a custom against it held to be void semble, that a steward might have granted or admitted out of court, provided the act was entered on the court rolls but previously to the above act, the steward, in his mere character of steward, could not have admitted out of the manor ib. may examine a feme covert as to her voluntary consent out of court 114 distinction between acts incident to the office, and voluntary acts, exemplified by Sir Ed- ward Coke 114, &c. whether any distinction between steward of a manor, and steward of a court .. 113, n., 114, n., 119, n. frequently a special authority given to him to make voluntary grants, and either in or out of court; and sometimes extending to de- puty steward 115, n. a judicial office cannot be granted for a term of years one of two joint stewards may hold a court, and perform ministerial acts out of court.. 116 but a grant to two of the stewardship of a court baron for a term of years would determine with the life of the grantees 115, 116 a judicial office, as, for instance, the steward- ship of a court leet, cannot be granted in reversion 116 nor an office partly ministerial and partly judi- cial ib., 703 semble, that the rule extends to the king.. 703 the law distinguishes between an entire office comprehending two parts, and two distinct offices comprehended under one name..116 and between the office of judge of a court of record, and a judicial office exercisable by deputy
semble, therefore, that the stewardship of a cus- tomary court may be granted in reversion or in futuro
at all events by the king
a grant by deed of a stewardship for life is good ib., 117
the case of Bartlett & Downes
a case in which the appointment was for life, but the steward not permitted to contend that he did not hold at the will of the lord, in order to avoid payment of an annuity un- der an agreement with the former steward ib. the existence of grants of a stewardship for life recognized in the above act of 4 & 5 Vict. c. 35
how his salary is recoverable when appointed by deed
STEWARD-continued.
is the lord's agent only as to the custody of court rolls, and has been ordered to deliver them over to the receiver in a cause
Page 118, n. for life, his appointment not revoked by sale of the manor, and therefore not by a devise of it 117, 118 his remedy for any disturbance of his office 118 discharge by one of two joint-tenants of the ib., n.
whether he can be discharged, if he have a fixed sum out of the profits of the court ib. reference to pleadings in an action for disturb- ance of a deputy steward, where the chief steward was appointed by a corporation..ib. is punishable by stat. Westm. 1, c. 33, for en- couraging suits in courts baron and courts leet, [see also Westm. 2, c. 36, p. 627, n.,] and by 1 Jac.c. 5, for overcharges, App. 1177 whether the office is essential, or the lord may hold his own courts
a stewardship, or bailiwick, not lying in tenure, cannot be granted by copy would not be justified, in equity, in admitting a mortgagee, or his heir, after entry on the rolls of a warrant of satisfaction.. 194, n. being responsible for the proper entry on the court rolls, it is the practice to leave sur- renders taken by him in his hands .. 232 reference to the provisions of the above act of 4 & 5 Vict. with regard to a steward's fees in cases of commutation, and in cases of enfranchisement, and in respect of entries on the court rolls under the 89th section, 392, n. doubtful whether a steward can recover his fees for copies made out but neglected to be de- liverered as required by sect. 33 of 48 Geo. 3, 396, n., App. 943, n.
the office is forfeitable
must be taken by the lord, or the steward, or his deputy
except by special custom such custom must be pleaded
a steward might have taken a surrender to his own use, even out of the manor, 114, 125, n. a tenant is not liable to an action for refusing to take a surrender 126 by special custom surrenders are taken by a person holding the office of clerk of a castle, ib. and by a person called a deciner .. ib., n. may be taken by the heir before admittance, 126 not by a copyholder after attainder, but the competency is restored by pardon, and the legal seizin remains in the copyholder until the lord enters
may be made by attorney
SURRENDER-continued.
