in Case of severance and that after the Lord granted over c. as on change of a Corporation in Lutterell's Case 1 Keeble 652. Davy and Watts The Case was The King was seized of a Manor Common appendant where there were divers Copy-holders for Life and was also seized of 8 Acres of Land in another Manor in which the Copy-holders have used time out of mind c. to have Common and after the King grants the Manor to one and the 8 Acres to another and a Copy-holder puts in his Beasts into the 8 Acres And in Trespass brought against him by the Patentee of the 8 Acres he prescribes That the Lord of the Manor and all those whose Estates he hath in the Manor have used time out of mind c. for them selves and their Copy-holders to have Common in the said Acres of Land And he farther pleads That he was Copy-holder for Life by Grant after the said unity of possession in the King and so demanded Judgment si actio Against which the unity of possession was pleaded The Defendant demurs Per Cur. as this Prescription was pleaded the Common was extinct but by special pleading he might have been helped and save his Common for this was Common appendant 2 Brownl 47. Vide James and Read Tirringhams Case 4 Rep. 38. Custom was alledged Sola separalis pastura That all the customary Tenements Habuerunt habuere consuever separalem pasturam c. it was excepted to this Plea That the Copy-holders have not shewed what Estate they have in their customary Tenements And 2dly It s not alledged that they have solam pasturam for their Beasts Levant and Couchant Per Cur. it s not material for be their Estates what they will in Fee or Life or Years Custom hath annexed this sole feeding as a profit apprender to their Estates and this they claim by the Custom of the Manor and not by Prescription As to the other Exception True it is if one claim only Common appurtenant to his Land he ought to say for his Beasts Levant and Couchant for in such case he claims but part of the Herbage and the residue the Lord is to have and therefore if he put in any Beasts that are not Levant and Couchant he doth a wrong to his Lord and the Lord shall have Trespass But here the Commoners claim all the Herbage and so exclude the Lord totally and so it s no mischief to the Lord 2 Sanders 326 327. Hoskins and Robins Estovers If a Copy-holder for Life had used to have Common in the Waste of the Lord or certain Estovers in his Wood and the Lord alien the Waste and the Wood to a Stranger and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Common and Estovers in the Lands and Woods which were aliened notwithstanding the Severance But after such severance the Copy-holder shall not plead generally Quod infra manerium praed talis habetur consuetudo for after such severance the Waste or Wood is not parcel of the Manor but he may plead That before and until such time of the severance Talis habebatur a toto tempore c. consuetudo c. and then shew the severance as in Murrel's Case where the Lord severs the Freehold and Inheritance from the Copy-hold Co. 8 Rep. Swain's Case Where a Copy-holder prescribes for Estovers in the Soil of another and he saith That all Copy-holders Ejusdem tenementi usi sunt c. where he ought to have said Ejusdem manerij c. This Prescription was adjudged void 21 Ed. 4.36 b. 63. b. Prescription Pro ligno combustibili is good 2 Brownl 330. Trees A Prescription for a Copy-holder to cut Boughs of Trees is well laid by way of a Custom 2 Brownl 329. The manner of Pleading when a Lease is to be answered which is set forth in the Avowry In Replevin B. avowed for Damage feasant and sets forth That the Lady J. was seized of such a Manor whereof the place where c. and leased the same to the Defendant for years c. The Plaintiff saith That long time before King H. 8. was seized of the said Manor and that the place where c. is parcel of the said Manor demised and demisable by Copy c. and that the said King by such an one his Steward demised and granted the said parcel unto the Ancestor of the Plaintiff whose Heir he is by Copy in Fee and upon this there was a Demurrer because by that bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in bar to the Avowry ought to have concluded And so he was seized by the Custom until the Avowant pretextu of the said Term for years entred And so it was adjudged 1 Leon. p. 81. Herring and Badcock In Ejectment the Defendant pleads Ejectment That the Lessor of the Plaintiff was Copy-holder in Fee of that Land parcel of the Manor of H. which is in the Queens possession by reason of a Ward and that the Lessor surrendred to the Use of the Defendant in Fee who was admitted and that afterwards the Lessor entred upon him and expelled him and let to the Plaintiff prout in the Declaration and the Defendant re-entred as he lawfully might Lease as at Common Law and plead Lease of Copy-hold Land Custom or Licence must specially be shewed The Plaintiff dedemurs Per Cur. the Plea is naught for there is no confession and avoydance of the Lease let by the Plaintiff for the Action is brought as of a Lease of Land at Common Law and this proves that the Land was Copy-hold Land and a Copy-holder cannot make a Lease for years unless by Custom or by Licence of the Lord which ought specially to be shewed Cro. El. 728. Kensey and Richardson In Ejectione Firmae brought by the Lessee of a Copy-holder Lessee pleading a Licence how it is sufficient that the Count be general without any mention of the Licence and if the Defendant plead not Guilty then the Plaintiff ought to shew the Licence in Evidence but if the Defendant plead specially then the Plaintiff ought to plead the Licence certainly in his Replication and the time and place when it was made And if the Plaintiff replies That the Copy-holder by Licence first then had of the Lord did demise and did not shew what Estate the Lord had nor the place and time when it was made it s not good Per tot Cur. For the Licence is traversable for if the Copy-holder without Licence make a Lease for years the Lessee which enters by colour of that is a disseisor and a disseisor cannot maintain an Ejectione Firmae and the Defendant cannot plead That the Plaintiff by Licence did not demise for this is a negative pregnant also it ought to appear what Estate the Lord had for he cannot Lease for a longer time than he had in the
a descent of Inheritance at Common Law there the Defendant may plead a Feoffment made by the Ancestor absque hoc that he died seized because he may have an Estate by disseisin after the Feoffment Traverse of the descent and not of the dying seized is not good March p. 21. Anonymus Copy-hold Land was granted by the Lord of a Manor 10 May 3 Car. to the Wife of Tho. Kett and in the Replication the Defendant justifies as Bayliff to Tho. Kett the Plaintiff confesseth the Land is Copy-hold Land but that the Lord granted it 1 Jac. to N. S. in Fee who had two Daughters the Wife of the Plaintiff and the Wife of Tho. Kett and died seized and that the Lands descended to them upon which it was demurred By Berkley the Grant of the whole ought to be traversed Coparceners or confessed and avoided for the first Grant shews that the Defendant was in of all and the descent to the Wife is but for a moity Dyer 171. pl. 8. Per Cur. upon the whole matter disclosed Quaere if a Coparcener cannot distrain upon the Land of another Matter of Form damage fesant and the matter of form in the pleading ought not to be regarded by the Judges upon Statute 23 El. Cap. 5. Judgment was pro Quer. Hutton said The descent which was pleaded makes the second Grant void but by Richardson Though it be avoided yet it is not confessed Hetly p. 114. Port and Yates In Replevin the Defendant avows for damage fesant by reason of a Copy granted to him of the place where c. by the Lord of the Manor Cooper Bishop of Winchester The Plaintiff saith That before Cooper Horn was Bishop by whose death the Temporalties came into the Queens Hands and this Copy-hold during the time that the Temporalties were in the Queens Hands Escheated and the Queen granted it to the Plaintiff in Fee by force whereof he put in his Beasts If there is not confessing and avoiding there must be a Traverse and traverseth the Grant by Cooper Per. Cur. this Traverse is good and ought to be for there is not any confessing and avoiding because he doth not confess the Seisin and grant by Copy but if he had confessed That the Bishop had entred and granted it by Copy Where needs no Travers then there needed not any Traverse So where one justifies by Lease from J. S. the Plaintiff saith That J. S. enfeoffed himself it is not good without a Traverse Cro. El. p. 754. Covert's Case In Ejectment Ancient Demesn pleaded Replication That they are Copy-hold and Traverse The Defendant pleaded that the Lands were ancient Demesn and pleadable by a Writ of Right Close c. The Plaintiff shews That they were Copy-hold Lands and parcel of the Manor and entitles himself by Lease under the Copy-holder and traverseth That they were impleadable by a Writ of Right Close the Traverse is well enough taken Cro. Jac. 559. Pimmock and Helder The Avowant hath Election to Traverse any part of the Plea which goes to the end of the Action or justifies the Action Traverse the consequence In Ejectment the Defendant pleaded That the Lands were ancient Demesn and pleadable by a Writ of Right Close c. the Plaintiff shews they were Copy-hold Lands parcel of the Manor and intitles himself by Lease under the Copy-holder and traverseth that they are impleadable by a Writ of Right Close Demurrer because this Traverse that they were impleadable is but the consequence of ancient Demesn and therefore not traversable but Per Curiam that the Traverse is well enough taken Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom If the Plaintiff in his Rejoynder confesseth a particular Custom he ought to Traverse the general Custom alledged by the Defendant as in Replication the Defendant alledgeth a general Custom Quod quaelibet femina cooperta viro joyning with her Husband in a Surrender of Copy-hold Lands and being privately examined by the Steward that this by the Custom is a good Surrender the Plaintiff replies That there is a Custom in the Manor quod quaelibet c. who is of full Age may Surrender but the Wife who surrendred here was of full Age and doth not traverse the other Custom And Per Curiam it was ill Lit. Rep. 174. Anonymus Presidents and Forms of Pleading as to Copy-hold Estates The Form of Pleading that a Messuage is parcel of a Manor dimissibil dimiss per Copiam 1 Sanders 146. Wade and Batch That the Lands are Copy-hold Lands c. 2 Sanders 321. Pleading of a Surrender made in the Court of the Lord of the Manor to the Use of J. W. in Fee and of the Grant of the Lord to the said J. W. accordingly 1 Sanders 146. Pleading of the Surrender of a Remainder of a Copy-hold Estate to one for Life to another for Life to another in Fee and admission of them accordingly 1 Sanders 147. Pleading the Admittance of two Tenants in the Remainder for Life the Remainder in Fee 1 Sanders 147. Wade and Batch The Form of Pleading Copy-hold in Fee-simple in Tail for term of Life or Years In Fee-simple Hern p. 80. Co. Entr. 10. 647. Estate 3 Br. 463. Hern 227.607 In feod simplici Tail Life or Years Ra. Ent. 627. Co. Ent. 206. U. B. 128 157. Co. Ent. 657 123. Hern 679. Ad terminum vite vel vitarum Hern 653. Ad terminum 2 vitarum successive Hern 72. Ad terminum 1 2 vel 3 vitarum successive Hern 83 123. Simile in possessione Hern 711. Ad terminum vite vel vitarum tam in possessione quam in Reversione Co. Ent. 373 672. Ad terminum 1 vel 2 vitarum in possessione 1 vite in Reversione Hern 724. Ad Terminum 1 vite in possessione 1 vel 2 vitarum in Reversione Hern 254. Ad terminum 1 2 vel 3 vitarum in possessione vel 2 vitarum in reversione unius vite in possessione Coke Ent. p. 184 3 Br. 745. Pleading Surrender Surrender in Cur ad usum in feod Ra. Entr. 627. Co. Entr. 206. 3 Br. 465. Extra Curiam in manus 2 Tenentur ad usum in feod Co. Entr. 575 645. Usi Extra Curiam ad usum W. pur vie Remainder al Baron Feme Heires de Feme Co. Entr. 207. In manus Dom Co. Entr. 575. Per Tenant pur vie de moiety al use des Fitz Hern 255. Per 2 Tenants pur vie al intent de regrant Hern 656. Per Feme Covert secretur examinatur Co. Entr. 576. 3 Br. 465. Per Attorn secundum consuetudinem Manerij Co. Entr. 657. Per literam Attoruatur Co. Entr. 576. Presentment per l' homage de surrender extra Curiam Co. Entr. 206. Simile per tenentur jacen in extremis Co. Ent. 206. Admissio secundum sursum redditionem Co. Entr. 207 575 bis 577 645 657. Admissio heredis super
and Judgment pro Quer for that the Replication doth not confess or avoid nor deny the bar to the Avowry Winch Entur p 997 998 999. Foster and Woodcock Eject Bar que W. seisitus de Manor grants custumar terÌ„es in Reversion al Def. auters pur vies Repl que W. demised ceo Manor al C. R. determinable pur vie del M. ilsÌ„ assigne al M. qui grant Reversion de terÌ„es al H. pur vie Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise c. Surrej ê‘ maintenance de Replic Traverse le disseisin Demur inde Co. Ent. 184. Replev Quod Reg. Eliz. seisita de manerio unde c. concessit terÌ„as custumar R. M. Vxori ejus hered Vxoris qui sursum reddider ad usum Def. Bar quod W. prius seisitus de maner concessit terras al J. de quo descend al P. qut sursum reddidit al A. qui sursum reddidit al M. pur vie qui dimisit quer Repl quod W. ante concession al J. concessit terÌ„as al B. de quo discend al M. qui sursum reddidit Def. travers grant al J. issue inde Co. Ent. 575. Quod J. seisitus de maner unde c. concessit Def. pro vita in Reversion terÌ„as custumar dimissibil pro 2 vitis tam in Possessione quam in Reversione Hern 724. TrnsÌ„ quod C. seisitus de manerio concessit terÌ„as customar in feod al B. de quo descend Def. Repl C. fuit sisitus de manerio unde c. quod discend quer traverse quod terÌ„e sunt custum U. B. 153. TrnsÌ„ Def. justif sub tenentur custum monstroit le Estate de Copyhold durante viduitate Tomps 395. TrnÌ„s novel assignmtur Def. dicit quod pmissa tempore c. parcel custmaria dimissibilia ê‘ cop cuicunque ê‘sone ill capere volent in Talliatur seu pro vita Et quod F. G. pd fuit seisitus ad cur tentur 26 Martij dimisit cuidam W. in feodo qui dimisit Def. pro Anno virtute cujus c. done Colour Repl quod pmissa sunt liberum tenementum quer sic manutenet narÌ„ationem traverse que pmisse fuer parcel manerij de L. Rej. exitus sur traverse Keb. 465 467. In Repl Copyhold in Reversion ê‘ copiam tenentur in possessione advocat captionem pur Damage fesant custom del Manor granter Estates en possession ou reversion Hern 777. CAP. XXXIII Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not Presumptive Evidence Where Copy of a Lease is good Evidence What shall be tryed by the Jury and what by the Court-Rolls Substance found in special Verdict Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be Tryed Venue What shall be a good Evidence to prove the Custom or not THE Custom of a Manor was laid to be That if a Copy-holder hath two Sons and a Wife and dyes and the eldest Son hath Issue and dies in the Life of the Wife that the younger Son shall have the Land the Issue being upon the Custom the Jury found the Custom to be That the younger Son shall have the Land unless the eldest was admitted in his Life and paid the Lords Fine Per Curiam the Verdict is not sufficient to prove the Issue Moor n. 566. In Replevin If the Defendant justifies the taking as Damage fesant The Plaintiff in bar pleads by reason of a Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties were at Issue and it is found that part of the Beasts were Levant and Couchant Part found for the whole and part not this is found for the Defendant for the Issue is upon the whole and the contrary to it is found Trin. 17 Jac. B. Sloper and Allen. The Issue was in Kemp and Carters Case 1 Leon Case 70. p. 55. If the Lord of the Manor granted the Lands in question Per copiam rotulorum curiae Manerij praed secundum consuetud Manerij praed It was given in Evidence That within the said Manor were divers custumary Lands and that the Lord now of late at the Court of the said Manor granted the Land per Copiam Rotulorum curiae where it was never granted by Copy before Per Cur. the Jury are bound to find Dominus non concessit for notwithstanding de facto Dominus concessit per Copiam Rotulorum curiae Non concessit yet non concessit secundum consuetudinem manerij predict for the said Land was not custumary nor had the Custom taken hold of it Several Customs within several limits ought to be specially shewed It was shewed then That within the said Manor some customary Lands are demisable for Life only and some in Fee By Anderson Chief Justice He who will give in Evidence these several Customs ought to shew the several Limits wherein the several Customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for Lives only and the Lands in the other in Fee and he ought not to shew the several Customs promiscue valere through the whole Manor In an Action brought The Defendant alledgeth a Custom of a Copy-hold to be demised in Fee Tayl or for Life and made Title by a demise in Fee to himself The Plaintiff traversed the Custom and the Custom was found to be Substance found to demise in Fee or for Life but not in Tayl Per Cur. the Issue was found for the Defendant because the substance was found for him and the Tayl was but inducement Moor n. 490. Dorley and Wood. Wadsworth's Case before Judge Crawley at York Assises was upon an Intail of a Copy-hold within the Manor of W. and several antient Intails shewed in Evidence in Edward III. time and remainders limited over upon such Intails and Plaints in nature of Formedons brought there for such Remainders and Recoveries thereupon and several Issues after had taken their Admittances as of Fee simple Land as Heirs in Fee and for this cause Purchasers look at the Copies Presumptive Evidence and seeing Fee-simple in Admittances are secure the Estate is so and apply their Assurances accordingly the Jury found for the Plaintiff against this Intail and it shall be presumed the Intail hath been cut off some way when many Admittances have been in Fee simple The Custom of a Manor is Less Estate than the Custom That the Wife shall have it during her Life and on Evidence it appears that she shall have it durante viduitate this Evidence doth not maintain the Custom 4 Rep. 30. If the Parties be at Issue upon the time of the Surrender made or the Court holden The time of the Surrender or of the
