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land_n	brother_n	die_v	elder_a	1,509	5	9.7904	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A34802	Lex custumaria, or, A treatise of copy-hold estates in respect of the lord, copy-holder wherein the nature of customs in general, and of particular customs, grants and surrenders, and their constructions and expositions in reference to the thing granted or surrendred, and the uses or limitations of estates are clearly illustrated : admittances, presentments, fines and forfeitures are fully handled, and many quaeries and difficulties by late resolution setled : leases, licences, extinquishments of copy-hold estates, and what statutes extend to copy-hold estates are explained : and also of actions by lord or tenant, and the manner of declaring and pleading, either generally or as to particular customs, with tryal and evidence holder may recieve relief in the Court of Chancery : to which are annexed presidents of conveyances respecting copy-holds, releases, surrenders, grants presentmets, and the like : as also presidents of court rolls, surrenders, admittances, presentments, &c. / by S.C., Barister at Law.	Carter, Samuel, barrister at law.	1696 (1696)	Wing C665; ESTC R4622	239,406	434

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 C●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

concessis al 2. pro vitis in reversione Co. Entr. 184. Paying Fine and renewing Leases The Custom was That the Land was demiseable for twenty one years paying the treble value of the Rent and if he dyed within the Term that the Term should be to his Heir paying a Fine certain of one years Rent and if he Assigned the Term the Assignee should have it paying for a Fine one years value of the Rent and he who had it might by the Custom renew it for twenty one years paying three years value and this was admitted to be a good Custom by the Court Croke Jac. p. 671. Page's Case To assign one to take the Profits of a Copy-holder Infant The Custom was The Lord of a Manor might assign one to take the Profits of a Copy-hold descended to an Infant during his non-Age to the use of the Assignee without rendring an account it was held to be a good Custom as a Rent granted to one and his Heirs to cease during the non-Age of every Heir and admitting the Custom were void yet an Action of Account lyes not Prochein Amy. for the Defendant hath not entred and taken the Profits as Prochein Amy in which case although he was not Prochien Amy he is chargable as Prochein Amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the Right of the Heir 1 Leon. p. 266. Case 357. Anonymus The Custom was The Lord to dispose the Estate when the Tenant leaves it in incertainty That if any one surrender to the use of another without expressing any Estate that the Lord may grant it in Fee to him to whose use the surrender was made it s a good Custom for he is a Chancellor in his own Court to dispose thereof when the Tenant leaves it uncertain Crok El. 392. Brown and Foster Custom in the Manor of Sedgly in Com. Staff was Lease to be void if Copy-holder dye within the year If a Copy-holder make a Lease without Licence of the Lord for one year and dyes within the term it shall be void against the Heir Per Cur. it s a good Custom for then the Lord may know his Tenant and the Tenant may have the Estate and pay his Fine It s void by the act of God but had the Custom been That if a Copy-holder within the year surrender his Copy-hold that the Lease shall be void this is an unreasonable Custom Lit. Rep. 233. Hutton 126 127. Turner and Hodges Custom To Lease without Licence That five Copy-holders without License they being seized in Fee may make any Lease for one year or many years and when they dye the term shall cease and the Heir may enter it s a good Custom Hutton p. 101. Custom To hold after the term ended That a Lessee for years may hold the Land for half an year after the term ended it s no good Custom More n. 27. Not to alien without Licence Custom That a Copy-holder shall not alien without Licence is good for it may have a lawful commencement by agreement To Lease without Licence A Custom That on payment of a years Rent the Lord should Licence to let for 99 years and if he refused the Tenant might do it without Licence adjudged a good and reasonable Custom Grove and Bridges cited in Porphyry and Legingham's Case 2 Keb. 344. For Lessee pur vie to let for another mans Life A Custom That Lessee for Life may let for another man's Life is no good Custom but the Lord may by Custom Lease the same for Life and forty years after More n. 27. To commit a forfeiture and so to bar the Intayl A Custom for a Copy-holder tenant in tayl to make a Lease for years without Licence to commit a Forfeiture on purpose to bar the Intayl and to transfer the Lands over to any other person is a good Custom and is but in