Copy-hold-estate without there was some express verbal Denial of it which there was not in this Case A Copy-holder seised by force of several M. 37 Eliz. B. R. Tavernor and Lord Cromwel's Case Cro. 1. part Copies of Black-acre by the Rent of 4d White-acre by the Rent of 4d and Green-acre by the Rent of 6d denied the Rent of Black-acre In that case it was holden to be a Forfeiture of that Acre but no Forfeiture of the other two Acres because although they were all in one hand yet because they were holden by several Rents the Forfeiture of the one Acre cannot be the Forfeiture of the other two Acres No Fine is either due or payable to the Lord but either upon a Discent or Vid. Coke 4. part 28. in Sands Case upon an Admittance But if such a Copy-holder upon his Admittance shall make an absolute Refusal to pay the Fine to the Lord the same is a Forfeiture of his Copy-hold and of his Estate But there such a Fine must be reasonable For if the Fine assessed by the Lord be an unreasonable Fine of which the Judges shall determine a Refusal or Denial of the Copy-holder to pay the same shall be no Forfeiture of his Estate or Copy-hold Note It was Resolved by the Justices M. 43 Eliz. Dalton and Hamond's Case Moorâ— 622. That if the Lord demandeth an unreasonable Fine of his Copy-holder and he refuseth to pay it it is no Forfeiture otherwise where it is a reasonable Fine If a Fine be certain the Tenant is to bring it with him to the Court and to pay it before Admittance and if he be not ready to pay it it is a Forfeiture and so it was adjudged But what shall be a reasonable Fine or an unreasonable Fine ought to be determined per arbitrium boni viri and the Court and Justices of it shall be Judges of the Reasonablenesse of the same if it be pleaded that the Fine demanded by the Lord or the Distress for it be unreasonable or excessive A Copy-holder seised of Copy-hold-lands M. 6 Jac. in C. B. Willowes and Willowes Case Coke Select Cases of the yearly value of 53s 4d per annum and no more surrendred them into the hands of the Lord of the Manor to the Use of J S and his Heirs The Custome of the Manor was That upon the Admission of any person a reasonable Fine shall be assessed by the Lord or his Steward to be paid The Steward at the Court holden for the said Manor assessed a Fine of 5l 6s 8d the value of the Lands for 2 years to be paid by J S for a Fine which Fine being requested of him by the Lord to pay he refused to pay the same whereupon the Lord entred upon the Lands for a Forfeiture In which Case these Points were Resolved 1. That if the Fine assessed had been reasonable yet a certain time was to be set and a certain place where it should be paid for it shall not be intended that the Tenant hath sufficient Money about him to pay a Fine which is uncertain to be assessed 2. That the Fine assessed by the Steward was an unreasonable Fine and 3. That the Refusal was no Forfeiture If the Fine of a Copy-holder be assessed H. 13 Jac. C. B. Denny and Lemon's Case Hob. 135. Co. 11. part Godfrie's Case acc by the Lord or his Steward be the Fine reasonable or unreasonable the Lord must demand the Fine of the Copy-holder before he can enter upon the Copy-hold for not payment thereof and the Reasonablenesse or Unreasonablenesse thereof shall be adjudged by the Court. Lands being Customary Lands and P. 30 Eliz. B. R. Aumory and Eves Case Leon. 1 part 100. by the Custome discendable to the younger Son the Father died the younger Son being of the age of 2 years Thirty years incurred after the death of the Father and no Court had been holden for the Lord of the Manor But in the interim the younger Son had made a Lease of the Lands to a Stranger and after at the next Court holden for the Manor he came into Court and prayed to be admitted but the Steward refused to admit him It was holden in this Case That the Lease made by him was good and that there was no negligence in him to be admitted to the Copy-hold-estate for that it was holden in this Case That if a Copy-holder dieth his Heir within age he is not bound to come at any Court during his Nonage to pray Admittance or to tender his Fine for the same and if the death of the Ancestor be not presented nor Proclamations made that the Heir come in to take up the Land and pay his Fine the Heir shall not forfeit his Land for such neglect although he be of full age If the Homagers in a Court-Baron 4 Eliz. Dyer 211. being Copy-holders do refuse to make their Presentments it is a Forfeiture of their Copy-holds and so it was Resolved to be by both the Chief Justices in the Star-Chamber in the Earl of Arundel's Case A Copy-holder came not to the Lord's H. 13 Jac. B. R. Belfield and Adams Case Bulstr 3. part 81. Court of the Manor to doe his Suit and Service by the space