an heir, or shall have died, and it shall not be known who is his heir or devisee, the Court of Chancery may make an order vesting such lands in such person or persons in such manner and for such estate as that court shall direct, and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the land in the same manner for the same estate (t). It is to be observed that the word "trust" in this act shall not mean the duties incident to an estate conveyed by way of mortgage, but with this exception the words "trust" and "trustee" shall extend to and include implied and constructive trusts, and shall extend to and include cases where the trustee has some beneficial interest in the subject of the trust (u).

mortgagee

without an

heir.

When any person to whom any lands have been Death of conveyed by way of mortgage shall have died with- intestate and out having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to the person entitled to receive the same, or such last mentioned person shall consent to an order for the reconveyance of such lands, the Court of Chancery may make an order vesting such lands in such person or persons in such manner and for such estate as that court may direct. This section applies (inter alia) to the case "where such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died and it shall not be known who is his heir or devisee (x)."

To lord of

manor.

Copyholds are subject to peculiar forfeitures incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors (y).

1. Forfeitures for Treason or Felony.

On the attainder of a copyholder for high treason, his estate becomes forfeited to the lord of the manor, not to the Crown, except by the express words of an act of parliament (z). It is the same on an attainder of felony; but a copyhold of inheritance is not forfeited by a conviction of felony without attainder, unless there is a special custom in the manor (a). A custom that if a copyholder commits felony that the lord shall enter upon presentment of the homage has been held good (b). But if a lord grants a copyhold to A. for life, and after his death or other determination of his estate to B., and A. is attainted of felony, B. shall enter, for the lord shall not have the land

39.

(y) 2 Bl. Comm. 284.

(z) Hawk. P. C. c. 49, s. 7; Skin. 8; Cornwallis's case, 2 Vent.

(a) Rex v. Willes, 3 B. & Ald. 510.

(b) 1 Bulstr. 13; 1 Leon. 1; 2 Brownl. 217.

against his own grant (c). It seems that outlawry for a capital crime is a forfeiture (d).

liable to for

Although as between the surrenderor and the sur- Surrenderor renderee of copyhold, the latter cannot be prejudiced feiture. by any act done by the former subsequently to the surrender, but is entitled to be admitted to the estate free from all mesne incumbrances, yet the surrenderor, until the admittance of the surrenderee, continues tenant to the lord for all purposes of service (e). Where a surrenderee was convicted of felony and hanged, without admittance, it was held, that the lands were not forfeited to the lord, but descended to the heir of the surrenderor, upon the principle that by the surrender nothing vests in the surrenderee nor in the lord; but, until admittance, the estate in law is in the surrenderor (ƒ). The lord must always have such a tenant of his lands as may be sufficient to answer all demands, and capable of committing forfeitures (g). Therefore, where a copyholder in fee surrendered to the use of a mortgagee in fee, upon condition to be void on payment of the mortgage money and interest, and the copyholder was afterwards convicted of felony, upon which, according to the custom of the manor, the customary lands of the tenant were forfeited; the lady of the manor having refused to admit the mortgagee, it was contended, on the return to a mandamus, requiring her to admit the surrenderee, that either because of the relation of the surrender, or because of the lien on the estate or land, or because the surrenderor

(c) Skin. 29; see ante, p. 144.

(d) Gilb. Ten. 314, 5th ed.

(e) Rex v. Boughey, 1 B. & C. 565; Berry v. Greene, Cro. Eliz. 349; Fitch v. Hockley, Cro. Eliz. 441; Smith v. Triggs, 1 Str. 490; Vin. Abr. Copyhold (B. b.), pl. 6.

(f) Roe d. Jeffereys v. Hicks, 2 Wils. 13; 1 Kenyon, 110. (g) Peachy v. Duke of Somerset, 1 Str. 454.

Act to be done by lord for vesting estate in him.

was not perfect tenant, or because the lord was privy to the condition, the prosecutor was entitled to a peremptory mandamus; and, in answer, that the surrenderor was, until the admittance of the surrenderee, for all purposes tenant to the lord. It was held by the court, that as the surrenderor was tenant for all purposes of service until the admittance of the surrenderee, so he was also tenant for the purpose of forfeiting, and that the latter was not entitled to be admitted (h).

Where a copyhold is forfeited, some step must be taken by the lord to vest the estate in him (i). By stat. 6 Geo. 4, c. 25, s. 1 (see 7 & 8 Geo. 4, c. 28, s. 13), it is enacted, that where the king shall by warrant under the sign manual, countersigned by one of the principal secretaries of state, grant to any felon without benefit of clergy a free pardon, or a pardon upon condition of transportation, imprisonment or any other punishment, the discharge out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon shall have the effect of a pardon under the great seal as to the felony whereof the offender was convicted. Where a copyholder was convicted of a capital felony, but pardoned upon condition of remaining two years in prison, and the lord did not take any steps for seizing the copyhold; it was held, that at the expiration of the two years the copyholder might maintain an ejectment for the land against one who had ousted him, inasmuch as the pardon under the first-mentioned act restored his competency to hold lands, and the estate did not vest in the lord without some act done by him (j).

(h) Rex v. Mildmay, 2 Nev. & Man. 778; 5 B. & Ad. 254; see Attorney-General v. Duke of Leeds, 2 Mylne & K. 343; ante, p. 146. (i) Doe d. Evans v. Evans, 5 B. & C. 584.

(j) Ibid.

The stat. 6 & 7 Vict. c. 7, ss. 2, 3, 4, prescribes the manner of granting pardons to transported felons, and enables the holders of tickets of leave to acquire and sue for personal property; but the holders of such tickets are declared to be incapable of holding real property.

es

No lands vested in any person upon any trust, or by way of mortgage, or any profits thereof, shall cheat or be forfeited to her majesty, her heirs or successors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co-trustee, or descend or vest in his or her representative, as if no such attainder or conviction had taken place (k). But now the Court of Chancery may appoint a new trustee in the place of any person jointly or solely seised of lands upon any trust, who had been or shall be convicted of felony (1).

No escheat of upon trust or

lands held

mortgage.

terest subject

But nothing contained in the act shall prevent the Beneficial inescheat or forfeiture of any lands vested in any such to escheat. trustee or mortgagee, so far as relates to any beneficial interest therein of any such trustee or mortgagee; but such lands, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if that act had not passed (m).

2. Of Forfeitures for Alienation contrary to Custom

of Manor.

Formerly if a copyholder made a feoffment with Tortious livery of his copy holds, it was a forfeiture (n); it was

(k) 13 & 14 Vict. c. 60, s. 46, re-enacting 3rd sect. 4 & 5 Will. 4, c. 23.

(1) 15 & 16 Vict. c. 55, s. 8.

(m) 13 & 14 Vict. c. 60, s. 47, re-enacting 5th sect. 4 & 5 Will. 4, c. 23.

(n) Litt. s. 74; 4 Rep. 21 b.

alienations.