Lord's qualification.

rightful lord (r). It is said that the acceptance by the lord of a surrender from his tenant is not a dispensation with a forfeiture of which the lord may be supposed to be ignorant, as in the case of making a private lease (s).

9. What Lord may take advantage of Forfeiture.

Regularly, the lord for the time being of the manor is the person entitled to take advantage of any forfeiture committed by the tenant (t); for as the act of forfeiture is a breach of the conditions of tenure, and consequently a determination of the tenant's estate, it must necessarily return to him from whom it proceeded. Lessee for years of a manor may take advantage of a forfeiture committed in his time, for he is dominus pro tempore (u). So the grantee of the freehold of a particular copyhold, or the lessee of such grantee, may take advantage of a forfeiture afterwards committed by the copyholder, for he ought to pay his rent to the grantee (x).

If a copyholder commit a forfeiture, and the lord of the manor die before entry or seizure for the forfeiture, the reversioner or remainder-man cannot take advantage of the forfeiture committed before his time (y), except in cases where the act of forfeiture destroyed the copyhold estate, as where a copyholder levied a fine or made a feoffment with livery (z). It

(r) Milfax v. Baker, 1 Lev. 26; 3 T. R. 162.

(s) Mathews v. Whitton, Cro. Car. 253; Cornwallis's case, 2 Ventr. 38; see 1 Watk. Cop. 421, 422, 4th ed.

(t) Co. Cop. s. 60, Tr. 139.

(u) 2 Saund. 422; 1 Roll. Abr. 509.

(x) 1 Brownl. 132; East v. Harding, Cro. Eliz. 499; 1 Watk. Cop. 413, 4th ed.

(y) Cro. Jac. 301; 1 Bulst. 190; 1 Mod. 200; Co. Cop. s. 60, Tr. 139; 1 Watk. Cop. 414, 4th ed.

(z) Anon. Freem. 516; Doe d. Tarrant v. Hellier, 3 T. R. 162; Doe d. Bover v. Trueman, 1 B. & Ad. 746. See ante, pp. 151, 152.

is otherwise in the case of a lease not warranted by the custom (a) or waste (b), for these are forfeitures only at the election of the lord.

If the copyholders of a manor belonging to a bishopric, during the vacancy of the see, commit a forfeiture by cutting timber, the succeeding bishop may bring ejectment (c).

vantage can

In order to remove the estate out of the copyholder When adand to vest it in the lord, the lands forfeited must be be taken. seized by the lord or his steward, either by the entry of himself or his steward within twenty years (d) of the commission of the forfeiture, or within twenty years after the lord's right of entry accrued, or he will be barred by the Statute of Limitations, 3 & 4 Wm. 4, c. 27 (e). An act of ownership tantamount to such seizure may be exercised by granting a lease for years to another, or the like (ƒ).

equity.

The court of Chancery will in some cases relieve Relief in against a forfeiture for waste, and compel the lord to readmit on receiving satisfaction for the injury he has sustained. Such relief is particularly given where the waste is committed through ignorance or done by a stranger, or where the waste is merely permissive, and there has not been an obstinate perseverance in neglecting to repair after notice (g). But equity will not relieve against a voluntary act, nor unless a compen

(a) Lady Montague's case, Cro. Jac. 301.

(b) Eastcourt v. Weeks, Salk. 186; Lutw. 799; Bird v. Kirkby, 1 Mod. 199; Carter, 237.

(c) Read v. Allen, Bull. N. P. 107; 1 Watk. Cop. 415, 4th ed. (d) Doe d. Tarrant v. Hellier, 3 T. R. 172; Whitton v. Peacock, 3 My. & K. 325.

(e) See ante, pp. 136, 137.

(f) Milfax v. Baker, 1 Lev. 26.

(g) 1 Ch. Cas. 95; Prec. Ch. 568; 1 Str. 447; Harg. n. (2); Co. Litt. 63 a.

sation can be made to the lord (h), as in the case of nonpayment of rent or of a fine, where the lord can be recompensed in damages and costs.

Rights of timber in

cluded in copyhold acts.

Relative rights of

lord and

tenant in timber.

SECT. VII. OF RIGHTS RESPECTING TIMBER. Under the Copyhold Act, 1841, commutation of manorial rights will extend to the lord's rights of timber (i). Such rights are not reserved by the Copyhold Act, 1852, and will therefore be extinguished by an enfranchisement, although the lord's interest in thẹ timber will be a subject for valuation and allowance by the valuer. The copyhold commissioners require information as to the lord's right to timber, the amount of his interest therein, and the value of the timber.