of his last Will how the Estate stands in the Surrenderer Copy-holder surrenders to the Use of himself for Life and after to the Use of R. his Son for Life and after to the Use of his last Will. R. dyes the Father afterwards surrenders it to the Use of J. S. in Fee and dyes without making any Will It s a good Surrender for a Copy-holder may surrender parcel of the Estate and the residue shall be in himself and the Fee Simple of the Copy-hold being limited to the Use of his Will remains in the Copy-holder and not in the Lord Cro. El. 441. Co. 4 Rep. 23. Finch and Hockly and that the Fee lyes not in the Lord is Bullen and Grants Case 1 Leon. p. 174. When one surrenders to the Use of his last Will and thereby deviseth Copy-hold Lands to his middle Son and the Heirs of his Body who dyes without Issue and the Lord grants it to the youngest the eldest Son may enter and Admittance is not necessary Copy-hold devised to pay Debis J. S. seized in Fee of Copy-hold Lands devised it to his Wife for Life and that she should sell the Reversion for the payment of his Debts and after in Court did Surrender the Lands to the Use of his Wife for Life according to the Will and Deed she may sell the Land he surrendered and referred to the Will and she surrendred upon Condition to pay 12. l. this was held to be a good Sale according to the Will Cro. El. 68. Bright and Hubbard If there be two Joynt-Tenants By Joynt-Tenants and the one Surrenders into the Hands of two Tenants to the Use of his last Will and makes a Will of the Land and dyes the Surrender is afterwards presented Per Cur. It s a severance of the Joynture and shall bind the Survivor for being presented it shall relate to the first time of the Surrender Cro. Jac. 800. Porter's Case 1 Brownl Rep. 127. Allen and Nash Pleadings Quod tenens custumar in feodo possit devisare in feodo pro termino vitae vel annorum Coke Ent. 124. Surrender upon Condition or Contingency Copy-holder may Surrender to the Use of another on Condition if the Copy-holder pay to the Surrendree c. ad Domum suam Mansionalem c. that then the Surrender shall be void 5 Rep. 114. Wade's Case A Copy-holder may Surrender to the Use of another reserving Rent Condition Re entry for non-payment of Rent with Condition of re-entry for non-payment and for default of payment he may re-enter 4 H. 6.11.21 H. 6.37 A Copy-holder surrenders upon Condition and afterwards by his Deed releaseth the Condition its good without surrender for properly a Right or Condition cannot be given or determined by Surrender but by Release Cro. Jac. 36. Hull and Shardbrook 4 Rep. Kite and Quinton Surrender to the Use of one in Fee upon Condition to pay 100 l. to a Stranger it was a Question if the tender of 100 l. to a Stranger and he refusing the Condition is saved By Beaumont it is saved aliter in Case of an Obligation where he takes upon him to do it Cro. El. p. 361. Paulter's Case K. L. Father of the Defendant Copyholder in Fee surrendred to the Use of the Defendant in Fee upon Condition he should perform the Covenants in such an Indenture the Defendant was admitted and after surrenders the Land to the Use of the Plaintiff in Fee upon Condition if the Defendant paid 10 l. the Surrender to be void The Defendant neither paid the 10 l. nor performed the Covenant in the Indentures The Father enters and dyes seized and it descends to the Defendant Additional Surrenders defeated by Entry and he enters upon whom the Plaintiff enters The Question was if this Entry were lawful and adjudged it was not for by the Entry of the Father both the Surrenders are defeated So the Defendant may confess and avoid what was done to the Plaintiff Judgment pro Defendente Cro. Eliz. 239. Simonds and Lawnd Trin. 33. Eliz. One cannot pass a Copy-hold Estate to begin at a day to come no not upon a Contingency A Copy-holder saith he surrenders his Copy-hold Estate and if his Child which shall be Born dyes before his Age of 21 years that then his Brother shall have it it s not good This Case falls upon a Rule in Law That one cannot pass a Copy-hold Estate to begin from a day to come nor yet upon a Contingency no more than a Free-hold at Common Law 2 Bulstr 274. Simpson and Southern If a Copy-holder surrenders his Copy-hold of Inheritance into the hands of the Lord Use vests presently the Condition to take effect in futuro to the Use of J. S. paying of an 100 l. to his Executors within such a time after his death he to whose Use this Surrender is made takes by force of this presently Per Dodridge 2 Bulst p. 275. idem Case Surrender upon Condition or Contingency Copy-holder may surrender to the Use of another on condition if the Copy-holder pay 250 l. ad domum suam mansionalem c. that then the Surrender shall be void 5 Rep. 114. Wade's Case A Copy-holder may surrender to the Use of another reserving Rent Condition of re-entry for non-payment of Rent with condition of re-entry for non-payment and for default of payment he may re-enter 4 H. 6.11.21 H. 6.37 A Copy-holder surrenders upon condition and afterwards by his Deed releaseth the condition its good without surrender for properly a right or condition cannot be given or determined by Surrender but by Release Cro. Jac. 36. Hull and Sharebrook 4 Rep. Kite and Quinton Surrender to the Use of one in Fee upon condition to pay 100 l. to a Stranger it was a Question if the tender of the 100 l. to the Stranger and he refusing the condition is saved By Beaumont it is saved aliter in Case of an Obligation where he takes upon him to do it Cro. El. p. 361. Poulter's Case The Form of a Surrender of Copy-hold Land upon Condition Vide Conveyancers Light p. 827. Vide infra Presidents Of Surrender before Admittance whether it shall be good or not Purchaser hath nothing before Admittance neither can he Surrender A Surrender to J. S. J. S. Surrenders to a Stranger who is Admitted The Stranger takes nothing for J. S. had no Estate before Admittance and the right and possession still remains in him who surrendred and this shall descend to his Heir But the diversity is an Heir to whom a Copy-hold descends or comes in remainder he may surrender before Admittance because he is in by course of Law for he Custom which makes him Heir to the Estate casts the Possession upon him from his Ancestors But a Stranger to whom the Copy-hold is surrendred had nothing before Admittance because he is a Purchaser and the Copy made to him upon his Admittance is his Evidence by the Custom and before
yet if he that hath the pure right to the Copy-hold Release to the wrong doer before the Lord enters that is good for until the Lord enter he is Tenant in fait 4 Rep. 15. I Brownl 149. in Odingsal and Jackson's Case Quaere Acceptance Copy-holder sold Timber off the Land Lord enters Copy-holder dyes Lord seises a Beast the Heir brought Trespass the Plaintiff justified the seizure for an Harriot Per Cur. in Ejectment this being the Defendants Evidence Justification for Harriot Service or Seisin of Ancestor is an acceptance of Heir as Tenant and purgeth the Forfeiture contra on Acceptance Justication or Avowry for Harriot Custom but now there being an actual Entry in the Life-time of the Ancestor by the Lord for the Forfeiture no acceptance after will purge it 3 Keb. 641. Pascal and Wood. Repairs of waste If a Tenant permit Waste and after repair yet it seems this doth not purge the Forfeiture Lach. 227. But Moor n. 508. is contra If a Copy-holder cut down Trees without a Custom it is a Forfeiture unless it be for Reparation Note The Repairing with Timber though after five years cut and after Action brought is a dispensation of the Forfeiture Affirmance or confirmation by the Lord Feoffment or Lease of the Freehold If a Copy-holder makes a Lease for years which is a Forfeiture at common Law and afterwards the Lord makes a Feoffment or a Lease for years of the Freehold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Lessee of the Copy-holder shall continue his Estate and so is in nature of an affirmance or a confirmation of the Lease Owen p. 63. Pen and Merival So the difference is when the Lord enters or not and also whether the Forfeiture be committed before the Lords feoffment c. or after Whether Forfeiteres in the time of the Ancestors of the Lord shall descend to the Heir Copy-holder doth waste the Lord dyes Where the Heir shall not take advantage of a Forfeiture the waste is presented in the Court and the Lords Heir enters the better Opinion is he cannot enter Per Dodderidge Actions ancestrel shall descend to the Heir but not Forfeitures which is in the Will of the Lord to take advantage or not Palmers Rep. 416. Cornwallis and Hammond 18 Eliz. in Harpers Rep. cited by Lach. p. 227. in Cornwallis's Case The Case was Lord and two Co-partners Copy-holders the one makes a Feoffment and the Lord makes a Lease of the Manor the Lessee shall not take advantage of this Forfeiture because he is not privy to the Title but if the Lessor dyes it was agreed the Heir should take advantage of it Ideo Quaere It s a mischievous Case if the Lord should be suffered to rake up old Forfeitures a long time past and yet on the other side there is no reason that the Lords should be abridged of their Rights And it s adjudged 2 Siderfin p. 8. Chamberlain and Drake's Case That the succeeding Lord shall not take advantage of waste made in the time of the preceeding Lord. Upon Entry for a Forfeiture who shall have the Emblements Upon Entry by the Lord for a Forfeiture he shall have the Emblements then growing as if a Feme Copy-holder durante viduitate sows the Land and before severance takes a Husband the Lord shall have the Emblements for her own act is the cause of the determination of the Estate If such Woman let for years and the Lessee sows the Land and after the Widow takes Husband the Lessee shall not have the Emblements for although his Estate is determined by the act of a Stranger yet as to the first Lessor he shall not be in better case than his Lessor was 5 Rep. Oland's Case Vide Emblements The Lords Remedy for a Forfeiture For Forfeitures presented by the homage the Lord may distrain or seize 1 Keb. 287. Pateson and Danges By Entry the Lord shall have the Emblements CAP. XXIII Of extinguishment of Copy-holds How they are destroyed by the act of the Lord or of the Copy-holder VVhere and how a Right to a Copy-hold shall be Estopped or Extinguished by Acceptance or Release VVhere a Copy-hold shall be suspended and where it may be regranted Where and by what acts a Copy-hold shall grow extinct and destroyed for ever and where not and to what purposes and to what not By the act of the Lord Copy-holder BY the act of the Lord. And here observe two Rules By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed for though the Copy-hold must be parcel of the Manor yet severance made by the Lord shall not destroy the Estate of the Copy-holder Custom has so fixt and established his Estate In all cases where the Copy-hold is gone by the Grant of the Reversion it is not so gone but that the Tenant shall hold his Estate still and subject to Forfeiture as before To Illustrate this I shall cite two or three Cases That the Lords act shall not prejudice the Copy-holders Estate If the Lord makes a Lease for an hundred years the Lands are not so severed from the Manor as that the Copy-hold is extinct and the customary Interest is not determined but the Lord himself hath destroyed the Custom as to the Services for the Services reserved upon the Copy Copy-hold extinct as to Services but remains as to the Customary Estate and the advantage of waste and other Forfeitures are extinct But by Anderson the Rents and Services remain and waste shall be a Forfeiture though such waste cannot be found by an ordinary Presentment and that the Lord shall have the Rents and Services and not the Lessee quod mirum saith the Reporter against his own Lease 2 Leon. 208. Beal and Langley But this point is well setled in Murrel and Smith's Case 4 Rep. 25. though the Reversion of the Copy-hold be granted and so severed from the Manor yet the Copy-holder shall hold his Estate and subject to Forfeiture as before and shall perform the same Services suit of Court excepted as before and the Custom incident to the Land as Burrough English Gavel-kind continue still but Fine upon Alienations and Suit of Court and Admittances are gone The Lord Grants an ancient Copy-hold to S. in Fee and after he grants the Inheritance of that Copy-hold to a Stranger in Fee S. makes his Will and deviseth it to M. in Fee which was surrendred at next Court Per Cur. 1. Copy-hold though severed from the Manor not destroyed by the Lords act By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed being the Lords act 2. The Surrender after the Severance of the said Copy-hold was void and so was the Will for the Lands were not parcel of the Manor at the time of
Copy-holder It hath been a Question when a Copy-holder bargains and sells his Copy-hold to the Lord of a Manor in Lease for years whether the Copyhold Estate was extinguished But in Hutton p. 81. it is agreed that this Copy-hold is not extinguished but that the Lord who is Lessee for years is Dominus pro tempore and may grant it by Copy de novo The Lord of a Manor demised Copy-hold Lands to three Sisters Habend to them for their Lives successive the eldest Sister married one C. after which the Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after making the said Indenture but four days after the Lease made she agreed to it in pais and then married a Husband Agreement to an Indenture by one in Remainder for Life and they claim the Land The point is if by Agreement of the second Sister her Right to the Copy-hold were extinct The Interest of the eldest Sister is gone by her acceptance of the Estate by Indenture now if the second Sister may come and claim her customary Interest Per Cur. it s no extinguishment in the second Sister and yet Judgment was against her for Per Gaudy none can take advantage of the eldest Sister's Estate being determined the Lord against his Lease cannot enter or claim and the second Sister cannot enter during the Life of the eldest Sister for her Remainder takes effect in possession after the death of her said Sister 1 Leon. p. 73. Curtis and Cottell's Case 28 Eliz. Trin. B. R. By acceptance of a new Estate of Free-hold Baron and Feme Copy-holders to them and their Heirs the Baron in consideration of mony paid by him to the Lord obtaineth an Estate of the Freehold to him and his Wife and to the Heirs of their Bodies Baron dieth having Issue the Feme enters and suffers a Recovery and his Heir enters Per Statute 11 H. 7. Per Cur. the Entry is lawful for the Copy-hold by the Acceptance of the new Estate was extinguished Cro. El. 24. Stockbridge's Case Where and how Right to a Copy-hold shall be Extinguished by Release A man makes a Surrender of his Copy-hold Land to J. S. which is not good and after J. S. is admitted he which made the Surrender releaseth to him being in possession and after enters upon him The Question was if his Entry be congeable and if by the Release by Deed the customary Right of the Copy-holder was extinct And Per Cur. it is extinct by the Release for he to whom the Release was made was Copy-holder in possession and admitted to the Tenements and therefore the Release of a customary right may enure to him and the Lord hath no prejudice for he hath received his Fine for Admittance and he to whom the Release is made is in by Title viz. by Admittance of the Lord and so this Release enures by way of extinguishment And there is great difference between transferring of an Estate and an extinguishment of a Right Diversity between the transferring of an Estate and the extinguishment of a Right But if a Copy-holder be ousted per Tort there his Release to the disseisor or other wrong doer does not transfer his Right or Bar him 1. Because there is no customary Estate upon which a Release of any customary Right may enure and then 2. It would be a prejudice to the Lord who would lose his Fines and Services Co. 4 Rep. 25. b. Kite and Queinton In Replevin bar to the Conisance That K.D. was seized of the Manor of R. in Fee and that the Tenements in which c. were customary held of the said Manor and that at such a Court a Copy was granted to the Plaintiff whereby he entred and put in his Beasts The Defendant protesting the Premisses were not customary for Plea saith That before the Plaintiffs Title J. Abbot of the Monastery of B. was seized of the Manor of R. c. and one R. T. being seized of the customary Lands in which c. in Fee at the will of the Lord the said R. surrendred to the Abbot who was possessed and occupied the said Premisses for divers years and afterwards demised the said Manor for 40 years to W. M. and then surrendred the entire Manor and Abbathy to H. 8. who granted the entire Manor to the Duke of Norfolk in Fee and he with the assent of the Termor made a Feoffment to Drury of the Manor to whom the Termor surrendred his Lease Drury dyes and it descends to his Heir who granted the Land in which c. again by Copy to Tillot for his Life who entred and put in his Beasts Demurrer The Question was if the Custom is destroyed or if Drury the Defendant may avoid his Grant by Copy Note The custumary Land was never severed from the Manor but granted with the Manor as part of it and was demisable by Copy by all the Lords of the Manor and so it remained till the 15th of Eliz. when the Defendant granted the Copy to the Plaintiff Winch Ent. 991 992. Where a Copy-hold shall be perpetually extinct or where it shall after become a Copy-hold by regrant Forfeit Escheat If a Copy-hold Estate be forfeit or escheat to the Lord or otherwise come into the Hands of the Lord if the Lord make a Lease for years or for Life or other Estate by Deed or without Deed this Land shall never after be granted again by Copy for the Custom is destroyed for that during such Estates the Land was not demised nor demisable by Copy of Court Roll So if the Lord make a Feoffment and enter for the Condition broken it shall never be granted again by Copy But if the Lord keep it in his Hands a long time or let this at will then he may re-grant it Lach p. 213. 1 Rolls Abr. 498. Downcliff and Minors So if the interruption be tortious as if the Lord be disseised and the disseisor dye seized or the Land be recovered against the Lord by false Verdict or erroneous Judgment yet after the Land recovered or the judgment reversed this is grantable again by Copy Legal Interruptions But if the Land so Forfeited or Escheated before any new Grant be extended upon a Statute or Recognizance acknowledged by the Lord or the Lords Wife hath this assigned to her in a Writ of Dower though these are impediments by acts in Law yet the interruptions are lawful and the Lands may never again be granted by Copy 4 Rep. 31. Frenches Case If Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed but such Lessee may re-grant the Copy-hold again to whom he will for the Land was always demised or demisable If a Copy-hold be surrendred to the Lessor of a Manor or be Forfeited to him he his Executors or Assigns may well
Lord shall have one Action and the Copy-holder another and each one shall recover Damages according to his Interest Vide Leon. 1. 272. Copy-holder dyes Lord admits a Stranger the Heir may enter and upon a re-entry maintain Trespass without Admittance Noy p. 172. Simpson and Gillion Vide Admittance For non-Admittance no Action by Surrendree Action on the Case against the Lord lyes not for non-Admittance A Copy-holder in the Eye of the Law is but Tenant at the Lords Will and if the Lord will not hold Court he hath no remedy to compel him but by order in Chancery Cro. Jac. p. 368. Ford and Hoskins No Action on the Case by a named Successor By Surrendror Surrendror may have an Action on the Case for not admitting but not the Surrendree 2 Keb. 357. Quaere Remedy in faux Judgment The Demandant in a Pleint in nature of a real Action recovereth the Land erroneously with remedy for the party grieved for he cannot have the Kings Writ of faux Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a Tenant at Will and the Freehold being in another yet he shall have Petition to the Lord in nature of a Writ of faux Judgment and therein assign Errors and have remedy according to Law Co. Lit. 60. And if there be cause the Judgment may be reversed Assise Tenant by Copy shall not have Assise against his Lord as Tenant in ancient Demesn shall have because he hath no Frank-Tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. The Copy-holders Actions and Remedies against Strangers and where A man grants all the Coals and Coal-Mines within a Manor and parcel was Copy-hold for Life to J. S. Where Copy-holder shall have Trover for Coals digged out of his Copy-hold Land Lessee enters into the Copy-hold and digs a new Pit in the Copy-hold Land during the Life of the Copy-holder and takes the Coals and converts them c. And Lessee of the Coal-Mine brought Trover against the Lessor Per Curiam he may do it for when the Lessor or Lessee of the Coals or a Stranger enters and digs the Coals out of the Pits these belong to the Lessee and if any one else take the Coals he shall have Trover Jones Rep. 243. Player and Roberts Lessee of a Copy-holder for a year Ejectment shall maintain an Ejectione Firmae for in as much as his Term is warranted by Law by force of the general Custom of the Realm it is but reason if he be ejected that he shall have Ejectione Firmae and it is a speedy course for a Copy-holder to have the possession of the Land against a Stranger 4 Rep. 26. As to the Declaration in Ejectment Vide Tit. Declaration In Cro. El. p. 224. It is said to be adjudged Ejectment Per tot Cur. That an Ejectione Firmae doth not lye of a Copy-hold Estate But it was agreed That an Ejectione Firmae doth lye of a Lease made by a Copy-holder but not of a Demise made by the Lord of a Copy-hold by Copy of Court Roll Cole and Wall 's Case A Copy-holder had Licence from his Lord to let his Land for 21 years he lets it to the Plaintiff for three years who entred and being Ejected brought Ejectione Firmae Ejectment by Lessee upon a Lease not warranted good against a Stranger Per Cur. he may maintain this Action at Common Law for it is a good Lease between the Paâ—â—â—s and against all others but the Lord and as this Case is it is good against him because it is done by his Licence and it is a good Lease and well warranted by the Licence Cro. El. 535. Goodwin and Longhurst A Copy-holder made a Lease for one year excepting one day which was warranted by the Custom Lessee being ousted by a Stranger brings Ejectione Firmae it well lyes and if there were not any Custom yet it shall be good against all but him who had the Inheritance and Freehold So if a Lessee for Will at the Common Law had made a Lease for years for the Tenant at Will is only a Disseisor and the Lease is good against him Cro. Trin. 41 El. p. 676. Spark's Case So 717. Erish's Case Moor n. 709. Stoner and Gibson Ejectment by the Heir without Admittance to presentment If customary Lands do descend to the younger Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected he shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves n. 128. If a Copy-holder had Common by Prescription in the Waste of the Lord and the Lord stores the Waste with Conies every Copy-holder may have Action on the Case against the Lord averring That by this the Common is impaired 1 Rolls Abr. 106. Clayton and Sir Jerom Horsey Trespass for Beasts depasturing his Common by every Commoner Copy-holder prescribes to have Common in the Waste of the Lord and brings Trespass on the Case against a Stranger for his Beasts depasturing on the Common there The Question was whether this Action lyes for 15 H. 7.12 it s agreed a Commoner cannot maintain an Action of Trespass nor no other but the Owner of the Soyl 12 H. 8.2 And the Commoner hath no right till he hath taken it by the mouth of his Beasts and the Damage is to the Tenant of the Land and then every other Commoner may have Action of Trespass and so the Stranger shall be infinitely punishable Per Coke If a Commoner may distrain Damage feasant doing Damage which proves lie hath wrong then by the same reason if the Beasts are gone before his coming he may have Action on the Case otherwise one that hath many Beasts may destroy the Common in a night And it s not like a Nusance for that is Publick and may be punished in a Leet But the other is private to the Commoners and cannot be punished in another course he cited one Whitehand's Case Many Copy-holders prescribe to have the Loppings and Toppings of Pollards the Lord cuts them every Copy-holder may have his Action and also Hill 5. Jac. Rot. 1427. Geo. England's Case and Warburton of the same Opinion 2 Brownl p. 146. Crogate and Morris If a Copy-holder by the Custom of a Manor had used to have Common for all his Beasts Action on the Case for digging Turffs on the Common Levant and Couchant upon his customary Tenements in a certain parcel of the Manor and a Stranger digs Turffs there and takes them away by which his Common is impaired Action on the Case lyes declaring That the Defendant digged so many Turffs there and then with his Horses and Carts Herbam tunc ibid crescen ' predict ambulando conculcando Declaration from the place aforesaid minus rite ceperit abcarriavit
