to having the defendant's person. Before the passing of stat. 1 & 2 Vict. c. 110, it had been held that on the removal of a cause by certiorari from the Lord Mayor's Court the defendant was not at liberty, under stat. 7 & 8 G. 4, c. 71, s. 2, to pay money into Court in lieu of putting in and perfecting *special bail; Morgan v. Pebrer, 2 [*804 Scott, 853. That shows that the putting in of special bail in the Court above is not an arrest. [PATTESON, J., referred to Wood v. Thompson, 5 Taunt. 851 (E. C. L. R. vol. 1), and Bromley v. Peck, 5 Taunt. 852, note.] Another ground for the rule was that the return to the certiorari, which is in the form always used, and is taken verbatim from Tidd's Forms (8th ed.), p. 136, does not disclose that the garnishee was within the city. Even if the return is faulty, the objection is waived by the defendant's putting in common bail. Besides, the objection, if there be one, should be taken advantage of by a writ of error from the Court below, not on motion; Horton v. Beckman, 6 T. R. 760.

Chambers and Hawkins, contrà.-The custom of foreign attachment, in so far as it afforded a method of compelling an appearance in the Lord Mayor's Court (which according to Andrews v. Clerke, Carth. 25, is the whole object), is untouched by stat. 1 & 2 Vict. c. 110; but it is abolished in so far as the appearance in the Mayor's Court was by custom attended by an arrest. Before stat. 1 & 2 Vict. c. 110, every suit in the Mayor's Court commenced by putting in special bail; since that statute the practice is necessarily altered. The cases show that the Court will endeavour to put a liberal construction on stat. 1 & 2 Vict. c. 110; Harrison v. Dickenson, 4 M. & W. 355,† Bateman v. Dunn, 5 New Ca. 49. The condition attached to the certiorari, as stated in Crosse v. Smith, 12 Mod. 646, that the defendant should put in good bail, *was at that time lawful; now it is not; for, if it were, and the [*805 defendant were not provided with special bail, or if the bail rendered him, he would be detained in custody on mesne process; and surely such a detention is an arrest within stat. 1 & 2 Vict. c. 110, s. 1. [PATTESON, J.-The Courts could not have decided as they did in Wood v. Thompson, 5 Taunt. 851 (E. C. L. R. vol. 1), and Bromley v. Peck, 5 Taunt. 852, note, if they had thought that the render of the defendant for the purpose of dissolving a foreign attachment was an arrest. There is no writ to arrest him; it is a peculiar mode of getting rid of process against his property. Your argument must go so far as to say that the defendant might in the Lord Mayor's Court itself get rid of the foreign attachment by entering a common appearance.] At all events, the plaintiff is not entitled to have special bail unless he shows that the debt was properly attached, so as to compel an entry of bail in the Lord Mayor's Court. That does not appear; for it is not shown that the garnishee was within the city; Crosby v. Hetherington, 4 M. & G. 933, 946 (E. C. L. R. vol. 43). Cur. adv. vult. Lord DENMAN, C. J., in this vacation (July 5th), delivered judgment.

After stating the circumstances under which the rule nisi was obtained, his Lordship said: It was argued, in support of the rule, that stat. 1 & 2 Vict. c. 110, abolishing arrest on mesne process, had in effect abolished the custom of London as to foreign attachment, because such attachment can only be dissolved by the defendant in the cause putting in bail or rendering; therefore that such attachment is *equivalent to an *806] arrest, which is prohibited by stat. 1 & 2 Vict. c. 110. The answer is, that it is not equivalent to an arrest, though it may happen that the defendant may be in custody under it: this was expressly decided in the case of Wood v. Thompson, on the authority of Bromley v. Peck, stated in the note there; in both which cases the defendants were arrested on mesne process out of the Courts at Westminster, after the dissolution of an attachment in the Lord Mayor's Court, in the one case by putting in bail, in the other by render. Stat. 1 & 2 Vict. c. 110, does indeed abolish arrest on mesne process; but it relates only to arrest of the defendant by the act of the plaintiff in suing out a writ for that express purpose. The statute has no effect whatever as to the voluntary act of the defendant in the Lord Mayor's Court, either of putting in bail or rendering himself, in order to get rid of the customary attachment against his property. The cases cited, as to the operation of the statute in cases of bail or arrest previous to the passing of the statute, have no sort of bearing upon this case. It was stated by counsel that, since the statute, the appearance of a defendant in the Lord Mayor's Court is not by putting in bail; and that is true where the suit is directly against the defendant in that Court without any process of foreign attachment; a defendant can no more be arrested there by direct process than in any other court: but it is not pretended that since the statute such attachment can be dissolved by entering a common appearance. It is clear that the custom remains, and is wholly untouched by the statute in question.

