This

forfeiture (c), but meanwhile the lord takes the profits for his own use. right of seizure formerly was a cause of much hardship where the persons entitled to claim admission were infants or lunatics or otherwise incapacitated to protect their own interest. To remedy this, the legislature has provided that a suitable representative of the incapacitated person may appear and claim admission on his behalf (d).

Alienation of

Surrender.

*It is a consequence of the peculiar mode by which copyholders [*194] hold their lands that the manner of transfer of lands inter vivos is wholly different from that which is applicable to ordinary freeholders. The mode of alienation which has continued to the present day is copyholds. very similar to that which obtained in the strict feudal times as to fiefs, before the right of free alienation was established. A copyholder now, when desirous of transferring his interest to another, surrenders his land into the hands of the lord (acting commonly by his steward) to the use of the transferee and his heirs (e). This surrender may be made either in or out of a customary court, or even out of the manor (ƒ). In the former case a notice of the fact is recorded in the court rolls in the latter, a memorandum is made forth with by the steward, which is afterwards entered upon the court rolls (g). Formerly, this memorandum must be presented or proclaimed at the next customary court (h). But the recent legislative improvement in regulating copyhold customs and formalities have reduced the inconvenience and consequent delay and expense which used to attend all these ceremonies to as shadowy a state as is possible consistently with the preservation of the substantial rights of all parties. The copies of the court rolls made by the steward, which evidently contain a notice of every transaction and thing connected with the title to the land, constitute the muniments of title of the tenant (i). The enactments to which we refer (j) have * also made provisions for conveniently holding courts competent to [* 195] transact all the business which now devolves upon them, for, of course, nothing but administrative acts are now required, all judicial proceedings being altogether obsolete. A court may now be held without the presence of a single copyholder (k), the steward or his deputy alone sufficing for every requisite; but proclamations at any court so held are inoperative against absent persons unless notified to them within a month. A court must be held within the manor, no alteration in the old law being made as to this (7).

(c) Doe v. Hellier, 3 T. R. 162; See Doe d. surrenders out of a manor is void, 1 Ld. Bover v. Trueman, 1 B. & Ad. 735. Raym. 76.

(d) 11 Geo. 4 & 1 Will, 4 c. 65; 16 & 17 Vict. c. 70.

(e) In some manors it is necessary for the alienor to execute a deed of bargain and sale and surrender to the alienee; it has been thought that when this was the case the lands were not strictly copyholds, but that the tenant had the freehold, (see Bingham v. Woodgate, 1 Russ. & Myln. 32, 750,) but it seems that they are copyholds, and the freehold is in the lord; Graham v. Jackson, 6 Q. B. 811; Thompson v. Hardinge, 14 L. J. C. P. 268.

(f) A custom that a steward shall not take

VOL. I.68

(g) See 4 & 5 Vict. c. 35, s. 89.

(h) 1 Watk. Cop. 79; 1 Scriv. Cop. 277. (i) 1 Scriv. Cop. 587, 588; Doe d. Garrod v. Olley, 12 A. & E. 481.

(j) 4 & 5 Vict. c. 35, amended and extended by the following acts: 6 & 7 Vict. c. 23; 7 & 8 Vict. c. 55; 15 & 16 Vict. c. 51; 21 & 22 Vict. c. 94; 31 & 32 Vict. c. 89; and continued from time to time by 14 & 15 Vict. c. 53; 21 & 22 Vict. c. 53; 23 & 24 Vict. c. 81; 25 & 26 Vict. c. 73.

(k) 4 & 5 Vict. c. 35, s. 86.

() Doe d. Leach v. Whittaker, 5 B. & Ad.

409.

After a surrender, the person in whose favour it has been made, is in the same position as an heir or devisee; he may at any time require the lord to acknowledge his title by a formal admittance (m). This is a ceremony Admittance. which the steward performs, and may also be either in or out of

court, and in or out of the manor (n).

If a lord refuse, in a proper case, to admit a tenant, courts of law will issue a mandamus to compel him to do so (0); and it is immaterial that there is any defect in the title of a lord acting as such with an apparent title (p), the admission being valid notwithstanding any such defect.

