Guardianship by custom in freeholds. species of guardianship ends when the infant attains the age of fourteen years, unless another age is prescribed by the custom (1); and at its termination the infant, by custom, may choose another guardian (m). By the statute 11 Geo. IV. & 1 Will. IV. c. 65, enacted in place of 9 Geo. I. c. 29, the lord may appoint a guardian for an infant who does not come for admittance, for the purpose of such admittance and the payment of the fine; and the guardian so appointed may reimburse himself his expenses, and the amount of such fines, notwithstanding the infant's death, in the manner provided by the Act (n). Guardianship by custom is found in certain freehold lands, as by the customs of burgage tenements in various cities and boroughs, and by the custom of London (now disused in this respect), giving the guardianship of orphans to the Corporation. Guardianship by custom may also be found in freehold lands of ancient demesne tenure, and in gavelkind lands in Kent, where the infant is in ward until the age of fifteen (o). In the case of freehold lands, the customary varieties of guardianship have ceased to be of importance (p). 4. The Lord's Fine. Upon the admittance of a new tenant a fine is in general due to the lord as a consideration for the admittance; but in some manors no fine is due for admittances upon descents, or for the admittance of a widow or widower to the land taken as freebench or customary estate by the curtesy. In some manors a small fine is payable upon alienation of any part of the tenement by surrender (7), or (1) Wade v. Baker, 1 Ld. Raym. (m) Kitch. Jurisd. 202. (0) As to guardianship in gavel- of London, and Macph. Infants, 48. (p) On the whole subject of guardianship, see Co. Litt. 88 b, notes (Harg.), and as to guardianship by custom, see Simpson, Infants (2nd ed.), 224-236. (1) But see Holland v. Lancaster, 2 Vent. 134. under license to demise or alienate, when by the custom the lord is obliged to grant the desired permission. Fines payable to the lord by the copyholder have been Classification divided into three classes (), the first being due upon the of fines. death of the lord, the second on the change of the tenant, And so and the third for license to empower the tenant to alienate, death of By the custom of many manors in the North, a fine is due As to fines on the death of the last-admitting lord, whether he was in payable on possession of the manor at the time of his death or not; and admitting this custom has been held good by the House of Lords (u). In the case of Somerset (Duke of) v. France (x), the custom was stated to be for the lord or lady of the manor for the time being to admit the tenants to their respective estates, such admittances giving them a right to hold the estates during the joint lives of such admitting lord or lady; and that in consideration of such admittance they were used to pay a general fine to the next succeeding (r) Watk. Copyh. i. 285. (8) Co. Litt. 59 b. (t) Co. Copyh. s. 56. (u) Lowther v. Raw, 2 Bro. P. C. 451. (x) 1 Stra. 654. lord. lord upon the death of the last-admitting lord which caused a general determination of the estates. The admitting lady having died, her husband, as tenant for life in remainder under a settlement, claimed a general fine, which was refused by the tenants on the ground that he would not be entitled to it under the custom as tenant by the curtesy, and could not be put into a better position by the settlement, because that would be giving the lords a power to oppress the tenants by a multitude of fines, which the law would always prevent. But it was found by verdict (an issue at law having been directed), that the general fine was due, and the tenants were decreed to pay. "It appears," said Lord King, "from the nature of the admittances, that upon the death of the last-admitting lord all the estates of the tenants, which were held under his admittances, are determined; and their estates being so determined, it is necessary for the tenants, before they could have any new estate, to have a re-grant from the succeeding and next admitting lord, to which re-grant they have a right, and that right gives their estate the denomination of tenant-right estates. Hence it appears that the fines which are paid are paid upon account of the admission to the new estate, and therefore that the lord, who has a right to admit, has a right to the fines. The lord grants the tenant a new estate; in consideration of that, a fine becomes due to him from the tenant. The only question, then, seems to be, whether the Duke has a right to admit, and the tenants seem to agree that he has; for they