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
Statute by Equity work to make it an Estate Tayl also of this nature of the Land Popham's Rep. 33. Gravenor and Brooks so Bullen and Grant's Case A Copy-holder Surrendred to the Use of J. for Life the Remainder to H. and the Heirs of his Body it was a Question if this Estate limitted to H. was an Estate Tayl or a Fee-simple conditional for if it were a Fee-simple conditional then there cannot be an other Estate over but yet in Case of a Devise an Estate may depend upon a Fee-simple precedent but not as a Will but as an executory Devise Per Wray it is an Estate Tayl. Coke then said They who would prove the Custom to Entayl Copy-hold Lands within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies but they ought to shew that Surrenders made by such persons have been avoided by such matter But by Wray that is not so for customary Lands may be granted in Tayl and yet no Surrenders have been made within time of memory 1 Leon. p. 174. Bullen and Grant Cro. El. 148. mesme Case Heyden's Case in 3 Rep. 8. is clear That neither Statute without the Custom nor the Custom without the Statute but both co-operating may create Tayl. And as for Custom if the Custom be to grant Lands in Fee-simple this without question may be granted to one and the Heirs of his Body by Copy for omne majus includit minus My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case First says he a Copy-hold may be Entayled not Entayled as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold which is a kind of base Estate and which might be grantable to one and the Heirs of his Body according to the Custom and if he dyed without Issue it might be aliened again and that a Copy-holder could not bar his Issue unless by a Recovery such an Estate might be by Custom I hold saith he That the Evidence may fall out to be such that we may take it for granted that Lands granted by Copy to one and the Heirs of his Body the Remainder over may be a good Remainder and the Reversion may continue in the Copy-holder the Donor may have a good Reversion and all this without the help of W. 2. That which confirms me is the constant practice of most Copyholds to have Estates over As for the reason of it if we shall give in Evidence for the purpose a Surrender in H. 7ths time wherein Lands are limited to one and the Heirs of his Body the Remainder over this is an Evidence that it was so in H. 7ths time and we have reason to think so it was past time of memory of Man And as your Evidence is for Custom so may your Case be to make an immemorial Custom Then all the Question is whether it will bear it or not In this Case of a Copy-hold being an Estate at will you may have it at will according to the nature of the Custom it is not against the Analogy and Reason of the Law and it may bear it the Evidence may be such If in H. 7th or E. the 4ths time it appears so it is a good warrant for matter of Evidence for a Jury to find That there were such Copy-hold Estates with limitation over Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body the Remainder over or to grant the Land by the name of a Reversion for here is no alteration of Common Law Estates The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate Proofs of an Estate Tayl. neither a Remainder nor a Reversion but the Act prohibiting Alienations Quo minus ad exitum illorum quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad donatorem si exitus ejus deficiat revertatur by operation of Law it comes to a Remainder or Reversion if by Custom such Estates may remain or revert so may Copy-holds by Custom because they are Tenants at will Now as by that construction W. 2. did make a Remainder or a Reversion so the Custom of prohibiting Alienations by Copy may make Reversions or Remainders of Copy-hold Estates If the Reader hath a mind to see other Cases about the Entayling of Copy-holds though they are all reduced to what is before cited he may peruse 2 Brownl 42 76. Keymer and Poel 121. Hill and Upchurch 1 Rolls Rep. 48. Warn and Sawyer Cro. El. 717. Erish and Rives c. 2 Brownl 121. The Law about Entayling of Copy-holds is setled and agreed by the Judges B. R. 17 Car. 2. Newton and Shaftoe's Case That it is by Custom and not by the Statute so agreed M. 18. Car. Pilkington and Stanhop's Case queux vide apres Of docking or barring Copy-hold Estates being barred by Fine or Recovery or otherwise It is agreed by all the Judges 1 Rolls Rep. 48. Warn and Sawyer's Case That if an Estate Tayl may be of a Copy-hold by Custom that by Custom it may be dock'd and destroyed See More n. 877. A Copy-hold may be Entayled by Custom and barred by a Recovery by special Custom and it was agreed that a Surrender may bar the Issue by special Custom Chard and Wyat so Lee and Brown M. 15 Jac. B. R. And it was agreed to be a strong proof of the Custom that they to whose Use such Surrenders had been made had enjoyed the Land against the Issue in Tayl 1 Rolls Abr. 506. mesme Case The Custom of the Manor of Wakefield was That they may Entayl their Copy-hold Lands and the Custom of the Manor to bar the Entayls and the Remainders there is That the Tenant in Tayl shall commit a Forfeiture as by making a Lease without Licenc c. and then for the Lord to make three Proclamations and to seize the Copyhold and then to grant this to the Copy-holder and his Heirs allowed to be a good Custom Also this Custom there was good That if Tenant in Tayl make a Surrender to a Purchaser and his Heirs of his Copy-hold and such Purchasor intending to bar the Entayl and the Remainders commits a Forfeiture upon which there is a seizure by the Lord and three Proclamations c. and so for him to grant these were adjuged good Customs though the Tenant in Tayl nor his Issue are privy See as to this last Custom in a Tryal at Bar in Ejectment Siderfin p. 314. Lessee of Pilkington contra Stanhop So in Ejectment in Grantham and Coplies Case 2 Sanders 422. And it was faâ—ther adjudged If such Forfeiture be presented in the Copy-hold Court and the Land seized in Manus Domini the Lord may not
Rep. 25 26. Where by the Custom Plaints have been made in the Court of the Manor in the nature of real Actions if such a Recovery be against Tenant in Tayl Copy-holder this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for they are warranted by Custom and it is an incident that the Law amounteth to the said Custom that such Recovery shall make a Discontinuance 4 Rep. 23. Deal and Rigden Discontinuance If a man seized of Copy-hold Land in right of his Wife surrender it to the Use of another in Fee who is admitted and the Husband dyes this is not any Discontinuance to the Wife nor to her Heirs but that she may enter and shall not be put to a cui in vita nor her Heir to a sur cui in vita 4 Rep. 23. Bullock and Dibler Yet Walmsly in Collins and Cranks Case Cro. Jac. 105. held it was a Discontinuance Quaere his Reason Surrender by Tenant Copy-holder in Tayl If Surrender make a Discontinuance makes not any Discontinuance except a special Custom be and then its a bar Vide prius and Cro. El. p. 148. Bulle's Case But in Cro. El. 717. Erishes Case That such a Surrender is a Discontinuance to put the Issue to his Action this being as strong as a Livery by Tenant in Tayl and the Alienee is in by the Tenant in Tayl though he comes in by Grant of the Lord 1 Leon. p. 95. Case 124. Knight and Footman there holden That the surrender of Copy-holder in Tayl to the Use of another in Fee doth not make any Discontinuance but the Issue in Tayl may enter and the Serjeants Case there cited to be so One under age surrenders and dyes having Issue A. A. may enter and shall not be put to his dum fuit infra aetatem 1 Leon. 95. Knights Case But it is setled That a Surrender makes not a Discontinuance Vide infra pres a pres A farther Discourse of what shall amount to a Discontinuance or not Vide hic Cap. supra If a Copy-holder in Tayl admitting it be an Entayl surrender to the Lord to make his Will and he re-grants this to the Copy holder this is not any Discontinuance although a Surrender to the Use of an Estranger should be admitted to be a Discontinuance for a surrender to the Lord may not make any Discontinuance forasmuch as he had the Reversion agreed upon Evidence at the Bar in Lee and Brown's Case Mich. 14 Jac. B. R. So a Surrender of a Copy-hold Entailed to certain Uses c. is no Discontinuance though the Court there said it had been a great Question but by a special Custom such surrender may be a Discontinuance Discontinuance to the Wife If the Husband seized of Copy-hold in the right of his Wife surrender this to the Use of another in Fee who is admitted accordingly Husband dyes this is not any Discontinuance to the Wife 4 Rep. 23. Bullock and Dibler's Case nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to a sur cui in vita A Discontinuance may be of a Copy-hold Entayl admitting it to be a Tayl as by a Recovery in a real Action in the Lords Court 4 Rep. 23 Deal's Case Quaere if it be not more properly a Bar for the time than a Discontinuance 1 Rolls Abr. 634. Morris's Case 44 Eliz. B. R. In Chard and Wyat's Case More n. 877. The Court were divided in Opinion whether a Surrender was a Discontinuance The Case was this A Copy-holder in Fee surrendred to the Use of his Will and having a Daughter born and his Wife with Child he devised by Will part of his Land to his Son or Daughter with which his Wife went haeredibus suis legitime procreat and the residue he devised to his Daughter born to have to her and the Fruit of her Body and if she dye without Fruit of her Body the same shall remain to the Child in the Mothers Belly and if both dye without Fruit then J. S. should sell the Land and willed the one Sister to be Heir to the other The Wife of the Devisor entred and was admitted and had a Daughter which afterward dyed the Mother took Husband and they surrendred Resolved 1st That this was a Fee Tayl in the Daughter 2ly That one in ventre sa mere could not take an Estate in possession by Purchase but in this Case she may take in Remainder But whether it were a Discontinuance the Court was divided but they all agreed a Copyhold