viz. Ad hanc Curiam venit A de B sursumreddidit in manus Domini c. unum Messuaglum c. ad usum C de D Haeredum suorum vel Haeredum de corpore suo exeunt Habendum sibi Haeredibus de corpore suo exeunt c. By which it appeareth to be the opinion of Mr. Littleton that an Estate may and might be of Copy-hold-lands And herewith agreeth the opinion of Mr. Plowden in his Commentaries in Morgan and Manxell's Case But note that the opinion of Mr. Littleton is That there must be a Custome of the Manor to enable such Estates of Copy-hold-lands It is said in Coke 3. part in Heydon's Case That where an Act of Parliament doth alter the Service Tenure or Interest of the Estate either in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenants there such an Act of Parliament doth not extend to Copy-holds And therefore the Statute of Westm 2. de Donis because it extendeth to the Alteration of the Service and Tenure of the Land and is prejudicial to the Lord of the Manor doth not extend to Copy-holds But in that Case it is agreed That by a special Custome Lands might be entailed for that it might be that upon the creation of the Manors Lands were given by Lords of Manors to hold by their Tenants by particular Services and for particular Uses viz. to some to them and their Heirs in Fee-simple to some others to hold to them and the Heirs of their bodies begotten and to some others for particular Estates as for life c. and such Estates having continued in their Issues time out of mind Custome hath now enabled such Estates to be of Copy-holds in tail and although they have and enjoy such their Estates be it either Fee-simple or Fee-tail yet it is but secundùm Consuetudinem Manerii and therefore and for these Reasons and causes although that Copy-hold be not or could not be entailed within the general words of the Statute de Donis c. yet by Custome time out of mind used they say that Copy-holds may be entailed 36 Eliz. in the King's Bench it was Adjudged That where the Custome of the Manor was that Lands might be granted unto any in Fee-simple in such case a Grant of Lands unto a man and the Heirs of his bodie was within the Custome For a Custome which extendeth to the greater will extend to the lesser Estate Tenant in tail of a Copy-hold surrendred M. 15 Jac. Lee and Brown's Case Poph. 128. the same into the hands of the Lord to the Use of J S c. In that Case 2 Questions did arise 1. If Copy-holds were within the Statute de Donis c. 2. Whether the Tail might be cut off by a Surrender The Court doubted of the first Point but the better opinion seemed to be That the Statute co-operating with the Custome they might be entailed A Copy-holder had Issue 3 Sons A H. 31 Eliz. B. R. Bullein and Graunâ—'s Case Leon. 1. part 174. B and C and surrendred his copy-hold-Copy-hold-lands to the Use of his last Will and thereby declared the same to be to the Use of his Wife for life the Remainder to B his second Son in tail and afterwards to A in Fee It was a Question in this Case if B had a Fee-simple conditional in the Lands or an Estate-tail For if a conditional Fee then a Remainder over of it could not be limited It was the opinion of Wray Chief Justice That it was an Estate-tail in B and not a Fee conditional and that Customary Lands might be granted in tail A Surrender of Copy-hold-lands was H. 34 Eliz. B. R. rot 29â—â— Stanton and Barney's Case made within the Manor of Stevenson to the Use of J S and the Heirs of his body and after Issue he surrendred the Lands unto another It was agreed by all the Justices That it was a Fee-simple conditional at the Common Law and after Issue that he might alien the Lands A Copy-holder in Fee of the Manor M. 36 Eliz. B. R. Gravenor and Brook's Case Poph. 34. of Fairchilds and Preachers 3 H. 8. surrendred his copy-hold-Copy-hold-lands to the Use of his eldest Daughter for life the Remainder to the eldest Son of the said Daughter and the Heirs-males of his body the Remainder to the right Heirs of A the Copy-holder in Fee In this Case it was said That an Estate in Tail could not be of copy-hold-Copy-hold-lands It was the opinion of Fenner and Popham That by Equity of the Statute de Donis an Estate-tail might be of Copy-hold-lands though not otherwise Now on the other side That Copy-hold-lands cannot be entailed nor are within the Statute de Donis c. see these Cases and Resolutions following H. 35 Eliz. in Co. B. it was Resolved by all the Justices that Copy-holds were H. 35 Eliz. in Co. B. Pitts and Huckley's Case not within the Statute of Westm 2. de Donis For if they were within that Statute then the Lord should not enter nor take advantage of the Forfeiture of the Copy-hold for Felony the contrary of which was Resolved in Borneford and Sir John Packington's Case but the Donor and the Services should be done to the Donor and not to the Lord of the Manor which is against the nature of a Copy-hold-Tenure The Case was That a Copy-holder Tr. 18 Jac. in Co. B. Royden and Moulster's Case Cro. 3. part 32 33. Godb. 367. acc surrendred to the Use of one in Tail there being no Custome to warrant such Surrender In this Case the Question was whether a Copy-hold might be entailed within the Statute de Donis It was holden by all the Justices That it could not be entailed within the Statute and that for divers causes 1. Because it is not within the Letter of the Statute which speaks onely de Tenement is per Chartam datis and Copy-holds cannot pass by Deed but by Surrender onely as is agreed on all sides 2. Because they are not within the meaning of the Statute because that before 7 E. 4. 19. they were not of any account in Law being onely Estates at will of the Lord secundùm Consuetudinem Manerii 3. Because the said Statute de Donis provides onely against those who might make Disinherison by Fine or Recovery which a Copy-holder there could not doe or make because that then upon such Grants in Tail the Reversion should be left in themselves which could not be being to the prejudice of the Lord of the Manor And also 4. because it would be very mischievous because then there should be no means to dock or cut off such Entails common Recoveries and Fines not being then in use unless there were a special Custome to that purpose Having thus declared and made mention of the several Cases and Resolutions in this much-controverted Point Whether Copy-hold may be entailed within the said Statute de Donis