the nature of a Surrender or Common Recovery 2 Saunders 422. Grantham and Coples And the Lord in such cases may not admit any other but him to whom it is appointed by the Tenant making such Forfeiture and when such Cesty que use is admitted he shall avoid all mean acts or dispositions made by the Lord as well as upon a Surrender and this though he was not admitted in the life of the Tenant so forfeiting Vide infra Tit. Intayling Copy-holders In respect of Discents The Manor of Wadhurst in Com. Sussex consisted of two sorts of Copy-hold viz. Sookland and Bondland and by several Customs in several Manors as if a man be first admitted to Sookland and afterwards to Bondland and dyes seized of both his Heir shall inherit both but if he be first admitted to Bondland and afterwards to Sookland and of them dye seized his youngest Son shall Inherit 1 Leon. p. 36. Kemp and Carter A. Seized of Copy-hold in Fee Copy-hold Burrough English in the nature of Burrough-English surrenders this into the Hands of the Lord ea intentione That he shall re-grant this to him and his Wife and to the Heirs of himself and the Lord re-grants this accordingly And there is a Custom That if any person seised in Fee of such customary Lands and dyes so seized that the Land shall descend filio juniori c. And A. having Issue three Sons and ten years after his death the youngest Son dyes in the Life of his Mother without Issue Per Jones and Crook The elder Brother shall have this as Heir to the youngest and not the middle Brother Custom not to extend to Collateral Descents for the Custom may not extend to a collateral Descent viz. to direct the Descent amongst the Brothers for this is out of the Custom and the Custom was once satisfied by Descent to the youngest and there is an end of the Custom and where Custom fails Common Law shall guide the Descent Where Custom fails Common Law guides the Descent And by this special Custom he which is youngest Son at the death of the Father shall have the Land and not he which comes to be youngest afterwards but Bramston and Berkly contra 1 Rolls Abr. 624. Reeve and Malster Vide Maxims of Copy-holds supra CAP. VI. Customs of a Manor as to Wives and Widows of Copy-holders What are good and what not As also of Tenancy per le Curtesie And where the Severance of the customary Tenants from the Manor shall not prejudice CUstom of Manors That Husbands shall be Tenant per le Curtesie and the Pleading More 171. Custom of a Manor is That the Wife shall have it during her Life and on Evidence it appears the Custom was she should have it durante viduitate this Evidence doth not maintain the Custom because it is a less Estate Cok. 4. Rep. 30. That the Wife of a Copy-holder for Life may hold it durante viduitate was agreed to be a good Custom

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

4. Rep. 29. Bunting and Lepingwel 5. Copy-hold ought to be dimissa dimissibilis as it is in Murrels Case 4 Rep. vide infra Tit. Custom Yet this Rule is not Infallible For if a Copy-hold Land be in the hand of a Subject who is after preferred to Dignity Royal the Copy-hold is extinct for it is below the Majesty of a King to perform servile Services and yet after his Decease the next who hath right shall be admitted and the Tenure shall be revived in him 2 Siderfin 82. CAP. III. Priviledges of Copy-hold Estates 1. Priviledges of the Lord. 2. Of the Tenant 3. Priviledges of Infants Copy-holders 4. Of Copy-holds in respect of the Kings Prerogative and Priviledge BEfore I come to Treat farther of Copy-holds I thought it might not be amiss to set down the Priviledges of Copy-holders and Lords and Prerogative of the King that so the Student being well setled in these they need not be mentioned or explicated hereafter though they may lye here and there scattered in the following Cases Priviledges of the Lord. The Lord may upon Seizure of a Copy-hold maintain an Ejectment till the Heir come to be admitted 1 Keb. 287. Pateson and Danges The King shall not have the custody of the Land that the Ideot holds by Copy The Lord to have the custody of an Ideot for this is no more than an Estate at Will at Common Law and if the King should have the custody of the Land he would much prejudice the Lord. Yet alienation made of it by the Ideot after Office found shall be avoided Coke 4 Rep. 126. Beverly's Case Copy-hold Lands granted to three for the Lives of two if the Tenants pur auter vie dye Living cesty que vie the Lord shall have it for there shall no be Occupancy 1 Rolls Abridg. 