discharge was annulled(a) on the ground of fraud in the insolvent; and he was remanded to custody. In consequence, however, of a defect in the proceedings, he was again discharged. On subsequent information as to his estate, the assignee applied, in December, 1848, to the Insolvent Debtors' Court under the above-mentioned statute; but they declined to interfere, being of opinion that, stat. 10 & 11 Vict. c. 102, having come into operation (15th September, 1847; see sect. 20), their jurisdiction in cases arising more than twenty miles from London was taken away, and transferred to the County Court by sect. 10 of that statute. The Judge of the County Court declined to proceed, holding that no jurisdiction was vested in him, because the insolvency and filing. of the schedule had taken place before stat. 10 & 11 Vict. c. 102, passed. *Cooke now argued that, both Courts declining jurisdiction, a [*668 mandamus ought to go to one or the other, at least to hear the application; there being no possibility of bringing it again before a Commissioner in the country, since it had been enacted, stat. 10 & 11 Vict. c. 102, s. 10, "that from and after the 15th day of September," 1847, the circuits of the Commissioners of the said Court for the relief of insolvent debtors shall be abolished." [ERLE, J.-Every discharge of an insolvent keeps a continuing authority in the Court. Was not this a matter on petition "now in dependence," as to which, therefore, the jurisdiction of the Court and Commissioners is preserved by sect. 9] That refers to particular statutes relating to the Courts of Bankruptcy; and it may be questioned whether the clause applies to cases not within those acts. Cur. adv. vult. PATTESON, J., now delivered judgment as follows.-The insolvent in this case cannot be examined by a Commissioner of the Insolvent Debtors' Court on circuit; for the power of a Commissioner on circuit is gone since stat. 10 & 11 Vict. c. 102. If that Court retains any jurisdiction, the proceeding must be before the Court itself. The Judge of the County Court cannot act, because the transfer of jurisdiction to that Court by the same statute is prospective, and cannot relate to past transactions. Sect. 9 keeps up a jurisdiction in the Insolvent Debtors' Court as to proceedings "now in dependence;" but the matter in question is not depending under the statutes there referred to. I find nothing, however, to preclude the Insolvent Debtors' *Court from acting, as [*669 in a case within that section, in a matter which has been adjudicated upon under the Insolvent Debtors' Acts. I see no difficulty in their making an order in such a case; and that is the conclusion we have all come to on looking at the several clauses of the statute. Rule nisi for a mandamus to the Insolvent Debtors' Court. No cause was shown; and the Insolvent Debtors' Court made the order for further examination. (a) See stats. 7 G. 4, c. 57, s. 67, 1 & 2 Vict. c. 110, s. 96. *670] *EASTER VACATION. (a) DOE, on the demise of JOHN DAND, v. HONOUR THOMP SON.(6) May 12. By the custom of a manor, the customary tenements thereof were held of the lord, for the joint lives of the customary tenant and the lord, at the will of the lord, according to the custom of the manor, at customary rents and services, and were descendible from ancestor to heir. Alienation inter vivos was made by customary deed of bargain and sale from alienor to alienee, and surrender and admittance thereon in the customary court, the deed being licensed by the lord, and a memorandum of the license endorsed on the deed. A fine was paid on the death of lord or tenant, and on alienation. The admittance of an heir, in form, stated that the heir took of the lord, upon the demise of the steward, the tenement now in the hands of the lord, to be granted to the heir on the death of the ancestor, to hold for the joint lives, &c. (as by the custom above stated). Held that an heir could not, before being admitted, maintain ejectment against a stranger. EJECTMENT for a messuage and land in Cumberland. On the trial, at the Cumberland Spring assizes, 1846, a special verdict was found, which, so far as it is material to the decision in the present case, was as follows. The messuage and land have immemorially been, and are, within and part and parcel of the manor of Oulton. There have been immemorially divers customary tenements of and in the same manor, of which tenements the said messuage and land have immemorially been one. The said customary tenements immemorially have been, and are, held of the lord of the manor, for the joint lives of the customary tenants or tenant thereof respectively and of the lord for the time being, at the will of the lord, according to the custom of the manor, at certain customary rents and services; and immemorially have descended, and have been and are de scendible from ancestor to heir, according to the custom of the *said *671] manor. According to the custom, on alienation inter vivos, the customary