may be Entayled by Custom and barr'd by Recovery by special Custom and yet in Moor n. 1087. afterwards it was adjudged a Surrender by a Tenant in Tayl of a Copy-hold was not a Discontinuance but by what is said before the Law is setled as to this point But to cite no more in this point where by Custom of the Manor Pleints have been made in the nature of real Actions That if a Recovery be in a Pleint in 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 are warranted by the Custom this is an incident which the Law annexeth to the said Custom 4 Rep. 23. Deal and Rigden CAP. XX. Of Leases of Copy-hold Estates Leases by the Lord and Rent reserved and his Remedy by Avowry And of Leases made by Copy-holders What is a Forfeiture or not When a Licence to make a Lease shall be said to be persued or not Commencement of a Lease Leases by whom made Bishop Tenant in Tayl. Infant Of Rents reserved What things are demisable by Copy Of Leases of Copy-hold Land Vide Title Customs as to Leases and Limitations of Estates supra Of Leases of Copy-hold Land made by the Lord Tenants 1. By the Lord and his Avowries and remedy for the Rent Lease of the Freehold of a Copy-hold THE Lord leaseth the Freehold of a Copy-hold to J. S. this is good betwixt J. S. and the Lord But the Lord cannot reserve the Rent upon such a Lease 1 Keb. 15. Gerrard's Case Custom A Custom That on payment of ten years Rent the Lord should Licence to let for 99 Years and if he refused the Tenant might do it without Licence was adjudged good and reasonable Grow and Bridges cited in 2 Keb. 344. Porphyry and Legingham If a man be seized of a Manor wherein are divers Copy-holders admittable for Life or for years Lord lets for Life he may Lease by Copy in Reversion to commence after the death of the first Copy-holder and he leaseth the Manor to another for term of Life the Lessor may make a Demise by Copy in Reversion to commence after the death of the first Copy-holder and that is good enough but the Custom of some Manors is to the contrary and that is
The nature and effect of a Presentment 139 Two Surrender and the second Surrender is first presented 140 What will make a possessio fratris so as to inherit a Copy-hold Priviledges of Copy-hold 18 19 20 R. Popish Recusant shall forfeit all his Copy-hold Land within 25 El. c. 10. 253 Copy-hold Rents apportioned 188 Action of Debt lyes not for Arrears of Rent within the Statute 32 H. 8. 250 One Lease of Freehold and Copy-hold the Rent issues out of both 187 Avowry for Rent by Lessee of a Copy-holder 262 S. Steward 75 Deputy acts done by him or his Servant shall be good so by a reputed Steward 76 77 Infant cannot be a Steward 77 Surrender 95 The nature of a Surrender ib. Where and in what respects Estates may pass otherwise than by Surrender 99 The Lord not compellable to make a Surrender 49 Where Surrender is sufficient without Admittance 102 Where Admittance is sufficient without Surrender 102 103 Of Surrenderss out of Court who may take them and what are good or not 105 In whom the Reversion after a particular Estate remains 104 Surrender by Attorny and form of the Entry 107 108 What shall pass and by what words in a Surrender 109 Construction of a Surrender where no use is limitted 110 Surrender passeth no Estate by Implicacition Where an Use is limitted in a Surrender how far the construction shall be according to the Rule of the Common Law 113 Surrender to an Use upon an Use ibid. Surrender to the Use of ones Wife 13 125 Where a Surrender is void for uncertainty 113 Surrender to the Use of a person not in esse 115 to the Use of one in ventre sa mere 116 Of a Surrender to take effect in futuro ibid. Construction of Surrenders and limitations in Remainder or Reversion 118 119 If a Surrender makes a discontinuance 217 Surrender to the Use of a Mans last Will and how to be construed 124 Surrenders upon condition or contingency 120 221 122 129 Where a Surrender before Admittance shall be good and where not 130 Surrender by Husband of the Wifes Land Surrender by Joynt-Tenants 127 131 Surrender by a Feme Covert 133 Surrender of the Wives Land 134 Surrender to the Steward to the Use of the Steward is good ibid. Countermand of a Surrender 135 What remedy to force a Trustee to surrender 135 Surrender not good till presented 136 Heir decreed to Surrender on Contract with the Ancestor 327 Relief in equity as to Surrender 323 Defendant decreed to Surrender according to Agreement ibid. hold shall not be extended 237 If the Copy-holder bind himself in a Statute the Copy Within what Statutes of Parliament Copy-hold Lands are contained and within what not 247 c. Services not to be performed by Attorny T. How Copy-holds are Entayl'd and how dockt and barred 165 166 c. How the Statute VV. 2. creates an Estate Tayl 166 167 In what cases Trespass may be brought by the Copy-holder against his Lord 257 Trespass by a Copy-holder for Beasts depasturing on the Common 260 Tryal The time of the Surrender or of the Courts being held to be tryed by the Jury and not by the Court-Rolls 307 When Issue is taken upon a Surrender where to be tryed 310 Traversing the day of the Grant Traversing the dying seized of the Copy-hold 246 205 Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom 228 V. Copy-hold not determined or forfeited by Utlawry Special Verdict 311 Custom not well found 312 Failer of Prescription 313 Jury must find directly and not argumentatively ib. Custom must be found in the manner that he pleads it 314 Verdict aided 318 Statute 27 H. 8. of Uses extends not to Copy-hold 252 Venue 310 VV. Surrender to the Use ef a Man's last Will 115 Copy-hold devised without Surrender executed by decree in Chancery 326 Customs as to Woods Underwoods 58 What Copy-holders may cut Trees and in what cases and to what purposes Custom to sell Trees 58 Copy-hold Lands are not within the Words of the Statute 34 H. 8.5 of Wills Quaere If within the Equity 253 A TABLE OF THE Precedents A Settlement before Marriage of a Copy-hold Estate where according to the Custom of the Manor there is a dead Year after the death of every Tenant grantable by the Tenant in his Life-time and his Widow enjoys the Estate durante castitate if he surrender or alien it not in his Life-time with permission That the Goods of the Wife shall remain at her disposal and that her Husbands name may be made use of to sue for her Debts but the Monies to be secured by the Trustees to her use 329 Covenant to Surrender Copy-hold Land after bargain and sale of Free-hold 334 Covenant that he is rightfully seized of Copy-hold Land 335 A Covenant to surrender Copy-hold Lands ibid. A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time 337 A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts 339 A Surrender in Trust and the Trust declared Trustees covenant not to commit c. any thing that may amount to a Forfeiture 342 An Infranchisement of Copy-hold Lands made by a Lord of a Manor to his Copy-holder 344 A Lease of Copy-hold Land with the Lords Licence 348 A Release of Copy-hold Estate 350 Precedents of Copies of Court Rolls Presentments Surrenders Admittances Releases Proclamations for not coming in c. A Surrender 253 A Surrender of Copy-hold Lands for Life the Remainder in Fee taken by the Steward out of Court 355 A Surrender out of Court of a Reversion to the use of a Man and his Wife and the Heirs of the Body of the Husband the Remainder to the Heirs of the Body of the Wife the Remainder to the Husband of the present Tenant for Life in Tayl the Remainder to the present Tenant for Life in Tayl the Remainder to another in Fee with the Lords acknowledgment of satisfaction of a Fine The Surrendror surrenders all his Right c. to the Husband and Wife the present Tenant for Life to the Uses aforesaid 356 After abatement and intrusion the Lord seiseth the Lands and grants them to the Abator for term of Life the Remainder to the next Heir of the Disseisee in Tayl remainder in Fee 358 Surrender out of Court to several Uses upon a Marriage Settlement 360 Presentment of a Surrender made in Court with the Admittance of the Tenant next Heir 361 The finding the death of a Tenant and of the Lands and Heir with the Admission of the Tenant and a Presentment made in Court between the Heir and his Mother touching her Dower and the Mothers Release of her Dower 362 Presentment of the Copy-hold Customs of a Manor 376 367 Surrender by Baron and Feme 369 Surrender to the Use of ones last Will 370 Grant of the wardship of a Tenant ibid. Surrender of right Title and Interest
in curia manus Senel Ra. Ent. 645. Simil. per 1 vel 2 Tenentes ut Attornatus Co. Ent. 657. CAP. XIV What shall pass and by what words in a Surrender Of Attornment The Construction and Exposition of a Surrender Where no Vse or Estate is immediately limited in whole or in part And where an Vse is limited how far the Construction shall go according to the Rules of the Common Law or not Of Surrender to Vse upon Vse To the Vse of one's Wife Where a Surrender is void for the uncertainty Of a Surrender to the Vse of a person not in esse And of a Surrender to take effect in futuro What shall pass and by what words in a Surrender B. Covenants to assure all his Copy-hold Lands to A. after he Surrenders out of Court according to Custom diverse parcels by particular Names the Surrender is enrolled accordingly with this Conclusion By the name of all his Copy-hold Lands there yet no more shall pass than what was named in the Surrender Dyer 8 El 251. Harvy Justice said he knew it to be adjudged That a Surrender cum pertinentijs will pass Land Hetly p. 2. And that a Surrender of a Messuage and three Acres would pass more Acres if divers Copies successive have been so I suppose he means if the words cum pertinentijs be in What Ceremony c. is requisite or not to make good a Surrender Attornment A Copy-holder with Licence leased for Years rendring Rent and afterwards surrendred the Reversion with the Rent to the use of a Stranger who is admitted Here needs no Attornment either to settle the Reversion or create a privity for the Surrender and Admittance are in the nature of an Inrollment and amount to an Attornment or at least