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320 Superior Courts; Exchequer.- Law Bills in Parliament.- Editor's Letter Bor.

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

MENT, WITH NOTES, Union poor. house. The work consisted of setting up grates, and putting other fixtures to the premises. After declaration delivered,

House of Lords. application was made for further and better particulars, which was consented to on the usual Copyholds Enfranchisement. Ld. Brougham, terms; the plaintiff's then obtained an order, [In Select Committee.] made without the consent of the defendant,

Prisons Act Amendment from Rolfe, B., for allowing the attorney of the

[Passed.] plaintiffs, the bankrupt, and any number of witnesses, not exceeding fuur, on his behalf, to examine the work done, and the materials provided by the bankrupt, for which this ac

House of Commons. tion was brought.

Adams, Serjt., in support of the rule, con-To amend the Law of Copyright. tended, that the judge had no power to make

In Comunittee..] Mr. Serjt. Talfourd. such an order, it amounting in substance to To extend the Terin of Copyright in Designs a permission to a party to the suit to enter on

of woven Fabrics.

Mr. E. Tennant. the freehold of his opponent.

[In Committee.] Lord Abinger, C. B.-This order, if valid, To carry into effect the Recommendation of is sufficiently absolute in its terms to be

the Ecclesiastical Commissioners. enforced by attachment, if disobeyed; but it

Lord J. Russell. is one which no judge has power to make. If To extend Freemen and Burgesses' Right of parties refuse such a reasonable thing as to

Election.

Mr. F. Kelly. grant an inspection, it may be a matter of Drainage of Lands.

Mr. Handley. argument and observation, but they cannot be To amend Tithes Cominutation Act. compelled to do so.

[In Cominittee.] Sir. E. Knatchbull Rule absolute.— Turquand und another, as. Vagrants’ Removal. signees of Taylor, a bankrupt v. The Guardians [For second reading.] of the Strand Union, H. T. 1840. Excheq.

Small Debt Courts for
Aston,

Marylebone,

Barkstou Ash, Tavistock, LEVARI FACIAS.-SEQUESTRATION.

Bolton,

Newton Abbott, Brighton, Wakefield Manor.

Liverpool, The Court will allow a writ of levari facias, Summary Conviction of Juvenile Offenders. improperly returned by the bishop, to be

For second reading.] Sir E. Wilmot. taken off the file and re-issued to that To amend the County Constabulary Act. officer.

Mr. F. Maule. Humfrey moved for a rule to take the To amend the Laws of Turnpike Trusts, and writ of levari facias in this case off the file, in

to allow Unions.

Mr. Mackinnon. 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 THE EDITOR'S LETTER BOX. 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 The Quarterly Analytical Digest of all the inode of its execution indorsed.

Cases reported in all the Courts, from NovemHumfrey cited Disney, Executor of Dis. ber last to the present time, has been published. ney v. Eyre.a

This is the first part for the present year. Per Curiam.--You may take a rule nisi. Humfrey then applied to have the rule abso- A. N.; W. F. F.; V. D.; T. H.; and “A

The letters of Z.; A Student ;” A. Z. ; lute in the first instance.

Solicitor" have been received. Lord Abinger, C. B.-The plaintiff ought not to suffer from the inistake of the bishop; Several books and pamphlets which we have and as there do not appear to be any interme. received shall be noticed at the earliest oppordiate incumbrancers, it is not easy to see on tunity. whom a rule nisi could be served. The rule

The number of letters which we receive may therefore be absolute in the first instance. since the reduction of postage is greatly in.

Rule accordingly.-Alderton v. St. Aubyn, creased : the earliest possible attention shall H. T. 1840. Exch.

be paid to their contents.

IMPROPER RETURN.

a 1 Alc. & Napier, 31. (Irish Reports.)

The Legal Observer.

SATURDAY, FEBRUARY 29, 1840.

Quod magis ad nos
Pertinet, et nescire malum est, agitamus.

HORAT.