*An objection was made that the return to the certiorari is *807] bad, because it does not state that the garnishee resided in the city of London. A plea, stating the custom and omitting that the garnishee must reside in the city, would no doubt be bad, and so was held in Crosby v. Hetherington, 4 M. & G. 933 (E. C. L. R. vol. 43). But upon this motion we have no question before us as to the custom : the return is in the usual form; and the custom must be taken to have been pursued. Rule discharged, with costs.(a)

(a) Reported by C. Blackburn, Esq.

Where, in an action commenced against an administrator in the Mayor's Court in London, a debt belonging to the intestate's estate is attached by the custom of London, the defendant, if he remove the cause into Q. B. by certiorari, must put in special bail, or a procedendo will be

ordered.

[May 22, 1852.] BASTOW against GANT, administrator. Action commenced in the Mayor's Court in London. A debt to the intestate's estate was attached in the City by the custom of

London; a certiorari from the Court of Q. B. issued and was returned; and common bail was filed. COLERIDGE, J., ordered that a procedendo should issue unless good bail were put in within six days. ERLE, J., discharged a summons for setting this order aside, but gave leave to apply to the full Court. Locke now moved accordingly. Ordinarily special bail is required on removal by certiorari; Day v. Paupierre (suprà); but not in the case of an administrator, who is exempt from special bail generally; 3 Bac. Abr. 542 (ed. 7), tit. Executors and Administrators (P) 5; and so where a cause is removed by habeas corpus; Lumley v. Quarry, 1 Salk. 101, Reg. K. B., Hil. 2 Ja. 2 Peacock's Rules, 73. In Ashley's Doctrine, &c., of Attachment, p. 26, it is said that, in the case of an executor or administrator the attachment may be dissolved by common bail. Lord CAMPBELL, C. J.-Generally, an administrator need not give special bail on removal by certiorari; but there must be an exception in the case of the custom if this applies to administrators at all; else the custom would be illusory. The authorities show the general rule only, except the dictum from Ashley, for the correctness of which Mr. Locke, an experienced practitioner in the Mayor's Court, does not himself vouch. There is no ground for the motion. COLERIDGE, J., concurred. ERLE, J.-Without answering for the Mayor's Court, I know that the practice has been not to remove by certiorari without perfecting special bail. I find no semblance of authority for not applying that to an administrator where the custom applies to him, which would be thus quite evaded. CROMPTON, J.-The applicant must make out his exemption: the authorities show nothing as to the custom of London. Rule refused.

*The QUEEN v. The Lords and Steward of the Manor

of WEEDON BECK.

[*808

Testator surrendered copyholds to the use of his will, and devised them to trustees for a term of years, on certain trusts, subject to which he devised them for life, with remainder in tail, and divers remainders over, with a provision for cesser of the term on the trusts being satisfied. On testator's death, the trustees were admitted tenants to hold for the term upon the trusts of the will; and a fine was duly paid upon such admission. Afterwards, and after the trusts of the term were satisfied, a private act (7 & 8 Vict. c. 24) was passed, by which it was enacted that certain new trustees therein named might sell the premises freed from the limitations of the will, and declare that the copyhold tenants of the premises should thenceforth be trustees of the legal estate thereof for the purchaser, and that such tenants should be such trustees accordingly, until the same should have been surrendered; with power for the new trustees, by any surrender according to the custom of the manor, and in the same manner as if they were copyhold tenants of the same, to surrender the copyhold hereditaments so to be sold to the use of the purchaser. The act contained a clause saving the rights of all persons except those interested under the will. The said trustees, having sold the premises, tendered a formal surrender to the steward, which he refused to accept. The grounds of refusal were, that the trustees were not tenants of the manor, and must themselves be admitted before they could surrender; that the estate tail was not barred, for this could only be done by a surrender for that purpose, on which, by the custom of the manor, a fine would be payable; and that the lord was no party to the private act, and not bound by it. Held, That, as the tenant for life and remainder-man in tail had already been admitted by the admitstance of the original trustees, and as, under sect. 50 and other sections of stat. 3 & 4 W. 4, c. 74, the tenant for life and remainder-man in tail might (independently of the private act), by one surrender, have barred the entail and conveyed to the purchaser, the lord was not prejudiced by the private act, substituting the new trustees as surrenderors in lieu of the tenant for life and remainder-man in tail: and that he was bound to accept the surrender.