supply the want of it 1 Leon. 297. But there must be an Admittance by the Lord but in such case there shall be no Entry for Condition broken without Attornment Hobart 177. Swinnerton and Miller 1 Rolls Abr. 235. mesme Case Vide sparsim de Attornment The Construction and Operation of Surrenders Where no Use or Estate is immediately limited in whole or part Surrender to the Lord without expressing what use If a Surrender be made to the Lord in general without expressing to what use it shall be taken to the Lords use Kitch 81. And therefore in Bunting's Case cited in Brown and Foster's Case A Custom was That if any surrendred to the use of another without expressing any Estate that the Lord may grant it to him to whose use the Surrender was made It was adjudged a good Custom and the Lord shall ascertain the Estate A Copy-holder sold his Copy-hold Estate but shews not what Estate Or what Estate but surrendred it the use of the Bargainee and the Lord granted it in Fee to the Bargainee and it was adjudged good Cro. El. 392. Copy-holder in Fee surrendred his Lands into the hands of the Lord without saying to whose use the Surrender should be and at the next Court the said Copy-holder was admitted Habend to him and his Wife in Tayl And then admittance is to uses this subsequent act explains a Surrender remainder to his right Heirs Per Cur. The subsequent Act shall explain the Surrender and when the Copy-holder accepted a new Admittance the Law intends the Surrender was made to such an use as is specified in the Admittance Quando ab est provisio partis adest provisio Legis Popham p. 125 126. Brook's Case Cro. Jac. 434. mesme Case Copy-holder Surrenders to the use of M. and R. without limitation of any Estate they shall only have it for their Lives and in such case A Surrender to one for Life without limiting the Fee the Fee is in the Surrenderor if the Lord make Admittance and deliver Seisin to M. and R. and the Heirs of R. this was only an Admittance to them for term of their Lives the Reversion over to R. who made the Surrender for the Lord is but an Instrument and when he hath made Admittance according to the effect of the Surrender nothing remains in him but the Reversion is in the Surrenderer 4 Rep. 29. Bunting and Lepingwel But it is otherwise in the case of a Copy-holder for Life as if a Copy-holder for Life Surrender to the use of J. S. for Life and J. S. dyes this shall not revert to the first Copy-holder for Life Mich. 7. Car. 1. Diversity King and Loder's Case And therefore in Dyer 9 Eliz. f. 264. The Husband seized in the right of his Wife Reversion to B. Reversion to C. for their Lives the Husband surrrenders to the use of B. for his Life to whom the Lord grants it for his Life and is admitted and after dyes the Husband shall not have it again during his Wives Life for he had dismist himself of it Lord as Occupant and C. shall not have it during the Wives Life but the Lord as Occupant Where an Use is limited how far the Construction shall be according to the Rules of Common Law or not Some lay it down for a Rule That the same Construction which the Law makes upon words in a Deed it will make upon a Copy is not always true though regularly it is so As if Copy-hold be granted to a Corporation where no Estate is named it s a Fee-simple So if Surrender to one and his Heirs and he reciting this Surrender doth Surrender it to my use in the same manner as I surrendred it to him this is a Fee-simple So if I Surrender to J. S. as large an Estate as he hath in the Manor of Dale he hath a Fee-simple in that Manor Co. Cop. 132. The Wife shall take by the Admittance tho not named in the Premisses in the Surrender But a person may take by the Hab. in the Admittance who was not named in the Premisses as to Copy-hold therefore in Brook's Case above cited Copy-holder Surrenders his Lands without saying to whose use and at the next Court the said Copy-holder was Admitted Habend to him and to his Wife in Tayl the Remainder over Per Cur. the Wife shall take by this Admittance though she was not named in the Premisses But this Case of a Copy-hold is like to the Case of a Will or to the Case of a Frank-Marriage in which it is sufficient to pass an Estate albeit the Parties be only named in the Habendum aliter where the Surrender is to Uses and she is not named in the Premisses And the like Rule is laid down in Bunting and Lepingwel's Case 4 Rep. 29. As well Estates as Descents to be directed by the Rules of Law That as well Estates as Descents shall be directed by the Rules of Law as necessary consequents upon the Custom unless there be a special Custom to the contrary as a Surrender sibi suis by the Custom may make an Estate of Inheritance but a Surrender to one
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
of one for Life who is admitted and dyeth He in Reversion he in the Reversion may enter without a new Admittance and therefore H. B. being seized of Copy-hold Land in Fee and having Issue three Sons G. H. and J. he surrenders it to the Use of his last Will and thereby devised it to his Wife for Life the Remainder to H. and the Heirs of his Body the Wife dyed after Admittance Henry dyes without Issue G. may enter and Admittance for him is not necessary 1 Leon. p. 174. Bullen and Grant If customary Lands do descend to the youngest 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 Feme to her Free-Bench the Freehold of the Copy-hold being granted over The Custom of Free Bench was durante viduitate si tam diu casta vixerit the Wife after the death of her Husband comes into Court and challenged her Right of Free Bench and prayed to be admitted and the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring an Action by reason the Woman was not admitted was the Question for it was agreed no Fine was due to the Lord. Per Cur. If the Freehold of the Copy-hold be granted over and the Husband dyes Admittance in Law there cannot be Admittance in that Case and yet she may enter And in this case she hath done all she could for Admittance and it is an Admittance in Law to an Estate created by Custom and by act of God and Law Continual Claim amounts to an Entry Hutton p. 18. Jordan and Stone In this Case after the death of the Husband the Law casts the Estate upon the Wife before Admittance and she may make a Lease for years as any other Copy-Holder may mesme Case 1 Rolls Abr. 592. Steward will not admit Cesty que use He enters and takes the Profits Lord brings Ejectment the Defendant shall plead not Guilty If a Copy-holder Surrender to a Stranger and the Steward will not admit him and the Stranger enters and occupies the Land if the Lord Lease to a Stranger to try the Title he to whom the Surrender was made although he be not admitted may well plead not Guilty and it shall be found for him against the Lord. In the Case of Arnold and George Yelv. p. 16. agreed by the four Judges Yet Quaere for how can the Stranger make a Title to the Profits without Admittance But perhaps the reason was That the Lord seemed to be particeps criminis for it may be intended he would not suffer the Steward to admit the Defendant She who hath a Widows Estate shall make a Lease before Admittance for the Law vested the Estate in her and there is no Fine due to the Lord Noy p. _____ Remington and Cole Husband enters into the Lands in right of the Wife before Admittance Entry of the Husband in Right of the Wife and Lease by him before Admittance and the Wife dyes before Admittance yet his Lease shall be good 1 Anderson 192. Ewer and Astwick in More n. 425. mesme Case If by the Entry of the Husband without Admittance of the Wife he should be Tenant by the Curtesie and resolved he shall In what Cases the Lord shall be compelled to make Admittances and how and in what not If the Lord of the Manor for the time being be Lessee for Life or Years Guardian or any that hath any particular Interest or Tenant at Will of a Manor all which are accounted in Law Domini pro tempore do take a Surrender into his hands and before Admittance the Lessee for Life dieth or the Years Interest or Custody do end or determine or the Will is determined though the Lord cometh in above the Lease for Life or years or other the particular Tenancies yet shall he be compelled to make Admittances according to the Surrender Co. Lit. 59. b. Earl of Arundel's Case Action on Case by the Surrenderor but not by Cesty que use It was resolved in Gallaway's Case 26 El. The Party that made the Surrender may have Action on the Case against the Lord for not holding his Court and admitting him to whose Use the Surrender was made but Cesty que use cannot Chancery Chancery will compel the Lord to admit a Tenant Tothil p. 65. Custom was That a Copy-holder for Life should name his Successor for Life and to compound with the Lord if he cannot compound then the Homage to assess the Fine he tenders it the Lord refuseth to admit Action on the Case lies not against the Lord and he that is nominated hath not any Interest therein but he may compel him in Chancery Cro. Jac. 368. He that hath no Interest as a Nominee shall have no Action sur Case Ford and Hoskins 1 Rolls Rep. 125 195. ibid. 2 Bulstr 236. mesme Case The Nominee hath neither jus in re nor jus ad rem he hath a nomination only which is matter meerly in Equity he hath neither damnum nor injuriam here because he hath no Interest Littera Attornatu ad sursum reddend tenmenta Custumaria sursum redditio admissio Co. Ent. 576. CAP. XVIII Of Fines Fines certain Vncertain Vpon Descent and Purchase Of Fine Excessive What Customs are good as to payment of Fines Of Fines as to Admittances to Reversions or Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine Fines FInes due to the Lord upon Admittance are not to be paid till Admittance either upon a Surrender or Descent for Admittance is the cause of the Fine and the Parties being Admitted intitles the Lord to the Fine 4 Rep. 28. Sand's Case and Bacon's Case Though sometimes they are certain and by some Customs uncertain yet they ought to be reasonable Of Fines certain It was the Opinion of Richardson Chief Justice There is scarce a Copy-holder in England but the Fines are uncertain for saith he If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine this makes the Fine uncertain the ordinary course to search it is by Bill in Chancery Lit. Rep. 252. It was but his private Opinion for Fines are certain in great numbers of Manors And I suppose he means as to Evidence for in the Case of Allen and Abraham 2 Bulst 32. there is diversity between proof in case of Descents and Purchase The Case was this Upon not Guilty in Ejectment the matter upon the issue was about the Custom of a Copy-hold Manor whether the Copy-holders upon their Admittances have used to pay Fines uncertain at the will of the Lord or certain i. e. the value of two years Rent To prove the Fines uncertain Evidence to prove uncertainty
