1832. The Dean of ELY ข. CALDECOT. each manor. Co. Copy. 94. A fine, such as that claimed by the Plaintiffs, can only be payable by a special and Chapter custom, and not by the general law of copyholds. 1 Cruise, 312. par. 10. 13. Whitbread v. Jenny. But a special custom being in the nature of an exception, it lies on the Plaintiff to establish its existence, and that, by conclusive proof; for customs in favour of the copyholder are construed liberally; customs in favour of the lord, strictly. Watk. 60. Now a fine is not necessarily payable on every admittance; Barnes v. Corke (a); nor is it to be inferred, that, wherever a fine is paid, it is a full fine. The fine for a remainder-man, where there is a custom for him to pay, is usually half the full fine. 1 Watk. 481. And the lord, in such a case, may apportion the fine between the tenant for life and the remainder-man; may exact the whole from the tenant for life; or allow the remainder-man to pay his share when he comes into possession. Blackburne v. Graves (b), Brown's case (c), Tipping v. Bunning. The evidence in this case is not sufficient to establish the custom set up. The entries of most of them are equivocal; there is no entry of a full fine for a remainder-man, or of the word fines in the plural. Storks, in reply, examined the various entries in detail, and contended that several of them established the payment of a full fine by the remainder-man. Another point was argued as to the necessity of estimating the value of the land, subject to an allowance for the fen taxes; but, as the Court gave no opinion on that question, the portion of the case which relates to it is omitted. (a) 3 Lev. 308. Cur. adv. vult. (c) 4 Rep. 21. (b) 1 Mod. 120. I Ventr. 260. 3 Keb. 263. - The 1832. The Dean of ELY V. CALDECOT. TINDAL C. J. In this case, which was argued before us in the last term, the facts were as follows: Plaintiffs were lords of the manor of Lackenheath, in the and Chapter county of Suffolk; and the premises in respect of which the question arose were copyhold, and holden of that manor. By the will of the Rev. John Barnes these premises were devised to the father of the Defendant as tenant for life, with remainder to the Defendant in fee; and, on the death of Barnes, the Defendant's father was duly admitted as tenant for life, "with remainder as in the said will is mentioned;" and, on that occasion, he paid a full fine of two years' improved value, the fines being, according to the custom of that manor, arbitrary. On the death of his father, the Defendant was admitted as tenant in fee to the same premises, and the Plaintiffs claimed another full fine on that occasion. Upon the trial, it appeared that all the evidence applicable to this subject was of a documentary nature, and it was, therefore, agreed by both parties to state that evidence for the opinion of this Court in the form of a special case, referring it to the Court to find such conclusions of fact as they might think the jury, properly directed, ought to have found at the trial, and thereupon to give such judgment as in point of law ought to follow. We have duly considered the above facts submitted to us, and have arrived at the conclusion that the verdict should be entered for the Defendant. It is conceded, on the part of the Plaintiffs, that unless they are entitled to claim a full fine on the admittance of the Defendant, they cannot succeed. The question, therefore, is, whether they have affirmatively established that point. In order to do this, it is necessary that they should shew a special custom for that purpose. That this is the law is clear from several authorities. In Barnes v. Corke it is laid down, on argument by the two 1832. The Dean and Chapter of ELY V. CALDECOT. two Judges in Court, "that no fine was due on the admittance of a remainder-man after admittance and payment of a fine by the tenant for life, unless there be a special custom for it, but that the admittance to the particular estate was an admittance to the remainder; and that which was said in 4 Rep. 22 b. that it shall not be to the prejudice of the lord in respect of his fine,' is to be intended where a fine is due by custom for an admittance of the remainder-man; but, without a special custom, none is due." And for this position various authorities are there cited. Indeed, in referring to 4 Rep. 22 b., it appears to have been so laid down in terms by Lord Coke; for he says that "the admittance of the tenant for life is the admittance of him in remainder to vest the estate in him, but shall not bar the lord of his fine, which he ought to have by the custom." (See also 23 a.) And he puts the tenant in remainder, in such a case, upon the same footing as the heir, who, though he is in by the admittance of his ancestor, may nevertheless be compelled to come in and be admitted, in order that the