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the lord pro tempore, the succeeding lord can take no
be waved, some act must be done by the lord to revest the estate in him. (2)
The grantee of the freehold interest in a copyhold, may Grantee of also take advantage of a forfeiture of the copyhold copyhold. interest. (3)
A person having an equity only, as a cestui que trust, or an No forfeiture of unadmitted surrenderee, cannot commit a forfeiture, he equitable intenot being tenant to the lord. Accordingly, it has been decided, that the lord can make no claim, by reason of an escheat of the equitable estate, since he only takes propter defectum tenentis. (4)
But if a copyhold tenant was trustee for another, and Her of trustee. died, and the cestui que trust died without heirs, the heir of the trustee had no equity to compel the lord to admit him. (5)
And it was settled by the case of Burgess v. Wheate,(6) Death of trusthat a cestui que trust had no title as against the lord claiming by escheat upon the death of a trustee without
tee without heir.
Accordingly, in the recent case of Attorney General v. Duke of Leeds, (7) where A. having borrowed £1150 from B., made an absolute surrender of a copyhold estate to B. in fee, who was thereupon admitted tenant, and afterwards died without an heir; the lord was held entitled to the copyhold estate.
The surrenderor of a copyhold being tenant for all Forfeiture by purposes of service until the admission of the surrenderee, mortgagor. the latter before admittance might, previously to the statute
(1) 3 T. R. 173. Doe v. Trueman, 1 Bar. & Adol. 744. 1 Watk. Cop. 414, [4th ed.] Co. Cop. s. 60.
(2) Doe v. Evans, 5 Bar. & Cress. 584.
about to be noticed, have been seriously prejudiced by the act of the former: so that in a recent case, where a copyholder, having surrendered by way of mortgage, was convicted of felony before the admission of the surrenderee, and by the custom of the manor a conviction for felony occasioned a forfeiture, the estate was held to be forfeited, and the surrenderee not entitled to be admitted. (1) In the case of copyholds and customary freeholds, where the title depends on admission, the lord taking by escheat, was not subject to the charges and incumbrances or alienation of the tenant, unless by act of admission he
expressly assented to them. (2) Statute respecto The recent statute of 4 & 5 W. 4, c. 23, which applies ing escheat and forfeiture.
to land of every tenure, has enacted, (sec. 11) that where a person seised of land upon any trust, or by way of mortgage, dies without an heir, it shall be lawful for the Court of Chancery to appoint a person to convey such land in manner provided by 11 G. 4, and 1 W. 4, c. 60, s. 8, in case such trustee had left an heir, and it was not known who such heir was.
The 3rd section enacts, that no land vested in any person upon any trust or by way of mortgage, or any profits thereof, shall escheat or be forfeited to the crown, lord of a manor, or other person, by reason of the attainder or conviction for any offence of such mortgagee or trustee, but shall remain in such trustee or mortgagee, or survive to his co-trustee, or descend or vest in his representative, as if no such attainder or conviction had taken place.
The 4th section extends the act to the case of a trustee having some beneficial estate or interest in the same subject, or some duty to perform, and to implied trusts: but the 5th section provides that the act shall not prevent the escheat or forfeiture of any land, &c., vested in such trustee or mortgagee, so far as relates to any beneficial interest he may have.
(1) Rex v. Mildmay, 5 Bar. & Adol. 254.
The 6th section has a retrospective operation with respect to property escheated or forfeited by any trustee, at the time of the passing of the act, (June, 1834).
2. Of the Tenant's interest in the Wastes of the Manor,
his right to fell Trees, to open and work Mines,
Copyholders are not entitled to right of common on the Right of comwastes of the manor, except under the sanction of a special custom.(1)
A copyholder will not, in the absence of custom, be justified, without the license of the lord, in felling trees Trees, &c. growing on the copyhold property, (2) nor in opening and working mines under the copyhold lands: (3) though a copyholder of inheritance, or for life with power to renew or nominate his successor, may by custom be warranted in felling trees, and opening mines without the lord's concurrence; and a copyholder of inheritance, so warranted, may communicate his power to his own surrenderee for life or years. (4) But a custom for a copyholder for life to commit waste would not be good. (5)
The relative rights of the lord and tenants are sometimes ascertained by agreement. (6) It seems also that copyholders of fenny and marshy lands may by custom be authorized to dig up the lord's soil for turf. (7)
It has been thought, that a right claimed by the tenants Gravel, &c. of a manor to dig and carry away gravel, sand, and soil
(1) 6 Co. Rep. 60 b.
(3) 1 P. Wms. 206. Bourne v. Taylor, supra. 17 Ves. 282. 19 Ves. 214. Gilb, Ten. 327.
(4) Mardiner v. Elliot, 2 T. R. 746. Denn v. Johnson, 10 East, 266.
from the wastes, to be expended on the copyhold tenements, could not be supported as a reasonable custom, but that to render it such, the right must be confined to necessary consumption and repairs upon the ancient copyholds of the manor. (1)
Copyholders are said to be entitled of common right to estovers, that is, to a sufficiency of wood for repairing the house and fences, and for the making and repairing of implements of husbandry. But the taking of such estovers may be modified by custom, as that it shall be by the assignment of the lord or his bailiff;(2) and a copyholder may by custom be entitled to have common of estovers in the lord's wood, parcel of the manor whereof the copyhold is held. (3)
It has been laid down, that when a fence is erected on a common, inclosing and separating parts of the common from the residue, and thereby interfering with the rights of the commoners, the latter are entitled to consider the whole of the fence as a nuisance, and to remove it accordingly. (4)
Inclosure of common.
3 Of Services and Rents: herein of Amercements;
of Services rendered by Joint Tenants, Coparceners, and Tenants in Common; of Quit Rents, and the recent Statute of Limitations.
Fealty and suit of court are services usually rendered by the copyhold tenants of a manor to the lord, homage not being applicable to copyholders. (5)
Of fealty but little is heard at the present day, and it has long been the practice to dispense with it, by entering
(1) Scriv. Cop. 620. Peppin v. Shakespear, 6 T. R. 748.
(2) 13 Co. Rep. 68.
the same on the Court Rolls as respited: (1) but every copyholder is bound to attend the lord's court, and such attendance may be enforced by amercement, and also by distress.
An amercement is a sum of money imposed on the Amercement. tenant by the steward, by the oath and presentment of the homage, for default of-doing suit, or for other misdemeanors punishable by the Court Baron, and is incident to that court, fines not being incident to a Court Baron, but to a Court of Record only; and for amercements the lord may distrain, or bring an action of debt. (2)
From joint tenants and coparceners one suit only is due, Suit from they being but as one tenant; but tenants in common joint tenants, must do several services and suits. (3)
Small annual sums are frequently payable by the tenants Quit rents. to the lord under the denomination of quit rents, recoverable by distress.
Before the statute of 3 & 4 W. 4, c. 27, the limitation Limitation as to applicable to the recovery of customary rents under the recovery of 32 H. 8, c. 2, was fifty years. (4) The second section of rents, &c. the recent statute has enacted, that no rent (which extends to all services and suits for which a distress may be made, and periodical sums of money), shall be recovered but within twenty years from the right accruing, with an allowance for disabilities: and the forty-second section has enacted, that no arrears of rent shall be recovered but within six years from the same becoming due.
(1) 1 Watk. Cop. 325, [4th ed.] (2) Co. Cop. s. 26, 31. (3) 6 East, 484. 2 Watk. Cop. 136, [4th ed.] (4) Collins v. Goodall, 2 Vern. 235. Eldridge v. Knott, Cowp. 214. 10 Ves.