entred in the name of the Daughters who disagreed to it It was Resolved That it was a Condition but not broken without demand of their Summs at their full ages and when they disagreed to the Entry the Entry of the youngest Brother was not lawfull A Copy-holder surrendred his Lands M. 13 Jac. B. R. Simpson and Sothern's Case Cro. 2. part into the hands of the Lord Habendum after his death to the Use of an Enfant en ventre sa Mier Resolved that a Surrender to an Enfant en ventre sa Mier was not good as an immediate Surrender for that it cannot begin at a day to come And whereas a Remainder was thereupon limited over it was holden to be void because it was to begin upon a Condition precedent Vid. the Condition which was never performed and therefore the Surrender into the hands of the Lord was void because he takes it but as an Instrument to convey it over SECT XVI Where Custome which warrants the Lord or his Copy-holder to grant greater Estates warrants the Grants of lesser Estates Proofs THE Custome of a Manor is That 36 Eliz. Co. 4. part Gravenor and Tedd's Case a Copy-hold-estate may be granted in Fee-simple In that Case it was adjudged That an Estate thereof granted to one and the Heirs of his body is good and within the Custome for Ubi licet quod est majus non debet quod est minus non licere The Custome of a Manor is That 39 Eliz. in B. R. Downs and Hopkins Case Copy-hold-estates may be granted for life or lives In such case a Grant is made to a Woman durante Viduitate suâ And it was adjudged good and within the Custome for that every Grant for life is durante Viduitate but every Grant durante Viduitate is not for life The Custome of a Manor out of mind H. 34 Eliz. B. R. Stanton and Barney's Case used was To grant certain Lands parcell of the said Manor in Fee-simple and never any Grant was made to any and the Heirs of his body for life or for years The Lord of the Manor did make a Grant by Copy to one for life the Remainder over to another and the Heirs of his body It was adjudged That the Grant and the Remainder over was good for the Lord having an Authority by Custome and an Interest withall might grant any lesser Estate but otherwise it is where one hath but a bare Authority In Trespass the Issue was if the Lord P. 29 Eliz. C. B. Kempe and Carter's Case Leon. 1. part 56. of the Manor granted the Lands per Copiam Rotulorum Curiae Manerii secundùm Consuetudinem Manerii praedict It was given in Evidence that the Lord of late at his Court granted the Lands per Copiam Curiae where it was never granted by Copy before In that case the Jury are bound to find quòd Dominus non concessit as it was holden by the Court. For although de facto Dominus concessit per Copiam Rotulorum Curiae yet non concessit secundùm Consuetudinem Manerii praedict But in that Case it was holden If Customary Lands had been grantable in Fee if the same Land escheat to the Lord and he grant the same to another for life it is a good Grant and warranted by the Custome for the Custome which enables him to grant in Fee shall enable him to grant for life If a Copy-hold-estate fall into the M. 15 16 Eliz. in Co. B. adjudge acc hands of the Lord by Escheat Forfeiture or the like and the Lord make a Lease thereof for years or life by Deed or without Deed or if he make a Feoffment of it upon Condition or if the Copy-hold so escheated c. be extended upon a Statute or a Recognizance or the same Land be assigned to the Wife of the Lord in Dower In all these cases the Land can never be granted again by Copy because after such Disposition thereof it was not demiseable But if the Interruptions were not lawfull but tortious as if the Lord be disseised or if the Land be recovered against the Lord by a false Verdict or by an erroneous Judgment yet after the Land is re-continued and the Interruption which was wrongfull removed the Land is grantable again by the Lord by Copy SECT XVII Who shall be said such a Lord of a Manor as may grant Copy-hold-estates and how long such Estates shall continue and what persons shall be capable of Copy-hold-estates what not and what may be granted by Copy EVery one who hath a lawfull Estate Coke 1. part Instit 58. or Interest in the Manor be it Fee Fee-tail Dower Tenantry by the curtesie of England Tenantry for life or years Guardian Tenant by Statute-Merchant or Elegit are sufficient Lords and persons to grant Copy-hold-estates to others And in some special case Estates in Copy-hold-lands may be granted by such a one who hath no Estate or Interest in the Manor Proofs A Guardian in Socage held a Copy-Court Tr. 1 Jac. B. R. Soapland and Ridler's Case Owen 115. in his own name and granted Copies in Reversion Adjudged he was Dominus pro tempore and had an Interest in the Lands for he might make a Lease thereof in his own name and