it is usually respited, which seems expedient, unless it be the only service rendered.. ib. seizin of fealty is a seizin of all other services, ib. the lord's remedy for fealty 616 fealty and casual services are not within the statute of limitation, 32 Hen. 8 .. 615, n. SUIT OF COURT; is due to the court baron from all freehold tenants of the manor ..615, 616 363, 616 the suit may be done by attorney but such attorney cannot be appointed by parol, 363, n., 616 how suit is to be performed by joint-tenants and coparceners
the husband is to perform suit for the wife..ib. the remedy for suit of court is by distress in- finite which is a pledge only, and cannot be sold, ib. and therefore can in no case be deemed ex- cessive ib. the remedy does not extend to suit in hundred ib. nor to suit under tenure created since the sta tute of quia emptores, except by reservation, 617 RENTS; HERIOTS. (See these services under their proper titles.)
RELIEF; is a fruit of service, and not properly
the distinction between them
its resemblance in some respects to
burgage and gavelkind included in socage
his executors or administrators shall have action of debt, but cannot distrain. Page 618, n. 620 wager of law was not allowed in this action, 621, n. distress for relief is not saleable under 4 Geo. 2, 620, n. relief is incident of common right to socage tenure, the title therefore need not be set forth in replevin 621 acceptance of rent from new tenant does not bar the relief due from the previous one.. ib. relief cannot be apportioned, therefore none payable on the death of one of several co- parceners .. ib. relief custom is frequently payable on aliena- tion as well as on death 621, n.
625 the custom must be reasonable, and therefore a by-law in court baron will not bind a stranger ib. whether it is otherwise if the by-law is for the public good prescription to make by-laws to alter an in- heritance is bad, but to qualify it only is good (examples) 625, 626 are to be made by the homage, and cannot be made by the steward, though with their .. 626 presentment of the breach of by-law not neces- sary ib.
COURT BARON-continued. a capias cannot be awarded in court baron, except by charter or prescription Page 628 nor does writ of error lie there but the party may have false judgment ib. proceedings in court baron are traversable, and should therefore be pleaded at length.. ib. in replevin the plaint cannot be removed by plaintiff or defendant without special cause shown ib. re-caption lies on distress for the same cause after removal of the plaint ib. n. an interlocutory judgment may be set aside, but a new trial cannot be granted, nor a verdict be set aside, except for irregularity, fraud or surprise .. . 629
S. 6. Writ of Right Patent. could only have been brought by tenant in fee simple 629 how it was to be sued, and to whom directed, ib. the several sorts 629, n. there must have been fifteen days between the teste and the return ib. the duty of the steward on receiving the writ, 629
the lord was compellable to hold his court, 630 formerly brought in the court baron and re- moved, but was afterwards usually made re- turnable immediately into the Common Pleas, ib. but the writ must have stated that the lord had remitted his court ib. and it was sufficient if the lord's licence was cer- tified after the writ was issued ib. must have been brought within sixty years on the ancestor's seizin ib.
general principles and rules of pleading in a real suit ib. the demandant was not allowed to amend, ib. n. the tenant began See AMERCEMENT; DEODAND; ESCHEAT; ESTRAYS; FAIRS (Markets, Tolls, &c.); FELO DE SE; FREE CHASE OR PARK; FREE FISHERY; FREE WARREN; HERIOTS; QUIT RENTS; SERVICES; TREASURE TROVE; WAIF; WRECK.
S. 7. Fruits of Tenure and Seignioral Franchises. See these under their distinct titles; viz. Es- CHEAT; FELO DE SE; DEODAND; ESTRAYS; WAIF; WRECK: TREASURE TROVE; FAIRS; MARKET; TOLLS; FREE CHASE OR PARK; FREE WARREN; FREE FISHERY, &c.
