Statute by Equity work to make it an Estate Tayl also of this nature of the Land Popham's Rep. 33. Gravenor and Brooks so Bullen and Grant's Case A Copy-holder Surrendred to the Use of J. for Life the Remainder to H. and the Heirs of his Body it was a Question if this Estate limitted to H. was an Estate Tayl or a Fee-simple conditional for if it were a Fee-simple conditional then there cannot be an other Estate over but yet in Case of a Devise an Estate may depend upon a Fee-simple precedent but not as a Will but as an executory Devise Per Wray it is an Estate Tayl. Coke then said They who would prove the Custom to Entayl Copy-hold Lands within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies but they ought to shew that Surrenders made by such persons have been avoided by such matter But by Wray that is not so for customary Lands may be granted in Tayl and yet no Surrenders have been made within time of memory 1 Leon. p. 174. Bullen and Grant Cro. El. 148. mesme Case Heyden's Case in 3 Rep. 8. is clear That neither Statute without the Custom nor the Custom without the Statute but both co-operating may create Tayl. And as for Custom if the Custom be to grant Lands in Fee-simple this without question may be granted to one and the Heirs of his Body by Copy for omne majus includit minus My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case First says he a Copy-hold may be Entayled not Entayled as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold which is a kind of base Estate and which might be grantable to one and the Heirs of his Body according to the Custom and if he dyed without Issue it might be aliened again and that a Copy-holder could not bar his Issue unless by a Recovery such an Estate might be by Custom I hold saith he That the Evidence may fall out to be such that we may take it for granted that Lands granted by Copy to one and the Heirs of his Body the Remainder over may be a good Remainder and the Reversion may continue in the Copy-holder the Donor may have a good Reversion and all this without the help of W. 2. That which confirms me is the constant practice of most Copyholds to have Estates over As for the reason of it if we shall give in Evidence for the purpose a Surrender in H. 7ths time wherein Lands are limited to one and the Heirs of his Body the Remainder over this is an Evidence that it was so in H. 7ths time and we have reason to think so it was past time of memory of Man And as your Evidence is for Custom so may your Case be to make an immemorial Custom Then all the Question is whether it will bear it or not In this Case of a Copy-hold being an Estate at will you may have it at will according to the nature of the Custom it is not against the Analogy and Reason of the Law and it may bear it the Evidence may be such If in H. 7th or E. the 4ths time it appears so it is a good warrant for matter of Evidence for a Jury to find That there were such Copy-hold Estates with limitation over Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body the Remainder over or to grant the Land by the name of a Reversion for here is no alteration of Common Law Estates The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate Proofs of an Estate Tayl. neither a Remainder nor a Reversion but the Act prohibiting Alienations Quo minus ad exitum illorum quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad donatorem si exitus ejus deficiat revertatur by operation of Law it comes to a Remainder or Reversion if by Custom such Estates may remain or revert so may Copy-holds by Custom because they are Tenants at will Now as by that construction W. 2. did make a Remainder or a Reversion so the Custom of prohibiting Alienations by Copy may make Reversions or Remainders of Copy-hold Estates If the Reader hath a mind to see other Cases about the Entayling of Copy-holds though they are all reduced to what is before cited he may peruse 2 Brownl 42 76. Keymer and Poel 121. Hill and Upchurch 1 Rolls Rep. 48. Warn and Sawyer Cro. El. 717. Erish and Rives c. 2 Brownl 121. The Law about Entayling of Copy-holds is setled and agreed by the Judges B. R. 17 Car. 2. Newton and Shaftoe's Case That it is by Custom and not by the Statute so agreed M. 18. Car. Pilkington and Stanhop's Case queux vide apres Of docking or barring Copy-hold Estates being barred by Fine or Recovery or otherwise It is agreed by all the Judges 1 Rolls Rep. 48. Warn and Sawyer's Case That if an Estate Tayl may be of a Copy-hold by Custom that by Custom it may be dock'd and destroyed See More n. 877. A Copy-hold may be Entayled by Custom and barred by a Recovery by special Custom and it was agreed that a Surrender may bar the Issue by special Custom Chard and Wyat so Lee and Brown M. 15 Jac. B. R. And it was agreed to be a strong proof of the Custom that they to whose Use such Surrenders had been made had enjoyed the Land against the Issue in Tayl 1 Rolls Abr. 506. mesme Case The Custom of the Manor of Wakefield was That they may Entayl their Copy-hold Lands and the Custom of the Manor to bar the Entayls and the Remainders there is That the Tenant in Tayl shall commit a Forfeiture as by making a Lease without Licenc c. and then for the Lord to make three Proclamations and to seize the Copyhold and then to grant this to the Copy-holder and his Heirs allowed to be a good Custom Also this Custom there was good That if Tenant in Tayl make a Surrender to a Purchaser and his Heirs of his Copy-hold and such Purchasor intending to bar the Entayl and the Remainders commits a Forfeiture upon which there is a seizure by the Lord and three Proclamations c. and so for him to grant these were adjuged good Customs though the Tenant in Tayl nor his Issue are privy See as to this last Custom in a Tryal at Bar in Ejectment Siderfin p. 314. Lessee of Pilkington contra Stanhop So in Ejectment in Grantham and Coplies Case 2 Sanders 422. And it was faâ—ther adjudged If such Forfeiture be presented in the Copy-hold Court and the Land seized in Manus Domini the Lord may not
Rep. 25 26. Where by the Custom Plaints have been made in the Court of the Manor in the nature of real Actions if such a Recovery be against Tenant in Tayl Copy-holder this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for they are warranted by Custom and it is an incident that the Law amounteth to the said Custom that such Recovery shall make a Discontinuance 4 Rep. 23. Deal and Rigden Discontinuance If a man seized of Copy-hold Land in right of his Wife surrender it to the Use of another in Fee who is admitted and the Husband dyes this is not any Discontinuance to the Wife nor to her Heirs but that she may enter and shall not be put to a cui in vita nor her Heir to a sur cui in vita 4 Rep. 23. Bullock and Dibler Yet Walmsly in Collins and Cranks Case Cro. Jac. 105. held it was a Discontinuance Quaere his Reason Surrender by Tenant Copy-holder in Tayl If Surrender make a Discontinuance makes not any Discontinuance except a special Custom be and then its a bar Vide prius and Cro. El. p. 148. Bulle's Case But in Cro. El. 717. Erishes Case That such a Surrender is a Discontinuance to put the Issue to his Action this being as strong as a Livery by Tenant in Tayl and the Alienee is in by the Tenant in Tayl though he comes in by Grant of the Lord 1 Leon. p. 95. Case 124. Knight and Footman there holden That the surrender of Copy-holder in Tayl to the Use of another in Fee doth not make any Discontinuance but the Issue in Tayl may enter and the Serjeants Case there cited to be so One under age surrenders and dyes having Issue A. A. may enter and shall not be put to his dum fuit infra aetatem 1 Leon. 95. Knights Case But it is setled That a Surrender makes not a Discontinuance Vide infra pres a pres A farther Discourse of what shall amount to a Discontinuance or not Vide hic Cap. supra If a Copy-holder in Tayl admitting it be an Entayl surrender to the Lord to make his Will and he re-grants this to the Copy holder this is not any Discontinuance although a Surrender to the Use of an Estranger should be admitted to be a Discontinuance for a surrender to the Lord may not make any Discontinuance forasmuch as he had the Reversion agreed upon Evidence at the Bar in Lee and Brown's Case Mich. 14 Jac. B. R. So a Surrender of a Copy-hold Entailed to certain Uses c. is no Discontinuance though the Court there said it had been a great Question but by a special Custom such surrender may be a Discontinuance Discontinuance to the Wife If the Husband seized of Copy-hold in the right of his Wife surrender this to the Use of another in Fee who is admitted accordingly Husband dyes this is not any Discontinuance to the Wife 4 Rep. 23. Bullock and Dibler's Case nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to a sur cui in vita A Discontinuance may be of a Copy-hold Entayl admitting it to be a Tayl as by a Recovery in a real Action in the Lords Court 4 Rep. 23 Deal's Case Quaere if it be not more properly a Bar for the time than a Discontinuance 1 Rolls Abr. 634. Morris's Case 44 Eliz. B. R. In Chard and Wyat's Case More n. 877. The Court were divided in Opinion whether a Surrender was a Discontinuance The Case was this A Copy-holder in Fee surrendred to the Use of his Will and having a Daughter born and his Wife with Child he devised by Will part of his Land to his Son or Daughter with which his Wife went haeredibus suis legitime procreat and the residue he devised to his Daughter born to have to her and the Fruit of her Body and if she dye without Fruit of her Body the same shall remain to the Child in the Mothers Belly and if both dye without Fruit then J. S. should sell the Land and willed the one Sister to be Heir to the other The Wife of the Devisor entred and was admitted and had a Daughter which afterward dyed the Mother took Husband and they surrendred Resolved 1st That this was a Fee Tayl in the Daughter 2ly That one in ventre sa mere could not take an Estate in possession by Purchase but in this Case she may take in Remainder But whether it were a Discontinuance the Court was divided but they all agreed a Copyhold may be Entayled by Custom and barr'd by Recovery by special Custom and yet in Moor n. 1087. afterwards it was adjudged a Surrender by a Tenant in Tayl of a Copy-hold was not a Discontinuance but by what is said before the Law is setled as to this point But to cite no more in this point where by Custom of the Manor Pleints have been made in the nature of real Actions That if a Recovery be in a Pleint in nature of a real Action against a Tenant Copy-holder in Tayl it s adjudged that this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for these Pleints are warranted by the Custom this is an incident which the Law annexeth to the said Custom 4 Rep. 23. Deal and Rigden CAP. XX. Of Leases of Copy-hold Estates Leases by the Lord and Rent reserved and his Remedy by Avowry And of Leases made by Copy-holders What is a Forfeiture or not When a Licence to make a Lease shall be said to be persued or not Commencement of a Lease Leases by whom made Bishop Tenant in Tayl. Infant Of Rents reserved What things are demisable by Copy Of Leases of Copy-hold Land Vide Title Customs as to Leases and Limitations of Estates supra Of Leases of Copy-hold Land made by the Lord Tenants 1. By the Lord and his Avowries and remedy for the Rent Lease of the Freehold of a Copy-hold THE Lord leaseth the Freehold of a Copy-hold to J. S. this is good betwixt J. S. and the Lord But the Lord cannot reserve the Rent upon such a Lease 1 Keb. 15. Gerrard's Case Custom A Custom That on payment of ten years Rent the Lord should Licence to let for 99 Years and if he refused the Tenant might do it without Licence was adjudged good and reasonable Grow and Bridges cited in 2 Keb. 344. Porphyry and Legingham If a man be seized of a Manor wherein are divers Copy-holders admittable for Life or for years Lord lets for Life he may Lease by Copy in Reversion to commence after the death of the first Copy-holder and he leaseth the Manor to another for term of Life the Lessor may make a Demise by Copy in Reversion to commence after the death of the first Copy-holder and that is good enough but the Custom of some Manors is to the contrary and that is
Lords may keep Courts and grant Copies and such customary Manor may pass by Surrender and Admittance 11 Rep. 17. Sir H. Nevil's Case And so it is resolved in More and Goodgame's Case Croke Jac. 327. That within one Manor there may be another Manor demisable by Copy and within that Manor there may be customary Tenants for as well as there may be a Tenant at will of a Manor at the Common Law so there may be a Tenant at will according to the Custom of the Manor Vide infra sub titulo Courts Pleading But the way of pleading it must be thus That such a Manor hath been used time out of mind to be granted by Copy and also that time out of mind such Grantees had used to hold Court Barons and to grant Copies of Court Rolls to others and so to prescribe in this time out of mind 1 Bulstr 57. The King and Stafferton Yelv. p. 190. mesme Case The Manor of Haylsham in the County of Norfolk is held by Copy and such a Manor by Escheat ceaseth to be a Manor For by the Escheat the Services be extinct and one Court Baron only shall be held after the Escheat But though one Manor may be held of another Manor One Manor cannot be parcel of another yet one Manor may not be parcel of another Manor and both be in esse at the same time for being Liberties and Franchises of the same nature non possunt stare insimul More 's Case The Lord may create a customary Manor Though the Lord by his own act may not make out of one Manor at Common Law divers several Manors consisting of Demesns and Freeholds yet he may well by his own act make a customary Manor consisting of Copy-holds and they shall hold Court. As if he grant the Inheritance or makes a Lease of all his Copy-hold Lands for two thousand years the Grantee or Lessee may hold Court for the Copy-holders 4 Rep. 26 27. Melwyche's Case and Neal and Jackson's Case Vide infra sub titulo Courts For they have a kind of Seigniory in gross and may keep a customary Court where the Steward shall be Judge and shall take Surrenders and make Admittances Of Grants and Leases of a Manor and how Services shall pass and what and when shall be said to continue as parcel of the Manor after a Grant or Lease and what shall be a severance A man seized of a Manor leaseth part of the Demesns for Years or Life Reversion the Reversion remains parcel of the Manor A man seized of a Manor in the right of his Wife Leased part of it for Years without his Wife the Reversion thereof is not parcel of the Manor Contrary if the Lease had been made by the Husband and Wife By Feoffment of the Manor the Services do not pass without Attornment Lit. 127. Attornment 6 Rep. Bracebridge's Case If a man make a Feoffment of a Manor in which are Tenants at will according to the Custom there Services shall pass by the Feoffment without their Attornment Rolls Abridgment 293. By a Grant of all the Demesns the Waste passeth unless excepted 2 Keb. 558. North and Howland W. H. was seized of twelve Acres holden of the Manor of W. by Suit and Services and devised to the Defendant F. H. in Tayl the remainder in Fee After which F. H. purchased the Manor this being by purchase maketh not the Land parcel but by Escheat it doth 2 Keb. Holmes and Hanby But this Case is more clearly Reported by Mr. Siderfin as followeth If one who had Land held of a Manor be Tenant in Tayl of it and the Manor is given to him the Land in Tayl shall not pass by Grant of the Manor The Lord of a Manor deviseth to J. S. the Manor in Tayl the remainder over J. S. had twenty Acres in Fee which were held of the Manor by Suit of Court and he being so seized of all conveys the Manor to A. in Fee Per Cur. these twenty Acres shall not pass as Demesn of the Manor for if it pass as part of the Demesns this ought to have been so time out of memory and there is a diversity between Land Escheated which comes in lieu of other Land and Land purchased as this was Siderfin 284. Holmes and Hanby Lands holden in Fee of a Manor are not parcel of a Manor but the Rents and Services issuing out of it are parcel of the Manor Brook Manor 2.22 H. 6.53 Reversion If a man let all the Demesns of a Manor for Life rendring Rent yet the Reversion is parcel of the Manor and it shall pass by the grant of the Manor Dyer 6. 7 El. 10. Attornment If a man let ten Acres of the Demesns of a Manor for ten years rendring Rent and afterwards demiseth the entire Manor by the name of a Manor c. for twenty years to commence at a day to come An Interest in the ten Acres shall pass to the Lessee of the Manor after the expiration of the first ten years although no attornment be by the first Termor for this shall pass as parcel of the Manor and not as a Reversion for the ten Acres were never severed from the Manor but the Free-hold and Fee of it remains parcel and member of the gross and body name of the Manor Dyer 18 El. 350.18 Pl. Com. Bracebridge's Case 423. Without express Grant the Copy-hold cannot be severed by any distinct reservation or service yet the entire Manor may be held by different Services as to the Demesns How Copy-hold may be severed from the Manor and how not altho' not the Services as well by the Grant of the King as of a common person without disjoyning any part of the Manor as reservation of one Service on the Grant of the Manor another on the Advowson 1 Keb. 720. Lee and Boothby After partition of a Manor by Coparceners Coparceners one party cannot Lease her part by the name of the moity of the Manor 1 Anders 222. It was cited by Richardson and Hutton Note to be one Hurston's Case Ejectment That an Ejectment cannot be of a Mannor because there cannot be an Ejectment of the Services but if they express farther a certain quantity of Acres it is sufficient Hetly p. 80. Norris and Isham Neither is it safe to bring Ejectment of a Manor unless the attornment of Tenants be proved Hetly 146. Warden's Case Pleadings Unum Maner parcel alterius Ra. Entr. 25.271.357 Terre pleded esse parcel del Mannor usque concession ' tali die 1 Rep. 431. CAP. II. The Notion and Nature of a Copy-hold as to its Basis and Foundation How a Copy-holder and Tenant at Will differ The general Maxims of Copy-hold Estates Explicated and thereby the ensuing Cases in this Book rendred more easy and intelligible THE Stile of a Copy-holder imports three things according to my Lord Coke Lit. 1. Nomen his Name and that is Tenant
groweth to perfection in this manner When a reasonable Act once done is found to be good and beneficial to the People and agreeable to their nature and disposition then do they use it and practise it again and again and so by often iteration and multiplication of the Act it becomes a Custom and being continued without interruption time out of mind it obtaineth the force of a Law So that Custom in the intendment of Law is such an Usage which hath obtained vim Legis and is revera a binding Law to such a particular place persons and things wherein it is concerned Davis's Preface to his Reports Custom then may be defined a reasonable Act iterated multiplied and continued by the People time out of mind Custom in some Cases alters the nature of Free-hold 5 Rep. 84. Pennyman's Case A fortiori of a Copy-hold Hetly p. 126 127. Turner and Hodges Consuetudo privat communem Legem Custom is a ground and need not be proved for the reason of every Custom cannot be shewed as it was said in Knightly and Spencer's Case But though Custom takes away Common Law yet Common Law corrects allows and disallows both Statute Law and Custom for if there be repugnancy in Statute or unreasonableness in Custom the Common Law disallows and rejects it as appears in Dr. Bonham's Case 8 Coke 27. Now Custom being the life and soul of Copy-hold Estates I shall in the next Chapter largely treat thereof in the full extent of it Maxims of Customs 1. A Custom shall in construction be taken strictly and shall not be extended beyond the words of it One intituled himself to a Copy-hold in this manner That within the Manor there is such a Custom that if one taketh to Wife any customary Tenant of the Manor in Fee and hath Issue by her if he over-live the said Wife he shall be Tenant by the Curtesie The Case was he married a Wife who at the time of the marriage had no Copy-hold but afterwards during the Coverture a Copy-hold descended to her It was held in Sir John Savages Case cited in Beal and Langly's Case 2 Leon p. 208. That no Tenancy by the Curtesie did accrew by the Custom which did not extend but where the Wife was a Copy-holder at the Marriage So a Custom was If a Copy-holder in Fee dyes having Issue Three Daughters the eldest shall have all The Case was A Purchaser of a Copy-hold dyes without Issue having many Sisters they shall be Câ—parceners for the Custom extends only to Daughters So Burrough English The middle Brother Purchaseth Lands and dyes sans Issue the eldest shall have it and not the youngest 2 Rolls Rep. 368. So a Custom which goes in bar or deprivation of an Estate shall be taken strictly Carter's Rep. 87 88. Yelv. p. 1. Baspool's Case Forfeiture of a Copy-hold for Life shall not forfeit the Remainder Custom was If any Copy-holder in Fee Surrender out of Court and the Cesty que use doth not come into Court to take his Copy-hold after three Proclamations then the Lord shall seize it as forfeited And if a Copy-holder in Fee surrender to the use of one for Life remainder over in Fee and Tenant for Life comes not in Court upon the Proclamations this shall not forfeit the remainder The Custom shall be taken strictly being in destruction of an Estate and it shall be intended only of a Tenant in Fee in possession and not in remainder 1 Rolls Abr. 568. Baspool and Long. And yet it shall not be taken literally always as in the common Case Custom to grant Lands in Fee-simple yet they may grant in Tayl for Life or Years but that stands upon this Rule Omne majus includit in se minus 2. Customs are to construed according to vulgar apprehension because Customs grow generally and are bred and brought up amongst the Lay-gents therefore they are called Vulgares Consuetudines and they shall be interpreted according to the most effectual operation of the Law Stiles 146. 3. Custom does not trench to things collateral to the Estate such as Entries for Conditions Copy-holder by Licence lets the Land for 60 years rendring Rent upon condition of re-entry Copy-holder surrenders to J. S. in Fee who demands the Rent which not being paid Enters His entry per Cur. is not good for Copy-hold Land is not within the Statute of Conditions nor the Surrender of such a Copy-hold such an Assignee as the Statute intends he being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but may plead his Estate immediately under the Lord Yelv. p. 222. Brasier and Beal 4. When a Custom warrants a greater Estate it warrants a less The Custom was That Copy-hold Lands may be granted to any person in Fee-simple A Grant to one and the Heirs of his Body is within this Custom So a Grant for Life or Years And a Fee-simple includes all 4 Rep. 23. The Custom is to grant for one two or three Lives A Grant to one durante viduitate is good 4 Rep. 29. Down and Hopkins Cro. El. p. 323. mesme Case 5. Custom of a Manor cannot extend out of a Manor therefore it ought to appear in Pleading That the Locus in quo c. est infra Manerium Hobart p. 286. Roberts and Young 6. Custom may enlarge a Grant farther than Common Law as Sibi suis So to one and his Heirs by Custom may be restrained to particular Heirs 2 Keb. 158.174 7. If a Custom hath a reasonable commencement it may be good And therefore a Custom for Copy-holders to have solam separalem pasturam may have a reasonable commencement by voluntary Agreement of the Lord with his Copy-holders to induce them to hold their customary Estates at Will and bestow their pains and labour in improvement Sanders 2. p. 326 327. Robins and Hoskins Vide Vaughan Rep. North and Coe good reasons for the contrary Opinion 8. What may be claimed by Prescription may be good by Custom and what may have commencement by Grant may be claimed by Prescription 2 Sanders 326. 9. A Custom never extendeth to a thing newly created If there be a Custom within a Manor That for every House or Cottage two shillings Fine shall be paid now if the Tenant make two Houses of one he shall pay no Fine for the new made House But alteration of Rooms alters not the case in Prescription 10. Custom is an entire thing and cannot be apportioned yet this Rule shall not bind-the King Vide supra 11. Consuetudo semel reprobata non potest amplius induci As Continuance makes the Custom so Discontinuance destroys it Custom What things are requisite to make a good Custom Four things are required to make a good Custom Antiquity Continuance Certainty Reason 1. Antiquity Every Custom had a beginning although the Memory of man doth not extend to it And this is one of the grand Pillars of Copy-hold Estates Therefore in
