consonance with the latter view, which assigns to the copyholder the character of a permanent tenant, he is deemed to owe fealty to his lord, which is an obligation from which a mere tenant at will is always exempt." The estates in question clearly do not fall within that definition. Neither are they ancient demesne or burgage tenements, as in Passingham, app., Pitty, resp., 17 C. B. 299 (E. Č. L. R. vol. 84). These estates have none of the incidents of copyhold tenures: nothing is said in the case about surrender, admittance, fealty, fines, escheats, forfeitures, heriots, or rights of common. The only fact which is stated that shows a shadow of title, is, that these parties pay a rent, and take an ordinary acquittance,-evidently for the purpose of preventing the operation of the statute of limitations. It would be extremely dangerous to hold that such a vague and unde fined tenure confers the franchise.

Mellish, Q. C., for the respondent.-The facts disclose a somewhat extraordinary sort of tenure; but the substantial question is, whether these parties are tenants *for life or tenants at will only. It

*561] is not necessary to make out that they are customary copy

holders. Though rare at the present day, no doubt, still there are such things as copyholds for life. The general rule is stated in Scriven on Copyhold, 4th edit. 43,-" A copyholder has, in judgment of law, but an estate at will, yet by custom copyhold tenements may be descendible." At p. 22, it is said: "A custom, that, after the death of a tenant for life, the lord is compellable to grant to a particular person, as, to the son, and, if no son, to the daughter, and so in perpetuum, is void, though a custom for a copyholder for life' to nominate his successor is good, the former being to compel the lord, who has the interest, to make a grant of it, and the latter compelling an admittance where the interest is in the copy holder. But, under such a custom, the estate could not be divided into fractions by nomi. nating part to one and part to another; yet it should seem that by the custom of Yelminster Prima, in Devonshire, the person nominating may except any part of the lands to any other person, but such exception operates on the beneficial interest only, the nominee continuing tenant to the lord for the whole." At p. 125, it is said: "In strictness, copyholds for lives are not the subject of surrender, other than as a mode of extinguishing the copyholder's interest, except by special custom, for it should seem that a copyholder for life cannot of common right surrender to the use of another for the remainder of his own life; and all the authorities agree, that, under the ordinary surrender by a copyholder for life, and the re-grant by the lord to the purchaser or his nominee, the grantee is in by the lord, and not by the surrenderor." The facts found here are totally inconsistent with an ordinary tenancy at will. The houses are said to be held under a customary tenure; and every house is held by a tenant *on the court-roll of the manor. The rent is small as compared with the annual value, and is never varied. It is payable twice a year. The tenants are not subject to notice to quit or to actions of ejectment,-from which it is to be inferred that there is no compulsory change of tenaney. The tenants are rated to the poor, and assessed to the property-tax as owners. [WILLIAMS, JI these were tenancies at will, the estate of the tenant would determine

*562]

on the death of the lord: and yet no trace is to be found of any such termination of a holding.] None. All these circumstances are equally inconsistent with a tenancy from year to year. These tenants are summoned on the manor jury, which would not be the case if they were mere tenants at will or tenants from year to year. It may be that the absence of surrender shows that these are not copyholds of inheritance. Again, Serjt. Scriven, at p. 361, says: "Fealty, which is incident to every tenure except tenants in frankalmoigne and tenants at will, signifies the oath which was administered to every tenant upon his admittance, to become a faithful tenant to the lord, and to do suit at his courts, &c., and is an imitation of the homage required by every lord, and rigidly enforced during the existence of the military tenures." And in a note it is said, "But, in 10 H. 6, the justices of the Court of Common Pleas held that lessees for years could not do fealty: Co. Copyh., § 21: and see Kitch. 260." So that fealty seems to be a distinctive mark of a tenancy for life. [He was stopped by the court.]

