V. OF ESCHEATS.

VI. OF FORFEITURES.

VII. OF RIGHTS RESPECTING TIMBER.

VIII. OF RIGHTS RESPECTING MINES.

IX. OF THE TENANT'S RIGHT TO INSPECT COURT
ROLLS.

X. OF GUARDIANSHIP.

XI. OF RIGHTS RESPECTING GAME.

XII. OF OTHER RIGHTS.

SECT. I. OF FINES.

1. Of Fines payable on the Change of the Lord of the Manor... 88 2. Of Fines payable on the Admittance of Tenants.

3. Of the Assessment of Fines.

4. Of Fines exceeding Two Years' Value

5. Of the several Interests in Copyholds for which Fines are payable.

95

6. Of Fines in respect of Mortgages of Copyholds..
7. Of Fines payable by Devisees or Trustees, and the Purchasers
of the Estates of Bankrupts and Insolvents

111

114

stances to be

valuation of

IN valuations under the Copyhold Act, 1852, the Circumvaluers are to take into account the facilities for im- considered in provement, customs of the manor, fines, heriots, re- lord's rights. liefs, quit rents, chief rents, escheats, forfeitures, and all other incidents whatever of copyhold or customary tenure, and all other circumstances affecting or relating to the land, which shall be included in the enfranchise

ment, and all advantages to arise therefrom, and shall make due allowance for the same (a).

1. Fines payable on the Change of Lord.

Fines may be payable to the lord by the copyholder, either on the change of the lord or on the change of the tenant. When the fine is due on the change of the lord such change must be by the act of God, and not in consequence of any act of the lord himself. It can, therefore, be only claimed on the death of the lord. Even an alleged custom for payment of a fine in cases in which the change was by reason of the lord's own act cannot be supported (b). Where the fine is claimed only on death, any lord who has a right to admit has also the right to such fine on the death of his predecessor, whether he be tenant for life only, or by the curtesy, or the like (c).

By the custom of several manors in the counties of Cumberland and Westmoreland and the north of England a general fine becomes payable on the death of the lord, even where he aliens the manor in his lifetime; and this, on appeal to the House of Lords, was held to be a good custom (d). It should, however, be observed, that lands of these manors are for the most part held for the joint lives of the admitting lord and the tenant, so that on the death of either a fine becomes payable for renewal (e).

2. Of Fines due on the Admission of Tenants. A fine due on the change of a tenant is defined “a

(a) 15 & 16 Vict. c. 51, s. 16.

(b) Co. Litt. 59 b; 1 Watk. 345, 4th ed.

(c) Duke of Somerset v. France, 1 Str. 654; Anon. Cary, 6;

Fortes. 41.

(d) Lowther v. Raw, 2 Br. P. C. 451.

(e) 1 Watk. 345, n., 4th ed.; ante, pp. 81–83.

arbitrary

sum of money payable by custom to the lord on the admission of every tenant, for each tenement to which he is admitted" (ƒ). Such fine, whether payable on Certain and alienation or descent, is primâ facie uncertain, or, as fines." it is usually called, arbitrary, and the onus of proof is on the tenant to show a custom for the payment of a fine certain (g). In many manors the fines are certain, as 6s. 8d. for the admission to every house or to every acre of land (h). In order to constitute certainty it is not requisite that the amount of the fine should be positively fixed; it may be fixed relatively, as one year's value of the land at the time of admission (i). Where the fines are certain, they are gene

rally small and inconsiderable.

The custom to take, as the amount of fine on the admission of a purchaser, ten per cent. on the purchase money cannot be supported, however long it may have continued. A tenant who has paid such a fine by compulsion may recover back the excess beyond the two years' improved value (k).

By the custom of a manor there may be certain as well as arbitrary fines. Thus it was found that by the custom of the manor arbitrary fines were payable only on alienation, and that on the death of a tenant his customary heir paid upon admittance a small fixed sum, and the widow was admitted to her freebench without any payment (1). In some manors it is not customary to pay any fine on the admittance of a person taking by descent (m); but generally a fine is (f) 1 Watk. Cop. 346, 4th ed. (g) Denny v. Leman, Hob. 135. (h) Kitch. 200, 201; Skin. 248.