admit any other but him to whom it is limited and assigned by the Tenant who made such Forfeiture and the Lord cannot dispose of it otherwise And farther That if the Lord admit any other and after sells the Manor to a Stranger by whom Cesty que use is admitted Cesty que use hath a good Title and shall avoid all mean acts and dispositions made by the Lord as he should if a Surrender had been made to his Use ibid. Mr. Keble in the Reporting of this Case of Coply's 2.823 saith A Surrender is to the Lord to the intent quod inde faciat voluntatem yet by Custom the Surrenderer by Petition or Declaration may direct it to any person whatever and the Lord must pursue it and there is no Estate in the Lord but it remains in the Tenants hands till Admittance of such party and the Purchasor might come in at any time The Case of Taylor and Shaw in Carters Rep. 6 22. The like Custom is adjudged void but that was upon a fault in the special Verdict Tenant in Tayl of Copy-hold Lands the Jury find a Custom That this is to be barred by seizure of the Lord as a Forfeiture non alio modo and not otherwise as the Lord Chief Justice Bridgman well observed and that being naught the whole Custom is in vain As for his first Reason of such a Custom being void that its a precarious Custom you must have the concurrence of the Lord or you cannot do it and Custom implies Right though this is of weight yet it might have been objected in Pilkinton's Case and Grantham's Case yet in these Cases such Custom is adjudged good But his second Reason is cogent by this negative Custom you destroy that which is essential to the Estate If you will allow a customary Tayl you must allow a customary Recovery and so this Case differs from those others Now these ways of barring Entayled Copy-holds are in nature of a Recovery to dock the Entayl But Rolls Opinin in Stiles 450. Pilkington and Bagshaws Case is not Law he conceived there could be no such Custom to cut off Entayled Lands of Copy-hold by the Forfeiture and seizure of the Lord for his seizure upon the forfeiture destroys the Copy-hold Estate at Common Law Modus Conventio vincunt Legem And therefore It was made a Question in Dell and Heydon's Case If Tenant in Tayl of a Copy-hold Remainder in Fee is impleaded by plaint in a Court Baron in nature of a Writ of Entry in the Post The manner how and the reason why a Recovery shall bar a Copy-hold Estate and suffers a Common Recovery with Voucher whether if Tenant in Tayl dye sans issue this shall bind the Remainder Cro El. p. 372. But Rolls in 1 Abr. 506. in the same Case saith this may be barred by a Common Recovery for a warranty may be annexed upon this by a Surrender to an Use or by a confirmation or by Release with Warranty and it may be intended he shall have other Copy-hold in value And Sir Francis More in the Report of this Case saith if Tenenant in Tayl come in as Vouchee this is a bar to the Issues and Remainder Surrender with warranty to an Use and grant accordingly makes the party in the per by the Surrenderor and upon this Warranty the Surrenderor may be vouched and Recovery in value shall be only of other Copy-hold Lands in the Manor No. 488. and in 4 Rep. mesme Case it s adjudged that such Recovery shall make a Discontinuance and shall take away the Entry of the Heir in Tayl. If a Copy-holder surrenders in Tayl and the Heir of the Donee is to bring a Formedon he ought to count of a Gift made by the Copy-holder who surrendred and not by the Lord for he is but the Instrument to convey it and nothing passeth from him Cro. El. 361. Paulter and Cornhil And yet in the Case of Clun and Pease adjudged since Dell and Higden's Case Per totam Curiam A Recovery with common Voucher in a Plaint in nature of a Writ of Entry in Curia Manerij shall not bind the Issue in Tayl for it shall not bind but upon expectancy of a Recovery in value which is the reason it binds for Land at the Common Law and here he cannot have any Land in value neither at Common Law nor customary Land for if it should be so Conveyed the Lord should lose his Fine and one should hold his Land as a Copy-holder without Admittance or Grant from the Lord which is contrary to the nature of a Copy-hold but it s a Discontinuance clearly which cannot be defeated by Entry Cro. El. p. 391. Now as a Feoffment will not destroy a Copy-hold Estate Entayled so neither a Fine or Recovery at Common Law It doth not make any Discontinuance Copy-hold Estate how discontinued or not for these being Common Law Assurances they do not work upon the Assurance of the Copy-hold and that that doth not work upon the right of the Estate Tayl cannot make a Discontinuance And the same reason of a Fine which is but a Feoffment on Record and the same reason holds a Fine may work to the destruction of an Estate where it is not preserved by special Custom but this is preserved by special Custom so for a Recovery that that is in demand is the Free-hold True if the Recovery were in the Lords Court there the Estate may be turned to a Right and a Recovery at Common Law cannot bar a Copy-hold Estate because of the Recovery in value to which the Warranty is annexed doth not go according to the Copy-hold but according to the Freehold These being Common Law Assurances work only a Common Law Interest and cannot work upon a Copy-hold this is the Abstract of Glin's Argument in Taylor and Shaw's Case Carter's Rep. How Copy-hold barred by a Fine at Common Law But the Lord Chief Justice Bridgman in that Case put a nice difference as to the barring Entayled Copy by a Fine at Common Law if a Copy-hold be suspended while it is in suspence a Fine at Common Law bars it for one cannot be a Copy-holder in Tayl and have the Inheritance of Freehold in himself it must be suspended for a time as if he divide the Copy-hold from the Freehold for a time and he there gave a notable difference Difference as to what may pass by a Fine or be barred by a Fine where a man may pass a thing by a Fine and where he may bar by a Fine a right of Copy-hold cannot be passed by a Fine but may be barred by a Fine A man that hath a Rent-charge he levies a Fine of the Land the Rent-charge is gone by it yet the Fine is not levied of the Rent but of the Land as for his other Reason from the words of the Statute 32 H. 8 Of Lands any ways Entayled c. I conceive that cannot extend to Copy-hold Lands Carter's
corpore ejusdem K. Legitime procreatur pro defectu talis exitus remanere inde prefatur H. J. heredibus de corpore suo Legitime procreatur pro defectu talis exitus remanere inde prefatur A. Vxori pdictur H. J. heredibus de corpore ejusdem A. Legitime procreatur pro defectu talis exitus remanere inde pfatur V. S. heredibus suis imperpetuum ad voluntatem Domini secundum consuetudinem Manerii pdictur ê‘ redditur servitia inde prius debitur de jure consuetur Et pdictur D. K. Vx. ejus dant Domino de fine pro tali statu suo inde habend centum solid admissi sunt inde tenentes modo forma predictur c predictur Dominus concessit se satisfactur de predicto fine inde habend ê“ Messuagio Cottagiis ceteris premissis predictur cum pertin de predictur D. K. Vxore ejus cum predictur Messuagiu Cottagia cetera premissa pdictur cum pertin post mortem predictur A. Vxoris predictur J. H. ad manus sua devenerint Et postea ad hanc curiam venit predictur F. J. in propria ê‘sona sua hic in plena curia sursum reddidit in manus Domini tota jus titulu clameu interesse sua in omnibus predic Messuagio Cottagiis ceteris premissis cum pertin ad usus predictur ulteris remisit relaxavit omnino ê“ se heredibus suis quietur clamavit prefatur H. J. A. Vxori ejus totum jus titulum clameum interesse demaund sua que ipse Tâ—â— unquam habuit in predictur Messuagio Cottagiis ceteris premissis predictur cum ê‘tin habend tenend omnia singula pdictur Messuagium Cottagia cetera premissa pdictur cum ê‘tin pfatur H. J. Vxori ejus ê“ termino vite pdictur A. post decessum ejusdem A. remanere omniu pdictur terraru tenementor cum ê‘tin pfatur D. T. K. Vxori ejus heredibus de corpore pdictur D. Legitime procreatur ê“ defectu talis exitus remanere inde pfatur K. Vxori pdictur D. heredebus de corpore ejusdem K. Legitime procreatur ê“ defectu talis exitus remanere inde pfatur H. J. heredibus de corpore pdictur H. J. Legitime procreatur pro defectu talis exitus remanere inde pfatur A. Vxor ê‘dictur H. J. heredibus de corpore ejusdem A. Legitime procreatur ê“ defectu talis exitus remanere inde pdfatur V. S. heredibus suis imperpetuu ad voluntatem Domini secundu consuetud manerii pdictur c. After abatement and intrusion the Lord seizeth the Lands and grants them to the Abator for term of Life Remainder to the next Heir of the Disseisee and in Tayl Remainder in Fee Compertu est ê‘ homagiu ibid quod quidam O. B. Miles defunctur tenuit de Domino hujus Manerii die quo obiit sibi heredibus suis ad voluntatem Domini secundum consuetudinem Manerii pdictur unum MessuagÌ„ c. cum ê‘tin in A. pdictur infra Maner pdictur quod pdictur O. obiit de tali statu suo inde seisitur ê‘ sex annos â—am ultimo elapsos amplius quod quida H. R. in jure Vxoris sue quonda uxoris L. B. Arm filii pdictur O. B. immediate post decessu pdictur O. B. in pdictur MessuagÌ„ c. cetera premissa pdicta cum ê‘tin abatavit intravit intrusit super possession DnÌ„i Manerii pdictur in exheredetation dicti Dom Manerii pdictur successor suor contra consuetud Manerii sui pdictur a tempore cujus contrarii meomria hominu non