in curia manus Senel Ra. Ent. 645. Simil. per 1 vel 2 Tenentes ut Attornatus Co. Ent. 657. CAP. XIV What shall pass and by what words in a Surrender Of Attornment The Construction and Exposition of a Surrender Where no Vse or Estate is immediately limited in whole or in part And where an Vse is limited how far the Construction shall go according to the Rules of the Common Law or not Of Surrender to Vse upon Vse To the Vse of one's Wife Where a Surrender is void for the uncertainty Of a Surrender to the Vse of a person not in esse And of a Surrender to take effect in futuro What shall pass and by what words in a Surrender B. Covenants to assure all his Copy-hold Lands to A. after he Surrenders out of Court according to Custom diverse parcels by particular Names the Surrender is enrolled accordingly with this Conclusion By the name of all his Copy-hold Lands there yet no more shall pass than what was named in the Surrender Dyer 8 El 251. Harvy Justice said he knew it to be adjudged That a Surrender cum pertinentijs will pass Land Hetly p. 2. And that a Surrender of a Messuage and three Acres would pass more Acres if divers Copies successive have been so I suppose he means if the words cum pertinentijs be in What Ceremony c. is requisite or not to make good a Surrender Attornment A Copy-holder with Licence leased for Years rendring Rent and afterwards surrendred the Reversion with the Rent to the use of a Stranger who is admitted Here needs no Attornment either to settle the Reversion or create a privity for the Surrender and Admittance are in the nature of an Inrollment and amount to an Attornment or at least supply the want of it 1 Leon. 297. But there must be an Admittance by the Lord but in such case there shall be no Entry for Condition broken without Attornment Hobart 177. Swinnerton and Miller 1 Rolls Abr. 235. mesme Case Vide sparsim de Attornment The Construction and Operation of Surrenders Where no Use or Estate is immediately limited in whole or part Surrender to the Lord without expressing what use If a Surrender be made to the Lord in general without expressing to what use it shall be taken to the Lords use Kitch 81. And therefore in Bunting's Case cited in Brown and Foster's Case A Custom was That if any surrendred to the use of another without expressing any Estate that the Lord may grant it to him to whose use the Surrender was made It was adjudged a good Custom and the Lord shall ascertain the Estate A Copy-holder sold his Copy-hold Estate but shews not what Estate Or what Estate but surrendred it the use of the Bargainee and the Lord granted it in Fee to the Bargainee and it was adjudged good Cro. El. 392. Copy-holder in Fee surrendred his Lands into the hands of the Lord without saying to whose use the Surrender should be and at the next Court the said Copy-holder was admitted Habend to him and his Wife in Tayl And then admittance is to uses this subsequent act explains a Surrender remainder to his right Heirs Per Cur. The subsequent Act shall explain the Surrender and when the Copy-holder accepted a new Admittance the Law intends the Surrender was made to such an use as is specified in the Admittance Quando ab est provisio partis adest provisio Legis Popham p. 125 126. Brook's Case Cro. Jac. 434. mesme Case Copy-holder Surrenders to the use of M. and R. without limitation of any Estate they shall only have it for their Lives and in such case A Surrender to one for Life without limiting the Fee the Fee is in the Surrenderor if the Lord make Admittance and deliver Seisin to M. and R. and the Heirs of R. this was only an Admittance to them for term of their Lives the Reversion over to R. who made the Surrender for the Lord is but an Instrument and when he hath made Admittance according to the effect of the Surrender nothing remains in him but the Reversion is in the Surrenderer 4 Rep. 29. Bunting and Lepingwel But it is otherwise in the case of a Copy-holder for Life as if a Copy-holder for Life Surrender to the use of J. S. for Life and J. S. dyes this shall not revert to the first Copy-holder for Life Mich. 7. Car. 1. Diversity King and Loder's Case And therefore in Dyer 9 Eliz. f. 264. The Husband seized in the right of his Wife Reversion to B. Reversion to C. for their Lives the Husband surrrenders to the use of B. for his Life to whom the Lord grants it for his Life and is admitted and after dyes the Husband shall not have it again during his Wives Life for he had dismist himself of it Lord as Occupant and C. shall not have it during the Wives Life but the Lord as Occupant Where an Use is limited how far the Construction shall be according to the Rules of Common Law or not Some lay it down for a Rule That the same Construction which the Law makes upon words in a Deed it will make upon a Copy is not always true though regularly it is so As if Copy-hold be granted to a Corporation where no Estate is named it s a Fee-simple So if Surrender to one and his Heirs and he reciting this Surrender doth Surrender it to my use in the same manner as I surrendred it to him this is a Fee-simple So if I Surrender to J. S. as large an Estate as he hath in the Manor of Dale he hath a Fee-simple in that Manor Co. Cop. 132. The Wife shall take by the Admittance tho not named in the Premisses in the Surrender But a person may take by the Hab. in the Admittance who was not named in the Premisses as to Copy-hold therefore in Brook's Case above cited Copy-holder Surrenders his Lands without saying to whose use and at the next Court the said Copy-holder was Admitted Habend to him and to his Wife in Tayl the Remainder over Per Cur. the Wife shall take by this Admittance though she was not named in the Premisses But this Case of a Copy-hold is like to the Case of a Will or to the Case of a Frank-Marriage in which it is sufficient to pass an Estate albeit the Parties be only named in the Habendum aliter where the Surrender is to Uses and she is not named in the Premisses And the like Rule is laid down in Bunting and Lepingwel's Case 4 Rep. 29. As well Estates as Descents to be directed by the Rules of Law That as well Estates as Descents shall be directed by the Rules of Law as necessary consequents upon the Custom unless there be a special Custom to the contrary as a Surrender sibi suis by the Custom may make an Estate of Inheritance but a Surrender to one
of one for Life who is admitted and dyeth He in Reversion he in the Reversion may enter without a new Admittance and therefore H. B. being seized of Copy-hold Land in Fee and having Issue three Sons G. H. and J. he surrenders it to the Use of his last Will and thereby devised it to his Wife for Life the Remainder to H. and the Heirs of his Body the Wife dyed after Admittance Henry dyes without Issue G. may enter and Admittance for him is not necessary 1 Leon. p. 174. Bullen and Grant If customary Lands do descend to the youngest Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected He shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves Feme to her Free-Bench the Freehold of the Copy-hold being granted over The Custom of Free Bench was durante viduitate si tam diu casta vixerit the Wife after the death of her Husband comes into Court and challenged her Right of Free Bench and prayed to be admitted and the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring an Action by reason the Woman was not admitted was the Question for it was agreed no Fine was due to the Lord. Per Cur. If the Freehold of the Copy-hold be granted over and the Husband dyes Admittance in Law there cannot be Admittance in that Case and yet she may enter And in this case she hath done all she could for Admittance and it is an Admittance in Law to an Estate created by Custom and by act of God and Law Continual Claim amounts to an Entry Hutton p. 18. Jordan and Stone In this Case after the death of the Husband the Law casts the Estate upon the Wife before Admittance and she may make a Lease for years as any other Copy-Holder may mesme Case 1 Rolls Abr. 592. Steward will not admit Cesty que use He enters and takes the Profits Lord brings Ejectment the Defendant shall plead not Guilty If a Copy-holder Surrender to a Stranger and the Steward will not admit him and the Stranger enters and occupies the Land if the Lord Lease to a Stranger to try the Title he to whom the Surrender was made although he be not admitted may well plead not Guilty and it shall be found for him against the Lord. In the Case of Arnold and George Yelv. p. 16. agreed by the four Judges Yet Quaere for how can the Stranger make a Title to the Profits without Admittance But perhaps the reason was That the Lord seemed to be particeps criminis for it may be intended he would not suffer the Steward to admit the Defendant She who hath a Widows Estate shall make a Lease before Admittance for the Law vested the Estate in her and there is no Fine due to the Lord Noy p. _____ Remington and Cole Husband enters into the Lands in right of the Wife before Admittance Entry of the Husband in Right of the Wife and Lease by him before Admittance and the Wife dyes before Admittance yet his Lease shall be good 1 Anderson 192. Ewer and Astwick in More n. 425. mesme Case If by the Entry of the Husband without Admittance of the Wife he should be Tenant by the Curtesie and resolved he shall In what Cases the Lord shall be compelled to make Admittances and how and in what not If the Lord of the Manor for the time being be Lessee for Life or Years Guardian or any that hath any particular Interest or Tenant at Will of a Manor all which are accounted in Law Domini pro tempore do take a Surrender into his hands and before Admittance the Lessee for Life dieth or the Years Interest or Custody do end or determine or the Will is determined though the Lord cometh in above the Lease for Life or years or other the particular Tenancies yet shall he be compelled to make Admittances according to the Surrender Co. Lit. 59. b. Earl of Arundel's Case Action on Case by the Surrenderor but not by Cesty que use It was resolved in Gallaway's Case 26 El. The Party that made the Surrender may have Action on the Case against the Lord for not holding his Court and admitting him to whose Use the Surrender was made but Cesty que use cannot Chancery Chancery will compel the Lord to admit a Tenant Tothil p. 65. Custom was That a Copy-holder for Life should name his Successor for Life and to compound with the Lord if he cannot compound then the Homage to assess the Fine he tenders it the Lord refuseth to admit Action on the Case lies not against the Lord and he that is nominated hath not any Interest therein but he may compel him in Chancery Cro. Jac. 368. He that hath no Interest as a Nominee shall have no Action sur Case Ford and Hoskins 1 Rolls Rep. 125 195. ibid. 2 Bulstr 236. mesme Case The Nominee hath neither jus in re nor jus ad rem he hath a nomination only which is matter meerly in Equity he hath neither damnum nor injuriam here because he hath no Interest Littera Attornatu ad sursum reddend tenmenta Custumaria sursum redditio admissio Co. Ent. 576. CAP. XVIII Of Fines Fines certain Vncertain Vpon Descent and Purchase Of Fine Excessive What Customs are good as to payment of Fines Of Fines as to Admittances to Reversions or Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine Fines FInes due to the Lord upon Admittance are not to be paid till Admittance either upon a Surrender or Descent for Admittance is the cause of the Fine and the Parties being Admitted intitles the Lord to the Fine 4 Rep. 28. Sand's Case and Bacon's Case Though sometimes they are certain and by some Customs uncertain yet they ought to be reasonable Of Fines certain It was the Opinion of Richardson Chief Justice There is scarce a Copy-holder in England but the Fines are uncertain for saith he If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine this makes the Fine uncertain the ordinary course to search it is by Bill in Chancery Lit. Rep. 252. It was but his private Opinion for Fines are certain in great numbers of Manors And I suppose he means as to Evidence for in the Case of Allen and Abraham 2 Bulst 32. there is diversity between proof in case of Descents and Purchase The Case was this Upon not Guilty in Ejectment the matter upon the issue was about the Custom of a Copy-hold Manor whether the Copy-holders upon their Admittances have used to pay Fines uncertain at the will of the Lord or certain i. e. the value of two years Rent To prove the Fines uncertain Evidence to prove uncertainty
Lord recover his Fine Debt Debt lyes for a Fine against the Copy-holder by the Lord Siderfin p. 58. agreed in the Case of Wheeler and Honor. Copy-holder Heir waves the possession If Copy-holder in Fee dyes where the Fine is certain and the Heir waves the possession and refuseth to be admitted it seems the Lord shall not have an Action of Debt against him and yet some hold he may not wave the possession because being Inheritance Interest descends and for this reason praecipe quod reddat lyes against the Heir at Common Law before his Entry Siderfin p. 58. Wheeler and Honor. Pled Vide Presidents infra Custome quod Dominus habeat rationabilem finem pro admissione Co. Ent. 646. 13 Rep. 1. CAP. XIX Of the Entayling of Copy-hold Estates The different Opinion of the Judges with an Abstract of the Reasons and Arguments how Copy-holds are or may be Entayled and the Law setled as to that Point How such Copy-hold Entayls may be barred or dock'd And what acts of Tenant Copy-holder in Tayl c. shall amount to a Discontinuance or not Of Copy-hold Estates being Entayled AS to Copy-hold Lands being Entayled whether there be any such Estate Tayl by any particular Custom to be allowed and how such Entayls arose it hath been vexatio quaestio This Question hath been curiously debated in our Books and therefore I shall be the larger upon it It is clear That the Statute de donis per se doth not create an Estate Tayl in a Copy-hold 9 Rep. 105. the Case of Thornton and Lucas there cited for the Statute de donis doth not extend to such base Estates at will The Question is if the Statute may co-opperate with the Custom as to make an Estate Tayl. Coke in the Case of Warn and Sawyer 1 Rolls Rep. 48. cited one Haslerick and Grays Case to be so adjudged and in one Hills Case a Custom was pleaded that a Copy-hold might be granted to one and the Heirs of his Body with remainder over but saith he we of the other side durst not hazard the matter upon this but we devised a Plea That there was another Custom there that if a Tenant in Tayl alien this shall be a bar to the Remainder and upon issue that Custom was found for it was agreed Per totam Curiam That if an Estate Tayl may be of a Copy-hold by Custom that by a Custom it may be dock'd and destroyed It hath been often moved in our Books When a Copy-holder in Fee surrenders to the Use of one in Tayl there being no Custom to warrant such an Entayl whether it be an Estate Tayl by the Statute of De donis conditionalibus or a Fee-simple conditional at the Common Law This point is well argued and setled in Rowden and Malster's Case Cro. Car. p. 42. Copy-hold cannot be Entayled within the Statute de donis Yelverton held That it was an Estate Tayl by the Equity and intent of the Statute de donis but Hutton Harvy and Croke That it was not an Entayl but a Fee-simple conditional at Common Law 1. Because it would be prejudicial to Lords for by this means the tenure would be altered for the Donee in Tayl without a special reservation ought to hold of the Donor by the same Services that the Donor holdeth over and he who comes in by Surrender and the Admittance of the Lord to hold to him and the Heirs of his Body cannot hold of him who surrendred but shall hold of the Lord and is Tenant at will unto him and shall do the Services unto him as Lord. 2. In respect of the baseness of their Estate the Statute never intended to provide remedy for them nor their Alienations for the words of the Statute are Quod voluntas donatoris in Charta sua manifeste expressa de caetero observetur which proveth that the intent of the makers of the Statute was That no Hereditament should be intayled within this Statute but such as either was or might be given by Charter or Deed and other Reasons out of the words of the Statute Carters Rep. 8. But Copy-holds are no such Hereditaments and therefore not within the meaning of the Act. 3. If Copy-holds might be Entayled then the perpetuity of such Estates might be maintained for a Fine cannot be levied of Copy-hold Lands to bar the Entayl nor can a Recovery in value be intended of such an Estate where warranty cannot be annexed to it Ceo reason come jeo pense ne vault rien pas Car est agree per touts que poet estre dock't per recovery en curia del Baron Vide apres They held also That neither Estate Tayl nor Estate after possibility of issue extinct which had a necessary dependance upon an Estate Tayl can by any particular Custom be allowed Cave Lecteur for it s agreed by all That a Custom co-operating with the Statute may create an Estate Tayl. Observe Plowden in Manxel's Case is no Law 2 Rolls Rep. 383. mesme Case Co. Lit. 60. As there may be an Estate Tayl by Custom with the co-operation of the Statute of W. 2. Cap. 1. So may he have a Formedon in discender i. e. a Writing in the nature of a Formedon in Descender in the Lords Court But as the Statute without a Custom extendeth not to Copy-holds so a Custom without the Statute cannot create an Estate Tayl. Now it is not a sufficient proof that Lands have been granted in Tayl for albeit Lands have anciently and usually been granted by Copy to many men and to the Heirs of their Bodies that may be a Fee-simple conditional as it was at the Common Law but if a Remainder hath been limited over such Estates and enjoyed or if the Issues in Tayl have avoided the alienation of the Ancestor or if they have recovered the same in Writs of Formedon in the Discender these and such like are proofs of an Estate Tayl But if by Custom Copy-hold may be Entayled the same by like Custom may be cut off Plow Com. 240. This was the first Opinion and by Clench and Gaudy agreed to in Grovener's Case Popham 32. The other Opinion is That an Estate is wrought out by the Equity of the Statute de donis for otherwise it cannot be that there should be any Estate Tayl of Copy-hold Land for by Usage it cannot be maintained because that no Estate Tayl was known in Law before this Statute and after this Statute it cannot be by Usage because this is within the time of limitation aftet which an Usage cannot make a Prescription for a Custom cannot be made after the Statute de donis And it appeareth by Littleton and Brook That a Plaint lyes of Copy-hold Land in the nature of a Formedon in Discender at Common Law and therefore the Statue helps them for their remedy for Entayled Lands which is but customary by Equity and if the Action shall be given by Equity for this Land why shall not the
