LORD OF THE MANOR-continued.

may grant or admit out of court, and even out
of the manor, &c.
Page 101, &c.
reference to the case of Doe d. Leach v. Whitaker
101, n.
semble, that the lord may hold his own cus-
tomary courts
119
whether he has the same remedy to recover fees
as the steward
ib.
of what incapacities he may take advantage
108, 109
is not bound to admit aliens or other incapaci-
tated persons
109
but his interest would be concluded by the ad-
mittance
ib.

compellable by a bill in equity to hold a court,
but a mandamus is more usually resorted to

533
may have a bill in equity for discovery of
boundaries and descriptions of land .. 534
and for a commission to distinguish freeholds
from copyholds, but only under special cir-
cumstances, a confusion of lands not being
per se a ground for interposition
ib.
though the lord is not bound to take notice of
trusts, yet it is not usual or reasonable to
refuse to do so
405

408

whether it is not advantageous to the lord
record notice
his remedy by writ of escheat, formedon, intru-
sion (now abolished) and ejectment 474,
483, n.
See COURTS OF EQUITY; CUSTOMARY PLAINTS;
GAME; GRANT; GUARDIAN; INFANT;
MORTGAGE.

the committee has no interest, but a bare cus-
tody or authority

53

certain powers are given to committees by par-
ticular acts of parliament
ib., n.
copyholds are not within 6 Geo. 4 and prior
statutes, as to conveyances of estates vested
in lunatics, but are expressly named in 1
Will. 4, c. 60
89, App. 1011
provision made for the admittance of lunatics
to copyholds by 1 Will. 4, c. 65.. App. 1015
the Court of Chancery has no power under 11

Geo. 4 & 1 Will. 4, c. 65, or 3 & 4 Will. 4,
c. 74, to authorize the committee to grant
leases for twenty-one years App. 1018,
1019, n.

See BARON AND FEME.

MANDAMUS-continued.

render the legal estate, there being no heir of
the last trustee, and being a fitter tribunal
Page 526, n.
the aid is extended to the customary heir..528
although the application may be in furtherance
of a scheme to defeat the lord's right to a
fine; and although there should be no dis-
claimer by devisees (The King v. Sir T. M.
Wilson)
528, &c.
it has been granted to compel the admission of
the heir of a trustee, where the cestuy que
trust died without heirs, to enable him to
try his title

408
and it is granted to compel the lord or steward
to accept a surrender
525, 527, 530
the case of The King v. Boughey, Bart... 530
and either of the whole or a portion of the
lands of the copyholder, or of the whole or
a portion of his interest
the power of the court has been questioned,
but is established by several stated cases

..

525

527, &c.
the court has refused the writ in several stated
instances, where the party had a specific
legal remedy
525, 526, n.
but having a remedy in equity is no answer to
an application for a mandamus 525, n.
conceded that a mandamus is never granted to
compel a mere ministerial officer to do his
duty
526
in The King v. The Borough of Midhurst, the
writ was granted to compel the lord to
hold a court, and the homage to present
certain conveyances of burgage tenements
entitling the purchasers to be sworn in bur-
gesses, and to vote for members of parlia-

no relief by mandamus by reason of proceed-
ings in a plaint having been improperly set
aside, but it must have been sought in a
proceeding in nature of a petition of right, or
in equity
489, 530, 531
cannot go to the steward alone
531
the rule induced the court to quash a manda-
mus for compelling an admission by the
steward of the queen's manor of Richmond,
in which case, as the writ could not go to
the sovereign, the party left to the only an-
cient remedies, a bill in equity or a petition
of right
531 & n.
will issue to compel an enrolment of a surrender
taken by copyhold tenants under a special

custom

fine

531
but was refused where there was a custom for
the steward to prepare all surrenders .. ib.
an application for, refused where the surrender
was by the customary heir of his reversionary
interest, his object being to avoid the descent
ib., 532
an application for the writ to enforce an entry
on the rolls of a deed of grant of customary
freeholds refused, where there was a cus-
tomary mode of barring estates tail, and the
case held not to be within the 53rd section
of 3 & 4 Will. 4, c. 74
531, n.
it is also granted to compel an inspection of
court rolls by a person claiming an interest
under them, and having a prima facie title

