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1833.

Doɛ dem. LEACH against WHITAKER.

hold courts at one manor for divers several manors, and good by custom.'

The case of Melwiche is reported in Cro. Eliz. 102., and the matter seems to have been compounded; and it is again mentioned in Bright v. Forth (a), and is there mentioned as a strange judgment; but the case in Cro. Eliz. appears rather to have been upon the freehold of the copyholds being divided from the rest of the manor, and the effect which that would have upon the copyholds. In Sands v. Drury (b), in giving judgment, it was said that it was adjudged in the time of Queen Mary, in the case of the Duke of Suffolk, that where one had two manors, and granted a copyhold of the one manor, at the court of the other manor, it was a void grant; for it cannot be a copyhold according to the custom of a manor whereof it is not parcel. Gaudy doubted thereof, and considered it would have been well enough if it had been so used from time whereof &c; but that was not found, and therefore no title in the defendant.

But

But in Lord Dacre's case (c), it was held that a customary court may be held out of the precinct of the manor, for no pleas are holden, which was agreed per totam curiam. But this was not the point in discussion, which was as to the appointment of a steward. The reason, also, there given, does not seem to be a good one, for the holding of pleas is not the only reason why it should be held within the manor. And in fact the court does hold pleas of land, as fines levied, and recoveries suffered in the copyholders' court.

(a) Cro. Eliz. 442.

(b) Cro. Eliz. 814.

(c) 1 Leon. 289.

It would be attended with the greatest inconvenience

1833.

Dog dem.

LEACH

against

if suitors were compelled to go a great distance to attend the court; and if proclamations were made affecting the copyhold tenants, they would not necessarily know of WHITAKER. them, if they were made off the manor.

We do not enter into any consideration of the cases where the freehold of the copyholds has been severed from the manor; a good deal of uncertainty seems to prevail as to them, and whether courts may be held off the manor for the admittance of the copyhold tenants: they stand upon their own particular circumstances.

This question has engaged the attention of Chief Baron Gilbert. In his Treatise on Tenures, p. 250., he says: "A lord may make a grant or admittance of a copyhold out of the manor, at what place he pleases; but the steward cannot at a court held off the manor make any grants or admittances; and in 1 Coke Inst. 58. a., he says that a court baron cannot be held off the manor unless the lord hath two or three manors, and hath usually kept court at one for all, which plainly shews that a lord cannot make admittances or grants at a court held off the manor, no more than the steward. For Coke says, that if the court baron be held off the manor, it is void, and he there speaks of a court baron as including the copyholders' court, where the steward is judge. But, as hath been said before, a lord may make admittances or grants out of the manor, at what place he pleases, which are Coke's words, and must be understood not at a court, but at some other time, or else he contradicts himself. It is held, that if the inheritance of copyholds be granted to one, he may hold courts where he will; for it is no longer Ff 4

a court

1833.

Doɛ dem. LEACH against WHITAKER,

a court baron, and that the lord or his steward may grant copies out of court as well as in court. And as the case is reported by Croke, the grant was at a court held at another manor. But, as Coke reports it, though the grant be at another place, yet it is not said to be done at a court. So quære, whether a steward may make grants by copy out of court; but if a steward can, an under-steward cannot." And in page 319. he says:-"My Lord Coke says, that the lord may make admittances and grants by copy at what place he pleases, but the steward of the manor at any court held off the manor (for out of the court it is said by him, in another place, he may make admittances and grants by copy), cannot make any admittances or grants by copy. This seems to imply that the lord may make by copy, grants and admittances, at a court held off the manor, or else where is the difference between the case of the lord and the steward? and in the next case but one it is resolved, that if the steward at a court held off the manor make any grants or admittances, they are all void; but he says nothing of the lord. In his comment upon Littleton he says, the court baron must be held upon the manor, else it will be void. As Melwiche's case is reported by Croke, it is there said, that if the lord grant away the freehold of his copyholds, the grantee may hold courts where he will to make admittances and grants. If then a grant by copy or admittance should be made at a court held off the manor, though it be a court baron, why should it be void? since a court baron contains in it two courts, one for the freeholders, the other for the copyholders; and since that for the copyholders as to granting copies, &c., may be held off

the

the manor, there is no reason that because the court baron is void, that therefore the admittance should be void; for they are as two distinct courts, and the admittance had been good, had the court been only the copyholder's court. And if we look back to the reason of the thing, if an admittance may be made at a place off the manor, why not at a court held off the manor? for it is no judicial act; if it were, surely it must of necessity be done in court; and therefore it was held per totam curiam, that a court to do these things might be held off the manor: it is not distinguished in this case between the grant of the lord or steward: but Coke is express that grants by stewards at courts held off the manor are void. Ideo quære de hoc?"

Taking the whole of these authorities into consideration, though there is some want of clearness among them, we think that a customary court cannot be held out of the manor, unless there be a custom to warrant it. But though the court be a void court, that only affects such things as are required to be done at a court, as presentments by the homage, imposing fines and amercements, levying fines, suffering recoveries, &c.; but as to many other things, though they are correctly done at a court, it is not essential they should be so And amongst these things it has been held, that the lord may grant to or admit a copyhold tenant, not only out of court, but also out of the manor the fourth resolution in Melwiche's case (a). It was, therefore, competent for the lord himself to have admitted, or made a grant to these persons out of the manor, with(a) 4 Co. 26 b.

1833.

Dog dem.
LEACH

against WHITAKER.

out

1833.

Dox dem. LEACH against WHITAKER.

out any consideration of a court, and if he had gone alone to this house, and these persons had come there, he might have made out a grant to and admitted them, and have delivered seisin by the rod, and thus have completed two of the ingredients towards making them tenants by copy of court roll. But, supposing instead of that, either by mistake as to the house not being within the manor, or under other circumstances, twenty or thirty persons, one of whom called himself the crier, some others bailiffs, beadles, or officers, and some homagers, had assembled there about the lord, and the crier had made proclamation to open a court, and had sworn persons to be of the homage, and the lord had given a charge to those persons as the homage, and they had made presentments, and had imposed fines and amercements, and fines had been levied and recoveries suffered, all which would have been void; and then these lessors of the plaintiff had offered themselves to receive a grant, and the lord had made and signed a grant and admitted them, and had delivered seisin by the rod; - the question is, whether all this machinery of a court would have invalidated the grant, or whether it would have been mere surplusage, and the grant and seisin remained valid; and we are of opinion that as there are effectual words of grant, and an actual seisin delivered, all this statement about the court is only to be considered as surplusage, and that the grant and seisin would be effectual. Thus, therefore, it would be if the lord himself had made the grant.

But the grant itself, or admittance, not being made by the lord in person, it is necessary to consider whe

ther

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