PARLIAMENTARY PROCEEDINGS. 01. The interval between holding Courts

is to be in no case more than a month.

Either party may require a jury to be sumIn the absence of a general measure for the moned on giving five days' notice, and each establishment of County Courts, we have juror is to receive 5s. per day, to be paid had our attention called to the Brighton by the parties, or in case of deficiencies, Small Debts Bill, which is now before the from the general fund of the Court. Not House of Commons, and which, we believe, more than five or less than three jurors (in is intended to be the model on which all the discretion of the Judge) are to be imsimilar bills will be framed. The Judge of panelled. In jury trials the Judge may the Court, who is to be appointed by the order a new trial on the application of Lord Chancellor, is to be a barrister of either party. The Judge, clerk, and baiseven years' standing and practice, or an liffs are to be remunerated by fees, a scheattorney of one of the Superior Couris, dule of which is annexed to the act; and it certified by three Judges of the Superior is provided that six months after any gene. Courts to be a fit person to be appointed a ral act shall have passed for the recovery of Judge of the Court. The Judge is to be small debts, the operation of which shall be removable by the Lord Chancellor for mis. inconsistent with the powers given by this behaviour. He is empowered to appoint a act, the jurisdiction of the Judge shall deputy (being a barrister of seven years' cease. standing, or an attorney of seven years' The Penny Postage Act is now in full practice) to act during his illness or un operation, and we are persuaded that the avoidable absence. The justices of the profession in many ways feels its adquarter sessions, with the authority of the vantages. It affords the power of an easy Judge, may appoint an attorney of one of transmission of documents to and from the Superior Courts as clerk of the court, London, which is frequently attended with and may remove such clerk, and also a great benefit. We now await the introtreasurer and other inferior officers. The duction of the stamps, which will complete jurisdiction of the Court is to extend to all the measure. This will be the most difdebts (wherever the cause of action may ficult part of the whole. have arisen) where the sum sought does Mr. Ewart has moved for certain renot exceed 151., with a proviso that the turns connected with the Serjeants. In Judge is not to determine any action in the mean time the order may be considered which the title to lands may come into revived, having received five accessions. question, or relating to any will or settle. Some discussion has recently taken place ment. The concurrent jurisdiction of the with respect to the precedency of the SerSuperior Courts and of all other Courts hav. jeants. The Serjeants named in the waring jurisdiction within the limits of this rant of the 24th of April, 1834, hy virtue Court is expressly saved. Causes are not of that warrant ranked before the Queen's to be removed into any Superior Court ex- Counsel appointed after that day, and it cept by leave of a Judge of each Court, has been argued that if that warrant is and then only where the amount exceeds bad in part it is bad altogether, and that VOL. XIX.-NO. 576.

z

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- suin for all his wanorial rights, the tenants stand, however, that this precedency will will generally protect one another; but when

it is found more practicable to put a separate not be disturbed, although, of course, the

sum on each of the lord's rights, which is five gentlemen just appointed to the coif likely to be the case in manors

where fines or will rank after all Queen's Counsel, present heriots are not paid by all, it requires great and future.

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 THE COPYHOLD ENFRANCHISE- certain amount for all his fines, and the MENT BILL.

tenants, subject to beriots only, are to pay a

separate sum, it is necessary to provide that The Copyhold Bill, which is now before the votes of the latter shall be taken, not aca Select Committee of the Lords, has called cording to the value of their land, which has

very little bearing on the value of the heriots, forth a sensible pamphleta from Mr. Bray. but according to the number of beriots which It fairly addresses itself to the real difficul- they are liable to. So with regard to timber, ties of the question, and as we consider the interest in which is not according to the that our readers are now pretty well in- quantity of land, or even the quantity of timformed on this subject, we shall at once ber, but according to the surplus above the proceed to make some extracts. We

demand for repairs. If A. has ten acres well

may state that Mr. Bray is gererally in favour timbered, without a house or buildings on it, of Mr. Stewart's Bill, in the shape in which it for sale or use elsewhere without a license;

