mortgagor being considered, in equity, as the real owner: (Coote, Mort. 33, 3rd edit.)

Q.-The legal estate in an advowson is vested in trustees. State what are the rights respectively of the trustees and their cestui que trust, and explain them.

A.-As the trustees have the legal estate they must present, but they are bound to present the nominee of the cestui que trust: (1 Sm. Comp. 32, 4th edit.)

Q.-A. contracts to sell to B. the next presentation of a living. After contract signed but before completion of purchase the incumbent dies. Who has the right to present?

A.-The vendor, in whom is the legal estate, must present; but he is bound to present the nominee of the purchaser on his completing his purchase. This must be done within six months, or the presentation will lapse to the bishop: (Dart. V. & P. 1004, and see notes to Fox v. Bishop of Chester, ante.)

Q.-A. is seised in fee of an advowson-the incumbent dies-then A. dies without having presented to the living; who, on A.'s death, is entitled to present?

A. The personal representative of A., and not his heir, is entitled to present to the living; for when the vacancy occurs in the lifetime of the patron, and he dies before presentation, it (being as it were fruit fallen) is considered as personal and not real estate (a) (1 Sm. Comp. 36, 4th edit.; 2 St. C. 719, 8th edit.)

Q. What length of title should be shown to an advowson, and state the reasons for your answer?

A. The title to an advowson should be carried back one hundred years. The reason for this is, that the stat. 3 & 4 Will. 4, c. 27, enacts that (inter alia, see sect. 30) no action shall be brought after the lapse of one hundred years from the time at which the clerk obtained possession adversely to the right of the claimant: (sect. 33; Brow. R. P. Stats. 49, 50, 51.)

Q-In what cases, and in favour of what persons, are covenants to resign a living legal?

A. When the patron is entitled to the advowson as his private property, he may, by the 9 Geo. 4, c. 94, present any clerk, under a previous agreement (or covenant) with him for his resignation in favour of any one person named, or one of two, each being by blood or marriage an uncle, son, grandson, brother, nephew, or grand-nephew of the patron beneficially entitled. One part of the agreement must be deposited within two calendar months in the office of the registrar of the diocese, and the resignation must refer to the engagement, and state the name of the person for whose benefit it is made: (see Will. R. P. 343, 13th edit.) Q.-State generally the law of simony.

A.-Simony is the corrupt presentation of anyone to an ecclesiastical

(a) But it is to be observed, had A. himself been the incumbent, as also patron, the right of presentation would be in his heir, for here the avoidance and descent happen at the same time: (Sm. sup.)

benefice for money, gift, or reward; so called from the resemblance it is said to bear to the sin of Simon Magus. Such a presentation is void, and both giver and taker forfeit two years' value to the Crown, to whom also such void presentation passes: (2 St. C. 722, 8th edit.; Will. R. P. 346, 13th edit.)

A

Q.-A. purchases an advowson and on avoidance presents himself. purchases a next presentation, and on avoidance presents himself. Will either presentation be simoniacal ?

A. In the second case the presentation is simoniacal, this clearly coming within the statute of Anne. This statute is not, however, thought to apply to the case of a purchase by a clergyman of the entire advowson with a view of presenting himself: (Will. R. P. 346, 13th edit.) (a)

3. Emblements.

Q.-What is the meaning of the term "emblements? A.-Emblements are various vegetables, which, although affixed to the soil, are deemed personal property, and on the death of the owner of the land go to the executor or administrator as against the heir, reversioner, or remainder-man, but not as against a devisee or dowress: (Will. on Exors. 713, 7th edit.) Those vegetables only which are raised annually by labour and manurance (which are considerations of a personal nature) are called emblements: (Holth. L. D. 2nd edit.)

Q.-D. is a rector, and has sown part of the glebe land with wheat, and dies before harvest time; to whom will this crop belong, and what is such crop denominated?

A. The crop will belong to his executors, and is called emblements. But if the successor be inducted before severance, he is entitled to have tithe thereof (Matt. Exors. 31, 2nd edit.)

