the testator as his right heir; and I am asked to consent to that which will take it away from the eldest son, and take it away from the family, by giving it to the husband of the daughter. That would be anything but protecting the settlement; it would be destroying the settlement; giving the estate to a person not a member of the family, namely, the husband of the daughter. I should not consider that it would be a proper act for the tenant for life to concur in a deed of disposition to that effect." The Lord Chancellor, in acting as protector of a settlement in the place of a lunatic, considers the moral as well as the legal result of his consent to bar remainders. And where the only child of the lunatic who, upon her marriage, had converted her estate tail into a base fee, reserving a power of appointment, required his consent to bar the remainders over, the Lord Chancellor refused his consent, the remainder over being to the brother of the lunatic. (In re Graydon, 14 Jur. 211; 1 Mac. & G. 655; 2 Hall & T. 182.) Real estates were devised to trustees, upon trust, to raise by sale or mortgage thereof sufficient to pay the debts and legacies of the testatrix, and subject thereto, to the use of A. for life, with remainder to his first and other sons in tail male, with remainders over. In a suit, instituted in the Court of Exchequer, for the payment of the debts and legacies of the testatrix, a decree for a sale was pronounced, under which accordingly a sale was had; but pending the proceedings in the suit, A., the tenant for life, died, leaving him surviving three sons, of whom S., the eldest, and first tenant in tail under the will of the testatrix, was a lunatic, and so found by inquisition. Upon an application in the matter of the lunacy, on the part of the plaintiffs in the Exchequer suit, that the committee should be directed to execute the necessary deed, to bar the estate tail of the lunatic, the court refused to make the order. It seems that if the legal fee was in the trustees, the concurrence of the committee of the lunatic was not necessary. (In re Skerrett, 2 Dru. & War. 585.) The court had no jurisdiction under stat. 1 Will. 4, c. 65, and 3 & 4 Will. 4, c. 74, to authorize the committee of the estate of a lunatic tenant in tail in possession to grant leases of the lunatic's estate for a term of twenty-one years, so as to bind the remainderman. (In re Starkie, 3 M. & Keen, 247; see Cullum v. Upton, 19 Law J., Chanc. 276.) By stat. 18 & 19 Vict. c. 13, the Lord Chancellor, in matters of lunacy, is enabled to empower committees of the estates of lunatics to grant leases binding on the issue or remaindermen. 3 & 4 Will. 4, c. 74, 8. 48. Leases of lunatic's estate binding issue and remaindermen. Evidence of Consent of Lord Chancellor, &c. as Protector. 49. Provided always, and be it further enacted, that in every case in which the Lord High Chancellor, Lord Keeper or Lords Commissioners for the custody of the great seal, or other the person or persons intrusted with the care and commitment of the custody of the persons and estates of persons found lunatic, idiot, and of unsound mind (u), or his Majesty's High Court of Chancery, shall be the protector of a settlement, no document, or instrument, as evidence of the consent of such protector to the disposition of a tenant in tail under such settlement, shall be requisite beyond the order in obedience to which the disposition shall have been made. (u) See ante, p. 337, n. (g). Order of the Lord Chancellor, &c. to be evidence of consent. 3 & 4 Will. 4, c. 74, s. 50. The previous clauses to apply to copyholds, with certain variations. Entails in copyholds. Old mode of barring entails in copy holds. XIII. ESTATES TAIL IN COPYHOLDS. Qualified Application of previous Clauses to. 50. All the previous clauses in this act, so far as circumstances and the different tenures will admit, shall apply to lands held by copy of court roll, except that a disposition of any such lands under this act by a tenant in tail thereof, whose estate shall be an estate at law, shall be made by surrender, and except that a disposition of any such lands under this act by a tenant in tail thereof, whose estates shall be merely an estate in equity, may be made either by surrender, or by a deed as hereinafter provided, and except so far as such clauses are otherwise altered or varied by the clauses hereinafter contained (v). (v) Copyholds are not within the stat. De donis (13 Edw. 1, c. 1; Cro. Car. 44, 45), and therefore not entailable, except by special custom; (Doe v. Truby, 2 W. Bl. 946; 3 Dougl. 