it is very desirable to himn to be enabled to cut it reached the House of Lords, but that he while B., the owner of another ten acres, thinks some of the details might be im having as much timber, but not more than proved ; and first, as to the proportion of enough for the repairs of his buildings, will Copyholders in a manor, who should bind derive little, if any, advantage from its being the rest :

enfranchised. Mr. Stewart endeavoured to

overcome the difficulty by providing a general “As to the proportion, if any, which should rule for taking the votes in ordinary cases, and be binding on the whole, it is to be remarked giving power to the Commissioners to make that in voluntary commutations under the Tithe a special rule when the circumstances required Act, it has been found difficult to procure the it. If he had not given the Coinmissioners consent of two-thirds of the title-payers, if a such a power he must have laid more restricfourth, or even a fifth of them dissent, so inany tions on the forin of the agreement, and thus persons taking no part, either from alısence or impeded enfranchisement." aversion to the trouble of inquiry. The writer

Then, as to the protection of the poorer of these remarks, when opposing a scheme for a wholly conrpulsory enfranchisement, which tenants :was very popular some years ago, suggested Another point to be considered for the that two-ihirds should bind the rest, and he remains of the same opinion ; but as the estar enfranchisement, which ought to fall very

protection of the poorer tenants is the cost of blishment of the Tithe Commission now affords lightly on thein, because they will save so little an opportunity of effecting voluntary enfran- expense 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 bill should not be first passed to prepare the most cases be inconsiderable, as there are few

parishes which have not been already wapped way or try the ground for a more etřective inea- and valued for the purposes of the poor laws,

The existence of a board possessing the land 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 profes

We shall next extract Mr. Bray's remarks sional assistance.

as to the discharge of lands from heriots, Supposing it determined that a certain and on that vexed question-compensation proportion of the tenants, whether two-thirds to stewards. or three-fourths, should bind the rest, it is important for the protection of the poorer

“ It has been proposed that lords of manors tenants that the votes should be fairly reckoned. should be empowered to discharge heriots

alone, leaving their other rights as they now

exist. There is only one objection to this, a Remarks on the Difficulties of Cominuting which is, that the conversion of copyhold into Manorial Rights, and on the Customs of Manors freehold property, being, in a public point of in various parts of England. By Reginald Bray, view, of much inore importance than the aboliEsq. Longman and Co., 1840.

tion of heriots, we ought not to give the lords

sure.

The Copyhold Enfranchisement Bill.

323

'or tenauts of manors the assistance of a public, died recently in the same county, on whose commission, unless on the condition of inaking death more than fifty heriots were seized. It enfranchisement complete.

is seldoin that the custom permits the best “With respect to the claims of stewards and good (or chattel) to be taken, but when it does, bailiffs, the Commissioners should award coin the right is of a still more odious nature. pensation out of the price of enfranchisement The usual composition for a heriot in kind, io those who have appointments for life, or for when marked by the bailiff, is two-third sof the a term, unless the agreement provides for it value ; when not marked, as it seldom is in the To those who have no such appointments the North and West of England, a composition of a lord of the manor can make or require from few pounds is taken. bis tenants such coinpensation, if any, as he "Copyhold tenants at fines arbitrary have thinks proper, excepi that in the case of generally no power to cut timber without a tenants for life the cominissioners should see license. The fine usually required for a license that it is not excessive.”

is one third of the value of the trees. . The We shall conclude by some information derives so little advantage, that it is frequently

right to timber is one from which the lord which Mr. Bray has collected, as to the enfranchised to the tepant for a inoderate sum. various customs of manors, which surely One-third of the value of all the timber and alone furnishes a reason for the giving of tellers standing on the land has been conthe utmost facilities for enfranchisement of sidered a fair price for the lord's right. Fines a tenure subject to rules so conflicting and for licenses to let do not often exceed one inconvenient.

