320 Superior Courts; Exchequer.-Law Bills in Parliament.- Editor's Letter Box. MENT, WITH NOTES, House of Lords. Copyholds Enfranchisement. Ld. Brougham, [In Select Committee.] the assignees of a bankrupt to recover com- | LIST OF LAW BILLS IN PARLIApensation for work and labour done by the bankrupt, for the defendants at the Strand Union poor house. The work consisted of setting up grates, and putting other fixtures to the premises. After declaration delivered, application was made for further and better particulars, which was consented to on the usual terms; the plaintiffs then obtained an order, made without the consent of the defendant, from Rolfe, B., for allowing the attorney of the plaintiffs, the bankrupt, and any number of witnesses, not exceeding four, on his behalf, to examine the work done, and the materials provided by the bankrupt, for which this action was brought. Adams, Serjt., in support of the rule, contended, that the judge had no power to make such an order, it amounting in substance to a permission to a party to the suit to enter on the freehold of his opponent. Lord Abinger, C. B.-This order, if valid, is sufficiently absolute in its terms to be enforced by attachment, if disobeyed; but it is one which no judge has power to make. If parties refuse such a reasonable thing as to grant an inspection, it may be a matter of argument and observation, but they cannot be compelled to do so. Rule absolute.-Turquand and another, assignees of Taylor, a bankrupt v. The Guardians of the Strand Union, H. T. 1840. Excheq. LEVARI FACIAS.-SEQUESTRATION.- The Court will allow a writ of levari facias, Humfrey moved for a rule to take the writ of levari facias in this case off the file, in order that it might be sent back for the bishop to make a proper return thereto. In this case a writ of levari facias had been issued to the Bishop of Exeter against the property of the defendant. The bishop, when ruled to return what he had levied on the writ, pursuant to the sequestration, instead of making his return and retaining the writ, sent it back, with the inode of its execution indorsed. Humfrey cited Disney, Executor of Disney v. Eyre.a Prisons Act Amendment House of Commons. To amend the Law of Copyright. Mr. Serjt. Talfourd. To of woven Fabrics. [In Committee.] carry into effect the Recommendation of the Ecclesiastical Commissioners. THE Quarterly Analytical Digest of all the Per Curiam.-You may take a rule nisi. lute in the first instance. Lord Abinger, C. B.-The plaintiff ought not to suffer from the mistake of the bishop; and as there do not appear to be any intermediate incumbrancers, it is not easy to see on whom a rule nisi could be served. The rule may therefore be absolute in the first instance. Rule accordingly.—Alderton v. St. Aubyn, H. T. 1840. Exch. a 1 Alc. & Napier, 34. (Irish Reports.) Solicitor" have been received. A Several books and pamphlets which we have received shall be noticed at the earliest opportunity. The number of letters which we receive since the reduction of postage is greatly increased: the earliest possible attention shall be paid to their contents. The Legal Observer. SATURDAY, FEBRUARY 29, 1840. "Quod magis ad NOS HORAT. ́PARLIAMENTARY PROCEEDINGS. In the absence of a general measure for the establishment of County Courts, we have had our attention called to the Brighton Small Debts Bill, which is now before the House of Commons, and which, we believe, is intended to be the model on which all similar bills will be framed. The Judge of the Court, who is to be appointed by the Lord Chancellor, is to be a barrister of seven years' standing and practice, or an attorney of one of the Superior Cours, certified by three Judges of the Superior Courts to be a fit person to be appointed a Judge of the Court. The Judge is to be removable by the Lord Chancellor for misbehaviour. He is empowered to appoint a deputy (being a barrister of seven years' standing, or an attorney of seven years' practice) to act during his illness or unavoidable absence. The justices of the quarter sessions, with the authority of the Judge, may appoint an attorney of one of the Superior Courts as clerk of the court, and may remove such clerk, and also a treasurer and other inferior officers. The jurisdiction of the Court is to extend to all debts (wherever the cause of action may have arisen) where the sum sought does not exceed 157., with a proviso that the Judge is not to determine any action in which the title to lands may come into question, or relating to any will or settlement. The concurrent jurisdiction of the Superior Courts and of all other Courts having jurisdiction within the limits of this Court is expressly saved. Causes are not to be removed into any Superior Court except by leave of a Judge of each Court, and then only where the amount exceeds VOL. XIX.-No. 576. 