Intermixed lands.

firmed is not conclusive as to the title of the allottee (i); and when the application for partition is made in cases where there are no inclosure proceedings pending, it seems that the application can only be made by persons having undivided interests extending over the whole land which is to be parted out among the owners of undivided interests (k).

When lands are inconveniently intermixed the Board of Agriculture have power to confirm an agreement for division made by the parties interested, and to counterchange the titles of the parcels allotted on the division; and by the Inclosure Act, 1846, the Board are authorised, upon request of the parties, and with the consent of the lord in the case of copyholds, to appoint an Assistant Commissioner to award a re-division of intermixed lands. That Act provides that when any copyhold or customary land shall be intermixed or held or occupied together with land of freehold tenure, or with copyhold or customary land held of another manor, or under other customs or titles, and such copyhold or customary land cannot be identified by the description thereof on the rolls of the manor, and the situation or boundaries of such lands shall be unknown or unascertained, the award is to declare what parts shall be copyhold and freehold respectively, or be held of each such manor or under each of such customs or titles respectively, or is to determine and declare the situations and boundaries (). After the approval of the award the land is to be of such tenures and to be held of such manor, or under such customs and titles as therein declared, and subject to the same services, uses, trusts, and charges as the lands in respect of which they are respec

(i) Jacomb v. Turner, (1892) 1 Q. B. 47.

(k) Ibid. 52, 53.

(1) 8 & 9 Vict. c. 118, s. 148; 9 & 10 Vict. c. 70, s. 6; 52 & 53 Vict. c. 30. The instructions issued

by the Board of Agriculture for effecting a division of intermixed lands under the Inclosure Acts, and a form of application for division of intermixed lands, will be found in the Appendix, post.

tively awarded. The provisions of the Inclosure Act of 1845 as to notices and dissents in the case of exchanges are applicable to the award of the kind last described (m). In the case of glebe lands and of lands of ecclesiastical and collegiate corporations, the identity of which had been lost, an inexpensive process of ascertaining and setting out the boundaries had been supplied by the Tithe Commutation Acts and the Statute 2 & 3 Will. 4, c. 80. "These sections (of the Act of 1846) extend this benefit to lands held under lay lords of copyhold and customary manors, and to lands held under beneficial leases from lay lessors. In the North of England it is no unusual occurrence to find in the same field land held by freehold, copyhold, and customary tenures, and also land held upon lease both for years and for lives; and in numerous instances no one parcel of these several lands can now be identified. The inconvenience to parties dealing with the titles of such land is obvious" (n). The same state of things is frequently found existing on estates in Norfolk and Suffolk, as well as in the West of England. Mr. Cooke also notices a case where arable land was found to have all the incidents of a common field, except that there was no intercommoning after the crop was removed. Such cases are dealt with under the provisions relating to intermixed lands above cited, and are not inclosed as commonable lands (0).

This may be a convenient place for noticing the rules which have been laid down to determine whether Acts of Parliament expressed in general words are applicable to copyholds. It is usual in modern Acts to state expressly that they apply to customary estates, but there was a paucity of expression in some of the early statutes which frequently left the point uncertain. In Heydon's case (p), it was held that when an Act of Parliament alters the

What statutes

apply to copy holds.

services, tenure, or interest of the land or other thing, in prejudice of the lord or of the custom of the manor or in prejudice of the tenant, the general words of such an Act do not extend to copyholds; but when a statute is generally made for the public good, and no prejudice accrues by reason of the alteration of any interest, service, tenure, or custom of the manor, then usually copyhold and customary estates are within the purview of such Acts. This judgment was said by Lord Coke to contain "an infallible rule for the exposition of the general words in statutes" (q). A general Act will therefore include copyholds, unless it is prejudicial to the lord or tenant, or destructive of the custom. A declaratory Act, whether its form be affirmative or negative, is clearly not intended to introduce any new law or to alter any ancient custom, and will therefore ordinarily apply to copyholds. On these grounds it was settled that the Statute of Westminster the Second De Donis Conditionalibus (r), protecting entails, did not apply to copyholds, because it would be prejudicial to the lord, as "by this means the tenure is altered; for the donee in tail without any special reservation ought to hold of the donor by the same service that the donor holdeth over . . . yet it is holden that custom with the co-operation of the statute will make an estate tail" (s). Nor were copyholds within the provisions of the Statute of Westminster the Second, which gave the elegit "because it would be prejudicial to the lord and a breach of the custom that any stranger should have interest in the lands held by copy without the admittance and ordinary allowance of the lord" (t); but now, by the express provisions of 1 & 2 Vict. c. 110, copyholds may be delivered in execution by the sheriff under a writ of elegit. Formerly, also, copyholds did not fall within the provisions of 13 Eliz. c. 5, for the protection of creditors, because an assignment of

(g) Co. Copyh. s. 53. (r) 13 Edw. I. c. 1.