shilling a year, and are of no value to the lord

except as they enhance the value of enfran. “ The tenure generally complained of, and chisement to the tenant. the enfranchisement of which has been the “ In the Southern counties it seldom happens chief object of the various copybold bills that all the copyhold land in the manor is subbrought before Parliament, is copyhold at fines ject to the same manorial rights. One tenant arbitrary. This tenure prevails to a large ex-pays a fine arbitrary, another a fine certain, as, tent in Surrey, Sussex, Hampshire, Essex, for instance, a year's quit-rent. Some are Suffolk, Norfolk, and the inidiand counties exempted from heriots in kind, while their When the fine is arbitrary, the lord of the fines are uncertain; others are subject to manor may assess it on the admittance of a heriots of the best beast, although their fines single life, whether ou death or surrender, at are fixed. There are two considerable manors any sum nut exceeding two years' improved in Surrey, in which the tenant is only liable to value, deducting the quit-rent. The extreme one heriot, whatever number of estates he may amount, however, is seldom taken. A year have acquired. It is not uncominon for the and a half's income is the fine usually charged fines to be arbitrary in Nottinghamshire, Yorkto a surrenderee. The origin of this indul- shire, Cumberland, and other counties in the gence was probably the lord's wish to encou. North of England, but inore frequently they rage changes, and to induce purchasers to are fixed, and very moderate, as, for example, take admittance without evasion or delay. In sixpence for a inessuage, and fourpence an acre some manors, particularly in those which have for land. It is no great liardship, that in some not changed hands for å length of time, the of these manors it is the custoin for the mortfines have beea assessed with still greater mo-gagee to take admittance. There are manors, deration, both on death and surrender; and although not many, in which a fine is payable not unfrequently the tenants have sought to on the death or change of the lord, and if the avail themselves of the lenity of successive five is not fixed, this is the worst tenure of all. lords, to establish a custom nore favourable “To Gloucestershire, and inany parts of the to theinselves than the limit of two years' West of England, there are copyholds held at value; but the couris of law have not yet fines which are really arbitrary. They are, in sauctioned such an encroachment. When two fact, inore like leaseholds determinable on lives, lives are admitted, a fine and a half.fine are than copyhulols, 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.

the lives named on payment of such a fine as Copyhold land at fines arbitrary is geneihe lord cousiders equal to the value of the rally subject to heriots of the best aniinal on grant or renewal, and no fine accrues on the death, and not unfrequently, in Surrey and cath or surrender of the tenant on the rolls. Sussex, on surrender also. "Heriots in' kind The lord is not in general under an obligation are nuch more cominon in the South than the co renew, and therefore the tenure is becoming North or West of England, and freehold as extinct, except in manors belonging to corpowell as copyhold land is often subject to them. rate bodies. Many instances may be found in Surrey of “ The custoin of descent varies not only in stali portions of land charged with so many the same parish, but in the same manor. There beriots, that if the owner were to die possessed are manors in Sussex, in which what is called of valuable horses, the heriots would exceed assert land, (haring been taken from a forest the value of the estate. A noble duke pos- for cultivation) descends to the eldest son, sesses about twenty acres of coinnon field while other copyholds in the same manor land in Surrey, which is subject to as many descenil to the youngest. In one part of a heriots of the best animal ; and a gentleman parish in Surrey, the widow can claiın frec

324

The Copyhold Enfranchisement Bill.-The Property Lawyer. bench on payınent of one penny: in another which is agreeable to, and probably copiel she has no claim whatever.In a large manor from, the civil law, (Inst. 2, 1. 22). Yet this in Northumberland, the Salique law prevails. seems only to be reasonable where the soil No female can be admitted, but the land will of the river is equally divided between the rather escheat to the lord. Sometimes the owners of the opposiie shores; for if the whole eldest of the daughters inherits, sometimes all; soil is the freehold of any one man, as it and it is not uncommon for the eldest brother usually is whenever a several fishery is clained, to succeed to land which he could not have in-(Salk. 1'37) there it seems just (and so is the herited from his father. Gavelkind descent is constant practice,) that the eyotts or little unusual in copyhold property, but there are islands arising in any part of the river shall instances of it. Such indeed is the variety of be the property of him who owneth the piscary customs, that they seem to have proceeded and the soil. However, in case a new island from the caprice, rather than the policy of the rise in the sea, though the civil law gives it to lord.