tenements have immemorially been and are conveyed and conveyable in manner following, and no otherwise: viz., by customary deed of bargain and sale from the alienor to the alienee, and by surrender and admittance thereon, in the customary court of the manor; such deed being licensed by the lord, and a memorandum of such license, signed by the lord, or his steward, being endorsed on such deed. A fine of twenty times the ancient customary rent has been immemorially, and is, paid on admittance after the death of either lord or tenant, and also upon the change of tenant by alienation. By the custom, no customary tenement hath been or is devisable by will, or surrenderable to the uses or use of a will. Where a customary tenant has been desirous of disposing of his customary tenement after death, the only custom has been, and is, for him to convey the same to a third person as a trustee, by (a) The Court sat in Banc on the 9th and 12th of May. (b) See Doe dem. Dand v. Thompson, 7 Q. B. 897 (E. C. L. R. vol. 53). ་ [*672 such deed of customary conveyance, and by surrender and admittance, as aforesaid, precisely in the same manner in every respect as upon an ordinary alienation inter vivos; and then for the conveyance, by a separate deed made out of Court without the license or privity of the lord, his steward or deputy steward, and called a deed of declaration of trust, to declare the trusts of the equitable estate; and which trusts have usually been for the alienor during his life, and, after his death, to convey to such person or persons as the alienor shall by deed or will appoint. But no entry, memorandum, or notice of such deed of declaration of trust has ever been made or taken on the court rolls of the said manor. Richard Sanderson, in 1763, died seised of the said *customary tenement: and, upon his death, the same descended and came to John Sanderson, then being his eldest son and heir according to the custom. John S., as such heir, was thereupon admitted tenant of the same tenement, to hold the same unto him during the joint lives of him and the then lord, at the will of the lord, according to the custom, yielding, paying, and doing, therefore, yearly, the accustomed rents and services for the same. John S., in January, 1818, died seised of the same tenement. Upon his death, the same descended and came to Richard Sanderson, then being the eldest son and heir of the said John, according to the custom. And, thereupon, on 26th February, 1818, the last-mentioned Richard S., as such heir, was admitted tenant of the same tenement, to hold according to the custom. The entry of such admittance on the court rolls is as follows. manor. "Manor of Oulton. The court baron and customary court of dimissions of John Taylor, Esq., lord of the said manor, holden at," &c., "situate at Oulton, within and for the said manor, on Monday the 26th day of February, 1818, by Silas Saul, gentleman, steward of the said Homage jury." (Names of twelve persons.) "To this court came Richard Sanderson, son and heir at law of John Sanderson, deceased, and took of the lord of the said manor, upon the demise of his said steward, an ancient messuage and tenement, with a fire hearth, in Oulton, of the rent of 18. 3d., and also a parcel of ground in Colemire, of the rent of 48. 6d., now in the hands of the said lord, to be granted to the said Richard S., upon the death of the said John S., to have and to hold the said premises, with their appurtenances, unto the said Richard S., during the *joint lives of the said John Taylor and [*673 the said Richard S., at the will of the lord, according to the custom of the said manor; yielding and paying therefore, yearly, the said customary rents of 1s. 3d. and 48. 6d. at the days and times usual, and doing, paying, and performing all other dues, duties, and services of right accustomed to be paid and done for the same. And, having paid the lord for a fine as in the margin, he is admitted tenant thereof." The last-mentioned Richard Sanderson, being so seised of the same. customary tenement, before 1st January, 1838,(a) viz. on 7th January, 1832, made and published his last will in writing, executed, &c. (due attestation was then stated): in which will are the following words: «I give and devise unto the said Honour Thompson, her heirs and assigns," &c. (a certain freehold estate in fee.) "And, as to all the rest, residue, and remainder of my real and personal estate and effects whatsoever and wheresoever, and not herein before disposed of, subject to the payment of," &c. (funeral expenses, and legacies), "I give, devise, and bequeath the same, respectively, unto and to the use of my sister in law, Honour Thompson, her heirs, executors, administrators, and assigns, respectively, according to the nature of the same estate respectively, to and for her and their own absolute use and benefit." The said Richard Sanderson, after having made his will, and without having revoked or altered the same, died on 23d