MANDAMUS. The writ recited that William Harris was seised in fee, at the will of the lords of the manor of Weedon Beck, in Northamptonshire, according to the custom of the manor, of certain customary tenements; that, in 1797, he surrendered them to the uses of his will; that by his will, in 1812, he devised the same to Earl Spencer and others, for a term of sixty years, upon certain trusts therein declared, with a proviso for the cesser of the term as soon as the trusts should be satisfied; and in the mean time, and subject to the

said term, he devised the said premises to William Harris *the *809] younger for life, remainder to the said trustees to preserve, &c., remainder to the first and other sons of the said W. Harris, successively in tail general; with divers remainders over: That the testator died in 1813 without having revoked or altered his will: That, at a general Court Baron and customary Court held in the same year, it was found that the testator died seised; and one of the said trustees was admitted tenant of the said premises as joint devisee with the other trustees of the said term, to whom the lords of the manor granted seisin thereof, to hold the same premises unto the said trustees for the term of sixty years from the day of the death of the testator, upon the trusts in the will mentioned, at the will of the lords, according to the custom of the manor, by the rents, customs, and services therefore due and of right accustomed; and the fines and payments in respect of such admission were then duly paid and made: That on the 1st January, 1827, the trusts of the term were satisfied: That by stat. 7 & 8 Vict. c. 24, (Private), (a) intituled "An act for enabling trustees to sell the estates devised by and settled to the uses of the will of William Harris, Esquire, deceased, and for authorizing the laying out of the moneys arising therefrom in the purchase of other estates, to be settled to the same uses," it was, amongst other things, enacted, (b) That it should and might be lawful for certain persons, named in the said act, to sell (amongst others) the said copyhold premises, and to declare that the copyhold tenant or tenants of the same premises should thenceforth be a trustee or trustees of the legal estate thereof for such purchaser, his heirs and assigns, or otherwise *as he should direct, and such tenant or tenants should be such *810] trustee or trustees accordingly until the same should have been surrendered to the use of the purchaser thereof, &c.; with power for the trustees or trustee for the time being authorized to make sales under that act, by any surrender or surrenders, to be by them or him made into the hands of the lords of the said manor or their steward, according to the custom of the said manor, and in the same manner as if such trustees or trustee had been or were the copyhold tenants or tenant of the same, to surrender the copyhold hereditaments so to be sold to the use of the purchaser thereof, &c., as he should direct, and to be holden at the will of the lords of the manor, according to the custom thereof, by the rents, fines, suits, and services therefore due and of right accustomed; such premises, when so bargained and sold, to be freed and discharged in equity, and, when surrendered, to be freed and discharged at law, from all the uses, estates, trusts, limitations, &c., charged, limited, and contained in the said will, of and concerning the premises. The writ then recited that, by indenture of the 29th May, 1845, the trustees under the act had bargained and sold the said premises in fee, and declared that the copyhold tenant or tenants of the premises should be a (a) Royal Assent, 6th August 1844. (b) By sect. 1.

trustee or trustees of the legal estate for the purchaser; that the trustees under the act afterwards requested the steward to accept a surrender to be by them made, according to the custom of the manor, of the premises so bargained and sold, to the use of the purchaser in fee, to be holden at the will of the lords of the manor by the rents, fines, suits, and services therefore due and of right accustomed, and tendered to the steward such surrender duly stamped; but that the steward refused to accept such *surrender. The writ then commanded the defendants to accept a surrender from the said trustees according to the custom, &c., [*811 to the use of the said purchasers, or that they should show cause, &c. Return. That the trustees under the said act of parliament were not tenants of the said customary tenements: That the act was a private act to which the lords of the manor were not parties or privies: That the act, by an express clause, (a) saves to the Queen and every other person, except the said William Harris the younger, and other persons interested in the limitations of the said devise, all such estate, right, title, interest, use, trust, claim, and demand whatsoever, of, in, to, or out of the said hereditaments, as they or any of them had or might have had in case the act had not been passed: That, according to the custom of the manor, the lords are entitled to receive a fine on the admission of a new tenant to any of the copyhold tenements of the manor, and that, by permitting the said trustees to make a surrender without the trustees having become tenants of the said tenements and having been admitted as such tenants and having paid the said customary fine on such admission, the lords would be deprived of a fine which would have been justly due to them in respect of such admission: That the said W. Harris the younger had male issue, namely, &c., and that there was a valid and existing entail of the said tenements with divers remainders over: That, except by virtue of the act, no valid bargain and sale or conveyance of the said tenements to the said purchaser, to hold the same in fee, could be made without a previous surrender, and *admis[*812 sion of the surrenderor, in order to bar the entail: That, according to the custom of the manor, the lords are entitled to receive a certain reasonable fine on any such surrender and admission for the purpose of barring any entail, &c.: That no such surrender and admission has ever taken place; nor has any fine in respect thereof ever been paid or proffered to the lords of the manor. Wherefore, &c.

General demurrer and joinder.

The case was argued in last Hilary term (b) by Karslake for the Crown and Creasy for the defendants. The arguments are sufficiently noticed in the judgment. Cur. adv. vult.

Lord DENMAN, C. J., in this vacation (July 5th), delivered the judgment of the Court.

a) Sect. 11.

(6) January 17th. Before Lord DENMAN, C. J., PATTESON, COLERIDGE, and ERLE, Js. VOL. XIII.-61 2S