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
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
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 Assigns all those Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments whatsoever situate lying and being in K. and S. or any other Town in the said County of Norfolk which are Copy-hold or customary Lands holden of the Manor of H. within the said County of Norfolk and which the said T. P. holdeth by Copy of Court-Roll of the Manor aforesaid or of right ought to hold as Copy-hold or of some customary Tenure of the said Manor of H. or of the Lord or Lords thereof or of any other Manor or Lordship now or late of the said A. B. and E. B. or either of them and the Free-hold of all and singular the said Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments whatsoever with the Appurtenances and also all the Freehold of the Inheritance of all those Copy-hold and customary Messuages Cottages Lands Tenements and Hereditaments whatsoever which were surrendred lately by J. G. unto the use of the said T. P. and his Heirs and also all such Rents and Arrearages of Rents Services Suits and other Demands whatsoever which now or at any time heretofore have been due or payable or that shall or ought to be hereafter due payable or done for all or any of the said Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments whatsoever all which said Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments with the Appurtenances were late in the occupation of c. and the Reversion and Reversions Remainder and Remainders of all and singular the Premisses all Rents and Reservations reserved or payable by or upon any Demises Leases or Grants heretofore made or granted of the said Premisses or any part or parcel thereof To have and to hold all and singular the said Messuages Cottages Lands Pastures Feedings and Hereditaments and all and singular the above-mentioned or intended to be hereby granted and bargained Premisses with their and every of their Appurtenances unto the said T. P. R. S. and T. P. their Heirs and Assigns to the only proper and absolute use and behoof of them the said T. P. R. S. and T. P. their Heirs and Assigns for ever and the said A. B. and E. B. for themselves and every of them their and either of their Heirs Executors and Administrators and every of them do covenant and grant to and with the said T. P. R. S. and T. P. their Heirs Executors and Assigns and every of them by these presents in manner and form following That is to say that they the said A. B. and E. B. or one of them are or is at the time of the sealing and delivery of these presents lawfully joyntly or solely seized in their or one of their Demesns as of Fee of and in the said Manor of H. and of and in all and singular the said bargained Premisses and every part and parcel thereof with the Appurtenances of a good perfect and absolute Estate of Inheritance in Fee-simple without c. and unto the use of them or one of their Heirs and Assigns without any manner of Condition power of Revocation Limitation of Use or Uses Trust or other matter or thing whatsoever to alter change charge incumber impeach determine or make void the same And that they the said A. B. and E. B. or one of them have or hath at the time of the sealing and delivery of these presents and at the time of the execution of the first Estate hereby to be made and granted shall have full Power good Right and lawful Authority to Grant Bargain and Sell all and every the said Messuages Cottages Lands Tenements Pastures Feedings Hereditaments and Premisses before-mentioned to be hereby granted bargained and sold with their and every of their Appurtenances unto the said T. P. R. S. and T. P. their Heirs and Assigns in manner and form aforesaid and according to the effect of these presents And also that all and every the said afore-mentioned to be hereby granted and bargained Messuages Cottages Lands Tenements Pastures Feedings Hereditaments and Premisses and every part and parcel thereof now are and at all times hereafter shall and may be remain and continue unto the said T. P. R. S. and T. P. their Heirs and Assigns and every or any of them free and clear and freely and clearly acquitted exonerated and discharged or otherwise upon reasonable request well and sufficiently saved and kept harmless and indemnified by the said A. B. and E. B. their Heirs Executors or Administrators or some or one of them of and from all and all manner of former and other Gifts Grants Bargains Sales Estates Wills Entails Alienations Joyntures Right and Title of Dower Statutes Merchant and of the Staple Judgments Executions Rents arrearages of Rents Mortgages and of and from all other Charges Titles Claims and Incumbrances whatsoever And farther the said A. B. and E. B. for themselves their Heirs Executors Administrators and Assigns and for every of them do covenant and grant to and with the said T. P. R. S. and T. P. their Heirs Executors and Administrators and every of them by these presents That they the said A. B. and E. B. and either of them their and either of