Chitty, in reply. If a customary tenure at all, this must be a customary freehold. If so, these parties can have no right to vote under s. 19. The 12 Car. 2, c. 24, having destroyed all base tenures, except tenures by copy of court-roll, these persons, if they have any estate at all beyond a tenancy at will, must be freeholders. [*563 ERLE, C. J.-I am of opinion that the decision of the revising barrister was right. Upon the evidence which was before him, I should have come to the same conclusion: not that I am able to see very clearly what is the precise nature of the interest in respect of which these persons claimed to vote; but it seems to be an interest of a permanent nature according to the custom, and amounting at least to an estate for life. Is it a freehold interest? I find here none of the incidents which usually attach to a freehold. The parties hold without being liable to be turned out by a notice to quit, or to an ejectment. Their interest cannot be less than a tenancy for life. The parties holding under this manor appear to have held in the same way for generations. I believe, if the history of the law of these tenures were looked into, it would be found that all copyholders were originally tenants at will, and that by process of time their interests have gradually grown into definite estates such as we now find them, governed in some respects by the particular customs of the manor to which they belong. As to the manor which we are now dealing with, it seems there are customs which are found exemplified in the case of many other manors in the north of England. Upon the facts found by the revising-barrister here, I am of opinion that these persons have a permanent interest in the land, which at the lowest amounts to an estate for life, and that it is not a freehold. Then the 19th section of the 2 W. 4, c. 45, says that every male person of full age, and not subject to any legal incapacity, who shall be seised at law or in equity of any lands or tenements of copyhold or any other tenure whatever except freehold, for his own life, &c., of the clear yearly value. of not less than 107. over and above all rents, and charges [*564 payable out of or in respect of the same, shall be entitled to vote. These parties have estates for their lives, which are not of freehold tenure, and which are of the requisite value. They are, therefore C. B. N. S., VOL. XV.-22

*

clearly entitled to be registered. The decision of the revising-barrister must be affirmed with costs.

WILLIAMS, J.-I am of the same opinion. A great deal of learning is to be found with respect to these curious tenures in many books of authority, beginning with Hargreave and Butler's learned note to Co. Litt. 59 b, and coming down to the more recent cases of Doe d. Edmunds v. Llewellen, 2 C. M. & R. 503, and Passingham, app., Pitty, resp., 17 C. B. 299 (E. C. L. R. vol. 84). They are very common in the north of England, where they are sometimes called customary freeholds and sometimes tenant-rights. The contest on the present occasion has been whether the estates held by these persons are freehold or copyhold interests. But I apprehend it is quite immaterial here whether they are freehold or copyhold; because, if they are not freeholds, but are in the nature of copyholds, being respectively above the value of 107. a year, they are within the words of the 2 W. 4, c. 45, s. 19. The only question is, whether the revising-barrister was right in holding that these persons are seised in law or equity of houses of copyhold or other tenure, for their own lives, or for a larger estate. Although the circumstances which he has detailed are not easily reconcilable with any tenure known to the law, but point to a sort of interest which may perhaps be referred to an enjoyment such as encroachers would have arrived at, yet such an anomalous state of things may have arisen from the fact of the lord, dealing with people *565] who were unable to resist him, having chosen to impose *conditions which the law did not warrant. Notwithstanding this, here is a case of customary freehold or some estate of that kind continuing at least for the life of the party. The revising-barrister having come to this conclusion, I cannot see that we are warranted in saying he has done wrong. He has found the facts; and I think upon the evidence before him he was fully warranted in his decision.

BYLES, J.-I am of the same opinion. Upon the facts here found, I must own I should have thought that the freehold was in the lord. These parties cannot be considered as mere squatters; neither are they tenants from year to year: they are tenants for life, at the least. We cannot disaffirm the decision of the revising-barrister unless we see clearly that the qualifications of these persons cannot be copyhold tenements. It is extremely difficult to say precisely what sort of interest the respondents have. The revising-barrister holds that each of them was "seised in law or equity of houses of copyhold or other tenure not freehold, for his own life or for a larger estate." He has found the facts which induced him to come to that conclusion; and I cannot say that they do not warrant it.

KEATING, J.-I am of the same opinion. The tenure of the land by the respondent and the other persons whose cases are consolidated with his is one of a very peculiar character. From the facts which are found, I cannot discover that the conclusion is otherwise than right. The argument of Mr. Chitty is not quite consistent with the facts found. The statement is wholly inconsistent with a freehold interest in these persons: and it is equally so with a tenancy from year to year; for, who ever heard of fealty being required of a tenant from year to year? It is not easy to define the precise charac ter of the tenure. But, if it is not a copyhold, I should say that

*566]

it is so near to a tenure of that description as to come within the 19th section of the Reform Act. Decision affirmed, with costs.

END OF THE REGISTRATION CASES.

*IN THE EXCHEQUER CHAMBER. [*567

MICHAELMAS VACATION, 1863.

GORE v. The RIGHT HON. SIR GEORGE GREY, Bart. and Others. Nov. 30.

Judgment of the Common Pleas affirmed.

THIS was an action for an assault and false imprisonment. The defendants-the Home Secretary, the keeper of the Queen's Prison, the deputy-keeper, a turnkey, the surgeon of the prison, and one of the physicians of St. Thomas's Hospital,-justified under the 14th section of the Queen's Prison Act then in force (5 Vict. c. 22), on the ground that the plaintiff was insane.

