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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 (b). 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.
(b) Ante, pt. 1, p. 353, &c.
(c) Ante, pt. 1, p. 362.
(d) Ante, pt. 1, p. 211; and p. 247,
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 any such particular uses as he may desire (g).
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 power of disposition shall not be exercised by women tenants in tail ex provisione viri, under 11 Hen. 7, c. 20, except with the assent required by that act. And the 18th section has provided that the power shall not extend to cases where the reversion is in the crown, or to tenants in tail after possibility of issue extinct. And the 20th section prohibits the issue of tenants in tail from barring their expectancies.
(g) By the 50th section, a disposition by a tenant in tail, whose estate shall be an estate at law, must be by surrender, but a disposition by a tenant in tail, whose estate shall be merely an estate in equity, may be either by a surrender, or by deed, as provided for by the 53rd section, and by which equitable tenants in tail of copyhold lands are authorised to dispose of such lands by deed, and the deed is not required to be inrolled otherwise than by entry on the court rolls (see sect. 54). The 53rd section also requires that if there shall be a protector, he shall consent to such disposition by a distinct deed, to be entered on the court rolls, and the lord or steward to indorse or sign a memorandum thereon, testifying the entry thereof on the rolls. And it also provides that every disposition by deed by an equitable tenant in tail of copyholds, shall be void against any person claiming the lands for valuable consideration under any subsequent assurance, duly entered on the court roll, unless such deed of disposition be entered thereon before the entry of such subsequent assurance.
On an application to inrol a deed of disposition under the 53rd section, it is suf
ficient if the affidavit discloses the contents, and not necessary to annex a copy of the deed. Ante, pt. 1, p. 61, n. (o).
(h) The consent of the protector to a disposition of copyhold lands may be given to the person taking the surrender, or by deed. If the consent be given in court, the entry of the surrender on the rolls is to contain a statement that the consent had been given, and if the surrender be made out of court, the memorandum of surrender must contain a statement that the consent had been given, and be signed by the protector; (s. 52). And if the consent be given by deed, such deed, executed by the protector, must be produced to the lord or steward at the time when the surrender shall be made, and the lord or steward is to indorse on the deed an acknowledgment that the same was produced within the time limited, and to cause such deed and indorsement to be entered on the court rolls, and after entry thereof, is to indorse and sign a memorandum thereon, testifying such entry on the court rolls; (s. 51).
When a married woman is the protector, she and her husband are as one owner, unless the prior estate was settled to her separate use, and then she alone is the protector of the settlement; (s. 24).
The 45th section enacts that a married woman being, either alone or jointly with her husband, protector of a settlement, may in the same manner as if she were a feme sole give her consent to the disposition of a tenant in tail.
Under the 27th, 28th, and 31st sections, no woman in respect of her dower, 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 any other uses that may be desired (i).
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 protector of the settlement, except that under a settlement made prior to the act, the person, who, being a bare trustee, would, if the act had not passed, have been the proper person to make the tenant to the precipe, is to be deemed the protector. And see s. 28, as to the person to be the protector when there shall be more than one estate prior to an estate tail, and the owner of any such prior estate shall be excluded from being the protector by being a bare trustee, heir, &c.
(i) A surrender would seem also to be the proper mode of conveyance under the above mentioned act by a feme covert equitably intitled to an estate tail, though the author apprehends that she might bar the intail by deed, to be entered on the court rolls (see ss. 53 and 54); but the deed would require to be acknowledged under the 79th section.
N.B. By the 76th section of the above statute, the Court of Common Pleas is to regulate the fees to be paid for entries of deeds on the court rolls of manors, and for the indorsements thereon, and for taking the consent of the protector, when not given by deed, and for taking surrenders by tenants in tail of copyhold lands, and entering such surrenders, or the memorandums thereof, on the court rolls. See the rules, post; vide observations on the
above statute, ante, pt. 1, pp. 57, 61.
(k) N.B. By 3 & 4 Will. 4, c. 27, plaints in nature of possessory actions and writs of right were abolished from 31st December, 1834, with the exception of a plaint for freebench; and except that by the 37th section a real action was permitted to be brought at any time before the 1st June, 1835, where, on the 31st December, 1834, the party had not a right of entry, but was entitled to maintain such action, and although the twenty years had expired and that by the 38th section, where a right of entry had been taken away by a descent cast, discontinuance, or warranty, such action was maintainable at any period during which by virtue of the provisions of the act an entry might have been made, if the right had not been so taken away; see ss. 2, 16, 17, and 18.
(1) See the form of plaint in customary dower, and prayer of process, at the end of precedents of court rolls.
Much useful information will be found as to the proceedings in a plaint in nature of a writ of dower, and of a writ of right of dower, by analogy to the common law writs, in the 1st vol. of Roper's Law of Husband and Wife, p. 425 et seq.; and see Booth, 118, 166 et seq.; 3 Chitty on Plead. 593 et seq.; ante, pt. 1, p. 477. (m) Ante, pt. 1, p. 363.
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 end by proclamation, 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 (q).
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
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 copyholds 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 surrenderee (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 (x).
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, "Copyhold Assurances."
(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.
(x) 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.