lord may have his fine, due by the custom of the manor, upon the descent. It should seem, therefore, that Lord Coke himself puts it on the custom; but, in Blackburne v. Graves, it is very distinctly laid down by Lord Hale, who, after stating that he did not see any inconvenience why the admittance of tenant for life or years should not be the admittance of all in remainder, for fines are to be paid notwithstanding by the particular remainders, adds afterwards, "It shall not prejudice the lord; for, if a fine be assessed for the whole estate, there is an end of the business: but if a fine be assessed only for a particular estate, the lord ought to have another." The law, as thus laid down by Lord Hale, appears to us to explain and reconcile all the dicta on this subject, by distinguishing between those where 1832. The Dean where the Judges, in speaking of a fine, must be understood as meaning a full fine; and others where, in using the same expression, they only mean an apportioned and Chapter part of the full fine. It explains also all the instances of admittances, with exception of one, which are to be found in the statement of this case. The first four instances of Malt, Taylor, Newton, and Roper are quite consistent with the idea that, in those cases, the tenants for life on their admittance paid a fine only for their particular estates, and the tenants in remainder another on their subsequent accession to the tenancy and admittance. The same observation applies to the cases of Holmes, Harding, Tunnell and Eagle. On the other hand, in the cases relied on by the Defendant, of Outlaw, Whistler, Spicer, Fuller, Morley, Secker, and Gathercole, where both tenants for life and in remainder are admitted at the same time, and pay their fine, it is not at all improbable that the fines were there assessed for the whole estate, and that there was in those cases, as Lord Hale expresses it, "an end of the business;" for we find in the manor-books no further admittance of the tenants in remainder in those cases. The case of Hanslip is probably inaccurate in some respects. It appears, that although in 1671 John Hanslip, the son, was actually admitted to the remainder in fee at the same time that his mother was admitted for life, yet he was afterwards admitted a second time in 1695, upon her death, and paid a fine. Probably, however, this was really the case of an apportionment of the full fine, in 1671, between the tenant for life and the tenant in remainder; and, the part of the fine due from the tenant in remainder not having been then paid by him, he was, in 1695, called upon to be admitted, in order that his apportioned fine might be paid to the lord. These cases being thus disposed of, there remain only two instances to be considered, that of Payne, in 1807, and Willett, of ELY บ. CALDECOT. 1832. The Dean and Chapter of ELY V. CALDECOT. Willett, in 1821. The former is inapplicable to the present question, for the special custom, if any, which it is calculated to establish, is not the one now relied on by the Plaintiffs; and as to the case of Willett, although it is an instance expressly in point, yet it is much too recent, even if unopposed by other instances, to be the foundation of a claim like the present on the part of the Plaintiffs. But we also think that it is very difficult to reconcile this instance with the case of Fuller, adduced on the behalf of the Defendant. There William Fuller, in 1702, is admitted, on a surrender by Hall, to eighteen acres of fen, to the use of the said W. Fuller and his assigns for life; and, after his death, to the use of Thomas Fuller, his son, in fee. Now Thomas Fuller, the son, does not appear ever to have been admitted or paid any further fine to the lord; for the next admittance to be found on the books is in 1738, being that of Thomas Fuller, the grandson of William Fuller, as heir to his father, Thomas Fuller, who died seised of the premises. It appears, therefore, that Thomas Fuller, the father, was considered as admitted under the original admittance, in 1702; for there is no trace of any other admittance of him, or of any fine subsequently paid by him. Upon the whole, therefore, we are of opinion that, if these different instances had been brought before a jury, and properly commented on by the Judge at Nisi Prius, they ought by their verdict to have found, that no special custom for taking one full fine on the admittance of tenant for life, and another full fine on the admittance of the tenant in remainder, was affirmatively proved on the part of the Plaintiffs. And as the law appears to be clear (and, indeed, was admitted so to be on the argument of this case) that, without such special custom, no such fine would be claimable, we are of opinion that the verdict ought to be entered for the Defendant. The present decision of the Court on this |