their Heirs and Assigns lawfully having claiming or pretending to have or which hereafter shall or may lawfully claim or pretend to have any Estate Right Title Interest Claim or Demand of in or to the said bargained Premisses or of in or to any part or parcel thereof by from or under them the said A. B. and E. B. or either of them their or either of their Heirs and Assigns shall and will from time to time and at all times hereafter at the reasonable request costs and charges in the Law of the said T. P. R. S. and T. P. their Heirs and Assigns make do acknowledge or cause to be made done executed acknowledged and suffered all and every such farther act and acts thing and things devise and devises assurances and conveyances in the Law whatsoever of the said Premisses as by the said T. P. R. S. and T. P. their Heirs or Assigns their or any of their Councel Learned in the Law shall be reasonably advised or required be it by Fine or Feoffment Deed or Deeds Inrolled or not Inrolled Recovery or Recoveries with single double or more Voucher or Vouchers or by any other lawful ways or means whatsoever for the better assurance and sure making of the said bargained Premisses and every part and parcel thereof with their and every of their Appurtenances unto the said T. P. R. S. and T. P. their Heirs and Assigns for ever c. A Letter of Attorny to deliver seisin A Lease of Copy-hold Land with the Lords Licence recited This Indenture c. Between A. B. of c. of the one part and C. D. of c. of the other part Witnesseth That the said A. B. by virtue of a Licence before the sealing and delivery of these presents by him procured and obtained of
else non-payment is not a Forfeiture 198 Surrender by a Copy-holder for Life to one in Fee is no Forfeiture What is a present Forfeiture without presentment 199 Heir beyond Sea shall not forfeit for not coming in upon Proclamation in Court 202 Wilful Forfeitures not relieved in Chancery 320 Where the Wife shall suffer for the Forfeiture of her Husband or not 211 Forfeiture as to cutting of Trees by Tenant for Life 207 208 Where Admittance is a Dispensation of a Forfeiture 217 Where Amerciament is a Dispensation of a Forfeiture ibid. Forfeiture purged by Release ibid. Where and what Acceptance is a Dispensation of a Forfeiture and where and what not 218 Where the Heir shall not take advantage of a Forfeiture in the Life of the Ancestor 219 The Lords Remedy for a Forfeiture 220 Bill in Chancery to reverse a Faux Judgment given in the Lords Court 326 What alienations shall be a Forfeiture 206 Forfeiture in Waste 207 By Rescous 216 By Inclosure 210 After a Copy-hold is dismembred from the Manor of what Forfeitures the Feoffee or Grantee shall take advantage 212 Where the Forfeiture of one Copyholder is the Forfeiture of another where Forfeiture of part shall be of the whole 214 215 G. By the Kings Grant of all his Demesn Lands Copy-hold shall not pass aliter in the case of another What things may be granted by Copy 78 Of voluntary Grants by the Lord 79 80 Disability of the Lords person no hindrance of the Grant 80 What Estate the Lord must have to enable him to make Grants 81 82 Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio 84 Grants by Tenant at sufferance or one that has a tortious Title not good 86 87 Copy-hold not to be granted by parcels 89 What amounts to a Grant 90 How Grants of a Copy-hold to be expounded 90 91 92 What shall pass in a Grant by the words cum pertinentiis 92 94 By what words in Grants Copy-holds shall pass or not 92 93 H. Honour what 311 Where the Heir shall be in by discent or Purchase 123 Heir before Admittance is not a compleat Tenant to all purposes Hariot Service and Hariot Custom the difference 237 238 What Custom for Hariots shall be good or not 239 Where and how Hariots shall be apportioned or not 240 Who shall pay an Hariot and when and when not Who shall have an Hariot 241 Pleading as to Hariot vide Tit. Pleading What shall be a good Avowry in conuzance for an Harriot in Replevin or a good justification in Trespass or not and how to be pleaded 244 I. Infant not bound by many Customs 21 If Infant Surrender he may enter at full Age 21 Infant may make a Lease without Licence and not forfeit 21 Surrender by Infant at five years old Custom to assign one to take the profits of a Copy-hold Infant Interruption in the Possession and in the Right 32 42 Faux Jugdment given in the Lords Court where relievable Copy-hold Lands are not within the Statute 11 H. 7. cap. 20. Of Joyntresses 254 The Lord to have the custody of an Ideot 17 K. Kings Grants favourably construed 32 King need not recite in his Grant that it is Copy-hold 23 Surrender to the King without other matter of Record where good 24 L. Lease 108 181 Custom to Lease without Licence may be good 51 52 Lease made before Admittance in what case good 54 What Leases made by a Copy-holder for years are a Forfeiture or not 203 When a Lease shall begin in point of eomputation and not in point of Interest 184 Lease of Copy-holds made by Tenant in Tayl ibid. Lease of Copy-holds made by Ecclesiastical Persons 186 Lease affirmed by