Seigniory as suppose he is only for Life and he licenseth for 21 years and dies it s determined 2 Brownl 40. Petty and Evans In Ejectment The Defendant pleaded a Surrender of a Copy-hold by the Hand of F. then Steward of the Manor Issue was joyned absque hoc that he was Steward Per tot Cur. it s no Issue Pleading a Surrender how for the Traverse ought to be general that he did not surrender for if he were not Steward the Surrender is void So of a Surrender pleaded into the Hands of the Tenants of the Manor Cro. El. p. 260. Wood and Butts Pleads Prescription to be discharged of Tythes Copy-holders of Inheritance who held of a Bishop as of his Manor may prescribe That the Bishop and his Predecessors seized of the said Manor for themselves their Tenants for Lives Years and Tenants by Copy of Court Roll of the said Manor time out of memory c. have been discharged from payment of Tythes for their Lands parcel of the said Manor for this is a good Prescription for their Tenements are parcel of the Demesns of the Manor and this may commence upon a real composition of all the Manor 1 Rolls Abr. 652. The Case was thus A Parson sues a Copy-holder in the Spiritual Court for Tythes arising upon the Copy-hold Land he brought his Prohibition and suggests that the Bishop of Winchester Lord of the Manor whereof his Copy-hold is parcel and his Predecessors c. time out of memory c. for them their Tenants and Farmers have been discharged of Tythes arising upon the Manor and shews that he had been Copy-holder of the said Manor time out of memory c. and prescribes in his Lord the Bishop of Winchester's Name the Spiritual Court would not allow this Plea but Per Cur. a Prohibition was granted although here be a Prescription upon a Prescription Prescription upon a Prescription one in the Copy-holder to make his Estate good the other in the Bishop to make his Discharge good yet it was allowed for all Copy-holds are derived out of the Manor and it shall be intended That this Prescription had its commencement at such time when all was in the Lords Hands and the one Prescription is not contrariant to the other although both were from time whereof c. Prescription in the Lord ought of necessity to precede the Prescription in the Estate of the Copy-hold and the discharge of Tythes in the Lord which may well be in this case because he is a Spiritual person trenches to the benefit of the Tenant who is a Copy-holder for by this means it may be presumed that the Lord had greater Fines and Rents Yelv. 2. Croucher and Fryar which case is more largely Reported by Cro. El. 784. Otherwise a Copy-holder which is a Temporal person cannot prescribe in non decimando Prohibition granted out of B. C. against the Ordinary of G. and one Branch the surmise was That the Land out of which the Tythes were demanded is Copy-hold parcel of a Manor of which a Prior was seized in Fee and was also Parson imparsonee Union by which Union the Tythes were extinct Per Cur. the surmise is not good and a Consultation was awarded it was no good Prescription to discharge the Tythes Moor Rep. n. 356. Branches Case A Prohibition prayed upon a surmise that the Dean and Chapter of C. seized of the Manor and Rectory of M. and one G. a customary Tenant prescribes That every Tenant of his Tenement hath used to pay 3 s. 4 d. to the Lord who is also a Parson in discharge of his Rent and a fourth part of the Tythe of B. Per Cur. it s no good Prescription for the Parson cannot libel for the Rent nor the Lord for the Tythe Uncertain and non constat what each should have and the Parson must have a satisfaction or else there can be no discharge 1 Keb. 886 906. Wilkinson and Richardson Traverses Traversing the day of the Grant In Ejectment The Defendant entitles himself by Copy granted 44 Eliz. The Plaintiff by Replication intitles himself by Grant 1 June 43 Eliz. The Defendant maintains his bar and traverseth absque hoc that the Queen 1 June 43 regni sui granted the Land by Copy modo forma prout c. This Replication is not good for the day and year of granting the Copy is not material but only whether it were granted before the Copy made to the Defendant therefore he ought to have traversed absque hoc That the Queen granted modo forma prout c. and this is matter of substance and not aided the traversing of the day where it ought not is matter of substance for thereby he makes it parcel of the Issue which ought not to be Cro. Jac. 202. Lane and Alexander 1 Brownl 140. mesme Case In Ejectment The Defendant pleads the Land is Copy-hold parcel of the Manor of S. whereof the King was and is seised who by his Steward granted the same such a day to him in Fee Habend c. by vertue whereof he was admitted entred and was seized and so justifies The Plaintiff replies That long before the King had any thing in the Manor Queen Elizabeth was seized in Fee in Jure Coronae who by her Steward at such a Court granted the Land in question by Copy to him in Fee Habend c. secundum consuet c. who was admitted and entred Confessing and avoyding Per Cur. the Replication is good and the Plaintiff need not Traverse the Grant alledged in the Bar by the Defendant for the Plaintiff hath confessed and avoided the Defendants Title by a former Copy granted by Queen Elizabeth and so need not traverse and as no man can have a Lease for years without assignment no more can a man have a Copy without a Grant made in Court Cro. Jac. p. 299. Rice and Harrison 1 Brownl p. 147. mesme Case The Plaintiffs Replication is good without any Traverse for how can the Defendant have this when as the Plaintiff had it before as by his Replication appears for that his Lease being first in time avoids the Defendants Lease being the latter and therefore the Defendant in this case ought to have rejoyned and so to have traversed the first Lease but by his Demurrer to the Replication he hath confessed the Lease under which the Plaintiff claims mesme Case 2 Bulstrode p. 1. 6 Rep. Helliar's Case A man pleads a descent of a Copy-hold in Fee the Defendant to take away the descent pleaded That the Ancestor did Surrender to the Use of another Traversing the dying seized absque hoc That the Copy-holder died seized Per Cur. the Traverse is ill because that he traversed that which needed not to be traversed for being Copy-hold and having pleaded a Surrender of it Difference between that and at Common Law the Party cannot have it again if not by Surrender But if a man plead
descensu Cro. Entr. 575 657. Dom concessit querenti terras custumar que ei descend restituend eum ad jus ubi terre fuer prius concesse alij qui obiit Ra. Ent. 628. Dominus ob certas causas seiseivit terras custom concessit eas in feod al W. cui Vir et Vxor propretarij unde relaxaverunt jus 3 Br. 464. Dominus ex traditione propria grant al un pur vie per Copie 1 Coke 117. Grants Grant per Copie in Fee Rast Entr. 627. Limitation dea Estate Co. Ent. 9 10 123 274 645 611 657. 3 Br. 97 464. Hern 81 226 707. Simile al Baron Feme Ra. Entr. 627. Simile al Baron Feme Heires del Feme Cro. Encr. 575. Al un pur vie ove several Remainders in Tayl in defectu exitus quod terre venderentur deuar inde provenien disponerentur juxta Testamentum Co. Ent. 207. Al un pur vie Co. Ent. 576 662. Al 2 pur vies Co. Ent. 273. Hern 73. Al 3 pur vies successive Hern 83 711. Al un pur vie en Reversion Hern 255. Grant al un pur vie in Reversion apres mort de Tenant pur vie per primer grant Hern 724. Simile al 2 pur vies in Reversion Co. Ent. 114. bis 662. Per Senescallum Regis ratione Temporal Episcopatus in manu Regis duran vacac Co. Entr. 645. Grant reddend faciend redditus consuetudines servitia consueta Co. Ent. 662. Terres grant per nosmes Co. Entr. 662. Hern 254 255. Pleading a Manor held by another Manor 11 Rep. p. 17. Sir Henry Nevil's Case Cur tentur coram Deptur Senescallo Co. Entr. 570. Forms of Pleadings of Lords and Copy-holders in reference to Common Per Dom Manerij habere communiam pro tenentibus Custumariis Hern 117 124. Rex Seisitus de Manerio habuit communiam Pasture in bosco pro se liberis tenentur custumar manerij pro omnibus averijs ê‘ totur Annum Co. Entr. 656. Rector Ecclesie seisitus de Manerio Rectorie habuit communiam pro se tenen custumar MessuagÌ„ Terrarum in loco in quo c. pro omnibus magnis averiis per totur Annum Co. Entr. 574. Vn seisitus de Manerio habuit communiam pro se tenen suis in terris tentur de manerio quando non seminantur Co. Entr. 118 Quer seisitus de manerio habuit communiam pastur pro tenen custumariis MessuagÌ„ Terrarum in 10 Acres Pasture pro omnibus averiis per totur Annum Co. Entr. 9. 9 Co. 112. Hern 117. Domini separalium Maneriorum habuer communiam pasture pro tenen custumariis causa vicinagij Co. Entr. 10. vetur intur 191. de injur propr traverse prescriptur Prior seisitus de manerio habuit communiam pro se tenementis suis ad voluntatem in terra post blada asportata usque reseminationem quando facet frisca per totur annum Et in prato post foenu asportur usque Purit ' Rast Entr. 622. 1 Brownl 66. TransÌ„ bar ' per prescription de communia in clauso parcel Manerij Repl protestando quod clausum non est parcel Manerij pro placito de injur propria travers prescription 3 Browl. 418. Iustificatur in TransÌ„ pro common per Custome infra Manerium pro defectu sufficien fensur Def. existen Lessee pÌ„ ans d'un Widdw que tenuit terras per Custome quamdiu casta innupta viveret Tomps 331. Trans Iustificatur pro common prescribe in in Dom Manerij Tomps 371 379 392 418. Pled que customarij Tenants debent habere solam separalem pasturam cum liberis tenentibus pro omnibus averiis barbits except Levant Couchant 1 Sanders 347. 2 Sanders 321. Pled que custumary Tenants usi sunt habere separalem pasturam come appurtenant Tenementis suis 2 Sanders 351. Per Lessee del Copyholder de Turbis fossis in communia pasture Hern 80. Simile pro Hern 116. Bar in ReplegÌ„ That he is Copyholder of another Manor of Copy-hold called P. and prescribes for Common in loco quo c. omni tempore Anni pro omnibus averiis communicalibus Levant Couchant sur le Cohy-hold appell P. que posuit averia sua utendo communia Repl per Traverse que barbits la fuer Levant Couchant c. Demur special the Traverse not being good Winch Entr. p. 970. By four Judges the Traverse was good it s an essential part of the Plea and the Avowant hath election to Traverse any part of the Plea which goes to the end of the Action or Justification Pled Custome aver common in loco in quo c. Repl de son Tort Demesne traverse que les avers fuer Levant Couchant sur le Copy-hold Tempore quo c. Rej. issue sur le Traverse Winch. 1068. ad 1071. Def. in Trespas plead severally pro defâ—â— sufficien ' fensur monstre lour Title al Copy-hold Estates Tomps 410. Iustificatur pÌ„ Common per Custome per un Copyholder Toms 410. Custome pleaded quod tenen custumarii habeant communiam pasture per totur Annum in terris parcel Manerij Hern 81. Simile in terris non allegatur fore parcel Manerij Hern 708. Simile pro averiis vocatur Horse-Beasts Neat-Beasts Levant c. per totum Annum Coke Etr. 10. Simile pro bobus levan a festo ad festum in pastura 3 Br. 61. Simile in 7 acris terre post blada messa asportatur ex eisdem resid camporum usque AnnunciacÌ„ nisi interim seminatur 3 Br. 96. De Arboribus Bar to the Avowry That Sir R. D. was seized of the Manor of R. Vnde c. locus in quo contains 14 Acres and are customary Lands held of the said Manor Sir Robert granted this by Copy to T. who dyed and the Premisses descended to T. his Son c. who demised for a year to the Plaintiff Replication The Defendant confesseth the seisin of Sir Robert but said the 20 Acres of Land and 30 Acres of Meadow of which the 4 Acres are parcel are custumary Lands of the said Manor which Lands Sir Robert granted by Copy to T. T. the Father T. the Father forfeits his Copy-hold Land for Waste and Sir Robert enters for the Forfeiture c. Rejoynder the Plaintiff confesseth the matter in the Replication to the seisin of T. T. the Father And farther the Plaintiff shews the Custom of the Manor was for every Copy-holder d'amputer decapiter tam touts arbores que devant ustoient estre amputes decapitates quam touts juveniles arbores n'esteant pluis que 12 Inches square al stubb The Trees supposed to be decapitated by the Father were decapitable by the Custom c. Demur Winch Ent. 1022. c Drury's Case Bar al cognizance Dean Cap. West seisitur de Manor de T. a quel certain custumary Tenants appertain c. S. H. fermor del Dean
c. is but a Conveyance to his Title and for that it was found that it was demisable in Fee and that it was demised unto him in Fee this is the substance of his Title and so sufficient Cro. Eliz. p. 431. Doyle and Wood. In Eject Fir. If the Jury find a special Verdict That J. S. was seized of the Manor of D. in his Demesn as of Fee in which Manor was a Copy-holder of the place where c. and commits Waste by cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters in the Manor in the place where c. for the said Forfeiture and was of this seized in his Demesn as of Fee and concludes si super totam materiam c. This is not a good Verdict because it is not found that J. S. died seized of the Manor and that this descends to the Lessor Seisin and descent as Cousin and Heir as his Cousin and Heir for it may be that J. S. aliened the Land and that the Father of the Lessor or the Lessor himself re-purchased this and that he was also Cousin and Heir to J. S. and although it be in a Verdict it shall not be intended that the Fee continued in J. S. at the time of his death and that he died thereof seized without finding it 2 Rolls Abr. 699. Cornwallis and Hammond Part found the Issue upon the whole not good In Replevin The Defendant justifies by reason of Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties are at issue and it is found that part of the Beasts were Levant and Couchant and part not this is found for the Defendant for the whole for the issue was upon the whole and the contrary is found 2 Rolls Abr. 707. Sloper and Allen. Presidents in Special Verdicts Quod Tenementa sunt custumaria dimissibilia per Copiam dimissio per Dominum ex traditione propria 1 Rep. 117. Chudleigh 's Case Sursum redditio admissio in feodo Co. Entr. 207. Simile in Tallio communis recuperatio inde Co. Entr. 206. Tenementa concessa per copiam la A. B. super vixit Co. Ent. 273. Consuetudo infra manerium de devisatione devisatio in haec verba Co. Ent. 124. Littera Attornat ' ad sursum reddend ' tenementa custumaria sursum redditio admissio superinde Coke Entr. 576 577. Et si sit sufficiens in Lege Manerium Tenementa ab antiquo discendebant 2 percenariis qui fecer ' partitionem de terris dominicalibus ac Tenementa Custumaria servitia remanser ' in communi Coke Entr. 711. Officium Seneschalli manerij execut ' per deput ' contentio inter 2 Seneschallos de Cur. Baron Tenend 9 Rep. 45. In Ejectment Jury find that the Lands are demisable by Lives in possession or reversion and that the Widow in possession held the Lands so long as she remained sole and chaste and that M. C. Widow was seized for Life durante viduitate the Lord grants the Reversion of the said Lands by Copy to R. C. the Son of M. for Life to commence after the death forfeiture or surrender of M. M. surrenders one moiety of the Premisses to R. The Lord dies discent of the Manor to C. S. his Cousin and Heir R. Tenant for Life of one moiety and M. Tenant in Free-Bench of the other moiety the Lord by Indenture demiseth to the Lessor of the Plaintiff for 99 years if he and J. and B. his Sons shall so long live to commence after the death and determination of the Estates of the said M. and R. and of the viduity of such person as shall be his Wife at the time of his death M. surrenders her moiety to R. R. dies seized of both moieties P. C. the Defendant his Wife is admitted she commits Fornication and had a Bastard Jury find the entry of the Lessor If the Lease shall commence before P. dies was the Question Winch Ent. 455. Jury found that the Messuage and Lands tempore quo c. tempore hors memory were custumary part of the Manor of B. a Prebend of S. demisable by Copy of Court Roll for one two or three Lives and that by the Custom of the Manor every Tenant for Life sole seized of any customary Estate for Life in possession may nominate one to succeed him to be Tenant to the Lord for Life and that the party nominated used to require his Admittance and pay such Fines as were taxed by the Homage Another Custom was That every customary Tenant sole seized in possession may cut Timber Trees c. and that Mason the Defendant being Copy-holder for Life 1 May 40 Eliz. named R. P. to be his succeeding Tenant They also find that Robert P. being Prebendary of the said Prebend and seized in Fee of the said Manor 20 March 40 Eliz. demised by Indenture the Manor of B. to Peter Hoskins for three Lives and by the said Indenture Bargains and Sells to him all the Timber Trees c. by which Indenture is a Letter of Attorny to make Livery and they find the Indorsement on the Indenture to this effect Midd. That J. B. one of the Attornies entred into part and made Livery Midd. That J. G. the other Attorny entred into part and made Livery The Livery made in the House of the Lord was Endorsed but it is not mentioned to be part of the Manor The Jury find the entry of Peter Hoskins and seisin for three Lives according to the Lease which aids the other Imperfections Verdict aided 1 Jan. 43 Eliz. Peter Hoskins demiseth to J. Hoskins Masons Tenement and Lands for 99 years March 3 Jac. Mason continuing customary Tenant for Life after his nomination aforesaid cut down 20 Trees off his Copy-hold upon which J. Hoskins 6 Jac. entred upon the Land and demised to the Plaintiff who enters upon Mason who re-enters and if his re-entry be lawful they find for Mason After non-suit one of the Defendants was dead this suggestion must be entred on the Roll. and if not lawful they find for the Defendant Winch Ent. 440. Rowls and Mason In Ejectment to try the Custom of E. of Copies for three Lives the Plaintiff was non-suit and one of the Defendants being dead Hales Chief Justice advised to enter a Suggestion on the Roll That one was dead or else the Judgment for the Defendant on the non-suit will be erroneous as to all 2 Keb. 832. Hawthorn versus Bawden CAP. XXXV Copy-holders relieved in Chancery or what things in respect of Copy-hold Estates are relievable in Chancery or not NOW I conceive it will not be impertinent but rather a thing well approved of to cite some Cases Resolutions and Decrees wherein Copy-holders have been relieved and what remedy the Chancellor will give in respect of Lords