51. The interval between holding Courts is to be in no case more than a month. Either party may require a jury to be summoned on giving five days' notice, and each juror is to receive 5s. per day, to be paid by the parties, or in case of deficiencies, from the general fund of the Court. Not more than five or less than three jurors (in the discretion of the Judge) are to be impanelled. In jury trials the Judge may order a new trial on the application of either party. The Judge, clerk, and bailiffs are to be remunerated by fees, a schedule of which is annexed to the act; and it is provided that six months after any general act shall have passed for the recovery of small debts, the operation of which shall be inconsistent with the powers given by this act, the jurisdiction of the Judge shall cease. The Penny Postage Act is now in full operation, and we are persuaded that the profession in many ways feels its advantages. It affords the power of an easy transmission of documents to and from London, which is frequently attended with great benefit. We now await the introduction of the stamps, which will complete the measure. This will be the most difficult part of the whole. Mr. Ewart has moved for certain returns connected with the Serjeants. In the mean time the order may be considered revived, having received five accessions. Some discussion has recently taken place with respect to the precedency of the Serjeants. The Serjeants named in the warrant of the 24th of April, 1834, by virtue of that warrant ranked before the Queen's Counsel appointed after that day; and it has been argued that if that warrant is bad in part it is bad altogether, and that Ꮓ 322 The Copyhold Enfranchisement Bill. the ancient precedency of the Queen's | When it is intended to give the lord a gross Counsel should be restored. We under- sum for all his manorial rights, the tenants stand, however, that this precedency will not be disturbed, although, of course, the five gentlemen just appointed to the coif will rank after all Queen's Counsel, present and future. THE COPYHOLD ENFRANCHISE- THE Copyhold Bill, which is now before will generally protect one another; but when it is found more practicable to put a separate sum on each of the lord's rights, which is likely to be the case in manors where fines or heriots are not paid by all, it requires great care to frame a clause which will give to each tenant a vote proportionate to his interest in the question. Thus, if the tenants at fines arbitrary, agree with the lord to give him a certain amount for all his fines, and the tenauts, subject to heriots only, are to pay a separate sum, it is necessary to provide that the votes of the latter shall be taken, not according to the value of their land, which has very little bearing on the value of the heriots, but according to the number of heriots which they are liable to. So with regard to timber, the interest in which is not according to the quantity of land, or even the quantity of timber, but according to the surplus above the demand for repairs. If A. has ten acres well timbered, without a house or buildings on it, it is very desirable to him to be enabled to cut it for sale or use elsewhere without a license; while B., the owner of another ten acres, having as much timber, but not more than enough for the repairs of his buildings, will derive little, if any, advantage from its being enfranchised. Mr. Stewart endeavoured to overcome the difficulty by providing a general rule for taking the votes in ordinary cases, and giving power to the Commissioners to make a special rule when the circumstances required it. If he had not given the Commissioners such a power he must have laid more restrictions on the form of the agreement, and thus impeded enfranchisement." Then, as to the protection of the poorer tenants : "As to the proportion, if any, which should be binding on the whole, it is to be remarked that in voluntary commutations under the Tithe Act, it has been found difficult to procure the consent of two-thirds of the tithe-payers, if a fourth, or even a fifth of them dissent, so many persons taking no part, either from absence or aversion to the trouble of inquiry. The writer of these remarks, when opposing a scheme for a wholly courpulsory enfranchisement, which was very popular some years ago, suggested "Another point to be considered for the that two-thirds should bind the rest, and he protection of the poorer tenants is the cost of remains of the same opinion; but as the esta-enfranchisement, which ought to fall very blishment of the Tithe Commission now affords lightly on them, because they will save so little an opportunity of effecting voluntary enfranxpense by the change of tenure. If Mr. chisement by means of a schedule and award, Stewart's bill were to pass, the costs would in it deserves consideration whether an enabling most cases be inconsiderable, as there are few bill should not be first passed to prepare the parishes which have not been already mapped way or try the ground for a more effective mea- and valued for the purposes of the poor laws, The existence of a board possessing the and the task of inspecting the court rolls to confidence of the land-owners, on which a ascertain that the tenures are correctly stated copyhold commission may be