303;) and where no such custom exists in the manor, the party, who would otherwise be tenant in tail, will take a fee simple conditional at common law. (Doe d. Spencer v. Clark, 5 B. & Ald. 458; Simpson v. Simpson, 4 Bing. N. C. 333; Moore v. Moore, 2 Ves. sen. 596; Doe d. Blesard v. Simpson, 3 Scott, N. R. 774; Hardcastle v. Dennison, 10 C. B., N. S. 606. See ante, p. 300.) The testator having surrendered copyholds to the use of his will, devised them to trustees for sixty years, on certain trusts, subject to which he devised to H. for life, remainder to his first son in tail, with remainders over, with a proviso for cesser of the term. On the death of the testator, in 1813, the trustees were admitted and a fine was paid: the trusts of the term were satisfied. By a private act, the 7 & 8 Vict. c. xxiv, new trustees therein named were empowered to sell the copyholds, freed and discharged from the limitations of the will, and by any surrender by them made, according to the custom of the manor, and in the same manner as if they were the copyhold tenants of the same, to surrender them to the use of the purchaser, his heirs and assigns. No estate was given to the new trustees by the act: it contained a clause saving the rights of all persons except those interested under the will. The new trustees sold the copyholds, and tendered a surrender to the steward, which was refused, on the grounds that they must be admitted tenants of the manor before they could surrender, and that the estate tail could only be barred by surrender for that purpose, on which by the custom of the manor a fine would be due to the lord. The court thought the custom of the manor by no means showed the necessity of two surrenders, and in reference to sections 15, 22, 40, 42, 50 and 52 of 3 & 4 Will. 4, c. 74, it seemed clear that the tenant for life and remainderman in tail might (independent of the private act) by one surrender have barred the entail and conveyed to the purchaser, and that only one fine would in such case have been payable, it being always recollected that the tenant for life and remainderman had already been admitted by the operation of the admittance of the original trustees. (Reg. v. Lords of the Manor of Weedon-Beck, 18 Law J., Q. B. 289; 13 Q. B. 808.) Before the passing of this act there were several modes of barring entails in copyholds besides that by recovery:- By forfeiture and re-grant, a custom said to be peculiar to the manor of Wakefield; (Pilkington v. Stanhop, 1 Sid. 314; 2 Keb. 127;) although it seems that it would have been effectual if established in any other manor. (Pilkington v. Bagshaw, Sty. 450; Carr v. Singer, 2 Ves. sen. 606.) Concurrent customs in a manor court to bar entails in copyholds, by recovery and by surrender, were good; (Doe d. Wallhead v. Ossingbrooke, 2 Bing. 70; Everall v. Smalley, 2 Str. 1197; 1 Wils. 26; Doe v. Truby, 2 W. Bl. R. 944 ;) and slight evidence was held sufficient to prove the latter, because it was adverse to the interest of those who made the evidence. (Doe d. Dauncey v. Dauncey, 7 Taunt. 674. See Roe d. Bennett v. Jeffrey, 2 Maule & Selw. 92; Doe v. Mason, 3 Wils. 63.) And as a custom of entailing copyhold estates would create a perpetuity, unless there were some means devised to bar them, it has been adjudged, that where there was no custom to bar the entail by recovery, it might be barred by common surrender, or even by a surrender to the use of a will, (Carr v. Singer, 2 Ves. sen. 606,) by three judges, against the opinion of Willes, C. J., who thought a recovery was the proper method of barring the entail. The presumption is, that a surrender will bar an estate tail in copyholds until a contrary custom is shown. (Goold v. White, Kay, 683. See 1 Watk. on Cop. 178; Scriv. on Cop. pp. 44-56, 5th ed.) Before this act the same mode of barring an equitable entail in copyholds must have been pursued, as was required by the special custom of the manor for barring an entail in the legal estate. (3 Ves. 127; 3 Atk. 815; 1 Watk. on Cop. 180, 181.) It will be seen that, by this act, an equitable entail in copyholds may be barred either by surrender or by deed. (See post, s. 53, p. 352.) Consent of Protector by Deed. 3 & 4 Will. 4, c. 74, s. 50. As to the deed of entry of it on the court rolls where settlement of copyholds cont consent and the the protector of a sents by deed to tenant in tail. 51. Provided always, and be it further enacted, that if the consent of the protector of a settlement to the disposition of lands held by copy of court roll by a tenant in tail thereof shall be given by deed, such deed