allow that if a particular tenant dies, the Duke upon the admission of his heir is entitled to a 'dropping fine;' how can he be entitled to this 'dropping fine' if he is not the admitting lord? and if he has a power to admit, and has a right to a fine upon the determination of a particular estate upon the death of a particular tenant, why has he not an equal power to admit, and an equal right to his fines upon the determination of the tenant's estates in general, by the death of the last admitting lord? It is very extraordinary to allow it in the one case and not in the other. If a particular tenant dies, his estate is determined, and his heir must pay a fine to the lord; yet if the last-admitting lord dies, all the estates of the tenants are determined; and yet it has been objected that this is multiplying the fines of the tenants, and subjecting them to frequent burdens of this kind; but where is the inconvenience to the tenants? they are still to hold during their own lives and the life of the lord who admits them; that is the very tenure of their estates. Nay, if a lessee for years, or any other dominus pro tempore, should admit them, their estates would be good according to these admittances, during their own lives and the life of such lord; and the termination of the lord's estate would have no influence upon theirs. Indeed, if there should appear to be any fraud or contrivance in a settlement of this kind, by putting in a number of lives successively, on purpose to multiply the fines of the tenants, the court would undoubtedly interpose in such case and relieve them; but in this case nothing of that kind can be pretended." Admittance fines are either certain or arbitrary. A fine Fines on certain may be fixed by the custom at a particular sum for admittance. every admittance, or at so much for every acre, or the like; or it may be ascertained by reference to some other standard, as where the tenant is to pay one year's or two years' value for a fine, or an amount to be fixed by the Fine certain. homage, or the majority of the homage, or by persons appointed to assess the fine in case the lord and tenant disagree (y). A fine certain accordingly is a fine whereof the amount is either fixed or is ascertainable independently of the will of the lord, so that it is reducible to a certainty. (y) Perkins v. Titus, 3 Mod. 132; Yetminster Case, Noy, 2; and see the Customs of Yetminster, Appendix, post; Crabb v. Bevis, cited in Warne v. Sawyer, 1 Rolle's Rep. 48; Anon., 1 Freem. 494; Freeman v. Fine arbitrary. Assessment of fine. An arbitrary fine, on the other hand, is where the amount is dependent on its assessment by the lord or his steward. Primâ facie all fines are uncertain, and a custom must be shown to prove them certain. This custom will be shown by the entries on the court-rolls (2). If it is shown by the rolls that the fines were in ancient times uncertain, subsequent entries in the court-rolls, though extending for a very long period, will not make the fines certain but a few contradictory instances will not operate either way (a). Where the copyhold is granted for life only, and there is no custom of renewal, the fine will invariably be found to be uncertain, and a renewal of the grant will only be had on the best terms obtainable from the lord; for a custom to compel the lord to renew copyholds for lives can only be supported upon proof that the fine is certain (6). But although the amount of an arbitrary fine is uncertain, yet it is not left entirely to the discretion of the lord, except in those cases where the grant is purely voluntary, as where a copyhold has come into the ownership of the lord, or where a copyholder for lives, without right of renewal or power of nominating a successor, surrenders his estate for the purpose of putting in more lives. In all other cases where the fine is arbitrary, it must be assessed and demanded, and be reasonable before it can be recovered (c). The assessment should be made by the lord or his steward, but does not need to be enrolled on the court-rolls (d). The lord may assess and demand the fine under the description of the improved annual value for a certain number of years of the tenement, and is not bound to state the precise amount in figures (e). Formerly, when the rules as to (z) Allen v. Abraham, 2 Bulst. 32. (a) Gerard's (Ld.) Case, Godb. 265. (b) Wharton v. King, 3 Anst. 659; Abergavenny (Lord) v. Thomas, Ibid. 668 n.; Grafton v. Horton, 2 Bro. P. C. 284; and compare Freeman v. Phillips, 4 M. & S. 486. (c) Hayward v. Raw, 6 H. & N. 308. (d) Northwick (Lord) v. Stanway, 6 East, 56. (e) Fraser v. Mason, 11 Q. B. Div. 574 (C. A.). |