and so the Custom of Taunton-Dean That if a Copy-holder in Fee marries a Wife If the Wife survives she shall have the Fee if the Wife survives she shall have the Fee sic e converso agreed to be good Noy Rep. p. 2. There can be no Dower nor Tenancy by the Curtesie of the Copy-hold unless by special Custom 1 Anderson 292. Lease made before admittance A man may be Tenant by the Curtesie by Custom Though the Husband enter into the Land in the right of the Wife before admittance and the Wife dyes before admittance his Lease shall be good 1 Anderson 192. Ewer and Astwick It was admitted by the Court to be a good Custom That an Executor or Administrator shall have an year in the Land of the Copy-holder Custom that the Executor shall have an year in the Copy-hold against the Wife that claims her Free-Bench Noy p. 29. Remington and Cole If a Woman be Dowable of Copy-hold by Custom if the Husband after the marriage makes a Lease for years good by the Custom Tenant in Dower shall not avoid a Lease made by the Husband the Tenant in Dower shall not avoid it but it shall precede the Dower More n. 147. Holder and Fairly For he comes under the Custom as well as the Feme The Custom of a Manor was Quod quilibet tenens per Copiam poterit dimittere terras suas pur vie or in Fee or in Tayl Custom that the Wife Feme covert may Devise and that a Woman cooperta viro poterit devisare her Copy-hold Land to her Husband or to any other by the assent of her Husband Per Cur. The Custom is not unreasonable But because it was poterit devisare which is a word of justification and it should have been usi sunt devisare by way of excuse it was adjudged against the Plaintiff More n. 268. And so was one Welsh's Case in C. B. 41 El. 3 Leon. p. 81. Skipwith's Case The Custom was That Widows should enjoy during their Widow-hood Where the severance of the customary Tenants from the Manor shall not prejudice the Widow in her customary Estate The Lord Grants a customary Tenement of the Manor unto J. B. for Life by Copy and after conveys the whole Manor to W. who conveyed the Inheritance and Free-hold of B's Tenement for mony paid by B. to J. S. and others and their Heirs during the Life of J. B. the remainder to Ellen then Wife of J. B. the remainder to J. B. in Fee J. B. Grants his remainder in Fee to his Son and his Heirs The Son having Issue a Son dyed and then Ellen dyed J. B. marries Frances and dyes seized of his customary Estate Frances shall enter and enjoy her Widows Estate for it is clear That the customary Estate of J. B. remained as it was during his Life not extinct nor altered by the purchase of the Fee-simple which during his Life was in others not in him and then it follows by consequence That all customary Incidents to such a customary Estate remain whereof this is one which by Custom and Law grows of it self out of that Estate as a Descent should have done if J. B. had been a Copy-holder in Fee and the Freehold had been granted to another in Fee Hobart p. 181. Howard and Bartlet It is not in the power of the Lord to destroy Widows Estates By the severance Incidents to the Tenancy are not destroyed but Incidents to the Seigniory are The Law vests the Estate in a Woman that is to hold durante viduitate before admittance The Custom is That a Woman shall hold durante viduitate she shall make a Lease before admittance for in that case there is no Fine due to the Lord and the Law vests the Estate in her Noy 29. Remington and Cole Hobart 181. Vide Admittance The Lord Enfeoffs the Copy-holder this destroys Free-Bench A Custom of a Manor was found to be That if a Copy-holder in Fee dyes seized his Wife should hold it during her Life as Free-Bench the Lord Enfeoffs the Copy-holder who dyed seized Per Cur. she shall not hold her Free-Bench aliter if the Lord had enfeoffed a Stranger of that Land yet the Land remained Copy-hold and the Custom is not taken away Crok Jac. 126. Lashmer and Avery Damages recovered in Dower A Woman recovered Dower in the Lords Court and 40 l. because her Husband dyed seized and she brought Debt for the Damages in the Kings-Bench Per Cur. The Action lyes not because the Court-Baron could not hold Plea nor award Execution of 40 l. Damages although the Damages were there well assessed More n. 559. If a Feme Copy-holder holds the Land durante viduitate and then takes Husband the Lord shall have the Corn Oland's Case Vide Emblements The Widows customary Estate is due to her Divorce though there was a Divorce a mensa thoro Hobart p. 181. Howard and Bartlet Tenant of a Copy-hold for Life Whether the Widow attaint for Felony shall have her Estate of viduity in which the Custom was That the Wife should have her Widows Estate and the Husband was attaint of Felony and Executed The Question was whether she should have it Winch not without a special Custom Winch Rep. 27. Allen and Branch That the Wife shall not have her Dower The Wife to claim her Dower within a year and day except she claim it within a year and a day it s said to be a good Custom 3 Leon. p. 226. Pleadings Custom Quod Uxores habeant Tenementa custumaria durante viduitate sua Dyer 192. 3 Br. 403 476. Hern 73. Quod Uxores Tenen custumar in feodo habeant pro vita Tenementa unde viri obierunt seisita Et si viri dimiser tunc revers reddit Cok. Ent. 123. CAP. VII Custom as to Timber Woods and Vnder-Woods and what Prescription by a Copy-holder to cut Trees shall be good or not TEnant by Copy of Court Roll cannot by the Common Law take Trees for House-bote Hedge-bote and Cart-bote c. as Tenant for Life or Years may do who have an Estate certain but a Copy-holder by special Custom may do it Cro. El. p. 5. Lord Mountague against Sheppard Where a Custom was alledged to be That every Copy holder may cut down Trees at his pleasure this Custom is against Common Law Winch p. 1. If a Custom be That a Copy-holder may not cut down Trees it is good or not good with this difference If he be a Copy-holde of Inheritance such a Custom is good but if he be a Copy-holder for Life its noâ— good 1 Bulstr 150. Earl of Northumberlanâ— against Wheeler The Tenant prescribes to câ—â— and dispose all the Trees upon his Tenancy its an ill Prescription Aliter of a Copy-holde of Inheritance Noy p. 2. So it is adjudged it 1 Rolls Abr. 650. Glascock and Peche It s a good Custom Copy-holder in Fee
Inheritances at the Common Law have unless it be by Custom for though they are Estates of Inheritance according to the Custom yet they are not Estates of Inheritance simpliciter that is to have all collateral Qualities as Estates in Fee-simple have but only such which Custom hath setled and allowed 4 Rep. 22. Brown's Case And accordingly my Lord Hobart in Cox and Darsen's Case p. 215. c. saith The collateral Incidents of Estates as Dower Tenancy by the Curtesie Wardship c. are not without special Custom And therefore Copy-hold Inheritance shall not be Assets to charge the Heir in an Action of Debt upon Bond made by his Father Copy-hold Lands not Assets in the Heir tho' he has therein bound his Heirs neither shall the Wife of such customary Estate be indowed nor the Husband be Tenant by the Curtesie neither shall the descent of any such Estate toll the Entry of him that had customary Right c. But to explain this in these before-mentioned Qualities and others I shall Illustrate it by several Cases and Resolutions Dower The Wife shall have Dower of a Copy-hold by special Custom otherwise not and when she is to be endowed of a Copy-hold by the Custom then she shall have all the incidents to Dower as to recover Damages for the Profits from the death of her Husband by the Statute of Merton C. 1. De viduis 4 Rep. 30. Shaw and Tompson Tenant by the Curtesie and that without admittance of the Wife The Custom of a Manor was That if any man had a Wife who was a Copy-holder in Fee of the Manor and had Issue by her that he should be Tenant by the Curtesie of the Land A. a Copy-holder was seized and had Issue a Daughter who was married to J. S. who had Issue A. dyed his Wife entred the Wife dyed before admittance The Question was if by the Entry of the Husband without admittance of the Wife he should be Tenant by the Curtesie Per Cur. he shall the delay of the admittance of the Wife shall not prejudice the Husband being a third person More n. 425. Ever and Aston but if a Woman Copy-holder in Fee takes Husband who had Issue and the Wife dyes there the Husband shall not be Tenant by the Curtesie without special Custom 4 Rep. 22. Ryers Case Descent tolls not an Entry Discontinuance The Descent of a Copy-hold doth not toll an Entry 4 Rep. 22 23. Bullock and Dibly and 3 Rep. 9. You may see there where the Entry shall be congeable by the Issue after a Surrender or Lease by Licence of the Lord made by the Ancestor and shall not be a Discontinuance The Lord seized a Copy-hold without cause and grants it to another in Fee Grantee dyes seized and his Heir is admitted The first Copy-holder dyes his Heir enters and Surrenders to the use of a Stranger Per Cur. 1. Descent of a Copy-hold shall not take away the Entry of another Copy-holder who hath right 2. The Entry of the Heir without admission is lawful and being in his Surrender is good Cro. Jac. 36. Joyner and Lambert If one seized of Copy-hold Land in the Right of his Wife Surrender this to the use of another in Fee who is admitted accordingly the Husband dyes this is no discontinuance to the Wife nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to her sur cui in vita If Copy-holder for Life Surrender to the use of another in Fee this is no Forfeiture Surrender by Copy-holder for Life to one in Fee is no forfeiture for this passeth by Surrender to the Lord and not by Livery And Copy-hold Estates shall not have such qualities as Estates at Common Law have without special Custom 4 Rep. 4. Clun and Pearse and therefore where by Custom of the Manor But recovery by Pleint in a real Action shall be a discontinuance Pleints have been made in the Court of the Manor in the nature of real Actions That if a Recovery be in a Pleint in the nature of a real Action against a Tenant Copy-holder in Tayl it s adjudged that this shall be a discontinuance and shall take away the Entry of the Heir in Tayl for these Pleints in the nature of real Actions are warranted by the Custom this is an incident which the Law annexeth to the said Custom and such recovery shall be a discontinuance 4 Rep. 23. Deal and Rigden Having finished the Learning of Customs in order to the understanding of Copy-hold Estates it will be convenient to say something of the customary Tenant and of the Court and the Steward which shall be attempted briefly in the next Chapter CAP. X. The several sorts of Coph-holders and who shall be said to be customary Tenants Of Copy-hold Burrough-English Of the Court Two sorts of Courts Baron Of the Copy-holders Court. Who may keep Courts and to what purposes and where Of the Steward his Office and power of Deputation what he may do ex officio or not WE read of three kinds of Copy-holders in our Book I. Terra Nativa These were called Bond-Lands also because they held in Villenage II. Custumary And this was held by Free-Tenants III. Mensales As also Dominica because by this the Table of the Lord is maintained Some Copy-hold Land is called Poadland and some Molland a molli redditu where some small Rent was reserved There were two other manner of Copy-holds Old Aster and new Aster Aster signifies a Chimney those Copy-hold Lands which had had usually for a long time an House on them they called Old Aster Lands but those which of late had an House built on them they called New Asters And in old Records the Bastard Eigne did plead That he was Filius Askarius as much as to say Born in the House 2 Rolls Rep. 235. M. 20 Jac. B. R. Smith and Reynard Some Copy-hold Land is in the nature of Burrough-English Cro. Jac. 56. Curtis's Case Copy-hold Burrough-English And so shall descend to the youngest Son Some Copy-hold is of the nature of Burrough-English as well for the Brother as the Son Cro. Jac. 101. Whitton and Williams Between a Copy-hold in Burrough-English and a Freehold in Burrough-English there is not any difference as to descents Cro. Car. 411. Baron and Feme Copy holders for Life of Copy-hold of the nature of Burrough-English Reversion to the Husband in Fee he had Issue three Sons William George and Charles The Father dyed seized of this Reversion which descended to Charles Charles dies without Issue the Wife dyes Question was whether William Brother and Heir of Charles or George should have it Berkly and Bramston were for George because there being a Reversion expectant upon Estate for Life George shall take his Title from his Father and take by descent from him who had seisin of the Free-hold and not make mention of him who had the
Reversion expectant upon an Estate for Life In all Writs where a man conveys by discent there shall not be mention of any but those who had seisin And in all Actions and Writs where a man conveys by descent there shall not be mention of any but of those who took the Estate and had seisin and not from others who never had seisin the Law esteeming them as if there had been never any such persons and by consequence he may claim here as youngest Son by the custom as Heir in Burrough-English as if Charles had never been because he hath it in course of descent and this is true at Common Law but Jones and Croke held that William had the better Title for Charles being youngest Son at the time of the death of his Father that makes him Heir in Burrough-English by the Custom and when it rests in the youngest Son as Heir by the Custom the Inheritance is fixed in him and he only who is in esse at the time of his Fathers death shall have as by Custom this seems to be the better Opinion Crok Car. 410. Reeve and Malster Who may be said to be customary Tenants A Wife that hath her Widows Estate according to the Custom of the Manor is a good customary Tenant So Tenant per the Curtesie per the Custom In Gloucestershire there is in a Manor a Custom That Executors shall have the Profits for a year In some sense they are good customary Tenants Under-Tenant in what respect Custom was That for Waste to be amerced and to distrain for such amerciament the Beast of the under-Tenant as well as the Tenant is liable The under-Tenant is a customary Tenant to this purpose and no Stranger Transit terra cum onere he enjoys the Priviledge of a customary Tenant and he shall undergo the Charges March Rep. 161. Thorn and Tyler Note There is difference between customary Lands and Copy-hold Lands Freehold as well as Copy may be customary Lands as ancient Demesn may pass by Surrender in some Manors and by Copy and ancient Demesn may pass by Feoffment as Surrender Vide Peryman's Case Rep. Court The Nature of a Court Baron and who may keep Courts or not A Manor cannot be without a Court Baron Vide supra it is inseperably incident to a Manor without any Grant from the King to keep the same and this is not drawn from the Crown but is to be held de necessitate 1 Bulstr 6. The King and Stafferton The Court Baron must be holden within the Manor Where to be held for if it be holden without the Manor it is void unless a Lord being seized of two or three Manors hath usually time out of mind kept at one of his Manors Courts for for all the said Manors then by Custom such Courts are sufficient in Law albeit they are not holden within the several Manors Co. Lit. 58. a. There may be a customary Manor held by Copy and such a customary Lord may keep Courts and grant Copies 11 Rep. Nevil's Case Cro. Jac. 260. contra Now there are two sorts of Court Baron Two sorts of Court Baron one at Common Law incident to every Manor and is of Freeholders and the Freeholders are Judges There is also a customary Court consisting of customary Tenants for without them it cannot be and this Court may be holden without any Free Tenants or other Suitors except Copy-holders and of this Court the Lord or his Steward is Judge Co. Lit. 58. And when the Court Baron is of this double nature the Court Rolls contain matters appertaining to both Honour what An Honour consists of many Manors yet all the Courts for the Manors are distinguished and have several Copy-holders and though there is for all the Manors but one Court yet are they quasi several and distinct Courts One Court kept for many Manors and so it was usually in the time of the Abbots they kept but one Court for many Manors Cro. Car. 361. Seagood and Hone. When the Lord of a Manor having many ancient Copy-holds in a Vill grants the Inheritance of all his Copy-holds to another Customary Court how made and may be held the Grantee may hold Court for the customary Tenants and accept of Surrenders and make Admittances and Grants for although this is not a Manor in Law because there want Freeholders yet there may be holden a Court for Copy-holders and the Lord or Steward is Judge And as the other being a Court Baron may be called the Freeholders Court this may be called the Copy-holders Court so if all the Freehold do Escheat or if the Lord release the Tenure and Services of all his Free Tenants yet the Lord may hold a customary Court for his Copy-hold Tenants So if the Lord demise all his Lands granted by Copy to another for a thousand years such Lessee may hold Court for the Copy-holders 4 Rep. 26 Melwich's Case and Sir Christopher Hatton's Case cited in Neal and Jackson's Case 27. These number of Copy-holds may support a Custom but a single Copy-hold cannot hold a Court. Tenant at Will of a Copy-hold Manor may grant Copyhold Estates but cannot keep Courts Guardian in Socage keeps Courts in his own name and grants Copies its good and shall bind the Heir Vide Tit. Grants Cro. Jac. 55 98. Shopland and Rider The Lord himself may Grant or make Admittance out of the Manor at what place he pleaseth but so cannot the Steward 4 Rep. 26. Melwich's Case 27 Clifton and Mollineux Court may be held out of the Manor by Custom but by Custom the Court may be held out of the Manor and Grants and Admittances there made be good as divers Abbots Priors c. have kept one Court for many Manors Steward Every Steward of Courts is either by Deed or without Deed for a man may be retained a Steward to keep his Court Baron and Leet without Deed and that retainer shall continue till he be discharged Co. Lit. 61. b. 4 Rep. 30. And such Steward may take Surrender of customary Tenants out of the Court 4 Rep. 30. Holcroft's Case In all real Actions which concern Lands the Suitors are the Judges but in personal Actions under the Sum of forty shillings the Steward is the Judge Steward without Deed may take Surrenders out of Court but the Custom must warrant it Note Difference between a Steward of a Manor and the Steward of a Court. A difference between Steward of a Manor and the Steward of Courts Steward of a Manor may take Surrenders in any place 1 Leon. p. 227. Case 307. Blagrave and Wood. Steward appoints his Deputy to keep a Court ad tradendum Copy-hold Land to W. for Life Deputy the Deputy commands H. his Servant to keep Court and grant the said Land and the Custom found did not extend farther than the Deputy though a Deputy cannot transfer his Authority over being an office of Trust yet
