Bynner against The Queen
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | Exchequer |
English Reports Citation: 115 E.R. 1373
IN THE EXCHEQUER CHAMBER.
S. C. 15 L. J. Q. B. 414; 10 Jur. 867.
9 q. b. s3s. bynner v. the queen 1373 [823] in the exchequer chamber. (ekhor from the queen's bench.) bynner against the queen. 1846. On scire facias, brought in the Petty Bag Office in Chancery, to repeal letters patent for an invention, if issues of fact are joined there, and the record sent to the Queen's Bench for trial, which is had, and a verdict found for the Crown, the Queen's Bench, though the letters patent remain in Chancery, may give judgment that they be revoked, cancelled, vacated, disallowed, annulled, void and invalid, and be altogether had and held for nothing, and also that the enrolment thereof be cancelled, quashed and annulled, and that they he restored to the Court|of Chancery, there to be cancelled. Semble, that, for execution of the judgment that the enrolment be cancelled, it would be sufficient to send a transcript of the record to the Court of Chancery by certiorari and mittimus, that Court having only a ministerial duty to perform in cancelling the patent after the judgment in B. R. [S. C. 15 L. J. Q. B. 414; 10 Jur. 867.] Writ of error, directed to the Chief Justice of the Queen's Bench, reciting as follows: " Forasmuch as, in the record and proceedings, and also in the giving of that nothing in the statute shall prejudice the right of any lord, &c. of any manor, or of any owner, &c., of any lands through which the canal, &c. shall pass, to the mines and minerals under such lands, and reserves them to such lord, &c. (His Lordship here read scfc. 9, for which see p. 471, note (a), ante, from "all bodies politic" to "Company of Proprietors.") I doubt very much whether that applies to lords of [619] manors. It would rather seem to me to he confined to those persons who have the usufruct of the lands, either as actually using them or as receiving the rents. A tenant in tail, for instance, is entitled to be in possession of the property to pasture it with his own cattle and to cultivate it in the usual way ; or he may be in the receipt of the rents and profits. But the lord of the manor has only a limited interest: he has an interest in the tenure, and aa being entitled to fines, heriots and other services: but he has not an interest.reaehing to the usufruct, unless in case of forfeiture. For tha same reason that the company had to treat with tenants in tail and tenants for life generally, they bad also to treat with persona holding of a manor as such tenants: but I cannot see that the lords of manors are included. The form of conveyance is : I, A.. B., in consideration of so much money paid to me by the company, grant and release to the company, " all my right, title, and interest, to and in the same, to hold to the company," &c. It is merely a simple conveyance to be made by A. B. to the company and their successors for ever. If it bad been intended to operate as a compulsory enfranchisement, it must be supposed that some addition would have been made. Then in sect. 25 there is a provision that, on payment or tender of the money either agreed on between the parties, or determined and adjusted by the commissioners, or assessed by a jury, it shall be lawful for the company to enter upon the lands, &c.; and thereupon such lands, &c., " and the fee simple and inheritance thereof, together witb the yearly profits thereof, and all tha estate, use, trust, and interest, of any person or persons therein, shall from henceforth be vested in and become the sole property of the said company." Now in copyhold lands a man may have the fee simple in point of property but not of tenure. By livery of seisin to himself and his heirs the copyholder is as much seised in fee as a tenant in common socage; but he has not the tenure. And it appears that, under this 25th section, either a whole fee in common socage may be conveyed, or the fee simple of a copyholder may pass leaving the lord of the manor exactly as be was before. Sect. 30 strengthens this conclusion; for it says that the commissioners shall have power to settle what shares and proportions of the purchase money or compensation for damages " shall be allowed to any tenant, or other person or persons, having a particular estate, term, or interest in the premises, for his, her, or their respective interest therein : " but then coma these words: " And with dua regtrd to the rights and interests of the lord," &c. of any manor whereof the lands are holden. Here the interest of the lord is treated as an entirely separate matter: and there appears no intention to authorize a compulsory enfranchisement. The Act 41 G-. 