Volume IX. 1846. DIMES V. GRAND JUNC shews that the lord must lose his manorial rights, acquiring a right to compensation. When waste lands are taken, the lord's consent is required; but for copyhold lands the consent of the owners is sufficient. Regina v. The Eastern Counties Railway Company (a) shews that clauses for compensation are very liberally construed in favour of the landowner. But, supposing that Skidmore did die seised, his heir was entitled to be admitted, and was an infant protected by stat. 11 G. 4. & 1 W. 4. c. 65., under which statute the lord ought to have proceeded, and not by seizure at common law. The devisees under Skidmore's will are not entitled to admittance, as nothing passed under the will but that to which he was beneficially entitled. The testator, by directing the payment of his debts in the first place, and then proceeding to devise his lands, impliedly charges his lands with the payment: he also directs his devisees to apply the rents for the benefit of bis family. These directions are inconsistent with an intention to pass a bare trust estate; Galliers v. Moss (b), Doe dem. Roylance v. Lightfoot (c), Wall v. Bright (d) Roe dem. Reade v. Reade (e), Right dem. Compton v. Compton (g). It is said that this rule does not extend to implied trusts: but what principle can there be for the distinction between these and express trusts? [Maule J. A devisor might be impliedly a trustee without knowing it: he might think himself owner.] Though in the cases cited, of Goodwyn v. Lister (h) and King v. Turner (i), the Court would not summarily compel an infant trustee (a) 2 Q. B. S47. (c) 8 M. & W. 553. (4) 3 P. Wms. 987. (b) 9 B. & C. 267. (i) 2 Sim. 549. 1846. DIMES V. GRAND JUNC by implication to convey, yet this is no authority for the Queen's Bench. construction of a will, where the only questions are the intention and the capacity of the words to effect it. In Lindsell v. Thacker (a) the testator, who devised to his wife for her sole use, was the vendor of a copyhold which he held as trustee, as here; and the estate did not pass by the will. But, if the estate did pass by the will, the devisees have disclaimed, and the legal estate remains in the heir at law; Rex v. Wilson (b). Doe dem. Le Keux v. Harrison (c) shews that nothing vests in a devisee of copyhold till admittance. Then, assuming that the estate either did not pass by the will or has been disclaimed, the heir being an infant, the lord was restrained from seizing the land quousque by stat. 11 G. 4. & 1 W. 4. c. 65. s. 9. From the title and recital of stat. 9 G. 1. c. 29. it appears that the intention of the legislature was to enable the lord immediately to obtain his fine, and to protect the tenant from losing more. than the fine; the remedy given by statute being substituted for all other proceedings. The holding of the lord till the heir claims, without accounting for the profits, is a forfeiture in effect; and the term "forfeiture" is used with that meaning in 1 Watk. Cop. 350. A custom for infants to forfeit absolutely for not coming in, though alluded to in Doe dem. Tarrant v. Hellier (d), is so rare, if it exists at all, that the statute must have been intended to apply to some more general case. As to the cases cited on the other side: in Doe dem. Twining v. Muscott (e) the construction of (a) 12 Sim. 178. There appears to be an erratum in the marginal note, (c) 6 Q. B. 631. TION Canal 1846. DIMES V. GRAND JUNC Volume IX. the statute rests only on a dictum: the case was argued and decided on other points. In North v. Earl of Strafford (a) the statute is not mentioned, and seems to have been overlooked. Clayton v. Cookes (b) contains a dictum adverse to the suggestion that a lord may seize. In Doe dem. Tarrant v. Hellier (c) the point was argued, but not decided. TION Canal But, further, the warrant in this case was to seize absolutely; and the verdict finds that the seizure was under that warrant, by reading it on the land, &c. And, although the jury find that the seizure was only quousque, this will not help, as it appears that the bailiff had no authority for such a seizure. The seizure, then, being absolute, cannot be supported as a seizure quousque: Doe dem. Tarrant v. Hellier (c). Again, the custom of the manor, which must be strictly pursued, is stated to be to make three proclamations at three consecutive general Courts Baron next after the tenant's death: but the verdict does not state that the Courts were next after the tenant's death, or consecutive, or that the second was general. In Doe dem. Bover v. Trueman (d) the Court of King's Bench held that, by the general law of copyhold, the three proclamations ought to be at consecutive courts. 66 Smythies, in reply. As to the last technical objections, the verdict states that the proclamations in this manor were usually" made at the three general Courts Baron next following the tenant's death: but, as that which is usual is not universal, this does not import a binding custom. And, though the case cited (a) 3 P. Wms. 148. (b) 2 Atk. 449. (d) 1 B. § Åd. 736. ↑ 1846. DIMES V. GRAND JUNC TION Canal shews that, without any special custom, the Courts Queen's Bench. must be consecutive, yet the present case differs, in not stating that there were intermediate courts; and the onus of proving that lay on the defendants. For, if no proclamations had been proved, the judgment in ejectment, which in this action for mesne profits would have been conclusive if pleaded, was, when proved, primâ facie sufficient for the plaintiff's case. Even where it has been requisite that the proclamations should be proved, an allegation like the present finding, that they were made at three Courts, without express averment that the Courts were consecutive, has been considered sufficient, as in the special verdict in King v. Dilliston (a), the special case in Doe dem. Tarrant v. Hellier (b), and the rejoinder in Sir R. Lechford's Case (c), where there was a demurrer to the surrejoinder; in none of which cases was the objection raised. Then, as to the objection that the second Court is called simply a "Court Baron," omitting the word "general," the word omitted is superfluous and adds nothing to the meaning, the term "Court Baron importing a general Court (2 Scriv. Cop. 600, note (a) ), unless restrained by the term "special." Moreover, as every Court held with the customary public notice is general, and such notice is here stated, the fact that the Court was general sufficiently appears. Further, if the devisees under Skidmore's will are entitled, the proclamations were dispensed with by the presence of one of them (a) 1 Show. 31. 83. S. C. 1 Salk. 386.; 3 Mod. 221. (b) 3 T. R. 162. (c) 8 Rep. 99 a. The rejoinder alleged that three proclamations were made" according to the custom," which, as pleaded, required proclamation in Court, and "at two other Courts following." 1846. Volume IX. in Court; 1 Scriv. Cop. 286; 1 Watk. Cop. 239; Doe dem. Bover v. Trueman (a): and his not asking to be admitted at that time does not amount to a disclaimer, DIMES V. GRAND JUNC Then, as to the seizure quousque not being authorized by the warrant, which was to seize absolutely, no warrant was necessary; 1 Scriv. Cop. 288. citing Troller v. Blake (b); Milfax v. Baker (c). The decision in Doc dem. Tarrant v. Hellier (d) did not turn on the warrant, but on the subsequent act of the lord proving an intention to seize absolutely; without this, the warrant would not have proved that the seizure was absolute. But the jury here find expressly that the seizure was quousque; and this conclusion of fact cannot be controuled by the absence of evidence to support it, a special verdict not professing to set out evidence. On the construction of stat. 33 G. 3. c. 80. s. 9., the question is, whether the parliamentary conveyance operates as an admittance as well as a surrender. Two forms are given, one for a conveyance to the Company, and the other for a conveyance to individuals; and, the same efficacy being given by the statute to each, an admittance is included in both cases or neither. But it is clear that in the case of an individual there is no provision for any compensation to the lord; and it seems to be conceded that his interest could not have been intended to pass without compensation. The clauses relied on for the defendants, as giving compensation, apply only to physical injuries to the land, for which an action on the case might be brought, not to the conveyance of any estate in the land: and the claim in respect |