her husband's consent, though not privately examined Page 131 the assent will under circumstances be pre- sumed 15. his assent evidenced by his presence, and ad- mittance under the surrender
ib. held not to be binding where it was made by persons calling themselves "his assignees duly appointed," and no mention made of a bankruptcy, and there being a custom for stating in the surrender the due appointment of such attorney 131, . surrender by the wife alone under an agree ment before marriage, or under articles of separation, will not pass the legal estate, but a surrender or devise by the wife may be a good equitable disposition the case of Compton & Collinson (the wife in that case surrendered as a feme sole) ib., 133 the wife cannot defeat the right of the heir by an agreement after marriage 132, . under special circumstances (as the banishment of the husband) the wife may act as a feme sole; [and see sect. 91 of 3 & 4 Will. 4, c. 74] 133, 134 the wife need not, and therefore should not, be joined in the surrender of the husband's
ib. by the husband of his wife's lands was not a discontinuance 46, 47, 134, 135 but it would have barred the issue and re- mainder-men, when the custom did not re- quire a recovery 47
a contingent interest is not the subject of a surrender
so that a surrender by husband and wife will not pass an estate limited to the heirs of the survivor, after previous life interests in the husband and wife ib. i under a limitation to husband and wife, re- mainder to the wife for life, such remainder may be conveyed by surrender: but under a a limitation to husband and wife for their lives and the life of the survivor, neither of them alone can surrender, for they take by entireties their surrender would pass a vested interest, not only for their joint lives, but for the life of the survivor ib.
ib. a person not in the seizin (as a contingent re- mainder-man, or the heir in the ancestor's lifetime) cannot surrender ib., 138 for a surrender does not operate as an estoppel 135, 138 see sect. 6 of 8 & 9 Vict. c. 106, for amending the law of real property, and which repealed 7 & 8 Vict. c. 76, referred to p. 138, n.
a reversioner and vested remainder-man are in the seizin, and may surrender 138 a copyholder who has leased with licence is a quasi reversioner ib. 139
a disseisor cannot surrender
the interest undisposed of by a copyholder re- mains in him as of his old estate 142 therefore a copyholder after surrender to will may surrender to whom he pleases ib. and the estate undisposed of under a power given to another results to surrenderor.. ib. to uses, the ultimate limitation being to the right heirs of surrenderor, was within the rule (which existed prior to 3 & 4 Will. 4, c. 106, s. 3, App. 1069) that the heir took by descent and not by purchase when both
a limitation which is good will be supported, though others are void
144 to the lord is void, if the use be void .. ib. when made generally, it operates as an extin- guishment ib.
except when an estate may be implied from the admittance ib. uses of, cannot be varied by the admittance, as the surrenderee is in by the surrenderor, ib., 145
a variance in the person, or in the rent reserved on the admittance, is equally within this rule ib.
a surrender by copyholder for life to the use of another, except by custom, vests the estate in the lord 145 & n., 360
a surrender to the lord for life, remainder over, the remainder over is good, and the remainder- man is in by the surrenderor 145, n. of copyholds for a consideration, however in- adequate, is not fraudulent as against cre- ditors, under 13 Eliz. c. 5 145, 146 may be made with reservation of rent, and con- dition of re-entry
is governed by the same rules of construction as a common law assurance 146 therefore limitations unite, as in Shelley's case ib. but surrenders are subject to the same excep- tions in reference to that rule as conveyances of freehold ib. semble, that an estate cannot arise by implica- tion in a surrender, any more than in a deed at common law ib. with the exception, that when no estate is mentioned in the surrender, it may be im- plied from the admittance
147 a surrender allowing of an averment in cases of uncertainty, if not opposed by legal maxims ib. and with the further exception that, by custom, a surrender, however worded, may pass a fee or any less estate ib. but Mr. Watkins was of opinion that an es- tate could arise by implication in a sur-
render ib. observations on the exceptions to the above rule, viz. 1st, uncertainty of description
ib., &c. 2ndly, the influence of particular customs 148, &c. is not allowed to work a wrong, but passes only the estate vested in surrenderor 149 illustration of the principle that surrenders are governed by the same rules as common law ib., &c. the case of Fisher & Wigg considered ib. the words "equally to be divided" held in that case to be a tenancy in common in a sur- render 150, 151 whether they have the same effect in a common law conveyance ib., &c., 153, &c. clearly a similarity of construction in a sur- render and a conveyance to uses 152
so the word "or" in a surrender may be read "and" 157 rule of construction under a general descrption, with a subsequent mistake ib. the addition of a particular description will re- strain general words ib. grants, however general, may be restrained by usage, so that words which would pass the soil may only pass the fore-crop whether an estate in futuro can be limited in a surrender 159 the several authorities arranged and considered ib., &c. whether a fee can be limited upon a fee, 159,166 the several authorities arranged and considered 166, &c., 184, 185 & n. Mr. Sanders dissented from the formerly re- ceived opinion 171
the grounds of that dissent discussed.. ib., &c. considerations on the effect of a power of ap- pointment, with reference to the validity of shifting uses in a surrender
SURRENDER-continued.