COURT BARON-(Customary); is for copy- holders only, and incident to every manor where there are copyholds
the lord or steward is judge in it ib., 119 and the lord presides there as chancellor 97 not necessary that there should be free tenants within the manor 4, 5
COURT ROLLS; entry thereon must be forth- with made of all surrenders, grants, admis- sions, wills, &c., accepted or made by, or delivered to the lord or steward, or his de- puty, under 4 & 5 Vict. c. 35; and such entries to be considered as made pursuant to a presentment by homagers.. 102, n., 222, n. the custody of, belongs to the lord, and the steward has been ordered to deliver them to the receiver in a cause .. 118, n. a court of equity will decree an amendment in a case of fraud .. 204 an entry reformed by the steward's minute book, but the lord required to be made a ib. party to the suit
the courts of law and equity enforce an inspec- tion of them by persons interested 494, 495, 533, 534 demand of inspection cannot be made by an agent only.. 495, n., 532, n. by the new rules for uniformity of practice, a rule for their inspection is absolute in the first instance in all the courts of law.. 495 when and how they may be amended..203, &c. See EVIDENCE; MANDAMUS; COURTS OF EQUITY; DEPOSIT.
COURTS OF EQUITY; in a bill for surrender of a copyhold estate held for lives, the lord must be made a party .. 145, n. will interpose, if the lord refuse to give relief as chancellor of his own court .. 231, n. a bankrupt is not a necessary party to a bill of foreclosure 304, n. prior incumbrancers on freehold and copyhold property of a trader who dies intestate, ought not to be made parties to a bill for payment of his debts out of his freehold and copyhold 535, 536
COURTS OF EQUITY-continued.
will correct proceedings in the lord's court, if against conscience Page 66, 539 if the manor belong to the king, how to sue, 539 will not interpose as against a purchaser, after a lapse of many years; nor would have decreed the lord to entertain a plaint by remainder-man, in nature of error or false judgment, after an intail spent for a great length of time.. 66, 489, 539 will compel the lord to hold a court 533 will compel the acceptance of a surrender, ib. will also enforce an application for admit- ib. but not unless the party can show a colourable title, and a reasonable prospect of succeeding
at law the power was first assumed in courts of equita- ble jurisdiction ib. would have assisted an heir in discovering whe- ther any copyholds unsurrendered to will, ib. but seeking relief to which the party is not en-
titled, will support a general demurrer.. ib. will order court rolls to be produced for inspec- tion of a person claiming an interest under them ib. and to be produced for inspection in a question between lords of different manors on a bill for discovery 534 equity has refused its aid to a steward ap- pointed by a testamentary guardian to com- pel a steward appointed by trustees to deliver up court rolls ib. n. will entertain a bill for a commission to set out estovers according to a custom..424, 425, n. and to set out boundaries, and distinguish copyholds from freeholds 435, n., 534 but only under special circumstances, a confu- sion of lands not being per se a sufficient ground for interposition, unless occasioned by the defendant, or those under whom he claims .. 534
or by wilful waste except under very peculiar circumstances ib. but will relieve in cases of permissive waste, or waste by a stranger, or where the case ad- mits of compensation 463, 536, n. equity has relieved where the timber was cut on one copyhold for the repairs of another, 463, 536 and directed an issue to try quo animo timber ib. and would relieve if the act were done under a colour of right has compelled the lord to permit a copyholder to sue at law without forfeiture 536, n. when there is a doubtful right between the lord and tenant, equity will restrain the as- sertion of it until the question has been tried at law ..