the first occupant, (Inst. 2, 1. 18) yet ours “ Few manors are complete within an ambit gives it to the king. (Bract. 1. 2, c. 2; Callis In Surrey and Sussex, there are instances of of Sewers, 22.) And as to lands gained from lands paying quit-rent at the distance of ten the sea, either by alluvion, by the washing up miles from any other part of the manor. It is of sand and earth, so as in time to make terra probable that all tenants who paid rent at the firma; or by dereliction, as when the sea mansion of the lord became tenants of bis shrinks back below the usual watermark : in manor. Freehold land is generally more re- these cases the law is beld to be, that if this mote from the manor-house to which it pays gain be by little and little, by small and imquit-rent than copyhold, and, from the disti- perceptible degrees, it shall go to the owner culty of identifying it, is often more trouble- of the land adjoining. (2 Roll. Abr. 170; some than protitable to the lord.

Dyer, 326; Rex v. Lord Harborough, 3 B. & “ The stewards' fees vary nearly as much as C. 106 : Aff. Dom. Proc. 5 Biog. 163.) For the lords' rights. They will generally be found de mininis non curat lex : and besides these high or low, according to the class of people owners being often losers by the breaking in who become tenants. Near London and in of the sea, or at charges to keep it out, this towns, the fees are apt to be ligh; in remote possible gain is therefore a reciprocal considistricts, and where the population is poor, deration for such possible charge or loss. they are low. The fees and stamp for adunit. But, if the alluvion or dereliction he sudden ting an heir to a single copyhold tenement and considerable, in this case it belongs to the generally come to about four or five pounds, king; for, as the king is lord of the sea, and and the same on a purchase, exclusive of the so owner of the soil while it is covered with surrender and ad valorem duty. This is not water, it is but reasonable he should have the much to pay for the security and simplicity of soil, when the water has left it dry. (Callis, his title, and therefore the tenant seldom com- 24, 28.) So that the quantity of ground gained, plains of the steward's fees, except when his and the time during which it is gaining, are property is partly freehold and partly copyhold, what make it either the king's or the subject's and he has to pay the expense of two titles and property. In the same manner, if a river two conveyances.”

running between two lordships, by degrees gains upon the one, and thereby leaves the other dry; the owner who loses his ground

thus imperceptibly, has no remedy; but if the THE PROPERTY LAWYER.

course of the river be changed by a sudden and violent flood, or other hasty means, and

thereby a man loses his ground, it is said that LANDS CREATED BY DERELICTION AND AC- he shall have what the river has left in any

other place as a recompence for this sudden We shall briefly notice the law on the subject loss." (Callis, 28.) It is also the law, that it of lands created by dereliction and accretion, encroach upon the land of the subject, the land

the sea by gradual and imperceptible progress and we shall take it as stated by Mr. Stewart, thus covered with water, belongs to the Crown. in his edition of the second volume of Black- This was decided in a very recent case. Lord

Abinger, C. B., said. “This case appears to stone, pp. 168, 169.

me to be free froin difficulty. If the Crown “In some cases, where the laws of other cannot adduce the authority of many decided nations give a right by occupaney, as in lauds 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, subject, the law as to gradual accretion is the law of England assigns them an immediate settled by the case of Rex. v. Lord Yarborough, owner. For Bracton tell us (l. 2, c. 2) that if (3 B. and Cr. 91; S. C. in 5 Bing. 163.) The an island arise in the middle of a river, it principle there established is not peculiar to belongs in common to those who have land this country, but obtains also in others, and is on each side thereof; but if it be nearer to founded on the necessity which exists for some one bank than the other, it belongs only to such rule of law for the permanent protection him who is proprietor of the nearest shore; and adjustment of property. It is different in

CRETION.

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