a surrender is not to be avoided by a steward's inadvertence, so an entry on the roll is ast conclusive, but a mistake may be shown by averment in the pleading, or by evidence to a jury Page 204, 205
the case of Doe & Calloway
a rent reserved by a surrender is not the sub- ject of surrender and admittance 205,D but those would in equity be evidence of a con-
of copyholds, will not satisfy a general covenant to purchase and settle lands 207,
will be supplied in equity when there is a natural or moral obligation, and therefore is favour of a wife and of children and cre ditors
208, &e. will be presumed in some cases 210 the lord cannot take notice of a covenant to surrender ib., 211 See AGREEMENT; COURTS OF EQUITY; Is FANT; PRESENTMENT OF SURRENDER. SURRENDER TO WILL; observations on the
repealed act of 55 Geo. 3, c. 192 .. 211 which statute embraced land held by copy of court roll, though not at the will of the lord ib., B. but was repealed by 1 Vict. c. 26..ib., 236, n. held to have supplied a mere formal surrender only, and not a surrender by a feme covert, who was to be privately examined as to her 133, 211 the case of Doe & Hickman decided that a sur- render was supplied by the act, although the testator had a power of appointment by will attested by three witnesses, under the sur- render by his vendor, and made a disposition of the copyhold by a will attested by two witnesses
general terms of, may be restrained by the will 212 in some manors rendered unnecessary by spe cial custom, even before the repealed statute the custom of the manor of Barton upon Humber
nor for creditors, when there were sufficient freeholds 218, 238, &c. when supplied for creditors, the court decreed 238, n. an account of the rents not supplied against the customary heir, being a child, unless such heir had a provision from the parent, or aliunde but the amount of the provision was not im- portant difference of opinion between Lord Rosslyn and Lord Alvanley on this point ib., 219 the provision must not have been illusory, 219 the equity of a wife, &c., prevailed against a ib. collateral heir, though unprovided for a wife or children having a provision were not denied the benefit of the rule ib., 220 nor affected by the persons in remainder not being within the rule nor by the person taking a particular estate not being within the rule
nor by the devise being of a remainder only, ib. nor was it of importance that the custom per- mitted a devise of the beneficial interest only 220 nor, under a devise to children, that the wife was entitled to freebench, or as heir to the ib. husband, by custom nor that the only provision for her was an an- ib. nuity out of the copyhold the rule extended to gavelkind and borough- ib. English tenure grandchildren were not within the above rule; but there would seem to have been a dis- tinction when the father was dead, 221, &c. nor were natural children within the rule, 222 nor any collaterals
nor strangers; nor volunteers might be presumed in some cases
SUSPENSION; a manor may be suspended
of the copyhold interest See EXTINGUISHMENT.
Page 7, 14, &c. 544, 545, &c.
TENANTS BY THE VERGE; copyholders so denominated
TENANTS IN COMMON; rules applicable
to the fine payable by them to the lord to the services they are to perform for their co- .. 365 pyholds being solely seized, a heriot is due from each, 378 the cases of Garland & Jekyll, and Holloway & Berkeley, overruling Attree & Scutt, as to the effect of a re-union of undivided shares of copyhold property ib., 383, &c. See COURTS OF EQUITY; EJECTMENT.
TREASON. See ESCHEAT (as applicable to freeholds); FORFEITURE; LEET, s. 5 (Ar- ticles inquirable.)
TREASURE TROVE; not specified among the manorial rights excluded from the ope- ration of 4 & 5 Vict. c. 35, by the 82d sect., unless expressly commuted, but embraced by the general words of that section, 655, 656, n.
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