existit in eod Manerio usitatur approbatur exitus ê“ficua inde a tempore mortis pdictur O. B. ad suu propriu usu hucusque habuit percepit nor capiend pdictur MessuagÌ„ c. cetera pmissa pdictur cum ê‘tin extra manus Dom Manerii predictur nec fecit inde DnÌ„o fine ê“ eisdem secundum consuetud Manerii sui pdictur sic pdictur H. R. tenuit occupavit pdictur MessuagÌ„ per pdictur sex annos ultur elapsos amplius contra consuetud Manerii pdictur Ideo pceptu est ballivo Manerii pdictur seisire in manus Domini pdictur MessuagÌ„ c. cetera premissa pdictur cum ê‘tin quousque c. Et Dominus modo habens inde seisinam ad humilem petitionem pdictur H. R. ex gratia sua speciali ad hanc curiam concessit extra manus suas pdictur MessuagÌ„ c. pfatur R. H. A. Vxori ejus ad terminum vite ipsius A. liberata est eis seisina ê‘ virgam Habend tenend pdictur MessuagÌ„ c. pfatur R. A. ad terminum vite ipsius A. ad voluntatem Domini secundum consuetud Manerii pdictur post decessum ipsius A. remanere inde quibusdam D. T. K. Vxori ejus consanguin proxime heredibus pdictur O. B. videlicet filie pdictur L. B. filij O. B. heredibus de corpore pdictur D. T. Legitime pdictur procreatur pro defectu talis exitus remanere inde pfatur K. c. with Remainder over in Fee to V. S. tenend de Domino per virgam ad voluntatem Domini secundum consuetudinem Manerii pdictur per redditur servitia inde prius debitur de jure consuetur Et tam pdictur H. R. A. Vxor ejus quam pdictur D. T. K. Vxor ejus dant Domino de fine ê“ tali ingressu suo inde habend de in premissis 5 libras fecer Dom fidelitatem admissi sunt inde tenentes modo forma pdictis c. Surrender out of Court to several Uses upon a Marriage Settlement Compertum est per Homagium ibid quod A. B. qui tenuit ut supra unu MessuagÌ„ sive Tenementum vocatur c. in A. infra Manerium pdictur citra ultur Curia extra Curia sursu reddidit in manus DnÌ„i per manus H. K. J. W. duor custum tenen Manerii pdictur secund consuetud Manerij illius pdictur Messuagiu seu Tenementu cetera premissa pdictur cum ê‘tin ad opus usu pdictur A. B. Hered Assign suor usque ad solempnization cujusda intensi marritagÌ„ permissione Divina cito habitur solempnizatur inter quenda C. D. filium heredem apparen pdictur A. B. ex una parte quandam A. D. de A. pdictur Spinster ex altera parte ab immediate post solempnization ejusd MaritagÌ„ tunc ad opus usu pdictur A. B. pro durante termino vite sue naturalis ab immediate post ejus decessum tunc ad opus usum S. Vxoris ejus pro durante termino vite sue naturalis ab immediate post decessus Anglice deceases ipsorum A. B. S. Vxoris ejus decessum eor superviventis tunc
Lords may keep Courts and grant Copies and such customary Manor may pass by Surrender and Admittance 11 Rep. 17. Sir H. Nevil's Case And so it is resolved in More and Goodgame's Case Croke Jac. 327. That within one Manor there may be another Manor demisable by Copy and within that Manor there may be customary Tenants for as well as there may be a Tenant at will of a Manor at the Common Law so there may be a Tenant at will according to the Custom of the Manor Vide infra sub titulo Courts Pleading But the way of pleading it must be thus That such a Manor hath been used time out of mind to be granted by Copy and also that time out of mind such Grantees had used to hold Court Barons and to grant Copies of Court Rolls to others and so to prescribe in this time out of mind 1 Bulstr 57. The King and Stafferton Yelv. p. 190. mesme Case The Manor of Haylsham in the County of Norfolk is held by Copy and such a Manor by Escheat ceaseth to be a Manor For by the Escheat the Services be extinct and one Court Baron only shall be held after the Escheat But though one Manor may be held of another Manor One Manor cannot be parcel of another yet one Manor may not be parcel of another Manor and both be in esse at the same time for being Liberties and Franchises of the same nature non possunt stare insimul More 's Case The Lord may create a customary Manor Though the Lord by his own act may not make out of one Manor at Common Law divers several Manors consisting of Demesns and Freeholds yet he may well by his own act make a customary Manor consisting of Copy-holds and they shall hold Court. As if he grant the Inheritance or makes a Lease of all his Copy-hold Lands for two thousand years the Grantee or Lessee may hold Court for the Copy-holders 4 Rep. 26 27. Melwyche's Case and Neal and Jackson's Case Vide infra sub titulo Courts For they have a kind of Seigniory in gross and may keep a customary Court where the Steward shall be Judge and shall take Surrenders and make Admittances Of Grants and Leases of a Manor and how Services shall pass and what and when shall be said to continue as parcel of the Manor after a Grant or Lease and what shall be a severance A man seized of a Manor leaseth part of the Demesns for Years or Life Reversion the Reversion remains parcel of the Manor A man seized of a Manor in the right of his Wife Leased part of it for Years without his Wife the Reversion thereof is not parcel of the Manor Contrary if the Lease had been made by the Husband and Wife By Feoffment of the Manor the Services do not pass without Attornment Lit. 127. Attornment 6 Rep. Bracebridge's Case If a man make a Feoffment of a Manor in which are Tenants at will according to the Custom there Services shall pass by the Feoffment without their Attornment Rolls Abridgment 293. By a Grant of all the Demesns the Waste passeth unless excepted 2 Keb. 558. North and Howland W. H. was seized of twelve Acres holden of the Manor of W. by Suit and Services and devised to the Defendant F. H. in Tayl the remainder in Fee After which F. H. purchased the Manor this being by purchase maketh not the Land parcel but by Escheat it doth 2 Keb. Holmes and Hanby But this Case is more clearly Reported by Mr. Siderfin as followeth If one who had Land held of a Manor be Tenant in Tayl of it and the Manor is given to him the Land in Tayl shall not pass by Grant of the Manor The Lord of a Manor deviseth to J. S. the Manor in Tayl the remainder over J. S. had twenty Acres in Fee which were held of the Manor by Suit of Court and he being so seized of all conveys the Manor to A. in Fee Per Cur. these twenty Acres shall not pass as Demesn of the Manor for if it pass as part of the Demesns this ought to have been so time out of memory and there is a diversity between Land Escheated which comes in lieu of other Land and Land purchased as this was Siderfin 284. Holmes and Hanby Lands holden in Fee of a Manor are not parcel of a Manor but the Rents and Services issuing out of it are parcel of the Manor Brook Manor 2.22 H. 6.53 Reversion If a man let all the Demesns of a Manor for Life rendring Rent yet the Reversion is parcel of the Manor and it shall pass by the grant of the Manor Dyer 6. 7 El. 10. Attornment If a man let ten Acres of the Demesns of a Manor for ten years rendring Rent and afterwards demiseth the entire Manor by the name of a Manor c. for twenty years to commence at a day to come An Interest in the ten Acres shall pass to the Lessee of the Manor after the expiration of the first ten years although no attornment be by the first Termor for this shall pass as parcel of the Manor and not as a Reversion for the ten Acres were never severed from the Manor but the Free-hold and Fee of it remains parcel and member of the gross and body name of the Manor Dyer 18 El. 350.18 Pl. Com. Bracebridge's Case 423. Without express Grant the Copy-hold cannot be severed by any distinct reservation or service yet the entire Manor may be held by different Services as to the Demesns How Copy-hold may be severed from the Manor and how not altho' not the Services as well by the Grant of the King as of a common person without disjoyning any part of the Manor as reservation of one Service on the Grant of the Manor another on the Advowson 1 Keb. 720. Lee and Boothby After partition of a Manor by Coparceners Coparceners one party cannot Lease her part by the name of the moity of the Manor 1 Anders 222. It was cited by Richardson and Hutton Note to be one Hurston's Case Ejectment That an Ejectment cannot be of a Mannor because there cannot be an Ejectment of the Services but if they express farther a certain quantity of Acres it is sufficient Hetly p. 80. Norris and Isham Neither is it safe to bring Ejectment of a Manor unless the attornment of Tenants be proved Hetly 146. Warden's Case Pleadings Unum Maner parcel alterius Ra. Entr. 25.271.357 Terre pleded esse parcel del Mannor usque concession ' tali die 1 Rep. 431. CAP. II. The Notion and Nature of a Copy-hold as to its Basis and Foundation How a Copy-holder and Tenant at Will differ The general Maxims of Copy-hold Estates Explicated and thereby the ensuing Cases in this Book rendred more easy and intelligible THE Stile of a Copy-holder imports three things according to my Lord Coke Lit. 1. Nomen his Name and that is Tenant