Lord recover his Fine Debt Debt lyes for a Fine against the Copy-holder by the Lord Siderfin p. 58. agreed in the Case of Wheeler and Honor. Copy-holder Heir waves the possession If Copy-holder in Fee dyes where the Fine is certain and the Heir waves the possession and refuseth to be admitted it seems the Lord shall not have an Action of Debt against him and yet some hold he may not wave the possession because being Inheritance Interest descends and for this reason praecipe quod reddat lyes against the Heir at Common Law before his Entry Siderfin p. 58. Wheeler and Honor. Pled Vide Presidents infra Custome quod Dominus habeat rationabilem finem pro admissione Co. Ent. 646. 13 Rep. 1. CAP. XIX Of the Entayling of Copy-hold Estates The different Opinion of the Judges with an Abstract of the Reasons and Arguments how Copy-holds are or may be Entayled and the Law setled as to that Point How such Copy-hold Entayls may be barred or dock'd And what acts of Tenant Copy-holder in Tayl c. shall amount to a Discontinuance or not Of Copy-hold Estates being Entayled AS to Copy-hold Lands being Entayled whether there be any such Estate Tayl by any particular Custom to be allowed and how such Entayls arose it hath been vexatio quaestio This Question hath been curiously debated in our Books and therefore I shall be the larger upon it It is clear That the Statute de donis per se doth not create an Estate Tayl in a Copy-hold 9 Rep. 105. the Case of Thornton and Lucas there cited for the Statute de donis doth not extend to such base Estates at will The Question is if the Statute may co-opperate with the Custom as to make an Estate Tayl. Coke in the Case of Warn and Sawyer 1 Rolls Rep. 48. cited one Haslerick and Grays Case to be so adjudged and in one Hills Case a Custom was pleaded that a Copy-hold might be granted to one and the Heirs of his Body with remainder over but saith he we of the other side durst not hazard the matter upon this but we devised a Plea That there was another Custom there that if a Tenant in Tayl alien this shall be a bar to the Remainder and upon issue that Custom was found for it was agreed Per totam Curiam That if an Estate Tayl may be of a Copy-hold by Custom that by a Custom it may be dock'd and destroyed It hath been often moved in our Books When a Copy-holder in Fee surrenders to the Use of one in Tayl there being no Custom to warrant such an Entayl whether it be an Estate Tayl by the Statute of De donis conditionalibus or a Fee-simple conditional at the Common Law This point is well argued and setled in Rowden and Malster's Case Cro. Car. p. 42. Copy-hold cannot be Entayled within the Statute de donis Yelverton held That it was an Estate Tayl by the Equity and intent of the Statute de donis but Hutton Harvy and Croke That it was not an Entayl but a Fee-simple conditional at Common Law 1. Because it would be prejudicial to Lords for by this means the tenure would be altered for the Donee in Tayl without a special reservation ought to hold of the Donor by the same Services that the Donor holdeth over and he who comes in by Surrender and the Admittance of the Lord to hold to him and the Heirs of his Body cannot hold of him who surrendred but shall hold of the Lord and is Tenant at will unto him and shall do the Services unto him as Lord. 2. In respect of the baseness of their Estate the Statute never intended to provide remedy for them nor their Alienations for the words of the Statute are Quod voluntas donatoris in Charta sua manifeste expressa de caetero observetur which proveth that the intent of the makers of the Statute was That no Hereditament should be intayled within this Statute but such as either was or might be given by Charter or Deed and other Reasons out of the words of the Statute Carters Rep. 8. But Copy-holds are no such Hereditaments and therefore not within the meaning of the Act. 3. If Copy-holds might be Entayled then the perpetuity of such Estates might be maintained for a Fine cannot be levied of Copy-hold Lands to bar the Entayl nor can a Recovery in value be intended of such an Estate where warranty cannot be annexed to it Ceo reason come jeo pense ne vault rien pas Car est agree per touts que poet estre dock't per recovery en curia del Baron Vide apres They held also That neither Estate Tayl nor Estate after possibility of issue extinct which had a necessary dependance upon an Estate Tayl can by any particular Custom be allowed Cave Lecteur for it s agreed by all That a Custom co-operating with the Statute may create an Estate Tayl. Observe Plowden in Manxel's Case is no Law 2 Rolls Rep. 383. mesme Case Co. Lit. 60. As there may be an Estate Tayl by Custom with the co-operation of the Statute of W. 2. Cap. 1. So may he have a Formedon in discender i. e. a Writing in the nature of a Formedon in Descender in the Lords Court But as the Statute without a Custom extendeth not to Copy-holds so a Custom without the Statute cannot create an Estate Tayl. Now it is not a sufficient proof that Lands have been granted in Tayl for albeit Lands have anciently and usually been granted by Copy to many men and to the Heirs of their Bodies that may be a Fee-simple conditional as it was at the Common Law but if a Remainder hath been limited over such Estates and enjoyed or if the Issues in Tayl have avoided the alienation of the Ancestor or if they have recovered the same in Writs of Formedon in the Discender these and such like are proofs of an Estate Tayl But if by Custom Copy-hold may be Entayled the same by like Custom may be cut off Plow Com. 240. This was the first Opinion and by Clench and Gaudy agreed to in Grovener's Case Popham 32. The other Opinion is That an Estate is wrought out by the Equity of the Statute de donis for otherwise it cannot be that there should be any Estate Tayl of Copy-hold Land for by Usage it cannot be maintained because that no Estate Tayl was known in Law before this Statute and after this Statute it cannot be by Usage because this is within the time of limitation aftet which an Usage cannot make a Prescription for a Custom cannot be made after the Statute de donis And it appeareth by Littleton and Brook That a Plaint lyes of Copy-hold Land in the nature of a Formedon in Discender at Common Law and therefore the Statue helps them for their remedy for Entayled Lands which is but customary by Equity and if the Action shall be given by Equity for this Land why shall not the
the Lord M. with divers Remainders over with a Proviso That the Donees non facerent aliquid in nocumentum vel ex heredat haeredum suorum vel c. sed tantum pro junctura vel pro termino vitae vel pro annis vel ad voluntatem secundum consuetudinem manerij reddend antiquum redditum The said Manor consisted of divers free Rents amounting to 7 l. 15 s. Copy-hold Tenements held for Lives the customary Rent of which was 3 l. and Waste and Herriots The free Rents or Copy-hold Rents or Herriots were never devised before for Life or Years or otherwise A post mortem viri by Fine grants and renders the moiety of the Manor for 300 years rendring Rent amounting to the Free and Copy-hold Rents and 8 d. more payable at two Feasts whereas the ancient Rents were payable at four Per Cur. the Lease was void the Copy-holds ought to have been granted by Copy and not by Fine and the reservation at two days where the Rent was payable at four days before made the Grant void for its ad nocumentum haered and there can be no apportionment in that case for Copy-holds for Lives are uncertain and Herriots accidental When two Ferms are joyned together the entire Rent which is reserved out of both of them is a new Rent and not the accustomable Rent 5 Rep. 5. Lord Mountjoy's Case By whom made Ecclesiastical person If a Bishop let Copy-hold Land for Life rendring the ancient Rent it s not good because the Successor cannot Distrain the Copy-holder for Rent but if it be of a Manor to which a Copy-hold belongs its good Lit. Rep. 305. in Sheers Case Dean and Chapter of Worcester Lord of a Manor in jure Ecclesiae of which Manor H. G. was a Copy-holder for Life of Lands under the Rent of 8 s. 8 d. per annum payable Quarterly and Herriotable at the death of the Tenant the Copy-holds were by the Custom grantable for three Lives they demise the said Lands to H. G. and his Assigns for the Lives of R. J. and M. and the survivor of them renduring 8 s. 4 d. per annum at two Feasts Question was if this Lease were good or might be avoided by the Successor Per the Statute 13 Eliz. Cap. 10. It was resolved 1. The Lease was good though it was made pur auter vies and that the Occupants shall be punishable for Waste 2. Customary Demises are within this Law Customary demises are not in the Statute 13 Fl. cap. 10. for this Estate granted by Copy was in judgment of Law an Estate at Will and without doubt Lands which have been accustomed to be demised at will by those which have the Inheritance of the Land rendring rent are Lands accustomably let to Farm within the said Act. 3. The said Act of 13 El. doth not avoid the Lease if the accustomed yearly Rent or more be reserved and for that an Herriot is not a thing Annual nor a thing depending on the Rent it sufficeth if the Annual Rent be reserved 6 Rep. 37. Dean and Chapter of Worcesters Case Cro. Jac. 76. Baugh and Heyns mesme Case As to Leases by Bishops of Manors consisting of Copy-hold Lands and Services of Free-Tenants and reserving the ancient Rent vide 3 Keb. 372. Mod. Rep. 203. Threadneedle and Lynham Infant Copy-holder in Fee leaseth for years Infant without Licence by parcel rendring Rent Lease affirmed by acceptance at full Age he accepts the Rent being admitted to the Copy-hold and after ousts his Lessee Lessee brought Ejectment Judgment for the Lessee Per Cur. this Lease for years is no Disseisin to the Lord though it may be a Forfeiture and this Lease is not void but voidable and may be affirmed by acceptance Noy p. 92. Ashfield's Case Lach. p. 199. Vide Rolls Rep. 256. By a Copy-holder or Heir before Admittance vide Admittance As to Rents reserved Lands at Common Law and Copy-hold Lands are leased by one Indenture Lease of Free-hold and Copy-hold the Rent issues out of both rendring Rent the whole Rent shall issue out of the Lands at Common Law and not out of the Copy-hold But if a man leaseth Land part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the entry of the Disseisee the Rent shall be apportionted Moor n. 144. Term. Pasch 5 El. But the Law is not so for in Collins and Harding's Case Moor n. 723. the Judges were divided in Opinion about this very point But in Rolls 2 Abr. p. 426. it is resolved That this Rent shall issue out of the Copy-hold Land as well as out of the other Land for a Rent may be reserved out of the Copy-hold Land and this is such a thing to which one may resort for a Distress Collins and Harding's Case And this Case is farther Reported by Rolls 1 Abr. p. 234. If a man Lease for years Freehold Land and also Copy-hold Land by Licence of the Lord reserving a Rent and after grants the Reversion of the Free Land to another and the Lessee Attorn the Rent shall be apportioned for this waits upon the Reversion Rent apportioned vide Collins and Harding's Case also Reported in Cro. El. p. 600 622. The Rent issueth out of both and is not like to a Lease of Lands and Goods for all the Rent is there issuing out of the Lands and it is now in the Hands of the Grantee as one entire Reversion Pleading and he shall declare accordingly and although they be several Reversions yet he shall declare upon the truth of the matter Copy-holder by Licence of the Lord demised the same by Indenture to the Plaintiff for twenty years under the Rent of 25 l. per annum the Copy-holder surrenders the Reversion of the one moiety of the same Copy-hold to the Use of one N. W. to which he was admitted and then the Reversion of the other moiety to W. who was admitted Per Cur. the Surrender by the name of a Reversion is good though the Lease is by Indenture and not by Surrender Rent apportioned which if it had been so it had been derived directly out of the customary Estate for still it is the Lease of the Copy-holder and not of the Lord. Quaere if the Copy-holder in this case should forfeit his Estate the Lease would stand good against the Lord being by Licence And Per Cur. the Rent is to be divided by moyeties according to the halves of the Reversion and in this case it was resolved there needed no Attornment upon the Surrender for the Admittance settles the Estate Attornment Hobart 177. Swinnerton and Miller It was said by Hale Chief Justice That a Lease for years of Lands that are Copy-hold Lease of Copy-hold without taking notice that it was Copy-hold particularly without taking notice that this was Copy-hold this is good for the Rent of the Copy-holder and after
the Lease spent the Inheritance takes place and severs the Copy-hold from being granted by Copy after during the Lease but when that is spent it is well again Sir George Sand's Case cited in 3 Keb. p. 91. in Cholmly and Cooper's Case A. being a Copy-holder by Licence of the Lord leased his Copy-hold to Smith for years rendring Rent and afterwards by Deed granted the Rent to another Habend during the term c. to which grant the Lessee did Attorn and paid the Rent to the Grantee Per Gaudy the Grant is good but now it is but a Rent-seek Rent-seek the Grantee cannot have an Action of Debt for it for he is not party nor privy to the Contract nor hath the Reversion 1 Leon. 315. Austin and Smith Copy-holder makes a Lease for years How a Lease not warranted is good not according to the Custom of the Manor yet this Lease is good so as the Lessee may maintain an Ejectione firmae for between the Lessor and Lessee and all others except the Lord of the Manor the Lease is good Owen 17. Downingham's Case Of Leases made by those in Remainder or Reversion Tenant for Life By one in remainder by Parol the Remainder in Fee of a Copy-hold he in the Remainder makes a Lease by Parol Tenant for Life and he in Remainder joyn in a Surrender to the Use of him in the Remainder in Fee This is a good Lease and shall take effect in the life of Tenant for Life and it shall be good against him in Remainder for the Estate of Tenant for Life is extinct and cannot hinder the Lease to have operation like as he in Remainder grants a Rent-charge and after the Tenant pur vie surrenders the Rent shall commence presently Cro. El. p. 160. Dove and Williot A Lease for Life made in Reversion A Lease for Life may be made in Reversion of a Copy-holder according to Custom but whether such a Lease be void if made by Dean and Chapter per the Statute of 37 H. 8. which extends to all Colledges c. Quaere 1 Rolls Rep. 202. Long and Baker As to Remedy for Rents by Entry or Action Vide infra titulo What Statutes extends to Copy-hold Lands and sub titulo Actions and Suits What things are demisable by Copy Underwoods may be demised by Copy to one and his Heirs for this Underwood is a thing of Inheritance for after every cutting down they will grow again from the Stubbs Cro. El. 413. Hoe's Case Tythes may be demisable by Copy of Court Roll according to the Custom of the Manor for they may be parcel of a Manor as well as a Rent-charge Com. p. 43 Eliz. Sands and Drury Tonsura prati may be demisable by Copy of Court Roll according to the Custom of the Manor by Prescription per Gaudy Vide pluis supra Pleadings Custome quod tenens custumarius in feodo possit dimittere terras pro aliquo termino annorum sine Licentia Domini Cro. Entr. 123. Simile non excedens 21 annos Hern 81. CAP. XXI Of Licence What Licence shall be good By whom made shall bind or not Licence taken for a Confirmation When and where a Licence is to be pleaded specially and when and where not QUaere if Lessee for years may grant Licence to a Copy-holder to fell Timber To fell Timber The extent by Lessee how far good or not But though it be good against himself yet it is void against the Lessor because the Licence is derived out of the Interest and so can be of no greater extent than it and the Assignee of the Lessee may take advantage of it 1 Keb. 26. Muniface and Baker And by Twisden Where a Copy-holder hath Licence to fell though it were repealed by the Grant of the Lord of his Interest before the felling yet this is no Forfeiture though the Licence be determined by it ibid. Licence to make Leases Vide supra Leases The Lord Licenced his Copy-holder to make a Lease of his Copy-hold for 21 years Concurrent Lease to begin at Michaelmas following and he made a Lease accordingly by Indenture and also before Michaelmas by Deed made another Lease to another for 21 years to begin also at Michaelmas following Per Anderson The making of the second Lease was a Forfeiture the Licence is satisfied by the first Lease and so the second Lease is without Warrant and consequently a Forfeiture Lease void in Interest and good by Estoppel The second Lease is void in Interest and good by Estoppel If a Copy-holder make a Lease contrary to the Custom it is a forfeiture before the Entry of the Lessee Moor Case 329. Once a Licence to make a Lease and always If the Copy-holder make a Lease for years by Licence of the Lord the Lessee may assign this over or make an under-Lease without any new Licence for the Interest of the Lord was discharged by the first Licence 1 Rolls Rep. 509. Johnson and Smart What Licence shall be good and by whom by a Lord at will A Lord at Will of a Copy-hold Manor connot give Licence to a Copy-hold Tenant to make a Lease for years although that he may grant a Copy-hold for Life according to the Custom 1 Rolls Abr. 511. Petty and Debbans By Lord for Life Licence determinable If a Lord for Life of a Copy-hold Manor give Licence to a Tenant to make a Lease for years this Lease shall not continue longer than the Life of the Lord ibid. 2 Brownl p. 40. mesme Case Licence to make a Lease upon condition void Aliter upon a Limitation The Lord licenceth a Tenant to make a Lease upon Condition the Condition is void for the Lord giveth nothing by the Licence but doth only dispense with the forfeiture A Licence gives not a Right but only executes it but a Limitation to such a Licence is good as a Licence to let for two years he cannot Lease for three years Owen p. 73. Haddon and Arrowsmith If a Copy-holder makes a Lease for years by Licence of the Lord Copy-holder leaseth for years and dyes sans Heir if determined Licence taken for a confirfmation and dyes without Heir the year not expired Some say the Lord may enter for the Estate out of which this Lease was derived is detemined Yelv. contra This Licence shall be taken as a confirmation of the Lord and the Lease shall be good against him Popham 188. Pleadings When and Where a Licence is to be pleaded specially and when and where not In Ejectione Firmae brought by the Lessee of a Copy-holder it is sufficient that the Count be general without mentioning of the Licence if the Defendant plead Not Guilty then the Plaintiff ought to shew the Licence in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the Licence certainly in his Replication and the time and place when it was made and in this Case the
had not paid it accordingly The Plaintiff demurs the Lord having not shewed that the Fine assessed was reasonable But Per Cur. the Lord is not bound to aver that but it must come on the Copy-holders side to shew the circumstances of the Case to make it appear to the Court to be unreasonable But the Opinion of the Court was against the Lord in this Action because he had not laid a demand of his Fine at the time it grew due or sometime after of the person of the Tenant Refusal to pay an excessive fine no Forfeiture If the Lord demand an excessive Fine of his Copy-holder and he refuseeth to pay it it s no Forfeiture aliter where it is a reasonable Fine and the Court and Jury shall be Judges of the reasonableness of it But if a Fine be certain the Tenant is to bring it with him to Court and to pay it before Admittance and if he be not ready to pay it is a Forfeiture Moor n. 851. Dalton and Hammond Cro. El. p. 779. mesme Case No notice need where a Fine is certain Aliterâ— where it s uncertain Where a Fine is certain no notice or demand is necessary contra where it is uncertain and where the certainty is dubious the refusal is no Forfeiture 1 Keb. 154. Wheeler and Honour Tender and refusal is good payment Mod. Rep. 77. Legingham's Case Upon unreasonable Fine the Tenant may refuse to pay In Dow and Golding's Case The Question was whether the Lord of a Manor may assess two years and and half value of Copy-hold Land according to wracked Rent for a Fine upon Surrender and Admittance and for non-payment enter for a Forfeiture All the Court conceived That one year and an half Rent improved is high enough What Fine is unreasonable and two year and an half is unreasonable and therefore the Plaintiff in Trepass might well refuse the payment of it and the Entry of the Defendant for a Forfeiture is not justifiable Adjudged pro quer sur demur If the Ancestor had divers Copy-holds If the Lord demands one entire Fine for divers Copy-holds the Heir may refuse and the Lord demands of the Heir one entire Fine for them all the Heir may refuse payment the Lord ought to make several demands because the Heir may accept one and refuse the other And Waste in one of the Copy-holds is not a forfeiture of the other Cro. Eliz. 779. Dalton and Hammond If a Fine by the Custom of the Manor Refusal to pay a Fine certain upon the Admittance of a Copy-holder be certain if the Lord demand this Fine and the Copy-holder denies to pay it on demand Present Forfeiture without presentment this is a Forfeiture presently without Presentment But if the Fine by the Custom of the Manor be uncertain though a reasonable Fine be assessed yet it being uncertain the Copyholder is not bound to pay it on demand presently but shall have convenient time to discharge it 1 Rolls Abr. 507. But if he assess an unreasonable Fine and the Copy-holder refuse to pay it it s no Forfeiture therefor the Case of Turner and Cromwel cited in Crisp's Case is not Law 1 Rolls Abr. 507. It was held in the Case of Fanshaw and Bond Refusal to be admitted and to pay reasonable Fine That if a Copyholder refuseth to pay a reasonable Fine or to be admitted to the Copy-hold this is a Forfeiture of his Estate Stiles p. 387. Services If a Copy-holder do not perform the Services due to his Lord this is a Forfeiture 43 E. 3.25 b. What words of denial to perform Services shall be a Forfeiture or not The Lord comes to the Copy-holder and requires him to do his Services viz. such and such and the Copy-holder answers You shall have them if they are due by Law but it shall be tryed at Law first this was adjudged to be no Forfeiture in P. 16. Eliz. Vernon and Huggin's Case cited in Lach p. 122. Grey and Ulysses Case Not appearance at Court The not appearing at Court was a Forfeiture Now a Copy-holder said If it were a Court he would appear if none he would not though this appear to be a Court yet this is no Forfeiture because no wilful contempt Per Twisden in the Case of Muniface and Baker 1 Keb. 25. Willis's Case and Parker against Corker cited in the Case of Wheeler and Honour 1 Keb. 154. Stiles p. 141. Parker and Cooke Per Rolls if there were no controversie about the Courts being well held or not and that the words were used only as a Shift it s then a Forfeiture else not Warning of the Courts being held and where It was a Question whether a Copy-holder not coming to the Lords Court to do and perform his Suit in three years time be a Forfeiture It must be proved he had warning of the time of holding the Court for the Lord may hold his Court when he pleaseth 3 Bulstr 80. Belford and Adams If a Copy-holder in Fee retraxit Scil. withdraw his Suit for many years to the Court of the Lord no warning being alledged to be made by the Lord to him when he held his Courts it s no Forfeiture it is but a negligence aliter if he had been warned and then had refused to have done Suit 1 Rolls Rep. 256. Adam's Case The Manor of declaring when a Copy-holder is summoned Nar. and refuseth to do his Services 3 Bulstr 268. Hammond's Case Stiles 241. If the Copy-holder doth not come to the Court of the Lord Not coming upon notice without refusal express is a Forfeiture after a particular Summons made to their persons this was adjudged a Forfeiture without express refusal Noy p. 5. Sir Christopher Hatton's Case cited in Crisp and Fryer's Case 1 Rolls Rep. 429. Bullevant and Bickerstaff General warning within the Parish is sufficient General Summons or warning at Church for if the Tenant himself be not resiant upon his Copy-hold but elsewhere his Farmer may send notice to him of the Court If a man be so weak that he cannot travel without danger c. or if he he have a great Office c. these shall excuse Sir John Branch's Case 1 Leon. p. 104. Now Sir John had by his Letter of Attorny appointed the Son of his Farmer his Attorny to do the Services for him due for his said Copy-hold Per Cur. such a Person so appointed might Essoyn Sir John but not do the Services for him Services not to be performed by an Attorny An Essoyn may for none can do the same but the Tenant himself therefore the third Resolution in Tavernor and Cromwel's Case Cro. El. 353. seems not to be Law Vide Coke's Ent. 288. Tavernor and Cromwel's Case of a general Summons at the Church The Custom was If any Copy-holder in Fee dye seized and his Heir comes not at the next Court and claims the said Tenements and