It is stated to have been decided in the House of Lords that, in the case of copyholders of inheritance, neither the copyholder without the lord, nor the lord without the copyholder, without a custom, could cut down the trees on the copyhold estate (k). It is a good custom for the lord, after having granted land with timber growing on it, to enter on the land, and cut down the timber. If there be no custom, neither the landlord nor the tenant can cut down the timber; if there be a custom in favour of either one or the other, the right exists, and the law will protect it (7).

In a case where the lord of the manor, in which there was no custom giving the timber either to the lord or to the tenant or respecting the property or interest in it, claimed the right to enter and cut the timber,

(h) Peachey v. Somerset, Prec. Ch. 568; Cox v. Higford, 1 Eq. Abr. 121; 1 Watk. Cop. 422, 4th ed.

(i) 4 & 5 Vict. c. 35, s. 13.

(k) Ven. Abr. Copyhold (R. c. 2), pl. 13.

(1) Hilton v. Earl of Granville, Cr. & Ph. 294.

leaving sufficient for botes and estovers, Lord Eldon, C., in giving judgment on a bill filed by the tenant for an injunction, observed, "I have looked into all the books, and find that, as a general proposition, if there is no custom for the tenants to cut, the timber belongs to the lord, leaving sufficient for repairs; but it seems rather admitted as text doctrine than established by decision, that there may be with regard to timber, what may exist unquestionable as to mines, a custom that the lord cannot take without consent of the copyholder, and vice versa that the copyholder cannot touch the mine without consent of the lord. It is also laid down that the copyholder may have a special interest in the trees, and by custom the lord cannot cut without his leave. I have found no case establishing that text doctrine; but if it is true, as it is both upon doctrine and decision, that the tenant of a copyhold may by custom have such an interest, that he may himself cut the trees, there is nothing inconsistent in the proposition that, if he has not that interest, he may yet have a special interest to prevent the lord's cutting. The proposition that he has such an interest goes so far to destroy the beneficial use of the timber, that the existence of such a custom ought to be proved by extremely strong evidence. It is too much to represent such a custom as void in law, as it is clear that upon a demise of a freehold estate, unless there are proper reservations to give the landlord the right to the timber, it may be locked up for ninety-nine years, or whatever may be the duration of the term. It would therefore be going too far to hold that such a custom would be unreasonable (m)." The Court of King's Bench, on a case directed for its opinion, returned a certificate that the defendant had not by

(m) Whitchurch v. Holworthy, 19 Ves. 214, 215.

Copyholders having limited interests.

law, and independently of any custom, any such property or interest in the timber growing upon the closes mentioned in the case, to which the plaintiff has been admitted to him and his heirs, as entitled him, as lord of the manor, without the consent of the plaintiff, to enter upon the copyholds, and cut down to his own use and benefit the timber growing thereon, leaving a sufficient quantity of the same for reasonable botes and estovers (n).

Although a copyholder in fee may by the particular custom of some manors have the profits of the timber, and cut it down at his pleasure (o), yet a mere tenant for life cannot have this power, even by custom; for this would be to the prejudice of the reversioner, and therefore be a void custom, as unreasonable (p).

Where a copyhold estate is granted for three lives to a man and his heirs, and he has no power of compelling the lord to renew on the lives falling in, he cannot cut timber growing on the estate (g). But it is otherwise where there is a custom for the copyholder to name his successor when he is quasi a copyholder in fee (r). Although a copyholder for life, under a grant by copy for life, cannot cut timber, yet a copyholder of inheritance having power to do so by the custom of a manor may make, a person to whom he gives a life interest only, dispunishable for waste, on the ground that the whole inheritance is out of the lord; and the fee, as to him, is in all the several

(n) Whitchurch v. Holworthy, 4 Mau. & S. 340.

(0) Glasscock's case, 4 Leon. 238; Rowles v. Mason, Brownl. 132; Fawcet v. Lowther, 2 Ves. sen., 303.

(p) Rockey v. Huggins, Cro. Car. 220; Fawcet v. Lowther, 2 Ves. sen., 303.

(q) Mardiner v. Elliot, 2 T. R. 746.

(r) Rowles v. Mason, Cro. Car. 221; 1 Brownl. 132; 2 Ibid. 197; Lex Man. 83, 136, 2nd ed. See ante, p. 60.