admit any other but him to whom it is limited and assigned by the Tenant who made such Forfeiture and the Lord cannot dispose of it otherwise And farther That if the Lord admit any other and after sells the Manor to a Stranger by whom Cesty que use is admitted Cesty que use hath a good Title and shall avoid all mean acts and dispositions made by the Lord as he should if a Surrender had been made to his Use ibid. Mr. Keble in the Reporting of this Case of Coply's 2.823 saith A Surrender is to the Lord to the intent quod inde faciat voluntatem yet by Custom the Surrenderer by Petition or Declaration may direct it to any person whatever and the Lord must pursue it and there is no Estate in the Lord but it remains in the Tenants hands till Admittance of such party and the Purchasor might come in at any time The Case of Taylor and Shaw in Carters Rep. 6 22. The like Custom is adjudged void but that was upon a fault in the special Verdict Tenant in Tayl of Copy-hold Lands the Jury find a Custom That this is to be barred by seizure of the Lord as a Forfeiture non alio modo and not otherwise as the Lord Chief Justice Bridgman well observed and that being naught the whole Custom is in vain As for his first Reason of such a Custom being void that its a precarious Custom you must have the concurrence of the Lord or you cannot do it and Custom implies Right though this is of weight yet it might have been objected in Pilkinton's Case and Grantham's Case yet in these Cases such Custom is adjudged good But his second Reason is cogent by this negative Custom you destroy that which is essential to the Estate If you will allow a customary Tayl you must allow a customary Recovery and so this Case differs from those others Now these ways of barring Entayled Copy-holds are in nature of a Recovery to dock the Entayl But Rolls Opinin in Stiles 450. Pilkington and Bagshaws Case is not Law he conceived there could be no such Custom to cut off Entayled Lands of Copy-hold by the Forfeiture and seizure of the Lord for his seizure upon the forfeiture destroys the Copy-hold Estate at Common Law Modus Conventio vincunt Legem And therefore It was made a Question in Dell and Heydon's Case If Tenant in Tayl of a Copy-hold Remainder in Fee is impleaded by plaint in a Court Baron in nature of a Writ of Entry in the Post The manner how and the reason why a Recovery shall bar a Copy-hold Estate and suffers a Common Recovery with Voucher whether if Tenant in Tayl dye sans issue this shall bind the Remainder Cro El. p. 372. But Rolls in 1 Abr. 506. in the same Case saith this may be barred by a Common Recovery for a warranty may be annexed upon this by a Surrender to an Use or by a confirmation or by Release with Warranty and it may be intended he shall have other Copy-hold in value And Sir Francis More in the Report of this Case saith if Tenenant in Tayl come in as Vouchee this is a bar to the Issues and Remainder Surrender with warranty to an Use and grant accordingly makes the party in the per by the Surrenderor and upon this Warranty the Surrenderor may be vouched and Recovery in value shall be only of other Copy-hold Lands in the Manor No. 488. and in 4 Rep. mesme Case it s adjudged that such Recovery shall make a Discontinuance and shall take away the Entry of the Heir in Tayl. If a Copy-holder surrenders in Tayl and the Heir of the Donee is to bring a Formedon he ought to count of a Gift made by the Copy-holder who surrendred and not by the Lord for he is but the Instrument to convey it and nothing passeth from him Cro. El. 361. Paulter and Cornhil And yet in the Case of Clun and Pease adjudged since Dell and Higden's Case Per totam Curiam A Recovery with common Voucher in a Plaint in nature of a Writ of Entry in Curia Manerij shall not bind the Issue in Tayl for it shall not bind but upon expectancy of a Recovery in value which is the reason it binds for Land at the Common Law and here he cannot have any Land in value neither at Common Law nor customary Land for if it should be so Conveyed the Lord should lose his Fine and one should hold his Land as a Copy-holder without Admittance or Grant from the Lord which is contrary to the nature of a Copy-hold but it s a Discontinuance clearly which cannot be defeated by Entry Cro. El. p. 391. Now as a Feoffment will not destroy a Copy-hold Estate Entayled so neither a Fine or Recovery at Common Law It doth not make any Discontinuance Copy-hold Estate how discontinued or not for these being Common Law Assurances they do not work upon the Assurance of the Copy-hold and that that doth not work upon the right of the Estate Tayl cannot make a Discontinuance And the same reason of a Fine which is but a Feoffment on Record and the same reason holds a Fine may work to the destruction of an Estate where it is not preserved by special Custom but this is preserved by special Custom so for a Recovery that that is in demand is the Free-hold True if the Recovery were in the Lords Court there the Estate may be turned to a Right and a Recovery at Common Law cannot bar a Copy-hold Estate because of the Recovery in value to which the Warranty is annexed doth not go according to the Copy-hold but according to the Freehold These being Common Law Assurances work only a Common Law Interest and cannot work upon a Copy-hold this is the Abstract of Glin's Argument in Taylor and Shaw's Case Carter's Rep. How Copy-hold barred by a Fine at Common Law But the Lord Chief Justice Bridgman in that Case put a nice difference as to the barring Entayled Copy by a Fine at Common Law if a Copy-hold be suspended while it is in suspence a Fine at Common Law bars it for one cannot be a Copy-holder in Tayl and have the Inheritance of Freehold in himself it must be suspended for a time as if he divide the Copy-hold from the Freehold for a time and he there gave a notable difference Difference as to what may pass by a Fine or be barred by a Fine where a man may pass a thing by a Fine and where he may bar by a Fine a right of Copy-hold cannot be passed by a Fine but may be barred by a Fine A man that hath a Rent-charge he levies a Fine of the Land the Rent-charge is gone by it yet the Fine is not levied of the Rent but of the Land as for his other Reason from the words of the Statute 32 H. 8 Of Lands any ways Entayled c. I conceive that cannot extend to Copy-hold Lands Carter's
Lease had been in possession and the Lessee had never entred he had been barred 1 Brownl 181. This Fine shall not be a bar to the Copy-hold Estate in Remainder for Life for it is not turned to a right the Estate is given by Custom and is to have his beginning after the death of the first Tenant and if the first Tenant commit Forfeiture he in Remainder cannot enter and by Coke notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for Life remains in esse 2 Br. 153. mesme Case Custom that the Lord shall seize Copy-hold after three Proclamations and non-Claim by the Heir shall not bind the Heir that is beyond the Sea 8 Rep. Sir Richard Lechford's Case Statute 37 H. 8. Of Dissolutions 37 H. 8. Of Monasteries extends not to Copy-holds A Copy-holders Estate is not within the Statute of Monasteries and Chanteries to be avoided by any of the Statutes So by Statute 1 Ed. 6. Cap. 14. it is expresly provided That upon the dissolution of Abbies and Monasteries Copy-holds should continue as they did before the Statutes and should fall into the Kings Hands A Copy-holder dissolved by the Statute of Edw. 6. did between the Statute of 37 H. 8. and 1 Edw. 6. grant a Copy-hold Estate in Reversion but the Statute 37 H. 8. extends not to them 3 Bulstr p. 15. Long and Baker Vide 1 Leon. p. 4. mesme Case 31 H. 8. Eccles Leases Of making Leases of Copy-hold Lands belonging to Religious Houses for years after Leases for Lives or Years in being is within that Statute 8 Rep. 7. Heydon's Case 32 H. 8. Of Conditions Entries Assignee Copy-hold is not within the Statute of Entries for Conditions broken Surrendree of Reversion shall not enter for a Condition broken it s not within the Statute of Conditions Hob. p. 177 178. Swinnerton and Miller Copy-hold is not within the Statute of 32 H 8. Entries for Conditions Copy-holder by Licence makes a Lease for 60 Acres rendring Rent and condition of Re-entry Copy-holder Surrenders to J. S. and he demands Rent and enters for Non-payment J. S. is not such an Assignee as the Statute intends and Custom doth not trench to such collateral things such Assignee being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but he may plead his Estate immediately under the Lord Yel 222. Brasier's Case But Assignee of a Copy-hold is within the Statute to have Action of Covenant 1 Keb. 356. Arrears of Rent Baker's Case Quaere if of Debt Cro. Car. 21. Platt and Plummer Executors brought Action for Arrears of Rent of Copy-hold of which Manor the Testator died seized Per Cur. Action doth not lye for Arrears of Copy-hold Rents but only of Rents of Free Land and Statute 32 H. 8. extends not to them Yelv. 135. Appleton and Doiley 1 Brownl 102. Tenant in Tayl of a Manor wherein Copy-holds are demisable for Life c. for a certain Rent Copy-holder for Life dyes and the Lord demiseth it for 21 years 38 H. 8. Rents of Leases in Tayl. rendring the ancient Rent c. it s good within the Statute 38 H. 8. for its not any prejudice to the Issue as to the Rent Noy p. 106. The Lord Norris's Case Vide infra hoc capite If the Lord of a Copy-holder for Life demisable by 10 s. Rent leaseth it by Indenture to the Copy-holder and two others for their Lives rendring 10 s. Rent by which it is within the Statute of 32 H. 8. and is not material though the Harriot be lost because it is meerly casual Noy p. 110. Banks and Brown Vide Montjoy's Case 5 Rep. Et supra Copy-hold is within the Statute 32 H. 8. 9. 32 H. 8. Cap. 9. Of maintenance Of Maintenance for the Word is Any Right or Title 4 Rep. 26. a. Vide infra hoc capite Copy-hold is grantable for three Lives 13 El. Cap. 10. Dean and Chapter of London grant this to H. G. for the Lives of J. R. and M. reserving the ancient Rent but no Harriot the Rent was payable at four Quarters and by this Lease its payable half yearly yet this is not void by the Statute 13 El. Cap. 10. For the Occupant shall be punish'd for Waste and the Harriot is not annual nor depends on the Rent and as to the Rent it s the accustomed yearly Rent but in Mountjoy's 5 Rep. yearly was wanting 6 Rep. 37 Dean and Chapter of Worcesters Case Copy-holds are within all the Statutes of Bankrupts by express words vide supra Statutes of Bankrupts 1 El. and Jac. A Copy-hold is not within the Statute of Limitations Debt for the Fine of a Copy-holder is not within the Statute of Limitations 2 Keb. 536. Statute of Limitations Hodsden and Harris Vide. It is laid down for a Rule in Rowden and Malster's Case Cro. Car. 44. When an Act of Parliament altereth the Service Custom Tenure and Interest of the Land Rules when Acts of Parliament extend to Copy-holds or not or other thing in prejudice of the Lord or Tenant there the general words of such an Act shall not extend to Copy-holds Therefore W. 2. Cap. 20. Elegit Statute W. 2. Cap. 20. which gives Elegit extends not to Copy-hold Lands because it would be prejudicial to the Lord and a breach of the Custom that any stranger should have Interest there without admittance and allowance of the Lord. 27 H. 8.10 Stat. of Uses Statute 27 H. 8.10 of Uses toucheth not Copy-holds because the transmutation of Possession by the sole Operation of the Statute without allowance of the Lord would be to the Lords prejudice 31 H. 8. and 32 H. 8. Of Partition The Statute 31 H. 8. Cap. 1. and 32 H. 8. Cap. 2. whereby Joynt-tenants and Tenants in common are compellable to make Prohibition extend not to Copy-holds And the 32 H. 8. Cap. 28. Leases by Tenant in Tayl or by Husband of the Wives Land Statute 32 H. 8. Cap. 28. Which confirms Leases for 21 years made by Tenants in Tayl or by the Husband and Wife of the Wives Land touch not Copy-holds for that Statute warrants only such Leases of Lands which are grantable by Deed such are not Copy-hold Lands though by the Lords Licence they may be granted by Indenture yet in their own nature they are only demisable by Copy So Statute 32 H. 8. Cap. 34. And for the same reason which gives an Entry to the Grantee of a Reversion upon the breach of a condition by the particular Tenant toucheth not Copy-hold In all Statutes made for the good of the Common-wealth and wherein no prejudice accrues to the Lord or Tenants by reason of the alteration of any Interest Service Tenure or Custom of the Manor there the general words of such acts of Parliament do extend to Copy-hold Lands as Statute of Merton Cap. 1.
alledge this as a Grant How a Copy-holder shall plead in making Title to a Copy-hold and this the Law allows for avoiding an inconvenience which will otherwise happen for if the Copy-holder in Pleading shall be put to shew the full Grant either it was before the time of memory and then it is not pleadable or within time of memory and then the Custom fails Admittance pleaded as a Grant and for this cause the Law hath allowed the Copy-holder in Pleading to alledge any Admittance upon a Descent or upon a Surrender as a Grant and yet he may if he will alledge the Admittance of his Ancestor as a Grant and shew the Descent to himself and that he entred and good without any Admittance of him but the Heir cannot plead That his Father was seized in Fee at the Will of the Lord by Copy of Court Roll of such a Manor according to the Custom of the Manor and that he died seized and that it descended to him for in truth such an Interest is but a particular Interest at Will in judgment of Law although it is descendible by the Custom for he is Tenant at Will of the Lord according to the Custom of the Manor 4 Rep. 22. Brown's Case If one Surrender to the intent that the Lord shall grant it to another and he admitts him it was adjuded good yet he ought to plead it as a Grant Lit. Rep. 175. Tenant in Dower may Grant a Copy-hold in Reversion which shall be good Grant of Copy-hold Land in Reversion must be pleaded as a Grant in Reversion and not as a Grant in possession nor by a per nomen though not executed in the Life of Tenant in Dower But then it must be pleaded as a Grant in Reversion and not as a Grant in Possession therefore in Gray's Case Cro. El. p. 661 662. It was there pleaded That he granted Tenementa praedicta per nomen of a Messuage which A. P. held for Life and Per Cur. it s an uncurable Fault for it is not alledged that he granted the Tenement in Reversion and the per nomen will not help Averment del ' vâ—e Tenant by curtesie of Copy-hold brings Ejectment or Action it must appear that he is in Life or else he cannot have Judgment 1 Anderson p. 292. Ewer and Astwick Where in Pleading the Commencement of the. Estate must be shewn or by whom granted or not In matter of Conveyance to a Title need not shew the Conveyance Replevin the Plaintiff in bar to the Avowry shews that the Land was Copy-hold Land grantable in possession or reversion for Life or in Fee and that the Lord granted the Reversion to him after the death of W. who was Tenant pur vie and shews the death of W. whereby he entred And demurred because he did not shew the beginning of W. his Estate nor by whom W. had the Estate granted him Per. Cur. this is no cause of Demurrer because it is not the Plaintiffs Title but matter of Conveyance thereunto Cro. Jac. 52. Lodge and Fry Admittance of the last Heir to be shewed instead of an ancient Grant If one pleads Seisin of a Copy-holder in Fee and claims under him he ought to shew of whose Grant as he ought to shew of any other particular Estate but perhaps that is so ancient that it cannot be shewn who was the first Grantee yet it was held sufficient to shew the Admittance of the last Heir which is in nature of a Grant and may be pleaded by way of Grant Cro. Jac. 103. Pyster and Hembling In Trespass the Defendant justifies he confesseth the Close to be Copy-hold Land but pleads That long time before it was parcel of the Manor of c. and that long before the supposed Trespass one Pole and M. his Wife was Lord of the Manor in right of his Wife for Life remainder to Stephen in Tayl and he made a Lease of this Land to the Defendant it s an ill Plea because the Defendant hath not shewed as he ought how Pole and his Wife came to this Estate for Life the remainder over they ought to shew how this particular Estate hath its commencement they claiming a derivative Estate from Pole and his Wife for years 3 Bulstr 281. Sandford and Stephens None may entitle himself to any Copy-hold but he ought to shew a Grant thereof In Trespass the Plaintiff in his Rejoynder intitles himself because the place where is customary Land parcel of such a Manor whereof J. S. is seized in Fee and demisable by Copy at Will in Fee and that J. N. was seized in Fee by Copy c. and dyed seized so as it descended to two Daughters as Heirs of J. N. and that at such a Court Dominus concessit eis extra manus suas c. Habend tenend Tenementa praedicta to the said Daughters and their Heirs whereby they were seized in Fee and afterwards demised to the Plaintiff for years The Plaintiff hath not made a good Title and he shewing such an one was seized in Fee without shewing the Grant thereof Per Cur. it s not good Cro. Car. 190. Shepherd's Case yet it was but default of form and Issue for the Plaintiff being found it is a Jeofail Pleading Custom or Prescription A Copy-holder in Pleading need not alledge a Custom to make a Surrender for that is the Custom of all England A Copy-holder need not alledge a Custom to make a Lease for a year It must be pleaded that he used to do it It is not sufficient to alledge a Custom that one might do such an Act but that he used to do it as to alledge dimissibile and dimissum therefore in Brown and Foster's Case the Defendant avows in Replevin for Damage feasant the Plaintiff makes Title as Copy-holder and shews that within the Manor of A. time whereof c. Talis habebatur habetur consuetudo c. That any Copy-holder may surrender into the Hands of two Customary Tenants c. this is not well pleaded for it is pleaded by Usage and Custom but he doth not plead that ever it was put in ure in that manner which ought to be alledged as in Sir William Hatton's Case where it was pleaded Quod Talis habebatur consuetudo within a Manor Quod licebit Seneschallâ— to impose a Fine c. But in the principal Case the not naming the Steward made the Avowry ill and then Per Cur. the Avowry being ill although the bar to the Avowry were ill Not naming the Steward in the Avowry ill yet he cannot have return Cro. p. 37. El. 392. Brown and Foster Copy-holder pleads Quod infra Manerium praed talis habetur nec non a toto tempore cujus contrarij memoria hominum non existit habebatur consuetudo videl quod quilibet tenens custumar ' praedict tenementa c. hath used to have Common in such a place parcel of the Manor Question was if the
and Judgment pro Quer for that the Replication doth not confess or avoid nor deny the bar to the Avowry Winch Entur p 997 998 999. Foster and Woodcock Eject Bar que W. seisitus de Manor grants custumar terÌ„es in Reversion al Def. auters pur vies Repl que W. demised ceo Manor al C. R. determinable pur vie del M. ilsÌ„ assigne al M. qui grant Reversion de terÌ„es al H. pur vie Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise c. Surrej ê‘ maintenance de Replic Traverse le disseisin Demur inde Co. Ent. 184. Replev Quod Reg. Eliz. seisita de manerio unde c. concessit terÌ„as custumar R. M. Vxori ejus hered Vxoris qui sursum reddider ad usum Def. Bar quod W. prius seisitus de maner concessit terras al J. de quo descend al P. qut sursum reddidit al A. qui sursum reddidit al M. pur vie qui dimisit quer Repl quod W. ante concession al J. concessit terÌ„as al B. de quo discend al M. qui sursum reddidit Def. travers grant al J. issue inde Co. Ent. 575. Quod J. seisitus de maner unde c. concessit Def. pro vita in Reversion terÌ„as custumar dimissibil pro 2 vitis tam in Possessione quam in Reversione Hern 724. TrnsÌ„ quod C. seisitus de manerio concessit terÌ„as customar in feod al B. de quo descend Def. Repl C. fuit sisitus de manerio unde c. quod discend quer traverse quod terÌ„e sunt custum U. B. 153. TrnsÌ„ Def. justif sub tenentur custum monstroit le Estate de Copyhold durante viduitate Tomps 395. TrnÌ„s novel assignmtur Def. dicit quod pmissa tempore c. parcel custmaria dimissibilia ê‘ cop cuicunque ê‘sone ill capere volent in Talliatur seu pro vita Et quod F. G. pd fuit seisitus ad cur tentur 26 Martij dimisit cuidam W. in feodo qui dimisit Def. pro Anno virtute cujus c. done Colour Repl quod pmissa sunt liberum tenementum quer sic manutenet narÌ„ationem traverse que pmisse fuer parcel manerij de L. Rej. exitus sur traverse Keb. 465 467. In Repl Copyhold in Reversion ê‘ copiam tenentur in possessione advocat captionem pur Damage fesant custom del Manor granter Estates en possession ou reversion Hern 777. CAP. XXXIII Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not Presumptive Evidence Where Copy of a Lease is good Evidence What shall be tryed by the Jury and what by the Court-Rolls Substance found in special Verdict Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be Tryed Venue What shall be a good Evidence to prove the Custom or not THE Custom of a Manor was laid to be That if a Copy-holder hath two Sons and a Wife and dyes and the eldest Son hath Issue and dies in the Life of the Wife that the younger Son shall have the Land the Issue being upon the Custom the Jury found the Custom to be That the younger Son shall have the Land unless the eldest was admitted in his Life and paid the Lords Fine Per Curiam the Verdict is not sufficient to prove the Issue Moor n. 566. In Replevin If the Defendant justifies the taking as Damage fesant The Plaintiff in bar pleads by reason of a Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties were at Issue and it is found that part of the Beasts were Levant and Couchant Part found for the whole and part not this is found for the Defendant for the Issue is upon the whole and the contrary to it is found Trin. 17 Jac. B. Sloper and Allen. The Issue was in Kemp and Carters Case 1 Leon Case 70. p. 55. If the Lord of the Manor granted the Lands in question Per copiam rotulorum curiae Manerij praed secundum consuetud Manerij praed It was given in Evidence That within the said Manor were divers custumary Lands and that the Lord now of late at the Court of the said Manor granted the Land per Copiam Rotulorum curiae where it was never granted by Copy before Per Cur. the Jury are bound to find Dominus non concessit for notwithstanding de facto Dominus concessit per Copiam Rotulorum curiae Non concessit yet non concessit secundum consuetudinem manerij predict for the said Land was not custumary nor had the Custom taken hold of it Several Customs within several limits ought to be specially shewed It was shewed then That within the said Manor some customary Lands are demisable for Life only and some in Fee By Anderson Chief Justice He who will give in Evidence these several Customs ought to shew the several Limits wherein the several Customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for Lives only and the Lands in the other in Fee and he ought not to shew the several Customs promiscue valere through the whole Manor In an Action brought The Defendant alledgeth a Custom of a Copy-hold to be demised in Fee Tayl or for Life and made Title by a demise in Fee to himself The Plaintiff traversed the Custom and the Custom was found to be Substance found to demise in Fee or for Life but not in Tayl Per Cur. the Issue was found for the Defendant because the substance was found for him and the Tayl was but inducement Moor n. 490. Dorley and Wood. Wadsworth's Case before Judge Crawley at York Assises was upon an Intail of a Copy-hold within the Manor of W. and several antient Intails shewed in Evidence in Edward III. time and remainders limited over upon such Intails and Plaints in nature of Formedons brought there for such Remainders and Recoveries thereupon and several Issues after had taken their Admittances as of Fee simple Land as Heirs in Fee and for this cause Purchasers look at the Copies Presumptive Evidence and seeing Fee-simple in Admittances are secure the Estate is so and apply their Assurances accordingly the Jury found for the Plaintiff against this Intail and it shall be presumed the Intail hath been cut off some way when many Admittances have been in Fee simple The Custom of a Manor is Less Estate than the Custom That the Wife shall have it during her Life and on Evidence it appears that she shall have it durante viduitate this Evidence doth not maintain the Custom 4 Rep. 30. If the Parties be at Issue upon the time of the Surrender made or the Court holden The time of the Surrender or of the