grafted without would be part of the onerous duties of the much expense to the country, offers great Commissioners, and therefore no expense to facilities for enfranchisement, particularly in the tenants in general." the protection of entailed estates, and of tenants who cannot afford to pay for professional assistance. sure. "Supposing it determined that a certain proportion of the tenants, whether two-thirds or three-fourths, should bind the rest, it is important for the protection of the poorer tenants that the votes should be fairly reckoned. a Remarks on the Difficulties of Commuting Manorial Rights, and on the Customs of Manors in various parts of England. By Reginald Bray, Esq. Longman and Co., 1840. ex We shall next extract Mr. Bray's remarks as to the discharge of lands from heriots, and on that vexed question-compensation to stewards. "It has been proposed that lords of manors should be empowered to discharge heriots alone, leaving their other rights as they now exist. There is only one objection to this, which is, that the conversion of copyhold into freehold property, being, in a public point of view, of much more importance than the abolition of heriots, we ought not to give the lords The Copyhold Enfranchisement Bill. 323 or tenants of manors the assistance of a public died recently in the same county, on whose commission, unless on the condition of making | death more than fifty heriots were seized. It enfranchisement complete. "With respect to the claims of stewards and bailiffs, the Commissioners should award compensation out of the price of enfranchisement to those who have appointments for life, or for a term, unless the agreement provides for it To those who have no such appointments the lord of the manor can make or require from his tenants such compensation, if any, as he thinks proper, except that in the case of tenants for life the commissioners should see that it is not excessive." We shall conclude by some information which Mr. Bray has collected, as to the various customs of manors, which surely alone furnishes a reason for the giving of the utmost facilities for enfranchisement of a tenure subject to rules so conflicting and inconvenient. is seldom that the custom permits the best good [or chattel] to be taken, but when it does, the right is of a still more odious nature. The usual composition for a heriot in kind, when marked by the bailiff, is two-thirds of the value; when not marked, as it seldom is in the North and West of England, a composition of a few pounds is taken. 16 Copyhold tenants at fines arbitrary have generally no power to cut timber without a license. The fine usually required for a license is one third of the value of the trees. The derives so little advantage, that it is frequently right to timber is one from which the lord enfranchised to the tenant for a inoderate sum. One-third of the value of all the timber and tellers standing on the land has been considered a fair price for the lord's right. Fines for licenses to let do not often exceed one shilling a year, and are of no value to the lord except as they enhance the value of enfranchisement to the tenant. "In the Southern counties it seldom happens that all the copyhold land in the manor is subject to the same manorial rights. One tenant pays a fine arbitrary, another a fine certain, as, for instance, a year's quit-rent. Some are exempted from heriots in kind, while their fines are uncertain; others are subject to heriots of the best beast, although their fines are fixed. There are two considerable manors in Surrey, in which the tenant is only liable to one heriot, whatever number of estates he may have acquired. It is not uncommon for the fines to be arbitrary in Nottinghamshire, Yorkshire, Cumberland, and other counties in the North of England, but more frequently they are fixed, and very moderate, as, for example, sixpence for a messuage, and fourpence an acre for land. It is no great hardship, that in some of these manors it is the custom for the mortgagee to take admittance. There are manors, although not many, in which a fine is payable on the death or change of the lord, and if the fine is not fixed, this is the worst tenure of all. "The tenure generally complained of, and the enfranchisement of which has been the chief object of the various copyhold bills brought before Parliament, is copyhold at fines arbitrary. This tenure prevails to a large extent in Surrey, Sussex, Hampshire, Essex, Suffolk, Norfolk, and the midland counties. When the fine is arbitrary, the lord of the manor may assess it on the admittance of a single life, whether on death or surrender, at any sum not exceeding two years' improved value, deducting the quit-rent. The extreme amount, however, is seldom taken. A year and a half's income is the fine usually charged to a surrenderee. The origin of this indulgence was probably the lord's wish to encourage changes, and to induce purchasers to take admittance without evasion or delay. In some manors, particularly in those which have not changed hands for a length of time, the