the principal and reversed the Outlawry and was found Not Guilty and the Heir of him which was hang'd entred upon the Lord adjudged inasmuch as there cannot be an accessary unless there be a principal that the Entry of the Heir was lawful 2 Brownl 217. Gittins and Cooper So it s a good Custom in 1 Leon. p. 1. Burnford and Packington Copy-holder for Life was arraigned for Felony and convicted and prayed his Clergy whereupon the Plaintiff as Lord entred for the Forfeiture without alledging any special Custom or Attainder Q. 2 Keb. 451 456. Jury and Pawlet Of other acts which are Forfeitures If a Copy-holder forgeth a Customary containing divers false Customs and pretending them to be true Customs Quaere if this be a Forfeiture 3 Leon. 107 108. Tavernor and Cromwel By Inclosure Custom is That the Lord hath a Field-course for five hundred Ewes over the Lands of the Copy-holder from Michaelmas till Lady-day in all the Lands of the Copy-holders not inclosed the Custom was too That if they did Inclose he might Fine them Per Cur. Inclosure is no Forfeiture Paston and Utbert 5 Car. 1. Hutton p. 102. Lit. Rep. 246. mesme Case Rescous Rescous by a Copy-holder is a Forfeiture Replevin by a Copy-holder If a Copy-holder bring a Replevin it is a Forfeiture 1 Rolls Rep. 48. in the case of Warn and Sawyer Outlawry A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by it and yet the King shall have the Profits Inclosure Bare Inclosure is not Forfeiture of a Copy-hold Hetly p. 7 8. The manuring of Land to Hop Ground was agreed to be a Forfeiture If Doal Marks are about a Copy-hold and the Copy-holder makes such Ditches that he defaceth the Doal Marks this may be a Forfeiture for in time it may prove to the disheritance and loss of the Copy-hold What Acts of the Husband shall forfeit the Wives Land or not Feme Copy-holder of Inheritance takes Husband Husband makes a Lease for years Lease of a Copy-hold shall not bind the Wives Estate of Inheritance the Lord enters for a Forfeiture Husband dies the Feme dies the Heir of the Wife enters and his entry was adjudged lawful Palmer's Rep. 387. Savern and Smith 35 El. Sandley's Case 2 Rolls 344. mesme Case Denial of Rent by the Husband shall be a Forfeiture against the Wife and so shall waste Denyal of Rent by the Husband Quaere if waste be not a Forfeiture by the Statute of Gloucester which extends to Copy-holds but not collateral acts as cutting Trees c. By Doddridge waste at Common Law by the Husband shall bind the Wife but not a Feoffment and he took this difference Diversity where the Copyhold came to the Woman after Coverture his Forfeiture shall not bind her for then it cannot be said it was her folly to take an Husband that would forfeit c. Palmer's Rep. 387. Savern and Smith If a Feme Copy-holder pur vie Waste committed by Husband takes Husband who commits waste this shall bind the Wife and the difference is as to this and the Husbands making a Lease In waste the Forfeiture goes to the Inheritance of the waste which continues for ever but in Savern and Smith's Case this Forfeiture determines with the Lease But if a stranger commits waste without the assent of the Husband By Estranger this is no Forfeiture 4 Rep. 27. Clifton and Molineux Vide pluis infra A Feme Copy-holder takes an Husband who lets the Land for more years than the Custom doth warrant it is Quaere whether this shall bind the Wife as a condition in Law Per Wray If the Husband deny to pay the Rent or to do Suit of Court these are present Forfeitures which shall bind the Wife for they are things that the Lord must of necessity have but Quaere of the Lease saith the Book Cro. El. 149. Hedd and Challener But it hath been resolved ut supra in Savern's Case Who shall take advantage or enter for a Forfeiture and of what Forfeitures or not After a Copy-hold is dismembred from the Manor yet of what Forfeitures the Grantee or Feoffee shall take advantage It was a Question in East and Harding's Case If the dismembring of the Inheritance of the Copy-hold Land by the Feoffment of the Manor had disabled from taking the advantage of the Forfeiture It was ruled with this difference that all Forfeitures which accrew by reason of any matters of the Court are discharged but not Forfeitures at Common Law as Waste or Leases made to the disherison of the Lord but the Feoffee of them made in his time shall enter and take advantage thereof Moor n. 508. Lessee for years Dom. pro tempore Lessee for years of a Manor shall take advantage of a Forfeiture committed by a Copy-holder for he is Dominus pro tempore East and Harding's Case So Tr. 10. Jac. B. C. Rowls and Mason Lessee for years shall take advantage of a Forfeiture by waste after his Lease made and before the commencement of his Term Moor n. 508. If the Lord of a Manor in which are Copy-holders Tenants of the Manor and the Lord grant to a Stranger the Free-hold of a Copy-hold in Fee although by this his Tenement is divided from the Manor and not demisable per Copy again yet the Grantee of the Free-hold shall take advantage of a Forfeiture committed after by the Copy-holder for he ought to pay his Rent to the Grantee So in this case if the Grantee of the Frank-Tenement make a Lease for years of the Frank-Tenement this Lessee for years shall take advantage of a Forfeiture committed after by the Copy-holder for that he is Dominus pro tempore 1 Rolls Abr. 509. East and Harding Cro. El. 499. mesme Case For Copy-holder as to the Forfeiture of his Estate remains in all degrees as before the severance thereof from the Manor If a Copy-holder makes a Lease for years Where Lessee or Feoffee shall take advantage which is a Forfeiture at Common Law and afterwards the Lord make a Feoffment or a Lease for years of the Free-hold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Copy-holder shall continue his Estate and so is in nature of an affirmance or confirmation of the Lease Owen p. 63. Pen and Merival But If the Lord of a Copy-holder for Life Where he shall Lease the Copy-hold for years to commence after the end forfeiture or determination of the Tenant for Life and after the Tenant for Life commits a Forfeiture by making a Feoffment if the Lord will not enter for the Forfeiture yet the Lessee for years may 8 Rolls Abr. 858. Mere and Ridealt He in Remainder Copy-holder for Life the Remainder for Life
Rent one of the Cesty que vies dies The Question was whether the Harriot belongs to the Bishop or to W. Per Cur. 1. The Rent issues out of the intire Manor 2. That the Harriot reserved shall go with the Reversion Winch p. 46 57. Bishop of Gloucester against Wood. Pleadings What shall be a good Avowry or Conizance for an Harriot in Replevin or a good Justification in Trespass or not and how to be pleaded If the Lord avow generally for an Harriot without shewing what the Harriot should be whether Beast or other thing its sufficient Hobart p. 176. Shaw and Taylor Exception to an Avowry was for that in it he sets forth That if any Tenant dye seized the Lord is to have an Harriot and shews not of what Estate he should dye seized for in one case it may be an Harriot Custom may be due in another case an Harriot Service But Per Curiam it shews he took them nomine Heriotorum which is good enough 1 Bulstr 101. Sylliard's Case Defendant saith That all the Tenants for Term of Life c. after their deaths have used to pay to him an Harriot the Avowry is insufficient That Tenants should pay after their deaths its repugnant But if he had said That he and all those whose Estate he hath c. have had an Harriot it had been good this is Harriot Custom for Harriot Service is of Tenants in Fee 21 H. 7.13 15. 8 H. 7.10 Avowry by Harriot Service he need not shew what was the Beast he demanded nor the kind or price thereof Cro. Car. 260. Mayor and Brandwood Bar to the Avowry nulla habuit Animalia Quaere Hobart 176. Avowry for three Oxon Separatim pro separalibus Harriot ' Cust tunc 3 Br. 313 333. Prescription for Harriot sur Alienation 8 H. 7.10 Avowry for Harriot Custom hors son Fee is no Plea Vide supra Bend. p. 18. for Harriot Service hors son Fee is a good Plea Up. B. 110. Plowd 96. a. Avowry and Distress for Harriot Service bar by Harriot Custom Plowd 94. Woodland and Mantel Bar for Harriot reserved upon a Demise Tomps f. 257. Custom Pleaded Quod Dominus habeat Harriot Custumar post mortem cujusllibet tenentis Co. Entr. 39.3 Brownl 313 403. Simile si fuerint elongat tunc optimum animal levan cuban super terras Co. Ent. 666. Dier 199. Moor 16. Traverse Traverse tenure by Services alledged Co. Lit. 598 599. Traverse le seisin Quod Pater non fuit seisitus Coke Ent. 613. Plowd 94 95. Traverse le tenure protestando quod non fuit seisitus pro placito dicit quod non tenet c. 3 Brownl 329 349 313. Traverse del Custome 3 Brownl 313. Justification in Trespass Bar. quod Defend Dom. manerij habuit Harriot custom de omnibus tenentibus alienan sine Licentia Ra. Ent. 650. Up. B. 182. Bar by Harriot Custom Post mortem tenentis Co. Ent. 39. The like after the death of Tenant pur vie 3 Brownl 402. Repl. quoad 1 mes hors son fee quoad 2 Mes non est talis consuetudo Up. B. 222. Harriot pleaded in Bar al Trespass 1 Brown 383. CAP. XXVI What Statutes extend to Copy-hold Lands and within what Statutes Copy-hold Lands shall be contained by construction of Law without express words and what not HOW the Statute De donis extends to Copy-hold Lands or not Vide sub Tit. West 2. c. De donis Of Copy-holds Intayled It is expresly provided 1 R. 3. c. 4. Of Juries That a Copy-holder having Copy-hold Land to the yearly value of 26 s. 6 d. above all Charges may be impannelled upon a Jury as well as he that hath 20 s. Free-hold But now this is altered by latter Statutes Copy-hold Lands are within the words and intention of the Statute 4 Hen. 7.24 4 H. 7. c. â—4 Of Fines and non-Claim of Fines with Proclamations and five years non-claim and shall be barred as a Lessee for years and his Lessor shall be barred so the Copy-holder and his Lord Covin But if a Copy-holder by assent and covin to bar the Lord of his Inheritance makes a Feoffment and levies a Fine with Proclamations such Fine shall not bar the Lord no more than it shall the Lessor if it be levied by Lessee for the reason in Fermor's Case 3 Rep. f. 77. If a Copy-holder for Life or in Fee be ousted and the Lord be disseised Disseisin and the Disseisor levy a Fine with Proclamations and five years pass as well the Lord as the Copy-holder is barred and the Lord shall not in such case have five years after the death of Tenant pur vie for the Lord may presently have remedy by Action viz. Assise c. and recover the Land and the Lord may without consent or commandment precedent or assent subsequent enter in the name of the Tenant by Copy and his own Right to save their particular Interests as his own Freehold and Inheritance for the Lord is no Stranger but is privy in Estate But not if a Stranger who hath no Right enter c. 9 Rep. 105 106. Margaret Podgers Case The Case was A Copy-hold is granted to A. B. and C. for their Lives suecessive the Lord by Deed Inrolled bargains the Copy-hold to A. in Fee and levies a Fine to him with Proclamations A. dies seized this discends to M. his Son and Heir who levies a Fine to Uses Fine when it shall bar or not after ten years B. enters the Fine is no bar for no Fine or Warranty shall bar any Estate in Possession Reversion or Remainder which is not devested and put to a Right and the Lords Bargain and Sale doth not devest the Estates of them in Remainder for the Lord doth that which he may do by Law and A. was in by force of the Statute of 27 H. 8. And an Act of Parliament shall do no wrong Bicknal and Tucker's Case Trin. 9 Jac. Rot. 3648. was Whether a Fine with five years will bind the Copy-holder in Remainder There was a Copy-hold granted to three for Lives to have and to hold successively the first accepts a Bargain and Sale of the Freehold Whether a Fine and non-Claim shall bar a Copy-holder in Remainder by the Lord of the Manor and then he levied a Fine with Proclamations and five years pass Whether he in Remainder is barred or not Those whose Estates are turned to Rights either present or future are meant by the Statute to be barred If a Copy-holder for years be put out of Possession and a Fine levied and no entry by him he is barred by the Statute By the Bargain and Sale he in Remainder is not put out of Possession If a man makes a Lease to begin at Easter next and before Easter a Fine is levied and five years pass this Fine will not bar because at the levying of the Fine he could not enter for then his his Right was future If the
Lease had been in possession and the Lessee had never entred he had been barred 1 Brownl 181. This Fine shall not be a bar to the Copy-hold Estate in Remainder for Life for it is not turned to a right the Estate is given by Custom and is to have his beginning after the death of the first Tenant and if the first Tenant commit Forfeiture he in Remainder cannot enter and by Coke notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for Life remains in esse 2 Br. 153. mesme Case Custom that the Lord shall seize Copy-hold after three Proclamations and non-Claim by the Heir shall not bind the Heir that is beyond the Sea 8 Rep. Sir Richard Lechford's Case Statute 37 H. 8. Of Dissolutions 37 H. 8. Of Monasteries extends not to Copy-holds A Copy-holders Estate is not within the Statute of Monasteries and Chanteries to be avoided by any of the Statutes So by Statute 1 Ed. 6. Cap. 14. it is expresly provided That upon the dissolution of Abbies and Monasteries Copy-holds should continue as they did before the Statutes and should fall into the Kings Hands A Copy-holder dissolved by the Statute of Edw. 6. did between the Statute of 37 H. 8. and 1 Edw. 6. grant a Copy-hold Estate in Reversion but the Statute 37 H. 8. extends not to them 3 Bulstr p. 15. Long and Baker Vide 1 Leon. p. 4. mesme Case 31 H. 8. Eccles Leases Of making Leases of Copy-hold Lands belonging to Religious Houses for years after Leases for Lives or Years in being is within that Statute 8 Rep. 7. Heydon's Case 32 H. 8. Of Conditions Entries Assignee Copy-hold is not within the Statute of Entries for Conditions broken Surrendree of Reversion shall not enter for a Condition broken it s not within the Statute of Conditions Hob. p. 177 178. Swinnerton and Miller Copy-hold is not within the Statute of 32 H 8. Entries for Conditions Copy-holder by Licence makes a Lease for 60 Acres rendring Rent and condition of Re-entry Copy-holder Surrenders to J. S. and he demands Rent and enters for Non-payment J. S. is not such an Assignee as the Statute intends and Custom doth not trench to such collateral things such Assignee being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but he may plead his Estate immediately under the Lord Yel 222. Brasier's Case But Assignee of a Copy-hold is within the Statute to have Action of Covenant 1 Keb. 356. Arrears of Rent Baker's Case Quaere if of Debt Cro. Car. 21. Platt and Plummer Executors brought Action for Arrears of Rent of Copy-hold of which Manor the Testator died seized Per Cur. Action doth not lye for Arrears of Copy-hold Rents but only of Rents of Free Land and Statute 32 H. 8. extends not to them Yelv. 135. Appleton and Doiley 1 Brownl 102. Tenant in Tayl of a Manor wherein Copy-holds are demisable for Life c. for a certain Rent Copy-holder for Life dyes and the Lord demiseth it for 21 years 38 H. 8. Rents of Leases in Tayl. rendring the ancient Rent c. it s good within the Statute 38 H. 8. for its not any prejudice to the Issue as to the Rent Noy p. 106. The Lord Norris's Case Vide infra hoc capite If the Lord of a Copy-holder for Life demisable by 10 s. Rent leaseth it by Indenture to the Copy-holder and two others for their Lives rendring 10 s. Rent by which it is within the Statute of 32 H. 8. and is not material though the Harriot be lost because it is meerly casual Noy p. 110. Banks and Brown Vide Montjoy's Case 5 Rep. Et supra Copy-hold is within the Statute 32 H. 8. 9. 32 H. 8. Cap. 9. Of maintenance Of Maintenance for the Word is Any Right or Title 4 Rep. 26. a. Vide infra hoc capite Copy-hold is grantable for three Lives 13 El. Cap. 10. Dean and Chapter of London grant this to H. G. for the Lives of J. R. and M. reserving the ancient Rent but no Harriot the Rent was payable at four Quarters and by this Lease its payable half yearly yet this is not void by the Statute 13 El. Cap. 10. For the Occupant shall be punish'd for Waste and the Harriot is not annual nor depends on the Rent and as to the Rent it s the accustomed yearly Rent but in Mountjoy's 5 Rep. yearly was wanting 6 Rep. 37 Dean and Chapter of Worcesters Case Copy-holds are within all the Statutes of Bankrupts by express words vide supra Statutes of Bankrupts 1 El. and Jac. A Copy-hold is not within the Statute of Limitations Debt for the Fine of a Copy-holder is not within the Statute of Limitations 2 Keb. 536. Statute of Limitations Hodsden and Harris Vide. It is laid down for a Rule in Rowden and Malster's Case Cro. Car. 44. When an Act of Parliament altereth the Service Custom Tenure and Interest of the Land Rules when Acts of Parliament extend to Copy-holds or not or other thing in prejudice of the Lord or Tenant there the general words of such an Act shall not extend to Copy-holds Therefore W. 2. Cap. 20. Elegit Statute W. 2. Cap. 20. which gives Elegit extends not to Copy-hold Lands because it would be prejudicial to the Lord and a breach of the Custom that any stranger should have Interest there without admittance and allowance of the Lord. 27 H. 8.10 Stat. of Uses Statute 27 H. 8.10 of Uses toucheth not Copy-holds because the transmutation of Possession by the sole Operation of the Statute without allowance of the Lord would be to the Lords prejudice 31 H. 8. and 32 H. 8. Of Partition The Statute 31 H. 8. Cap. 1. and 32 H. 8. Cap. 2. whereby Joynt-tenants and Tenants in common are compellable to make Prohibition extend not to Copy-holds And the 32 H. 8. Cap. 28. Leases by Tenant in Tayl or by Husband of the Wives Land Statute 32 H. 8. Cap. 28. Which confirms Leases for 21 years made by Tenants in Tayl or by the Husband and Wife of the Wives Land touch not Copy-holds for that Statute warrants only such Leases of Lands which are grantable by Deed such are not Copy-hold Lands though by the Lords Licence they may be granted by Indenture yet in their own nature they are only demisable by Copy So Statute 32 H. 8. Cap. 34. And for the same reason which gives an Entry to the Grantee of a Reversion upon the breach of a condition by the particular Tenant toucheth not Copy-hold In all Statutes made for the good of the Common-wealth and wherein no prejudice accrues to the Lord or Tenants by reason of the alteration of any Interest Service Tenure or Custom of the Manor there the general words of such acts of Parliament do extend to Copy-hold Lands as Statute of Merton Cap. 1.
