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*16] *KEATING, J.—I am of the same opinion. The respondent was clearly committing a trespass in search of game, the pursuit of which commenced upon his own land.

Judgment for the appellant.

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FRANCIS BLEWETT, Appellant; ELIZABETH JENKINS and BLANCHE WILLIAMS, Respondents. April 28.

A custom for copyhold tenants to fell timber or other trees upon their customary lands, and to retain the same for their own use, without license from the lord, although such timber may not be felled for necessary repairs, is not unreasonable.

And such a custom is not the less admissible in evidence, because it also professes to entitle the customary tenants to plough up meadow land and to suffer their houses to decay,—which might be a bad custom, if pleaded.

Where the customary tenants hold under a corn-rent or an annual sum of money in lieu thereof, in the absence of a custom to the contrary, the election is with the tenant to pay either in money or in corn.

Where, therefore, the assistant-commissioner, under the Copyhold Acts, upon evidence that for sixty years past the payments had invariably been made in money, decided that the election was with the tenant,-the court, upon a case stated by way of appeal, affirmed his decision.

THE following case was stated for the opinion of the Court by the copyhold Commissioners, under the provisions of the Copyhold Act, 1852 (15 & 16 Vict. c. 51), s. 8, and the Copyhold Act, 1841 (4 & 5 Vict. c. 35), s. 40.

The appellant is lord of the manor of Magna Porta, in the county of Monmouth, being tenant in tail in possession; and the respondents are tenants of copyholds of inheritance on the roll of the said manor.

In the course of valuations taken under the Copy hold Acts, with a view to the enfranchisement of certain lands and tenements held by the respondents as copyhold tenants as aforesaid of the said manor, the following questions (among others) arose, and were referred by the respondents to the said Commissioners.-"1. Whether the tenants of the manor of Magna Porta are entitled to fell timber and to retain the same to their own use without license of the lord, although such timber may not be felled for necessary repairs?

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*2. Whether the lord is entitled to seize for a heriot the best beast or chattel, unless found within the manor and belonging to the tenant at the time of his death or mortal sickness?

"3. Whether the lord is entitled to corn-rents, unless stated in the copy of the court-roll of the tenants' admissions?

"4. Whether, if the lord is so entitled, are not such corn-rents a fixed money payment, variable with the price of corn, or otherwise?"

Mr. Wetherell, the Assistant Commissioner, in pursuance of this requisition, held an inquiry, and decided,

"1. That the tenants of the manor of Magna Porta are entitled to fell timber and retain the same to their own use without the license of the lord, although such timber may not be felled for necessary repairs.

"2. That the lord is not entitled to seize for a heriot the best beast or chattel, unless found within the manor and belonging to the tenant at the time of his death or mortal sickness; but that the lord is en

titled to seize for a heriot the best beast or chattel that is found within the manor and belonging to the tenant at the time of his death or mortal sickness.

"3. That the lord is entitled to corn-rents, though not stated in the copy of court-roll of the tenants' admissions.

4. That such corn-rents are a fixed money payment, amounting to the annual sum of 41. 2s. 2d., and that the said rents are not variable with the price of corn."

1. In the course of the inquiry, a copy of an ancient survey of the manor, held in the year 1634, was put in by the respondents, and by consent *admitted in evidence,-in which the following custom [*18 is set forth:-"That, by the ancient custom of this manor of Magna Porta, time out of mind, every customary tenant or tenants. may at all times at his or their pleasure fell or cut down timber or any other trees upon any of their several customary lands, and plough up the said grounds or meadows never tilled before, and also may suffer their houses to decay, or to pull down his or their houses, and to make any other benefit of his or their trees or woods so cut and taken out and from their or any of their respective customary lands, and the same also to take, sell, or convert to his or their private uses whatsoever, without any the prejudice or forfeiting of his or their estate or estates."

The actual practice within the manor has been in accordance with this presentment.

The appellant is dissatisfied with the decision of the Assistant Commissioner on the first question submitted to him, on the ground, that, although the practice may have been in accordance with the custom before stated, yet that such custom, taken altogether, is unreasonable and bad in law, and not binding upon the appellant: and, moreover, that the custom as set out on the presentment above referred to does not at all events extinguish the primâ facie interest of the lord of the manor in the timber, but only protects the tenants from forfeiture for the waste; and that the Assistant Commissioner ought not, at all events, to have decided more than that the tenants of the manor are entitled to deal with the timber as stated in the presentment quoted above, without any prejudice or forfeiture of their estates, and not absolutely.

2. As to heriots,-in the copy of the survey before referred to, the following custom is set forth :

"That the lord of this manor must and ought to *have a heriot of the best beast or chattel that a tenant dying shall be [*19 the owner of, depasturing upon his or her land at the time of his or her being sick, within the said manor, and not elsewhere; and, in default thereof, 5s. in lieu thereof, for and in the name of a heriot."