511. Ven and Howel's Case No Occupancy The Lord shall have the custody and not the Prochein Amy. The Copy-holder is surdus mutus the Lord shall have the Custody and not the Prochein Amy for otherwise he should be prejudiced in his Rents and Services Cro. Jac. 105. Evers and Skinner The Lord is Chancellor in his own Court to dispose of the Estate when the Tenant leaves it uncertain Vide infra sub Tit. Customs in reference to Estates sparsim per tout If a Copy-holder surrender to the use of one and the Lord refuseth to admit him no Action of the Case lyeth against him so if such Copy-holder prays the Lord to hold a Court and he refuseth Where a Surrender is to be made to a Tenant of the Manor if he will not take such Surrender yet no Action of the Case lyes against him 1 Rolls Abr. 108. In what capacity the Lord stands in reference to the Copy-holder's Estate He is an Instrument of Conveyance upon Surrenders and a Conveyer himself upon voluntary Grants He is Chancellor in his own Court and may proceed by Bill vide infra Of the Priviledges of Copy-holders In this Chapter I shall sum up some general Priviledges of Copy-holders which lye scattered in the several Customs hereafter treated of A Copy-holder may make a Lease for a year without Licence of the Lord vide Lease Lease Copy-holders of a Manor may have Solam separalem pasturam in the Soyl of the Lord Sola separalis pastura and exclude him 2 Sanders 326 327 328. If a man be obliged in a Statute Staple Stat. Staple Elegit his Copy-hold Land is not extendible but aliter upon a Statute of Bankrupts vide Tit. Grant It s not extendible upon Elegit If a Copy-holder Lease for years by Licence of the Lord this is not extendible in the Hands of the Lessee Rolls Abr. 888. Picto's Case Copy-holder of Inheritance may dig for Mines in his Land So the Parson in his Glebe as it seems Siderfin p. 152. The Lord of Rutland against Gee per Hobart and Warburton Copy-holder may dig for Marle without any danger of Forfeiture Digging for Marle but he ought to lay the said Marle upon the same Copy-hold Land Winch p. 8. A Custom is that the Lord of a Manor may dig for Coals and open Mines in the Land of his Copy-holder Coals It was made a doubt in Goodrick and Gascoin's Case if Lessee of the Manor may have this liberty and whether such liberty can pass by Grant of the Manor without special words Latch p. 189. A Copy-holder may hedge and enclose but not where it was never enclosed before Winch p. 8. Note a difference between Priviledges which are annexed to the Seigniory and Priviledges annexed to the Tenancy The first the Lord may destroy but not the last Therefore If Tenant at Will be Out-lawed his Estate is determined Outlawry but a Copy-hold is not forfeited or determined by Outlawry Lit. Rep. 234. cited to be adjudged in 44 Eliz. Yet vide 1 Leon. p. 99. Where a Copy-holder is Outlawed the King shall have the Profits of his Copy-hold Lands and the Lord hath not any remedy for the Rent If the King grants a Manor in which are Copy-holders in Fee-farm Fee-Farm Rent the Lands or Goods of the Copy-holders are not liable to the Fee-farm Rent although the Free-hold is for the Copy-holders are elder than the Rent being by Prescription So Rent by Prescription If the King had a Rent by Prescription out of the Manor in which there are Copy-holders if the King had not used to Levy this upon the Copy-holds it seems he cannot charge them forasmuch as they are in by Prescription also M. 12 Jac. B. 2 Rolls Abr. 157. Assets Copy-hold Inheritance shall not be Assets to charge the Heir Popham 188. Copy-holder makes a Lease for years by Licence and dyes this shall not be Assets in the Hands of his Executors Popham 188. Copy-holder shall have Ayd of the Lord where the right of the Seigniory comes in question upon the Issue taken Ayd 21 H. 6.37 But where he hath Ayd of a Bishop and after the King hath the Temporalties he shall not have Ayd of the King for so the Plaintiff may be perpetually delay'd 21 H. 6.37.39 Priviledge of Infants Copy-holders Or Resolutions concerning Infants in respect of Fines Admittances barring Estates and being bound by Customs or not Custom of a Manor is That if a Copy-hold descends to any man that Proclamation shall be made at three several Courts that he shall come in to be admitted Infant not comprehended within the Custom of coming in after three Proclamations and if he come not in it shall be a forfeiture to the Lord yet an Infant shall not be comprehended within this Custom for he by intendment of Law is not at discretion to make his Claim 8 Rep. 100. Letchford's Case It seems to be a Rule in Law An Infant cannot be protected by the Law by his non-age in any Case but where his Right which he had while an Infant and descended