corpore ejusdem K. Legitime procreatur pro defectu talis exitus remanere inde prefatur H. J. heredibus de corpore suo Legitime procreatur pro defectu talis exitus remanere inde prefatur A. Vxori pdictur H. J. heredibus de corpore ejusdem A. Legitime procreatur pro defectu talis exitus remanere inde pfatur V. S. heredibus suis imperpetuum ad voluntatem Domini secundum consuetudinem Manerii pdictur ê‘ redditur servitia inde prius debitur de jure consuetur Et pdictur D. K. Vx. ejus dant Domino de fine pro tali statu suo inde habend centum solid admissi sunt inde tenentes modo forma predictur c predictur Dominus concessit se satisfactur de predicto fine inde habend ê“ Messuagio Cottagiis ceteris premissis predictur cum pertin de predictur D. K. Vxore ejus cum predictur Messuagiu Cottagia cetera premissa pdictur cum pertin post mortem predictur A. Vxoris predictur J. H. ad manus sua devenerint Et postea ad hanc curiam venit predictur F. J. in propria ê‘sona sua hic in plena curia sursum reddidit in manus Domini tota jus titulu clameu interesse sua in omnibus predic Messuagio Cottagiis ceteris premissis cum pertin ad usus predictur ulteris remisit relaxavit omnino ê“ se heredibus suis quietur clamavit prefatur H. J. A. Vxori ejus totum jus titulum clameum interesse demaund sua que ipse Tâ—â— unquam habuit in predictur Messuagio Cottagiis ceteris premissis predictur cum ê‘tin habend tenend omnia singula pdictur Messuagium Cottagia cetera premissa pdictur cum ê‘tin pfatur H. J. Vxori ejus ê“ termino vite pdictur A. post decessum ejusdem A. remanere omniu pdictur terraru tenementor cum ê‘tin pfatur D. T. K. Vxori ejus heredibus de corpore pdictur D. Legitime procreatur ê“ defectu talis exitus remanere inde pfatur K. Vxori pdictur D. heredebus de corpore ejusdem K. Legitime procreatur ê“ defectu talis exitus remanere inde pfatur H. J. heredibus de corpore pdictur H. J. Legitime procreatur pro defectu talis exitus remanere inde pfatur A. Vxor ê‘dictur H. J. heredibus de corpore ejusdem A. Legitime procreatur ê“ defectu talis exitus remanere inde pdfatur V. S. heredibus suis imperpetuu ad voluntatem Domini secundu consuetud manerii pdictur c. After abatement and intrusion the Lord seizeth the Lands and grants them to the Abator for term of Life Remainder to the next Heir of the Disseisee and in Tayl Remainder in Fee Compertu est ê‘ homagiu ibid quod quidam O. B. Miles defunctur tenuit de Domino hujus Manerii die quo obiit sibi heredibus suis ad voluntatem Domini secundum consuetudinem Manerii pdictur unum MessuagÌ„ c. cum ê‘tin in A. pdictur infra Maner pdictur quod pdictur O. obiit de tali statu suo inde seisitur ê‘ sex annos â—am ultimo elapsos amplius quod quida H. R. in jure Vxoris sue quonda uxoris L. B. Arm filii pdictur O. B. immediate post decessu pdictur O. B. in pdictur MessuagÌ„ c. cetera premissa pdicta cum ê‘tin abatavit intravit intrusit super possession DnÌ„i Manerii pdictur in exheredetation dicti Dom Manerii pdictur successor suor contra consuetud Manerii sui pdictur a tempore cujus contrarii meomria hominu non existit in eod Manerio usitatur approbatur exitus ê“ficua inde a tempore mortis pdictur O. B. ad suu propriu usu hucusque habuit percepit nor capiend pdictur MessuagÌ„ c. cetera pmissa pdictur cum ê‘tin extra manus Dom Manerii predictur nec fecit inde DnÌ„o fine ê“ eisdem secundum consuetud Manerii sui pdictur sic pdictur H. R. tenuit occupavit pdictur MessuagÌ„ per pdictur sex annos ultur elapsos amplius contra consuetud Manerii pdictur Ideo pceptu est ballivo Manerii pdictur seisire in manus Domini pdictur MessuagÌ„ c. cetera premissa pdictur cum ê‘tin quousque c. Et Dominus modo habens inde seisinam ad humilem petitionem pdictur H. R. ex gratia sua speciali ad hanc curiam concessit extra manus suas pdictur MessuagÌ„ c. pfatur R. H. A. Vxori ejus ad terminum vite ipsius A. liberata est eis seisina ê‘ virgam Habend tenend pdictur MessuagÌ„ c. pfatur R. A. ad terminum vite ipsius A. ad voluntatem Domini secundum consuetud Manerii pdictur post decessum ipsius A. remanere inde quibusdam D. T. K. Vxori ejus consanguin proxime heredibus pdictur O. B. videlicet filie pdictur L. B. filij O. B. heredibus de corpore pdictur D. T. Legitime pdictur procreatur pro defectu talis exitus remanere inde pfatur K. c. with Remainder over in Fee to V. S. tenend de Domino per virgam ad voluntatem Domini secundum consuetudinem Manerii pdictur per redditur servitia inde prius debitur de jure consuetur Et tam pdictur H. R. A. Vxor ejus quam pdictur D. T. K. Vxor ejus dant Domino de fine ê“ tali ingressu suo inde habend de in premissis 5 libras fecer Dom fidelitatem admissi sunt inde tenentes modo forma pdictis c. Surrender out of Court to several Uses upon a Marriage Settlement Compertum est per Homagium ibid quod A. B. qui tenuit ut supra unu MessuagÌ„ sive Tenementum vocatur c. in A. infra Manerium pdictur citra ultur Curia extra Curia sursu reddidit in manus DnÌ„i per manus H. K. J. W. duor custum tenen Manerii pdictur secund consuetud Manerij illius pdictur Messuagiu seu Tenementu cetera premissa pdictur cum ê‘tin ad opus usu pdictur A. B. Hered Assign suor usque ad solempnization cujusda intensi marritagÌ„ permissione Divina cito habitur solempnizatur inter quenda C. D. filium heredem apparen pdictur A. B. ex una parte quandam A. D. de A. pdictur Spinster ex altera parte ab immediate post solempnization ejusd MaritagÌ„ tunc ad opus usu pdictur A. B. pro durante termino vite sue naturalis ab immediate post ejus decessum tunc ad opus usum S. Vxoris ejus pro durante termino vite sue naturalis ab immediate post decessus Anglice deceases ipsorum A. B. S. Vxoris ejus decessum eor superviventis tunc
The nature and effect of a Presentment 139 Two Surrender and the second Surrender is first presented 140 What will make a possessio fratris so as to inherit a Copy-hold Priviledges of Copy-hold 18 19 20 R. Popish Recusant shall forfeit all his Copy-hold Land within 25 El. c. 10. 253 Copy-hold Rents apportioned 188 Action of Debt lyes not for Arrears of Rent within the Statute 32 H. 8. 250 One Lease of Freehold and Copy-hold the Rent issues out of both 187 Avowry for Rent by Lessee of a Copy-holder 262 S. Steward 75 Deputy acts done by him or his Servant shall be good so by a reputed Steward 76 77 Infant cannot be a Steward 77 Surrender 95 The nature of a Surrender ib. Where and in what respects Estates may pass otherwise than by Surrender 99 The Lord not compellable to make a Surrender 49 Where Surrender is sufficient without Admittance 102 Where Admittance is sufficient without Surrender 102 103 Of Surrenderss out of Court who may take them and what are good or not 105 In whom the Reversion after a particular Estate remains 104 Surrender by Attorny and form of the Entry 107 108 What shall pass and by what words in a Surrender 109 Construction of a Surrender where no use is limitted 110 Surrender passeth no Estate by Implicacition Where an Use is limitted in a Surrender how far the construction shall be according to the Rule of the Common Law 113 Surrender to an Use upon an Use ibid. Surrender to the Use of ones Wife 13 125 Where a Surrender is void for uncertainty 113 Surrender to the Use of a person not in esse 115 to the Use of one in ventre sa mere 116 Of a Surrender to take effect in futuro ibid. Construction of Surrenders and limitations in Remainder or Reversion 118 119 If a Surrender makes a discontinuance 217 Surrender to the Use of a Mans last Will and how to be construed 124 Surrenders upon condition or contingency 120 221 122 129 Where a Surrender before Admittance shall be good and where not 130 Surrender by Husband of the Wifes Land Surrender by Joynt-Tenants 127 131 Surrender by a Feme Covert 133 Surrender of the Wives Land 134 Surrender to the Steward to the Use of the Steward is good ibid. Countermand of a Surrender 135 What remedy to force a Trustee to surrender 135 Surrender not good till presented 136 Heir decreed to Surrender on Contract with the Ancestor 327 Relief in equity as to Surrender 323 Defendant decreed to Surrender according to Agreement ibid. hold shall not be extended 237 If the Copy-holder bind himself in a Statute the Copy Within what Statutes of Parliament Copy-hold Lands are contained and within what not 247 c. Services not to be performed by Attorny T. How Copy-holds are Entayl'd and how dockt and barred 165 166 c. How the Statute VV. 2. creates an Estate Tayl 166 167 In what cases Trespass may be brought by the Copy-holder against his Lord 257 Trespass by a Copy-holder for Beasts depasturing on the Common 260 Tryal The time of the Surrender or of the Courts being held to be tryed by the Jury and not by the Court-Rolls 307 When Issue is taken upon a Surrender where to be tryed 310 Traversing the day of the Grant Traversing the dying seized of the Copy-hold 246 205 Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom 228 V. Copy-hold not determined or forfeited by Utlawry Special Verdict 311 Custom not well found 312 Failer of Prescription 313 Jury must find directly and not argumentatively ib. Custom must be found in the manner that he pleads it 314 Verdict aided 318 Statute 27 H. 8. of Uses extends not to Copy-hold 252 Venue 310 VV. Surrender to the Use ef a Man's last Will 115 Copy-hold devised without Surrender executed by decree in Chancery 326 Customs as to Woods Underwoods 58 What Copy-holders may cut Trees and in what cases and to what purposes Custom to sell Trees 58 Copy-hold Lands are not within the Words of the Statute 34 H. 8.5 of Wills Quaere If within the Equity 253 A TABLE OF THE Precedents A Settlement before Marriage of a Copy-hold Estate where according to the Custom of the Manor there is a dead Year after the death of every Tenant grantable by the Tenant in his Life-time and his Widow enjoys the Estate durante castitate if he surrender or alien it not in his Life-time with permission That the Goods of the Wife shall remain at her disposal and that her Husbands name may be made use of to sue for her Debts but the Monies to be secured by the Trustees to her use 329 Covenant to Surrender Copy-hold Land after bargain and sale of Free-hold 334 Covenant that he is rightfully seized of Copy-hold Land 335 A Covenant to surrender Copy-hold Lands ibid. A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time 337 A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts 339 A Surrender in Trust and the Trust declared Trustees covenant not to commit c. any thing that may amount to a Forfeiture 342 An Infranchisement of Copy-hold Lands made by a Lord of a Manor to his Copy-holder 344 A Lease of Copy-hold Land with the Lords Licence 348 A Release of Copy-hold Estate 350 Precedents of Copies of Court Rolls Presentments Surrenders Admittances Releases Proclamations for not coming in c. A Surrender 253 A Surrender of Copy-hold Lands for Life the Remainder in Fee taken by the Steward out of Court 355 A Surrender out of Court of a Reversion to the use of a Man and his Wife and the Heirs of the Body of the Husband the Remainder to the Heirs of the Body of the Wife the Remainder to the Husband of the present Tenant for Life in Tayl the Remainder to the present Tenant for Life in Tayl the Remainder to another in Fee with the Lords acknowledgment of satisfaction of a Fine The Surrendror surrenders all his Right c. to the Husband and Wife the present Tenant for Life to the Uses aforesaid 356 After abatement and intrusion the Lord seiseth the Lands and grants them to the Abator for term of Life the Remainder to the next Heir of the Disseisee in Tayl remainder in Fee 358 Surrender out of Court to several Uses upon a Marriage Settlement 360 Presentment of a Surrender made in Court with the Admittance of the Tenant next Heir 361 The finding the death of a Tenant and of the Lands and Heir with the Admission of the Tenant and a Presentment made in Court between the Heir and his Mother touching her Dower and the Mothers Release of her Dower 362 Presentment of the Copy-hold Customs of a Manor 376 367 Surrender by Baron and Feme 369 Surrender to the Use of ones last Will 370 Grant of the wardship of a Tenant ibid. Surrender of right Title and Interest
to two by Moieties 371 Admittance of a next Heir 372 A surrender by one in extremis by the Hands of two customary Tenants to the Use of his last Will which is recited to one for Life the Remainder over Tenant for Life surrenders to him in Remainder on condition in the Will 373 Licence to demise for Years not exceeding 31 375 Presentment that the customary Tenant died seised and that the Heir came not to take up the Land and Proclamation made ibid. Presentment that the mony mentioned in a Surrender was not paid at the time ideo proclamatio prima ibid. A Fine respiteed at last Court taxed at the next 376 Presentment That a Surrender precedent was chargable with the payment of 100 l. to M. when he should attain the Age of 21 years or day of Marriage which should first happen and with a like Sum to A. payable in the same manner M. upon receit of the 100 l. releaseth and the Surrendree secures the payment of the other 100 l. to A. by Lease 376 Presentment That several Copy-hold Lands were infranchised by the Lord 377 Surrender on condition 378 Surrender to the use of a youngest Son conditional for payment of mony at several days 379 A Surrender and Release in consideration of 400 l. 380 Surrender to the Use of ones last Will to which a Codicil is annexed and which is presented by the Jury and admittance to Tenant for Life 381 Second Proclamation for not coming in and taking up the said Estate 382 Acknowledgment by the Lord that the Copy-hold is infranchised 383 Admittance by the Gardian ibid. 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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
in the possession in the right and Time Possession must be Longa continua pacifica Now observe a Title once gained by Custom or Prescription cannot be lost by interruption of the Possession for ten or twenty years but by interruption in the Right As if a man hath had a Rent or Common by Prescription unity of Possession of as high and perdurable Estate is an interruption in the Right Co. Lit. 114. b. And if a man hath Common by Prescription and takes a Lease of the Land for twenty years the Common is suspended for that time and after the years ended he may claim the Common again by Prescription 1. Personal Prescription and in that Inhabitants may Prescribe as for a Way or matter of Ease or Discharge Gateward's Case 2. Real Prescription and this is inherent to the Estate and this is where a man Prescribeth That he and all those whose Estate he hath c. Prescription as to the Estate of the Land and not to the Land it self 3. Local Prescription not as to Land but to the Estate and therefore the Custom was That the Copy-holder should have Common in the Waste of the Lord the Lord by Deed confirms to a Copy-holder to have to him and his Heirs with its Appurtenances The Question was whether his Copy-hold now being destroyed he shall have Common by the word Appurtenances Per Cur. the Common is extinct and not revived for this is a local Prescription not to the Land but only to the Estate and this proves well the words of the Prescription for the Copy-holder ought to Prescribe That every customary Tenant within the Manor c. So he hath his Common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land 2 Brownl 210. Marsham and Hunter Copy-holder for Life cannot Prescribe against his Lord but Copy-holder in Fee may Copy-holder for Life may not Prescribe against his Lord. Copy-holder in Fee may and how for he hath the Copy-hold in nature of Land of Inheritance Stiles 233. Cage and Dod. Per Cur. a Copy-holder may Prescribe by an usitatum est against his Lord but against a Stranger he must Prescibe in the name of the Lord More n. 647. 6. Rep. 60. Copy-holder of Inheritance may Prescribe in the name of the Lord to be discharged of Tythes Noy p. 132. Copy-holders may not Prescribe against their own Lord omnino nor against any other but only in the name of their Lord and the manner of laying it is by a Custom when they claim any thing or profit out of the Lords Soyl vide Sanders 324 5 6. Hoskin and Roberts What shall be said a pursuance of a Custom or not If the Custom be That the Lord may Demises Copy-hold in Fee he may Demise them for Life Years or in Tayl for these Estates are included in a Fee which is greater 1 Roll. Abr. Staunton and Barns Cok. Lit. 52. Vide supra Maxims and Customs 4 Rep. 23. The Case of the Manor of Allesly in Warwickshire Solummodo how expounded If the Custom be That the Lord may solummodo Demise his Copy-hold Land in Fee yet the Lord may Demise this for Life or Years or in Tayl though there was never any such Estate made before for the word solummodo is not to be taken so strictly to restrain the Lord of this liberty which the Law gives upon the general Custom but that he had used solummodo to grant in Fee which doth not take away the liberty which the Law gives 1 Rolls Abr. 511. mesme Case Custom is to Grant for one two or three Lives a Grant to one durante viduitate is within the Custom for the Estate granted was less than the Custom warranted The Custom was That the Wife shall have the Land for term of her Life The Evidence was That the Custom was that she shall have it durante viduitate Per Cur. This Evidence doth not maintain the Custom 4 Rep. 30. Downe and Hopkin's Case A Grant to three for the Lives of two is within the Custom of three Lives If the Custom be That Copyholds may be granted for three Lives a Copy may be granted to three for the Lives of two within this Custom For it is no inconvenience to the Lord although it be pur auter vie for there shall be no occupancy of it but the Lord shall have it if the Tenants pur auter vie dye living cesty que vies and this is not a greater Estate than three Lives but lesser Rolls Abr. 511. Ven and Howel But to one for Life Remainder to another for Life c. is not good A Copy-holder where the Custom was to Demise for three Lives demised to one for Life the remainder to such an one as he should marry and the first Son of his Body resolved that both the remainders were void but the Estate for his own Life is good More n. 922. Webster and Allen. Custom is when any Tenant sells his Tenement three Proclamations shall be made the next Court day and if any of the Blood of the Vendor will give as much mony as the Vendor will he shall have it A Tenant in consideration of one hundred pounds in Mony and that the Vendee being his Physician had cured him sold it to him and the next of Blood at next Court offers a hundred pound yet he shall not have it for it was given partly for the other consideration and the Custom shall be for mony only 1 Rolls Abr. 568. So if he had sold it in consideration of a Lease for years and 1 d. ibid. CAP. V. Of particular Customs either enabling or disabling in respect of the Lord of the Tenant and of the Estate Limited or Leased and in respect of Discents WHAT particular Customs have been adjudged good or what not either enabling or disabling Customs Vide supra of Customs ratione loci And they may be considered in three respects Of the Lord. Of the Tenant Of the Estate 1. In respect of the Lord and his Priviledge The Wife of the Lord shall not be endowed against a Copy-holder for the title of Dower is not consummate before the death of her Husband Dower so as the title of the Copy-holder is paramount and compleated before the title of Dower Leon. 152. Waste The succeeding Lord shall not take advantage of Waste done in the time of the preceeding Lord 2 Siderfin p. 9. Chamberlain and Drake Vide infra Common A Custom That none shall put his Cattel into the Common before the Lord puts in his is not good Vide supra the Rules of Customs 1 Bulstr Earl of Northumberland vers Wheeler 21 Ed. 4. 28 b. Fine A Custom that a Copy-holder shall upon the change of every Lord pay a Fine is void Vide the Rules of Customs For the Lord may change his Manor every day Had it been that
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
and so the Custom of Taunton-Dean That if a Copy-holder in Fee marries a Wife If the Wife survives she shall have the Fee if the Wife survives she shall have the Fee sic e converso agreed to be good Noy Rep. p. 2. There can be no Dower nor Tenancy by the Curtesie of the Copy-hold unless by special Custom 1 Anderson 292. Lease made before admittance A man may be Tenant by the Curtesie by Custom Though the Husband enter into the Land in the right of the Wife before admittance and the Wife dyes before admittance his Lease shall be good 1 Anderson 192. Ewer and Astwick It was admitted by the Court to be a good Custom That an Executor or Administrator shall have an year in the Land of the Copy-holder Custom that the Executor shall have an year in the Copy-hold against the Wife that claims her Free-Bench Noy p. 29. Remington and Cole If a Woman be Dowable of Copy-hold by Custom if the Husband after the marriage makes a Lease for years good by the Custom Tenant in Dower shall not avoid a Lease made by the Husband the Tenant in Dower shall not avoid it but it shall precede the Dower More n. 147. Holder and Fairly For he comes under the Custom as well as the Feme The Custom of a Manor was Quod quilibet tenens per Copiam poterit dimittere terras suas pur vie or in Fee or in Tayl Custom that the Wife Feme covert may Devise and that a Woman cooperta viro poterit devisare her Copy-hold Land to her Husband or to any other by the assent of her Husband Per Cur. The Custom is not unreasonable But because it was poterit devisare which is a word of justification and it should have been usi sunt devisare by way of excuse it was adjudged against the Plaintiff More n. 268. And so was one Welsh's Case in C. B. 41 El. 3 Leon. p. 81. Skipwith's Case The Custom was That Widows should enjoy during their Widow-hood Where the severance of the customary Tenants from the Manor shall not prejudice the Widow in her customary Estate The Lord Grants a customary Tenement of the Manor unto J. B. for Life by Copy and after conveys the whole Manor to W. who conveyed the Inheritance and Free-hold of B's Tenement for mony paid by B. to J. S. and others and their Heirs during the Life of J. B. the remainder to Ellen then Wife of J. B. the remainder to J. B. in Fee J. B. Grants his remainder in Fee to his Son and his Heirs The Son having Issue a Son dyed and then Ellen dyed J. B. marries Frances and dyes seized of his customary Estate Frances shall enter and enjoy her Widows Estate for it is clear That the customary Estate of J. B. remained as it was during his Life not extinct nor altered by the purchase of the Fee-simple which during his Life was in others not in him and then it follows by consequence That all customary Incidents to such a customary Estate remain whereof this is one which by Custom and Law grows of it self out of that Estate as a Descent should have done if J. B. had been a Copy-holder in Fee and the Freehold had been granted to another in Fee Hobart p. 181. Howard and Bartlet It is not in the power of the Lord to destroy Widows Estates By the severance Incidents to the Tenancy are not destroyed but Incidents to the Seigniory are The Law vests the Estate in a Woman that is to hold durante viduitate before admittance The Custom is That a Woman shall hold durante viduitate she shall make a Lease before admittance for in that case there is no Fine due to the Lord and the Law vests the Estate in her Noy 29. Remington and Cole Hobart 181. Vide Admittance The Lord Enfeoffs the Copy-holder this destroys Free-Bench A Custom of a Manor was found to be That if a Copy-holder in Fee dyes seized his Wife should hold it during her Life as Free-Bench the Lord Enfeoffs the Copy-holder who dyed seized Per Cur. she shall not hold her Free-Bench aliter if the Lord had enfeoffed a Stranger of that Land yet the Land remained Copy-hold and the Custom is not taken away Crok Jac. 126. Lashmer and Avery Damages recovered in Dower A Woman recovered Dower in the Lords Court and 40 l. because her Husband dyed seized and she brought Debt for the Damages in the Kings-Bench Per Cur. The Action lyes not because the Court-Baron could not hold Plea nor award Execution of 40 l. Damages although the Damages were there well assessed More n. 559. If a Feme Copy-holder holds the Land durante viduitate and then takes Husband the Lord shall have the Corn Oland's Case Vide Emblements The Widows customary Estate is due to her Divorce though there was a Divorce a mensa thoro Hobart p. 181. Howard and Bartlet Tenant of a Copy-hold for Life Whether the Widow attaint for Felony shall have her Estate of viduity in which the Custom was That the Wife should have her Widows Estate and the Husband was attaint of Felony and Executed The Question was whether she should have it Winch not without a special Custom Winch Rep. 27. Allen and Branch That the Wife shall not have her Dower The Wife to claim her Dower within a year and day except she claim it within a year and a day it s said to be a good Custom 3 Leon. p. 226. Pleadings Custom Quod Uxores habeant Tenementa custumaria durante viduitate sua Dyer 192. 3 Br. 403 476. Hern 73. Quod Uxores Tenen custumar in feodo habeant pro vita Tenementa unde viri obierunt seisita Et si viri dimiser tunc revers reddit Cok. Ent. 123. CAP. VII Custom as to Timber Woods and Vnder-Woods and what Prescription by a Copy-holder to cut Trees shall be good or not TEnant by Copy of Court Roll cannot by the Common Law take Trees for House-bote Hedge-bote and Cart-bote c. as Tenant for Life or Years may do who have an Estate certain but a Copy-holder by special Custom may do it Cro. El. p. 5. Lord Mountague against Sheppard Where a Custom was alledged to be That every Copy holder may cut down Trees at his pleasure this Custom is against Common Law Winch p. 1. If a Custom be That a Copy-holder may not cut down Trees it is good or not good with this difference If he be a Copy-holde of Inheritance such a Custom is good but if he be a Copy-holder for Life its noâ— good 1 Bulstr 150. Earl of Northumberlanâ— against Wheeler The Tenant prescribes to câ—â— and dispose all the Trees upon his Tenancy its an ill Prescription Aliter of a Copy-holde of Inheritance Noy p. 2. So it is adjudged it 1 Rolls Abr. 650. Glascock and Peche It s a good Custom Copy-holder in Fee
