pleading were more stringent than they are now under the Judicature Acts, the rule seems to have been that, if the lord assessed the fine at a precise amount in figures and sued for that sum, he could not recover the amount if the jury found for a different amount without bringing a fresh action; but even then it was settled that if the lord had assessed the fine at a certain number of years' value, and declared in his action for such amount, although stating the exact sum under a "videlicet," he might recover the amount found by the jury if it did not exceed the sum claimed by him (f). One fine cannot be assessed on the admittance to several tenements; there must be a separate assessment for each tenement (g). ness of fine. When the fine has been assessed, the steward should Demand. demand it from the tenant. The demand does not require to be in writing, but should be personal on the tenant (h). In an old case, the Court of Common Pleas held that Reasonablewhen once the lord had assessed an arbitrary fine it was not for him to show that it was reasonable, and that it was 'on the copyholder's side to make it appear to the Court to be unreasonable, and so put it upon the judgment of the Court, for the fine is due to the lord of common right and it is only in point of excuse to the tenant if it be unreasonable" (i); and this decision has been followed in later cases (). But although the fine is said to be due of common right, it has also been settled, after conflicting decisions of the Courts of Common Pleas and Queen's Bench, that a refusal to pay an excessive and unreasonable fine does not operate as a forfeiture of the copyholder's estate (7). The question of the reasonableness of the fine (f) Parkyns v. Titus, Carth. 12; Grant v. Astle, 2 Doug. 722; Northwick (Lord) v. Stanway, 6 East, 56; Hayward v. Raw, 6 H. & N. 308; Fraser v. Mason, 11 Q. B. Div. 574, 581. (g) Grant v. Astle, 2 Dougl. 722. (h) Trotter v. Blake, 2 Mod. 229. (i) Denny v. Lemman, Hob. 135. (k) Doe d. Twining v. Muscott, 12 M. & W. 832; Hayward v. Raw, 6 H. & N. 308. (1) Hobart v. Hammond, 4 Rep. 27b; Jackman v. Hoddesdon, Cro. Eliz. 351. What is a reasonable fine. is properly one for the consideration of a Court of law, assisted by a jury in cases where any question of fact arises as to the custom or as to the value of the tenements (m); and, accordingly, it was formerly held that a single copyholder was not relievable in equity for an excessive fine, because the matter was determinable at law (n), though it was admitted that a bill in equity would lie to settle a general fine to be paid by all the copyhold tenants of a manor to prevent a multiplicity of suits (o). But "to prove upon a trial the annual improved value of the land, and then to calculate how much of that value should be paid for a fine, was likely to be attended with so much dissatisfaction that recourse would frequently be had to the Court of Chancery, which had always relieved against the forfeiture and taken upon itself without a jury to determine what should be a reasonable fine" (p). There was at one time considerable variance between decisions of the Courts as to what would constitute a reasonable fine. In Willowe's Case (q), the Court of King's Bench held that a fine amounting to two years' value of the tenement was, under the circumstances, unreasonable; and in the cases of Middleton v. Jackson (r) and Popham v. Lancaster (s), Lord Keeper Coventry, when settling the fines to be paid by the tenants of certain manors, decreed one moderate year's value of the lands as the fine payable to the lord; but in the year 1677, Lord Nottingham, in the case of Morgan v. Scudamore (t), held that two years' improved value of the tenement was in ordinary cases a proper limit for a reasonable fine; and this ruling has been followed ever since. (m) Hobart v. Hammond, 4 Rep. 156. (0) See Middleton v. Jackson, 1 Rep. in Ch. 33; Popham v. Lancaster, Ibid. 96; Morgan v. Scuda The fine must be estimated more, 2 Rep. in Ch. 134. (p) Per Ld. Loughborough in Grant v. Astle, 2 Dougl. 722. (2) 13 Rep. 1. (r) 1 Rep. in Ch. 33. (s) Ibid. 96. (t) 2 Rep. in Ch. 134. according to the improved yearly value of the tenement at the time of assessment, deducting the amount of the quit rents (u), and estimating what would be required to put the tenement into repair for the purpose of letting it (x), but not making any other deduction whether for land tax or other charges (y), though in one case it was doubted whether a local drainage rate in a fen district might not properly be deducted (z). If the value of the land is increased by buildings, that fact may properly be taken into account in estimating the fine (a). The rent reserved on a lease of the copyhold premises is not the proper criterion of the amount of the fine, for the tenant may be able to show that the actual value of the premises demised is less than the rent reserved (b). There have been several cases in which the customs of Customs as to fines. manors as to the payment of arbitrary fines have been called in question. Thus, a custom that a fine being due on the first purchase, but not on subsequent purchases or descents, as in the manors of Lambeth, Croydon, and Richmond, in Surrey, and of Harrow-on-the-Hill, in Middlesex, the lord might set what fine he pleased upon a purchaser, has been held unreasonable (c). In a similar case, however, it has been held that the lord would not be restricted to a fine of two years' value, but, if the custom permitted it, "might take a fine of four, five, or even seven years' value" (d), and the same principle would appear to apply in cases where the fine is upon every purchase but not upon descents, the amount of the fine being increased in a due proportion (e). In one case it was agreed that the (u) Halton v. Hassel, 2 Stra. 1042; Grant v. Astle, 2 Dougl. 