groweth to perfection in this manner When a reasonable Act once done is found to be good and beneficial to the People and agreeable to their nature and disposition then do they use it and practise it again and again and so by often iteration and multiplication of the Act it becomes a Custom and being continued without interruption time out of mind it obtaineth the force of a Law So that Custom in the intendment of Law is such an Usage which hath obtained vim Legis and is revera a binding Law to such a particular place persons and things wherein it is concerned Davis's Preface to his Reports Custom then may be defined a reasonable Act iterated multiplied and continued by the People time out of mind Custom in some Cases alters the nature of Free-hold 5 Rep. 84. Pennyman's Case A fortiori of a Copy-hold Hetly p. 126 127. Turner and Hodges Consuetudo privat communem Legem Custom is a ground and need not be proved for the reason of every Custom cannot be shewed as it was said in Knightly and Spencer's Case But though Custom takes away Common Law yet Common Law corrects allows and disallows both Statute Law and Custom for if there be repugnancy in Statute or unreasonableness in Custom the Common Law disallows and rejects it as appears in Dr. Bonham's Case 8 Coke 27. Now Custom being the life and soul of Copy-hold Estates I shall in the next Chapter largely treat thereof in the full extent of it Maxims of Customs 1. A Custom shall in construction be taken strictly and shall not be extended beyond the words of it One intituled himself to a Copy-hold in this manner That within the Manor there is such a Custom that if one taketh to Wife any customary Tenant of the Manor in Fee and hath Issue by her if he over-live the said Wife he shall be Tenant by the Curtesie The Case was he married a Wife who at the time of the marriage had no Copy-hold but afterwards during the Coverture a Copy-hold descended to her It was held in Sir John Savages Case cited in Beal and Langly's Case 2 Leon p. 208. That no Tenancy by the Curtesie did accrew by the Custom which did not extend but where the Wife was a Copy-holder at the Marriage So a Custom was If a Copy-holder in Fee dyes having Issue Three Daughters the eldest shall have all The Case was A Purchaser of a Copy-hold dyes without Issue having many Sisters they shall be Câ—parceners for the Custom extends only to Daughters So Burrough English The middle Brother Purchaseth Lands and dyes sans Issue the eldest shall have it and not the youngest 2 Rolls Rep. 368. So a Custom which goes in bar or deprivation of an Estate shall be taken strictly Carter's Rep. 87 88. Yelv. p. 1. Baspool's Case Forfeiture of a Copy-hold for Life shall not forfeit the Remainder Custom was If any Copy-holder in Fee Surrender out of Court and the Cesty que use doth not come into Court to take his Copy-hold after three Proclamations then the Lord shall seize it as forfeited And if a Copy-holder in Fee surrender to the use of one for Life remainder over in Fee and Tenant for Life comes not in Court upon the Proclamations this shall not forfeit the remainder The Custom shall be taken strictly being in destruction of an Estate and it shall be intended only of a Tenant in Fee in possession and not in remainder 1 Rolls Abr. 568. Baspool and Long. And yet it shall not be taken literally always as in the common Case Custom to grant Lands in Fee-simple yet they may grant in Tayl for Life or Years but that stands upon this Rule Omne majus includit in se minus 2. Customs are to construed according to vulgar apprehension because Customs grow generally and are bred and brought up amongst the Lay-gents therefore they are called Vulgares Consuetudines and they shall be interpreted according to the most effectual operation of the Law Stiles 146. 3. Custom does not trench to things collateral to the Estate such as Entries for Conditions Copy-holder by Licence lets the Land for 60 years rendring Rent upon condition of re-entry Copy-holder surrenders to J. S. in Fee who demands the Rent which not being paid Enters His entry per Cur. is not good for Copy-hold Land is not within the Statute of Conditions nor the Surrender of such a Copy-hold such an Assignee as the Statute intends he being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but may plead his Estate immediately under the Lord Yelv. p. 222. Brasier and Beal 4. When a Custom warrants a greater Estate it warrants a less The Custom was That Copy-hold Lands may be granted to any person in Fee-simple A Grant to one and the Heirs of his Body is within this Custom So a Grant for Life or Years And a Fee-simple includes all 4 Rep. 23. The Custom is to grant for one two or three Lives A Grant to one durante viduitate is good 4 Rep. 29. Down and Hopkins Cro. El. p. 323. mesme Case 5. Custom of a Manor cannot extend out of a Manor therefore it ought to appear in Pleading That the Locus in quo c. est infra Manerium Hobart p. 286. Roberts and Young 6. Custom may enlarge a Grant farther than Common Law as Sibi suis So to one and his Heirs by Custom may be restrained to particular Heirs 2 Keb. 158.174 7. If a Custom hath a reasonable commencement it may be good And therefore a Custom for Copy-holders to have solam separalem pasturam may have a reasonable commencement by voluntary Agreement of the Lord with his Copy-holders to induce them to hold their customary Estates at Will and bestow their pains and labour in improvement Sanders 2. p. 326 327. Robins and Hoskins Vide Vaughan Rep. North and Coe good reasons for the contrary Opinion 8. What may be claimed by Prescription may be good by Custom and what may have commencement by Grant may be claimed by Prescription 2 Sanders 326. 9. A Custom never extendeth to a thing newly created If there be a Custom within a Manor That for every House or Cottage two shillings Fine shall be paid now if the Tenant make two Houses of one he shall pay no Fine for the new made House But alteration of Rooms alters not the case in Prescription 10. Custom is an entire thing and cannot be apportioned yet this Rule shall not bind-the King Vide supra 11. Consuetudo semel reprobata non potest amplius induci As Continuance makes the Custom so Discontinuance destroys it Custom What things are requisite to make a good Custom Four things are required to make a good Custom Antiquity Continuance Certainty Reason 1. Antiquity Every Custom had a beginning although the Memory of man doth not extend to it And this is one of the grand Pillars of Copy-hold Estates Therefore in
in the possession in the right and Time Possession must be Longa continua pacifica Now observe a Title once gained by Custom or Prescription cannot be lost by interruption of the Possession for ten or twenty years but by interruption in the Right As if a man hath had a Rent or Common by Prescription unity of Possession of as high and perdurable Estate is an interruption in the Right Co. Lit. 114. b. And if a man hath Common by Prescription and takes a Lease of the Land for twenty years the Common is suspended for that time and after the years ended he may claim the Common again by Prescription 1. Personal Prescription and in that Inhabitants may Prescribe as for a Way or matter of Ease or Discharge Gateward's Case 2. Real Prescription and this is inherent to the Estate and this is where a man Prescribeth That he and all those whose Estate he hath c. Prescription as to the Estate of the Land and not to the Land it self 3. Local Prescription not as to Land but to the Estate and therefore the Custom was That the Copy-holder should have Common in the Waste of the Lord the Lord by Deed confirms to a Copy-holder to have to him and his Heirs with its Appurtenances The Question was whether his Copy-hold now being destroyed he shall have Common by the word Appurtenances Per Cur. the Common is extinct and not revived for this is a local Prescription not to the Land but only to the Estate and this proves well the words of the Prescription for the Copy-holder ought to Prescribe That every customary Tenant within the Manor c. So he hath his Common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land 2 Brownl 210. Marsham and Hunter Copy-holder for Life cannot Prescribe against his Lord but Copy-holder in Fee may Copy-holder for Life may not Prescribe against his Lord. Copy-holder in Fee may and how for he hath the Copy-hold in nature of Land of Inheritance Stiles 233. Cage and Dod. Per Cur. a Copy-holder may Prescribe by an usitatum est against his Lord but against a Stranger he must Prescibe in the name of the Lord More n. 647. 6. Rep. 60. Copy-holder of Inheritance may Prescribe in the name of the Lord to be discharged of Tythes Noy p. 132. Copy-holders may not Prescribe against their own Lord omnino nor against any other but only in the name of their Lord and the manner of laying it is by a Custom when they claim any thing or profit out of the Lords Soyl vide Sanders 324 5 6. Hoskin and Roberts What shall be said a pursuance of a Custom or not If the Custom be That the Lord may Demises Copy-hold in Fee he may Demise them for Life Years or in Tayl for these Estates are included in a Fee which is greater 1 Roll. Abr. Staunton and Barns Cok. Lit. 52. Vide supra Maxims and Customs 4 Rep. 23. The Case of the Manor of Allesly in Warwickshire Solummodo how expounded If the Custom be That the Lord may solummodo Demise his Copy-hold Land in Fee yet the Lord may Demise this for Life or Years or in Tayl though there was never any such Estate made before for the word solummodo is not to be taken so strictly to restrain the Lord of this liberty which the Law gives upon the general Custom but that he had used solummodo to grant in Fee which doth not take away the liberty which the Law gives 1 Rolls Abr. 511. mesme Case Custom is to Grant for one two or three Lives a Grant to one durante viduitate is within the Custom for the Estate granted was less than the Custom warranted The Custom was That the Wife shall have the Land for term of her Life The Evidence was That the Custom was that she shall have it durante viduitate Per Cur. This Evidence doth not maintain the Custom 4 Rep. 30. Downe and Hopkin's Case A Grant to three for the Lives of two is within the Custom of three Lives If the Custom be That Copyholds may be granted for three Lives a Copy may be granted to three for the Lives of two within this Custom For it is no inconvenience to the Lord although it be pur auter vie for there shall be no occupancy of it but the Lord shall have it if the Tenants pur auter vie dye living cesty que vies and this is not a greater Estate than three Lives but lesser Rolls Abr. 511. Ven and Howel But to one for Life Remainder to another for Life c. is not good A Copy-holder where the Custom was to Demise for three Lives demised to one for Life the remainder to such an one as he should marry and the first Son of his Body resolved that both the remainders were void but the Estate for his own Life is good More n. 922. Webster and Allen. Custom is when any Tenant sells his Tenement three Proclamations shall be made the next Court day and if any of the Blood of the Vendor will give as much mony as the Vendor will he shall have it A Tenant in consideration of one hundred pounds in Mony and that the Vendee being his Physician had cured him sold it to him and the next of Blood at next Court offers a hundred pound yet he shall not have it for it was given partly for the other consideration and the Custom shall be for mony only 1 Rolls Abr. 568. So if he had sold it in consideration of a Lease for years and 1 d. ibid. CAP. V. Of particular Customs either enabling or disabling in respect of the Lord of the Tenant and of the Estate Limited or Leased and in respect of Discents WHAT particular Customs have been adjudged good or what not either enabling or disabling Customs Vide supra of Customs ratione loci And they may be considered in three respects Of the Lord. Of the Tenant Of the Estate 1. In respect of the Lord and his Priviledge The Wife of the Lord shall not be endowed against a Copy-holder for the title of Dower is not consummate before the death of her Husband Dower so as the title of the Copy-holder is paramount and compleated before the title of Dower Leon. 152. Waste The succeeding Lord shall not take advantage of Waste done in the time of the preceeding Lord 2 Siderfin p. 9. Chamberlain and Drake Vide infra Common A Custom That none shall put his Cattel into the Common before the Lord puts in his is not good Vide supra the Rules of Customs 1 Bulstr Earl of Northumberland vers Wheeler 21 Ed. 4. 28 b. Fine A Custom that a Copy-holder shall upon the change of every Lord pay a Fine is void Vide the Rules of Customs For the Lord may change his Manor every day Had it been that
