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718. n. (g) add “ The honor of Knaresbrough in Yorkshire is a peculiar. See a
recent interesting publication of the customs of the Forest of Knares
brough.” 783. n. (a) add “2 Cr. & Jerv. (Ex.) 302, in Att. Gen. v. Parsons." 791, n (e) add “ And see as to the distinction between toll-traverse and toll
thorough, Lord Pelham v. Pickersgill, 1 T. R. 660. Lord Falmouth v.
George, 5 Bing. 286.” 794, n. (b) add " And the right will not pass de novo, merely by the general words
of free warren, &c.' Carr v. Smith, cited 2 Cr. & Jerv. (Ex.) 294, in
Att. Gen. v. Parsons." 795. n. (6) after 5 Co. 104. a. add “ And see as to the effect of the words • And to
have free warren in all demesne lands in the manor, &c.' Att. Gen. v. Parsons, 2 Cr. & Jerv. (Ex.) 279. In that case (p. 308) Lord Lyndhurst, C. B., in delivering his very able judgment, said, Though the word • demesne 'may in some cases be applied to any fee-simple lands a man holds, yet it is more correct and usual to apply it to the lands of a manor, which the lord of that manor either actually has, or potentially may have
in propriis manibus." 799. add " The qualified common law right of the public to use the sea and the
sea shore, does not extend to the right of bathing in the sea. Blundell v.
Catterall, 5 Barn. & Ald. 268.” 811. n. (6) add " But see per Bayley J. 3 Barn. & Cress. 686-7, in Rex v. Mayor,
&c. of West Looe. Vide also post. p. 825, n. (c).” 818. After the words ' quarter sessions,' 6th line, add (as a note) “ Vide 1 Ed. 4.
c. 2. (Appendix (477).] Post 825. n. (a).” 830 n. (a) add “It was held in Green v. Davies, 3 Barn. & Ald. 60, that under a
custom for a court of pleas in a borough to be held before the steward and port reeve, or their sufficient deputy or deputies, the court might be held by a person appointed to act as deputy by one in whom both offices
were united, such offices not being incompatible.” 849. n. (a) [Deputy Steward] add " It is only when the office is purely ministerial
that the duties may, as a thing of course, be performed by deputy, and the deputy though he may act in his own name, except in special cases, should act in the name of his principah Com. Dig. Officer D. 5. Ante, pt. 1. p. 146. N. B. Under a grant of a franchise all writs should be returned by, or at least in the name of, the Principal, unless the grant contain a special provision authorising the return to be made by the grantee of the liberty, by his or their bailiff or bailiffs, as in Newland v.
Cliffe, 3 Barn. & Adolp. 647." 868. [Hayward] add (as a note)
“ It is however established in some places as a public annual office, conferring a settlement. Rex v. Inhab. of Whiltlesea,
4 T. R. 807. The Hog-ringer is a public officer, but the Pinder is not
necessarily so. Inhab. of Clixby, 4 Barn. & Adolp. 155. (16.) [Appendix] At the end of the note on the nature, &c. of essoins add “ In a
very recent case the Demandant in a writ of right having signed judgment of non pros, after giving a more distant day for adjourning the essoin than by law he was intitled to give, the judgment was set aside as irregular, the court recognising the rule, that it is incumbent on the plaintiff to adjourn the essoin where the defendant has cast one regularly, on pain of being nonprossed for his neglect. Tr. Term. 1833. Twy
ning Demandant; Lowndes Tenant, 10 Bing. 65." (425). [Hayward's Oath.] n. (a), add " being chosen by the jury under an ancient
usage, and it is then considered as a public annual office, conferring a settlement, like the office of Hog-ringer. Rex v. Inhab. of Whittlesea, 4 T. R. 807. Rex v. Inhab. of Clixby, 4 Barn. & Adolp. 155."
Page 313 n. (a) [1st Vol. Extrinsic Evidence) add “ Ante, p. 180. n. (d). And see Harris
v. Bp. of Lincoln, 2 P. W. 137. Beaumont v. Fell, ib. 141. Amb. 175. n. 1. Thomas v. Thomas, 6 T. R. 676.
Careless, 1 Meriv. 384. Doe & Huthwaite, 3 Barn. & Ald. 632. Doe & Westlake
4. ib. 57." 372. [lst. Vol. Bankruptcy). last line, add (as a note) “ It was decided in
Lloyd v. Lander, 5 Madd. 283, that a bankrupt is not a necessary party to a bill of foreclosure, an equity of redemption of copyhold being potentially vested in the assignees, although no bargain and sale be made to
them." 590. [lst Vol. Evidence.] After the judgment of Lord Ellenborough in Doe & Hall
add “ It has been lately decided that the provisions of the 48 Geo. 3. c. 149 are merely revenue regulations, and were not intended to vary the rules of evidence; and that an examined copy of the court roll is evidence of a surrender made out of court. Doe d. Cawthorn v. Mee, 4 Barn. & Adolp. 617. S. C. (Hawthorn v. Mee.) 3 Nev. & Mann. 424.”
ERRATA. Page 725, n. (d), for Roe v. Staverton, read Rex v. Staverton. 752, n. (6), for 457 read 147. Ib., n. (d), for Kitch. 117, read Kitch. 146-7. 798, n. (a) for Churchwarden read Churchward. (28), [Appendix] line 21, for devise read demise. (396), [Ib.) for Doe d. Roberts, read Doe d. Leach.