(s) Co. Copyh. s. 53; Rowden v. Maltster, Cro. Car. 42.

(t) Co. Copyh. s. 53.

copyholds could not be said to be in fraud of creditors, inasmuch as it put no available property out of their reach through their not having the writ of elegit (u); but as copyholds are now extendible for judgment debts under 1 & 2 Vict. c. 110, they have come within the provisions of the Statute of Elizabeth. The Statute of Uses does not apply to copyholds, "because the transmutation of possession by the sole operation of the statute, without allowance of the lord or the agreement of the tenant, would tend to the prejudice both of the lord and of the tenant" (x). It was settled, also, that the statute 32 Hen. VIII. c. 28, which confirms leases for twenty-one years or three lives made by tenants in tail, or by the husband and wife of the lands belonging to the wife, did not apply to copyholds, for the statute speaks of "leases made by deed only, so that the intent of the statute is to warrant the leasing of such lands only as are grantable by deed, but such are not copyhold lands, for though they may, by licence of the lord, be demised by indenture, yet in their own name they are demisable only by copy, and therefore out of the general purview of the statute" (y). And for the same reason it was formerly held that the statute 32 Hen. VIII. c. 34, which gives an entry to the grantee of a reversion upon the breach of a condition by the particular tenant, did not apply to copyholds (≈); but in Glover v. Cope (a) it was held that the surrenderee of a copyhold reversion was within the equity of the statute, for "it is a remedial law, and no prejudice can arise to the lord." And it has also been held that the assignee of the reversion of part of the demised premises is within the provisions of the statute (6). On the ground of prejudice to the lord, before the Act 9 & 10 Vict. c. 70 the exchange provisions of the

(u) Mathews v. Feaver, 1 Cox, Ch. C. 278.

(x) Co. Copyh. s. 54.

(y) Ibid.

(2) Co. Copyh, s. 54.

(a) 1 Salk. 185, 4 Mod. 80; Whitton v. Peacock, 3 Myl. & K. 325. (b) Twynam v. Pickard, 2 B. & Ald. 105.

Acts extended to copyholders.

General Inclosure Act, 1845 (c), were held to be confined to freeholds. So without express provisions, such as are contained in the Lands Clauses Act of 1845, an Act passed for enabling land to be taken for a public undertaking would not be allowed to prejudice the lord (d). On the same principle, a penal statute imposing a forfeiture of land will not include customary estates if any part of the forfeiture is taken from the lord, since "an Act is not to be expounded so as to take away the interest of an innocent person" (e). The statute 12 Car. II. c. 24, so far as it permits fathers to appoint guardians for their children, seems to apply to copyholds except in those places where the lord has by custom the right of appointing the guardian (ƒ).

When an Act will benefit the copyholder and not prejudice the lord, it may, "by a benign interpretation," be extended to copy holds, even if it be in terms suitable to freeholds only, or be merely declaratory of the law. Thus the Statute of Merton, 20 Hen. III. c. 1, giving certain remedies for dower to widows, was extended to give analogous remedies in the manor court to widows claiming their freebench. On the grounds stated in Heydon's case (g), it has been held that the statute 4 Hen. VII., as to fines being a bar on five years' non-claim, applied where a fine was levied by a disseisor or by a feoffee of a copyholder (h). Lord Coke, however, points out (i) that it had been doubted whether the statute extended to copyholds, because by its operation the lord would receive great prejudice, inasmuch as he would not only lose the fines upon alienations and descents, and the benefit of forfeiture, but would also be in danger of being barred of his inheritance; but he answers the objection by the remark that if the lord receives any such prejudice it is through his own default

(c) 8 & 9 Vict. c. 118.

(d) Dimes v. Grand Junction Canal Co., 9 Q. B. 469.

(e) York (Duke of) v. Marsham, Hard. 432.

(f) Watk. Copyh. ii. 103, 195. (g) 3 Rep. 7a.

(h) Podger's case, 9 Rep. 104 a, 105 a.

(i) Co. Copyh. s. 55.