FREEHOLDB

FOR LIFE. Marriage, marriage Rettlement,

devise, or promotion

or office.

If a woman seised of an estate for life or lives, of the value of 408., but under 57., has married after the 7th June, 1832, her husband is entitled to vote for it during her life jure mariti; or by marriage settlement, unless it be settled to her separate use (post, p. 32); or by marriage settlement or devise after ber to a benefice death, without actually occupying the premises. Another form of an estate for life is what the law calls "an estate tail after possibility of issue extinct," where the land has been settled in special tail-i.e., on the issue of a certain couple-one of whom, either the wife or husband, has died without issue surviving. In a case of this description, arising by the death of one of the parties after the 7th June, 1832, should the value of the premises be 408., but under 51. per annum, and the estate not having been originally created by devise or marriage settlement, the husband, if he survive, would not be entitled to vote without being in occupation of the premises. But, if the wife survive, and marry, her second husband would vote jure mariti in her lifetime—even though he did not occupy-as having acquired the estate by marriage.

Estates by the courtesy and in dower are also estates for life; and, arising as they do out of marriage, are within the above proviso: and those entitled in right of their wives may vote without occupation, though the yearly value be no more than 40s. With regard to dower, the second husband is (by the 20 Geo. 3, c. 17, s. 12) entitled to vote in respect thereof," although it has not been assigned or set out by metes and bounds," if such second husband shall be in the actual receipt of the profits of such dower.

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Fellows of a college, who are entitled, quâ fellows, to an annual payment under a will, do not acquire an estate by devise," neither is their appointment a promotion to an office within the 18th section of the 2 Will. 4, c. 45. West v. Robson 27 L. J., C. P. 262; K. & G. 141.

Where lands were conveyed upon trust to divide the rents among "the beadsmen" of D., who were appointed for life, and received 508. a year, but who, neither under the trusts of the deed, nor as beadsmen, were liable to perform, or did perform any duties, it was held that they did not acquire an estate "by promotion to any office" within the above section. Faulkner v Overseers of Boddington, 27 L. J., C. P. 20; K. & G. 132.

But an appointment as parish clerk is, it seems, a promotion to an office within the section. Huntingdon, W. & G. 199 (Rowledge's case).

An appointment of a Wesleyan minister is not (semble) a pro motion to a benefice or office within the 2 Will. 4, c. 45 (ss. 18 & 26). Foster v. Mulhall, 10 Ir. C. L. Rep. 532.

III. The third class of the above division includes persons seised of an estate for life or lives, or of any larger estate, in lands or tenements of any tenure whatever, of the yearly value of 51. at least.

OTHER

TENURES.

Copyholds "of inheritance," therefore, have no advantage over Copy life estates of the like tenure. Both must be of the same value to holds (e). confer the franchise. But a distinction must be taken between an estate in a tenement issuing out of land, and an estate in the land itself. Tithes and rent-charges, for instance, though they issue out of copyhold lands, are nevertheless subjects of freehold tenure, or free tenements" (Blackst. Tracts, p. 116), giving a right to vote within the 8 Henry 6, c. 7. Therefore, a life estate in such a tenement, provided that it was acquired within the conditions of the second or third class above mentioned, gives the holder a right to be registered as a freeholder, though the value be only 40s. a year. So an allotment of common under an Inclosure Act, made to copyholders in respect of their copyholds, is freehold. Revell v. Jodrell, 2 T. R. 424; Townley v. Gibson, ib. 701; Heyw. Co. 63.

The difference between freehold land and land of any other tenure, it is obvious, is still important to be noticed; for though both now confer the franchise, a higher yearly value is required in the latter case than in the former.

The general features of copyhold or base tenure may be shortly described. Copyhold land was originally, and still is in law, part of the demesnes of a manor held at the will of the lord, by grant from him, and admittance as tenant on the rolls of the Manor Court. Sometimes copyholders are called tenants per le verge (f); sometimes customary freeholders, which latter hold by the custom of the manor, but not at the will of the lord; doing services which are base and servile, but certain and expressed by name. These last have been considered freemen, and permitted to vote; Gloucestershire, Heyw. Co. 82; Elliott on Registr. 6; Russell's Reform Act, 23; on the ground, it would seem, that the services they performed were in respect of their tenures, and not in respect of their persons, and were more in the nature of quit-rents; but much doubt was expressed at the time (see Elliott, supra), and still rests on the subject (g). See the cases of Roe v. Vernon,

(e) See 15 & 16 Vict. c. 51; 16 & 17 Vict. c. 57.

