 38th section, (i) A surrender would seem also to be where a right of entry had been taken the proper mode of conveyance under the away by a descent cast, discontinuance, above mentioned act by a feme covert or warranty, such action was maintainequitably intitled to an estate tail, though able at any period during which by virtue the author apprehends that she might bar of the provisions of the act an entry might the intail by deed, to be entered on the have been made, if the right had not been court rolls (see ss. 53 and 54); but the so taken away; see ss. 2, 16, 17, and 18. deed would require to be acknowledged (1) See the form of plaint in customary under the 79th section.
dower, and prayer of process, at the end of N.B. By the 76th section of the above
precedents of court rolls. statute, the Court of Common Pleas is to Much useful information will be found regulate the fees to be paid for entries of as to the proceedings in a plaint in nature deeds on the court rolls of manors, and of a writ of dower, and of a writ of right for the indorsements thereon, and for tak- of dower, by analogy to the common law ing the consent of the protector, when not writs, in the 1st vol. of Roper's Law of given by deed, and for taking surrenders Husband and Wife, p. 425 et seq.; and by tenants in tail of copyhold lands, and see Booth, 118, 166 et seq.; 3 Chitty on entering such surrenders, or the memo- Plead. 593 et seq.; ante, pt. 1, p. 477. randums thereof, on the court rolls. See (m) Ante, pt. 1, p. 363. the rules, post; vide observations on the
and most respectable tenants of the manor, who are to be sworn as affeerors in the form (L.] (n).
Licenses. As licenses, whether to demise or to take down buildings, or otherwise, operate as a dispensation of the forfeiture which would otherwise accrue to the lord, and form no part of the ministerial acts of the steward, he is to exercise his discretion in complying with any applications which may be made by the tenants for this act of dispensation, unless indeed custom has established the right to a license for alienation by a common law assurance, on payment of a settled fine; and he is to make a minute of the terms of the grant, and to notify it to the homage (o).
At the conclusion of the business of the day, the steward should read over the heads of the several entries in his minute-book to the homage; and at the foot of the minutes should be written,
“We present this as our verdict:” to which the foreman is to subscribe his name, and so each homager after him, according to their priority of admission to copyholds within the manor (p). And then the bailiff is to declare the court at an clamation, thus:-
“Oyez; All manner of persons that have appeared at this customary “Court Baron of A. Z. have leave to depart hence, keeping their day and “ hour on a new summons (9).
end by pro
Special Court. It is sometimes found to be convenient to hold a special customary Court Baron, to effect a proposed transmission of copyhold property (r); and in that case it is usual to summon two or three homagers only, and after the court has been opened by the bailiff, to administer the following oath to them, viz.
“ You, and each of you, shall inquire, and true presentment make, of all “such things as shall be given to you in charge, and of all such other “matters as shall come to your knowledge, presentable at this court(s); “this you shall do without fear, favour, or affection, hatred or malice, So “help you God.”
The steward will then explain to the homage the nature of the business for which the court is called, who will make their presentments accordingly; and the entries by the steward of the acts of assurance will correspond with the like minutes at a general court, which minutes are also in like manner to be presented as the verdict of the homage, and then the bailiff discharges
(n) Post, “ Forms of Precepts," &c. (0) Ante, pt. 1, pp. 456, 458.
(p) When any tenant enters the court after the homage are sworn, it is proper to let him sign his name as having been present during part of the proceedings, but not sworn.
(9) If it be found necessary to adjourn
the court, it should be done by a proclamation of this nature, stating the time to which it is so adjourned, when the bailiff should proclaim the re-assembling of the court,
(r) Ante, pt. 1, p. 5.
the attendance of the persons assembled, by a similar proclamation as on the occasion of a general court.
Further instructions in particular Cases.
Bankruptcy. When a bankrupt is intitled to copyhold lands, except as regards any copybolds belonging to him as tenant in tail, the steward is to require the production (for the purpose of presentment) of the bargain and sale of one of the commissioners, (or, in a country fiat, of all the commissioners, ante, pt. 1, pp. 303, 304), authorising some person (usually the bankrupt(t)) to surrender the copyhold lands, and is to accept a surrender accordingly, and to admit the surrenderce (u).
But the following provisions in the act of 3 & 4 Will. IV. c. 74, with regard to copyholds belonging to a bankrupt as tenant in tail, are to be observed by stewards of manors, when the fiat issued subsequently to the 31st December, 1833 (c).
The 55th section repeals the bankrupt act of 6 Geo. 4, c. 16, as far as relates to the power given to the commissioners to make sale of lands vested in the bankrupt for an estate tail, but not to extend to the lands of a bankrupt under any commission or fiat issued on or before the 31st of December, 1833, nor to revive former acts. The 56th section authorises any commissioner acting in the execution of a fiat issued after the 31st of December, 1833, in the case of an actual tenant in tail of lands of any tenure, by deed to dispose of such lands to a purchaser, and to create by such disposition as large an estate in the lands as the actual tenant in tail could have done if he had not become bankrupt, the consent of the protector, if any, being made requisite to a disposition of such intailed lands for an absolute estate in fee. The 56th and 57th sections give to the disposition of the commissioner the same force as the disposition of the tenant in tail or owner of a base fee would have had if no bankruptcy had taken place. The 58th section places the commissioner, with reference to any dealings with the property, in the situation of the tenant in tail, in cases where there is a protector of the settlement.
The 59th section requires that the deed of disposition of a bankrupt's copyhold property under the provisions of the act shall be entered on the court rolls, and that if there shall be a protector, and his consent be given by a distinct deed, the consent shall be void, unless the deed of consent be executed either on or before the day on which the deed of disposition shall be executed by the commissioner, and that such deed of consent shall be
(t) See the reason for this in the precedent of bargain and sale of the copyhold of a bankrupt, post,
(u) Ante, pt. 1, pp. 302, 303, 304.
If the surrender should have been previously made out of court, it is to be produced at the court, and presented by the
homage, or be entered on the court rolls under the 89th section of 4 & 5 Vict. c. 35.
(r) See ante, pt. 1, pp. 64, 65, 83, 302, n. (x), as to copyhold lands vested in the bankrupt for an estate tail, when the fiat issued prior to 31st December, 1833.