Y Y

532

MANDAMUS-continued.

and it is not necessary that any cause should
be depending

Page 532
it is only when no action is depending that the
motion is for a mandamus
ib., n.
when an action is depending, the inspection
will be enforced by a rule of the court..495,
532, n.
whether a freehold tenant has a right to inspect
court rolls, although no cause be depending
532, n.
it lies to restore the steward of a court leet
527, 608, 703, 704
but was refused in one case
608, n.
whether it lies for the steward of a court baron
527, 608
Ile's case in 1 Vent. favourable to the opinion
that it lies for the steward of a customary
court
526, 527, 608
but it is rendered doubtful by other authorities
526, 527, n., 608
will issue to compel the holding of a court leet
forthwith, and to appoint proper officers
532, n., 713, n.
and to enrol a resiant, to enable him by the
usage to vote for members of parliament
713, n.
but the connexion between the leet and corpo-
ration must be established by affidavit.. ib.
it lies to compel the steward to administer the
oath of office to a constable chosen at the
leet
715, n.
it has been granted to the bailiffs of a corpora-
tion to which the manor formerly belonged,
to permit a court leet to be held in the guild-
hall, in order to an inquiry whether it could
be held elsewhere

532, n.
it does not lie to compel the holding of a court
leet for the purpose of having the oath of
allegiance administered to an inhabitant, ib.
nor for the inspection of the records of a court
leet, unless some satisfactory reason be as-
signed

ib.

the return to a mandamus must be certain and
explicit, and not argumentative .. 528, n.
without a special custom, will not issue to
compel a licence for digging brick earth, or
other act of waste..
532, 533
reference to 1 Will. 4, c. 21, extending the
provisions of 9 Ann. c. 20, as to the returns
to certain writs of mandamus, to all other
writs of mandamus, and making provisions
against abatement of the writ by death, &c.,
and as to costs, &c.

533, n.

1

1, 2

2, n.

may consist of one or more villages or hamlets,
or of several houses in a village

not necessary that the copy holds should be
contiguous

cannot now be created

may exist as a seigniory in grosS

ib.

2

4

is determined by severance of the demesnes or
services by act of the party

or by extinction of the services

6

ib.

MINES; reference to the commutation and en-
franchisement act, recognizing the import-
ance of the lord's proprietary interest in
mines by the exclusion of it from the opera-
tion of the act, unless by express convention,
and by the power given to tenants to grant
rights of way, &c., in and over their lands,
to enable the lord to win and carry away the
419, n.
a distinction as to the mode of stating the facts
and consideration in an agreement for com
mutation, and in an enfranchisement deed, ib.
the
the words "lands and mines" will
pass
427, D.
open mines only
a copyholder has the possession of the subsoil,
although he has no property in it.. 429
the authorities as to trees on the surface of the
soil equally apply to minerals below, ib., n.
are part of the demesnes, and not a distinct
property from the freehold
19, 20, 429
should, therefore, be expressly reserved when
intended to be excepted out of a grant of
waste, or the enfranchisement of copyholds, ib.
and it is not sufficient merely to reserve all
royalties, &c.

waste

..

..

427

under a grant of the inheritance of freehold
land, even if mines are named, they cannot
be opened by a person having a particular
interest only
ib., n.
though a lessee work mines that are
may
opened, yet his opening new mines is
ib.
as to royal mines where the crown has a bare
reservation
ib.
a copyholder may dig for marl to lay on the
land
428, n.
coals, when dug, belong to the lessee, who may
maintain trover
ib.
bill in equity lies for an account against the
executor of a customary tenant opening
mines
428, 431
ib.

..