[* 196]

In strict consonance with the old feudal exactions upon the admission of a new tenant, whether following the * death of the former tenant or a surrender by him, there is commonly required by the lord a payment of a fine. Fines are in some cases fixed by custom; in other cases they are left to the arbitrary will of the lord. But now even when arbitrary in name, they are restricted by the rules laid down by courts of common law to two years' improved value of the land (q). In addition to the fines, certain fees are usually paid to the steward (r).

Fines.

In those manors where the custom is to demise the land for lives, the fine is, as might be expected, often arbitrary; and when the admission is made for several lives in succession, the fine payable is usually a full fine for the first life, half that amount for the second, a quarter of it for the third, and so on, so that the whole fine can never amount to double two years' annual value (s).

We may notice that if under a will or other settlement dealing with the copyholds a person is made tenant for life of the property or with some other similar limited interest, the admission of such tenant for life enures for the benefit of the remainderman under the settlement, so that no further fine is payable after the death of the tenant for life, always excepting that there is a special custom of the manor providing otherwise (t).

Where several persons are entitled as joint tenants, the admission of any one is the admission of all (u); this being a consequence of the unity of their possession, of *which we shall see more hereafter: any one of them may demand

[* 197] admission it would seem that in this case the lord is entitled to a

larger fine than on the admission of a single tenant (x).

When the admission is of several persons as tenants in common, a single fine only is payable, which is apportioned upon each so admitted (y).

In estimating the annual value of the property, the quit rents, the expenses

(m) Doe d. Tofield v. Tofield, 11 East, 216; Doe d. Winde v. Lawes, 7 A. & E. 195.

(n) Formerly a steward could only admit in court though the lord himself might admit out of court. Doe d. Leach v. Whittaker, 5 B. & Ad. 409, but 4 & 5 Vict. c. 35, s. 88, altered this.

(0) 1 Wils. 283; R. v. Brewers' Co., 2 B. & C. 172; R. v. Dendy, 22 L. J. Q. B. 89; s. c. 1 E. & B, 829; R. v. Manor of Hexham, 5 A. & E. 559; R. v. Wilson, 3 Best & S. 201; R. v. Wellesley, 2 E. & B. 924.

(p) Doe d. Burgess v. Thompson, 5 A. & E. 532.

(q) Douglas, 724; Douglas v. Dysent, 10 C. B. N. S. 688; Curtis v. Scales, 14 M. & W. 444. (r) R. v. Eton College, 8 Q. B. 526; Evans v. Upsher, 10 M. & W. 675.

(8) Wilson v. Hoare, 2 B. & Ad. 350. See also Wellesley v. Withers, 4 E. & B. 750; Sheppard v. Woodford, 5 M. & W. 608; Garland v. Alston, 3 H. & N. 390.

(t) Dean and Chapter of Ely v. Caldecott, 8 Bing. 439; Phypers v. Eburn, 3 Bing. N. C. 250; Smith v. Glascock, 4 C. B. N. S. 357; Randfield v. Randfield, 31 L. J. Ch. 113.

(u) 1 Watk. Cop. 272, 277. See R. v. Lord of the Manor of Wanstead, 23 L. J. Q. B. 67; s. c. sub nom.; R. v. Wellesley, 4 E. & B. 750.

(x) See the case cited in the preceding note; and Wellesley v. Withers, 4 E. & B. 750; but the point has been decided the other way as to heriots.

(y) 1 Watk. Cop. 312; Scriv. Cop. 374; R. v. Bonsall, 3 B. & Cr. 173.

Heriots.

of repairs, and other outgoings of a like nature, but not the land tax, must be taken into account (z). The right of the lord to the fine accrues only on the admittance, after which he may, though not before, sue for it in assumpsit (a). Another exaction permitted by the customs of some manors is that of heriots. Heriots which were known to the Danes, and probably were introduced by them, are a render of the best beast (b) or other chattel (as may be the custom which fixes the particular article), to the lord on the death of a tenant. They are sometimes due even from the free tenants of a manor as well as the copyhold tenants (c). Frequently also heriots are by custom converted into a money payment of fixed amount (d). Unless by special custom one heriot only is due upon the admission of joint tenants (e). For the latter division of heriots, which is called heriot-service, and is only a species of rent, the lord may distrain, as well as seize, but for [*198] heriot-custom (which Sir Edward Coke says (f) lies only in prender, and not in render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it (g). This speedy and effectual remedy of seizing is given with regard to many things which the lord may in many manors claim as lying as it is said in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the lord or person entitled thereto may seize without the formal process of a suit or action. Not that they are debarred of their remedy by action; but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature as might be out of the reach of the law before any action could be brought.