therefore he might both grant Copies and also admit Copy-holders to Estates before granted But the Bailiff of a Manor hath no Interest in the Manor and therefore he cannot grant Copies of the Land holden of the Manor The Custome of a Manor was That P. 41 Eliz. B. R. Ga◠and Kay's Case Cro. 1. part Dominus pro tempore might make a Demise for 2 or 3 Lives in Possession or Reversion A Woman Tenant in Dower for life of the Manor granted a Copy-hold to J S and 2 others for their Lives Habendum post mortem of A B and died A B died It was holden by the Court in this Case That the Grant was good in Reversion although it was not executed in the life of the Tenant in Dower And Vide That the Lord of a Manor for life or any other particular Estate having Interest in the Manor might grant Copies in Reversion of Lands which are holden by Copy of Court-Roll although the Grants were not executed in the life of the Grantors as it was adjudged in Sir H. 14 Eliz. the Earl of Oxford's Case Moore 95. Peter Carew's Case Quere for Hil. 14 Eliz. in the Earl of Oxford's Case in Moore 95. it is not good unless it come in Possession during the life of the Grantor Note It was holden by the Justices P. 15 Car. C. B. Godb. 6. acc P. 15 Jac. in Co. B. That there ought to be a Custome to enable the Lord of the Manor to make a Grant of a Copy-hold in Reversion Generally Things which lie not in Tenure as Advowsons in grosse Commons in grosse or the like incorporate Inheritances out of which a Rent cannot be
of him in the Remainder and then the Land could not vest in the Grantee of the Lord. It was Resolved by the Justices That Tr. 36 Eliz. B. R. Deal and Higden's Case Moore 358. the Admittance of Tenant for life of a Copy-hold is the Admittance of him in the Remainder because he is to pay his Fine which is intire and no Fine is due to be paid by him in the Remainder to the Lord but otherwise it is of him in the Reversion M. 39 Eliz. B. R. Cro. 2. part Gippin and Bannye's Case A Copy-holder surrendred to the Use of one for life the Remainder to another in Fee Tenant for life was admitted He in the Remainder surrendred to the Use of J S which Surrender the Lord accepted of and admitted him and then the Tenant for life died It was holden in this Case That the Heir of J S should have the Land for that the Admittance of the Tenant for life was the Admittance of him in the Remainder and also because the Acceptance of the Lord was quasi an Admittance to him in the Remainder A Copy-holder in Fee surrendred to Tr. 2 Jac. B. R. Auncelme and Auncelme's Case Cro. 2. part the Use of his Wife for life the Remainder to his younger Son in Fee and died The Wife was admitted but the younger Son refused to be admitted during the life of his Mother but afterwards without other Admittance he surrendred to the Use of J S. It was Resolved That the Admittance of the Mother Tenant for life was the Admittance of the younger Son in the Remainder because they made but one Estate A Copy-holder had Issue 3 Sons B C Hil. 31 Eliz. B. R. Bullein and Graunt's Case Leon. 1 part 174◠and D and surrendred to the Use of his last Will and thereby devised the same to his Wife for life the Remainder to C and the Heirs of his body The Wife died after Admittance and the Lord granted the Copy-hold to D in Fee who surrendered to the Use of J S for life and after died without Issue B the eldest Son entred It was adjudged That his Entry was lawfull and that Admittance of him was not necessary for that if a Copy-holder surrendreth to the Use of one for life he in the Reversion or Remainder may enter without any new Admittance SECT VIII By what and whose Act either of the Law of the Copy-holder himself or of the Lord severally or all together the Copy-hold-land or Estate shall be gone determined or extinguished and where suspended onely HAving in the Sections before declared where a Surrender and Admittance thereupon either by the Lord or his Steward in Court or to them or into the hands of Tenants out of Court shall be good and where not Let us now look upon this Division and see in what case the Copy-hold or Copy-holder's Estate or Interest shall be said to be gone determined or extinguished and by what and whose Act it was or may be determined First It may be determined by the Act of the Lord himself 2. By the Act of the Copy-holder 3. By Acts of them both joyned together And lastly by the Act of the Law All which will evidently appear by the Judgments Resolutions and Precedents after ensuing Proofs The Lord by his Act cannot without Co. 2. part 17. in Lane'◠Case the concurrent Act of the Copy-holder himself determine the Estate and Interest which the Copy-holder hath in his Copy-hold And therefore the Severance of the Free-hold and Inheritance of the Land holden by Copy of Court-Roll being done by the Act of the Lord doth not determine the Copy-holder's Estate or extinguish the Copy-hold For although that the Estate of the Copy-holder be but an Estate at will viz. ad Co. 4. part 21. in Brown's Case voluntatem Domini secundùm Consuetudinem Manerii yet Custome hath so established the Estate of the Copy-holder that he is not removeable at the will of the Lord so long as he performs the Customes and Services If a Copy-holder will joyn with the Lord in a Deed of Feoffment of the Manor there by that Act of them both the Copy-hold is extinct as it was said by the Lord Anderson Chief Justice P. 24 Eliz. in Co. B. A Feme-sole was Lady of a Manor to Vid. Cro. 1. part 5 acc which were divers Copy-holders One of the Copy-holders did intermarry with the Seignioress of the Manor It was the opinion