mouth, &c. as next admitting lord, upon the death of the Duchess of Somerset. The jury, by the direction of the Court, brought in a verdict for the Duke of Somerset. The cause came on again before the Chancellor, who decreed the tenants to pay their fines, and gave the duke his costs. 28. By the custom of many manors in the north, a fine is due on the death of the last admitting lord, whether he was, at the time of his death, in possession of the manor, or not; and this custom was held good by the House of Lords. 29. Philip Duke of Wharton, became entitled by descent to several manors in Cumberland and Westmorland, in which the custom was, that the tenants should pay a fine upon the change of the lord by death. In the year 1721, the duke sold these manors to Mr. Lowther; and having afterwards withdrawn himself from the kingdom, he died in Spain in the year 1721. Mr. Lowther assessed a general fine upon all the tenants, in consequence of the duke's death, which they refused to pay; he filed his bill in Chaneery to compel the payment of them. Lord Talbot dismissed the bill; but the House, of Lords reversed the decree, and declared that Mr. Lowther became entitled to a general fine on the death of the duke.* Lowther than two can be de 30. With respect to the quantum of the sum which No more may be demanded as a fine, it is probable that when Years Value fines were first introduced, they were at the mere manded. will and discretion of the lords. But the benevolence of some lords established fines certain in particular manors, while they continued uncertain in others. *A custom that a fine is due on every change of the lord by alienation has been held void. For by this means the tenants might be oppressed by a multitude of fines. 1 Inst. 59 b. Hobart v. Hammond, 4 Rep. 27 b. Willowe's 13 Rep. I. Nor does it appear that the courts of law interposed, before the reign of Queen Elizabeth, to moderate the exercise of the lord's right to demand whatever he pleased, where the custom had left the amount of the fine uncertain. 31. It was resolved by the Court of King's Bench in 42 & 43 Eliz. that if the fines of copyholders upon admittance be uncertain, yet the lord cannot demand or exact excessive or unreasonable fines; that if he does, the copyholder may by law refuse to pay them. And it shall be determined by the opinion of the justices, before whom the matter is depending, either upon demurrer, or upon evidence to a jury, upon confession or proof of the yearly value of the land, whether the fine demanded was reasonable or not. For if the lord might assess excessive fines at his pleasure, all the estates of copyholders would be, at the will of the lord, defeated and destroyed. 32. A lord of a manor demanded a fine of 5l. 6s. 8d. for an admittance, upon a surrender to a cottage and an acre of pasture, which was let at a rack rent of 53s. a year. It was resolved, 1st. That although a fine be uncertain and arbitrary, yet it ought to be secundum arbitrium boni viri, that is, reasonable, and not excessive; for excessus in re qualibet, jure reprobatur communi. The common law forbids any unreasonable distress; if an excessive or unreasonable amercement be imposed in any court baron, or other court, which is not of record, the party shall have moderate misericordia. 2d. That if the lord and tenant cannot agree about the fine, and the lord demands more than a reasonable fine; the same shall be decided and adjudged by the Court in which any suit shall be brought on account of the denial of such fine. 3d. That the fine demanded in this case was unreasonable, for this was not a voluntary grant, as where the copyholder has but an estate for life. 33. In trespass the question was, whether the lord Dow v. Golding, might assess two years and a half's value of the land, Cro. Car. according to the rack rent, for a fine; all the Court 196. held he could not, for it was unreasonable; that one year and a half's rent, according to the improved value, was high enough; but that the tenant might refuse to pay two years and a half. Popham v. 34. Lord Keeper Coventry in 5, and again in 12 Middleton Cha. I. held that one year's improved value was a Rep. in Cha. v. Jackson, reasonable fine. Guarding the decree, that one year's 18. value should not be counted a fine certain, but refer- Lancaster, able to the discretion of the Court, whether it was reasonable or not; and that the payment was, then directed, because it was reasonable. 35. It appears to have been settled about the latter end of the reign of Cha. II. that two years improved value is a reasonable fine, in the case of a fine. arbitrary, or more properly arbitrable; and the courts will not permit a lord to take more. Id. 51. 