shall, either at or before the time when the surrender shall be made by which the disposition shall be effected, be executed by such protector, and produced to the the disposition of lord of the manor of which the lands are parcel, or to his a steward, or to the deputy of such steward; and the consent of such protector shall be void unless such deed shall be so executed and produced; and on the production of the deed the lord, or steward, or deputy steward, shall, by writing under his hand to be indorsed on the deed, acknowledge that the same was produced within the time limited, and shall cause such deed, with the indorsement thereon, to be entered on the court rolls of the manor; and the indorsement, purporting to be so signed, shall of itself be primâ facie evidence that the deed was produced within the time limited, and that the person who signed the indorsement was the lord of the manor, or his steward, or the deputy of such steward; and after such deed shall have been so entered the lord of the manor or his steward, or the deputy of such steward, shall indorse thereon a memorandum signed by him, testifying the entry of the same on the court rolls. Consent of Protector not by Deed. 52. Provided always, and be it further enacted, that if the consent of the protector of a settlement to the disposition of lands held by copy of court roll by a tenant in tail thereof shall not be given by deed, then and in such case the consent shall be given by the protector to the person taking the surrender by which the disposition shall be effected; and if the surrender shall be made out of court, it shall be expressly stated in the memorandum of such surrender that such consent had been given, and such memorandum shall be signed by the protector; and the lord of the manor of which the lands are parcel, or his steward, or the deputy of such steward, shall cause the memo 3 & 4 Will. 4, c. 74, s. 52. Evidence of entry in court rolls. randum, with such statement therein as to the consent, to be entered on the court rolls of the manor; and such memorandum shall be good evidence of the consent and of the surrender therein stated to be made; and the entry of the memorandum on the court rolls, or a copy of such entry, shall be as available for the purposes of evidence as any other entry on the court rolls, or a copy thereof; but if the surrender shall be made in court, the lord of the manor, or his steward, or the deputy of such steward shall cause an entry of such surrender, containing a statement that such consent had been given, to be made on the court rolls, and the entry of such surrender on the court rolls, or a copy of such entry, shall be as available for the purposes of evidence as any other entry on the court rolls, or a copy thereof (x). (a) A copy of a court roll under the steward's hand is good evidence to prove the copy holder's estate: so an examined copy of the court roll is good evidence, if sworn to be a true one. (1 Keb. 567, 720; Comb. 138, 337; 12 Mod. 24; Bull. N. P. 247 a, 7th ed.) A surrender and admittance may be proved by the original entries made by the steward, without producing a copy stamped, as required by stat. 48 Geo. 3, c. 149. (Doe d. Bennington v. Hall, 16 East, 208.) Where a surrender of a copyhold was duly made and presented by the homage, but no entry of such surrender and presentment was made on the court rolls, it was held that such surrender and presentment might be proved by a draft of an entry produced from muniments of the manor, and the parol testimony of the foreman of the homage who made such presentment. (Doe d. Priestley v. Calloway, 6 Barn. & Cress. 484.) The provisions in stat. 48 Geo. 3, c. 149, ss. 32, 33, requiring every surrender of copyhold and admittance, &c., made out of court, or a memorandum thereof, to be stamped; and in case of a surrender, &c., in court, the steward to make and deliver to the tenant a stamped copy of the court roll; are merely revenue regulations, and not intended to vary the rules of evidence: and, therefore, a surrender and admittance out of court (presented and inrolled afterwards) may be proved by an examined copy of the court roll, without producing the original surrender, &c., or memorandum thereof. (Doe d. Cawthorn v. Mee, 4 B. & Ad. 617.) An examined copy of court rolls is admissible in evidence to prove a surrender of copyhold lands, without being stamped; the provision in 55 Geo. 3, c. 184, as to copies of court rolls, applying only to such copies as are given out and signed by the steward. (Doe d. Burrows v. Freeman, 12 Mees. & W. 844.) In ejectment for copyholds, the court rolls of the manor, containing an entry of a presentment by the homage of a surrender to the plaintiff out of court, and of his admittance, are evidence of his title against the alleged surrenderor. (Doe d. Garrod v. Olley, 4 P. & Dav. 275; 12 Ad. & Ell. 481.) Power to equit able tenants in tail of copyholds lands by deed. Disposition of equitable Estates Tail in Copyholds. 