of the Justices That the Intermarriage was onely a Suspension of the Copy-hold and not an Extinguishment of it But afterwards they joyned in suffering a common Recovery of the Land and upon that their Act it was Resolved that the Copy-hold was extinguished Husband and Wife Copy-holders in H. 26 Eliz. in Co. B. Cro. 1. part Stockbridge's Case Fee to them and their Heirs The Husband for Money obtained an Estate of Free-hold to him and his Wife and the Heirs of their bodies It was Resolved in that Case That by the Acceptance of the new Estate the Copy-hold was determined If a Copy-holder doth surrender to M. 29 Eliz. in C. B. Godb. 101. him who hath a Lease for years of the Manor to the Use of the same Lessee by that Act of his the Copy-hold-estate is extinct The Lord of a Manor sold the Free-hold P. 30 Eliz. B. R. Leon. 1. part 102. Wakesield's Case of a Copy-hold unto another and so it was divided from the Manor and afterwards the Copy-holder did release to the Purchasor It was the opinion of the Justices That by this Release the Copy-hold was gone and extinct But in that Case it was said That if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor Nihil operatur by such Release A Copy-holder had common by Usage in the Wastes of the Lord as to his Messuage and Lands belonging The Copy-hold comes to the Lord who after grants the same to the Copy-holder cum pertinentiis In this Case it was holden That these words viz. cum pertinentiis could not create a new Common and the Common first holden was by Custome annexed to the Customary Estate and was absolutely extinguished If there be Lessee for life the Remainder M. 9 Jac. in C. B. adjudge acc for life of a Copy-hold and the first Tenant for life purchaseth the Free-hold of the Copy-hold and afterwards levieth a Fine thereof and five years pass It was adjudged That in that Case by the Fine levied the Copy-hold was not gone nor destroyed and that this Fine was not a Bar to him who was in Remainder in life of the Copy-hold There was Tenant for life of a Copy-hold P. 8 Jac. in Co. B. Moore and Rideval's Case The Lord granted the Reversion of the Copy-hold after the determination of the particular Estate to another for 20 years Afterwards the Copy-holder who was Tenant for life by Deed made a
c. I shall not deliver any absolute opinion upon the same although I do much incline to the Affirmative part being chiefly led thereunto by the opinion of Mr. Littleton and by the Resolution in Manxell's Case and of my Lord Coke in Heydon's Case and a late Resolution in the said Point 42 Eliz. in Erish and Rives Case where it was adjudged in the Court of Common Pleas upon an Evidence given in a Case of Copy-hold-lands within the Manor of Istleworth-Sion in the County of Middlesex where it was Resolved That no Estate-tail could be of a Copy-hold without a particular Custome to warrant the same but if there was such a particular Custome within the Manor to warrant such Estates then by the Custome co-operating with the Statute as before is expressed Copy-hold-lands might be well entailed within the said Statute Admitting then that by an especial Custome of the Manor Lands may be entailed the next matter to be considered of is By what and whose Acts the said Estate shall be either discontinued or barred and what shall amount to a Discontinuance or a Bar to the Issue in Tail of such Estate In 13 R. 2. sits Judgment 7. it is 13 R. 2. sits Judgment 7. said That the Heir who is inheritable to the Copy-lands by Custome may recover the same by Plaint in the Court of the Lord in the nature of an Assise of Mort-dauncestor but he shall not have an 15 H. 8. Tenant by Copy 24. Assise of Novel Disscisin And 15 H. 8. Tenant by Copy 24. The Heir of a Copy-holder Tenant in Tail shall recover the Lands in a Formedon in the Discender The Custome of a Manor was That Plaints in the Court of the Lord of the Manor have used to be in real Actions A Recovery was by Plaint in the nature of a real Action against a Copy-holder being Tenant in Tail and a Recovery thereupon had It was holden in that Case That the said Recovery shall be a Discontinuance to take away the Entry of the Heir in Tail because such Plaints are warranted by the Custome and it is an Incident which the Law annexeth to the Custome That a Recovery shall be a Discontinuance But vide Tr. 36 Eliz. in B. R. in Deal and 36 Eliz. B. R. Deal and Rigden's Case Moore 358. Rigden's Case If it had been a Surrender in Court it had been no Discontinuance In 27 Eliz. in a Case concerning the M. 9 Car. in Co. B. Hill and Vpchurche's Case Brownloe 121. Manor of Northhall in the County of Essex That if Copy-hold-lands might be entailed within the Statute of Westm 2. then a Custome of a Surrender of it should be a Bar or a Discontinuance of such Estate for as the Estate might be created by Custome so it might be discontinued by a Surrender by Custome And Tr. 38 Eliz. Field and Eliot's Case A Surrender by Tenant in Tail of a Copy-holder in Fee makes a Discontinuance of it But yet notwithstanding those Authorities and Cases I do conceive that a Surrender is no Discontinuance of a Copy-hold-estate in Tail If a man be seised of a Copy-hold in H. 30 Eliz. B. R. Right and Footeman's Case Leon. 1. part 95. the right of his Wife or be Tenant in Tail of a Copy-hold and he doth surrender to the Use of another in Fee It was holden in that Case That the same doth not make any Discontinuance of the Estate of the Wife or of the Estate-tail but that the Wife or the Issue in Tail may respectively enter into and upon the Land And according to this it was adjudged