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of the execution of the indenture, the to or arising out of the premises, whe-
cution of the indemnities; and that
the award was good, although B. was
II. Finality of Award.
Award de Præmissis.]-A cause and
all matters in difference between the
parties were referred to a barrister.
A cross-claim was urged on the part of
The arbitrator, professing to make his
award “of and concerning the said
several premises so referred as afore-
said,” after disposing of all the issues
in favour of the plaintiff, directed the
defendant to pay a gross sum to the
plaintiff, apportioned the costs of the
reference and award, and, on payment
thereof, directed that the plaintiff
should execute and deliver to the de.
fendant a general release : but nothing
was said in respect of the cross-claim:
-Held, that the award was, neverthe-
less, final: for, that it must be intended
from the silence of the arbitrator upon
the subject that he had negatived the
cross-claim. Harrison v. Creswick,399.
III. Award of Costs.
thereof, including a reasonable com of it, and raising and overloading it.
2. By a submission, it was agreed IV. Award of Payment to a Stranger.
arbitrators." The arbitrators ordered
3. The first count charged the de further ordered that A. should pay,
&c., OP DOWNING COLLEGE.
duced without the lord's consent :' Gilb. Ten. 182. This reasoning seems to be without the consideration, that, though the surrenderee hath nothing till admittance, yet, if the statute were allowed to execute the possession to the estate upon the surrender, the tenant would not be (as is implied in Gilbert's reason) introduced without the lord's consent; for, the surrender must be with the lord's privity, and he can no more refuse the admittance than the surrender. If the mode of the conveyance by surrender and admission was not evaded, the operation of the statute could not be prejudicial as to copyholds; but, in truth, the reason of the statute not extending to them, seems to be, that, from the nature of the tenure, and the mode of conveyance or transfer of copyholds, they do not stand in need of the operation of the statute, i.e, none of the inconveniences which occasioned the statute of uses, as to lands of inheritance at common law, exist as to copyholds.” Here, the lord is asked to accept a surrender to the use of a person he knows not: by this means, he will be ousted of a fine; and no provision is made to insure his having always a tenant on the roll. Edmund Foster may, if he wishes to realise his security, appoint to some one else, and so the lord may lose a fine upon the alienation. The case of Peachy v. The Duke of Somerset, 1 Stra. 454, shews that the lord is not bound to take notice of anything but what appears on the roll, and that he is not bound to take notice of the private agreements and trusts of parties. [Maule, J. Do you find any decided case where the lord has been sustained in his refusal to accept a surrender burthened with a trust?] None has been found. [Williams, J. A copyholder has a right to surrender to the use of his will, though there is no instance of such a surrender
the records of the manor : Pike v. White, 3 Bro. C. C. 286; Church v. Mundy, 15 Ves. 403. Cresswell, J. I think there are manors,—Tinmouth, in
Northumberland, for instance, where the lord will not accept surrenders to trustees.]
0. THE MASTER,
&c., OF DOWNING COLLEGE.
Byles, Serjt., in reply. It is objected that there is no provision here that the lord shall always have a tenant
on the roll. The law, however, provides for that: the • heir is always the tenant. And no hardship is imposed
upon the lord; for, there is here a life beyond which you cannot go, viz. the life of the surrenderor. The true rule is laid down in Brook's Case, Popham, 125, which explains the reason why no case is to be found of the lord being upheld in his refusal to admit. In an ejectione firmæ brought by one Brook against Brook, the case was this :—John Wright, a copyholder in fee, 10 Eliz. surrendered his land into the hands of the lord, by the hands of tenants, according to the custom &c., without saying to whose use the surrender should be ; and at the next court the said John Wright was admitted, habendum to him and his wife in tail, the remainder to the right heirs of John Wright; and the wife of John Wright, now defendant, was seised from the time of the admittance until this day. It was objected by the counsel of the plaintiff, that the surrender was void, because no use was limited, and therefore by construction of law ought to be to the use of the surrenderor; as, if a feoffment be made, and no use limited, it shall be to the use of the feoffor, or, as it is in Sir Edward Cleer's Case, 6 Co. Rep. 18, if a feoffment be made by one to the use of his last will, he hath the use in the mean time. Secondly, that the admittance was not available to pass an estate to the wife, for, she was not named in the premises, but only in the habendum, and the office of an habendum is, to limit the estate, and not the person, and therefore it is said in Throgmorton and Tray's Case, Plowd. Com. 145, that, if one be named to take an estate in the habendum, where he was not named at all
721. 68.;” and they further ordered
II. For Non-performance of an Award,
See ARBITRAMENT, V.
not. Volant v. Soyer, 231.
2. Secondary Evidence of Contents.]
A paper which the attorney admits
to have been delivered out of his office
as a copy of the deed, but which he
states he is unable of his own know-
ledge to vouch to be a copy,—is not
admissible as secondary evidence, upon
the attorney's refusal to produce the
II. Non-Payment of Money pursuant
to a Rule.
The mere non-payment of money by
an attorney, pursuant to an order and
rule of court, is no ground for striking
him off the roll. Guilford v. Sims, 370.
And see CONTRACT, II.