Hobart v. Hammond, 4 Rep. 27 b. Willowe's 13 Rep. 1. Nor does it appear that the courts of law interposed, before the reign of Queen Elizabeth, to moderate the exercise of the lord's right to demand whatever he pleased, where the custom had left the amount of the fine uncertain. $1. It was resolved by the Court of King's Bench in 42 & 43 Eliz. that if the fines of copyholders upon admittance be uncertain, yet the lord cannot demand or exact excessive or unreasonable fines; that if he does, the copyholder may by law refuse to pay them. And it shall be determined by the opinion of the justices, before whom the matter is depending, either upon demurrer, or upon evidence to a jury, upon confession or proof of the yearly value of the land, whether the fine demanded was reasonable or not. For if the lord might assess excessive fines at his pleasure, all the estates of copyholders would be, at the will of the lord, defeated and destroyed. 32. A lord of a manor demanded a fine of 51. 6s. 8d. for an admittance, upon a surrender to a cottage and an acre of pasture, which was let at a rack rent of 53s. a year. It was resolved, 1st. That although a fine be uncertain and arbitrary, yet it ought to be secundum arbitrium boni viri, that is, reasonable, and not excessive; for excessus in re qualibet, jure reprobatur communi. The common law forbids any unreasonable distress; if an excessive or unreasonable amercement be imposed in any court baron, or other court, which is not of record, the party shall have moderate misericordia. 2d. That if the lord and tenant cannot agree about the fine, and the lord demands more than a reasonable fine; the same shall be decided and adjudged by the Court in which any suit shall be brought on account of the denial of such fine. 3d. That the fine demanded in this case was unreasonable, for this was not a voluntary grant, as where the copyholder has but an estate for life. 33. In trespass the question was, whether the lord Dow v. Golding, might assess two years and a half's value of the land, Cro. Car. according to the rack rent, for a fine; all the Court 196. held he could not, for it was unreasonable; that one year and a half's rent, according to the improved value, was high enough; but that the tenant might refuse to pay two years and a half. v. Jackson, 34. Lord Keeper Coventry in 5, and again in 12 Middleton Cha. I. held that one year's improved value was a Rep. in Cha. reasonable fine. Guarding the decree, that one year's 18. value should not be counted a fine certain, but refer- Lancaster, Popham v. able to the discretion of the Court, whether it was reasonable or not; and that the payment was then directed, because it was reasonable. 35. It appears to have been settled about the latter end of the reign of Cha. II. that two years improved value is a reasonable fine, in the case of a fine arbitrary, or more properly arbitrable; and the courts will not permit a lord to take more. But, a 36. Where a person is admitted to an estate in remainder, the fine is usually one half... tenant for life must pay the whole fine, equally as if he were tenant in fee, in cases where the heirs are finable. For the admission of the tenant in fee is only the admission of an individual; when he dies, his heir must be admitted. Id. 51. Doug. R 726. n. 6 East, 56. 1 Watk. on Cop. 481. 2d ed. 37. In some manors the fine usually taken for two 1 Burr. 207. lives, is as much and half as much as the fine for one 217. life; and the fine for three lives, is as much and half. as much as the fine for two lives. This must be un- 1 Watk. 483. derstood of persons taking successivè, or one after another; for if they take as joint-tenants, or tenants in common, it would be different. Gilb. Ten. 327. Halton v. Stra. 1042. Grant v. 38. It has been stated, that a person who acquires a copyhold as a special occupant is liable to a fine, as a purchaser. But this fine should be proportioned to the probable duration of the life of the cestui que vie. 39. The fine must be estimated according to the improved yearly value; not according to the rent under a lease. In a modern case it was held, that no Doug. 724. n. deduction was to be made out of the two years full improved value on account of the land tax; but quit rents were always deducted. Astle, Cowper v. Clark, 3 P. Wms. 155.. Except on voluntary Grants. Wharton v. King, Anst. Rep. 659. Abergavenny 40. A bill in Chancery cannot be brought by a copyholder to be relieved against an excessive fine; for that ought to be tried by a jury. But a bill will lie to settle a general fine, to be paid by all the copyhold tenants of a manor, in order to prevent a multiplicity of suits. 