And it is also stated in another and distinct part of the said survey, "that the lord of this manor is and ought to have, after the death of any foreigner resident or stranger within this manor, for an heriot, the best beast or chattel that such stranger foreigner or resident shall be owner of at the time of his or their decease, or while being sick."

There is also another custom as to heriots stated in a distinct paragraph of the said survey. The actual practice in respect of the best beast or chattel of a tenant has been in accordance with the custom

above stated as to heriots. No evidence was offered as to the practice of the manor in respect of the right alleged by the survey to belong to the lord, to seize the best beast of strangers. But the appellant is dissatisfied with the decision of the Assistant Commissioner on this point, inasmuch as he (the appellant) alleges that the said customs as to heriots stated in the survey must be taken together; and that, as the lord cannot by law seize for a heriot, either within the manor or beyond the manor, the best beast or chattel of any foreigner resident or stranger dying within the manor, so the lord ought to be entitled to seize for a heriot the best beast or chattel belonging to any tenant on the rolls at the time of his death or mortal sickness, whether found within the manor or not; and that it is unreasonable that his right should be restricted, as decided by the Assistant Commissioner. 3. With regard to the corn-rents, no question arises on the decision *20] upon the third question: but the appellant is dissatisfied with the decision of the Assistant Commissioner on the fourth point submitted to him. In the document dated in the year 1634, before mentioned, and called a survey, which on its face is stated to be, "The answer and presentment of the jury under named, and exhibited unto Higgins Powell and George Skiddamore, Gent., Commissioners, Surveyors, and Stewards, on the behalf of The Right Worshipful Edward Morgan, of Lantarnan, Esq., touching his survey of his manor or lordship of Magna Porta, in the county of Monmouth, to certain. articles propounded and given unto us in charge to inquire of," there is the following presentment,-"Item. To the 2d article, we present and find that the customary tenants within this lordship of Magna Porta do hold their respective customary lands by the virge or rod, to them and their heirs for ever, according to the custom of this manor, by and under the yearly rent at their several names particularly appertaining, as followeth." Then follows a schedule of lands and rents. The tenements as described in the schedule may (so far as the mode of render of rent is concerned) be divided into three classes, of which the following entries may be taken as instances:

Annunciation rent.

£ s. d. 085

2.

rent.

rent.

"Imprimis. Lewis Richard, Gent., holdeth by the Michaelmas virge or rod, according to the custom of the manor, as tenant for lives by and under Giles Morgan, Esq., one £ s. d. tenement and divers parcels of customary lands, by and 0 8 54 under the yearly rent payable to the lord of the said manor, the sum of sixteen shillings and eleven pence at the feast of the Annunciation and St. Michael the Archangel, by equal and even portions.

rent. 3s. 1d.

for corn.

"Item. Morgan Evan holdeth as aforesaid one tene- Michaelmas Annunciation ment and divers parcels of customary lands by and under the yearly rent of 6s. 2d., payable as aforesaid, and nined. teen hoops and three puddovams of corn mills oats, and 1 six hoops and a half of wheat, for part of Jeyne Williams's lands or twenty shillings and 84d, at every Michaelmas only.

£ s. 03

3.

rent.

Michaelmas

rent.

Rent of corn.

£ s. d.. 0 3 5

"Item. Alexander John holdeth by the virge or rod Annunciation one tenement of customary lands, being part of Jeyne Gwilliams's lands, by and under the yearly rent of one Michaelmas. hoop of wheat and three hoops and of oates, or, in lieu thereof, 3s. 5d. at every Michaelmas only." It is agreed that either party may on the hearing of the case refer to any other entry in the schedule; and that the copy of the survey

in the possession of the enclosure Commissioners shall, in the event of any dispute as to the language of the said schedule, be taken to be conclusive: and the tenements now in question cannot be identified with any of the tenements described in the said schedule.

For sixty years past, certain money payments have been made to the lord in lieu of corn-rents due in respect of the tenements held by the respondents.

The court-rolls in no case point out at whose option the payment by the tenant, whether in kind or by the money payment in lieu thereof, is to be made; nor does it appear by proofs in which party, the lord or the tenant, lies the right of election. The actual render has, for anything appearing to the contrary, always been in money.

Upon these facts, the Assistant Commissioner held that the entries in the court-rolls and survey were in *the nature of grants by [*22 the lord; and that it was a rule of law applicable to the case, that, in a grant where the right of election is not fixed by the grantor, such right vests in the grantee; and that the right of election in the present case was in the tenants, and that they had elected to pay a money rent.