(f) In the 4 Ed. 1 we find mention of custumarii tenentes, probably meaning copyholders. In the latter end of Ed. 3 they are called "tenants per roll selonque le volunt de seigneur." In Hen. 4 they are called "tenants per le verge," and in the next reign they are first called "copyholders." 3 Reeves, Hist. Comm. Law, 312; Blackst. Tracts, 121; Fitz. N. B. 12.

(g) The question only arises, of course, in cases where the annual value of the land is as much as 40s. and less than 57.

TENURES.

OTHER 5 East, 83; 1 Blackst. Tracts, 113; 1 Salk. 365; Stevenson v. Hill, Burr. 1278; Doe v. Danvers, 7 East, 321; Burrell v. Dodd, 3 Copyholds. B. & P. 378; Doe v. Huntingdon, 4 East, 289; 1 Ld. Raym. 44; 12 Mod. 138; per Williams, J., in Passingham v. Pitty, infra.

Customary freeholds.

Burgage tenure.

Two of the principal tests would seem to be, whether the interference of the lord is necessary on alienation, as by admittance; see Thompson v. Hardinge, 1 C. B. 940; 14 L. J., C. P. 268, S. C.; and whether the lands be parcel of the manor, and not merely situate within it, and held of it, at a certain rent, fealty, &c. In the latter case it would seem they are, in the former case they are not, freeholds, so as to confer the franchise. The presumption, at all events, as between freeholds and lands of other tenure, is in favour of freeholds, unless something absolutely inconsistent with such tenure be shown to exist; and the onus probandi is on the objector. Busher v. Thompson, 4 C. B. 48; 1 Lutw. 551; 16 L. J., C. P. 57; Passingham v. Pitty, 25 L. J., C. P. 5; 17 C. B. 299; K. & G. 26,

In the last-mentioned casc, P. was scised in fee of lands of the value of 408., which were conveyed to him by lease and release. At a General Court Baron, held in 1838 for the manor in which the premises were situate, P. had acknowledged that he held the same by "free deed, fealty, suit of Court, and the yearly rent of 4d.," and had paid the lord 4d. for a relief. Since this acknowledgment, no rent had ever been paid by, or demanded from P. There were other tenants in the manor who held in the same way as P., and there were also pure copyholders. The former, it was found, conveyed their estates by ordinary assurances, operating under the common law or statute of uses. No special form of deed was required, nor was there any necessity for any license from the lord to aliene, nor for the enrolment of such assurance on the Court rolls, nor for any surrender on the death or alienation of the tenant. The fact of such death or alienation ought by custom to be presented at the following Court, and the lord had by custom a right to compel the new owner, by distress, to come in and acknowledge free tenure, but there was no evidence that such right had ever been exercised. The Court held that P. had a freehold.

In Busher v. Thompson, (which was a case of burgage tenure) the circumstances were very similar: no fine was paid on death or alienation, no surrender or admittance required: some little difference existed between the operation of such conveyances at common law, and in the descent of the tenements; which, however, were devisable in the same way as ordinary freeholds. They were held subject to the payment of fixed annual rents, some of which were payable to the lord, and some to private individuals who had an undoubted right to enforce payment by

entry and distress. There were also pure copyholders within the manor. The Court held that nothing had been shown to rebut the ordinary presumption of a freehold tenure arising from possession.

OTHER TENURES.

ancient

demesne.

Tenants in ancient demesne (a term applied to those manors Tenants in which were actually in the hands of the Crown in the reign of Edward the Confessor, and at the Conquest, and so appear in Domesday Book; Crowther v. Oldfield, 1 Salk. 364), are said to be of three sorts; (1) Charter tenants, who are seised as of freehold (h): (2) Tenants by Copy of Court roll, or customary tenants; (3) Bond tenants. To the former description alone can the term freehold be applied. Roe v. Vernon, 5 East, 75; Fitz. N. B. 23; Heyw. Co. 84.