Q.-Tenant for life sows land in his own occupation, and dies before the crop can be severed. Who is entitled to such crop, and what is such crop called? And suppose the tenant for life had leased the land, not under any express leasing power, and the lessee had sown it, what would be the consequence to the lessee? and state any change in the law on this point). (b)

A. The executors of the tenant for life are entitled to the crop, as emblements. If the tenant for life had leased not under a power (c) and the lessee had sown, the lessee would be (or rather would formerly have been) entitled to the crop as emblements. For the 14 & 15 Vict. c. 25, has made an alteration in regard to a lessee of a tenant for life or for any other uncertain interest of a farm at rack rent, by compelling such tenant, on the determination by death or cesser of the estate of his landlord, to hold over until the expiration of the then current year's tenancy (paying

(a) Nor does it apply to the purchaser of a life interest in the advowson, who may present himself: (see Walsh v. Bishop of Lincoln, 44 L. J., 244.)

(b) This question is answered by the above: What change has recently been made in the law with respect to claims for emblements, where tenancies determine by the death of the landlord, such landlord being tenant for life?

(c) Or under statutory authority.

rent) instead of taking emblements, no notice being necessary to end the occupation (see sect. 1; Will. R. P. 28, 13th edit.)

Q.-State the legal rule or maxim, as quoted by Blackstone applicable

to the executors of a tenant for life claiming emblements.

A. The maxim is, "Actus Dei nemini facit injuriam :" (2 Bl. C. 122; stated 1 St. C. 256, 8th edit.) But if a tenant for life determine his own tenancy, he is not entitled to emblements.

Q. When is a tenant at will, or tenant at sufferance, on the termination of his tenancy entitled to emblements? and has the tenant any time allowed him to take them, and what?

A. If the tenant at will sows the land, and before the crop is ripe the landlord puts him out, he is then entitled to emblements, and the tenant is to have ingress, egress, and regress of the land for a reasonable time, to cut and carry away the corn, &c. But it is otherwise if the tenant determines the tenancy; a tenant at sufferance is not entitled to emblements (Co. Litt. 55; Richardson v. Langridge, L. C. Conv. 13, in notes; Will. R. P. 390, 13th edit.)

COPYHOLDS.

Question. What are copyhold estates, and their most common incidents or qualities?

Answer.-Copyhold estates are estates holden by copy of court-roll, and in construction of law, at the will of the lord of the manor to which they belong, according to the custom of that manor. Their common incidents or qualities, are fines, rents, heriots, and suit of court, escheat and forfeiture to the lord, and his right to the mines, and minerals, and timber, the tenant's limited power of leasing, and their peculiar mode of transfer : (Will. R. P. pt. 3, chaps. 1, 2; 1 St. C. ch. 22.)

Q.-Explain the origin of copyholds, and by what statute was the further creation of manors prohibited ?

A.-Copyholds are said to spring from the ancient tenure of villeinage, which was originally absolutely at the lord's will, and the services rendered in respect thereof were of the basest kind; but the holding has, by immemorial usage, grown into a customary right, and the services have been commuted into money payment. The further creation of manors was prohibited by the statute Quia emptores (18 Edw. 1): (Scriv. Cop. 2, 3, 32, &c,, 5th edit.) (a)

Q. What led to the passing of the statute Quia emptores, and what was the effect of the statute?

A. The evils arising from subinfeudation led to the passing of this statute, which stopped that practice by enacting that it should be lawful to every freeman to sell at his own pleasure his lands and tenements, but that the feoffee, the purchaser, should hold the same of the chief lord of

(a) This question is answered by the above: Can a freeholder constitute part of his estate a manor? Give the reason for your answer.

the fee by the same services and customs as feoffor held them: (Will. R. P. 18, 13th edit.)

Q.-State the difference between freehold and copyhold estates?

A. They differ in regard to the estate itself: thus-(1), copyholds are technically held at the lord's will; (2), the tenants cannot commit waste, as the mines, &c., belong to the lord; (3), they cannot lease the land for more than a year without the lord's license or a custom; (4), they are subject to quit-rents, fines, and heriots; whereas incidents numbered 1, 2, and 3, do not attach to freeholds, and rarely those numbered (4), with the exceptions of an occasional quit-rent, and still less occasional heriot; (5), they differ in their title and mode of transfer, which we need not here particularise (1 St. C. 626, &c., 8th edit.)

Q.-Distinguish the following forms of tenure under a manor (a) a freehold, (b) a customary freehold, (c) a copyhold.

A.-In freehold lands of a manor the freehold is in the tenant, who owns therefore the timber and minerals, the tenants hold and possess their own lands in fee subject only to the services due to their lord: (see Wms. on Seisin, p. 49.)

In customary freeholds the freehold is in the lord, who owns the timber and minerals, and the estate is held by copy of court-roll according to the custom of the manor, but not at the will of the lord: (Ib.)