of 3 years together The Question was if it was a sufficient cause of Forfeiture of his Copy-hold It was said by the Court That it was no cause of Forfeiture if a Warning be not given by the Lord of the time of his Court to be holden and notice thereof given to the Copy-holder himself and the withdrawing of his Suit by a Copy-holder is onely fineable but if he doth deny to doe his Suit and Servâ—â—e then it is a Forefeiture of his Copy-hold and so was it adjudged M. 14 Jac. in B. R. in Hammond and Winibank's Case Summons was given at the Church-door H. 36 Eliz. in Co. B. Godb. 142. for a Copy-holder to appear at the Lord's Court and doe his Suit and Service upon which Summons he did not Vid. M. 30 Eliz. C. B. Sir John Bruanche's Case Leon. 1 part 104. Where general Warning of a Copy-holder to appear at the Lord's Court given within the Parish shall be sufficient where not appear The Doubt was if it was a cause of Forfeiture of his Copy-hold It was the opinion of the whole Court That it was no cause of Forfeiture of his Copy-hold because that it was not shewed that it was the Custome to make such Summons and the Court said That it were hard to make it a Forfeiture because perhaps the Copy-holder had not Notice of it and they held that in such case Notice must be given to the person and his Refusall must be a wilfull Refusall The Custome of a Manor was That if H. 25 Eliz. in B. R. Borneford and Sir John Packington's Case Leon. 1. part 1. a Copy-holder died seised his Wife should hold his Lands as her Free-Bench and be admitted Tenant
viz. Ad hanc Curiam venit A de B sursumreddidit in manus Domini c. unum Messuaglum c. ad usum C de D Haeredum suorum vel Haeredum de corpore suo exeunt Habendum sibi Haeredibus de corpore suo exeunt c. By which it appeareth to be the opinion of Mr. Littleton that an Estate may and might be of Copy-hold-lands And herewith agreeth the opinion of Mr. Plowden in his Commentaries in Morgan and Manxell's Case But note that the opinion of Mr. Littleton is That there must be a Custome of the Manor to enable such Estates of Copy-hold-lands It is said in Coke 3. part in Heydon's Case That where an Act of Parliament doth alter the Service Tenure or Interest of the Estate either in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenants there such an Act of Parliament doth not extend to Copy-holds And therefore the Statute of Westm 2. de Donis because it extendeth to the Alteration of the Service and Tenure of the Land and is prejudicial to the Lord of the Manor doth not extend to Copy-holds But in that Case it is agreed That by a special Custome Lands might be entailed for that it might be that upon the creation of the Manors Lands were given by Lords of Manors to hold by their Tenants by particular Services and for particular Uses viz. to some to them and their Heirs in Fee-simple to some others to hold to them and the Heirs of their bodies begotten and to some others for particular Estates as for life c. and such Estates having continued in their Issues time out of mind Custome hath now enabled such Estates to be of Copy-holds in tail and although they have and enjoy such their Estates be it either Fee-simple or Fee-tail yet it is but secundùm Consuetudinem Manerii and therefore and for these Reasons and causes although that Copy-hold be not or could not be entailed within the general words of the Statute de Donis c. yet by Custome time out of mind used they say that Copy-holds may be entailed 36 Eliz. in the King's Bench it was Adjudged That where the Custome of the Manor was that Lands might be granted unto any in Fee-simple in such case a Grant of Lands unto a man and the Heirs of his bodie was within the Custome For a Custome which extendeth to the greater will extend to the lesser Estate Tenant in tail of a Copy-hold surrendred M. 15 Jac. Lee and Brown's Case Poph. 128. the same into the hands of the Lord to the Use of J S c. In that Case 2 Questions did arise 1. If Copy-holds were within the Statute de Donis c. 2. Whether the Tail might be cut off by a Surrender The Court doubted of the first Point but the better opinion seemed to be That the Statute co-operating with the Custome they might be entailed A Copy-holder had Issue 3 Sons A H. 31 Eliz. B. R. Bullein and Graunâ—'s Case Leon. 1. part 174. B and C and surrendred his Copy-hold-lands to the Use of his last Will and thereby declared the same to be to the Use of his Wife for life the Remainder to B his second Son in tail and afterwards to A in Fee It was a Question in this Case if B had a Fee-simple conditional in the Lands or an Estate-tail For if a conditional Fee then a Remainder over of it could not be limited It was the opinion of Wray Chief Justice That it was an Estate-tail in B and not a