in Gravenor and Brook's Case before mentioned in 36 Eliz. copy-hold-Copy-hold-lands were entailed and 37 Eliz. in C. B. Lane and Hilâ—'s Case the Copy-holder surrendred the said Lands to the Use of another man in Tail with divers Remainders over and then he died It was said in this Case That it was no Discontinuance of the Tail but the Issue in Tail notwithstanding the Surrender might enter But it was said in that Case That if it were a Discontinuance that in such case a Formedon in the Reverter did not lie by the Tenant in Tail because when a Copy-holder makes a Gift in Tail he hath no Reversion but a Possibility and the Lord shall avow upon the Donee for the Rents and Services and not upon the Donor In Trespass it was adjudged That a H. 1 Jac. Oldcatâ—'s Case Moore 753. Surrender by Tenant in Tail of a Copy-hold was not any Discontinuance of it no more then a Surrender by Tenant for life to another in Fee was a Forfeiture If an Enfant Tenant in Tail surrendreth H. 35 Eliz. Goales and Gran's Case adjudge acc his Copy-hold-lands to the Use of a Stranger who is admitted the Enfant may enter at his full age because it was not a Bar nor a Discontinuance It is not to be disputed or questioned whether a Common Recovery of Lands at the Common Law with Voucher over and Warranty be a Bar of Lands entailed It is universally received by all Learned in the Laws of the Realm to be a Bar of such an Estate and the Inheritances of a great many persons of Quality and others do depend upon such Common Recoveries had and suffered But then the Question hath been whether a Common Recovery had and suffered in the Court of the Lord of the Manor shall be a Bar of an Estate of Copy-hold-lands entailed and for that it will stand upon this difference Where the Custome of the Manor hath always been that such a Recovery there had shall be a Bar where not For without a special Custome I do conceive that by a Recovery had and suffered in the Court of the Lord of the Manor an Estate-tail of Copy-hold-lands cannot be barred But where such a Custome is or hath been out of mind used there I conceive that a common Recovery had and suffered in the Court of the Manor will bar an Estate in Tail of Copy-hold-lands I shall onely put you two Judgments and Resolutions to make good this difference although many others may be alledged Upon a special Verdict in an Action P. 37 Eliz. in B. R. Clun and Pease's Case Cro. 1. part of Trespass it was found That the Lands were Copy-hold demisable in Tail with the Remainder over in Tail That Tenant in Tail in possession suffered a Common Recovery with Voucher in the Court of the Manor of these Lands and afterwards died But there was not any Custome found for suffering Recovery of such Lands in the Court of the said Manor It was holden by the whole Court in that Case That the Recovery should not bind the Tail but upon a Recompence in value and in that case the Issue could not have Land in value Also the Lord should lose his Fine and the party to whose Use the Recovery was had should hold the Lands without Admittance or Grant from the Lord which is contrary to
lately adjudged in the Court of Common Pleas both for the Point of the Custome that it was a good Custome and Admittance A Copy-holder dwelling in a Town M. 3 Eliz. B. R. Sir John Braunche's Case Leon. 1. part 104. long distant from the Manor having Notice of the Court-day when it was to be holden upon Summons appeared not himself but appointed his Son his Attorney to appear and doe the Services for him for his Copy-hold-lands In this Case it was holden by the Court That such a person so appointed might essoign the Copy-holder but not doe the Services for him for that none could doe the same but the Tenant himself SECT XIX What Customes within Copy-hold-Manors shall be said to be good and reasonable Customes and what not CUstome is the very Soul and life of Coke 4. part 21. Copy-hold-estates for without Custome or if they break their Customes they are at the Lord's will for they hold their Lands ad voluntatem Domini although as before is said it be secundùm Consuetudinem Manerii c. But then the Customes must be reasonable and not unreasonable Customes If the Lord doth challenge a Custome Coke 1. part Institut 59. within his Manor to have a Fine of every of his Copy-holders of the said Manor at the Alteration or Change of the Lord of the Manor be it by Alienation Demise Death or otherwise this is an unreasonable Custome for by this means his Copy-holders may be oppressed by the Lords by the payment of a multitude of Fines A Custome within a Manor That every Coke 5. part Pennieman's Case Alienation of Lands within the Manor shall be presented at the next Court holden for the said Manor upon pain that such Alienation shall be void is a good and reasonable Custome for it is but reasonable that the Lord should know who is his Tenant A Copy-holder alledged a Custome Pasch 6 Jac. in Co. B. Glascock's Case Vid. God Godb. acc within a Manor in Essex to be That all the Tenants within the said Manor had used to cut down Trees to repair their Copy-hold and Free-hold Tenements within the said Manor and also to sell their Trees at their pleasures It was doubted if it was a good Custome but the better opinion of the Court seemed to be that the Custome was good The Custome of a Manor in Worcester-shire M. 6 Jac. in Co. B. Paginton and Hunt's Case was That if any Copy-holder committed Felony and that the same be presented by 12 Homagers in the Lord's Court the Tenant should forfeit his Copy-hold It was presented that J S a Tenant of the said Manor had committed