Whilst copyholds in addition are held at the will of the lord.

Q. What is a heriot? claimable by whom, from whom, and when? A.-A heriot is the best beast or other chattel which, by the custom of some copyhold manors, the lord has a right to seize on the death or alienation of his tenant; but most usually on his death. However, the right of the lord is now confined to such a chattel as the customary law will enable him to take: (Scriv. Cop. 254, &c., 5th edit.; Will. R. P. 368, 13th edit.; 1 St. C. 629, 8th edit.)

Q. What is the meaning of "copyhold-fine arbitrary" as descriptive of the tenure of Blackacre? and what is the practical effect of such tenure? (a)

A.-A fine due in respect of copyholds is said to be arbitrary when the sum payable depends upon the will and pleasure of the lord or other person having a right to assess it. But two years' improved value of the land (after deducting quit-rent) has been in practice decided to be a reasonable fine on alienation or descent, and no more is allowed to be taken except under particular circumstances: (1 St. C. 221, 627, 8th edit.; Will. R. P. 358, 13th edit.; Scriv. Cop. 219, 220, 223, 5th edit.)

Q.-By what assurance or assurances does a copyholder pass his estate to a purchaser or mortgagee, and is there any and what difference in the form of assurance to a purchaser or a mortgagee? (b)

A.-A copyholder passes his estate to a purchaser by surrendering it to

(a) Also asked thus: Where by the ancient custom of a manor the fines are arbitrary, is there any limit to the amount of fine which the lord can enforce ?

(b) Also asked thus: In the case of a purchase of copyhold property, what acts are required to vest the estate in the purchaser?

the lord, who regrants it to the purchaser on his subsequent admittance as tenant to the lord. A mortgage of copyholds is effected by surrender, in the same manner, but subject to a condition that, on payment by the mortgagor to the mortgagee of the money lent, together with interest, on a given day, the surrender shall be void. The mortgagee is, however, seldom admitted, until he wishes to enforce his security, on account of his admission involving the payment of a fine, &c.: (see Will. R. P. 352, 375, 533, 13th edit.) (a)

Q. What is the position of a trustee in bankruptcy with regard to copyhold hereditaments forming part of the bankrupt's estate?

A. The trustee need not be admitted, but may deal with them in the same manner as if they had been surrendered to such uses as the trustee may appoint, and any appointee of the trustee shall be admitted to the property accordingly (46 & 47 Vict. c. 52, s. 50 (4).)

Q.-The lord of a manor mortgages it in fee, and afterwards, pending the security, purchases and takes surrender to himself in fee of copyholds held of the manor. Will the mortgagee have the benefit of them as security for his mortgage debt? Give a reason for your answer.

A. Yes; because any disposition of a manor, whether by way of settlement, mortgage, or devise, will carry with it any lands held of the manor that shall be subsequently purchased by and surrendered to the lord (Scriven on Copyholds, 8th edit., p. 30); and moreover a mortgagor must not diminish the security: (King v. Lord Yarborough, 3 B. & C. 91.)

Q.-Suppose a purchased estate to be copyhold, at whose expense is the surrender to, and also the admission of, the purchaser ?

A. In the absence of any express stipulation, the purchaser is liable to the payment of the expense of the surrender and of his own admittance, and the fine payable thereupon: (see Sug. Conc. V. 420; Scriv. Cop. 218, 5th edit.)

Q. If the vendor contract to surrender and assure a copyhold estate at his own expense, is he bound to pay the lord's fine?

A.-No; the title is perfected by the admittance, and the fine is not payable till afterwards: (see Sug. Conc. V. 420; Scriv. Cop. 218, 5th edit.)

Q.-A., the owner of a copyhold property in a manor where the custom of Borough English prevails, contracts to sell it, and then dies without having completed the sale, leaving several sons, and a will, which, however, is inoperative as to real estate. What must be done to give a good title to the purchaser, and would any expense caused by this fall upon him or upon A.'s estate; and to whom should the purchase money be paid, and who would be proper parties to the ultimate surrender to the purchaser ?

A.-The estate descends to the youngest son (ante, p. 182), who must be admitted and surrender to the use of the purchaser. The purchase money is payable to the executor, who, with the parties, beneficially interested, should join in the usual deed of covenant for title.

(a) A deed of covenants invariably accompanies the surrender of copyholds, either on a purchase or mortgage.