therefore where Surrenderer is Infant and dyes his Heir shall enter Cro. El. 90. Knights's Case It must be an actual Surrender in Court and not a Surrender in Law If a Copy-holder in Fee take the same Land of the Lord by other Copy for Life this is not any Surrender or Determination of his Copy-hold Inheritance for a Copy-hold may not be surrendred but by actual Surrender in Court sursum reddens this into the hands of the Lord and not by Surrender in Law 1 Rolls Abr. 501. Shepard and Adams In grant of a Reversion Attornment why not needful Attornment is not necessary for a Copy-holder because there is no time when the Termor should Attorn for before the Surrender he cannot Attorn and after the Surrender and Admittance it is too late The Copy-hold Estate is like an Estate raised by Uses or Devise in which an Attornment is not necessary 1 Brownl 179. Swinnerton and Miller The Surrender and Admittance are in the nature of an Inrolment and so amount to an Attornment or at least supply the want of it 1 Leon. 297. General Rules and Maxims 1. Implication is not good in a Surrender though it be in a Will A Surrender of Copy-hold Land was to the Use of the second Son for Life after the Death of the Tenant and his Heirs it was adjudged not good 1 Brownl Rep. 127. Allen and Nash Noy 152. 2. In Copy-hold Cases a Surrender to the Use c. This is no Use properly but an Explication shewing how the Land shall go 1 Brownl 127. 3. It is the general Custom of the Realm That every Copy-holder may Surrender in Court and need not to alledge any Custom therefore so if out of Court he Surrender to the Lord himself he need not in Pleading alledge any Custom but if he Surrender out of Court into the Hands of the Lord by the Hands of two or three Copy-holders or by the Hands of the Bayliff c. or by the Hands of any other these Customs are particular and therefore he must plead them Co. Lit. 59. a. The Estate of Cesty que use shall ensue the Limitation in the Surrender and not in the Admittance of the Lord Co. Lit. 659. b. If two Joynt-Tenants be of Copy-hold Lands in Fee and the one out of Court according to the Custom surrender his part to the Lords Hands to the use of his Will and by his Will deviseth his part to a Stranger in Fee and dyes and at next Court the Surrender is presented by the Surrender and Presentment the Joynture is severed and the Devisee ought to be admitted to the moiety of the Lands for now by relation the state of the Land was bound by the Surrender and the Lord cannot grant a larger Estate than is exprest by the limitation of the Use 1 Rolâ— Rep. 438. In Grant of a Reversion Attornment is not necessary for a Copy-holder Vide supra 5. Copy-hold may not be surrendred but by actual Surrender in Court and not by a Surrender in Law Vide infra 6. A Copy-holder cannot Surrender an Estate to another and leave a particular Estate in himself no more than a Freeholder Vide apres Before I come directly to treat of Surrenders one of the most useful pieces of Learning as to Copy-hold Estates I shall premise some general Considerations as to the Alienation of Copy-hold Estates or of a Transferring of Copy-hold Interest from one to another and more particularly of the Selling and Aliening of the Copy-hold Lands of a Bankrupt the knowledge whereof is very necessary and not very common The Assurance of Copy-hold Land from one man to another who is not Lord must be made by Copy of Court Roll according to the Custom and this must be by Surrender and for the perfecting thereof must be Presentment and Admittance generally For If I would have my Estate pass according to my Will I cannot devise this Copy-hold by Will but must surrender it to the use of my last Will and in my Will I must declare my intention But for the manner of doing it and the operation in Law Vide postea sub Titulo Surrender to the Use of a mans last Will. And If I would Exchange Copy-hold Land with another I cannot do it by Deed of Exchange but we may Surrender it each to other and the Lord shall admit us accordingly But Copy-hold Estates in some Cases may pass and be transferred from one to another without Surrender and that by Release Copy-hold in some Cases may pass otherwise than by Surrender But then we must observe this difference between a Release that enures by way of extinguishment or by way of an enlargement of an Estate By Release sometimes a Copy-hold may be transferred when it enures by way of extinguishment As by Release and so may serve to drown a Copy-hold Right As for the purpose A man is admitted upon a void Presentment and where the Presentment and Admittance is not according to the Surrender as where the Presentment is absolute and the Surrender conditional and so void It was resolved that the Admmittee had a customary Estate by Possession and is in by Title and is capable of a Release from him who had the right and here is a customary Estate upon which the Release may well be grounded besides the Lord is not prejudiced he being satisfied his Fine upon the Admittance So if I am ousted of a Copy-hold and the Lord admit the Disseisor according to the Custom a Release made by me will extinguish my right But if one be disseised of a Copy-hold Estate a Release by the Disseisee to the Disseisor is void for this is a prejudice to the Lord in losing his Admittance Fine if it should be good and there is no customary Right upon which a Release should enure there never having been Admittance as was in the other Case So is Mortimer's Case Hetly p. 150. But a man cannot pass a Copy-hold Estate by way of Lease and Release because this Release enures by way of enlargement of Estate and to transfer an Interest but this must be by a Lease for a Year which is warranted c. and by Surrender of the Reversion into the hands of the Lord and he to grant it over to the Lessee One Joynt-Tenant releaseth to his Companion One Joynt-Copy holder released to his Companion and it was resolved in the Case of Wase and Pretty Winch Rep. p. 3. That the Release was good without Surrender or Admittance for the first Admittance is of them and every of them and the ability to Release was from the first Conveyance and Admittance In some Cases Copy-holds cannot pass by Surrender Release Admittance or otherwise As for the purpose The Lord grants an ancient Copy-hold to S. in Fee and after he grants the Inheritance of that Copy-hold to a Stranger in Fee S. makes his Will and demiseth it to M. which was surrendred at next Court now by the
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
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
Therefore T. H. was Copy-holder in Fee and surrendred out of Court into the Hands of H. B. and W. J. two Copy-holders of the Manor to the Use of R. W. in Fee R. W. entred and paid the Rent to the Lord. T. H. who surrendred dyed H. B. and W. J. who took the Surrender are dead The Heir of T. H. entred R. W. re-enters Per Cur. By the Surrender into the Hands of two Tenants nothing passed until it was presented in Court and in the interim the Interest remains in him who made the Surrender which Interest descended to the Heir and the acceptance of the Rent by the hands of Cesty que use gives not any Interest unto him and there is no Estate in Cesty que use but an Inception until this Surrender be presented in Court But they held also That it was not of necessity that the Parties who took the Surrender should present it and although they are dead and the Party who made it is dead yet as the Custom is found if it be presented by any other Copy-holder when the Court is held it s well enough and he may be thereupon admitted Cro. Jac. 403. Froswel and Welch and so is Buntings's Case 4 Rep. so resolved And Cesty que use shall procure a Court to be held for his own advantage 1 Bulst 215. mesme Case Two Joynt-Tenants in Fee of a Copyhold Cesty que use to procure a Court to be held for his own advantage and one surrenders his part into the Hands of the Lord to the Use of his last Will and after deviseth this to another in Fee and dyes and after at the next Court this is presented the Devisee shall have it for now by relation the Joynture was severed and the Estate of the Land bound by the Surrender Constable's Case Rolls 1 Abr. 501. So Cro. 30 Jac. Mich. Porter's Case Custom for a Copy-holder to Devise and if the Will be not presented within a year and a day next after the Devise to be void they were several Customs and so differ from Peyrrman's Case Now suppose no Court be holden in that time Carter's Rep. 71 72 88. Smith and Painton It shall be presented at a Court within the year or at next Court after the year ended else it shall be void 5 Rep. 84. 2 Anderson 125. In Perryman's Case 5 Rep. 84. It is a Question what remedy if the Copy-holder will not present the Surrender made out of Court the Answer is Caveat emptor but certainly there is good remedy in Equity as in all Cases of Trustees or Instruments of Conveyance The Custom is That it should be presented at next Court otherwise it was void One surrenders his Copy-hold into the Hands of two Tenants out of Court upon condition of payment of Mony 25 July after to be void After he surrenders out of Court to the Use of J. S. the Mony was paid before the 25 of July Then he surrenders to the Use of a third person before the payment At the next Court the surrenders were presented Two Surrenders and the second Surrender presented first but not the first and the Lord grants Admittances severally to these two Persons Per Cur. The second Surrender was good for nothing by the Surrender out of Court was divested out of him that surrendred until the Surrender was presented but he was absolute Owner to bring Trespass or any other Action and then that not being presented and the second was presented the first Surrender was void and the second was good Jones 306. 1 Rol. Abr. 500 Burgis and Spurlin's Case Cro. Car. 273 283. mesme Case CAP. XVII Of Admittances upon Voluntary Grants Surrenders Descents By whom Admittances upon Surrender made shall bind In what Cases the Admittance of the one shall be the Admittance of another Of Admittance by Attorny Admittance where to be made Of Admittance upon Descent The time of Admittance What things the Heir may do or not do before Admittance In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant and to what purposes not And what Leases c. made by them shall be good and in what Cases the Lord shall be compellable to make Admittances and where not Of Admittances on voluntary Grants NOTE a diversity between the Heir who comes in course by Descent and another Stranger who comes in by Surrender and hath these words Dominus concessit admissus est but when the Heir of a Copy-holder is to be Admitted he hath only these words Et admissus est Admittances are of three sorts upon a Voluntary Grant Surrender Descent As to voluntary Grants made by the Lord in some sense he may be said to be the absolute Owner of the Land and may dispose of it at his pleasure yet he is bound to observe the Custom of the Manor in his Grants neither can he alter the Estate or Tenure If the Custom doth warrant an Estate to a Woman durante viduitate only and the Lord admits for Life this shall not bind his Heir The Custom must be pursued So in Reservations according to the accustomable Rent the Lord must strictly pursue it as where he reserves 10 s. where the usual Rent was 20 s. So where the Rent has been accustomably paid at four Feasts and the Lord reserves it at two Feasts these are void So if two Copy-holds Escheat to the Lord the one of which hath been usually demised for 20 s. rent and the other for 10 s. and he granteth them both by Copy for 30 s. it s not good But in this kind of Surrender the Lord is not considered barely as an Instrument because he is not bound to dispose the Land but to whom he pleaseth yet he is an Instrument in respect he is tyed unto Custom but in the other sort of Surrender he is barely an Instrument Where to be made The Lord himself may grant or make Admittances out of the Manor at what place he pleaseth but so cannot the Steward 4. Rep. 26 and 27. Several Tenures and several Fines The Lord admits Tenenda per antiqua servitia inde prius debita de jure consueta And if the Tenures are several the Fines must be several In Westwick's Case 4 Rep. The Entry of the Roll was Ad hanc curiam venerunt Willielmus Westwick Johanna Uxor ejus ceperunt de Domino Tenementa praed cum pertin in quibus c. prefat Willielmo Westwick Johannae Uxori ejus Tenend eisdem Willielmo Johannae haeredibus suis c. When the Surrender was to the Use of William Westwick in Fee yet the Admittance shall enure only to the Husband The Admittance must be pursuant to the Surrender for the Lord can but make Admittance secundum formam offectum sursum redditionis de quo vide in Cap. Surrenders Cesty que use cannot surrender before Admittance and the Entry of the Surrenderer doth not make an
enter upon the Land before Admittance he may take the Profits punish any Trespass done upon the Land 4 Rep. 21. Brown's Case and 23 Fitch and Huckly He may before Admittance surrender to whose Use he pleaseth paying the Lord his Fine The Lord may avow upon him before Admittance for arrears of Rents or other Services If Baron and Feme Copy-holders to them and to the Heirs of the Husband are and the Husband dyes the Heir of the Husband may surrender his Reversion into the hands of two Tenants of the Manor out of Court before any Admittance during the Life of the Wife and this is a good Surrender for the Reversion was cast upon him before any Admittance Calchin's Case 1 Rolls Abr. 499. Possessio Fratris before Admittance There shall be a possessio fratris before Admittance for if a Copy-holder in Fee have Issue a Son and a Daughter by one Venter and a Son by another Venter What makes a Possession or not for that purpose and his Son by the first Venter enter into the Land and dyeth before Admittance the Daughter shall Inherit as Heir to her Brother and not the Son by the second Venter as Heir to his Father And sometimes the Possession of a Termor without any actual Entry or Claim made by the Heir will make a possessio fratris as if the Copy-holder by Licence of the Lord maketh a Lease for years and dyeth and the Son of the first Venter dyeth before the expiration of the Term being neither admitted nor having made any actual Entry or Claim yet this Possession of the Lessee is sufficient and the Reversion shall descend to the Daughter of the first Venter and not to the Son of the second Venter but if the Lease had determined the Son living by the first Venter and afterwards he had dyed before any actual Entry made the Law would have fallen out otherwise because there was a time when he might have lawfully entred The same Law was as to the possession of a Guardian Heir before Admittance is not a compleat Tenant to all purposes But yet the Heir before Admittance is not a compleat Tenant to all intents and purposes for before that he cannot be sworn of the Homage and he cannot maintain a Pleint in the nature of an Assise in the Lords Court till he is admitted Co. Cop. As there may be possessio fratris c. before the Heirs Admittance so there may be a Tenant by the Curtesie Dyer f. 292. before Admittance of the Feme More n. 425. By Hales in the Case of Blackburn and Greaves Modern Rep. 120. If a Surrender be to the Use of A. for Life the Remainder to his eldest Son c. or to the Use of A. and his Heirs and then A. dyes the Estate is in the Son without Admittance whether he takes by Purchase or Descent One seized of a Copy-hold Tenement in right of his Wife in his Demesn as of Fee surrenders this Copy-hold Tenement without his Wife to the Use of a Stranger in Fee who was admitted by the Lord accordingly Husband dyes and Wife dyes the Heir of the Wife without Admittance enters on the Stranger and made a Lease and good Popham 39. Bullock and Dibler This is no such discontinuance against the Heir as to put the Heir to a Plaint in the nature of a cui in vita it s no more than a Grant which passeth no more than his own Estate and the Heir may intermeddle with the Possession before Admittance Upon a Custom to surrender to two Copy-holders out of Court Surrender to the Heir as a Copy-hold Tenant is good before Admittance Heir may enter and have Trespass before Admittance a Surrender to the Heir of a Copy-holder before Admittance is good 1 Keb. 25. Munifas and Baker Copy-holder dyes the Lord admits a Stranger the Heir may enter and upon re-entry maintain a Trespass without Admittance Noy p. 172. Simpson and Gillion He shall have Trespass and this before his Admittance upon Descent 2 H. 4.12 Pl. 49. 4 Rep. 23. b. Cro. El. 349. Berry and Green When the Heir shall be in by Purchase and not by descent If a Copy-holder of Inheritance surrender this to the Use of another and his Heirs and he to whom the Surrender is made dyes before Admittance and after the Lord admits his Heir he shall be in by Purchase and not by Descent for he is in by the Lord for nothing was in his Father by the Surrender before Admittance 1 Rolls Abr. 827. More 's Case Where there needs no Admittance In the Cases of the Heir per Descent Vide supra When one comes in as of an old Estate A. surrenders Copy-hold into the hands of the Lord and the Lord de novo re-grants the same to A. for Life and afterwards to J. his Wife during the non-age of the Son and Heir of A. and after to the Son and Heir in Tayl. A. dyes the Child being 5 years old Now the Wife is to have the said Lands for 16 years by force of the said Surrender and Admittance The Wife took another Husband and dyed Per Cur. The Husband shall have the Land during the non-age of the Infant and that without any Admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee 3 Leon. p. 9. Dedicot's Case If a Copy-holder be for years and maketh his Executors Executors and dyeth the Executors shall have the Term without any Admittance Sed Quaere for Weston in this point was against Dyer and Brown Joynt-Tenants Release One Joynt-Copy-holder released to his Companion and it was resolved That the Release was good without Surrender or Admittance for the first Admittance is of them and every of them and the ability to Release was from the first Conveyance and Admittance Winch p. 3. Wase and Pretty In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant before Admittance and to what purposes not and what Leases made by them shall be good Upon Surrender nothing is vested in the Grantee before Admittance Vide supra The Copy-holder upon Surrender if the Lord refuse to admit him He who makes the Surrender continues in possession till Admittance cannot enter without Admittance nor have an Action unless there be a special Custom to warrant it for he who makes the Surrender continues in possession till Admittance and not the Lord or Cesty que use and he shall have Trespass against any that enters Cro. El. 349. Berry and Green If by the Custom of the Manor the Copy-hold ought to descend to the youngest Son and the Copy-holder in Fee surrender this to the Use of himself and his Heirs and dyes before any Admittance upon the Surrender and the youngest Son first enters the eldest may not justifie his entrance upon him before Admittance 1 Rolls Abr. 502. If a Copy-holder surrendreth to the Use
allowed Hetly p. 54. M. 3 Car. B. C. Davis and Fortescue Lord of the Manor made a Lease to two of the Copy-holders of the Court Baron for 200 years Lessees of Copy-hold and Court-Baron for 200 years what acts they may do saving to himself the other Demesns and Services the Lessees keep Court there and a Copy-holder surrenders to the Use of A. in Fee Per Cur. this is a good Copy the Court may well continue for that purpose as to Admittance of Copy-holders for otherwise every one of his own act may destroy his Copyholders Estate Cro. El. p. 394. Jackson and Neal and Lord Hatton's Case cited there If the Lord of a Manor grants a Copy-hold Who shall have the Rent rendring Rent praefato Domino at a certain time servitia de jure debita consueta his Heirs and Assigns after his death shall have this Rent this being reserved by a Copy 2 Rolls Abr. 450. Crisp and Fryar Copy-holder makes a Lease rendring Rent Avowry by the Lord for part of his Rent and after surrenders parcel to the Lord the Lord may avow on the Lessee for part of this Rent without alledging notice or attornment by him 1 Keb. 94. Blat and Mole vide The Lord may Distrain a Copy-holder for his Rent as well as Seize Quaere Distress if a man makes a Lease at will rendring Rent whether he may Distrain for this Rent 2 Brownl p. 279. Ravel and Downe Entry Acceptance of Rent The Lord after acceptance of Rent cannot enter upon the Lessee of a Copy-holder 1 Keb. 15. Whether the accustomed Rent be reserved upon a Lease by a Bishop Lord of the Manor Treacer was a Copy-hold Manor within the Manor of B. The Bishop of Exeter held both these Manors in the right of his Bishoprick the old accustomed Rent was 67 l. 1 s. 5 d. Hall Bishop demised these two Manors to P. for 99 years determinable upon three Lives reserving the old Rent P. assigns them over to N. except the Demesns of Treacer N. surrenders both Manors except Treacer The Bishop re-demiseth to him the said Manors except Treacer and one Farm more reserving the old Rent 67 l. 1 s. 5 d. Per Cur. this second Lease was good and the 67 l. 1 s. 5 d. was the old accustomed Rent within the Statute 1 El. Mod. Rep. 203. Thredneedle and Lynham Of Leases made by a Copy-holder and of Rents reserved thereupon vide Customs When Leases made by a Copy-holder for Years are a Forfeiture Vide sub Tit. Forfeiture Note Lease no disseisin A Copy-holders Lease is no Disseisin though it be a Forfeiture nor doth it alter the Estate of the Lord 2 Keb. 598. Note Lease not Assets Copy-holder made a Lease for years by License and Lessee dyed this shall not be accounted Assets in the hands of the Executors Quaere Nor be extended Popham 188. But if Copy-holder make a Lease for an year this is a Lease by the Common Law and not customary and shall be accounted Assets in the Hands of the Executors of the Lessee Popham 188. Yelv. What Leases shall be good or not in respect of Licence when it is persued or not Copy-holder may make a Lease for one year without Licence for that is warranted by the Law by the force of the general Custom of the Realm Lit. 234. and this shall be accounted Assets in the Hands of the Executors of the Lessee If the Lord give Licence to a Coph-holder for Life to let the Copy-hold for five years the Copy-holder may Lease this for three years for this is comprehended within the Licence inasmuch as he had given him Licence to let for more years M. 15 Jac. B. R. Woolridg and Bambridge adjudged upon a special Verdict so it was adjudged in the same Case Cro. Jac. 417. If the Lord give Licence to a Copy-holder for Life to Lease the Copy-hold for five years if the Copy-holder shall so long live and he lets this for five years generally without this limitation If he shall so long live yet this is a good pursuance of the Licence and so a good performance for the Lease is determinable by his death by a limitation in Law and therefore so much is implied by the Law as if he had made the actual limitation So is the Case of Hart and Arrowsmith Noy 121. the operation of Law made such a limitation to the Estate which he made i. e. if he shall live so long But if the Copy-holder had had an Estate in Fee it had been a Forfeiture to have made an absolute Lease because in this case he doth more than he was licenced to do Popham Rep. 105. A Lease not warranted by the Licence as to the commencement A. obtains a Licence in Court to let his Copy-hold for 21 years from Mich. last past he makes the Lease to begin at Christmass following Per Cur. this Lease 〈◊〉 not warranted by this Licence and so no Eject firmae lyes upon it Cro. El. p. 394. Jackson and Neal. Commencement When a Lease shall begin in point of computation and not in point of Interest Land is demised by Copy for three Lives successive and then a Lease is made for 30 years of the same Land to commence after the determination of the first Estate the Survivor dyes leaving a Widow who claims durante viduitate according to the Custom The Quaere was when this Lease shall begin if after the death of the Copy-holder or after the determination of the customary Estate in the Woman It shall commence presently in point of computation but not in point of interest till after the death of the Widow 2 Siderfin Clark and Caudle Capel and Stephens 1653. By Tenant in Tayl if warranted by the Stat. 32 H. 8. Arthur Copy-holder for Life surrenders to Sir Francis Knolls Knight Lord of the Manor in Tayl Reversion in the Crown Sir Francis makes a Lease for three Lives to commence from the day of the date and of the ancient Copy-hold Rent was reserved and more Three Questions were moved by the Jury 1. Per Cur. If this Land shall be said usually demised within the Statute 32 H. 8. being never demised before but by Copy And the Court ruled that so 2. If this Copy-hold Rent shall be said the ancient accustomed Rent within the Statute and ruled that so 3. Though an Herriot was not reserved in the new Lease which was payable by the Copy-hold Custom yet it was resolved that it was a good Lease within the Statute of 32 H. 8. if Livery was made after the day of the date Moor n. 1050. Banks and Brown The Land is accountable usually demisable when it is always demised it was Sir James Marvin's Case Tenant in Tayl lets a Copy-hold by Indenture rendring the same Rent as before it s a good Lease within the Statute of 32 H. 8. A Manor by Act of Parliament was Entayled to A. Wife of