August, 1837, being so seised, and leaving, him surviving, one Michael Dand, then being his heir according to the custom of the manor. The said Michael Dand, before the day of the demise, viz., in *January, 1842, died, leaving *674] him surviving John Dand, the lessor of the plaintinff, then and still being the eldest son and heir of the said Michael Dand, according to the custom of the manor, as also the heir of the last-mentioned Richard Sanderson, according to the said custom. And, thereupon, John Dand entered into and upon the premises as such heir as aforesaid, and demised, &c. (to the plaintiff in ejectment, who thereupon entered, &c). The verdict then stated an ouster of the plaintiff in ejectment by the defendant, the said Honour Thompson, claiming under the said will. On a former day, in last Easter term, (b) Joseph Addison was heard for the plaintiff, and contended: First, that the custom restraining the power to devise was good; and, Secondly, that, supposing it bad, still the devisee, in this instance, not having been admitted, could not insist on her title by devise against the heir at law. Montague Smith, who appeared for the defendant, stated that the last point had been unexpected: and the Court suggested that the argument should be adjourned. In this vacation,(c) Montague Smith was heard for the defendant, and stated that he should not insist on the defendant's title as devisee, but should contend that the lessor of the plaintiff did not appear by the special verdict to have any title. *675] *The lessor of the plaintiff claims as heir at law to Michael Dand, the heir of Richard Sanderson, or immediately as heir of (a) See stat. 7 W. 4 & 1 Vict. c. 26. (b) May 1st. Before PATTESON, WIGHTMAN, and ERLE, Js. Lord DENMAN, C. J., was absent un account of illness. (e) May 9th. Before PATTESON and WIGHTMAN, Js.: COLERIDGE, J., had left the Court; Lord DENMAN, C. J., was still absent. Richard Sanderson. Now neither the lessor of the plaintiff nor Michael Dand appears to have been admitted: and the question therefore is, whether, in the case of tenures such as this, the heir at law has in him the legal freehold before admittance. Richard Sanderson is admitted, in accordance with the custom of the manor as found, to hold during the joint lives of himself and the lord, at the will of the lord, according to the custom of the manor, which is, that the lands are descendible from ancestor to heir. The lessor of the plaintiff had a mere right to claim admittance till admittance he had no right of entry even against a stranger. In an ordinary copyhold of inheritance it is otherwise: but there the custom and the language of the admittance differ from those in the present case; 2 Scriven on Copyholds, p. 755 (4th ed.). From note (p) to 1 Watkins on Copyholds, p. 52, ch. 3, the distinction appears between copyholds of inheritance and copyholds for life: in the latter class of copyholds the surrenderee does not come in by the surrenderor but by the lord. [WIGHTMAN, J.-And you say that there the heir is not in by descent.] He is not. It is not alleged that Michael Dand was ever seised at all. Joseph Addison, in reply.-The case of a copyhold for life is not applicable here the land is descendible from ancestor to heir. It is true that in ordinary copyhold of descent the tenant is said to hold at the will of the lord simply, and not, as here, for the joint lives of the lord and tenant at the will of the lord: but the two cases are not essentially distinguishable. In *strictness, all copyholds are held at [*676 the will of the lord: the rest of the description of the interest is a mere allegation of the custom by which the will is controlled and defined. Therefore, as against all but the lord, the heir here, as in the common case, has a good title before admittance: the nature of his title is explained in Right dem. Taylor v. Banks, 3 B. & Ad. 664 (E. C. L. R. vol. 23). [PATTESON, J.-What estate has the lessor of the plaintiff here? Not an estate of inheritance.] It is an inheritance, descendible according to the custom, not according to the grant. [PATTESON, J.-It seems rather contradictory that a custom should make an estate for life descendible to the heir. Does the estate for life descend? That is what is found. WIGHTMAN, J.-Consider the reason of the rule, in the case of ordinary copyholds, that the heir may maintain ejectment immediately upon the death of the ancestor, except as against the lord. It is, that it is supposed that the estate descends immediately to him, and he becomes tenant at once. But there the habendum of the admittance is to the ancestor and his heirs. PATTESON, J.-That principle appears from Roe dem. Jeffereys v. Hicks, 2 Wils. 13, 16: here the admittance is not so.] It is so, unless the allegation of the descendibleness is struck out of the custom. The act of the lord, in admitting a surrenderee or an heir, is mere form. Cur. adv. vult. PATTESON, J., now delivered the judgment of the Court. 2L2 |