The appellant is dissatisfied with this decision of the Assistant Commissioner, and contends, that, in point of law, it does not lie with the copyholder, but with the lord of the manor, to elect whether the tenant shall render the stipulated quantity of grain or make the money payment in lieu thereof.

The following question has also arisen:

On the hearing of the case, and in the course of the inquiry before the Assistant Commissioner into the last question so submitted to him and decided, Mr. Gwatkin, the solicitor of the appellant, the lord of the manor, tendered in evidence on his behalf certain title-deeds of the manor, viz. a deed to make a tenant to the præcipe, dated the 23d of November, 1786, and a deed of mortgage dated the 29th of February, 1856, in which it is recited that the corn-rents are commutable at the will of the lord: but the Assistant Commissioner rejected this evidence, as being inadmissible against the respondents.

The respondents contend that this point is not now open to the appellant, inasmuch as the Assistant Commissioner, being by the Copyhold Act, 1852, sole judge of fact, his decision on admissibility of evidence is final and conclusive; and, secondly, that no request was made by the appellant within twenty-eight days after the evidence tendered was rejected to the commissioners to direct a case to be stated as to whether in point of law the evidence ought to have been admitted or rejected.(a) The only request to the commissioners *to [*23 direct a case to be stated on any point was made by Mr. Gwatkin, the solicitor to the appellant, on the 4th of April of 1860. This was more than twenty-eight days after the rejection of evidence before mentioned, but less than twenty-eight days after the decision of the Assistant Commissioner upon the points submitted to him as above set forth. The request was in writing, and in the following words,"On behalf of the said Edward Francis Blewett, I request you to direct a case to be stated for the opinion of such one of Her Majesty's courts of law at Westminster as you shall think fit, upon the follow

(a) See 4 & 5 Vict. c 35, s. 40, and 15 and 16 Vict. c. 51, s. 8.

ing question of law, viz.: 1. Whether the customs recorded in a certain survey of 1634, put in evidence by the enfranchising copyholders, as to timber and heriots, though they may be considered immemorial and certain, are also on the whole reasonable, and whether they are on the whole good and valid customs to exclude the lord of the manor from all interest in the timber on the copyhold lands, and to disentitle him, on the death of a copyhold tenant, to seize for heriots otherwise than within the manor. 2. Whether, in point of law, it lies with the copyholder, and not with the lord of the manor, to elect whether to render the stipulated quantity of grain as corn-rent, or to make a customary money payment in lieu thereof;"

The questions for the opinion of the Court were,-1. Whether, upon the whole custom as stated in the case, with reference to waste, such custom is good and valid in law so as to entitle the tenant to cut and sell for his own use all the timber growing on the tenement. 2. Whether, looking to all the facts stated in the case as to the custom with reference to heriots, such custom is good and valid in law, so as to restrict the right of the lord to a heriot of the best beast or chattel of the tenant at the time of his death or mortal *sickness found within *24] the manor. 3. Whether the Assistant Commissioner is right in point of law in his decision as to the right of election being in the copyholder, and not in the lord of the manor. 4. Whether it is now

open to the appellant to ask the opinion of the Court upon the question of the rejection of evidence by the Assistant Commissioner, as stated in the case. And, lastly (if the Court should be of opinion that it is now open to the appellant so to do), then whether such evidence was properly rejected or not.

Bullar, for the appellant.(a)—The only questions which it is proposed to argue are the first and the third: the others are plainly not arguable. 1. The custom to cut timber at the will of the tenant is clearly unreasonable and void. The terms in which it is set out in the survey are as follows:-"That, by the ancient custom of this manor of Magna Porta, time out of mind, every customary tenant or tenants may at all times at his or their pleasure fell or cut down timber or any other trees upon any of their several customary lands, and plough up the said grounds or meadows never tilled before, and also *25] may suffer their houses to *decay, or to pull down his or their houses, and to make any other benefit of his or their trees or woods so cut and taken out and from their or any of their respective customary lands, and the same also to take, sell, or convert to his or their private uses whatsoever, without any the prejudice or forfeiting of his or their estate or estates." This must be taken as one custom; and it amounts to this, that the copyholders may commit any sort of

(a) The points marked for argument on the part of the appellant were as follows:

1. That the alleged custom of felling timber without licence, and wasting and destroying houses, is unreasonable and void:

2. That the appellant, as lord of the manor, is entitled to a heriot from the respondents, as tenants, whether the beast or chattel be in or out of the manor at the time of their deaths or mortal sickness:

"3. That the right to elect whether the corn-rents shall be paid in money or corn lies with the appellant, as lord, and not with the respondents, as tenants:

"4. That the Assistant Commissioners should have received in evidence the deeds rejected by him, and that the appeal on this point, is in proper time."

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