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It seems now to be settled that customary tenant-right" "Tenant right" estates (i) are not frechold, but that they in effect fall within estates. the same category as copyholds. Doe v. Huntingdon, 4 East, 288; Stevenson v. Hill, Burr. 1278; Burrell v. Dodd, 3 B. & P. 378.

In the manor of S. there are, besides freeholders, tenures of the following nature. The Court of the manor is held twice a year. The steward of the manor presides, with a jury of freeholders or tenants. An application for a tenement, either as purchaser, devisec, &c., attends, and applies to be admitted, which the steward, after consulting the jury, grants or refuses, either on moral or legal grounds. The name of the applicant is then inserted on the roll of the manor in place of the outgoing tenant. The applicant pays a fee to the steward, and takes an oath of fealty, but pays no fine to the lord. The applicant does not hold by copy of Court roll. The rent paid for the tenement is nominal and never varies, and is payable by custom twice a year. No action of ejectment has ever been brought by the lord. All repairs are done by the tenant, who is rated to the poor as owner of his house. In selling or pledging the tenement no deeds or documents of any kind are used. If a tenant sells, he usually does so by auction, with the permission of the lord of the manor, which is sometimes granted on condition that part of the purchase-money should be applied to discharge the arrears of rent, if any. It was held that such a tenant was entitled to vote,

(h) If a man has a freehold in ancient demesne, he may elect; and Lord Coke says that the freeholders in ancient demesne were suitors at the County Court.

(1) Fortescue says, p. 41, that such tenure is only found in the border counties of Cumberland, Westmoreland, and Northumberland; and see per Ellenborough, C. J., in Doe v. Huntington, 4 East, 288.

OTHER TENURES,

FREEHOLD

INTEREST (k).

as being seised of a permanent estate in land of other tenure than freehold. Garbutt v. Trevor, 33 L. J., C. P. 73; H. & P. 69.

Thus far we have dealt principally with the tenure of the land or tenement in which the qualifying estate consists. It will now be necessary to consider more particularly the nature of the interest in such land, &c., which the holder must possess to entitle him to the franchise. That must be, in all the classes above enumerated, of that uncertain or undetermined duration which the law, using the term in a different sense from that before applied to the nature of the land, called freehold; that is to say, an interest extending, or which may extend, during the life of the holder himself, or of some other person, and excluding any fixed term of years, however long. Where the language of the instrument creating the estate does not fix any such term certain for its duration, or render it determinable upon any other circumstances than the will of the holder, the estate is considered to be one of freehold interest. A. was lessee for lives from the lord, of part of the waste of a manor. At the courts-leet and baron the custom had been for burgesses to be presented by the mayor, &c., usually with the addition, " he to agree with the lord for the rent." The person so presented always took possession, paying the agreed rent. No declaration of the holdings was specified in the presentments, but upon the death of the person presented his personal representatives continued to occupy and pay rent without further reference to the Court. Held, that A. had a sufficient freehold interest to entitle him to be registered as a voter. Phillips v. Salmon, L. R. 3, C. P. D. 97; 2 H. & C. 339; 47 L. J., C. P. D. 53.

Where the trustees of a hospital had power under their deed of creation, as often as they thought fit, to remove the inmates, it was held that the latter had no estate sufficient to confer votes. Davis v. Waddington, 1 Lutw. 159; 7 M. & G. 37; 14 L. R., C. P 45. And so where the members of a hospital, who were to be "poor indigent people, &c., and such as should be judged fit objects of charity," were to be accommodated with chambers, but it did not appear that they might not be removed at the will of the governors from one set of chambers to another, and other provisions in the constitution of the hospital were of a manifestly eleemosynary character (1), it was held that the members had no sufficient freehold to entitle them to vote.

(k) See an elaborate judgment on this subject by Mr. Serjeant Manning in a Registration case, and the case cited by him. Jurist, 459.

2

() As to this, see observations of Erle, C. J., in Roberts v.