Reliefs are by special custom sometimes incident to copyhold tenements, but they are usually included in the fine, or at least commuted by custom into a

Reliefs.

certain money payment. In some manors also there is a special custom for the lord to have wardship of an infant tenant, in which case he is accountable for the rents and profits, like a guardian in socage. The right is rarely exercised, the duty being delegated to some relation of the infant tenant. It must be remembered, however, that by the statute of Charles II., (h), which abolished military tenures, the power of appointing guardians by will was given to a father, and even where the custom above mentioned exists, it would seem that the guardian appointed by the father would at least have the control of the person, if not of the copyhold property of the infant (i).

Escheats on failure of heirs and forfeiture on the felony or corruption of blood of the tenant are further incidents of this tenure by which the lord regains possession of the land (k), which again becomes part of the demesne of the manor. On the treason of the tenant it seems that [*199]

(z) Dougl. 724; Lord Verulam v. Howard, 7 Bing. 327; Richardson v. Kensit, 5 Man. & Gr. 485; Dean and Chapter of Ely v. Caldecot, 8 Bing. 439.

(a) 2 T. R. 484; R. v. Wellesley, 2 E. & B. 924; R. v. Lord of Manor of Wanstead, 23 L. J. Q. B. 67.

(b) Formerly the armour of the tenant was rendered as a heriot.

(c) Domerell v. Protheroe, 10 Q. B. 20, a case concerning lands in the manor of S. Tawton, Devonshire.

(d) Garland v. Jekyl, 2 Bing. 273; Mayor, &c., of Basingstoke v. Bolton, 1 Drew. 270, 3 Drew. 50.

(e) Padwicke v. Tyndale 1 E. & E. 184. (f) Cop. s. 25.

(g) Cro. Eliz. 590; Cro. Car. 260.

(h) 12 Ch. 2, c. 24, ss. 8 and 9.

(i) 1 Scriv. Cop. 102, 471; 2 Watk. Cop. 104. Lord Coke, however (Cop. s. 23), is an authority to the contrary.

(k) 2 Scriv. Cop. 631.

the lands are forfeited to the crown (1) if the traitor be seised at the time of his treason, but if it be committed by the heir in the lifetime of the ancestor, there would be merely a defectus tenentis on the death of the ancestor through failure of heirs, and the lands would, if not devised by the tenant, escheat to the lord (m).

A forfeiture to the lord takes place if the tenant does any act unauthorised by custom, as grant a lease for a longer period than the customs of the manor warrant (n), or commit any waste. When the land has thus Forfeiture. reverted to the lord, and become demesne land, it may again be demised by copy (o), and the same seems to be the case if the land, instead of coming to the hands of the lord by escheat or forfeiture, is purchased by him (p), *moreover the merger of the copyhold tenure in the seignory takes [* 200 ] place even if the lord have only a limited interest in the manor (q). If the lordship belong to several, as tenants in common or joint tenants, and one of them purchase copyhold lands held of the manor, a part of the tenancy, in proportion to the interest of the purchaser in the manor, is extinguished (7).

If the lord, being tenant in fee, convey the freehold to the tenant, the land thenceforth becomes in all respects land of ordinary socage tenure, it is severed from the manor, and is enfranchised or made free from every customary duty and burden (s). By the copyhold act before alluded to (†) power is given either to the tenant or to the lord to insist upon enfranchisement, and means are provided for effecting this, in cases where the parties cannot agree to the terms of enfranchisement or some of them are under disability. It is obvious that in the present day the peculiar nature and incidents of copyhold tenure are a hindrance to the improvement of land and the development of its resources, the policy of the legislature has therefore been to encourage as far as possible its abolition, and meanwhile to alleviate the inconvenience attending its continuance (u).

(1) 2 Scriv. 632. Though it is stated that they escheat to the lord and are not forfeited to the crown, see Lord Cornwall's Case, 2 Vent. 38; 1 Watk. Cop. 340.

(m) 2 Scriv. 632; Br. Escheate, pl. 6; Co. Litt. 13 a.