(i) Titus v. Perkins, 3 Lev. 255; Carth. 12; 2 Show. 307. (k) Leake v. Lord Pigot, 1 Selw. N. P. 85.

(1) White v. Cuddon, 8 Cl. & Fin. 766; 4 Y. & Coll. Exch. 25. (m) Doe d. Tarrant v. Helker, 3 T. R. 162; Kitch. 103 b; Dougl. 726, n.; 1 Freem. 496.

Amount of arbitrary fines.

Deduction in respect of repairs.

due on the admission of the heir; and although he may surrender before admission, the lord is not bound to receive his surrender before payment of the fine.

Reference must be had to the court rolls of the manor to decide whether the fine be certain or arbitrary (n). As the presumption of law is that a fine is arbitrary, certainty will not be established if a variation in payments can be proved by a long and uniform series of entries in ancient court rolls, but a few contradictory instances will not have much weight either way (o). Although an arbitrary fine is due, the rule is now established that it ought not to exceed two years' improved value of the copyhold tenements, deducting the quit rents, but not the land-tax (p). If the lands are let at a fair rent to a tenant, the rent which he pays to his landlord will be the best evidence of the improved annual value (q). Neither the lord nor the tenant is estopped by the amount of the rent reserved. Where the rent reserved by the tenant was 167., and the lord showed the annual value to be 50l., Lord Hardwicke, C., said, "the present improved value is all the lord has to look after" (r). As the rent reserved in a lease of copyholds is not conclusive as to the amount of a fine payable to the lord, the tenant may show that the actual value of the premises demised is less than the rent reserved, and the fine must then be estimated according to the actual value (s).

If upon letting of copyholds the tenant undertakes to keep the premises in repair, such tenant when he

(n) Allen v. Abraham, 2 Bulst. 32; Hopton v. Higgins, Toth. 167; Smith v. Sallett, 2 Ch. R. 76; see post, Ch. VI.

(0) Trotter v. Blake, 2 Mod. 231; Lex Cust. 159, 160; Gerard's case, Godb. 265; 1 Watk. Cop. 370, 4th ed.

(p) Halton v. Hassell, 2 Str. 1042; Grant v. Astle, Dougl. 722. (q) Dow v. Golding, Cro. Car. 196.

(r) Halton v. Hassell, 2 Str. 1042.

(s) Earl Verulam v. Howard, 5 M. & P. 148; 7 Bing. 327.

agrees to pay the rent must have taken into his calculation the annual expenditure which the repairs will cost him, and will pay so much less to the landlord as such estimated repairs amount to. In such case, therefore, the amount of the annual repairs would virtually and substantially be deducted out of the value; that is, the rent, which is the evidence of such value, is not ascertained and arrived at without making such deduction. So again, if the premises are kept in the landlord's own hand, in estimating the value which the premises are to him, the same process must be resorted to, and one of the data of the calculation of actual value must be an allowance for the ordinary annual expenditure necessary to keep the premises in repair (t).

In one case (u) a question was raised as to the necessity of estimating the annual value of the land, subject to a deduction of the local drainage or fen rate. The court gave no opinion on that point, but evidently inclined to think that it ought to be deducted, and that it was distinguishable from the land tax.

fines impede

of lands.

The Real Property Commissioners observe, "The Arbitrary arbitrary fine due to the lord in most manors, on improvement descent and alienation, has a direct tendency to discourage agriculture, and to prevent the erection of buildings. This fine is usually considered to be the amount of two years improved value of the premises at the time of the admittance of the heir or alienee; and where several are admitted as joint tenants, a further claim is made by reason that the tenancy embraces more than one life, and the principle on which the fine is to be calculated in such a case re

(t) Richardson v. Kensit, 5 Mann. & G. 485; see p. 496.

(u) Dean and Chapter of Ely v. Caldecot, 8 Bing. 439; see 1 Scriv. 407, n. (c).