Felony at such a time but that at the Assizes next after he was acquitted of the same After which the Lord seized the Lands In this Case it was adjudged That the Custome was not good because in judgment of Law before Conviction or Attainder he was not a Felon But whether in that Case the Verdict and finding of the Jurors upon the Bill of Indictment agreeing with the finding of the Homagers that the party had committed Felony did entitle the Lord to the copy-hold-Copy-hold-lands notwithstanding the Acquitall of the Jury which was afterwards was not Resolved A Copy-holder did alledge the Custome of the Manor to be That the Lord might grant Copies in Remainder with the assent of the Tenants and not otherwise and that Copies otherwise granted in Remainder should be void It was said That this Custome might be good for it might be so agreed and granted by the Lord at the beginning upon the Creation of the Manor and that it seemed to be grounded upon the reason of the Common Law That a Remainder M. 31 Eliz. Co. B. Godb. â—40 should not be without the assent of the particular Tenant and to commence with his Estate and that therefore it was a good Custome Quere the Case for it was not Resolved M. 31 Eliz. in Co. B. The Custome of a Manor was That those who claimed Copy-holds by Discent ought to come at the first second or third Court upon Proclamations made to take up their Estates or else they should H. 7 Jac. in Co. B. Copley's Case be forfeited A Tenant of the Manor having Issue inheritable by the Custome beyond the Sea died The Proclamations all passed and the Heir did not return in two years but upon his return he prayed to be admitted to the Copy-hold and profered the Lord his Fine in Court which the Lord refused to accept of and to admit the Heir but seized the Land as forfeited It was adjudged in this Case That it was no cause of Forfeiture because the Heir was beyond the Seas at the time of the Proclamations and the Lord was at no prejudice for that for any thing appeared in the Case the Lord had taken all the Profits of the Land in the mean time The Custome of a Manor was That M. 7 Jac. in Co. B. by Dodderidge every Copy-holder at his death should pay to the Lord his best Beast for a Heriot A Feme-sole within the Manor Tenant for life took a Husband and died It was the opinion of Dodderidge in this Case That although the Custome was good yet as this Case was no Heriot should be paid because the Wife had not any Goods by Cattell to pay the same A Custome of a Manor was said to be M. 42 Eliz. B. R. Cro. 1. part Parker and Combleford's Case That the Lord had used after the death of every one dying within his Manor to have the best Beast of such a person for a Heriot and to seize and distrain for it It was adjudged a void Custome Vid. 3 4 Eliz. in Co. B. Wilson and Wise's Case Moore acc not good to bind a Stranger but such a Custome to extend to and bind the Tenants of the Manor might be good The Custome of a Manor was Quòd Pasc 24 Eliz Moore Vide Skipwith's Case Tr. 33 Eliz. in Co. B. Godb. 143. where the contrary seemeth to be adjudged quilibet tenens per Copiam poterit dimittere terras suas for life in Fee or otherwise and that a Woman Cooperta viro poterit devisare her Copy-hold-lands to any other or to her Husband by the assent of the Husband In this Case the Court held That the Custome was not unreasonable but because it was poterit devisare where it ought to have been alledged usi sunt devisare for that cause it was said it was not good Note by the whole Court That if the Pasc 8 Jac. in Co. B. Rapley and Chaffyn's Case acc Custome of a Manor is alledged to be That the eldest Daughter shall solely inherit the Land such a Custome may be good But then such Custome shall be taken strictly viz. That the eldest Sister shall not inherit the Land by force of the said Custome It was Resolved by the Justices That Vid. Moore 's Rep. 3
E. 6. a Custome that a Lessee for years may hold the Land for half a year after his Term ended is no good Custome But it was agreed That the Lord of a Copy-hold might by Custome lease the same for life and 40 years after and that such a Custome was good A Custome was alledged That all Inhabitants Tr. 14 Jac. in Co. B. Harbin and Green's Case Moore 887. of certain Messuages holden of the Bishop of S had used to grind their Corn which they used to spend in their Houses or should sell at certain Mills called the Bishops Mills in S and not elsewhere without the Licence of the Bishop It was the opinion of the Justices That it was a void and unreasonable Custome to grind all their Corn there which they should sell c. The Custome of the Manor of Y in the P. 13 Jac. Ford and Hoâ—kâ—n's Case Moore 842. County of Dorset was That every Copy-holder might name who should have his Copy-hold and that the Lord ought to admit the Copy-holder so named at the death of the Nominator Quere if it be a good Custome because the person nominated hath neither jus ad rem nec in re the Interest being in the Lord and a man cannot gain an Interest to himself from the Lord against the will of the Lord. And therefore it was holden That where the party in that case brought an Action against the Lord for denying to admit him to the Copy-hold upon such Nomination the Action would not lie But Quere that Case as to the Custome for that in 45 Eliz. in B. R. in Powell 45 Eliz. B. R. Powell and Peacock's Case and Peacock's Case it was adjudged That a Custome that a Copy-holder in Fee might nominate his Successor and so in perpetuum was adjudged a good Custome Vid. Hob. Reports 6 and 11. Brock and Spencer's Case