That thereupon A., in his own proper person, demands against the said C.-Messuages, &c. as his right and inheritance, by plaint in the form and nature, &c. and says that B. B., grandfather of A., was seised thereof in his demesne as of fee, &c. in time of peace, &c. to wit, (within 60 years last past,) by taking the profits or esplees, &c. And that from B. B. the right descended to B. the father of A., as the eldest son and heir by custom of B. B., and that from B. such right descended to A., as his eldest son and heir by custom, and that such is the right of A. he offers, &c.

That thereupon C., by his said attorney, denies the right of A., and puts himself upon the homage, and prays a precept of recognition, &c. and that A. doth the like (a).

That such precept is granted for the then next court: which precept is to be awarded in the form [H.] (b).

At such succeeding court, the parties and their advocates and witnesses being in attendance, the steward will enter the bailiff's return of the precept of recognition, and then the jurors impanelled by the bailiff to try the issue, if not challenged (c), are to be sworn in the form [I.] (d), and the witnesses to be produced on either side, are also to be sworn in the form [K.] (e).

The pleadings, the nature of the case, and the evidence to be produced in support of the title of the tenant in possession, as he holds the affirmative of the question in issue (ƒ), are to be first stated to the jury (g), and when that evidence is gone through, the advocate for the demandant opens his case and supports it by evidence, and afterwards the other side is heard in reply.

(a) But a similiter doth not seem to be absolutely necessary. Booth 96. 3 Chitty 653 n. (a). See the form of general Mise. post. "Forms of Precepts, &c." [G. 1.] Vide also form of mise on plaint in nature of an Assise of mort d'ancestor, post. [G. 2.] Rast. Ent. 131.

The demy-mark should be tendered on joining the mise, in order to put the demandant to show the seisin of his ancestor, but it should seem that it may be taken at the appearance of the jury. Booth 98 n. (u). Ante pt. 3. pp.

755-6.

(b) Post." Forms of Precepts, &c."
(c) As the law and rules in freehold

cases are to govern the trial of any issue
in copyhold cases, so the whole panel
or any of the jurors may be challenged
for any just cause, as interestedness,
partiality, &c.; see 3 Bl. Com. 359, et
seq. It is usual for each party to strike
out a certain number of the persons re-
turned as jurors. In one case 48 were
returned and six struck out by each party.
(d) Post. "Forms of Precepts, &c."
(e) Ib.

(f) See 3 Bl. Com. 366.

(g) It should seem that this rule is not altered by a tender of the demymark. Booth 98, n. u, Supra n. (a).

The steward must then sum up the evidence to the jury with precision and impartiality, and they will immediately retire and consider of their verdict, and on their return, after the bailiff has called over their names, the steward is to ask the jury, "Do you find for the tenant or for the demandant?" And he then enters in the minute book, "verdict for the tenant or demandant," [as the case may be] (a): if the verdict be for the tenant, the steward will also enter, that "therefore it is considered that he (the tenant) do hold the tene"ments to him and his heirs, quit of the demandant and his heirs for "ever;" but if the verdict be for the demandant, the entry is, that it is therefore considered that the demandant do recover his seisin "of the tenements, and do hold the same to him and his heirs, quit "of the tenant and his heirs, for ever." And a precept to the bailiff to put the demandant into possession, is to be awarded at his request, the same as on suffering a common recovery, and actual possession is to be given to the demandant accordingly (b).

Further instructions as to Plaints. Should the defendant be an infant, the steward immediately after the entry of the bailiff's return to the precept of summons, and calling on the demandant and tenant to appear, will enter in his minute book, that A. appears and showeth that he is an infant, and prays the court to assign E., as his next friend, to prosecute his plaint against A., and that E. is admitted by the court accordingly.

And then A. is to count against C. as before instructed, with this difference only, that the count after giving the title of the particular court, will commence thus: "A. by E., who is admitted by the "court here to prosecute for the said A., who is an infant under the age of twenty-one years, as the next friend of the said A., de"mands," &c.

Should C. not appear at the second court, the steward will make an entry of such default, and of the award of grand cape, and second summons; which latter precept is to be executed in the same manner as the first was, it being doubtful whether the words 'take into the hands of the lord' are more than form (c).

(a) The jury cannot find a special apprehend that the verdict would susverdict. Booth 98. n. (u).

(b) Force cannot be used to obtain possession, ante, pt. 1, p. 583. But I

tain an ejectment. And see ante, pt. 1,

p. 583, n. (c).

(c) Mr. Chitty (3d vol. Plead. 632.)

Amercements. If any copyholder should have been amerced for non-attendance or otherwise (a), an entry should now be made thereof by the steward; and such amercement is to be affeered by two of the oldest and most respectable tenants of the manor, who are to be sworn as affeerors in the form [L.] (b).

Licenses. As licenses, whether to demise or to take down buildings, or otherwise, operate as a dispensation of the forfeiture, which would otherwise accrue to the lord, and form no part of the ministerial acts of the steward, he is to exercise his discretion in complying with any applications which may be made by the tenants for this act of dispensation, unless indeed custom has established the right to a license for alienation by a common law assurance, on payment of a settled fine; and he is to make a minute of the terms of the grant, and to notify it to the homage (c).