fines have been assessed with still greater moderation, both on death and surrender; and not unfrequently the tenants have sought to avail themselves of the lenity of successive lords, to establish a custom more favourable "In Gloucestershire, and many parts of the to themselves than the limit of two years' West of England, there are copyholds held at value; but the courts of law have not yet fines which are really arbitrary. They are, in sauctioned such an encroachment. When two fact, more like leaseholds determinable on lives, lives are admitted, a fine and a half-fine are than copyholds, for they are considered pertaken; when three lives, a fine and three-sonal property. The tenant is admitted for quarters, and so on for any number. “Copyhold land at fines arbitrary is generally subject to heriots of the best animal on death, and not unfrequently, in Surrey and Sussex, on surrender also. Heriots in kind are much more common in the South than the North or West of England, and freehold as well as copyhold land is often subject to them. Many instances may be found in Surrey of small portions of land charged with so many beriots, that if the owner were to die possessed of valuable horses, the heriots would exceed the value of the estate. A noble duke possesses about twenty acres of common field land in Surrey, which is subject to as many heriots of the best animal; and a gentleman the lives named on payment of such a fine as the lord considers equal to the value of the grant or renewal, and no fine accrues on the death or surrender of the tenant on the rolls. The lord is not in general under an obligation to renew, and therefore the tenure is becoming extinct, except in manors belonging to corporate bodies. "The custom of descent varies not only in the same parish, but in the same manor. There are manors in Sussex, in which what is called assert land, (having been taken from a forest for cultivation) descends to the eldest son, while other copyholds in the same manor descend to the youngest. In one part of a parish in Surrey, the widow can claiın frec 324 The Copyhold Enfranchisement Bill.—The Property Lawyer. bench on payment of one penny; in another she has no claim whatever. In a large manor in Northumberland, the Salique law prevails. No female can be admitted, but the land will rather escheat to the lord. Sometimes the eldest of the daughters inherits, sometimes all; and it is not uncommon for the eldest brother to succeed to land which he could not have inherited from his father. Gavelkind descent is unusual in copyhold property, but there are instances of it. Such indeed is the variety of customs, that they seem to have proceeded from the caprice, rather than the policy of the lord. "Few manors are complete within an ambit In Surrey and Sussex, there are instances of lands paying quit-rent at the distance of ten miles from any other part of the manor. It is probable that all tenants who paid rent at the mansion of the lord became tenants of his manor. Freehold land is generally more remote from the manor-house to which it pays quit-rent than copyhold, and, from the dificulty of identifying it, is often more troublesome than profitable to the lord. "The stewards' fees vary nearly as much as the lords' rights. They will generally be found high or low, according to the class of people who become tenants. Near London and in towns, the fees are apt to be high; in remote districts, and where the population is poor, they are low. The fees and stamp for admitting an heir to a single copyhold tenement generally come to about four or five pounds, and the same on a purchase, exclusive of the surrender and ad valorem duty. This is not much to pay for the security and simplicity of his title, and therefore the tenant seldom complains of the steward's fees, except when his property is partly freehold and partly copyhold, and he has to pay the expense of two titles and two conveyances." THE PROPERTY LAWYER. LANDS CREATED BY DERELICTION AND AC CRETION. We shall briefly notice the law on the subject of lands created by dereliction and accretion, and we shall take it as stated by Mr. Stewart, in his edition of the second volume of Blackstone, pp. 168, 169. which is agreeable to, and probably copied This was decided in a very recent case. Lord Abinger, C. B., said. "This case appears to me to be free from difficulty. If the Crown "In some cases, where the laws of other cannot adduce the authority of many decided nations give a right by occupancy, as in lands cases in support of its claim, it is because in newly created by the rising of an island in the principle no doubt could be entertained upon sea, or in a river, or by the alluvion or the de-it. It is admitted that as between subject and reliction of the waters; in these instances, the law of England assigns them an immediate For Bracton tell us (1. 2, c. 2) that if an island arise in the middle of a river, it belongs in common to those who have land on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore; owner. subject, the law as to gradual accretion is |