to him might have been barr'd and interrupted by non-claim so in case of forfeiture the reason of the Rule is because the Law conceives he will have that knowledge to preserve his right when he is of full Age Carter's Rep. 86. in Smith and Painton's Case It was holden in Rumny and Eve's Case Not bound during his Minority to pray Admittance 1 Leon. p. 100 Pl. 128. If a Copy-holder dyeth his Heir within Age he is not bound to come into any Court during his non-age to pray admittance or to tender his Fine An Infant who surrenders his Copy-hold Land within Age may enter at his full Age Infant Surrenders he may enter at full Age. without being put to any Suit for it A Case cited in Popham 39. in Bullock and Dibler's Case Infant Copy-holder in Fee makes a Lease for years without Licence Infant shall not forfeit by making a Lease without Licence Acceptance at full Age makes it good to Lessee rendring Rent at full Age he accepts the Rent and after outs the Lessee Lessee brings Ejectment and Judgment for Lessee Per Cur. this Lease may be affirmed by acceptance and such a Forfeiture shall not bind an Infant 8 Rep. 44. Noy 92. Of Copy-holds and Copy-holders in respect of the King and his Prerogative Per Stat. 2 Ed. 6. Cap. 8. Copy-holders shall enjoy their Estates where the King is intituled by Office though they be not found by Inquisition The Statute of Chantries gives no Copy-hold Land to the King 1 Ed. 6.14 The Estates of the Kings Copy-holders confirmed by Decree in the Exchequer or Dutchy-Chamber shall be good according to the same Decree Stat. 7 Jac. Cap. 21. A Popish Recusant shall forfeit all his Copy-hold Land 35 Eliz. Cap. 2. Whether the King shall have the Copy-hold granted in Trust for an Alien It was a Question in Car. 1. between the King and Holland whether the King shall have a Copy-hold which is granted to one in Trust for an Alien The better Opinion seems to be that he shall Styles Rep. p. 20.37 75. Vide this Case Reported in Rolls 1. Abr. 194. Tit. Alien If an Alien Amy Purchase Copy-hold in Fee in the Name of J. S. in Trust for himself and his Heirs It was a great Question and much Argued whether the King shall have the Trust of this Copy-hold but no Opinion given as to this Point But the Trust being traversed and found for the King yet Judgment was given against the King because by the Inquisition by which this Trust and matter was found J. S. who was the person trusted and who had the Estate in Fee in the Law in him Where the King hath no possion by force of the Inquisition was put out of possession of it by the Inquisition where the Alien had but the Trust and no possession and therefore admitting that the Trust should have been given to the King yet the King may not have the possession by force of this but ought to have sued to have the Trust executed in a Court of Equity The King is seized of a Manor in Fee in which is a Copy-hold demisable at Will according to the Custom of the Manor The King demised this Copy-hold to J. G. for Life King need not recite in his Grant that it is Copy-hold by Letters Patents J. G. dyes The great Question was if it be destroyed or the King may grant it again by Copy Per Cur. 1. The King need not recite in the Grant that it is Copy-hold 24 H. 8.21 2. Copy-holder for Life dyes the King may regrant That after the Estate for Life determined the King may grant this House and Land again by Copy of Court Roll It is otherwise in the Case of a common person The Rule That a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind a Common person The Kings Gifts shall be taken favourably and not extended to two intents where there is no necessity for it Kings Grants favourably construed as there is not here and we are not here to intend a collateral intent and so the Copy-hold is not destroyed for the Law takes care to preserve the Inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copy-hold viz. to have Common Stiles p. 266. Cremer and Burnet If a Bishop Tenant in Tayl for Life or Years le ts a Copy-hold yet this shall not bind the Successor Issue in Tayl or him in Reversion to grant this by Copy again neither shall it bind an Infant Lord of Manor and the Estates and Possessions of the King are in like manner under the protection of the Law And if this Copy-hold should be extinguished Extinguishment perhaps a common Appendant or Appurtenant would be lost 2 Rolls Abr. p. 197. mesme Case If the King grants a Manor in which are Copy-holders in Fee-farm the Lands or Goods of the Copy-holder are not lyable to the Fee-farm Rent although the Freehold is Fee-Farm Rent because the Copy-holders are elder than the Rent being by Prescription 2 Rolls Abridgment p. 157. Loss of Issues If the Lord of a Manor lose Issues being summoned upon a Jury Process shall issue out of the Exchequer to levy them upon the Lands of the Copy-holders Lessees for Life or Years for the loss of Issues lyes upon the Land as an inherent Servitude by the Law in whose Hands soever it comes 1 Rolls Abr. 157. Surrender to the King without other matter of Record A Surrender of a Copy-hold to the King Lord of a Manor was in Lee and Boothby's Case 1 Keb. 720. adjudged good without other matter of Record All the Demesn Lands The King grants all his Demesn Lands in W. his Copy-hold Lands shall not pass Aliter in a common person 1 Rep. 46. Alton Wood's Case CAP. IV. The Nature of Custom in