tribus assignatis suis by his death the Estate in the Copy-hold is determined Yelverton p. 16. Arnold's Case Though we have observed Surrender passeth not by implication That the passing of Estates of Copy-hold is much resembled to Devises yet an Use shall not pass in a Surrender by implication and therefore in Seagood and Hone's Case Cro. Car. 366. A Copy-hold is surrendred to the use of F. K. and J. R. Son of the said F. and of the longest liver of them both and for want of Issue of J. the Son of his Body lawfully begotten the Lands to remain to the youngest Son of M. S. Per Cur. J. had but an Estate for Life and being an Estate for Life limited by express limitation it shall not be a greater Estate by implication Of Surrender to a Use upon Use Surrender by A. to the Use of B. and his Heirs to the use of such person as A. should name by his Will Per Twisden in Leaper and Wroth's Case it is ill no Use can be raised upon an Use although it being Copy-hold it is not executed by the Statute But H. nominated by the last Will of A. had surrendred to B. the Court conceived no doubt in that Case 1 Keb. 627. Contingent Remainder Surrender is to the Use of one in Fee upon Condition to pay 100 l. to a Stranger and if he failed it should be to the Use of a Stranger in Fee The Question was whether that should be a good Limitation to the Stranger being a Fee upon a Fee Beaumont conceived it to be well enough being as an Use limited on a Feoffment but it was found specially Cro. El. 361. Paulter and Cornhil vide infra To the Use of ones Wife Is good though he which is admitted is in by him who makes the Surrender yet a man may Surrender to the Use of his Wife because the Husband doth not do this immediately to the Wife but by two means 1. By Surrender of the Husband to the Lord to the Use of the Wife And 2. By Admittance of the Lord to the Wife according to the Surrender 4 Rep. 29. Bunting and Lepingwel Where a Surrender is void for the uncertainty Averment A Copy-hold was granted to a Father and to his Son and Heirs who at the time of the Grant had but one Son it was adjudged a good Limitation to that Son Cro. Jac. 374. Cobb and Betterson But in Winkmore's Case cited there where a Copy was granted to S. the Father and to his Son and he doth not demonstrate which of his Sons shall have it it was adjudged to be a void Grant for the uncertainty he having many Sons at that time But that which is wholly uncertain no subsequent manifestation of my intention can help it as a Surrender to the Use of my Cosin or my Friend or to the Use of J. S. or J. N. Surrender to the Use of a Person not in esse And in this point Limitations of Estates are not directed according to the Rules of Law In this Estates are not directed according to Law For at Common Law if the Grantee immediate and be not in rerum natura and able to take by vertue of the Grant its void presently But though at the time of the Surrender the Grantee is not in esse or not capable of a Surrender yet if he be in esse and capable at the time of Admittance that is sufficient as a Surrender to him that shall be Heir to J. S. or to the Use of the next Child of J. S. or to the next Wife of J. S. though at the time of the Surrender J. S. had no Child Heir or Wife yet if he afterwards hath his Heir Wife or Child may come into Court and compel the Lord to admit according to the Surrender the reason of this Construction seems to be the Surrender is a thing executory and is executed by the subsequent Admittance and nothing vests in the Grantee before Admittance and therefore if at the time of the Admittance he be capable to take it s enough Co. Copy Put the Case at Common Law J. S. bargains and Sells to the Use of the next Son of J. D. and he hath no Son then but after he hath a Son before the Deed is enrolled yet this shall not be good and yet it s as an executory Grant i. e. not perfected till enrollment and nothing passeth till enrollment or vesteth in the Bargainee till then no more than by Surrender I will put this Case A Surrender is to the Use of A. B. for Life and after to the next Child that J. S. shall have A. B. forfeits his Estate J. S. having no Child at that time but afterwards he hath a Child shall this Child compel the Lord to admit him Q. for such a Remainder at Common Law would be destroyed But a Surrender to the Use of the right Heirs of J. S. he being alive is void because it cannot take effect according to the intent of the Grantor which is to be executed presently To one in 〈◊〉 mere Surrender Habend after his death to the Use of his Child then in ventre sa mere his or her Heirs and Assigns and if it dye before full Age or Marriage then to the Use of another in Fee Copy-holder dyes Infant was born but dyes before Age or Marriage this is not good he cannot make such a conditional Surrender to operate in futuro But whether the Surrender to an Infant in ventre sa mere be good hath been much much questioned Cro. Jac. 376. 1 Rolls Rep. 109 131. 2 Rolls Abr. 415 416. 2 Bulstr 274 275. Simson and Sothern Some are for it and some against it I conceive it is allowed to be good as well as a Devise to an Infant in ventre entre sa mere Surrender to the Use of J. S. for Life remainder to the Use of an Infant in ventre sa mere is good Of a Surrender to take effect in futuro A Surrender of a Copy-hold in Fee a tempore mortis is void 1 Sanders 151. Or a Surrender at a day to come is void Copy-holder in Fee Surrenders out of Court into the hands of two Tenants in Writing as follows Memorandum Such a day and year A. S. the Copy-holder Surrenders the Land c. to the Use of B. and C. c. This Surrender not to stand and be of force till after the decease of A. S. Per Cur. If this Memorandum should be good then this had been a Surrender at a day to come and consequently void and therefore the Surrender being perfect before by the first part of the Instrument this Memorandum shall not make it void but the Memorandum shall be void 2 Rolls Abr. 61. Seagood and Hone. And the Reason is given in Simpson and Southern's Case Cro. Jac. p. 376. A Copy-holder cannot Surrender an Estate to another and leave a particular Estate himself no more than a Free-holder for so
allowed Hetly p. 54. M. 3 Car. B. C. Davis and Fortescue Lord of the Manor made a Lease to two of the Copy-holders of the Court Baron for 200 years Lessees of Copy-hold and Court-Baron for 200 years what acts they may do saving to himself the other Demesns and Services the Lessees keep Court there and a Copy-holder surrenders to the Use of A. in Fee Per Cur. this is a good Copy the Court may well continue for that purpose as to Admittance of Copy-holders for otherwise every one of his own act may destroy his Copyholders Estate Cro. El. p. 394. Jackson and Neal and Lord Hatton's Case cited there If the Lord of a Manor grants a Copy-hold Who shall have the Rent rendring Rent praefato Domino at a certain time servitia de jure debita consueta his Heirs and Assigns after his death shall have this Rent this being reserved by a Copy 2 Rolls Abr. 450. Crisp and Fryar Copy-holder makes a Lease rendring Rent Avowry by the Lord for part of his Rent and after surrenders parcel to the Lord the Lord may avow on the Lessee for part of this Rent without alledging notice or attornment by him 1 Keb. 94. Blat and Mole vide The Lord may Distrain a Copy-holder for his Rent as well as Seize Quaere Distress if a man makes a Lease at will rendring Rent whether he may Distrain for this Rent 2 Brownl p. 279. Ravel and Downe Entry Acceptance of Rent The Lord after acceptance of Rent cannot enter upon the Lessee of a Copy-holder 1 Keb. 15. Whether the accustomed Rent be reserved upon a Lease by a Bishop Lord of the Manor Treacer was a Copy-hold Manor within the Manor of B. The Bishop of Exeter held both these Manors in the right of his Bishoprick the old accustomed Rent was 67 l. 1 s. 5 d. Hall Bishop demised these two Manors to P. for 99 years determinable upon three Lives reserving the old Rent P. assigns them over to N. except the Demesns of Treacer N. surrenders both Manors except Treacer The Bishop re-demiseth to him the said Manors except Treacer and one Farm more reserving the old Rent 67 l. 1 s. 5 d. Per Cur. this second Lease was good and the 67 l. 1 s. 5 d. was the old accustomed Rent within the Statute 1 El. Mod. Rep. 203. Thredneedle and Lynham Of Leases made by a Copy-holder and of Rents reserved thereupon vide Customs When Leases made by a Copy-holder for Years are a Forfeiture Vide sub Tit. Forfeiture Note Lease no disseisin A Copy-holders Lease is no Disseisin though it be a Forfeiture nor doth it alter the Estate of the Lord 2 Keb. 598. Note Lease not Assets Copy-holder made a Lease for years by License and Lessee dyed this shall not be accounted Assets in