.. 536 and where by the custom the copyholders are dispunishable of waste, will restrain the heir, taking by way of resulting trust until a con- tingentevent, from committing waste, 536,537 and interpose in favour of a remainder-man, and generally between parties as in freehold 426, 433, n., 437 and will relieve in all cases where the party cannot have redress at law 537 will entertain a bill calculated to avoid a mul- tiplicity of suits 534, n., 537 and therefore sustain a bill to establish the right of tenants to the profits of a fair.. 537 but one tenant cannot institute a suit on a ge- neral right .. ib.
a bill of peace may be brought by or against the lord, even though the parties have a life interest only ib. equity has entertained such a bill where the tenants opposed the lord's approvement under the statute of Merton, and actions of trespass had been brought against them
ib. a decree against the lord will not bind copy- holders not parties to the suit 537, n. will interpose under all circumstances of fraud (examples) 537, 538 by 3 & 4 Will. 4, c. 27, a suit in equity limited to the period of a right of entry, or distress or action, when the remedy is at law .. 538 in the case of a concealed fraud, the twenty years allowed begins to run from the time it might, with reasonable diligence, have been discovered 538, 539 the act protects a purchaser having no know- ledge of the fraud 539, n. although a surrender be absolute, equity will decree a redemption on evidence of its being designed as a security only
COURTS OF EQUITY-continued. may order a trustee to surrender, though the cestuy que trust object Page 539 on account of the generality and vagueness of descriptions in court rolls, equity does not favour objections to a title to copyholds for want of identification with the description in the contract for sale 539, 540 equity directs the immediate distribution of purchase money, without regard to contin- gent expenses; purchaser of copyholds held therefore not to be entitled to have a sum retained in court to meet a contingent fine, 540
a security may be good in equity though ex- tinguished at law, as in the case of a bond by a husband to his wife before marriage for securing a sum to her if she survived him, ib. will entertain a bill by mortgagee not in posses- sion, and before admittance, for a decree of foreclosure 540, 541 after the decree, the mortgagee may bring eject-
the rules of equity as between two or more mortgagees 541 there must be fraud, concealment or gross neg- ligence to postpone a prior mortgagee of the legal estate, although he has not possession of the title deeds
ib. but title deeds will not be taken from a second mortgagee who had not notice of the first security, except on payment of the debt due to him 541, 542 no distinction in this respect between a deposit of title deeds of freehold property, and copies of court roll and other evidence of title to copyholds 542 the jurisdiction of, extends to a widow's claim to freebench arrears from the death of the husband decreed, though twelve years had elapsed before the bill was filed .. the courts adopted the principle of the statutes of limitation adverse possession therefore of an equity of re- demption for twenty years, produced the same effect as abatement, intrusion, &c., with respect to legal estates ib. prior to 4 & 5 Vict. c. 35, had no power to de- cree a partition of copyholds between joint tenants or tenants in common
but the power is created by the 85th sect. of that act ib. n. have not jurisdiction to stay proceedings on a mandamus 525, n. nor, in strictness, any restraining power over criminal procecutions; contra in actions of trespass vi et armis, or on indictment at ses- sions, under special circumstances
CREDITORS; surrenders are supplied in their favour 217, 238, 239 CROWN DEBTORS; reference to 2 Vict. c.11, for the better protection of purchasers against judgments, crown debtors, &c. 88, n. [The act will be found in the Appendix, p. 990.] CROWN GRANT. See NAVIGABLE RIVERS. CROWN LANDS. See WOODS AND FORESTS. CUI IN VITA, and Cui ante divortium, writs of 81, 478 CURIA REGIS. See AULA REGIS.
CURTESY; is by custom only
46, 79 the quantity and duration of estate is therefore governed by the custom of each manor.. 79 formerly termed the husband's dower.. ib. n. when the custom attaches on taking a copyholder to wife, it is essential that the wife should be seized at the time of marriage .. 79 and when on the wife's dying seized, the dying seized is essential, but the custom would not operate unfavourably to the husband, as no disposition could be made by the wife with- out his concurrence 79, 80 whether having issue is essential, when it is not expressly required by the custom is of a trust essential that the husband have a seizin in law or equity during the coverture, and he has no title therefore if the wife has a separate inte- .. ib. when it is of a portion only of the land, assign- ment and entry seem to be necessary.. ib. is not affected by the non-admittance of the wife, who takes by descent
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