BHD78/7

Case for opinion of Charles Howard: - since BH/2/78/3 and the opinion received to it written negotiations had been undertaken with the stewards who had suggested an agreement to appoint a valuer to assess the admission fine and enfranchisement compensation - enfranchisement having been suggested as the best way to avoid distinguishing the copyhold lands; amended agreement [BH/2/78/6] inclosed with amendments by C.S.Benning; - advice needed as to the best course to adopt given that the fine and enfranchisement would cost a considerable sum which the trustees had no funds to meet and bearing in mind that Stevens' only child was still under age; - 4 & 5 Vict. c 35 (1841) - Copyhold Act 1841 - Sect 56 clearly enables trustees with consent of Commissioners to enfranchise - consideration being an agreed sum either to be paid forthwith or in future; sec.62 allows tenant for life to defer payment; - 6 & 7 Vict c.23 (1843) Sectns 1 & 3: parcel of Manor to be given to Lord as consideration for enfranchisement; - 7 & 8 Vict c.55 (1844) Sectn 5: this power is extended to lands not being parcel of the Manor if the same lands can be conveniently held with the Manor; - 15 & 16 Vict c.51 (1852) Sect 1 enables Lord or Tenant to compel enfranchisement; Sec.7 parties may agree that consideration shall be gross sum to be charged on land not exceeding 10 years at 4% or a rent charge; Sec.37 provides for redemption of rent charge; - trustees have to decide whether to agree with Lord's suggestions or leave him to his remedies. If the former they have to decide whether to pay a gross sum, a rent charge or have a conveyance of the lands; - if a gross sum was agreed, provision had to be made for payment, the trustees lacking the necessary money - they had to decide whether the sum should be charged on the land or borrowed, the latter involving the question of whether they had the power to do so (it would be better to borrow as they would not be confined to a ten year period to pay off the loan); - if a rent charge was decided on there was a question as to whether it could be redeemed at any time; - a conveyance would not seem advisable as it would be difficult to agree on the lands to be given up but the trustees could sell a portion of the lands in Totternhoe at a good price and a gross sum be paid down - but the question arose as to whether the trustees had the power to do so; - if the trustees left the Lords to their remedies they would apply to the Inclosure Commissioners to distinguish the copyhold lands though the trustees would bear some of the expense it might be the best course as the fine on the two lives would be unlikely to exceed £200 which could be borrowed on mortgage. However the Lords might compel enfranchisement and proceed to identify the lands in which case they would have to bear expenses of enfranchisement and, probably identification so this made it unlikely that they would do so; - opinion asked on: (i) case before him in 1870 [BH/2/78/3]; proposed agreement [BH/2/78/6]; (iii) will of John James Theophilus Stevens Opinion "I have carefully perused and considered the papers sent herewith and I am of opinion 1. That the Trustees have no powers under the will to borrow money to enfranchise 2. The memorandum of Agreement can safely be executed provided that the alterations *. p.3 & **. p.5 are inserted. See that you get the mines & minerals and enquire whether or not the wife of either Lord is entitled to Dower. If so she must execute a release thereof. 3. Of all the methods of enfranchisement suggested I am clearly of opinion that the best is to make application to the Commissioners under the Act. 4. By the Act (1841) 4, 5 Vic c.35 s.72 "Any tenant whose lands shall be enfranchised gas the right to charge the lands to any person who shall advance the money for enfranchisement by way of mortgage for a term of years" It dies not say that application to the Commissioners is necessary. The Act 21, 22 Vic c.94 s.21 enables the Commissioners to allow charges on lands so that ultimately application must be made to them and, therefore, it seems advisable to do so to me. Generally speaking the tenant for life must pay fines in lives. It follows then, that in application to the Commissioners in enfranchisement the money necessary to pay the enfranchisement and other costs charges & expenses could with their sanction be raised by mortgage for a term of years. 5. It is to [sic] observed that there is no power in the will enabling the trustees to enter into an agreement of this kind, but as it is evidently for the benefit of the estate, no danger would be incurred, but if any is apprehended, recourse could be had to the Act 22, 23 V c.35 s.30 to get the advice of the Court of Chancery. there is no limitation in the will at the death of the heir under 21 * All rights of commonage and the mines & minerals under the sd Copyhold lands ** And the sd 56ac 2r shall be considered to include the whole of the copyhold lands adjacent in contiguous to or incorporated in or mingled with any lands belonging to the sd John James Theophilus Stephens [sic] at the time of his decease or to which he was then entitled to which lands the sd Lords or either of them or any one of them or either of their behalf lay claim in any way or are in anywise entitled". "It is hardly to be gathered from the foregoing opinion which of the following courses Counsel would advise the Trustees to adopt 1. Leave the Lords to take what course they please. 2. Concur in an application to the Commissioners to identify the copyholds under the Inclosure Act simply. 3. Execute the proposed agreement either in its present form or modified so as to obtain enfranchisement by the Commissioners". "Opinion In fully considering the whole of this case, I am clearly of opinion, as far as the interests & safety of the Trustees are concerned, it is better for them to leave the Lords to take action, and do nothing themselves but simply wait until the heir is of age. Any question arising in the meantime can be best dealt with as they occur".

1875

From: 1841 To: 1875

English

item

Howard, Charles,
Stevens, John James Theophilus,
Benning, Charles Stockdale

Eaton Bray Manor, Eaton Bray Farm, case notes, enfranchisement, Copyhold Act 1841, Inclosure, EATON BRAY, TOTTERNHOE