general Maxims of Customs What things are requisite to make a good Custom Time out of Memory Explained What shall be said to be an Interruption of Custom or not The reasonableness of Customs how to be judged of Several particular Customs Ratione Loci Of Customs enabling and disabling Of Customs and Prescriptions their difference and the different manner of Pleading them The several sorts of Prescription and how Prescription to be made and when and when not and by whom And when a Custom shall be said to be pursued or not Custom The Nature of Custom in general A Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record But being only matter of Fact and consisting in Use and Practice it can be recorded and registred no where but in the Memory of the People For a Custom taketh beginning and

Estate Tayl Executed or rests in Contingency its Estate Tayl executed in the Wife but by the Reporter it seems it is not executed but rests in contingency the Case as to that is but this A man gives Lands to the Use of his Wife for Life for as to this the Estate of the Stranger is not material and after to the Use of the Heirs of the Body of the Husband and Wife begotten for had it been to the Use of the Wife for Life the Remainder to the Use of the Heirs of the Wife by the Husband begotten it had been no Question he which is to have this ought to be Heir of both their Bodies which cannot be before the death of both and then it may so happen that this Remainder shall never take effect for if the Wife dye who had the particular Estate during the Life of the Husband as it was here her Heir of her Body cannot take it because he is not Heir of the Body of the Husband also and then he not being capable of the determination of the particular Estate he shall never have it and where an Estate rests upon Contingency this may not be executed before the Contingency happen Per Cur. when the Wife and the Estranger are admitted in Fee this doth not alter the Estate but they shall be seized according to the Surrender And when Dixon surrenders his moiety to the Use of the Husband Severance of a Joynture this was a severance of the Joynture between him and the Woman and the Husband aliening the whole to the Defendant he had a moity for the Life of the Wife defeazable by the Wife and the other moiety for the Life of Dixon and after when the Wife dyes the Estate of Pannel is determined as to one moity and on this the Remainder ought then to have vested but the Plaintiff being Heir of the Body of the Wife begotten by the Husband Remainder destroyed because not vests on the determination of the particular Estate cannot take the Remainder which was limited to the Heirs of the Body of the Baron and Feme during the Life of the Husband because non est haeres viventius and he which takes this Remainder ought to be Heir of both their Bodies or otherwise he shall not take it at all and therefore the Remainder is destroyed as to this moiety As to the Admittance of him in Remainder Vide Admittance Note The possession of a Lessee for years is the possession of him in Remainder yea so as to make a possessio fratris Modern Rep. 102. Blackburn and Greaves Where the Heir shall be in by Descent or Purchase It is a common diversity in our Law where a Man surrenders to the Use of himself for Life and afterwards to another in Tayl the Remainder to the right Heir of him who surrendreth there his Heirs shall have it by descent otherwise where the Surrenderer hath not an Estate for Life or in Tayl there his Heir shall enter as a Purchaser To illustrate this by a Case or two A Copy-holder surrendred his Lands to the Use of a Stranger for Life and afterwards to the Use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the Use of a Stranger in Fee and dyed and Tenant for Life dyed the right Heir of the first Copy-holder entred Per Coke nothing remained in the Copy-holder upon the first Surrender but the Fee is reserved to his right Heirs for if he had not made any second Surrender the Heir should be in not by Descent but by Purchase 1 Leon. Allen and Palmer Heir A. seized in Fee of a Copy-hold surrenders this to the Use of his last Will and after by his last Will devised it to B. for Life and after his death to the Heir of his Body begotten for ever Per Cur. The word Heir being limited to the Body of B. is nomen collectivum and all one with the word Heirs and so B. had a Fee executed and his Heir shall have this by Descent and not by Purchase And it is not like to Archer's Case 1 Rep. Where the Devise is to B. for Life and after to his Heir Male and to the Heirs Males of such Heir Male for there the Inheritance is limited to the Heir Male of the Body of such Heir Male Stiles 249 271. 