And Vid. Brock and Spencer's Case in Hobart 6 and 11. a Custome that such a Copy-holder in Fee might fell Timber-trees was adjudged a good Custome The Custome of a Manor was That P. 41 Eliz. B. R. Parman and Bowyer 's Case if any Tenant allowed his Lands holden of the Manor by Writing or Feoffment or devised them or surrendred them into Vid. the same Case in Anderson's 2. part 125. where it seemeth the Custome was much doubed if good or â—ot the hands of the Lord of the Manor to the Use of another that such Alienation Feoffment Devise or Surrender ought to be presented within one Year next after It was said It was no good Custome But the Court ruled the Custome to be good and agreeable to the Law for that it is reason that the Lord should know c. Tant Vid. before A Custome was That a Copy-holder Vid. Willis and Bucknall's Case in B. R. Style 's Reports 311. of Inheritance might make a Letter of Attorney to two Joynt-tenants and severally to surrender his Copy-hold-lands in Fee to certain Uses after his death It was Resolved That the Custome was a void Custome because by the death of the Copy-holder the Lands were settled in the Heir and an Authority given to devest him was not good The Custome of a Manor was That M. 21 Jac. Cro. 2. part Page's Case the Land was devisable by Custome for 21 years paying the treble value of the Rent and if the Lessee died that the Term should be to his Heirs paying for a Fine one year 's Rent and if he assigned it the Assignee to have it for one year's value of the Rent and that he might renew the Devise for 3 years value The Court held all the said Customes to be good and reasonable The Custome of a Manor was That if P. 17 Car. in B. R. Thorne and Tyler's Case any Copy-hold-tenant did suffer his Messuage to be ruined for want of Reparations and the same be presented in Court by the Homage that such a Tenant should be amerced and that the Lord had used to distrain the Beasts as well of the Under-tenant as of the Tenant himself which were levant and couchant upon the Lands for such Amercement It was said That the Custome was not good but unreasonable to distrain a Stranger 's Cattel such as the Under-tenant was But it was Resolved that the Custome was good for the Under-tenant although he was but Tenant for a year yet he should have all the benefits and privileges which the Copy-holder himself should have had qui sentit Commodum sentire debet Onus and he is distrainable for the Rents and Services due and payable to the Lord and the Charge lies upon the Land and not upon the Custome and therefore the Custome is good The Custome of a Manor was shewed H. 37 Eliz. B. R. Brown and Foster's Case Cro. 1. part acc to be That any Copy-holder of the Manor may surrender within any place of the Manor into the hands of two Tenants and if a Surrender be to the Use of a Stranger without expressing any Estate that the Lord might grant it in Fee to him to whom the Surrender was made It was objected That the Custome was unreasonable because it is to charge the Land with a greater Estate then the Copy-holder gave On the other side it was said That the Custome was good for that the Lord is Chancellour in his own Court and might dispose thereof when the Tenant leaves it uncertain Quere for the Case was not Resolved SECT XX. Where and in what case a Copy-holder or his Lessee upon an Ouster may have and maintain against the Ejector an Ejectione firme and where and in what not Proofs IN Ejectione firme the Case was The H. 38 Eliz. C. B. Wells and Partridge's Case Cro. 1. part Plaintiff was Lessee for years of a Copy-hold and the Custome of the Manor was That a Copy-holder might let the Land for 3 years It was the opinion of Anderson Chief Justice That the Lessee of a Copy-holder cannot maintain Ejectione firme but if he might he ought to shew his Lessor's Estate or his Licence or a special Custome to warrant it A Copy-holder made a Lease for M. 14 15 Eliz. Leon. 1. part 4. years by Indenture warranted by the Custome It was adjudged That the Lessee should maintain Ejectione firme although it was strongly objected That if it were so then the Plaintiff should have an Habere facias possessionem and so Copy-holds should be ordered by the Laws of the Land The Custome of a Manor was That if any Copy-holder of Inheritance died P. 33 Eliz. in B. R. Cole and Wall 's Case Leon. 1. part 328. his Heir within the age of 14 years then the Lord of the Manor might grant the Custody of his Body and Lands to whom he pleased A Copy-holder of Inheritance died his Heir within the age of 14 years The Lord committed the Custody of his Body and Lands to J S who being ejected brought a Writ of Ejectione
Custodie of his Body It was the opinion of the Justices That the Action did not lie But it was agreed in that Case That an Ejectione firme lieth upon a Demise of copy-hold-Copy-hold-lands by Lease for years by the Copy-holder himself but not upon a Demise by the Lord of the Copy-hold Note It was Resolved by the Justices Coke 4. part 26. in Melwichâ—'s Case M. 8 Jac. in Câ— B. Craneford and Freshwater's Case acc That the Lessee of a Copy-holder for a year may maintain an Ejectione firme for inasmuch as his Term is warranted by the Law by force of the general Custome of the Realm it is but reason that H. 39 Eliz. Cro. 1. part Goodwin and Langhurst's Case acc if he be ejected he should have an Ejectione firme for it is a speedy Course for a Copy-holder to gain the possession of the Land against a Stranger being no more then what right requires to be yielded him for the Recovery of his Estate SECT XXI What Statutes and Acts