41. Where copyholds are only granted for lives, without any tenant right of renewal, and fall into the lord's hands, there the fine is uncertain; because it being in the option of the lord to renew or not, he may demand whatever sum he pleases. 42. In order therefore to support a custom of renewal of copyholds for lives, the plaintiff must allege such custom to be on payment of a fine certain; for it will not be sufficient to allege it to be on payment of a reasonable fine, on account of the difficulty of ascertaining the quantum of such fine. If a cus2 Bro. Parl. tom be not found to renew on payment of a fine cer v. Thomas, Id. Grafton v. Horton, Ca. 284. tain, the lord may insist on his own terms. And the only proof that can be given of such a custom is, the fact of renewals having taken place, according to some certain standard; that is, upon a fine certain. 43. Where a person holds several copyholds of the same manor, the lord must assess and demand the fines severally; for the tenant may refuse to pay the fine for one, and pay it for the others. Lord Coke v. Scutt, 6 East, 476. 44. Where a fine is certain, the tenant is bound to When paypay it immediately upon his admittance. Otherwise able. where it is uncertain; because as the copyholder cannot tell what the lord will assess, it would be impossible for him to provide the precise sum; therefore he will be allowed a convenient time to pay it. But if a 45. The lord may bring an action of debt against a copyholder for the recovery of his fine. copyholder in fee dies, and his heir waives the pos session, the lord cannot bring an action against him for the fine, but may seise the copyhold. How recovered. 3 P. Wms. 151. Doug. 727. n. ante, § 2. v. Garnett, 46. If a copyholder be admitted, and before pay- Shuttleworth ment of the fine, the lord dies, and the manor de- 3 Mod. 140. scends to his son and heir, who also dies; the executor of the son may maintain an action of assumpsit against the copyholder, to recover the fine; whether it be a fine certain, or at the will of the lord. 47. The lord may recover from the copyholder the Northwick v. Stanway, fine assessed by him on admittance, though there be 6 East, 56. no entry of the assessment on the court-rolls, but only a demand of such a sum for a fine, after the value of the tenement is found by the homage. 48. By the statute 9 Geo. I. c. 29. reciting that doubts had arisen in the law respecting the power of lords of manors to seize copyhold lands parcel of their manors, on the neglect or refusal of persons to come in and be admitted tenants; it is enacted, that feme coverts and infants may be admitted to copyhold estates by their attorney or guardian; and in default Of Heriots. Co. Cop. $ 24. of appearance the lord may appoint a guardian. That upon every such admittance the fine may be demanded by a note in writing, to be left with such infant or feme covert. If the fine be not paid within three months after such demand, the lord may enter on the copyhold, and receive the profits thereof till he is paid his fine and costs, &c. By the 4th section it is enacted, that guardians and husbands paying such fines, shall reimburse themselves out of the rents and profits of the copyholds, notwithstanding the deaths of such infants and feme coverts. 49. Besides a fine, there is also a custom in many manors, that upon the death of every copyholder, though only for life, the lord becomes entitled to his Heriot, pl. 5. best beast, or averium. In some manors it is the Bro. Ab. Parker v. Norrice v. 2 Roll. Ab. best chattel, under which a jewel or piece of plate is included. But it is always a personal chattel, which immediately on the death of the tenant, being ascertained by the option of the lord, becomes vested in him, as his property; and is no charge on the lands, but merely on the goods and chattels of the tenant. 50. A custom that the lord of a manor shall have the best beast of every person who dies within the manor, whether he be a copyholder or not, is void; for it cannot have a lawful beginning between the lord and a stranger. 51, Although the copyholder be ousted or disseised, yet the lord will be entitled to a heriot, for he still continues to be a legal tenant. 52. A copyholder for life, in a manor where the custom was, that if the tenant died seised, a heriot should be paid, was disseised or ousted, and died; the lord having first granted the seignory to A. for 99 years, if the tenant should so long live, remainder to B. for 4,000 years. Two questions were made. |