Tenant of feiture, yet it is safer to present the forfeiture and to prove such presentation (k). The lord of the manor can in no case enter on the copycopyholder in hold tenement either for the purpose of seizing quousque, possession. or for a forfeiture, if there be a tenant of the copyholder lawfully in possession under a lease (l). By the general custom a copyholder can make leases of the copyhold tenement to continue for one year only (m), though by special custom, or the licence of the lord, leases may made to continue beyond that period (n). Leases by copyholder. Waiver of forfeiture. Relief against forfeiture. Heir at law be When an act creates a forfeiture or not at the election of the lord, and the lord with knowledge (o) does any act afterwards which admits the copyholder to be still a copyholder, such as receiving rent, accepting a surrender, or amercing him in his court, the forfeiture is waived and dispensed with (p). Relief against the forfeiture of a copyhold estate was never granted in equity, in absence of any fraud or acquiescence on the part of the lord, unless the forfeiture was for non-payment of a sum of money such as rent or fines (q). The title of an heir at law of copyholds is complete of copyholds. without admittance against everyone except the lord (r), and even as against the lord he need not prove admittance (k) Scriven, pp. 187-189 (6th ed.); East v. Harding, Cro. Eliz. 498. (1) Clarke v. Arden, 16 C. B. 227; Turner v. Hodges, Hutton, 101. (m) Melwich v. Luter, 4 Co. Rep. 26 a; Mathews v. Whetton, Cro. Car. 233. (n) For instances, see Scriven, p. 193 (6th ed.). (0) Mathews v. Whetton, Cro. Car. 233. (p) Doe v. Trueman, 1 B. & Ad. 736, 745; Doe v. Hellier, 3 T. R. 162; Milfax v. Baker, 1 Lev. 26. (q) Peachy v. Somerset, 2 Wh. & Tud. L. C. 1245 (6th ed.) Hill v. Barclay, 18 Ves. 56, 64. (r) Garland v. Mead, L. R. 6 Q. B. 441, 449; Doe v. Clift, 12 A. & E. 566, 575; Doe v. Trueman, 1 B. & Ad. 736, 747; Doe v. Thompson, 13 Q. B. 670. if the lord or his steward has refused to admit him either in or out of court (s). If copyholds are not by the custom descendible to the heir, but the heir has only a customary right of renewal, the heir has no title until admitted by the lord (t). A devise of copyholds has only a right to be admitted, Devisee of and has no legal title until he has been admitted (u). copyholds. Since the Wills Act (x) a surrender to the use of the will is unnecessary (y). Until the admittance of a devisee the legal estate is in the customary heir (z), and if the heir tenders himself to be admitted, the lord cannot seize quousque the devisee comes in to be admitted (a). If a devisee has not been admitted before his death, the right of admittance descends to the heir of his testator and does not pass to his devisee (b). A surrenderee of copyholds has no legal title before ad- Surrenderee of copyholds. mittance (c), but the estate remains in the surrenderor (c), and if the surrenderee dies before admittance, the legal estate does not pass to his heir or devisee, but remains in the surrenderor (d). An admittance relates back to the time of the surrender, against everyone but the lord, and 87. (s) Doe v. Bellamy, 2 M. & S. (t) Doe v. Clift, 12 A. & E. 566, 575; Doe v. Thompson, 13 Q. B. 670. (u) Garland v. Mead, L. R. 6 Q. B. 441, 449; Doe v. Lawes, 7 A. & E. 195; Roe v. Hicks, 2 Wils. 13. (x) 1 Vict. c. 26, s. 3; see App. B, p. 322. (y) Garland v. Mead, supra; Doe v. Ludlam, 7 Bing. 275. (z) Garland v. Mead, supra; Doe v. Lawes, supra; Doe v. (a) Garland v. Mead, supra. (d) Matthew v. Osborne, 13 C. Admittance of person therefore a plaintiff's title will be good if he proves an admittance at any time before the trial (e). The admittance of a person who has no title, upon an without title. unfounded claim, does not pass the estate to him and give him a good title (ƒ). Lessee need not be admitted. Custom of descent must be proved. A lessee of copyholds need not be admitted (g) and has a good title against all but the lord of the manor, and can recover possession of the demised premises without proving any custom or licence of the lord authorising the lease (h). If a plaintiff claims possession as heir by the custom of the manor the custom must be proved (i), but if there is no custom, or so far as there is no custom, the ordinary law of inheritance applies (k). (e) Rayson v. Adcock, 9 Jur. N. S. 800; Holdfast v. Clapham, 1 T. R. 600; Vaughan v. Atkins, 5 Burr. 2764. (f) Zouch v. Forse, 7 East, 186. (g) Watson v. Waltham, 2 A. & E. 485, 490. (h) Downingham's case, Owen, 17; Melwich v. Luter, 4 Co. Rep. 26 a; Doe v. Bousfield, 6 Q. B. 492; Scriven, 370-372 (6th ed.). (i) Roe v. Parker, 5 T. R. 26; Denn v. Spray, 1 T.R. 466. (k) Denn v. Spray, 1 T. R. 466; Hook v. Hook, 32 L. J. Ch. 14; Muggleton v. Barnett, 27 L. J. Ex. 125; Scriven, 270-274 (6th ed.). CHAPTER XVIII. WHAT PERSONS CAN BE SUED. possession Possession by tenants must be sued. A PERSON seeking to recover possession must sue the Person in person who is in possession of the premises either by himself or by his tenants. He may sue the landlord only (a), or only the tenant in actual possession, or both together (a). A mere servant in possession by permission of another is liable to be sued (b). or servants. A landlord is liable to be sued, even if he has given his Landlords. tenants notice to quit, if they have not given up pos session (c). If possession is vacant, the last person who would have Vacant possession. been in possession had the premises not been left vacant should be sued. When judgment for possession has been recovered, the sheriff will turn out all persons in possession, and give possession to the plaintiff (c). (a) Roe v. Wiggs, 2 B. & P. N. R. 330; Doe v. Stanton, 2 B. & Ald. 371. (b) Doe v. Stradling, 2 Stark. CHAPTER XIX. MESNE PROFITS. MESNE profits as damages for trespass to the land may now be claimed either in the action to recover possession, or by a separate action (a). In an action to recover mesne profits, they can only be recovered down to the date when the action was commenced, except in cases between landlord and tenant under sect. 214 of the Common Law Procedure Act, 1852 (b), when they can be recovered down to the date of the judgment; and under that section they may be recovered though they have not been claimed (c). The plaintiff must prove that he has re-entered into plaintiff must possession, his title during the period for which he claims, that the defendant has been in possession during that period, and the amount of such mesne profits. What prove. Entry into possession. His title. The plaintiff must have re-entered into possession, either by actual entry or execution of the writ of possession, before he can recover mesne profits (d). When he has once re-entered, the period of his possession relates back to the time when his right of entry accrued, and mesne profits are recoverable for that period (d). Before the Common Law Procedure Acts the judgment in ejectment was conclusive evidence of the plaintiff's title (a) Ord. III. r. 6; Ord. XVIII. r. 2. (b) 15 & 16 Vict. c. 76, s. 214; App. B, p. 346. (c) Doe v. Hodgson, 12 A. & E. 135; Smith v. Tett, 9 Exch. 307. (d) Barnett v. Guildford, 11 Exch. 19; Wilkinson v. Kirby, 15 C. B. 430; Litchfield v. Ready, 5 Exch. 939. |