722. (x) Richardson v. Kensit, 5 M. & Gr. 485. (y) Grant v. Astle, 2 Dougl. 722. (z) Ely (Dean & Ch. of) v. Caldecott, 8 Bing. 439. (a) 1 Cas. & Op. 174. E. (b) Verulam (Earl) v. Howard, 5 Moo. & P. 148. (c) Douglas v. Dysart (Earl of), 10 C. B. N. S. 688. (d) King v. Dillington, 1 Freem. 494, 496; Pinsent's Case, cited there. (e) Watk. Copyh. i. 309; Scriv. Copyh. 319. N lord might be entitled by the custom to increase the fine against an infant who would not come for admittance (ƒ), but this power, even if ever reasonable, has now been superseded by the lord's statutory remedies before mentioned (g). Where there is a custom that persons who are already copyholders of the manor shall pay a small fine certain on the purchase of other copyholds, but if not tenants already shall pay an arbitrary fine not exceeding two years' value, it has been held that the lord must take his chance of a purchaser buying a small copyhold before another of greater extent, in order to save the fine; and even if the larger tenement were purchased first, but admittance is sought to the smaller tenement in order to decrease the fine payable on admittance to the larger, the lord will lose his arbitrary fine, unless he can show that the purchase of the smaller tenement was colourable only and made to 194 K.B.689 defraud him of his fine (). A purchaser may therefore choose the order in which he will be admitted to the copyholds which he has bonâ fide acquired; but there may be a custom which restricts a purchaser from compelling the lord to admit him to one of several distinct tenements, acquired under one disposition (whether by a surrender or devise), while, at the same time, he refuses to take admittance to the other tenements (i); and so there may be a special custom that the purchaser of several distinct tenements under one disposition must take admittance to all at the same time and pay one general fine in respect of all (k). The lord being entitled to no more than two years' clear intrinsic value, a custom to take ten per cent. on the purchase-money cannot be upheld, however long it may have been practised; and if the money were paid under compulsion, as under a refusal to grant admittance unless (f) King v. Dillington, 1 Freem. 494. (g) 11 Geo. IV. & 1 Will. IV. c. 65. (h) Rex v. Boughey, 1 B. & C. 565; S. C. nom. Rex v. Meer and Forton Manor (Lord of), 2 D. & R. 824. (i) Johnstone v. Earl Spencer, 30 Ch. D. 581. (k) Ibid. it were paid, an action will lie to recover the excess above the two years' value. The lord may bind himself to accept a certain sum in the future as being the equivalent of two years' value after allowing for improvements to be made by the copyholder (1). in remainder. In manors where copyholds are granted for lives succes- Fines on lives sively, it is usual to take two years' value for the first life, half that sum for the second, half of what was paid by the second life for the third, and so on in a descending series, so that the total fine can never amount to as much as four years' improved value. This mode of assessment was referred to in the case of The Earl of Bath v. Abney (m), as prevailing within the manor of Stoke Newington, in Middlesex, but was not the subject of decision. The principle, however, has been upheld as reasonable in the cases of Taylor v. Pembroke (n) and Wilson v. Hoare (o); but both these cases are concerned with the case of joint tenants, as will appear hereafter. It is with reference to this rule, that it has been said that "where a person is admitted to an estate in remainder the fine is usually one-half" (p). Notwithstanding that the lord might in the case of successive tenants for lives charge two years' value for the the first, one year's value for the second, and so on, it is not usual in practice to charge so much; and the lord is generally content with the value of a year and a half for the first life, and so with the other lives in proportion. Where some of the lives are only trustees for the "first taker" or other owner of the beneficial interest, the whole fine is assessed at once. But where all the lives are to take both legal and equitable estates successively, each will in general pay his fine, according to the rule above given, as it accrues due. (1) See Curtis v. Seales, 14 M. & W. 444. (m) 1 Burr. 206, 207. (n) King's Bench, Mich. 1815, cited in Wilson v. Hoare, 2 B. & Ad. 350, 354, 361, and in Scriv. (0) 10 A. & E. 236. (p) Cru. Dig. tit. 10, c. 4, s. 36. |