the hands of the Executors Quaere Nor be extended Popham 188. But if Copy-holder make a Lease for an year this is a Lease by the Common Law and not customary and shall be accounted Assets in the Hands of the Executors of the Lessee Popham 188. Yelv. What Leases shall be good or not in respect of Licence when it is persued or not Copy-holder may make a Lease for one year without Licence for that is warranted by the Law by the force of the general Custom of the Realm Lit. 234. and this shall be accounted Assets in the Hands of the Executors of the Lessee If the Lord give Licence to a Coph-holder for Life to let the Copy-hold for five years the Copy-holder may Lease this for three years for this is comprehended within the Licence inasmuch as he had given him Licence to let for more years M. 15 Jac. B. R. Woolridg and Bambridge adjudged upon a special Verdict so it was adjudged in the same Case Cro. Jac. 417. If the Lord give Licence to a Copy-holder for Life to Lease the Copy-hold for five years if the Copy-holder shall so long live and he lets this for five years generally without this limitation If he shall so long live yet this is a good pursuance of the Licence and so a good performance for the Lease is determinable by his death by a limitation in Law and therefore so much is implied by the Law as if he had made the actual limitation So is the Case of Hart and Arrowsmith Noy 121. the operation of Law made such a limitation to the Estate which he made i. e. if he shall live so long But if the Copy-holder had had an Estate in Fee it had been a Forfeiture to have made an absolute Lease because in this case he doth more than he was licenced to do Popham Rep. 105. A Lease not warranted by the Licence as to the commencement A. obtains a Licence in Court to let his Copy-hold for 21 years from Mich. last past he makes the Lease to begin at Christmass following Per Cur. this Lease 〈◊〉 not warranted by this Licence and so no Eject firmae lyes upon it Cro. El. p. 394. Jackson and Neal. Commencement When a Lease shall begin in point of computation and not in point of Interest Land is demised by Copy for three Lives successive and then a Lease is made for 30 years of the same Land to commence after the determination of the first Estate the Survivor dyes leaving a Widow who claims durante viduitate according to the Custom The Quaere was when this Lease shall begin if after the death of the Copy-holder or after the determination of the customary Estate in the Woman It shall commence presently in point of computation but not in point of interest till after the death of the Widow 2 Siderfin Clark and Caudle Capel and Stephens 1653. By Tenant in Tayl if warranted by the Stat. 32 H. 8. Arthur Copy-holder for Life surrenders to Sir Francis Knolls Knight Lord of the Manor in Tayl Reversion in the Crown Sir Francis makes a Lease for three Lives to commence from the day of the date and of the ancient Copy-hold Rent was reserved and more Three Questions were moved by the Jury 1. Per Cur. If this Land shall be said usually demised within the Statute 32 H. 8. being never demised before but by Copy And the Court ruled that so 2. If this Copy-hold Rent shall be said the ancient accustomed Rent within the Statute and ruled that so 3. Though an Herriot was not reserved in the new Lease which was payable by the Copy-hold Custom yet it was resolved that it was a good Lease within the Statute of 32 H. 8. if Livery was made after the day of the date Moor n. 1050. Banks and Brown The Land is accountable usually demisable when it is always demised it was Sir James Marvin's Case Tenant in Tayl lets a Copy-hold by Indenture rendring the same Rent as before it s a good Lease within the Statute of 32 H. 8. A Manor by Act of Parliament was Entayled to A. Wife of
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.
alledge this as a Grant How a Copy-holder shall plead in making Title to a Copy-hold and this the Law allows for avoiding an inconvenience which will otherwise happen for if the Copy-holder in Pleading shall be put to shew the full Grant either it was before the time of memory and then it is not pleadable or within time of memory and then the Custom fails Admittance pleaded as a Grant and for this cause the Law hath allowed the Copy-holder in Pleading to alledge any Admittance upon a Descent or upon a Surrender as a Grant and yet he may if he will alledge the Admittance of his Ancestor as a Grant and shew the Descent to himself and that he entred and good without any Admittance of him but the Heir cannot plead That his Father was seized in Fee at the Will of the Lord by Copy of Court Roll of such a Manor according to the Custom of the Manor and that he died seized and that it descended to him for in truth such an Interest is but a particular Interest at Will in judgment of Law although it is descendible by the Custom for he is Tenant at Will of the Lord according to the Custom of the Manor 4 Rep. 22. Brown's Case If one Surrender to the intent that the Lord shall grant it to another and he admitts him it was adjuded good yet he ought to plead it as a Grant Lit. Rep. 175. Tenant in Dower may Grant a Copy-hold in Reversion which shall be good 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 though not executed in the Life of Tenant in Dower But then it must be pleaded as a Grant in Reversion and not as a Grant in Possession therefore in Gray's Case Cro. El. p. 661 662. It was there pleaded That he granted Tenementa praedicta per nomen of a Messuage which A. P. held for Life and Per Cur. it s an uncurable Fault for it is not alledged that he granted the Tenement in Reversion and the per nomen will not help Averment del ' vâ—e Tenant by curtesie of Copy-hold brings Ejectment or Action it must appear that he is in Life or else he cannot have Judgment 1 Anderson p. 292. Ewer and Astwick Where in Pleading the Commencement of the. Estate must be shewn or by whom granted or not In matter of Conveyance to a Title need not shew the Conveyance Replevin the Plaintiff in bar to the Avowry shews that the Land was Copy-hold Land grantable in possession or reversion for Life or in Fee and that the Lord granted the Reversion to him after the death of W. who was Tenant pur vie and shews the death of W. whereby he entred And demurred because he did not shew the beginning of W. his Estate nor by whom W. had the Estate granted him Per. Cur. this is no cause of Demurrer because it is not the Plaintiffs Title but matter of Conveyance thereunto Cro. Jac. 52. Lodge and Fry Admittance of the last Heir to be shewed instead of an ancient Grant If one pleads Seisin of a Copy-holder in Fee and claims under him he ought to shew of whose Grant as he ought to shew of any other particular Estate but perhaps that is so ancient that it cannot be shewn who was the first Grantee yet it was held sufficient to shew the Admittance of the last Heir which is in nature of a Grant and may be pleaded by way of Grant Cro. Jac. 103. Pyster and Hembling In Trespass the Defendant justifies he confesseth the Close to be Copy-hold Land but pleads That long time before it was parcel of the Manor of c. and that long before the supposed Trespass one Pole and M. his Wife was Lord of the Manor in right of his Wife for Life remainder to Stephen in Tayl and he made a Lease of this Land to the Defendant it s an ill Plea because the Defendant hath not shewed as he ought how Pole and his Wife came to this Estate for Life the remainder over they ought to shew how this particular Estate hath its commencement they claiming a derivative Estate from Pole and his Wife for years 3 Bulstr 281. Sandford and Stephens None may entitle himself to any Copy-hold but he ought to shew a Grant thereof In Trespass the Plaintiff in his Rejoynder intitles himself because the place where is customary Land parcel of such a Manor whereof J. S. is seized in Fee and demisable by Copy at Will in Fee and that J. N. was seized in Fee by Copy c. and dyed seized so as it descended to two Daughters as Heirs of J. N. and that at such a Court Dominus concessit eis extra manus suas c. Habend tenend Tenementa praedicta to the said Daughters and their Heirs whereby they were seized in Fee and afterwards demised to the Plaintiff for years The Plaintiff hath not made a good Title and he shewing such an one was seized in Fee without shewing the Grant thereof Per Cur. it s not good Cro. Car. 190. Shepherd's Case yet it was but default of form and Issue for the Plaintiff being found it is a Jeofail Pleading Custom or Prescription A Copy-holder in Pleading need not alledge a Custom to make a Surrender for that is the Custom of all England A Copy-holder need not alledge a Custom to make a Lease for a year It must be pleaded that he used to do it It is not sufficient to alledge a Custom that one might do such an Act but that he used to do it as to alledge dimissibile and dimissum therefore in Brown and Foster's Case the Defendant avows in Replevin for Damage feasant the Plaintiff makes Title as Copy-holder and shews that within the Manor of A. time whereof c. Talis habebatur habetur consuetudo c. That any Copy-holder may surrender into the Hands of two Customary Tenants c. this is not well pleaded for it is pleaded by Usage and Custom but he doth not plead that ever it was put in ure in that manner which ought to be alledged as in Sir William Hatton's Case where it was pleaded Quod Talis habebatur consuetudo within a Manor Quod licebit Seneschallâ— to impose a Fine c. But in the principal Case the not naming the Steward made the Avowry ill and then Per Cur. the Avowry being ill although the bar to the Avowry were ill Not naming the Steward in the Avowry ill yet he cannot have return Cro. p. 37. El. 392. Brown and Foster Copy-holder pleads Quod infra Manerium praed talis habetur nec non a toto tempore cujus contrarij memoria hominum non existit habebatur consuetudo videl quod quilibet tenens custumar ' praedict tenementa c. hath used to have Common in such a place parcel of the Manor Question was if the
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
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