per quod quer ' communiam suam predict pro averiis suis c. in tam amplo beneficiali modo prout antea habuit c. habere non potuit This is a good Declaration though the Commoner cannot have any Damage for the taking and carrying away the Turffs yet the coming on the Land with Horse and Carts is a prejudice to the Common and the per quod the Common is impaired is the cause of Action and the carrying away a means to impair it 1 Rolls Abr. 89. Terry and Goodier and good tho' Damages were entire Action shall be brought in a Copy-holder Lunaticks name for though the custody of the Land was granted to one by the Lord yet no Interest was gained by this commitment and the Lord hath not power over the Lunaticks Lands without a Custom Hobart p. 215 216. Cox and Darson Trespass Quare clausum fregit Copy-holder of Under-Wood without the Soil shall have Trespass Quare clausum fregit Moor n. 480. Account for Profits Account lies not for an Heir Copy-holder for the Profits of his Copy-hold Lands taken during his non-Age where the Defendant hath not entred and taken the Profits as Prochein Amy but claims by Custom and Grant of the Lord to the Use of the Assignee which Custom is good 1 Leon. p. 226. n. 356. Anonymus Faux Judgment Writ of faux Judgment lies not for a Copy-holder Vide supra Writ of Right Close Writ of Right Close lies not for a Copy-holder 4 Rep. 21. Avowry for Rent by Lessee of a Copy-holder Lessee for years of a Manor distrains a Copy-holder for Rent he Replevins Lessee Avows Per Curiam Avowry may be made for the Rent of a Copy-holder in the Kings-Bench and there is difference between an Ejectione Firmae and this Case For the Ejectione Firmae is brought for the Copy-hold it self But this Avowry is for Rent due to the Lord which is a duty at the Common Law and therefore an Avowry may well be for it Cro. El. p. 524. Laughter and Humphry A Copy-holder in Fee by Licence made a Lease for 21 years by Indenture rendring Rent Covenant by Assignee of a Reversion wherein the Lessee Covenants for himself his Executors and Assigns That he will erect a c. The Lessor surrendred to the Use of the Plaintiff and his Heirs who was admitted accordingly and the Plaintiff as Assignee brings his Action of Covenant Whether the Assignee may maintain this Action by the Common Law or by the Statute 32 H. 8. Cap. 34. was the Question for the Defendant demurred upon the Declaration it was adjourned in Cro. Car. 24. Plat and Plummer But it seems by 1 Keb. 356. Baker and Berisford's Case That the Assignee is not within this Statute to have a Covenant Action of Debt doth not lye for Arrearages of Copy Rents for the Stat. of 32 H. 8. Action of Debt for Rent does not extend to them but to Rents out of Free Land Yelv. p. 135. Appleton and Doily And so Executors shall not have Debt for Arreages of such Rents due in the Life-time of the Testator The Lord of a Manor is and Fines No Remedy for Fines Rents c. after vendition for Admittances and Copy-hold Rents are Arrear and then he sells the Manor he is without Remedy both in Law and Equity He hath deprived himself of the Remedy by his own act viz. the vendition 1 Rolls Abr. 374. Serjeant Hitcham and Finch Copy-holder for Life becomes Lunatick A. Action of Trover to be brought in the Lunaticks name he being a Copy-holder sows the Land The Lord grants the custody of the Lunatick to B. A. takes the Corn to the Use of the Lunatick B. Brought Trover in his own name it s ill brought It ought to be brought in the Lunaticks name and not in the name of the Committee Noy p. 27. Cox and Dawson Covenant by Rent Custom is when a Copy-holder dies seized of Copy-hold Lands or Rent That his Wife shall have the one moiety and his Issues the other moiety A. B. so seized takes Mary to Wife and they have Issue John A. B. dies so that Mary is seized of the moiety for her Life and John of the other moiety in Fee and of the first moiety as his Reversion Mary and John her Son make a Lease to J. B. for twenty one years rendring fifty pounds Rent to Mary and fifty pounds to John and after the death of Mary one hundred pounds to John John marries Margaret they have Issue three Sons John dies so that a fourth part comes to his Wife and the other fourth part to his three Sons Rent is behind Margaret brought Debt on Covenant for the Rent Per Curiam it was well brought by her sole Joynder in Action without joyning Mary with her Tenant in Commonn shall joyn in Action so long as the privity of Contract remains but when the privity is determined as it is here they may sever and such Contract shall ensue the nature of the Land and also there is a vesting by Custom and express several Reservations 2 Siderfin p. 9. Baker and Berisford CAP. XXX Of Copy-holders being Impleaded and Impleadable in the Lords Court Vide supra Tit. Customs COpy-hold Lands are as the Demesns of the Manor and are the Lords Freehold and therefore are not impleadable but in the Lords Court Croke Jac. 559. Pymmock and Hilder One recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right A Precept cannot be made and awarded out of the Court to execute the said Recovery Posse Manerij and to put him who recovered into possession with the Posse Manerij for force in such cases is not justifiable but by command out of the Kings Courts 3 Leon. 99. A Woman recovered Dower of a Copy-hold within the Manor and 40 l. Damages 40 l. Damages recovered yet no Execution or remedy but by Petition and she brought Debt for the Damages in B.R. Per Cur. it lyes not because the Court Baron cannot hold Plea nor award Execution of 40 l. Damages though the Damages were there well assessed and because no Writ of Error or Faux Judgment lyes upon such a Recovery of a Copy-hold but only a Petition to the Lord of a Manor so that Copy-hold Plaints are not within the Jurisdiction of this Court of Kings-Bench Moor n. 559. Shaw and Tompson If an erroneous Judgment be given in a Copy-hold Court of a common Lord in an Action in nature of a Formedon a Bill may be exhibited in Chancery Faux Judgment how relieved in nature of a Faux Judgment to reverse this Pateshall's Case in Scaccario 1 Rolls Abr. 373. and Co. on Lit. p. 60. a. He cannot have the Kings Writ of false Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a
Tnant at Will and the Freehold being in another But he may have a Petition to the Lord in the nature of a Faux Judgment and therein assign Errors and have Remedy according to Law 4 Rep. 21. Brown's Case Fenner said he had seen a Record 36 H. 8. where the Lord by Petition to him had for certain Errors in the Proceedings reversed such Judgment given in his own Court Now real Pleints are in the Lords Court are in this Form A. de B. queritur versus C. de D. de placito terrae videlicet de uno Messuagio quadraginta Acris terrae c. cum pertin fecit protestationem sequi querelam istam in natura Brevis Domini Regis Assisae mortis Antecessoris ad communem Legem vel Brevis Domini Regis Assisae novae disseisinae ad communem Legem aut in natura Brevis de forma donationis in discendere ad communem Legem and so in the nature of any other Writ c. plegii de prosequendo F. G. c. CAP. XXXI Declaration of for and concerning Copy-hold Lands and Presidents IN Ejectione Firmae it was doubted by the Court whether the Plaintiff in his Declaration ought to set forth the Custom of the Manor That the Copy-holder may Lease c. and then to shew that the Lease is warranted by the Custom Whether in Ejectment the Plaintiff need to shew that the Lease was warranted by the Custom in 1 Anderson Rep. Ewer and Astwick But it is fully resolved and agreed in Rumney and Eves's Case 1 Leon p. 100. That the Plaintiff ought not to shew that the Lease is warranted by the Custom but that shall come of the other side This was Pasch 30 El. B. R. But in Hill 38 El. Cro. p. 469. Wells and Partridge it was doubted because otherwise being a general Court it shall be intended of a Lease at Common Law which a Copy-holder cannot make as if the Heir in Burrough English brings a Mordancestor he ought to shew the Custom in his Count and declare according thereunto This was the Opinion of Anderson in the Case and in Moor n. 927. Gregory and Harrison It is said to be resolved an Ejectione Firmae doth not lye of a Copy-hold if the Plaintiff doth not declare the Custom Lease and Ejectment but the Practice now is otherwise Upon Agreement Whereas W. was seized of Copy-hold Lands That he should surrender the same to the Use of Elkin and that he was to give him for the same 560 l. and if he sold the same over the Plaintiff to have the moiety of what he sold over and above It is said in the Declaration Declaration must be That he is seized in Dom. suam ut de feodo secundum c. and also may shew that they are customary Lands he was seized in Dominico ut de feodo secundum consuetudinem manerij and he doth not shew the same was customary Land Per Cur. he ought to shew it but he need not shew that he was admitted 3 Bulstr 230. Elkins and Wastel Declaration sur Assumpsit to make a Surrender of Copy-hold Land Placita gen spec p. 16. Declaration in Case for a Copy-holder for cutting down Trees upon his customary Tenements Brownl 252. Def. seisitus de terris custumar vendidit querentur statum suum inde ac omnia bona asâ—umpsit causare statum fieri quer in terris deliberare bona Rast Ent. 7. Nar pro tenen customar versus Dom Maner qui succidit arbores suê‘ Tenementa custumar per quod quer non habet suffeciens forale sepimentur maremium ê‘ro reparatione secundum consuetud Manerij Hern 216 or 226. 1 Brown 252. Pro ten custumar versus un Tanner de Tanpiâ—s erect propre rivulum decurren ad Messuagium querentis per quod aqua corrumpitur Hern 254. Ad exheredand quer de Tenementis custumar impediend ipsum de Administratione bonor ei committend Co. Entr. 29. Pro ten custumar molendini versus occupationem tenementorum quâ— per consuetur debeâ— molare grana ad dict' molend Hern 83. Narrat in Action sur Case per Copyhold que fuit le Tenant pur 3 vies successive des terres d'un Manor deins quel fuit un Custome habere successive c. un auter Custome que prima persona in copiis rotulorum ejusdem Manerij nominata poet surrender in manus Dom al son proper use al use des deux auters nominand Le Def. in consideratione quod le Plaintiff pro 12 d. in manibus 50 quarter de brasis illi deliberand assumpsit sursum reddere ad usu ipsius duor alior ex nominatione Def. procurare cur assumpsit promisit apparere apud Curiam accipere statum ad usum ipsius 2 aliorum deliberare les 50 quartur brasii pred Winch. Ent. 65. Narratur per Copyhold qui fuit Tenant pur 3 vies successive des terres tenus d'un Manor deins quel fuit un Custome habere successive c. un auter Custome que prima persona in Copiis rotulorum ejudem manerij nominat poec surrender in manus Dom al son proper use al use deux auters per ipsum nominand Le Def. in consideratione que pro 12 d. in manibus 50 quarters de Malt a luy deliberand ad assume a Surrender al use de luy mesme 2 auters nominatione Def. procurare curiam assumpsit promisit d'appearer al Court d'accepter del Estate a luy les deux auters pur deliver les 50 quarters de Melt venditur Winch Entr. p. 65. Chambers and Turner Cond del obligÌ„ a Surrender un Copyhold Estate al use delâ—quer al proche in Court Bar quod Def. al Court tenus tiel jour surrendroit accordant al effect del condicon Winch. Entr. 241 222. demur general al bar Eldre Ll'uelling CAP. XXXII Of Pleadings The general Rules of Pleading as to Copy-hold Estates Of Pleading Customs and Prescriptions and the different Forms Pleading in reference to Common and when to be pleaded by way of Custom or by way of Prescription The manner of Pleading when a Lease is to be answered which is set forth in the Avowry Where in Pleading the Commencement of the Estate must be shewn and by whom granted or not How a Licence must be pleaded by the Lessee Prescription for Copy-holders to be discharged of Tythes How to be pleaded Of Traverses when and where to be taken Forms of Pleading of Surrenders Admittances Forms of Pleading Estates in Fee Tayl for Lives or Years Pleading of Presentments Grants Pleadings in respect of Commons Trees Ways Inclosures Forfeiture and all other Pleadings necessary for the Copy-holder to set forth his Title or to defend it Pleadings General Rules of Pleading as to Copy-hold Estates EVery Admittance of an Heir upon a Descent amounts in Law to a Grant and after Admittance the Heir may in Pleading
Cap. Senesc del Manor al Court tenus 28 March grants al Plaintiff in Fee secundum consuetudinem le lieu in Question parcel del Manor Custom del Manor fuit pro chesun Tenant aver common en le lieu in Question per que le Plaintiff mit sa vache pur user sa common jesque c. Repl. per confession vel grant des custumarie Terres al Plaintiff mes ouster il replie que D. Cap. 7 May 8 Jac. demised al H. H. le dit Manor pur vies del A. sa feme H. son fitz J. sa file que un auter Close de Pasture nosme L. estreant custumarij terres 28 March 18 Jac. fuer grant per H. al Green in Fee Green 10 June fist Waste per succision de Timber Ash in le man 21 April 15 Jac. le Plaintiff ove auters del Homage fuit jure d'enquirer des choses enquirables deins le Manor le Plaintiff refuse a presenter le Waste pur que il forfeitur son Copy-hold le Seignior 12 July 15 Jac. enter le Def. come Bayliff a luy distreine pur damage fesant Rej. Quod protestand que Senescal ne done luy un charge de presenter le Waste que il nemy refuse a presenter ceo pro placito dic qd D. Cap. demise al H. prout devant que il grant al Green en Fee monstre Custome del Manor que chesun Ten poet crop lop arbores crescents sur leur customary Terres except Fruit Trees traverse le succision del Ash in le man la. Demur genÌ„al al Rejoynder Winch Entr. 931. al 934. Adjudged pro Quer sur gross default in Pleading the Forfeiture is alledged to be in May and the Court was holden in April before which was impossible Vide mesme Case Winch Rep. p. 63. Webb and Barlow Vide Winch Ent. 125. al 129. Custom that every Tenant had used to take Woods and Underwoods 2 Brown 350 251. 1 Brown 273 274. De Aquae cursu Prescriptur per seperales Dominos Manerii de aqua pro tenen custumariis Hern 255. De Chimin Way Pro domino Manerii habere viam c. ê‘ tenen custumariis trans diversa clausa c. Hern 72 711. 1 Brown 368. Prescription to have an Horse and Foot-way appertaining to a customary Messuage and Close over the Close newly assigned and the Lord of the Manor grants to Tenant for Life by Copy Defendant justifies as Servant to Tenant for Life for to use the way Replication de son Tort Demesn with a Traverse of the Prescription Rejoinder by maintainance of the Prescription and Issue upon this Winch 1093. Lock and Troublefield Bar in Trespass That every Copy-holder had an Horse and a Foot-way c. 2 Brown 248 249. De Inclosures Facere sepes fensuras clausi versus venellam ne averia tenen custumar ibidem evadant pasturam Hern p. 708. De Forisfacturis TrnsÌ„ Bar quod P. seisitus de maner grant custumar terres all Def. pur vie Repl Def. forisfecit terras per non residence per custom Rejoynd Def. fuit residens apud manerium non extra V. B. 157. TrnsÌ„ Bar per Franktenement Repl Terres sunt custumar grant al Def. in Fee Rejoynd quer forisfecit terras per succissonem arborum Sur maintenance de Replic Demur inde Co. Ent. 277 280. Similis Bar Replic Rej. quod quer forisfecit terras per decasum horrei Surrej Dominus expulsit quer dimisit aliis Horreum cecidit Quer reintravit Et travers quod quer fecit voluntarium vastum permittend horreu cadere Co. Entr. 280. Similes Bar Repl Rej. quer forisfecit terras per sectam Curie infactam Surrej Dominus expulit quer dimisit alij Cur tentur quer reintravit Et postea Curia tentur ad quam quer fecit defaltur Demur inde Co. Entr. 289. Des terres devises pur Cond broken Heir enter 1 Rep. 21. In Replevin the Defendant makes conizance as Bayliff to Sir Robert Chichester by Damage fesant Bar to the Conisance Sir Iohn Chichester Father to the said Sir Robert seized of the Manor of D. unde locus in quo est parcel and customary Lands in Fee granted by Copy to Geo. Allen in Reversion for Life Tenant in possession dyes Geo. Allen enters and the Manor descended to Sir Robert Geo. Allen espoused the Plaintiff and dyes The Custom of the Manor was That the Wife of every customary Tenant pur vie dying in possession shall have her Widows Estate by which her Husband being dead the Plaintiff enters and was seized for Life and put in her Beasts till the Defendant took them c. Replication the Defendant confesseth the bar as far as the entry of the Husband of the Plaintiff and the descent of the Manor to Sir R. But saith the Plaintiffs Husband such a day committed Felony by stealing a Mare and was Executed for this for which the Lord entred as forfeited Demur general and Joynder Winch Ent. 968. to to 970. Allen and Branch By Winch the Woman shall not have her Widows Estate without special Custom as in Gavelkind The Father to the Bough the Son to the Plough Similes Bar RepiÌ„ Rejoynd maintenance de franktenement traverse le grant per Copie Co. Entr. 280. Similes Bar Repl. Rej. quod quer forisfecit terras per Forgery del Roll de Customes Surrej Quer alij tenentes agreaverunt ponere consuetud manerij in scriptur traverse Forgery Co. Entr. 280. Forisfacttur pleaded pur fine insolutur Surrej quod finis non fuit rationabilis Demur ind Co. Entr. 645 647. Forfeiture de terme per tenant pur ans demise pur vie Plo. 188. Simile by Fine levied Co. Entr. 691. 1 Rep. 71. Hern 25. De terme pur felo de se Plo. 254. Rast Entr. 609. De Estate de tenant pur vie per alienation in Fee Ra. Ent. 65 208 398 647. 1 Rep. 107. Vet. Intr. 30 121. Per Recovery per fraud en Formedon Ra. Ent. 643. 1 Rep. 82. Bars per franktenement Repl. quod terre sunt cust bars que sunt customary terres c. TrnsÌ„ Bar quod C. seisitus de maner grant customar terres al D. de quo descend al Def. Repl quod maner descend quer qui fuit seisitus quousque transÌ„ travers quod terres sunt customar V.B. 153. Dower Dower Bar quod terres sunt Copy-hold grant per copie issint non-tenure Repl. Tenens est Tenens ut de libero tenemento Ra Ent. 231. Repl Bar quod F. seisitus in see prist al baron Def. qui est Tenant per le Curtesie Repl terres sunt customarie travers quod F. fuit seisitus in Fee Hern 681. TrnsÌ„ Bar quod terre sunt Liberum Tenementur Def. Rej. quod terre sunt custumar fuer dimiss quer per copiam Repl. per maintenance de frank-tenement traverse grant
Court holden to be tryed by the Jury and not by the Rolls the same shall not be tryed by the Rolls of the Manor but by the Country and the Party may give in Evidence the truth of the matter and shall not be bound by this mis-entry of time upon the Rolls for this Entry is not matter of Record 1 Leon. 189. Burgess and Foster The Issue was upon separalis pastura Evidence to prove separalis pastura upon the Traverse of the sole Feeding the Defendants Evidence was That the Plaintiff used to Mow and provide Fodder for Winter which Per Curiam they cannot Common being to be taken per Bouch In North and Holland's Case 2 Keb. 577. If in Ejectment a Lease is pleaded of a Manor c. whereof the Tenements in which were parcel and upon this Issue is joyned Quod non dimisit manerium and the Jury upon this give a special Verdict viz. That there were not any Free-holders but divers Copy-holders of the Manor and that this was known by the name of a Manor although that this was not a Manor in Law for default of Freeholders and although this was alledged in pleading to be a Manor which pleading is made by learned Men Substance found on special Verdict and although this was in an Action Adversary and not Amicable yet for as much as an Issue is tryable by the Lay Gents and in truth the Tenements in which c. pass by the Lease this Verdict is found for him which pleads the Lease of the Manor for the substance of the Issue is whether it was demised or not M. 22 and 23 Eliz. B. R. Vines and Durham cited in 6 Rep. 77. Sir Moyle Finch's Case The Custom of neighbouring Manors good Evidence The Issue was whether Fines called Gresham Fines ab ingressu are due to the Lord till full Age and Evidence for the Defendant was That other Manors adjoyning had the same Custom not to pay till full Age and allowed 3 Keb. Champion's Case In Ejectment The Plaintiff declares of a demise made for three years and it was confessed by the Plaintiff That the Lands were Copy-hold Lands and that the Plaintiff had not Licence to demise them for three years neither could he prove by any Custom that he could demise them for three years so the Plaintiff was Non-suit and the Lessor taken for a disseisor Per tot Cur. 1 Brownl p. 133. P. 8 Jac. Cramporn and Freshwal By Rolls When proof by Court Rolls are good if Copy of Court Rolls are shewed to prove a custumary Estate the enjoyment of such Estate must also be proved otherwise the proof is not good Stiles p. 450. in Pilkington and Bagshaw's Case Copy of a Lease which the Lord had in his Hands Copy of a Lease good Evidence Special Verdict or admission on former pleading good Evidence Copy of the Roll where good Evidence whereby the Tenant had power to make Leases is good Evidence without swearing it a true Copy also the finding by special Verdict or Admission on former pleading is good Evidence unless the contrary appear 1 Keb. 720. Lee and Boothby Copy of Roll under the Stewards Hand who was Councel for the Lord Plaintiff was admitted good for the Copy-holder but contra of short Notes by way of Breviat 1 Keb. 720. Lee and Boothby The Copy-holder moved the Court Order to bring in the Rolls for his defence not granted That the Steward might be ordered to bring in the Court Rolls to enable him to defend his Title but the Court denied it Stiles 128. Who may be admitted to give Evidence The Steward Steward though he had a Fee for Admittance may be a Witness 3 Keb. Champion's Case To prove a Custom Copy-holder That a Copy-holder may cut Trees a Copy-holder that had not but a Kettle may be a Witness 2 Siderfin p. 7. The Lord may be admitted to give Evidence for the Lessee or Copy-holder The Lord. though the Court would have spared him had there been other 1 Keb. 15. Gerrard and Lister Court-Leet Books Proof of the Plaintiff Tenant of the Manor was by Court Leet Books by presentment of the Homage and not per Juratores of any certain place and so it was supplied by Witness this was in a Case of Fishing Copy of Court Roll. By consent the Jury had a Copy of Court Roll given by the Plaintiff in Evidence 1. Keb. 22. in Trowel's Case In Ejectment the Defendant pleaded a Surrender of a Copy-hold by the Hands of F. then Steward of the Manor Issue was joyned absque hoc Traverse that he was Steward ill That he was Steward Per Curiam this is no Issue for the Traverse ought to be general That he did not Surrender for if he were not Steward the Surrender is void Repleader was awarded Cro. Eliz. 160. Wood and Butts Venue Where Issue is taken upon a Surrender it shall be tryed where it was alledged to be done Note when Issue is to be taken upon a Surrender where to be Tryed and not where the Manor is of which the Copy-hold is holden Cro. Eliz. 260. Wood and Butts The Custom was alledged to be in Warfield in the Manor of Wargrave and the Venire facias was de Wargrave tantum a good Venue and need not be from both 2. Bulstr 135. Good-groom and Moor. For the Issue being whether within the Manor there be such a Custom the Venue shall be only of the Manor and Warfield being parcel of the Manor shall be intended to be within it Cro. Jac. 327. Custom for Common was alledged to be as to half an Acre of Land Copy-hold parcel of the Manor of Buckland in Buckland and the Venire was de vicineto Manerij its ill for the Manor being alledged to be the Manor of Buckland in Buckland the Venire facias ought to have been from Buckland and a Venire de novo awarded Cro. Jac. p. 302. Mortimer and Pettyfer The Issue was whether the Copy-holder in one Town had Common in Land lying in another Town Exception was to the Tryal because the Venire was not of both Villages 1 Brownl 41. CAP. XXXIV Of Special Verdict Imperfect Custom not well found Failure of Prescription Finding directly not argumentatively How the Custom must be found by the Jury Substance found Verdict aided Presidents of special Verdict THE Jury find quoad parcel tenementorum Quoad parcel and shew not what and nothing for the residue the special matter and they did not shew what parcel and they found nothing for the residue and the Verdict was held to be ill for both and a Venire facias de novo awarded Cro. Jac. 31. Anselm's Case Special Verdict upon the Custom of the Manor of Toddington That any Copy-holder might Surrender out of Court into the Hands of two Tenants Copy-holders of the Manor c. The Copy of the Surrender found in haec verba Toddington in the Margent