Fee conditional and that Customary Lands might be granted in tail A Surrender of Copy-hold-lands was H. 34 Eliz. B. R. rot 29â—â— Stanton and Barney's Case made within the Manor of Stevenson to the Use of J S and the Heirs of his body and after Issue he surrendred the Lands unto another It was agreed by all the Justices That it was a Fee-simple conditional at the Common Law and after Issue that he might alien the Lands A Copy-holder in Fee of the Manor M. 36 Eliz. B. R. Gravenor and Brook's Case Poph. 34. of Fairchilds and Preachers 3 H. 8. surrendred his Copy-hold-lands to the Use of his eldest Daughter for life the Remainder to the eldest Son of the said Daughter and the Heirs-males of his body the Remainder to the right Heirs of A the Copy-holder in Fee In this Case it was said That an Estate in Tail could not be of Copy-hold-lands It was the opinion of Fenner and Popham That by Equity of the Statute de Donis an Estate-tail might be of Copy-hold-lands though not otherwise Now on the other side That Copy-hold-lands cannot be entailed nor are within the Statute de Donis c. see these Cases and Resolutions following H. 35 Eliz. in Co. B. it was Resolved by all the Justices that Copy-holds were H. 35 Eliz. in Co. B. Pitts and Huckley's Case not within the Statute of Westm 2. de Donis For if they were within that Statute then the Lord should not enter nor take advantage of the Forfeiture of the Copy-hold for Felony the contrary of which was Resolved in Borneford and Sir John Packington's Case but the Donor and the Services should be done to the Donor and not to the Lord of the Manor which is against the nature of a Copy-hold-Tenure The Case was That a Copy-holder Tr. 18 Jac. in Co. B. Royden and Moulster's Case Cro. 3. part 32 33. Godb. 367. acc surrendred to the Use of one in Tail there being no Custome to warrant such Surrender In this Case the Question was whether a Copy-hold might be entailed within the Statute de Donis It was holden by all the Justices That it could not be entailed within the Statute and that for divers causes 1. Because it is not within the Letter of the Statute which speaks onely de Tenement is per Chartam datis and Copy-holds cannot pass by Deed but by Surrender onely as is agreed on all sides 2. Because they are not within the meaning of the Statute because that before 7 E. 4. 19. they were not of any account in Law being onely Estates at will of the Lord secundùm Consuetudinem Manerii 3. Because the said Statute de Donis provides onely against those who might make Disinherison by Fine or Recovery which a Copy-holder there could not doe or make because that then upon such Grants in Tail the Reversion should be left in themselves which could not be being to the prejudice of the Lord of the Manor And also 4. because it would be very mischievous because then there should be no means to dock or cut off such Entails common Recoveries and Fines not being then in use unless there were a special Custome to that purpose Having thus declared and made mention of the several Cases and Resolutions in this much-controverted Point Whether Copy-hold may be entailed within the said Statute de Donis
lately adjudged in the Court of Common Pleas both for the Point of the Custome that it was a good Custome and Admittance A Copy-holder dwelling in a Town M. 3 Eliz. B. R. Sir John Braunche's Case Leon. 1. part 104. long distant from the Manor having Notice of the Court-day when it was to be holden upon Summons appeared not himself but appointed his Son his Attorney to appear and doe the Services for him for his Copy-hold-lands In this Case it was holden by the Court That such a person so appointed might essoign the Copy-holder but not doe the Services for him for that none could doe the same but the Tenant himself SECT XIX What Customes within Copy-hold-Manors shall be said to be good and reasonable Customes and what not CUstome is the very Soul and life of Coke 4. part 21. Copy-hold-estates for without Custome or if they break their Customes they are at the Lord's will for they hold their Lands ad voluntatem Domini although as before is said it be secundùm Consuetudinem Manerii c. But then the Customes must be reasonable and not unreasonable Customes If the Lord doth challenge a Custome Coke 1. part Institut 59. within his Manor to have a Fine of every of his Copy-holders of the said Manor at the Alteration or Change of the Lord of the Manor be it by Alienation Demise Death or otherwise this is an unreasonable Custome for by this means his Copy-holders may be oppressed by the Lords by the payment of a multitude of Fines A Custome within a Manor That every Coke 5. part Pennieman's Case Alienation of Lands within the Manor shall be presented at the next Court holden for the said Manor