The Court of Common Pleas, upon the argument of a demurrer to the pleas, held, that, although the 102d section of the Insolvent Debtors Act, 1 & 2 Vict. c. 110, was virtually repealed by the 14th section of the Queen's Prison Act, because the former enactment was utterly inconsistent with the latter, yet the 14th section of the Queen's Prison Act, on which the pleas of justification were founded, was not repealed or affected by the 4th section of the Lunacy Act, 16 & 17 Vict. c. 96, by reason of the saving clause which is inserted into it: see the report, 13 C. B. N. S. 138 (E. C. L. R. vol. 106).

The plaintiff brought a writ of error, which came on for argument before Pollock, C. B., Bramwell, B., Channell, B., Blackburn, J., Mellor, J., and Pigott, B.

The plaintiff was heard in person: but The Solicitor-General (with whom was Welsby) was not called upon.

THE COURT unanimously affirmed the judgment of the court below. Judgment affirmed.

*PARRY v. THE CROYDON COMMERCIAL GAS AND

COKE COMPANY. Nov. 30.

[*568

By the Croydon Improvement Act, 10 G. 4, c. lxxiii., s. 27, it is enacted, that, if the commissioners, or any company or other person making or supplying gas within the limits of the act, shall suffer any impure matter to flow into any stream, &c., they shall be liable to a penalty of 2001, to be sued for by any common informer, and to a further penalty of 201. a day for the continuance of the nuisance after notice, to be paid to the informer or the party injured, as the justices should think fit.

By the 21st section of the Gasworks Clauses Act, 1847 (10 Vict. c. 15), s. 21, a like penalty is imposed upon the undertakers of any gasworks for the same offence, which penalty is, by 8. 22,

"to be recovered by the person into whose water such substance shall be conveyed, or whose water shall be fouled by any such act:" and by s. 23, a daily penalty of 207. is imposed on them for the continuance of the nuisance after notice, to be recovered in like manner :

Held, that a gas-company established under an act of parliament in which the provisions of the Gasworks Clauses Act are incorporated, are liable to the penalties imposed by the 10 Vict. c. 15, but not to those imposed by the 10 G. 4, c. lxxiii.

THIS was an action by a common informer against The Croydon Commercial Gas and Coke Company, upon the 10 G. 4, c. lxxiii. (the Croydon Lighting and Improvement Act), for permitting offensive matter to flow into certain streams.

The declaration stated that the defendants, within six calendar months before the commencement of this suit, to wit, on the 2d of August, 1861, they then being persons making, furnishing, and supplying gas used and burnt for lighting divers highways, streets, and places, houses, manufactories, and other premises within the limits of an act made in the 10th year of the reign of King George the Fourth, intituled "An act for lighting, watching, and improving the town of Croydon in the county of Surrey, for providing lodgings for the judges at the assizes holden in the said town, and for other purposes relating thereto," did drain and convey, and caused and suffered to be drained and conveyed and to run and flow, divers washings and other waste liquids, substances, and things which arose and were made in the prosecution of the said gasworks, into certain rivers, brooks, and running streams, canals, reservoirs, aqueducts, feeders, ponds, and spring-heads, and into divers drains, sewers, and ditches communicating with them the said rivers, &c., and did and caused to be done divers annoyances, acts, and things to the water contained in *569] them; whereby the water contained in them, and divers parts thereof, were spoiled, fouled, and corrupted, contrary to the form of the statute in such case made; whereby and by force of the said statute the defendants forfeited and became liable to pay to the plaintiff the sum of 2001. yet the defendants had not paid the same: and the plaintiff claimed 2007.

Second plea, that the acts and things complained of, and each and every of them, were and was committed and happened after the passing and coming into, operation of "The Croydon Commercial Gas and Coke Act" (10 & 11 Vict. c. cxxiv.), and after the 1st day of August, 1849; and that the said acts and things, and each and every of them, were and are and was and is such and the like acts and things, act and thing, as are and is described and mentioned in the 21st section of "The Gasworks Clauses Act, 1847" (10 Vict. c. 15) and no other; and that the plaintiff is not and never has been the person into whose water the washing or other substance produced in making or supplying gas in such act mentioned (being the washings and other waste liquids, substances, and things in the declaration mentioned) were conveyed or flowed, or the person whose water was fouled.

To this plea the plaintiff demurred, the ground of demurrer being, "that the plaintiff's right to sue for the penalty given by the 10 G. 4, c. 1xxiii., s. 27, is not taken away by the 10 & 11 Vict. c. exxiv, incorporating the 10 Vict. c. 15, s. 21, and that the two penalties are cumulative." Joinder.

The Court of Common Pleas having given judgment" for the