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
re-grant it to him again If a Copy-hold Escheat to the Lord Escheat and he alien the Manor by Fine Feoffment c. his Alienee may re-grant this Land by Copy for it was always demised or demisable but if it be a particular Copy-hold Estate otherwise as was said in the beginning of this Case 4 Rep. 31. Frenches Case If a Copy-holder sue Execution of a Statute against the Lord of a Manor Not destroyed by execution of the Manor at the Copy-holders Suit and had the Manor in Execution and after the Debt is levied the Interest of the Copy-hold remains Per Manwood Heydon's Case Savills Rep. A Copy-holder in Fee marries a Woman Suspended Seignioress of the Manor and after they suffer a Common Recovery which was to the Use of themselves for Life Remainder over by some the Copy-hold is extinct for by the Recovery the Husband had gained an Estate of Freehold But Per Cur. by the inter-marriage it was only suspended Cro. El. p. 7. Anonymus If a Copy-holder accept of a Lease for years of the Manor or marry the Lords Wife by this the Copy-hold is not extinct but suspended If a Copy-hold be granted to three for Lives Suspended and the first of them take an Estate by Deed with livery from the Lord by this the Copy-hold for that Life is suspended Dyer 30. 4 Rep. 31. No prejudice to the Wife or to him in reversion Baron seized of a Manor in right of his Feme let Copy-hold Land parcel thereof for years by Indenture and dyed this doth not destroy the Custom as to the Wife but that after the death of her Husband she may demise by Copy as before So If Tenant pur vie of a Manor let a Copy-hold parcel of the Manor for years and dyes it shall not destroy the Custom as to him in Reversion Cro. El. P. 38 Eliz. Conesby and Rusketh for being Tenant pur vie he may not do wrong by destroying of Customs King H. 8. grants Lands being parcel of Copy-hold of a Manor without reciting this to be Copy-hold to Sir J. G. pur vie Sir J. G. morust Queen Mary grants the Manor to Susan Tenny in Fee who let the Manor for years to Lee. Lee before his years expired grants the Land in question to R. L. in Fee according to the Custom of the Manor Lee's years expire R. L. let to Field at will and the Defendant enters as Heir to Tenny Judgment pro Quer. Suspension and not Destruction of a Custom Kings Prerogative The Grant of the King is but a suspension and no destruction of the Custom And though the Maxim is It ought to be demised and demisable c. yet this holds not in the case of the King 2 Siderfin p. 142. Vide contra 1 Rolls Abr. 498. Downcliff and Minors Vide sub Tit. Grants by the Lord. As to the escheating of Copy-holds after escheating it cannot properly be called a Copy-hold Escheat except it be because there is power in him to re-grant it as Copy-hold Were it by Custom that the Wife shall be endowed of the intierty or moiety and such customary Copy-hold Lands Escheat and the Husband dyes The Wife not to be endowed after Escheat his Wife shall not be endowed of the intierty or moiety because the Custom as to her is extinct 2 Siderfin 19. A Copy-hold Escheated may be demised notwithstanding the Lords Continuance of it in his Hands above 20 years 2 Keb. 213. Pemble and Stern Note If the Copy-holder of a Manor hath had time out of memory Copy-hold extinct but not a Way over the Copy-hold Land a Way over the Land of another Copy-holder and he purchaseth the Inheritance of his Copy-hold by which the Copy-hold is extinct yet by this the Way is not extinct 1 Rolls Abr. 933. Empson and Williamson CAP. XXIV How and where Copy-holder shall hold his Lands charged or not by the Lord or Copy-holders as Dowers Rent-charges Statutes And how and where they shall be avoided THE Lord of a Manor in which were Copy-holders for Lives takes a Wife Dower of the Lords Wife and after a Copy-holder dyes the Lord after Coverture grants the Lands again according to the Custom of the Manor for Lives and dyes the Lords Widow shall not avoid these Grants in a Writ of Dower yet the Custom which is the Life of the Grant was long before 4 Rep. 24. If Feoffee of a Manor upon Condition make voluntary Grants of Copy-hold Estates according to Custom and after the Condition is broken By Feoffee a Manor upon condition and Feoffee re-enters yet the Grants by Copy shall stand Earl of Arundel's Case cited in Co. 4 Rep. 24. Copy-holder by voluntary grant not subject to the Lords Charges The Copy-holder which comes in by voluntary Grant shall not be subject to the Charges or Incumbrances of the Lord before the Grant 8 Rep. 63. Swain's Case Lord of a Manor where the Custom was of Land demisable for one two or three Lives that he that was first named in the Copy should enjoy it only for his Life and so the second The Remainder preserves the Estate from Charges c. grants it to J. P. and E. and M. his Daughters for their Lives if the Lord had charged the Inheritance of the Copy-hold J. P. shall not hold it charged during his Life for the mean Estates in Remainder preserve the Estate of J. P. by Copy from the Incumbrances of the Lord 9 Rep. 107. Margaret Podger's Case Rent charge Earl of W. seized of Manor by Copy grants a Rent-charge to Sir W. Cordel for the term of his Life and conveys the Manor to Sir W. Clifton in Tayl the Rent is behind Sir W. Cordrel dyes the Manor descends to Sir John Clifton who grants a Copy-hold to H. The Executors of Sir W. Cordel distrain for the Rent Per Cur. the Copy-holder shall hold the Land charged 2 Leon. p. 152. and 109. Cordel and Clifton But it hath been adjudged That the Wife of the Lord shall not be endowed against the Copy-holder for the Title of Dower is not consummated before the death of the Husband so as the Title of Copy-holder is compleated before the Title of Dower and in this Case the Seisin and possession continues in Sir John Clifton who claims only by Sir William Clifton who was the Tenant in Demesn who ought to pay the Rent Lord and Copy-holder for Life be the Lord grants a Rent-charge out of the Manor Rent charge by the Lord upon the Manor whereof the Copy-hold is parcel the Copy-holder surrenders to the Use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dyeth so that his Estate is determined and the Lord granteth to a Stranger de novo to hold the said Land by Copy this new Tenant shall hold the Land charged 1 Leon. p. 4. Lord of a Manor where Lands were
dedemisable for one two or three Lives in which Manor was a Custom that the Lord for the time being might grant Copy-hold Estates for Life in Reversion the Lord granted such Lands for Life by Copy in possession took a Wife and granted the same Copy-hold to a Stranger in Reversion for Life and dyed the Copy-holder in possession dyed this Land inter alia is assigned to the Wife for her Dower Dower the Copy-holder shall hold the Land discharged of the Dower 1 Leon. p. 16. Cham and Dover's Case In Cham and Dover's Case is cited the Case of Slowman who being Lord of a Manor ut supra by his Will devised That his Executors should grant Estates by Copy and dyed having a Wife the Executors make Estates accordingly Dower the Wife in case of Dower shall avoid them Dyer 344. and 1 Leon. p. 16. Lord of such a Manor is bound by Recognizance Recognizance afterwards a Copy-holder for Life dyeth the Lord granteth his Copy-hold de novo the new Grantee shall hold the Land discharged of the Recognizance for the Copy-holder is in by the Custom which was paramount 1 Leon. p. 16. Granted upon an Escheat shall avoid Charges The Lord of a Copy-hold Manor where Copy-holders are for Life grants a Rent-charge out of all the Manor one Copy-hold Escheats the Lord grants that again by Copy the Grantee shall not hold it charged because he comes in above the Grant viz. by the Custom the same Law of Statutes Recognizances Dower and Dyer 270. is deemed for Law in Swain's Case Copyholders Beasts distrainable or not for a Rent charge If one is seized of Rent-charge by Prescription issuing out of the Manor of D. yet it seems he may not distrain the Beasts of the Copy-holders of the Manor unless they have been used to be distrained for that they are in by Prescription also and so as high as the owner of the Rent but it is clear That if the owner of the Rent had this by Grant or otherwise and not by Prescription that the Copy-holders Beasts cannot be distrained for this 1 Rolls Abr. 669 670. Cannon and Turner But by Coke Chief Justice If a Copy-holder be of 20 Acres and the Lord grants Rent out of those 20 Acres in the Tenure or occupation of the said Copy-holder and names him there if this Copy-hold Escheat and be granted again the Copy-holder shall hold it charged for this is now charged by express words Brownl 208. Sammer and Force Tenant by the Curtesie for Life or years of a Manor a Copy-hold comes to his Hands by Forfeiture or Determination and then he was bound in a Statute Statute by the Lord. and afterwards demised the Land again Per Cur. this Copy-hold shall be lyable to the Statute because it was once annexed to the Free-hold of the Lord and bound in his Hands But if a Copy-holder bind himself in a Statute Statute by the Copy holder Diversity it shall not be extended for he had not but an Estate at will and this diversity was agreed in Moor n. 233. Anonymus Lord of a Manor being summoned upon a Jury lose Issues Process for Loss of Issues Process shall issue out of the Exchequer to levy them upon the Lands of the Copyholders and Lessees for Life and years parcel of the Manor for the loss of Issues lies upon the Land as an inherent Servitude by the Law into whose Hands soever it comes and this is the common practice of the Exchequer CAP. XXV Of Harriots The Nature of Harriot Service and Harriot Custom and of their Differences What Custom for Harriots are good or not Where they shall be apportioned and by whose acts Who shall pay Harriot or not And the Pleadings Of Harriots HArriots being one of the ancient Services now most esteemed and kept up and many Copy-holds being Harriotable I shall Treat of Harriots chiefly intending Harriot Customs and so far of Harriot Services as to render the whole Intelligible The Normans upon parcelling out their Lands to inferior Tenants invented this Service and termed it Harriot Service and afterwards upon Infranchisement of their Villains Harriot Customs were given to the Lords for a future continued gratulation and so originally they were de gratia but now they are de jure It is the best Beast or other thing that the Tenant hath at the time of his death and this shall be paid before a Mortuary but the Lord if he will may seize the worst and that seizure gives him property Hob. p. 60.16 H. 7.5 Co. Lit. 185. b. Harriots may be by Tenure Custom or Reservation Plowd Com. Redsole and Mantel There are two sorts of Harriots Harriot Service Custom And the nature of them both will be best explained by these diversities Harriot Service is generally exprest in a mans Grant or Deed by which it is reserved and is in these words or to this effect ac etiam per servitium reddendi post mortem cujuslibet tenentis deceden seisit optimum animal c. 1 Anderson 298 299. Odiam and Smith But Harriot Custom is only due by Custom time out of mind and may be paid after the death of Tenant for Life Terms del Ley. Harriot Service is extinct by Purchase of parcel but not Harriot Custom Co. Lit. 149. b. It hath been made a question in our Books whether the Lord may seize for Harriot Service but it is agreed he must seize for Harriot Custom Plowd 96. a. In the Case of Woodland against Mantel it is said the Lord may seize for Harriot Service but Anderson 1. p. 298 299. in Odiham and Smith's Case saith he ought to distrain and not to seize so is Serjeant Benlows p. 18 39. But the Law is setled in Cro. Car. 260. Mayor versus Brandwood and that it is at the Lords election either to seize it or distrain it if he can find it though the pleading seem to justifie it for in Replevin if one justifie for Harriot Custom it s no Plea for the Plaintiff to say that the place where is hors de son Fee for that he claims this Harriot as his proper Gopds and may seize it wherever he finds it Bendl. p. 18 39. For the Lord may seize for an Harriot Custom in the High-way 2 Inst 132. What Custom for Harriots shall be good or not Custom was That if the best Beast be esloigned then the Lord had used to seize and take the best Beast of any other being Levant and Couchant upon the Land it s a void and unreasonable Custom So if it be the Goods of any Inhabitant or Dweller Dye 199. b. Paxton's Case Benl p. 39. bis Co. Ent. 666. The Custom of having an Harriot whether the man had Goods or not is a void Custom Carter's Rep. p. 86. A Custom That the Lord shall seize the Beasts of a Stranger for an Harriot it is not good because it alters the property but a Custom That he shall distrain
the Goods in such Case it is good because it is as a Pledge 2 Leon. p. 725. Parker's Case Where Harriot shall be apportionable or not By the Act of the Lord. Tenant Lord and Tenant by Fealty and Harriot Service and the Lord purchaseth part of the Land the Harriot Service is extinct because it is intire valuable Aliter of Harriot Custom for if the Custom of a Manor be That upon the death of every Tenant of the Manor that dyes seized of any Land holden of the said Manor the Lord shall have an Harriot although the Lord purchase parcel of the Tenancy yet the Lord shall have an Harriot by the Custom of the Manor for the residue for he remains Tenant to the Lord and the Custom extends to every Tenant Co. Lit. 149. b. 6. Rep. 1.2 Bruerton's Case 8 Rep. 105. Talbot's Case 106. Feme by Custom is to have a moiety by Survivor and if Harriot be to be paid for the whole if it be part surrendred both shall pay Harriots 1 Keb. 356. Muniface and Baker Act of the Tenant If Tenant alien parcel of the Tenancy entire Services as Homage Fealty Harriot c. shall be multiplied Solida a singulis praestantur If my Tenant who holds of me by an Harriot aliens parcel of his Land to another each of them is chargable to me with an Harriot because it is entire and though the Tenant purchase the Land back again I shall have of him for every portion an Harriot 6 Rep. 1. Bruerton's Case 8 Rep. 105. Talbot's Case 34 Edw. 3.1 Copy-hold was held by Rent and Harriot upon Alienation and Surrender Copy-holder aliens parts of his Copyhold to one and part to another and retains part in his Hands and surrenders to the Use of the Alienees Per Cur. the Lord shall have an Harriot upon every alienation in case of a Copy-holder as well as a Tenant at Common Law If they should not be multiplied it would be in the power of the Tenant to defraud the Lord by Alienation of parcels and in this case the Alienor pays the Harriot because he continues Tenant and upon every Alienation after by the Alienees they shall pay it Palmer's Rep. 342. Sir Francis Snag against Fox 1 Keb. 357. If a Copy-holder being sick in his Bed doth surrender into the Hands of two Tenants c. to the Use of his eldest Son in Fee and dyeth before the Surrender is presented in Court the Lord must have an Harriot If Surrender had been presented in Court and Admission before the Father's death Aliter If an Harriot is due to the Lord upon every descent only and a Surrender is made by a Copy-holder unto the Use of his Heirs in full Court and to his Heirs and the eldest Son is admitted Tenant accordingly and the Father dyeth the Lord shall have no Harriot Who shall pay an Harriot and when or not Where many Purchase Land joyntly an Harriot shall not be paid till after the death of the Survivor 8 Rep. 105. If by Custom a Copy-holder dyes seized he shall pay an Harriot to the Lord and after the Copy-holder is disseised and dyes during the disseisin yet he shall pay an Harriot within this Custom for he was Tenant in right notwithstanding this disseisin 2 Rolls Abr. 72. Norris's Case Lease is made to A. for 99 years if B. C. and D. or any of them so long shall live to commence after the determination of a former Lease rendring Rent after the commencement of the term ac etiam post mortem B. C. D. respective for an Harriot 3 l. B. dyes before determination of the first term and Lessor brings det for 3 l. for an Harriot Per Cur. no Harriot is due because coupled with a Rent and no Rent is due during the interesse termini but both begin together Siderfin p. 437. Hangon and Carve Lease is made for 99 years if I. and S. live so long to commence after the determination of a former Lease to Sibel if Sibel lived so long reddendo 40 s. per annum and 3 l. in the name of an Harriot post mortem of each Cesty que vie Per Cur. the Harriot ought not to be paid till the Lease come in possession which is not till Sibel dye at which time the second Lease takes effect and this shall follow the nature of the Rent being in company with such Rents and Services as are to be only done when the Lease comes in possession and the Lease to Lessee for 99 years is but a future Interest where the Lessor hath no Reversion nor the Lessee any term and reddendo is a reservation and therefore cannot take effect till there is a Reversion but Keeling contra this being a sum in gross and here is an express agreement to pay after the death of either of the Parties and agreements may reach payments as well on contingency as where the Party hath Interest 1 Keb. 677. Lemal against Cara. Who shall have an Harriot A. is Copy-holder for Life of Lands Harriotable by the Custom if he dye seized and the Lord grants the Freehold of the Copy-hold to B. for 99 years if A. the Copy-holder so long live the Remainder to A. for 1000 years and afterwards A. assigns over his Lease of 1000 years to C. and afterwards A. makes F. his Executor and dyes seized Per. Cur. C. the Assignee of 1000 years shall not have an Harriot because at the time of the death of A. when the Harriot became due he was not Lord but had only a future Interest and if any Harriot be to be paid the Executor of A. or the Lord in Fee shall have it P. 15 Jac. B. R. Norris and Norris 2 Rolls Abr. 72. This Case in March p. 23. is Reported thus The Lord granted the Seigniory for 99 years if the Tenant should so long live and after he made a Lease for 4000 years Tenant for Life is disseized or more properly ousted and dyed Two points resolved 1. An Harriot was to be paid notwithstanding the Tenant did not dye seized because he had the Estate in right and might have entred 2. He in the remainder for years should not have it their reason was because the Tenant for Life was not the Tenant of him who had the future Interest of 4000 years but of him who had the Interest for 99 years but the Court was not agreed that the Grantee for 99 years should have the Harriot the reason of the doubt was because that eo instante the Tenant died eodem instante the Estate of the Grantee for 99 years determined A Bishop is seized of the Manor of D. and he lets twenty Acres of it to A. and B. during the iives of their three Children rendring 21 s. Rent per Annum and also paying and delivering to the Bishop and his Successors two of the best Beasts upon the death of every Cesty que vie The Bishop after lets all the Manor to W. rendring the ancient