2 Rolls Abr. 253. Powsly and Lowdal Not a good Remainder within the Custom A Copy-hold which by Custom was demisable for three Lives was demised to one for Life the Remainder to such a Wife as he shall marry and to the first Son of his Wife Per Cur. These two Remainders are void but the Estate for his Life was good More n. 1922. Webster and Allen Vide supra Of a Surrender to the Use of one's last Will and how to be construed A man cannot devise Copy-hold Estate to transfer it by his last Will only but he must Surrender it in Manus Domini to the Use of his last Will and then he may devise it to whom he pleaseth but its apparent that nothing passeth by the Will but all by the Surrender and the Will is only a Declaration of the Uses of the Surrender 1 Bulst p. 200. Semain's Case But if a Copy-hold he devised without Surrender Decreed it cannot be executed in point of Interest but only by Decree in Chancery 2 Keb. 837. Harrison and Grosvener But a Custom that a Copy-holder shall Devise his Land is not good without Surrender p. 35 Eliz. E. R. Rot. 334. Wrot's Case A man seized of Copy-hold Lands devised a certain parcel of them to his Wife for Life A general Surrender restrained by the Will the Remainder to his Brother and his Heirs and afterwards in presence of three persons of the Court said to them I have made my Will and have appointed all things in my Will as I will have it and afterwards he said And here I Surrender all my Copy-hold Lands into your Hands accordingly Per Cur. The Surrender is restrained by the VVill and not all his Copy-hold Lands but only so much as are mentioned in the Will pass to the Wife 3 Leon. p. 18. Copy-holder in Fee surrenders into the Hands of a Tenant according to the Custom to the Use of a Will which he said he would make and leave in the Hands of his Partner Moss Moss dyes and after the Copyholder makes his Will and recites the Surrender it seems that the Devisee shall have the Lands for the words Words of Demonstration and not of restraint That he would leave in the Hands of Moss are words of demonstration and not of restraint and then it is a ground in our Law When an act is to be done with referrence to another thing which is impossible illegal or variant the act shall stand and the reference shall be void Lit. Rep. p. 23. Littleton against Eaton Let us see now when a man hath surrendred to the Use

Copy-holder It hath been a Question when a Copy-holder bargains and sells his Copy-hold to the Lord of a Manor in Lease for years whether the Copyhold Estate was extinguished But in Hutton p. 81. it is agreed that this Copy-hold is not extinguished but that the Lord who is Lessee for years is Dominus pro tempore and may grant it by Copy de novo The Lord of a Manor demised Copy-hold Lands to three Sisters Habend to them for their Lives successive the eldest Sister married one C. after which the Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after making the said Indenture but four days after the Lease made she agreed to it in pais and then married a Husband Agreement to an Indenture by one in Remainder for Life and they claim the Land The point is if by Agreement of the second Sister her Right to the Copy-hold were extinct The Interest of the eldest Sister is gone by her acceptance of the Estate by Indenture now if the second Sister may come and claim her customary Interest Per Cur. it s no extinguishment in the second Sister and yet Judgment was against her for Per Gaudy none can take advantage of the eldest Sister's Estate being determined the Lord against his Lease cannot enter or claim and the second Sister cannot enter during the Life of the eldest Sister for her Remainder takes effect in possession after the death of her said Sister 1 Leon. p. 73. Curtis and Cottell's Case 28 Eliz. Trin. B. R. By acceptance of a new Estate of Free-hold Baron and Feme Copy-holders to them and their Heirs the Baron in consideration of mony paid by him to the Lord obtaineth an Estate of the Freehold to him and his Wife and to the Heirs of their Bodies Baron dieth having Issue the Feme enters and suffers a Recovery and his Heir enters Per Statute 11 H. 7. Per Cur. the Entry is lawful for the Copy-hold by the Acceptance of the new Estate was extinguished Cro. El. 24. Stockbridge's Case Where and how Right to a Copy-hold shall be Extinguished by Release A man makes a Surrender of his Copy-hold Land to J. S. which is not good and after J. S. is admitted he which made the Surrender releaseth to him being in possession and after enters upon him The Question was if his Entry be congeable and if by the Release by Deed the customary Right of the Copy-holder was extinct And Per Cur. it is extinct by the Release for he to whom the Release was made was Copy-holder in possession and admitted to the Tenements and therefore the Release of a customary right may enure to him and the Lord hath no prejudice for he hath received his Fine for Admittance and he to whom the Release is made is in by Title viz. by Admittance of the Lord and so this Release enures by way