Heir may compel admittance. Admittance of heir, how effected. come in and take up his copyhold in court, and so defeat the lord of his fine. I assure myself, if it were in the election of the heir to be admitted or not, he would be best contented without admittance, but the custom in every manor is compulsory on this point, for, either upon pain of forfeiture of their copyhold or of incurring some great penalty, the heirs of copyholders are forced in every manor to come into court and be admitted, according to the custom, within a short time after notice given of the ancestor's decease "(p). Upon the ground that the heir had a good title as against everyone but the lord, the Court of Queen's Bench used to refuse a mandamus against the lord to admit the heir, considering it unnecessary (q); but the practice in this respect has changed, and now a mandamus to compel the lord to admit will be granted, because the heir before admittance is at some disadvantage as between himself and the lord, seeing that he cannot, if admittance is refused, sit on the homage at the court, or otherwise act there as one of the tenants, and generally because the heir has a right to insist upon admittance to make himself a complete copyholder (»). In the case of Garbutt v. Trevor ($), however, it seems to have been thought that the steward of a manor, where a very exceptional custom prevailed, might have a right to consider all the legal, equitable, and other circumstances before determining to grant admission to the heir of one of the customary tenants. The admittance of the heir, as in the case of a surrenderee already mentioned, may be either express and formal, or by implication, as where the lord swears him upon the homage, or does some other unequivocal act of accepting him as a tenant. On this point, Calthrop has some useful remarks: "Admittance may be in three (p) Co. Copyh. s. 41. (q) Rex v. Rennett, 2 T. R. 197. B. C. C. 111; Rex v. Wilson, 10 (s) 15 C. B. N. S. 550. manner of ways: (1) an express admission by the words entered on the court rolls unde admissus est tenens;' (2) or by acceptance or implication, as if the lord will accept the rent by the hands of a stranger; (3) by admitting one copyholder, in some cases the lord shall admit another by implication to some purposes (i. e., tenants in remainder); and to these three may be added (4) the entry of the son after the death of his father, and of the tenant in dower (freebench) after the death of her husband, which is lawful without admission till the next court, and then they must pray to be admitted" (t). But in regard to the acceptance of rent by the lord, it has been doubted whether such an act does amount to an admittance, because it is of an ambiguous nature (u); and it seems that before it could 1894 2.20 420. be relied on as an implied admission, the rent would require to be expressly accepted from the heir, or surrenderee, in the character of a copyholder. As already mentioned with reference to admittance Who may upon a surrender, since the year 1841 it has been lawful admit. for the lord, steward, or deputy, or person filling any of those capacities, whether rightfully or not, to admit at any time or place, within or without the manor, and without holding a court, any person as tenant to any lands parcel. to the manor, to be held by copy of court roll, or according to the custom of such manor, to and for which such person shall for the time being be entitled to be admitted. Every admission is forthwith to be entered on the court rolls, and every such entry is to be taken as having been made on a presentment by the homage; the steward or deputy being entitled to the same fees as if the entry had been made after presentment, which is now unnecessary for the validity of the admission (x). The admission cannot be postponed in order to compel payment of the fine, which (t) Calthr. Copyh. 47; see Wilson v. Allen, 1 J. & W. 611, 613. (u) See Frosel v. Welsh, Cro. Jac. 403; Barker v. Denham, Sty. 145; Doe d. Tarrant v. Hellier, 3 T. R. (x) 4 & 5 Vict. c. 35, ss. 88-90. Heir bound to come. Seizure quousque. does not accrue due to the lord until the tenant has been admitted (y). The heir is bound to come to the lord for admittance within a certain time, usually a year and a day, which is fixed by the custom of the manor. If no particular time is limited by the custom, he must appear upon proclamation made at three successive courts for him to come and take the estates; and if he does not appear, the lord may seize the land quousque, and enjoy the rents and profits until the heir comes for admittance (≈). The seizure quousque is rather in the nature of a process for recovering the fine than in the nature of a forfeiture (a); but in some manors there are customs that after neglect or refusal to appear within a certain time, the land shall be absolutely forfeited; and these customs have been held reasonable, though proceedings under them will not be allowed without the strictest proof of the existence of such a custom and of all steps towards the forfeiture