of Parliament do extend to Copy-holds and Copy-hold-estates what not SOme things concerning this Division being spoken of in the former part of this Treatise and some particular Statutes there being mentioned within which Copy-holds are included and in what not I shall refer the Reader thereunto adding onely a few Cases upon some particular Acts not therein mentioned with the Authorities and Resolutions of the Justices therein And as concerning within what Statutes Copy-holds are I shall take and relie upon the general Rule Coke 3. part Heydon's Case which is put in Sir Edward Coke's 3. part of his Reports in Heydon's Case viz. When a Statute or Act of Parliament doth alter the Service Tenure Interest of the Estate or other thing in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenant there the general words of such Statute or Act of Parliament do not extend to Copy-holds or Copy-hold-estates But when the Statute or Act of Parliament is generally made for the good of the Commonweal and no prejudice can come thereby by alteration of any Service Tenure or Interest or Custome used within the Manor there Copy-holds and Copy-hold-estates are within the purview of such Statutes or Acts. Proofs It was Resolved by all the Justices 6 Jac. in Co. B. Coke Select Cases 27 28. That no Tenure shall pay for a reasonable Aid to make the eldest Son Knight or to marry the eldest Daughter but Tenure by Knight's-Service or Tenure in Littl. 16. sect 36. Socage Now Littleton saith that all Tenures are either Knight's-Service or Socage And the Statute of Westm 1. cap. 36. of reasonable Aid extends onely to such Tenures The Question then is Whether a Copy-hold-Tenure be within that Statute I shall not determine the Question for that I do not find it moved in any Book of the Common Law But although I humbly conceive Copy-holds be within the general words of Mr. Littleton all Tenures in Socage yet that the said Statute of Westm 1. cap. 36. doth not extend to Copy-holds Quere of it The Statute of Westm 2. de Donis conditionalibus Statute Westm 2. de Donis I conceive doth not extend to Copy-holds within the general words thereof The words of the Statute are of Gifts per Chartam datis and Copy-holds do not pass by Deeds but by Surrenders But yet it is conceived that although they be not within the general Words of the Statute yet they are within the Equity of the said Statute if there be a Custome to warrant such Estates The Case was A Copy-holder in Fee H. 37 Eliz. in Co. B. Church and Wyatt's Case Moore 637. surrendred his Copy-hold-lands to the Life of his Will and having a Daughter born and his Wife with Child he devised part of his said Lands to his Son or Daughter which his Wife went with Haeredibus suis legitimè procreatis and the residue thereof he devised to his Daughter born to have to her and the fruit of her body One Point in this Case was What Estate the Daughter born had in the said copy-hold-Copy-hold-lands if in Tail or not It was said It was a Fee-tail in the Daughter born But it was much doubted if it was an Estate within the said Statute de Donis c. But in that Case it was agreed That Copy-hold might be entailed by Custome co-operating with the said Statute and if not within the words yet within the Equity of the said Statute The Statute of Praerogativa Regis cap. Stat. Praerogat Regis cap. 9 10. Co. 8. part 170. in Towerson's Case Co. 4. part 127. in Beverly's Case 9 and 10. gives the Lands of Idiots natural to the King he finding them convenient Maintenance out of the Profits thereof But if the Idiot hath Copy-hold-lands discended unto him the King shall not have the Wardship of those Lands therewith out of the Profits thereof to maintain the Idiot because the same would be prejudicial to the Lord of the Manor of whom the Lands are holden by Copy But yet all Alienations made by an Idiot of his Copy-hold-lands after Office found shall be avoided by the King Copy-hold-lands are not within the Stat. West 2. cap. 20. Statute of Westm 2. cap. 20. of Executions For if a Judgment be had in a Court of Record against a Copy-holder for Debt and Dammages although the Plaintiff may have Execution by Fieri facias against his Goods or a Capias against his Body yet he cannot have Execution of the moyetie of his copy-hold-Copy-hold-lands by Elegit for that Copy-hold-lands are not within that Statute And so it is if a Statute-Merchant or Staple be acknowledged by a Copy-holder for the payment of Money at a day certain which is not payed his Copy-hold-lands are not extendable for the same And the reason of these Cases is because no person can come to Copy-holds but by Admittance of the Lord and the Lord should thereby lose his Fine which is due upon Admittance if the party might have the Lands upon Extent delivered unto him If Tenant by the Curtesie or Lessee Pasc 12 Eliz in Co. B. Moore 94. for years be of a Manor and Copy-holds were in his hands by Forfeiture or other determination and he bindeth himself in a Statute and afterwards he deviseth the Copy-hold again the Copy-hold shall be liable to the Statute But if a Copy-holder bindeth himself in a Statute-Merchant or Staple his Copy-hold-lands shall not be extended upon the said Statute because therein he hath but an Estate at will Copy-hold-lands are not within the Statute Stat. 31 H. 8. cap. 13. of 31 H. 8. cap. 13. of Monasteries The Guardians of the Colledge of Otlery Lords of a Manor granted M. 25 26 Eliz. in the Exchequer Leon. 1. part 4. Lands for 3 Lives by Copy according to the Custome of the Manor afterwards in 30 H. 8. they leased the Lands to J S rendring