of extinguishment And there is great difference between transferring of an Estate and an extinguishment of a Right Diversity between the transferring of an Estate and the extinguishment of a Right But if a Copy-holder be ousted per Tort there his Release to the disseisor or other wrong doer does not transfer his Right or Bar him 1. Because there is no customary Estate upon which a Release of any customary Right may enure and then 2. It would be a prejudice to the Lord who would lose his Fines and Services Co. 4 Rep. 25. b. Kite and Queinton In Replevin bar to the Conisance That K.D. was seized of the Manor of R. in Fee and that the Tenements in which c. were customary held of the said Manor and that at such a Court a Copy was granted to the Plaintiff whereby he entred and put in his Beasts The Defendant protesting the Premisses were not customary for Plea saith That before the Plaintiffs Title J. Abbot of the Monastery of B. was seized of the Manor of R. c. and one R. T. being seized of the customary Lands in which c. in Fee at the will of the Lord the said R. surrendred to the Abbot who was possessed and occupied the said Premisses for divers years and afterwards demised the said Manor for 40 years to W. M. and then surrendred the entire Manor and Abbathy to H. 8. who granted the entire Manor to the Duke of Norfolk in Fee and he with the assent of the Termor made a Feoffment to Drury of the Manor to whom the Termor surrendred his Lease Drury dyes and it descends to his Heir who granted the Land in which c. again by Copy to Tillot for his Life who entred and put in his Beasts Demurrer The Question was if the Custom is destroyed or if Drury the Defendant may avoid his Grant by Copy Note The custumary Land was never severed from the Manor but granted with the Manor as part of it and was demisable by Copy by all the Lords of the Manor and so it remained till the 15th of Eliz. when the Defendant granted the Copy to the Plaintiff Winch Ent. 991 992. Where a Copy-hold shall be perpetually extinct or where it shall after become a Copy-hold by regrant Forfeit Escheat If a Copy-hold Estate be forfeit or escheat to the Lord or otherwise come into the Hands of the Lord if the Lord make a Lease for years or for Life or other Estate by Deed or without Deed this Land shall never after be granted again by Copy for the Custom is destroyed for that during such Estates the Land was not demised nor demisable by Copy of Court Roll So if the Lord make a Feoffment and enter for the Condition broken it shall never be granted again by Copy But if the Lord keep it in his Hands a long time or let this at will then he may re-grant it Lach p. 213. 1 Rolls Abr. 498. Downcliff and Minors So if the interruption be tortious as if the Lord be disseised and the disseisor dye seized or the Land be recovered against the Lord by false Verdict or erroneous Judgment yet after the Land recovered or the judgment reversed this is grantable again by Copy Legal Interruptions But if the Land so Forfeited or Escheated before any new Grant be extended upon a Statute or Recognizance acknowledged by the Lord or the Lords Wife hath this assigned to her in a Writ of Dower though these are impediments by acts in Law yet the interruptions are lawful and the Lands may never again be granted by Copy 4 Rep. 31. Frenches Case If Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed but such Lessee may re-grant the Copy-hold again to whom he will for the Land was always demised or demisable If a Copy-hold be surrendred to the Lessor of a Manor or be Forfeited to him he his Executors or Assigns may well

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 ter̄es in Reversion al Def. auters pur vies Repl que W. demised ceo Manor al C. R. determinable pur vie del M. ils̄ assigne al M. qui grant Reversion de ter̄es al H. pur vie Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise c. Surrej ꝑ maintenance de Replic Traverse le disseisin Demur inde Co. Ent. 184. Replev Quod Reg. Eliz. seisita de manerio unde c. concessit ter̄as 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 ter̄as 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 ter̄as custumar dimissibil pro 2 vitis tam in Possessione quam in Reversione Hern 724. Trns̄ quod C. seisitus de manerio concessit ter̄as customar in feod al B. de quo descend Def. Repl C. fuit sisitus de manerio unde c. quod discend quer traverse quod ter̄e sunt custum U. B. 153. Trns̄ Def. justif sub tenentur custum monstroit le Estate de Copyhold durante viduitate Tomps 395. Trn̄s novel assignmtur Def. dicit quod pmissa tempore c. parcel custmaria dimissibilia ꝑ cop cuicunque ꝑsone 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 nar̄ationem traverse que pmisse fuer parcel manerij de L. Rej. exitus sur traverse Keb. 465 467. In Repl Copyhold in Reversion ꝑ 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