53. Provided always, and be it further enacted, that a tenant in tail of lands held by copy of court roll, whose estate (p) shall to dispose of their be merely an estate in equity, shall have full power by deed to dispose of such lands under this act in the same manner in every respect as he could have done if they had been of freehold tenure; and all the previous clauses in this act shall, so far as circumstances will admit, apply to the lands in respect of which any such equitable tenant in tail shall avail himself of this present clause; and the deed by which the disposition shall 3 & 4 Will. 4, c. 74, 8. 53. be effected shall be entered on the court rolls of the manor of which the lands thereby disposed of may be parcel; and if there shall be a protector to consent to the disposition, and such protector shall give his consent by a distinct deed, the consent shall be void unless the deed of consent be executed by the protector either on or any time before the day on which the deed of disposition shall be executed by the equitable tenant in tail; and such deed of consent shall be entered on the court rolls (y), and it shall be imperative on the lord of the manor, or his steward or the deputy of such steward, when required so to do, to enter such deed or deeds on the court rolls, and he shall indorse on each deed so entered a memorandum, signed by him, testifying the entry of the same on the court rolls: provided always, that every deed by which lands held by copy of court roll shall be disposed of under this clause, by an equitable tenant in tail thereof, shall be void against any person claiming such lands, or any of them, for valuable consideration under any subsequent assurance duly entered on the court rolls of the minor of which the lands may be parcel, unless the deed of *Lege manor. disposition by the equitable tenant in tail be entered on the court rolls of such manor before the subsequent assurance shall have been entered (z). (x) It seems that the expression ought to have been "whose estate tail shall be merely an estate in equity." See the 50th section, ante, p. 350, which probably supplies the omission. (Sugd. Stat., p. 224, pl. 6, 2nd ed.) (y) It seems to be the intention of the act that the deed of consent must be entered on the court rolls at or before the time when the principal assu-" rance is so entered. (Dart V. & P. 632, note (k).) In applying for a mandamus to the steward of a manor to inrol a deed of disposition pursuant to stat. 3 & 4 Will. 4, c. 74, s. 53, it is not necessary to annex a copy of the deed itself, if the contents are stated in the affidavit. (Crosby v. Fortescue, 5 Dowl. P. C. 275.) (*) In commenting upon the proviso at the end of this section, Lord St. Leonards considers it probable that notice will not be held to supply in equity the want of an entry on the court rolls. (Sugd. Stat. 223, 2nd ed.) This section only applies to equitable estates of tenants in tail of lands This section does held by copy of court roll; the court, therefore, refused a mandamus to the not extend to lord of a manor, commanding him to enter on the court rolls an indenture customary freetouching certain customary freehold hereditaments, although it appeared that the steward of the manor was accustomed to give admittances signed by him to the grantee of such hereditaments, but did not inrol the deed by which they were granted. (Reg. v. Ingleton (Lord of Manor), 8 Dowl. P. C. 693; 4 Jurist, 700. See Carlisle v. Towns, 2 B. & Ad. 585.) Dispensation with Inrolment. 54. Provided always, and be it further enacted, that in no case where any disposition under this act of lands held by copy of court roll, by a tenant in tail thereof, shall be effected by surrender or by deed, shall the surrender or the memorandum, or a copy thereof, or the deed of disposition, or the deed, if any, by which the protector shall consent to the disposition, require inrolment, otherwise than by entry on the court rolls (a). holds. Inrolment not copy holds. necessary as to (a) A disentailing assurance, in order to operate upon copyhold lands Entry on court under this act, must be entered on the court rolls within six calendar months rolls to be within S. A A six months. |