upon pain that such Alienation shall be void is a good and reasonable Custome for it is but reasonable that the Lord should know who is his Tenant A Copy-holder alledged a Custome Pasch 6 Jac. in Co. B. Glascock's Case Vid. God Godb. acc within a Manor in Essex to be That all the Tenants within the said Manor had used to cut down Trees to repair their Copy-hold and Free-hold Tenements within the said Manor and also to sell their Trees at their pleasures It was doubted if it was a good Custome but the better opinion of the Court seemed to be that the Custome was good The Custome of a Manor in Worcester-shire M. 6 Jac. in Co. B. Paginton and Hunt's Case was That if any Copy-holder committed Felony and that the same be presented by 12 Homagers in the Lord's Court the Tenant should forfeit his Copy-hold It was presented that J S a Tenant of the said Manor had committed Felony at such a time but that at the Assizes next after he was acquitted of the same After which the Lord seized the Lands In this Case it was adjudged That the Custome was not good because in judgment of Law before Conviction or Attainder he was not a Felon But whether in that Case the Verdict and finding of the Jurors upon the Bill of Indictment agreeing with the finding of the Homagers that the party had committed Felony did entitle the Lord to the Copy-hold-lands notwithstanding the Acquitall of the Jury which was afterwards was not Resolved A Copy-holder did alledge the Custome of the Manor to be That the Lord might grant Copies in Remainder with the assent of the Tenants and not otherwise and that Copies otherwise granted in Remainder should be void It was said That this Custome might be good for it might be so agreed and granted by the Lord at the beginning upon the Creation of the Manor and that it seemed to be grounded upon the reason of the Common Law That a Remainder M. 31 Eliz. Co. B. Godb. â—40 should not be without the assent of the particular Tenant and to commence with his Estate and that therefore it was a good Custome Quere the Case for it was not Resolved M. 31 Eliz. in Co. B. The Custome of a Manor was That those who claimed Copy-holds by Discent ought to come at the first second or third Court upon Proclamations made to take up their Estates or else they should H. 7 Jac. in Co. B. Copley's Case be forfeited A Tenant of the Manor having Issue inheritable by the Custome beyond the Sea died The Proclamations all passed and the Heir did not return in two years but upon his return he prayed to be admitted to the Copy-hold and profered the Lord his Fine in Court which the Lord refused to accept of and to admit the Heir but seized the Land as forfeited It was adjudged in this Case That it was no cause of Forfeiture because the Heir was beyond the Seas at the time of the Proclamations and the Lord was at no prejudice for that for any thing appeared in the Case the Lord had taken all the Profits of the Land in the mean time The Custome of a Manor was That M. 7 Jac. in Co. B. by Dodderidge every Copy-holder at his death should pay to the Lord his best Beast for a Heriot A Feme-sole within the Manor Tenant for life took a Husband and died It was the opinion of Dodderidge in this Case That although the Custome was good yet as this Case was no Heriot should be paid because the Wife had not any Goods by Cattell to pay the same A Custome of a Manor was said to be M. 42 Eliz. B. R. Cro. 1. part Parker and Combleford's Case That the Lord had used after the death of every one dying within his Manor to have the best Beast of such a person for a Heriot and to seize and distrain for it It was adjudged a void Custome Vid. 3 4 Eliz. in Co. B. Wilson and Wise's Case Moore acc not good to bind a Stranger but such a Custome to extend to and bind the Tenants of the Manor might be good The Custome of a Manor was Quòd Pasc 24 Eliz Moore Vide Skipwith's Case Tr. 33 Eliz. in Co. B. Godb. 143. where the contrary seemeth to be adjudged quilibet tenens per Copiam poterit dimittere terras suas for life in Fee or otherwise and that a Woman Cooperta viro poterit devisare her Copy-hold-lands to any other or to her Husband by the assent of the Husband In this Case the Court held That the Custome was not unreasonable but because it was poterit devisare where it ought to have been alledged usi sunt devisare for that cause it was said it was not good Note by the whole Court That if the Pasc 8 Jac. in Co. B. Rapley and Chaffyn's Case acc Custome of a Manor is alledged to be That the eldest Daughter shall solely inherit the Land such a Custome may be good But then such Custome shall be taken strictly viz. That the eldest Sister shall not inherit the Land by force of the said Custome It was Resolved by the Justices That Vid. Moore 's Rep. 3