125, [1st. Vol.] line 16, for it should certainly seem, read it has been thought. 433. [1st Vol.] line 11, for assessed, read assised. 486-7, [1st. Vol.] for Chalk v. Danvers, read Clark v. Danvers.
COPY HOLD TENURE,
ETC. ETC. ETC.
PART THE SECOND.
Of Customary Freeholds, (or Privileged Copyholds). The origin and peculiar character of this species of tenure will, I think, be best illustrated, by selecting some few passages
from the Law Tracts of Sir William Blackstone, title “ Considerations on the question, whether tenants by copy of court roll, according to the custom of the manor, though not at the will of the lord, are freeholders qualified to vote in elections for knights of the shire.” (a)
After showing by an able argument, chiefly drawn from the authorities of Bracton, Fleta, and Britton, that estates of this nature are no other than what were well known to our ancient law, under the denomination of estates in privileged villenage or villein socage, and that they were not free lands at the common law, our learned commentator thus proceeds (6):
“ As the villan-socman was distinguished from the pure villein, in that he could not be removed from his estate at the
(a) By the stat. 31 G. 2. c. 14, or any larger estate, of the clear yearthe privilege of voting for knights of ly value of not less than ten pounds, to the shire was denied to all persons vote in the election of a knight or holding estates by copy of court roll. knights of the shire, ante, pt. 1. p. But see reference to 2 W.4. c. 45. s. 19,
661. n. (b). enabling copyholders for a life or lives, VOL. II.
(6) p. 132.
will of the lord ; 'a gleba amoveri non debet, quamdiu velit ' et possit facere debitum servitium ;' so, since this will of the lord, is by custom become merely nominal, the same nominal distinction is, kept up between the common copyholders and this privileged sort; the words at the will of the lord,' being still preserved in the copies of the former, and totally omitted in those of the latter ; which omission is, indeed, almost the only difference now remaining betwixt them ; common copyholders having arrived (by a series of encroachment on their lords) at nearly the same estate of enfranchisement, which the privileged copyholders alone enjoyed by the antient law.”
“ Farther to confirm what has been said, Lord Coke (cop. s. 32,) (giving an account of these tenures, which he calls copyholds of frank tenure) observes, that they are most usual in • antient demesne : though sometimes out of antient demesne
we meet with the like sort of copyholds: as in Northamptonshire • there are tenants which hold by copy of court roll, and have no • other evidence, and yet hold not at the will of the lord.' And so Mr. Kitchin (tit. cop.) (a) says, I have seen in the county of
Northampton, copyholders of frank tenure, out of antient de* mesne ; and they have used a writ of right close, and have no
other evidence but by copies, according to the custom of the ‘manor; but their copies are not at the will of the lord.' And again, (tit. court of antient demesne) (6),' in surrenders of lands in an* tient demesne of frank tenure, it is not used to say, to hold at • the will of the lord, in these copies; but to hold according to the 'custom of the manor, by the services before due; and it is not ' said there, at the will of the lord.' To these may be added Mr. West, who (Symboleography, S. 603,) first lays down the general definition of a copyholder ; ‘he which is admitted tenant
any lands or tenements within a manor, that time out of memory of man have been demisable, and demised to such as • will take the same, in fee, fee tail, for life, years, or at will, according to the custom of the said manor, by copy of court (a) p. 159 of the Author's edit. (6) p. 194 of the Author's edit.
' roll of the same manor. And therefore they be called tenants ' by copy of court roll, because they have no other writings or
evidence, concerning such their lands and tenements, but only ‘ the copies of the rolls of the courts of the manors, within • which they lie. And then (S. 605.) he distinguishes the present species of copyholds from others, thus : 'In some ma
nors, the tenants have the lands granted unto them and their . heirs, in fee, fee tail, or for life, or years, according to the
custom of the manor ; and not at the will of the lord accord‘ing to the custom : it which case the rolls and copies ought 'to be made accordingly. All which proves, that the omission of these words in its original, was neither fraudulent nor accidental, but is a badge well known to the law, as a kind of family distinction between such copyholds as ‘are descended from pure,
and such as are from privileged, villenage.” And after exemplifying his argument by a copy of a court roll in the old chartuary, or collection of ancient deeds and forms in conveyancing, Sir William Blackstone adds (a) :“ This seems to be convincing evidence, that these tenures are of the same nature with Bracton's villan-socage ; being chiefly found in antient demesne ; the tenants not amesnable to the county court; the lands not transferable but only by surrender; not capable of a recovery at common law (b), but only by writ of right close, according to the custom of the manor ; and though held by copy of court roll, yet not at the will of the lord. Those who imagine them to be of any other species of tenure, would do well to inform us what that tenure is, and to support their opinion with authorities equally cogent. Taking this then for proved, that the tenants in question are of the nature of villan-socmen; it will next be our business to shew,
(a) p. 136.
fered in the Court of Common Pleas (6) According to the case of Oli- of customary freeholds, passing by ver & Taylor, 1 Atk. 474, (citing surrender in a Borough Court. But Baker & Wase, in Lord Maccles- now see 3 & 4 W. 4. c. 74. § 2. field's time,) a recovery might be suf- Vide also ante, pt. 1, p. 84, et seq.