3 (U. K.), c. Ixxi., s. 7, expressly enacts that, if the company want ftny copyhold estate in future, they are to proceed in a particular way; and provision is 1374 BYNNKR V. THE QUKEN BQ.B. B2S. judgment, upon a certain writ of scire facias issued out of our High Court of Chancery for the purpose of repealing certain letters patent heretofore granted under the Great Seal of the United Kingdom of Great Britain and Ireland to one Jeremiah Bynner for an invention of certain improvements in lamps, which record was in our Court made for enfranchisement if desired by the lord, and for securing his fines and services, or compensation for them. I think that that statute has made, as it were, a Parliamentary declaration [520] of the meaning of stat. 33 G. 3, c. 80, as to the tenure of the lands, and has shewn that, under that Act, the lord of a manor was not considered as being bound by the private agreement entered into by the tenant: and I think it would have been very hard that he should be bound by such an agreement, made when he might know nothing about it; though it is true that the statute was public, and the lord might have knowledge that the land was taken. It appears to me that the 9th section provides only for the interest which parties have in the land itself, and does not apply to lords of manors at all; and therefore that the plaintiff has made out his case. Patteson J. This case will turn upon the construction of stat. 33 G. 3, c. 80, because, though some sections of the Act of 41 G. 3, may throw light upon the ease, that Act is confined to lands thereafter to be purchased. And the question seems to bo, whether the conveyance by the copyhold tenant under the authority of the Act is to be taken aft a conveyance not only by himself but by the lord. If it is to be deemed a conveyance as for himself and the lord, of course the lord conveys his interest; but the lessor of the, plaintiff contends that it is only a statutable conveyance of the copyholder's interest, so as to bind him and all persona claiming under him, but, beyond this, to give the company only an equitable right. The Act, it must be recollected, is an Act of Parliament obtained by a company, giving them large powers of taking land, subject to certain limitations, and to conditions as to payment. If, in such an Act, there are any mistakes or omissions in consequence of which they have not the benefit they intended to have, or if it is not clearly pointed out how the different objects are to be effected, it is the fault of those who procured the Act. The important part seems to be the 9th section: and, looking through it attentively, I do not find any words which apply to a copyhold tenant so as to make him the agent of the lord. The words are : " It shall be lawful for all bodies politic, corporate, or collegiate, corporations aggregate or sole, tenants for life or in tail, husbands, guardians, trustees, and feoffees in trust, committees, executors, and administrators, and all other trustees or persons whomsoever : " there is not a word there which cati reach this case except " or persons whomsoever." It is made lawful for " all persons whomsoever" to contract nd convey, " not only for and on behalf of themselves their heirs," &o., "but also for and on behalf of their cestui que trusts. The copyholder can never be said to be a trustee for the lord. The clause goes on : "And for every other person or persons whomsoever, who is, are, or shall be seised, possessed of, or interested in any lands, grounds, and hereditaments which shall be so set out and ascertained for the purposes aforesaid." The copyholder is a person seised of the lands set out for the purposes aforesaid ; but in this part of the clause nothing is said of any other person ; the power is for the person himself: so that I can find no [621] words in this clause which at all point to a copyhold tenant being the agent for the lord in any contract or agreement he can enter into. The words of the statutory form of conveyance do not seem to point at anything of that kind. (His Lordship here read the form, as set out, ante, p. 472, note (a), laying stress upon the words "my right" and "for ever.") The language might raise some difficulty on the point whether such a conveyance would pass the estate of a remainder-man ; but it is not necessary to determine that question. Now, if this section does not make the copyholder agent to the lord, it is difficult to say that any other clause of the Act can have that effect. Sect. 25 refers to oases where there is payment or legal tender of a sum agreed on, determined or assessed, and where there has been no conveyance, as far as I can understand it; for it says that in the specified cases, or if the person entitled to the money cannot be found: or shall refuse to receive it when tendered, it shall be lawful for the company then, upon investiture in the public funds as is specified in this clause, immediately to enter upon the lands, and thereupon such lands, "and the fee simple and inheritance thereof, together with the yearly profits thereof, and all the estate, use, trust, and interest, of any person or persons therein, shall from thenceforth be vested in and become the 9Q. B.B24. BYNNER V. THE QUEEN 1375 before us in our Chancery, and...
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