(n) An unwarranted lease is not void as against a stranger, but is a ground of forfeiture, of which the lord alone can take advantage. Doe d. Robinson v. Bousfield, 1 Car. & K. 558; see, as to forfeiture generally, Clarke v. Arden, 16 C. B. 227. A wrongful seizure by the lord is a matter of which courts of equity will take cognizance in a suit instituted to set it aside, although the question may also be tried by action of trespass. Thomas v. Porter, 1 Ch. Ca. 95; Cudmore'v. Raven, 2 Vern. 664; Nash v. Lord Derby, ib. 537; Andrews v. Hulse, 4 K. & J. 392. See also the cases, Doe d. Grubb v. Earl of Burlington, 5 B. & Ad. 507; 2 N. & M. 534; R. v. Lady St. John Mildmay, 5 B. & Ad. 254.

(0) For obvious reasons it will seldom be to the advantage of the lord to demise the land by copy, unless, indeed, the lord has himself only a limited interest in the manor as tenant for life, or for years. See Re London and South Western Railway Company Act, Ex parte Lord Henley, 29 Beav. 311.

(p) It will be noticed that this is a different effect to that which takes place on the purchase by the lord of free tenemental lands, as to which see ante, p. 181. The reason why no distinction exists between purchase and escheat of copyholds is, that no alteration in the estate of the lord takes place in either case. Brunker v. Cole, 11 Mod. 122; Doe v. Pott, Doug. 684; St. Paul v. Lord Dudley, 15 Ves. 167; Roe v. Wegg, 6 T. R. 708; Shep. Touch. Prest. ed. 439.

(q) St. Paul v. Lord Dudley, 15 Ves. 167; see also Doe v. Danvers, 7 East, 299.

(r) Cattley v. Arnold, 4 K. & J 595, upon the authority of Vin. Abr., Davies' ed. p. 167; Year-book, 26 Hen. 8, Ca. 15. As to the partition of manors, see Hanbury v. Hussey, 14 Beav. 152.

(8) Litt. s. 206.
(t) Ante, p. 194.

(u) A peculiar attempt to erect a species of tenure not unlike that of copyholds occurred recently in the town of Huddersfield. Relying upon the faith of the tenure being secure, much money was expended by the tenants. The foundation for such faith proved to be shadowy. See Ramsden v. Dyson, L. R. 1 H. L. 120.

[* 201]

There is yet another species of tenure called ancient demesne, which differs but slightly from socage, or rather *perhaps is a peculiar form of socage, but requires separate mention, having regard to its origin, and also because, so far as there is a variation from the ordinary characteristics of socage tenure, it is in the direction of villenage or copyhold tenure, the original services due from the tenants being of a base

Ancient demesne.

or villein character. Ancient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the Confessor, or William the Conqueror; and so appear to have been by the great survey in the Exchequer called Domesday Book (x). The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies (y), though free, holding their land like villeins, except that their tenure was more certain. Others were enfranchised by royal charter: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain; as to plough the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services, all of which are now changed into pecuniary rents: and in consideration thereof they had many immunities and privileges granted to them (z); as to try the right of their property in a peculiar court of their own, called a court of ancient demesne, by a peculiar process denominated a writ of *right close (a); not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries; and the like (b).

[* 202]

These tenants, therefore, have an interest equivalent to a freehold for notwithstanding their services were of a base and villenous origin (c), yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially because their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord's will, or to hold them against their own: "et ideo," says Bracton, "dicunter liberi." Britton also, from such their freedom, calls them absolutely sokemans (d), and their tenure sokemanries; which he describes to be "lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being, as it were, lands enfranchised by the king or his predecessors from their ancient demesne." And the same name is also given them in Fleta (e). Hence Fitzherbert observes (f), that no lands are ancient demesne, but lands holden in socage: that is, not in free and common socage, but in this amphibious subordinate class of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon pre

(x) F. N. B. 14, 16

(y)" Ancient demesnes are lands which were part of the ancient manors annexed to the crown, in which demesne dwell some who have been freely enfeoffed by charter; others who are free of blood, and hold land of us in villenage, and these are properly our sokemen, and are privileged in this manner that they are not to be ousted from such tenements so long as they perform the services which appertains to their tenements, nor can their services be increased or altered, so that they shall do any other or greater