having been properly taken. "The severity of the law in these as in all other cases of forfeiture warrants the courts in taking care that there is the greatest accuracy in the lord's proceedings. . . . A general forfeiture of a copyhold estate does not accrue without a custom to warrant it. In such cases, the lord has only a right to enter into possession to satisfy himself of the injury he sustains for want of a tenant; he can only retain the possession quousque. And if the lord seizes absolutely, having only a right to seize quousque, there is a defect in the seizure which vitiates the whole " (b). But although the lord has, after due proclamation, seized quousque for want of an heir, he is not entitled to hold the land against the heir on the mere proof of a devise to persons who do not claim admittance, (y) Reg. v. Wellesley, 2 E. & B. 924. (z) Doe d. Twining v. Muscott, 12 M. & W. 832. (a) Doe d. Bover v. Trueman, 1 B. & Ad. 736. (b) Per Ld. Kenyon, C. J., in Doe d. Tarrant v. Hellier, 3 T. R. 162, 169. for seizure quousque does not give the lord an adverse title, as he seizes only till the tenant comes in (c). When the lord seizes quousque, he is not bound to account for the rents of the estate received during his possession (d). On a seizure quousque, the bailiff should require the occupiers to attorn to the lord; but if they refuse or make any resistance, the lord would have to bring an action against them for recovery of the land (e). The proceedings for the seizure quousque should take place within a reasonable time after the death, for it seems that the lord's right of entering upon and seizing the lands is an "entry or distress" within the meaning of the Statutes of Limitation (f); but it would appear that the mere lapse of the statutory period, without the lord's seizure, will not alter 14 2 213, 420, the tenure of the land (g), for enfranchisement has never been presumed except in cases where there has been evidence of long enjoyment of the property as freehold (h). tions. The proclamations for an heir may be made in general Proclamaterms (i); and it is not necessary to specify the particular lands of which the former tenant died seised (). The proclamations have to be made at customary courts of the manor; but if a court is held under the provisions of the Copyhold Act, 1841, without the presence of copyhold tenants, the proclamation will not affect the right of any person whose interest may be affected by it, unless notice (c) Doe d. Le Keux v. Harrison, 6 Q. B. 631. (d) Underhill v. Kelsey, Cro. Jac. 226. (e) Lord Salisbury's Case, 1 Lev. 63; S. C. as Pateson v. Danges, 1 Keb. 287. (f) Doe d. Tarrant v. Hellier, 3 T. R. 162; In re Lidiard and Jackson's and Broadley's Contract, 42 Ch. Div. 254, 258; 3 & 4 Will. IV. c. 27, s. 2; 37 & 38 Vict. c. 57. (g) See Scriv. Copyh. 287. (h) See Roe d. Johnson v. Ireland, 11 East, 280; Turner v. West Bromwich Union (Guardians of), 9 W. R. 155; In re Lidiard and Jackson's and Broadley's Contract, 42 Ch. Div. 254. (i) Doe d. Whitbread v. Jenney, 5 East, 522. Forms of proclamations and of a precept to seize quousque will be found in the Appendix, post. (k) Doe d. Tarrant v. Hellier, 3 T. R. 162, 164 n. Infant heir. that the proclamation has been made, is duly served upon him within one month after the holding of the court (7). Until proclamation is made, the heir is not obliged to claim, and there can be no seizure quousque before three proclamations have been duly made (m). A custom to seize the land as absolutely forfeited is not good as against an heir who is in prison, or beyond seas, at the ancestor's death, or against a person under disability (n). As has been already mentioned, every one is now entitled to take admittance by attorney (0), but an infant heir may also claim the benefit of the provisions of the Act 11 Geo. IV. & 1 Will. IV. c. 65, which enacts that every infant, either by his own appearance, or by his guardian or attorney, shall come to one of the next three courts after any descent entitling him to admittance, and shall take admittance (p): and if he is without guardians he is authorised to make an attorney by writing (q). In default of such appearance, the lord or steward, after three courts with proclamations, may appoint and admit an attorney for the special purpose, and set a proper fine ("); and if such fine be not paid upon a demand in writing within three months, the lord may enter on the copyhold and satisfy himself of his fine, costs and expenses, paying the surplus profits to the person entitled to the land (s). The lord is required to deliver up possession when his charges are satisfied (t), and the guardians of infants, and their executors and administrators, may enter and reimburse themselves for any fine and other charges so paid to the lord, notwithstanding the death of the copyhold tenant (u). The Act contained similar provisions as (1) 4 & 5 Vict. c. 35, s. 86. (a) Ibid. s. 4. See 50 & 51 Vict. c. 73, s. 2. (r) 11 Geo. IV. & 1 Will. IV. c. 65, s. 5. (s) Ibid. s. 6. (t) Ibid. s. 7. (u) Ibid. s. 8. |