726. n. Doug. R. 6 East, 56. 1 Watk. on Cop. 481.. But a 2d ed. 36. Where a person is admitted to an estate in remainder, the fine is usually one half. tenant for life must pay the whole fine, equally as if he were tenant in fee, in cases where the heirs are finable. For the admission of the tenant in fee is only the admission of an individual; when he dies, his heir must be admitted. 37. In some manors the fine usually taken for two 1 Burr. 207. lives, is as much and half as much as the fine for one life; and the fine for three lives, is as much and half. 217. as much as the fine for two lives. This must be un- 1 Watk. 483. derstood of persons taking successivè, or one after another; for if they take as joint-tenants, or tenants in common, it would be different. Gilb. Ten. 327. Halton v. Stra. 1042. Grant v. Doug. 724. n. Cowper 155. Except on voluntary Grants. Wharton v. King, Anst. Rep. 659. 38. It has been stated, that a person who acquires a copyhold as a special occupant is liable to a fine, as a purchaser. But this fine should be proportioned to the probable duration of the life of the cestui que vie. 39. The fine must be estimated according to the improved yearly value; not according to the rent under a lease. In a modern case it was held, that no deduction was to be made out of the two years full improved value on account of the land tax; but quit rents were always deducted. 40. A bill in Chancery cannot be brought by a copyholder to be relieved against an excessive fine; for that ought to be tried by a jury. But a bill will lie to settle a general fine, to be paid by all the copy. hold tenants of a manor, in order to prevent a multiplicity of suits. 41. Where copyholds are only granted for lives, without any tenant right of renewal, and fall into the lord's hands, there the fine is uncertain; because it being in the option of the lord to renew or not, he may demand whatever sum he pleases. 42. In order therefore to support a custom of renewal of copyholds for lives, the plaintiff must allege such custom to be on payment of a fine certain ; Abergavenny for it will not be sufficient to allege it to be on payment of a reasonable fine, on account of the difficulty of ascertaining the quantum of such fine. If a cus2 Bro. Parl. tom be not found to renew on payment of a fine cer v. Thomas, Id. Ca. 284. tain, the lord may insist on his own terms. And the only proof that can be given of such a custom is, the fact of renewals having taken place, according to some certain standard; that is, upon a fine certain. 43. Where a person holds several copyholds of the same manor, the lord must assess and demand the fines severally; for the tenant may refuse to pay the fine for one, and pay it for the others. Lord Coke says, if two joint-tenants, two tenants in common, or tenant for life and the remainder-man, join in a grant of a copyhold, one fine only is due. But this has been denied, in a modern case, as to tenants in common, who have several estates. 44. Where a fine is certain, the tenant is bound to When paypay it immediately upon his admittance. Otherwise able. where it is uncertain; because as the copyholder cannot tell what the lord will assess, it would be impossible for him to provide the precise sum; therefore he will be allowed a convenient time to pay it. 45. The lord may bring an action of debt against a copyholder for the recovery of his fine. copyholder in fee dies, and his heir waives the But if a pos How re covered. 3 P. Wms. 151. Doug. 727. n. session, the lord cannot bring an action against him ante, § 2. for the fine, but may seise the copyhold. v. Garnett, 46. If a copyholder be admitted, and before pay- Shuttleworth ment of the fine, the lord dies, and the manor de- 3 Mod 140. scends to his son and heir, who also dies; the executor of the son may maintain an action of assumpsit against the copyholder, to recover the fine; whether it be a fine certain, or at the will of the lord. 47. The lord may recover from the copyholder the fine assessed by him on admittance, though there be no entry of the assessment on the court-rolls, but only a demand of such a sum for a fine, after the value of the tenement is found by the homage. 48. By the statute 9 Geo. I. c. 29. reciting that doubts had arisen in the law respecting the power of lords of manors to seize copyhold lands parcel of their manors, on the neglect or refusal of persons to come in and be admitted tenants; it is enacted, that feme coverts and infants may be admitted to copyhold estates by their attorney or guardian; and in default Northwick v. 6 East, 56. |