At the conclusion of the business of the day, the steward should read over the heads of the several entries in his minute-book, to the homage; and at the foot of the minutes should be written,

"We present this as our verdict.”

to which the foreman is to subscribe his name, and so each homager after him, according to their priority of admission to copyholds within the manor (d). And then the bailiff is to declare the court at an end, by proclamation thus:

"O YES; All manner of persons that have appeared at this customary court baron of A. Z., have leave to depart hence, keeping "their day and hour on a new summons." (e).

"As to that part of the process says "which relates to the view, and taking "the premises into the lord's hands, I "cannot by any means discover the "mode of executing it; but I rather "think it may be best in this instance "for the bailiff to take with him the "viewers (who must be distinct men "from the summoners) to the lands, "and verbally take possession of them "for the lord, when the viewers have "viewed them."

It is to be borne in mind that a judgment by default before issue joined, is not final, but a writ of right will lie against the party who recovereth. Ante,

pt. 1, p. 582.

(a) Ante, pt. 1, p. 430.

(b) Post. "Forms of Precepts, &c." (c) Ante, pt. 1, pp. 544, 546.

(d) When any tenant enters the court after the homage are sworn, it is proper to let him sign his name, as having been present during part of the proceedings, but not sworn.

(e) If it be found necessary to adjourn the court, it should be done by a proclamation of this nature, stating the hour to which it is so adjourned, when the bailiff should proclaim the re-assembling of the court.

Special Court.

It is sometimes found to be convenient to hold a special customary court baron, to effect a proposed transmission of copyhold property (a); and in that case, it is usual to summon two or three homagers only, and after the court has been opened by the bailiff, to administer the following oath to them, viz.

"You, and each of you, shall inquire, and true presentment make, "of all such things as shall be given to you in charge, and of all "such other matters as shall come to your knowledge, presentable at "this court (b); this you shall do, without fear, favour, or affection, hatred, or malice, So help you God."

The steward will then explain to the homage, the nature of the business, for which the court is called, who will make their presentments accordingly; and the entries by the steward of the acts of assurance, will correspond with the like minutes at a general court; which minutes are also in like manner to be presented as the verdict of the homage, and then the bailiff discharges the attendance of the persons assembled, by a similar proclamation as on the occasion of a general court.

Further instructions in particular Cases.

Bankruptcy. When a bankrupt is intitled to copyhold lands, except as regards any copyholds belonging to him as tenant in tail, the steward is to require the production (for the purpose of presentment) of the bargain and sale of one of the commissioners, authorising some person (usually the bankrupt (c)) to surrender the copyhold lands, and is to accept a surrender accordingly, and to admit the surrenderee (d). But the following provisions in the act of 3 & 4 W. 4., c. 74, with regard to copyholds belonging to a bankrupt as tenant in tail, are to be observed by stewards of manors when the fiat issued subsequently to the 31st Dec. 1833 (e).

The 55th sect. repeals the bankrupt act of 6th Geo. 4. c. 16, as

far as relates to the power given to the commissioners to make sale of lands vested in the bankrupt for an estate tail, but not to extend to the lands of a bankrupt under any commission or fiat issued on or before the 31st Dec. 1833, nor to revive former acts. The 56th sect. authorises any commissioner acting in the execution of a fiat issued after the 31st Dec. 1833, in the case of an actual tenant in tail of lands of any tenure, by deed to dispose of such lands to a purchaser, and to create by such disposition as large an estate in the lands, as the actual tenant in tail could have done, if he had not become bankrupt, the consent of the protector, if any, being made requisite to a disposition of such intailed lands for an absolute estate in fee. The 56th and 57th sections give to the disposition of the commissioner the same force as the disposition of the tenant in tail, or owner of a base fee, would have had, if no bankruptcy had taken place. The 58th sect. places the commissioner, with reference to any dealings with the property, in the situation of the tenant in tail, in cases where there is a protector of the settlement.

The 59th section requires that the deed of disposition of a bankrupt's copyhold property under the provisions of the act, shall be entered on the court rolls, and that if there shall be a protector, and his consent be given by a distinct deed, the consent shall be void unless the deed of consent be executed either on or before the day on which the deed of disposition shall be executed by the commissioner, and that such deed of consent shall be entered on the court-rolls by the lord or steward, who is to indorse on the deed, a memorandum, signed by him, testifying the entry of the same on the court-rolls.

And the 66th sect." provides that every disposition to be made under the act by any commissioner, of lands held by copy of court roll, where the bankrupt's interest shall not be merely an estate in equity, shall have the same operation as a surrender, and that the person to whom such disposition shall have been made, may claim to be admitted in the same manner as if the lands had been surrendered to his use, on paying the fines and fees which could have been demanded if the lands had passed by surrender. This clause is restricted to a disposition under the act, and it is clear, I submit, that the provisions of the act of 6 Geo. 4 (a), as to a bankrupt's copyhold

(a) See ante, pt. 1, pp. 371, 372. And note that any powers of appointment exerciseable by a person becoming bankrupt, may be exercised by the as

signees chosen by the creditors, so as to intitle the appointee to claim to be admitted. Ante, pt. 1, p. 373.