429

and trover lies for ore dug thereout
he who has the surface may maintain trespass
for breaking the sub-soil
but in frequent instances in the northern
counties, the title to the land is in one, and
the title to the mines in another
ib.
the presumption is in favour of the person in
possession of the land, but may be rebutted
by evidence that others had raised and car-
ried away the minerals

the case of Rowe & Brenton

..

ib.
430

but a custom to dispose of one sort of mineral
may be evidence of a right to dispose of an-
other
ib.
distinction in equity between mines and timber,
in decreeing an account under a bill for an
injunction
ib.
equity will grant an injunction against opening a
mine, if no custom is shown, yet only with a
view to try the right
531, 532

but with such a custom, it will not restrain even
a tenant for life from opening pits to pursue
old veins
431, n.
nor will equity grant an injunction against
working mines already open 432, 433
and is slow to interpose by injunction where
mines are in a state of working, but will
direct a trial at law of a disputed right, 432, n.

MINES-continued.

Page 433
in such a case a remainder-man complaining
must file a bill alone
ib.
equity has decreed an account of ore, the
digging of mines being a sort of trade ..463
See EVIDENCE; PLEADING; QUARRY; ROYAL
MINES.

MODERATA MISERICORDIA, writ of.
See COURT BARON; LEET (tit. Amercements.)
MONSTRAVERUNT, writ of. See ANCIENT
DEMESNE.

MORTGAGE; the effect of a purchase of copy-
holds by the lord, after a mortgage of the
33, &c.
the unknown heir of mortgagee is within the
8th sect. of 11 Geo. 4 & 1 Will. 4, c. 60,
although a constructive trust only (and see
4 & 5 Will. 4, c. 23, s. 2, in App.)..85, n.
semble, that a mortgagor in possession may
hold courts
91, n.
observations on conditional surrenders 194
See ADMITTANCE; EJECTMENT; EQUITY OF
REDEMPTION; NOTICE TO QUIT; STEWARD;
WARRANT OF SATISFACTION.

MORTMAIN; acts extend to copyholds

199, 200
distinction between legacies to be applied in
the purchase of land, and in melioration of
land already in mortmain .. 200, 201
and when inseparably connected with a void
devise, or applicable, at discretion, to several
purposes, some of which only are void..201
a gift of residuary personalty to entreat a grant
of waste for charitable objects held void
201, n.
money charged on copyhold by a void bequest
held to belong to the devisee and not to the
635, n.
See CHARITABLE USES; PREROGATIVE RIGHT;
SURRENDER TO WILL.

crown

NOTICE TO QUIT: not rendered necessary
by the covenant of a mortgagor, so long as
he continued in possession, to pay a yearly
rent to the mortgagee
466, n.
not necessary, even after twenty years' posses-
sion, if not adverse
509, n.
where possession began by permission, and an
ejectment was brought against the heir within
five years from the passing of 3 & 4 Will. 4,
c. 27, under 15th sect., held that neither
notice to quit nor demand of possession was
necessary
ib.

OCCUPANCY; there can be no general occu-
pancy of copyholds

..

24, 50
51

but there may be a special occupancy
there can be no general occupancy of anything
which lies in grant
ib., n.
but the 2d branch of 12 Car. 2, c. 3, applies to
the grantee pur autre vie of a rent-charge,
and his executors will be entitled to it .. 51
and as pecial custom extending the principle of
general occupancy to copyholds is good

24, 51
rents are (in common parlance) the subject of
special occupancy
51, n.
reference to Vict. c. 26, as to copyhholds,
though no special occupant

52

a special occupant must be admitted and pay a
fine
See EXECUTORS AND ADMINISTRATORS.

..

OVERSEERS. See CHURCHWARDENS

351

PARTITION-continued.

one of several joint-tenants, after partition by
parol, surrendered in general words; held
that the surrenderee was not entitled to be
admitted to the parcels held in severalty

Page 123
See COPARCENERS; COURTS OF EQUITY; CUS-
TOMARY FREeholds.

PAUPER; in possession under a bond given
before marriage by the wife dowable by
custom, held to gain a settlement .. 73, n.
guardian in socage may gain a settlement by
residence on the ward's estate
399, n.

a trustee or mortgagee in possession may gain
a settlement
ib.
See SETTLEMENT.

..