At the Court Baron of the Honour of Hampton J. S. and J. D. Tenants of the Honour of Hampton do present An Honour That J. R. did Surrender into the Hands of two Tenants of the Honour Per Jones This being a Court of the Honour and into the Hands of the Tenants of the Honour it s not good but by the other three Justices its good enough For Toddington being in the Margent it shall be said a distinct Court by it self For an Honour consisteth of many Manors yet all the Courts for the Manors are distinguished and have several Copyholders Cro. Car. 366. Seagood and Hone. Special Verdict was That Copy-holder of Inheritance bargained and sold his Copy-hold Land c. to the Lessee of the Manor and this was by Indenture and the Indenture was to this effect Verdict found not according to the Indenture That he bargained and sold all his Lands and Tenements as well Copy-holds as other Lands bought of John Culpepper in such a Town but it is not found by the Verdict nor averred by the Party That the Land was bought of John Culpepper and so ill Winch Rep. p. 67. Hasset and Hanson Custom not well found A Copy-holder of Inheritance made a Letter of Attorny to two Joyntly and severally to Surrender his Copy-hold Lands in Fee to certain Uses after his death but the Verdict doth not find that the two Attornies were custumary Tenants nor doth it appear that they were customary Tenants at the time of the Admittance and the primier possession will make a disseisin by the Defendant if the Custom be not well found It is not found that the two Attornies were customary Tenants but it was objected here is so much found as shall make it to be presumed that they were Tenants of the Manor for it is found that the party is admitted secundum consuetud Manerij which cannot be a good Admittance if they were not Tenants But Rolls answered to be admitted secundum consuetudinem goes to the Admittance not to the Letter of Attorny the Custom is not good neither is it found that the Land is demisable at the will of the Lord c. and so it may be free Land and the Custom reaches it not Stiles p. 311. Wallis and Bucknal The Plaintiff entitles himself to have Common of Pasture c. to his Copy-hold and the Custom was traversed it was found he ought to have the same Common but that every Copy-holder used to pay time out of mind c. pro ead communia unam gallinam quinque ova annuatim upon this Verdict the Plaintiff shall have Judgment Failure of Custom found this is not a common sub modo for the Ter-Tenant had remedy for the Hen and Eggs by distress and it is not parcel of the Issue but had the Jury found that the Plaintiff shall have Common paying so many Hens and Eggs the Issue had been against him and it had been parcel of the Custom it s not Modus Communiae but collateral recompence One prescribes to carry Water out of the River the Jury find he ought to have this paying 6 d. yearly Failure of Prsecription found Per Cur. he hath failed of his Prescription for he had prescribed absolutely and the Jury found it conditionally or sub modo and the Ter-Tenant in this Case hath no remedy but by disturbance 5 Rep. 68. Gray's Case If the Issue be whether Jury must find directly and not argumentatively where a Copy-hold is granted to three for the Lives of two he who dies seized c. ought to pay an Harriot Custom and the Jury find there never was a Grant of such Estate within the said Manor This is not well found for this is but an argument that no Harriot ought to be paid but they ought to have found it directly M. 15 Jac. B. R. Ven and Howel If the Issue be whether by the Custom of the Manor a Copy-hold may be granted to three for the Life of two and they find that by the Custom it may be granted for three Lives this is not well found because it is only by Argument because if a greater Estate may be granted a lesser may be So if the Issue be whether a Copy-hold may be granted in Tail and they find it may be granted in Fee mesme Case What shall be intended by the Juries finding if c. then for the Plaintiff Special Verdict upon a Patent from King H. 8. which Patent was adjudged void to pass the Estate the Jury find if it were a good Patent then for the Defendant if otherwise they find for the Plaintiff It is intended there is a sufficient Title found for the Plaintiff unless by this Patent it be defeated If Jury be satisfied the Plaintiff hath Title the Court ought not to doubt thereof so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title the Court ought not to doubt thereof and so is Goodal's Case 5 Rep. 97. Cro. Car. 21. Castle and Hobbs Custom was pleaded by the Defendant That if a Copy-holder in Fee hath a Wife at the time of his death and two Sons or more that the Wife shall have her Free-Bench during her Life and that if the eldest Son dye living the Wife though he hath Issue his Issue shall not have it Custom must be found in the manner that he pleads it but the second Son The Jury found the Custom that the youngest Son should have it unless the eldest Son was admitted thereto as to the Reversion or made a Fine for it with the Lord in his Life-time Per Cur. The Custom is not found in that manner that he pleaded it therefore it is found against him that pleaded it for he pleaded a general Custom without exception and the Custom found is with an exception and special as the Case is in Dyer 192. Where a Custom was pleaded That a Feme should have it and it was found she should have it Verdict not aptly concluded durante viduitate but in this Case there was not any Verdict upon this Issue for they concluded their Verdict Si c. they found the Defendant guilty if otherwise not guilty and so there is not any conclusion of the point in Issue Per Cur. a gross fault and a Venire Facias de novo was awarded Cro. El. 415. Boraston and Hay In Trespass the Plaintiff in his Replication makes Title That this Land is parcel of the Manor of D. and demisable c. by Copy in Fee in Tail for Life or years c. and the Land was let to him by Copy in Fee Substance found the Prescription was traversed and found that it was demisable c. in Fee but never in Tail and that it was granted to the Plaintiff in Fee this was found for the Plaintiff for the Allegation That the Land was demisable in Fee or in Tail
Copy-holders Fines Forfeitures Surrenders Admittances Trusts c. and what is proper to be brought and examined in that Court Alteration of a Custom by consent of Lord and Tenants allowed in Chancery Custom altered and decreed accordingly Dyer contra Dyer 10 July 44 El. If any particular Copy-holders complain in Chancery of the grievousness of a Fine Outragious Fines as to particular Copy-holders relieved but not upon a Petition by all the Copy-holders where the Fine is arbitrable at the will of the Lord if such Fine be outragious my Lord will mitigate it and lessen it according to the time But if the whole company of Copy-holders do exhibit a Bill praying a mitigation of their unreasonable Fines where they are arbitrable at the will of the Lord in this Case my Lord will reject the Bill for said he I can make no Act of Parliament for them 24 Nov. 44 Eliz. The Defendant being Lord of a Manor had 150 l. as a Fine upon the Plaintiffs admission to the Lands in question The Court of Chancery directed to an Issue whether the 150 l. were a reasonable Fine or not and the Defendant got a Verdict and the Damages were given by the Jury being to the Value This Court declared Reasonableness of a Fine how to be determined and properly recovered That the Fine was proper to be recovered at Law and that the reasonableness or unreasonableness of a Fine to be paid by a Copy-holder is a question of Law and not to be determined by a Jury Hill contra Jacobs 3 Jac. 2. f. 2. One improved years value decreed to be a moderate Fine In the case of Popham and Lancastar 12 Car. 1. The Court seeing there hath been a variation of the Fines and not certain decreed That one improved years value is a moderate Fine between Lord and Tenant so was Middleton and Jackson's Case 5 Car. 1. Forfeitures wilful not relieved In the Case of Ackland Pope and my Lady Wentworth the Lord Chancellor said he would not relieve any Copy-holder who through wilful Forfeiture hath given cause of seizure to the Lord for he said The Lord had as good a right to a seizure for a Forfeiture as a Copy-holder to his Copy-hold Estate but a wilful Forfeiture he would not relieve but for negligence he might Copyholder conceals the Land of the Lord. If a Copy-holder conceal the Land of the Copy-hold to the disherison of the Lord and say to the Lord Lay out of my Land and I will pay you your Rent for it My Lord Chancellor Elsemere said He is worthy to return to his ancient villainous Tenure again Commons for Copy-holders Commons for Copy-holders and Terminors to be relieved in Chancery Tothil 108. Colcot and Lee. A Copy-holder can have no assise of Common against his Lord Copy-holder can have no Assise against his Lord but relievable in Equity Copy-holder to sue at Law sans forfeiture but is to be relieved in Equity The Tenants of Petsworth and the Earl of Northumberlands Case Tothil 108. The Court will compel the Lord to admit a Tenant Copy-holder to sue at Law without any forfeiture of his Copy-hold Tothil 65. Tenant by Copy shall not have Assise against his Lord because he hath a Frank-tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. A Suit was to compel a Lord to Grant a Licence to let a Copy-hold Licence Forfeiture to be examined before a Licence be decreed but because the Defendant said in his Answer That the Copy-hold was forfeited the Court would not enforce him to grant a Licence till the forfeiture was examined Tothil 107 108. A Court of Equity shall compel a Lord to admit a Copy-holder Admittances for before Admittance he cannot have an Action upon Surrender and he hath no remedy at Common Law Hetly Rep. p. 2. A Bill in Chancery to admit a Copy-holder against Lord and Steward Plaintiff admitted to try a Title upon a Mortgage and this was only to try a Title to enable a Mortgagee to try a Custom That if mony be paid after the day so it be before Entry of the Surrender made by Mortgagee that its a sufficient Redemptition and also where the Wife Inheretrix dies sans Issue the Husband shall have the Fee at Taunton Dean Per Cur. the Plaintiff shall be admitted though the Steward need not have been made one of the Defendants 2 Keb. 357. Towel versus Cornish * Chancery will design the Bounds of a Copy-hold but not whether parcel or not parcel If a Copy-holder removes or defaceth the bounds of a Copy-hold it is proper for such a Court to design them but parcel or not parcel of a Copy-hold belongs to the Common Law to try Hetly p. 2. Blackhal and Thursby Possession after 43 years Lyford contra Coward 35 Car. 2. Richard Lyford Senior the Plaintiffs Father being seized in Fee of Freehold and Copy-hold Lands and having had Issue Richard Thomas and John now Plaintiff by Will gave the Plaintiff all his Copy-hold Lands and to his Heirs Males and for default of such Issue to his Heirs general and made a Surrender to the Use of his Will That the Surrender was presented and the Plaintiff admited Tenant and hath ever since been of the Homage and enjoyed the Copy-hold Lands That Richard the Son died 1637. leaving only one Daughter the Defendant Mary That the Court Rolls are lost and the Defendant insists That he in right of his Wife the Defendant Mary as Heir at Law to the said Richard Lyford Senior is entitled to the Premises there being no such Surrender or Admittance to be found and that no such Will was made or any thing that will make out the Defendants Title The Court declared they would see Presidents but then declared That after 43 years possession they thought it hard that the Plaintiff should be evicted and Ordered That the Defendant should admit of a Surrender and Admittance upon payment of Costs and bring an Ejectment and the Plaintiff not to insist on his possession to hinder the Tryal The Court Decreed to the Plaintiff and his Heirs to enjoy the Land according to the said Will and Custom of the Manor Relief as to Surrenders Purchases Agreements Trusts Rolls lost and Rents Arrear It is Decreed in the Case of Greenwood cont Hare 18 Car. 2. That where one was a Copy-holder for the Lives of himself and his two Sons and he paid the Fine Defendant decreed to surrender according to an Agreement and afterwards covenanted and agreed with the Plaintiffs Father to Surrender his Title and Interest in the Premisses to the Plaintiffs Father and his Heirs Copy-holder dies before any Surrender The Plaintiffs Father dyes he Exhibits his Bill to have the Premisses surrendred according to the Agreement the Purchase-mony having been paid by the Plaintiffs Father The Court considering That by the Custom the Defendants Father could have
else non-payment is not a Forfeiture 198 Surrender by a Copy-holder for Life to one in Fee is no Forfeiture What is a present Forfeiture without presentment 199 Heir beyond Sea shall not forfeit for not coming in upon Proclamation in Court 202 Wilful Forfeitures not relieved in Chancery 320 Where the Wife shall suffer for the Forfeiture of her Husband or not 211 Forfeiture as to cutting of Trees by Tenant for Life 207 208 Where Admittance is a Dispensation of a Forfeiture 217 Where Amerciament is a Dispensation of a Forfeiture ibid. Forfeiture purged by Release ibid. Where and what Acceptance is a Dispensation of a Forfeiture and where and what not 218 Where the Heir shall not take advantage of a Forfeiture in the Life of the Ancestor 219 The Lords Remedy for a Forfeiture 220 Bill in Chancery to reverse a Faux Judgment given in the Lords Court 326 What alienations shall be a Forfeiture 206 Forfeiture in Waste 207 By Rescous 216 By Inclosure 210 After a Copy-hold is dismembred from the Manor of what Forfeitures the Feoffee or Grantee shall take advantage 212 Where the Forfeiture of one Copyholder is the Forfeiture of another where Forfeiture of part shall be of the whole 214 215 G. By the Kings Grant of all his Demesn Lands Copy-hold shall not pass aliter in the case of another What things may be granted by Copy 78 Of voluntary Grants by the Lord 79 80 Disability of the Lords person no hindrance of the Grant 80 What Estate the Lord must have to enable him to make Grants 81 82 Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio 84 Grants by Tenant at sufferance or one that has a tortious Title not good 86 87 Copy-hold not to be granted by parcels 89 What amounts to a Grant 90 How Grants of a Copy-hold to be expounded 90 91 92 What shall pass in a Grant by the words cum pertinentiis 92 94 By what words in Grants Copy-holds shall pass or not 92 93 H. Honour what 311 Where the Heir shall be in by discent or Purchase 123 Heir before Admittance is not a compleat Tenant to all purposes Hariot Service and Hariot Custom the difference 237 238 What Custom for Hariots shall be good or not 239 Where and how Hariots shall be apportioned or not 240 Who shall pay an Hariot and when and when not Who shall have an Hariot 241 Pleading as to Hariot vide Tit. Pleading What shall be a good Avowry in conuzance for an Harriot in Replevin or a good justification in Trespass or not and how to be pleaded 244 I. Infant not bound by many Customs 21 If Infant Surrender he may enter at full Age 21 Infant may make a Lease without Licence and not forfeit 21 Surrender by Infant at five years old Custom to assign one to take the profits of a Copy-hold Infant Interruption in the Possession and in the Right 32 42 Faux Jugdment given in the Lords Court where relievable Copy-hold Lands are not within the Statute 11 H. 7. cap. 20. Of Joyntresses 254 The Lord to have the custody of an Ideot 17 K. Kings Grants favourably construed 32 King need not recite in his Grant that it is Copy-hold 23 Surrender to the King without other matter of Record where good 24 L. Lease 108 181 Custom to Lease without Licence may be good 51 52 Lease made before Admittance in what case good 54 What Leases made by a Copy-holder for years are a Forfeiture or not 203 When a Lease shall begin in point of eomputation and not in point of Interest 184 Lease of Copy-holds made by Tenant in Tayl ibid. Lease of Copy-holds made by Ecclesiastical Persons 186 Lease affirmed by acceptance 187 Lease of Free-hold and Copy-hold the Rent issues out of beth 187 In what respect a Lease not warranted by Licence or Custom is yet good in Law 189 Lease void in Interest and good by way of Estoppel 192 What shall be said a Covenant and no Lease and so shall not be a Forfeiture 206 Lease for years not warranted is no disseisin to the Lord 182 Licence Once a Licence to make a Lease and always a Licence What Licence and by whom granted shall be good or not 191 Licence taken as a confirmation 193 Licence pleaded vide Pleadings Copy-hold not within the Statute of Limitations 251 M. Manor the Original and Nature of it 6 Customary Manor what 7 What shall be said parcel of a Manor and what shall be said a severance 2 Manor not to be created at this day 4 A Manor in reputation 5 A Manor in gross 7 How the Lord may create a customary Manor 8 Severance of Copy-hold from the Manor what it operates What shall be said time out of memory 30 Copy-hold is within the Statute 32 H. 2. cap. 9. of Maintenance Manor by reputation how it will pass 7 How Copy-hold may be severed from the Manor and how not 11 N. Notice There must be notice of the Alteration of the Use and Estate or else there can be no Forfeiture for denial of Rent 197 No notice need where a Fine is certain aliter where it is uncertain 191 P. Priviledges of the Lord 17 Priviledges of the Copy-holder 17 18 Difference between Priviledges annexed to the Seigniory and Priviledges annexed to the Tenancy 19 Pleading vide Traverse Uncertainy in Pleading vide sparsim Pleading by an usitatum fuit where good or not 64 How a Copy-holder shall plead in making Title to a Copy-hold 271 272 Whether in Pleading the reasonableness of the Fine must be avered When and where a Licence is to be pleaded specially and when and where not 193 Grant of Copy-hold Land in Reversion must be pleaded as a Grant in Reversion and not as a Grant in possession nor by a per nomen 271 The Manor of a Copy-holders pleading Custom or Prescription 275 How a Prescription must be made by a particular Tenant at will ibid. The manner of a Copy-holders pleading Custom or Prescription for Common 32 Special Prescription to be pleaded in case of severance of the Copy-hold Tenement from the Lord 278 The manner of pleading when a Lease is to be answered which is set forth in the Avowry 280 Where the Action is brought as of a Lease at Common Law and one pleads a Lease of Copy-hold Land 281 Custom or Licence must be shewed specially ibid. How Lessee is to plead a Licence ib. How a Surrender is to be pleaded Pleading of Prescription by a Copy-holder to be discharged of Tythes 282 The Forms of pleading a Surrender vide Surrender 290 Grant 291 Common 292 Trees ibid. Way 296 Forfeiture 297 Pleading Custom or Prescription 273 Bar that the Lands are customary Lands 299 Pleading as to Harriots 242 Presentment 136 When to be made 137 If Surrendror or Cesty que use or customary Tenants dye before Presentment yet Presentment and Admittance may be afterward 138