Merton Cap. 1. Of Damages sur Recovery en Dower which gives Damages to a Feme Covert upon a Recovery in a Writ of Dower where the Baron dyed seized extends to Copy-holds And Stat. W. 2. C. 3. W. 2. Cap. 3. Cui in vita And the three several branches of that Stat. the one which gives a cui in vita upon a discontinuance made by the Husband The second which gives the Receit to the Wife upon her Husbands refusal to defend the Wifes Title Resceit And the third which gives a Quod ei deforceat to particular Tenants extends to Copy-holds Quod ei deforceat And The Statute 32 H. 8. Cap. 9. 32 H. 8. cap. 9. Champerty against Champerty and litigious Titles which gives an Entry in lieu of a Cui in vita extendeth to Copy-holds Cro. Car. 43. Rowden and Malster Vide Plowd f. 371. The Statute W. 2. which gives Elegits Elegit extends not to Copy-holds for that would be a prejudice and the Common Law would break the Custom Savil's Reports Heydon's Case vide supra Copy-hold Lands are liable to the Statutes of Recusants 13 El. cap. 4. Of Recusants and the King shall have the profits of the Lands only but no Estate and such Statute doth not make a Tenant to the Lord and though the King hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the King 1 Leon. p. 98. Saliard and Everat's Case Owen p. 37. mesme Case Copy-hold Lands are not within the words of that Statute but by Anderson 34 H. 8.5 Of Wills the Equity of that Act doth extend to Copy-holds 1 Leon. 83. in Skipwith's Case 31 Eliz. cap. 7. Cottages Copy-hold is not within that Stat. 1 Bulstr 50. Brock's Case 11 H. 7. cap. 10. Joyntresses Copy-hold Lands are assured to the Wife for her Joynture and she aliens them it s no Forfeiture within Statute 11 H. 8. Cap. 10. Copy-hold Land is not within that Statute 2 Siderfin p. 41 73. Harrington and Smith CAP. XXVII Of Emblements who shall have them the Lord or the Copy-holder A Woman who had her Widows Estate of Copy-hold Land and before severance took Husband the Lord shall have the Corn because the Estate of the Woman determined by her own act otherwise if her Estate had ended by Death Divorce Determination of the Will c. Moor n. 512. Oland and Burdwick 5 Rep. 115. mesme Case If a Copy-holder Durante viduitate Lease for one year and the Lessee sows the Land and after the Copy-holder takes an Husband yet the Lessee shall have the Corn for her act shall not prejudice a third person Ibid. Oland's Case If the Husband seized of a Copy-hold in Fee sows the Land and after surrenders to the Use of his Wife who is admitted accordingly and after the Husband dyes before severance it seems the Wife shall have the Corn and not the Executors or Administrators of the Husband Annexed to the Land for that the Husband passed the Emblements with the Land to the Wife as annexed to the Land and by this the Priviledge which the Law gives to him who sows it is taken away by the Surrender and so it is all one as if the Wife had sowed it or purchased the Land sowed by a Stranger 1 Rolls Abr. 727. CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not IF a Copy-holder in Fee dyeth seized and the Lord admit a Stranger to the Land who entreth he is but a Tenant at will and not a Disseisor to the Copy-holder who hath the Land by Discent because he cometh in by the Assent of the Lord 3 Leon. 210. If a Copy-holder without Licence makes a Lease for years the Lessee who enters by colour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firmae 2. Brownl p. 40. Petty and Evans If a Copy-holder Lease for years by License of the Lord and after enters upon the Lessee and ousts him this is a Disseisin to the Lord of the Frank-Tenement 1 Rolls Abr. 662. by Coke Vide sparsim CAP. XXIX Actions and Suits What Action may be brought by the Lords What Actions brought by Copy-holders or their Executors in respect to their Copy-hold Estates shall be good or not either against their Lords or others What Actions may be brought by the Lords THE Lord upon seizure of Copy-holder may maintain Ejectment till the Heir comes to be admitted as in Harverights Case Latch 511. upon Entry of the Feoffor upon Rent reserved and Entry till satisfaction he may upon such Interest quousque maintain an Ejectment 1 Keb. 2â—7 Lord Salisbury's Case As to the Lords Action for Rent Distress Remedy for Forfeitures Vide supra sparsim per tout in Indice What Actions a Copy-holder may bring against his Lord and what not Trespass upon Ejectment by the Lord. Copy-holder doing and paying the Customs and Services if he be ejected by his Lord he shall have an Action of Trespass against him Co. Lit. 60. b. 61. a. 4 Rep. 22. a. For though he is Tenens ad voluntatem Domini yet it is Secundumconsuetudinem Manerij For cutting Trees He shall have Trespass against his Lord for cutting of Trees or breaking his House in the Case of Stebbing and Gosnel 1 Rolls Abr. 108. The Custom was That every Copy-holder in Fee shall have the Loppings of the Pollingers The Lord cuts down two Oaks and in his Plea to an Action sur Case saith he cut down two Oakes being Pollinger Timber Trees and left the Loppings there for the Plaintiff On Demurrer it was adjudged for the Plaintiff for a Copy-holder of Inheritance hath interest in the Loppings and Boughs as well as the Lord in the Timber And if the Lord shall cut down all the Timber Trees than the Copy-holder shall lose the Profit Cro. El. p. 629. Moor n. 727. mesme Case 1 Rolls Rep. Ford and Hoskin's Case Nay the Action of Trespass by a Copy-holder in Fee against his Lord for cutting down the Trees lyes at Common Law without any special Custom for the Copy-holder hath a special property therein and the Lord a general property the Lord may as well subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to Repair it 2 Brownl 328. Heydon and Smith and in Doyle's Case Mich. 25. and 26 El. it was adjudged where it was a Custom that the Copy-holder might cut Maremium to Repair if the Lord carry it away an Action of Trespass lyes against him by the Tenant in Taylor 's Case Pasch 36. Eliz. A man was Tenant by Copy of Court Roll of Wood and the Soyl was excepted to the Lord and yet the Copy-holder maintained an Action of Trespass against the Lord for cutting his Wood Moor n. 480. If a Stranger cut a Tree Trespass by the Lord and the Copy-holder for cutting down Trees the
per quod quer ' communiam suam predict pro averiis suis c. in tam amplo beneficiali modo prout antea habuit c. habere non potuit This is a good Declaration though the Commoner cannot have any Damage for the taking and carrying away the Turffs yet the coming on the Land with Horse and Carts is a prejudice to the Common and the per quod the Common is impaired is the cause of Action and the carrying away a means to impair it 1 Rolls Abr. 89. Terry and Goodier and good tho' Damages were entire Action shall be brought in a Copy-holder Lunaticks name for though the custody of the Land was granted to one by the Lord yet no Interest was gained by this commitment and the Lord hath not power over the Lunaticks Lands without a Custom Hobart p. 215 216. Cox and Darson Trespass Quare clausum fregit Copy-holder of Under-Wood without the Soil shall have Trespass Quare clausum fregit Moor n. 480. Account for Profits Account lies not for an Heir Copy-holder for the Profits of his Copy-hold Lands taken during his non-Age where the Defendant hath not entred and taken the Profits as Prochein Amy but claims by Custom and Grant of the Lord to the Use of the Assignee which Custom is good 1 Leon. p. 226. n. 356. Anonymus Faux Judgment Writ of faux Judgment lies not for a Copy-holder Vide supra Writ of Right Close Writ of Right Close lies not for a Copy-holder 4 Rep. 21. Avowry for Rent by Lessee of a Copy-holder Lessee for years of a Manor distrains a Copy-holder for Rent he Replevins Lessee Avows Per Curiam Avowry may be made for the Rent of a Copy-holder in the Kings-Bench and there is difference between an Ejectione Firmae and this Case For the Ejectione Firmae is brought for the Copy-hold it self But this Avowry is for Rent due to the Lord which is a duty at the Common Law and therefore an Avowry may well be for it Cro. El. p. 524. Laughter and Humphry A Copy-holder in Fee by Licence made a Lease for 21 years by Indenture rendring Rent Covenant by Assignee of a Reversion wherein the Lessee Covenants for himself his Executors and Assigns That he will erect a c. The Lessor surrendred to the Use of the Plaintiff and his Heirs who was admitted accordingly and the Plaintiff as Assignee brings his Action of Covenant Whether the Assignee may maintain this Action by the Common Law or by the Statute 32 H. 8. Cap. 34. was the Question for the Defendant demurred upon the Declaration it was adjourned in Cro. Car. 24. Plat and Plummer But it seems by 1 Keb. 356. Baker and Berisford's Case That the Assignee is not within this Statute to have a Covenant Action of Debt doth not lye for Arrearages of Copy Rents for the Stat. of 32 H. 8. Action of Debt for Rent does not extend to them but to Rents out of Free Land Yelv. p. 135. Appleton and Doily And so Executors shall not have Debt for Arreages of such Rents due in the Life-time of the Testator The Lord of a Manor is and Fines No Remedy for Fines Rents c. after vendition for Admittances and Copy-hold Rents are Arrear and then he sells the Manor he is without Remedy both in Law and Equity He hath deprived himself of the Remedy by his own act viz. the vendition 1 Rolls Abr. 374. Serjeant Hitcham and Finch Copy-holder for Life becomes Lunatick A. Action of Trover to be brought in the Lunaticks name he being a Copy-holder sows the Land The Lord grants the custody of the Lunatick to B. A. takes the Corn to the Use of the Lunatick B. Brought Trover in his own name it s ill brought It ought to be brought in the Lunaticks name and not in the name of the Committee Noy p. 27. Cox and Dawson Covenant by Rent Custom is when a Copy-holder dies seized of Copy-hold Lands or Rent That his Wife shall have the one moiety and his Issues the other moiety A. B. so seized takes Mary to Wife and they have Issue John A. B. dies so that Mary is seized of the moiety for her Life and John of the other moiety in Fee and of the first moiety as his Reversion Mary and John her Son make a Lease to J. B. for twenty one years rendring fifty pounds Rent to Mary and fifty pounds to John and after the death of Mary one hundred pounds to John John marries Margaret they have Issue three Sons John dies so that a fourth part comes to his Wife and the other fourth part to his three Sons Rent is behind Margaret brought Debt on Covenant for the Rent Per Curiam it was well brought by her sole Joynder in Action without joyning Mary with her Tenant in Commonn shall joyn in Action so long as the privity of Contract remains but when the privity is determined as it is here they may sever and such Contract shall ensue the nature of the Land and also there is a vesting by Custom and express several Reservations 2 Siderfin p. 9. Baker and Berisford CAP. XXX Of Copy-holders being Impleaded and Impleadable in the Lords Court Vide supra Tit. Customs COpy-hold Lands are as the Demesns of the Manor and are the Lords Freehold and therefore are not impleadable but in the Lords Court Croke Jac. 559. Pymmock and Hilder One recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right A Precept cannot be made and awarded out of the Court to execute the said Recovery Posse Manerij and to put him who recovered into possession with the Posse Manerij for force in such cases is not justifiable but by command out of the Kings Courts 3 Leon. 99. A Woman recovered Dower of a Copy-hold within the Manor and 40 l. Damages 40 l. Damages recovered yet no Execution or remedy but by Petition and she brought Debt for the Damages in B.R. Per Cur. it lyes not because the Court Baron cannot hold Plea nor award Execution of 40 l. Damages though the Damages were there well assessed and because no Writ of Error or Faux Judgment lyes upon such a Recovery of a Copy-hold but only a Petition to the Lord of a Manor so that Copy-hold Plaints are not within the Jurisdiction of this Court of Kings-Bench Moor n. 559. Shaw and Tompson If an erroneous Judgment be given in a Copy-hold Court of a common Lord in an Action in nature of a Formedon a Bill may be exhibited in Chancery Faux Judgment how relieved in nature of a Faux Judgment to reverse this Pateshall's Case in Scaccario 1 Rolls Abr. 373. and Co. on Lit. p. 60. a. He cannot have the Kings Writ of false Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a
a descent of Inheritance at Common Law there the Defendant may plead a Feoffment made by the Ancestor absque hoc that he died seized because he may have an Estate by disseisin after the Feoffment Traverse of the descent and not of the dying seized is not good March p. 21. Anonymus Copy-hold Land was granted by the Lord of a Manor 10 May 3 Car. to the Wife of Tho. Kett and in the Replication the Defendant justifies as Bayliff to Tho. Kett the Plaintiff confesseth the Land is Copy-hold Land but that the Lord granted it 1 Jac. to N. S. in Fee who had two Daughters the Wife of the Plaintiff and the Wife of Tho. Kett and died seized and that the Lands descended to them upon which it was demurred By Berkley the Grant of the whole ought to be traversed Coparceners or confessed and avoided for the first Grant shews that the Defendant was in of all and the descent to the Wife is but for a moity Dyer 171. pl. 8. Per Cur. upon the whole matter disclosed Quaere if a Coparcener cannot distrain upon the Land of another Matter of Form damage fesant and the matter of form in the pleading ought not to be regarded by the Judges upon Statute 23 El. Cap. 5. Judgment was pro Quer. Hutton said The descent which was pleaded makes the second Grant void but by Richardson Though it be avoided yet it is not confessed Hetly p. 114. Port and Yates In Replevin the Defendant avows for damage fesant by reason of a Copy granted to him of the place where c. by the Lord of the Manor Cooper Bishop of Winchester The Plaintiff saith That before Cooper Horn was Bishop by whose death the Temporalties came into the Queens Hands and this Copy-hold during the time that the Temporalties were in the Queens Hands Escheated and the Queen granted it to the Plaintiff in Fee by force whereof he put in his Beasts If there is not confessing and avoiding there must be a Traverse and traverseth the Grant by Cooper Per. Cur. this Traverse is good and ought to be for there is not any confessing and avoiding because he doth not confess the Seisin and grant by Copy but if he had confessed That the Bishop had entred and granted it by Copy Where needs no Travers then there needed not any Traverse So where one justifies by Lease from J. S. the Plaintiff saith That J. S. enfeoffed himself it is not good without a Traverse Cro. El. p. 754. Covert's Case In Ejectment Ancient Demesn pleaded Replication That they are Copy-hold and Traverse The Defendant pleaded that the Lands were ancient Demesn and pleadable by a Writ of Right Close c. The Plaintiff shews That they were Copy-hold Lands and parcel of the Manor and entitles himself by Lease under the Copy-holder and traverseth That they were impleadable by a Writ of Right Close the Traverse is well enough taken Cro. Jac. 559. Pimmock and Helder The Avowant hath Election to Traverse any part of the Plea which goes to the end of the Action or justifies the Action Traverse the consequence In Ejectment the Defendant pleaded That the Lands were ancient Demesn and pleadable by a Writ of Right Close c. the Plaintiff shews they were Copy-hold Lands parcel of the Manor and intitles himself by Lease under the Copy-holder and traverseth that they are impleadable by a Writ of Right Close Demurrer because this Traverse that they were impleadable is but the consequence of ancient Demesn and therefore not traversable but Per Curiam that the Traverse is well enough taken Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom If the Plaintiff in his Rejoynder confesseth a particular Custom he ought to Traverse the general Custom alledged by the Defendant as in Replication the Defendant alledgeth a general Custom Quod quaelibet femina cooperta viro joyning with her Husband in a Surrender of Copy-hold Lands and being privately examined by the Steward that this by the Custom is a good Surrender the Plaintiff replies That there is a Custom in the Manor quod quaelibet c. who is of full Age may Surrender but the Wife who surrendred here was of full Age and doth not traverse the other Custom And Per Curiam it was ill Lit. Rep. 174. Anonymus Presidents and Forms of Pleading as to Copy-hold Estates The Form of Pleading that a Messuage is parcel of a Manor dimissibil dimiss per Copiam 1 Sanders 146. Wade and Batch That the Lands are Copy-hold Lands c. 2 Sanders 321. Pleading of a Surrender made in the Court of the Lord of the Manor to the Use of J. W. in Fee and of the Grant of the Lord to the said J. W. accordingly 1 Sanders 146. Pleading of the Surrender of a Remainder of a Copy-hold Estate to one for Life to another for Life to another in Fee and admission of them accordingly 1 Sanders 147. Pleading the Admittance of two Tenants in the Remainder for Life the Remainder in Fee 1 Sanders 147. Wade and Batch The Form of Pleading Copy-hold in Fee-simple in Tail for term of Life or Years In Fee-simple Hern p. 80. Co. Entr. 10. 647. Estate 3 Br. 463. Hern 227.607 In feod simplici Tail Life or Years Ra. Ent. 627. Co. Ent. 206. U. B. 128 157. Co. Ent. 657 123. Hern 679. Ad terminum vite vel vitarum Hern 653. Ad terminum 2 vitarum successive Hern 72. Ad terminum 1 2 vel 3 vitarum successive Hern 83 123. Simile in possessione Hern 711. Ad terminum vite vel vitarum tam in possessione quam in Reversione Co. Ent. 373 672. Ad terminum 1 vel 2 vitarum in possessione 1 vite in Reversione Hern 724. Ad Terminum 1 vite in possessione 1 vel 2 vitarum in Reversione Hern 254. Ad terminum 1 2 vel 3 vitarum in possessione vel 2 vitarum in reversione unius vite in possessione Coke Ent. p. 184 3 Br. 745. Pleading Surrender Surrender in Cur ad usum in feod Ra. Entr. 627. Co. Entr. 206. 3 Br. 465. Extra Curiam in manus 2 Tenentur ad usum in feod Co. Entr. 575 645. Usi Extra Curiam ad usum W. pur vie Remainder al Baron Feme Heires de Feme Co. Entr. 207. In manus Dom Co. Entr. 575. Per Tenant pur vie de moiety al use des Fitz Hern 255. Per 2 Tenants pur vie al intent de regrant Hern 656. Per Feme Covert secretur examinatur Co. Entr. 576. 3 Br. 465. Per Attorn secundum consuetudinem Manerij Co. Entr. 657. Per literam Attoruatur Co. Entr. 576. Presentment per l' homage de surrender extra Curiam Co. Entr. 206. Simile per tenentur jacen in extremis Co. Ent. 206. Admissio secundum sursum redditionem Co. Entr. 207 575 bis 577 645 657. Admissio heredis super
descensu Cro. Entr. 575 657. Dom concessit querenti terras custumar que ei descend restituend eum ad jus ubi terre fuer prius concesse alij qui obiit Ra. Ent. 628. Dominus ob certas causas seiseivit terras custom concessit eas in feod al W. cui Vir et Vxor propretarij unde relaxaverunt jus 3 Br. 464. Dominus ex traditione propria grant al un pur vie per Copie 1 Coke 117. Grants Grant per Copie in Fee Rast Entr. 627. Limitation dea Estate Co. Ent. 9 10 123 274 645 611 657. 3 Br. 97 464. Hern 81 226 707. Simile al Baron Feme Ra. Entr. 627. Simile al Baron Feme Heires del Feme Cro. Encr. 575. Al un pur vie ove several Remainders in Tayl in defectu exitus quod terre venderentur deuar inde provenien disponerentur juxta Testamentum Co. Ent. 207. Al un pur vie Co. Ent. 576 662. Al 2 pur vies Co. Ent. 273. Hern 73. Al 3 pur vies successive Hern 83 711. Al un pur vie en Reversion Hern 255. Grant al un pur vie in Reversion apres mort de Tenant pur vie per primer grant Hern 724. Simile al 2 pur vies in Reversion Co. Ent. 114. bis 662. Per Senescallum Regis ratione Temporal Episcopatus in manu Regis duran vacac Co. Entr. 645. Grant reddend faciend redditus consuetudines servitia consueta Co. Ent. 662. Terres grant per nosmes Co. Entr. 662. Hern 254 255. Pleading a Manor held by another Manor 11 Rep. p. 17. Sir Henry Nevil's Case Cur tentur coram Deptur Senescallo Co. Entr. 570. Forms of Pleadings of Lords and Copy-holders in reference to Common Per Dom Manerij habere communiam pro tenentibus Custumariis Hern 117 124. Rex Seisitus de Manerio habuit communiam Pasture in bosco pro se liberis tenentur custumar manerij pro omnibus averijs ê‘ totur Annum Co. Entr. 656. Rector Ecclesie seisitus de Manerio Rectorie habuit communiam pro se tenen custumar MessuagÌ„ Terrarum in loco in quo c. pro omnibus magnis averiis per totur Annum Co. Entr. 574. Vn seisitus de Manerio habuit communiam pro se tenen suis in terris tentur de manerio quando non seminantur Co. Entr. 118 Quer seisitus de manerio habuit communiam pastur pro tenen custumariis MessuagÌ„ Terrarum in 10 Acres Pasture pro omnibus averiis per totur Annum Co. Entr. 9. 9 Co. 112. Hern 117. Domini separalium Maneriorum habuer communiam pasture pro tenen custumariis causa vicinagij Co. Entr. 10. vetur intur 191. de injur propr traverse prescriptur Prior seisitus de manerio habuit communiam pro se tenementis suis ad voluntatem in terra post blada asportata usque reseminationem quando facet frisca per totur annum Et in prato post foenu asportur usque Purit ' Rast Entr. 622. 1 Brownl 66. TransÌ„ bar ' per prescription de communia in clauso parcel Manerij Repl protestando quod clausum non est parcel Manerij pro placito de injur propria travers prescription 3 Browl. 418. Iustificatur in TransÌ„ pro common per Custome infra Manerium pro defectu sufficien fensur Def. existen Lessee pÌ„ ans d'un Widdw que tenuit terras per Custome quamdiu casta innupta viveret Tomps 331. Trans Iustificatur pro common prescribe in in Dom Manerij Tomps 371 379 392 418. Pled que customarij Tenants debent habere solam separalem pasturam cum liberis tenentibus pro omnibus averiis barbits except Levant Couchant 1 Sanders 347. 2 Sanders 321. Pled que custumary Tenants usi sunt habere separalem pasturam come appurtenant Tenementis suis 2 Sanders 351. Per Lessee del Copyholder de Turbis fossis in communia pasture Hern 80. Simile pro Hern 116. Bar in ReplegÌ„ That he is Copyholder of another Manor of Copy-hold called P. and prescribes for Common in loco quo c. omni tempore Anni pro omnibus averiis communicalibus Levant Couchant sur le Cohy-hold appell P. que posuit averia sua utendo communia Repl per Traverse que barbits la fuer Levant Couchant c. Demur special the Traverse not being good Winch Entr. p. 970. By four Judges the Traverse was good it s an essential part of the Plea and the Avowant hath election to Traverse any part of the Plea which goes to the end of the Action or Justification Pled Custome aver common in loco in quo c. Repl de son Tort Demesne traverse que les avers fuer Levant Couchant sur le Copy-hold Tempore quo c. Rej. issue sur le Traverse Winch. 1068. ad 1071. Def. in Trespas plead severally pro defâ—â— sufficien ' fensur monstre lour Title al Copy-hold Estates Tomps 410. Iustificatur pÌ„ Common per Custome per un Copyholder Toms 410. Custome pleaded quod tenen custumarii habeant communiam pasture per totur Annum in terris parcel Manerij Hern 81. Simile in terris non allegatur fore parcel Manerij Hern 708. Simile pro averiis vocatur Horse-Beasts Neat-Beasts Levant c. per totum Annum Coke Etr. 10. Simile pro bobus levan a festo ad festum in pastura 3 Br. 61. Simile in 7 acris terre post blada messa asportatur ex eisdem resid camporum usque AnnunciacÌ„ nisi interim seminatur 3 Br. 96. De Arboribus Bar to the Avowry That Sir R. D. was seized of the Manor of R. Vnde c. locus in quo contains 14 Acres and are customary Lands held of the said Manor Sir Robert granted this by Copy to T. who dyed and the Premisses descended to T. his Son c. who demised for a year to the Plaintiff Replication The Defendant confesseth the seisin of Sir Robert but said the 20 Acres of Land and 30 Acres of Meadow of which the 4 Acres are parcel are custumary Lands of the said Manor which Lands Sir Robert granted by Copy to T. T. the Father T. the Father forfeits his Copy-hold Land for Waste and Sir Robert enters for the Forfeiture c. Rejoynder the Plaintiff confesseth the matter in the Replication to the seisin of T. T. the Father And farther the Plaintiff shews the Custom of the Manor was for every Copy-holder d'amputer decapiter tam touts arbores que devant ustoient estre amputes decapitates quam touts juveniles arbores n'esteant pluis que 12 Inches square al stubb The Trees supposed to be decapitated by the Father were decapitable by the Custom c. Demur Winch Ent. 1022. c Drury's Case Bar al cognizance Dean Cap. West seisitur de Manor de T. a quel certain custumary Tenants appertain c. S. H. fermor del Dean