PERAMBULATION. See EVIDENCE.
PETIT SERJEANTY; tenure of
PIE-POUDRE, court of. See FAIRS, &c.
PINDER; is not necessarily a public annual
officer (tit. Leet) ..
720, D.
PISCARY; appendant, may be granted by copy

See FREE FISHERY.

104

PLAINTS OF RIGHT. See CUSTOMARY
PLAINTS.

PLEADING; a replication in a case of trespass
held bad on demurrer, for not stating that a
sufficiency of common was left 510, n.
a copyholder for life, or greater estate, may
510
plead a freehold interest

..

a copyhold must be pleaded to have been de-
misable by copy time out of mind, and it is
not sufficient to state that it is held at the
will of the lord, according to the custom, 511
yet it must be pleaded to be held at the will of
ib.
the lord

but the fault in pleading may be helped by the
verdict finding the estate to be copyhold, ib.
it must be shown that the estate created is
allowed by the custom
ib., n.
ib.

except in a claim of common
in copyholds of inheritance the addition of the
words in tail, for life, &c., in pleading, is
unnecessary

PLEADING-continued.

ib.

ib.

and not that the husband alone is seized
Page 512, 513
any admittance may be pleaded as a grant, 513
and it is sufficient to allege the admittance of
the ancestor as a grant, and to show the de-
scent and entry, without admittance
but not merely to plead the seizin of the an-
cestor and the descent
semble, that although in copyholds it is suffi-
cient to show the grant of the lord, yet in
customary freeholds the estate of the surren-
deror must be shown
ib.
but when the title does not come in question,
as in replevin, it is unnecessary to show ad-
mittance

..

ib.

ib.
it is not sufficient for a vendor to aver his rea-
diness, and his offer to make a title and to
surrender, but he must show an actual sur-
render, or an offer to convey, and refusal,
and what title he had ..
it is unnecessary, however, to detail the title,
and the plaintiff need only aver his seizin in
fee, that the title was made perfect, and that
he had always been ready, and had offered
to convey

..

..

ib.

it is for the purchaser, and not the vendor, to
prepare and tender the conveyance.. ib., n.
plea of a grant for lives in reversion, as a grant
in possession, is incurable
513, 514
in trespass for entering copyholds and boring
for coals, and a justification under the lord,
the plaintiff must traverse the liberty of work-
ing the mines

..

514

but the court will permit the replication to be
amended
ib.
the case of Proud & Hollis as to the mode of
pleading a right of way asserted by the land-
lord of a copyhold occupied by a tenant, ib.
if a surrender be pleaded as taken by the hand
of a steward supposed to have no right, the
traverse should be general that no surrender
was made ..

515

where issue is taken on a surrender pleaded

ib.

into the hands of tenants, it is to be tried
where it was alleged to be done, and not
where the manor is
the steward's name must be stated in pleading
a grant of copyholds
performance of the condition may be pleaded
under a bond for quiet enjoyment, when a
forfeiture is occasioned by the vendee's own

ib., n.

515

in debt on bond, the plaintiff must show that he
was evicted by lawful title
ib., n.
in case, for not performing a promise to sur-
render, the plaintiff must allege that he made
a request to the defendant to surrender..515
and a demurrer will hold if the plaintiff assign
a particular mode of surrender, and the custom
is not shown
but a general custom need not be alleged ..ib.
under a covenant to surrender, a purchaser

ib.

need not show a court to have been holden, ib.
plaintiff is entitled to costs of pleading, when
one of several pleas is adjudged bad on de-

murrer..

ib.,

POSSESSORY ACTIONS, OR PLAINTS
(tit. Customary Plaints)
476, &c.
POSSIBILITIES (coupled with an interest);
may be disposed of by will under 1 Vict. c.
26, s. 3, and by deed under 8 & 9 Vict.
c. 106, s. 6
App. 1130
POUND; breach of
738, App. 1142
POUNDKEEPER; reference to sect. 4 of 5 &
6 Will. 4, c. 56, and to a case deciding that
the person who is bound to supply the animal
with food, is the party at whose instance it
719, 720, n.
was impounded
See HAYWARD.