At the Court Baron of the Honour of Hampton J. S. and J. D. Tenants of the Honour of Hampton do present An Honour That J. R. did Surrender into the Hands of two Tenants of the Honour Per Jones This being a Court of the Honour and into the Hands of the Tenants of the Honour it s not good but by the other three Justices its good enough For Toddington being in the Margent it shall be said a distinct Court by it self For an Honour consisteth of many Manors yet all the Courts for the Manors are distinguished and have several Copyholders Cro. Car. 366. Seagood and Hone. Special Verdict was That Copy-holder of Inheritance bargained and sold his Copy-hold Land c. to the Lessee of the Manor and this was by Indenture and the Indenture was to this effect Verdict found not according to the Indenture That he bargained and sold all his Lands and Tenements as well Copy-holds as other Lands bought of John Culpepper in such a Town but it is not found by the Verdict nor averred by the Party That the Land was bought of John Culpepper and so ill Winch Rep. p. 67. Hasset and Hanson Custom not well found A Copy-holder of Inheritance made a Letter of Attorny to two Joyntly and severally to Surrender his Copy-hold Lands in Fee to certain Uses after his death but the Verdict doth not find that the two Attornies were custumary Tenants nor doth it appear that they were customary Tenants at the time of the Admittance and the primier possession will make a disseisin by the Defendant if the Custom be not well found It is not found that the two Attornies were customary Tenants but it was objected here is so much found as shall make it to be presumed that they were Tenants of the Manor for it is found that the party is admitted secundum consuetud Manerij which cannot be a good Admittance if they were not Tenants But Rolls answered to be admitted secundum consuetudinem goes to the Admittance not to the Letter of Attorny the Custom is not good neither is it found that the Land is demisable at the will of the Lord c. and so it may be free Land and the Custom reaches it not Stiles p. 311. Wallis and Bucknal The Plaintiff entitles himself to have Common of Pasture c. to his Copy-hold and the Custom was traversed it was found he ought to have the same Common but that every Copy-holder used to pay time out of mind c. pro ead communia unam gallinam quinque ova annuatim upon this Verdict the Plaintiff shall have Judgment Failure of Custom found this is not a common sub modo for the Ter-Tenant had remedy for the Hen and Eggs by distress and it is not parcel of the Issue but had the Jury found that the Plaintiff shall have Common paying so many Hens and Eggs the Issue had been against him and it had been parcel of the Custom it s not Modus Communiae but collateral recompence One prescribes to carry Water out of the River the Jury find he ought to have this paying 6 d. yearly Failure of Prsecription found Per Cur. he hath failed of his Prescription for he had prescribed absolutely and the Jury found it conditionally or sub modo and the Ter-Tenant in this Case hath no remedy but by disturbance 5 Rep. 68. Gray's Case If the Issue be whether Jury must find directly and not argumentatively where a Copy-hold is granted to three for the Lives of two he who dies seized c. ought to pay an Harriot Custom and the Jury find there never was a Grant of such Estate within the said Manor This is not well found for this is but an argument that no Harriot ought to be paid but they ought to have found it directly M. 15 Jac. B. R. Ven and Howel If the Issue be whether by the Custom of the Manor a Copy-hold may be granted to three for the Life of two and they find that by the Custom it may be granted for three Lives this is not well found because it is only by Argument because if a greater Estate may be granted a lesser may be So if the Issue be whether a Copy-hold may be granted in Tail and they find it may be granted in Fee mesme Case What shall be intended by the Juries finding if c. then for the Plaintiff Special Verdict upon a Patent from King H. 8. which Patent was adjudged void to pass the Estate the Jury find if it were a good Patent then for the Defendant if otherwise they find for the Plaintiff It is intended there is a sufficient Title found for the Plaintiff unless by this Patent it be defeated If Jury be satisfied the Plaintiff hath Title the Court ought not to doubt thereof so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title the Court ought not to doubt thereof and so is Goodal's Case 5 Rep. 97. Cro. Car. 21. Castle and Hobbs Custom was pleaded by the Defendant That if a Copy-holder in Fee hath a Wife at the time of his death and two Sons or more that the Wife shall have her Free-Bench during her Life and that if the eldest Son dye living the Wife though he hath Issue his Issue shall not have it Custom must be found in the manner that he pleads it but the second Son The Jury found the Custom that the youngest Son should have it unless the eldest Son was admitted thereto as to the Reversion or made a Fine for it with the Lord in his Life-time Per Cur. The Custom is not found in that manner that he pleaded it therefore it is found against him that pleaded it for he pleaded a general Custom without exception and the Custom found is with an exception and special as the Case is in Dyer 192. Where a Custom was pleaded That a Feme should have it and it was found she should have it Verdict not aptly concluded durante viduitate but in this Case there was not any Verdict upon this Issue for they concluded their Verdict Si c. they found the Defendant guilty if otherwise not guilty and so there is not any conclusion of the point in Issue Per Cur. a gross fault and a Venire Facias de novo was awarded Cro. El. 415. Boraston and Hay In Trespass the Plaintiff in his Replication makes Title That this Land is parcel of the Manor of D. and demisable c. by Copy in Fee in Tail for Life or years c. and the Land was let to him by Copy in Fee Substance found the Prescription was traversed and found that it was demisable c. in Fee but never in Tail and that it was granted to the Plaintiff in Fee this was found for the Plaintiff for the Allegation That the Land was demisable in Fee or in Tail
c. is but a Conveyance to his Title and for that it was found that it was demisable in Fee and that it was demised unto him in Fee this is the substance of his Title and so sufficient Cro. Eliz. p. 431. Doyle and Wood. In Eject Fir. If the Jury find a special Verdict That J. S. was seized of the Manor of D. in his Demesn as of Fee in which Manor was a Copy-holder of the place where c. and commits Waste by cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters in the Manor in the place where c. for the said Forfeiture and was of this seized in his Demesn as of Fee and concludes si super totam materiam c. This is not a good Verdict because it is not found that J. S. died seized of the Manor and that this descends to the Lessor Seisin and descent as Cousin and Heir as his Cousin and Heir for it may be that J. S. aliened the Land and that the Father of the Lessor or the Lessor himself re-purchased this and that he was also Cousin and Heir to J. S. and although it be in a Verdict it shall not be intended that the Fee continued in J. S. at the time of his death and that he died thereof seized without finding it 2 Rolls Abr. 699. Cornwallis and Hammond Part found the Issue upon the whole not good In Replevin The Defendant justifies by reason of Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties are at issue and it is found that part of the Beasts were Levant and Couchant and part not this is found for the Defendant for the whole for the issue was upon the whole and the contrary is found 2 Rolls Abr. 707. Sloper and Allen. Presidents in Special Verdicts Quod Tenementa sunt custumaria dimissibilia per Copiam dimissio per Dominum ex traditione propria 1 Rep. 117. Chudleigh 's Case Sursum redditio admissio in feodo Co. Entr. 207. Simile in Tallio communis recuperatio inde Co. Entr. 206. Tenementa concessa per copiam la A. B. super vixit Co. Ent. 273. Consuetudo infra manerium de devisatione devisatio in haec verba Co. Ent. 124. Littera Attornat ' ad sursum reddend ' tenementa custumaria sursum redditio admissio superinde Coke Entr. 576 577. Et si sit sufficiens in Lege Manerium Tenementa ab antiquo discendebant 2 percenariis qui fecer ' partitionem de terris dominicalibus ac Tenementa Custumaria servitia remanser ' in communi Coke Entr. 711. Officium Seneschalli manerij execut ' per deput ' contentio inter 2 Seneschallos de Cur. Baron Tenend 9 Rep. 45. In Ejectment Jury find that the Lands are demisable by Lives in possession or reversion and that the Widow in possession held the Lands so long as she remained sole and chaste and that M. C. Widow was seized for Life durante viduitate the Lord grants the Reversion of the said Lands by Copy to R. C. the Son of M. for Life to commence after the death forfeiture or surrender of M. M. surrenders one moiety of the Premisses to R. The Lord dies discent of the Manor to C. S. his Cousin and Heir R. Tenant for Life of one moiety and M. Tenant in Free-Bench of the other moiety the Lord by Indenture demiseth to the Lessor of the Plaintiff for 99 years if he and J. and B. his Sons shall so long live to commence after the death and determination of the Estates of the said M. and R. and of the viduity of such person as shall be his Wife at the time of his death M. surrenders her moiety to R. R. dies seized of both moieties P. C. the Defendant his Wife is admitted she commits Fornication and had a Bastard Jury find the entry of the Lessor If the Lease shall commence before P. dies was the Question Winch Ent. 455. Jury found that the Messuage and Lands tempore quo c. tempore hors memory were custumary part of the Manor of B. a Prebend of S. demisable by Copy of Court Roll for one two or three Lives and that by the Custom of the Manor every Tenant for Life sole seized of any customary Estate for Life in possession may nominate one to succeed him to be Tenant to the Lord for Life and that the party nominated used to require his Admittance and pay such Fines as were taxed by the Homage Another Custom was That every customary Tenant sole seized in possession may cut Timber Trees c. and that Mason the Defendant being Copy-holder for Life 1 May 40 Eliz. named R. P. to be his succeeding Tenant They also find that Robert P. being Prebendary of the said Prebend and seized in Fee of the said Manor 20 March 40 Eliz. demised by Indenture the Manor of B. to Peter Hoskins for three Lives and by the said Indenture Bargains and Sells to him all the Timber Trees c. by which Indenture is a Letter of Attorny to make Livery and they find the Indorsement on the Indenture to this effect Midd. That J. B. one of the Attornies entred into part and made Livery Midd. That J. G. the other Attorny entred into part and made Livery The Livery made in the House of the Lord was Endorsed but it is not mentioned to be part of the Manor The Jury find the entry of Peter Hoskins and seisin for three Lives according to the Lease which aids the other Imperfections Verdict aided 1 Jan. 43 Eliz. Peter Hoskins demiseth to J. Hoskins Masons Tenement and Lands for 99 years March 3 Jac. Mason continuing customary Tenant for Life after his nomination aforesaid cut down 20 Trees off his Copy-hold upon which J. Hoskins 6 Jac. entred upon the Land and demised to the Plaintiff who enters upon Mason who re-enters and if his re-entry be lawful they find for Mason After non-suit one of the Defendants was dead this suggestion must be entred on the Roll. and if not lawful they find for the Defendant Winch Ent. 440. Rowls and Mason In Ejectment to try the Custom of E. of Copies for three Lives the Plaintiff was non-suit and one of the Defendants being dead Hales Chief Justice advised to enter a Suggestion on the Roll That one was dead or else the Judgment for the Defendant on the non-suit will be erroneous as to all 2 Keb. 832. Hawthorn versus Bawden CAP. XXXV Copy-holders relieved in Chancery or what things in respect of Copy-hold Estates are relievable in Chancery or not NOW I conceive it will not be impertinent but rather a thing well approved of to cite some Cases Resolutions and Decrees wherein Copy-holders have been relieved and what remedy the Chancellor will give in respect of Lords
B. unus custum tenen Manerij pred in propria persona sua sursum reddidit in manus Domini per manus Senescalli sui pred secundum consuetud Manerij pred unum messuagÌ„ sive tenementum decem acras pasture cum pertin in A. pred infra Manerium pred ad opus usum C. D. hered assignatur suorum imperpetuum Cui Dominus per senescallu pd concessit inde seisinam per virgÌ„ Habend sibi heredibus suis Tenend de Domino per virgam ad voluntatem Domini secundum consuetudinem manerij pd per redditus servitia inde prius debitur de jure consuetur Et dat Domino de fine pro ingressu suo inde habend quadragintur solid fecit fidelitatem admissus est tenens Another form according to Littleton Ad hanc curiam venit A. de B. sursum reddidit in ead curia unum messuagium c. in manus Domini ad usum C. de D. heredum suorum vel hered de corpore suo exeuntium vel ê“ termino vite c. Et super hoc venit predictus C. de D. cepit de Domino in ead curia messuagÌ„ pdictur c. Habendum tenendum sibi heredibus suis vel sibi hered de corpore suo exeuntibus vel sibi ad terminum vite c. Ad voluntatem Domini secundum consuetud manerij faciendo reddendo inde redditus servitia consuetudines inde prius debita consueta c. Et dat Domino ê“ fine c. Et fecit Domino fidelitatem c. Ad hanc curiam H. H. filius here 's W. H. defunct ' sursum reddidit in manus Dom Manerij pdictur per Senescallum pdictur totum c. ad usum pdictur H. ê“ termino vite sue post ejus decessum ad usum W. H. heredibus suiÌ„s per se e corpore Mariae tunc Vxoris sue legitime procreatur sive procreand Et ê“ defectu talis exitus ad usum rectorum heredum c. Et superinde ad istam eandem curiam vener pdictur H. H. W. H. in propriis personis suis et petunt se inde admitti tenentes unde Dominus pdictur per Seescalluu suu pdictur secundum consuetudinem Manerij pdictur concessit eisdem H. H. W. H. ead tenementa cum pertinentiis Habend tenend ead tenementa cum pertinentiis eid H. pro durante vita sua naturali Et post ejus decessum eid W. heredibus suis per se e corpore Mariae tunc Vxoris suis legitime procreatur sive procreand ê“ defectu talis exitus rectis c. imperpetuum secundum consuetud Manerij pÌ„dictur redditur Herriot sectur curie consuetur servitia inde prius debitur de jure consuetur sic iidem H. W. admissi sunt inde tenentes dedere Domino de fine ê“ tali ingressu suo sic inde habend quatuor libras fecerunt Domino fidelitatem Datur sub Sigillo Senescalli pdictur die Anno supradicto Per me S. E. Senescal Surrender of Copy-hold Lands for Life the Remainder in Fee taken by the Steward out of Court Ad hant Curiam Testatum est per A. H. Seneschallum Cuâ—ie pdictur quod primo die Maij Anno Regni dicti Dom Regis nunc tricesimo A. B. geu jacens in extremis sursum reddidit in manus Domini per manus dicti Senescall extra curiam in presentia E. F. G. H. J. K. secundum consetudinem manerij pdictur unum c. infra maner pdictur vocatur Nocks Farm ad opus usum E. Vxoris ejusdem E. remanere inde S. T. U. W. filiis natu minoribus pdictur A. B. hered suis proviso tamen semper sub hac conditione qd si contingat aliqm pdictor S. V. obire sine heredibus de corpore suo exeun quod tunc ipse qui supervixerit habebit gaudebit pdictur c. Et cetera premissa ê‘dicta cum pertin sibi heredibus suis imperpetuum suê‘ hoc venit hic in cur pdictur E. in propria persona sua petit se admitti ad c. Et cetera premissa pdictur cum pertin cui Dominus per Senescallum suum concessit inde per virgam seisinam habend sibi in forma pdictur ad voluntatem Domini secundum consuetud manerij pdictur Et dat Domino de fine ê“ ingressu suo inde habend vigintur solid fecit fidelitatem admissus est inde tenens A Surrender out of Court of a Reversion to the use of a Man and his Wife and the Heirs of the Body of the Husband the Remainder to the Heirs of the Body of the Wife the Remainder to the Husband of the present Tenant for Life in Tayl the Remainder to the present Tenant for Life in Tayl the Remainder to another in Fee with the Lords acknowledgment of a satisfaction of a Fine the Surrenderor surrendreth all his Right c. to the Husband and Wife the present Tenant for Life to the Uses aforesaid Ad hanc curiam Testatum est per predictur T. P. Senescallum ibid quod c. die c. Anno c. T. J. venit coram prefato Senescallo in propria persona sua sursum reddidit in manus Domini per manus dicti Seneschalli extra cur in presentia L. D. C. K. J. T. secundum consuetud manerij pdictur reversionem unius Messuagij sive Tenementi sexdecim acras prati c. ac reversionem duorum Cottagiorum c. cum pertin in c. infra manerium pdictur Ad opus usum D. T. K. Vxor ejus heredibus de corpore pdictur D. legitime procreatur cum post mortem cujusdam A. modo Vxor H. J. acciderint Et pro defectu talis exitus de corpore pdictur D. T. legitime procreatur remanere inde prefatur K. Vxori prefatur D. et heredibus de corpore ejusdem K. legitime procreatur pro defectu talis exitus remanere inde prefatur H. J. hered de corpore suo Legitime procreatur pro defectu talis exitus remanere inde prefato A. Vxori pdictur J. H. heredibus de corpore ejusdem A. Legitime procreatur pro defectu talis exitus remanere inde V. S. heredibus suis imperpetuu Quibus quidem D. T. K. Vxor ejus Dominus per Senescallu suum pdictur Dom ad hanc curiam concessit inde per virgam seisinam Habend Tenend pdictur Messuagium Cotta- cetera premissa pdictur cum pertin in reversione secundum consuetud Manerii pdicti cum post mortem pdictur A. Vxoris pdictur H. J. acciderint prefatur D. K. Vxori ejus heredibus de corpore pdictur D. Legitime procretur pro defectu talis exitus remanere inde prefato K. Vxori prefatur D. heredibus de
Dominoru Manerii pd per virgam secundum consuetud ejusdem Manerii per manus F. E. S. S. custumar ' Tenen pdictur Manerii Et juratur ad capiend sursum redditur in extremis tantum totur illud custumar Messuagiu sive Tenementum suum cum ê‘tin adinde spectan scituatur jacen existen c. infra Parochia cognitur per nomen de c. tunc in tenura sive occupatione T. N. ad opus usum ultur voluntatur sue in scriptis sub manu sigillo suis usus in ead declaratur Quodque pdictur I. C. post confectionem sursum redd pdictur obiit seitur Modo ad hanc Curiam ven A. C. vid mater pdictur I. C. ê“tulit hic in Curiam ultur voluntatem sive Testamentur dic I. C. debÌ„to modo factur probatur in Curiam c. geren datur decimo sexto die Iunii ultimo sciltur pterito tenor cujus quoad Messuagium sive Tenementum pdictur cum ê‘tinen sequitur in his verbis sciltur Whereas I have surrendred into the hands of the Lord of the Manor of c. by the hands of c. two customomary Tenants of the said Manor all that my customary Tenement in c. commonly known by the sign of the c. with the appurtenances to the use and behoof of my last Will and Testament Now therefore my Will and meaning is and I do hereby give devise and bequeath the said Tenement with the Appurtenances lying c. aforesaid to my loving Mother A. C. for and during her natural Life and after her death I do give and devise the same to my Kinsman I. C. Son of I. C. and his heirs for ever upon this condition That he pay unto his Brother T. five pounds and to his Brother S. five pounds being the youngest Son of the said I. C. to be paid to them or their Heirs within one year next after the decease of my said Mother A. C. Et super hoc pdictur A. C. petit se admitti ad pmissa pdictur secundum formam effectum Testam pdictur pro termino vite sue naturalis Cui DnÌ„i per Seneschallum suum pdictur concesser inde seisinam per virgam habend sibi Assign suis pro termino vite sue naturalis remanere inde in forma pdictur Tenend de Dominis per virgam ad voluntatem Dominorum secundum consuetudinem Manerii pdictur per redditur servic consuetud inde prius debitur de jure consuetur Et dat Dominis de fine fecit fidelitatur admissa est inde tenens Et postea sedente Curia predictur A. C. sursum redd in manus Dominorum ê‘ manus Seneschalli sui pdictur ê‘ virgam secundum consuetud Manerii pdictur totur illud Messuagium sive Tenementum pdictur cum pertin vocatur sive cognitur ê‘ nomen c. totum Statu jus titul interesse sua de in eod ad opus usum pdictur I. C. filii I. C. hered assign suorum imperpetuum cui quidem I. fil psen hic in Cur DnÌ„i ê‘ Senescallu suum pdictur concesser inde seisinam ê‘ virgam habend sibi heredibus suis sub conditionibus in ultur voluntate sive Testamento pdictur I. C. defuncti mentionatur contentis Tenend de Dominis per virgam ad voluntat Dominorum secundum consuetudinem Manerii predictur per redditur servitur consuetud inde prius debitur de jure consuetur dat Dominis de fine fecic fidelitatur admissus est inde tenens Licence to demise for years not exceeding one and thirty Ad hanc Cur Licentia conceditur M. O. vid ad dimittend c. tria clÌ„a terre in c. pditur alicui persone vel aliquibus personis pro aliquo termino annorum non Excendentur Termin trigentur unius annorum a festo sui MichÌ„is tunc ê“x sequence Presentment that the customary Tenant died seized and that the Heir came not to take up the Land and Proclamation made Ad hanc Curiam psentatur est per homagÌ„ quod E. H. vid un Customar Tenen hujus Manerii citra ultur Cur ante hanc Cur obiit seisitur de uno Customar Messuagio vocat sive cognitur c. tentur per Copiam Rotulorum Curie hujus Manerii quod W. E. est filius prox here 's dicte E. quia pdictur W. non venit ad Capiend premissa pdictur extra manus Dominorum Ideo prima Proclamatio facta est Presentment that the Mony mentioned in a Surrender was not paid at the time ideo proclamatio prima Ad hanc Curiam HomagÌ„ pdictur super Sacramentur suum pdictur dicunt presentant quod summa Centur triu librarum mentionatur in sursum redd conditional factur per R. F. S. Vxor ejus cuidam E. L. ad ult general Cur tentur pro Manerio pdictur die martis in prima septimana Pasche solubÌ„ suê‘ decim Octavum diem Septembris ultur pteritur non fuit solutur secundum dictam conditionem in dicta sursum redd specificatur Et quia nullus venit c. Ideo prima proclamatio facta est A Fine respited at last Court now taxed Ad hanc Curiam finis pro Admissione I. N. Iun E. I. C. qui admissÌ„ fuer ad ultimam generalem Curiam ad un ClÌ„m terre continen per estimationem novem Acr jacen prope c. suê‘ sursum redd C. N. A. Vxor ' ejus nunc taxatur ad decem libras solvend Senescallo Manerii pdictur apud Cameram sua scituatur in super festum sci T. A. nunc prox sequen inter hor decima duodecim ejusdem diei Presentment That whereas a Surrender precedent was chargable with payment of 100 l. to M. when he should attain the age of 21 years or day of Marriage which should first happen and with a like Sum to A. payable in the same manner M. upon receipt of the 100 l. releaseth and the Surrendree secures the payment of the other 100 l. to A. by Lease Ad hanc Cur comptur est per HomagÌ„ quod premissa in sursum redd superius ultur mentionatur sursum redd per super nominatur I. D. ad T. B. heredibus suis inter alia oneratur fuer cum solutione summe Centur librarum legalis monete Anglie cuidam M. D. soror ' pdictur I. solvend cum attingerit ad etatem vigintur unius annorum vel ad diem maritagii primo contingen cum summa al Centur librarum consimilis monete Anglie cuidam A. D. alteri sorori dic I. solvend in eodem modo prout ê‘ ultimam voluntatem G. D. eorum Avi geren datur decimo quinto die Augusti Anno Domini 1670. plenius apparet quodque pdicta M. etatur suam vigintur unius annorum pimplevit Et ê‘ quoddam scriptum suum sub manu sigillo suis debito modo factur