acceptance 187 Lease of Free-hold and Copy-hold the Rent issues out of beth 187 In what respect a Lease not warranted by Licence or Custom is yet good in Law 189 Lease void in Interest and good by way of Estoppel 192 What shall be said a Covenant and no Lease and so shall not be a Forfeiture 206 Lease for years not warranted is no disseisin to the Lord 182 Licence Once a Licence to make a Lease and always a Licence What Licence and by whom granted shall be good or not 191 Licence taken as a confirmation 193 Licence pleaded vide Pleadings Copy-hold not within the Statute of Limitations 251 M. Manor the Original and Nature of it 6 Customary Manor what 7 What shall be said parcel of a Manor and what shall be said a severance 2 Manor not to be created at this day 4 A Manor in reputation 5 A Manor in gross 7 How the Lord may create a customary Manor 8 Severance of Copy-hold from the Manor what it operates What shall be said time out of memory 30 Copy-hold is within the Statute 32 H. 2. cap. 9. of Maintenance Manor by reputation how it will pass 7 How Copy-hold may be severed from the Manor and how not 11 N. Notice There must be notice of the Alteration of the Use and Estate or else there can be no Forfeiture for denial of Rent 197 No notice need where a Fine is certain aliter where it is uncertain 191 P. Priviledges of the Lord 17 Priviledges of the Copy-holder 17 18 Difference between Priviledges annexed to the Seigniory and Priviledges annexed to the Tenancy 19 Pleading vide Traverse Uncertainy in Pleading vide sparsim Pleading by an usitatum fuit where good or not 64 How a Copy-holder shall plead in making Title to a Copy-hold 271 272 Whether in Pleading the reasonableness of the Fine must be avered When and where a Licence is to be pleaded specially and when and where not 193 Grant of Copy-hold Land in Reversion must be pleaded as a Grant in Reversion and not as a Grant in possession nor by a per nomen 271 The Manor of a Copy-holders pleading Custom or Prescription 275 How a Prescription must be made by a particular Tenant at will ibid. The manner of a Copy-holders pleading Custom or Prescription for Common 32 Special Prescription to be pleaded in case of severance of the Copy-hold Tenement from the Lord 278 The manner of pleading when a Lease is to be answered which is set forth in the Avowry 280 Where the Action is brought as of a Lease at Common Law and one pleads a Lease of Copy-hold Land 281 Custom or Licence must be shewed specially ibid. How Lessee is to plead a Licence ib. How a Surrender is to be pleaded Pleading of Prescription by a Copy-holder to be discharged of Tythes 282 The Forms of pleading a Surrender vide Surrender 290 Grant 291 Common 292 Trees ibid. Way 296 Forfeiture 297 Pleading Custom or Prescription 273 Bar that the Lands are customary Lands 299 Pleading as to Harriots 242 Presentment 136 When to be made 137 If Surrendror or Cesty que use or customary Tenants dye before Presentment yet Presentment and Admittance may be afterward 138
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
his Heirs The Question was whether he should have Common still Per tot Cur. he should not Custom hath annexed the Common to his customary Estate which being determined and destroyed by his own act in making it a Freehold the Common is also destroyed and cannot continue without special words and the general words cum pertinentiis will not help Yelv. p. 190. Cro. Jac. 253. Marsham and Hunter's Case Noy 136. mesme Case This is a local Prescription not to the Land but 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 a customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land So was the Case of Forth and Ward where a Copy holder had used to take Estovers to repair his Hedges and the Lord granted to him the Freehold of the Copy-hold by the words of Grant unto him all the Lands Tenements and Hereditaments thereunto appertaining and thereto used and occupied It was resolved he should not have Common in the Land of the Lord 2 Brownl 209. Marsham and Hunter More n. 866. Forth and Ward the words cum pertinent do not create a Common A Copy-holder claims Common in another man's Land and the Lord Enfeoffs the Copy-holder of his Copy-hold Land he hath now lost his Common But if a Copy-holder hath Common in the Lords Wastes and the Lord Enfeoffs him of the Copy-hold with all his Commons the Common is not gone 1 Brownl 173. Lee and Edwards And all Pastures and Common whatsoever to the said Messuage or Tenement belonging or used or demised with the same and it his intent that a like Common shall be granted 2 Anderson 168. Wolredg's Case Abbot of F. was was seized of a Manor and there was a Prescription for Common in the Waste of the Manor as belonging to every Ancient Tenement King H. 8. granted the Manor to Sir J. G. which came to Sir T. G. who was Plaintiff in Trespass The Defendant justifies by an usitatum fuit That it had been there used time out mind that every Tenant for years of an Ancient Tenement and Close within the said Manor used to have Common of Turbary on the Waste of the said Manor and that the Tenement and Close he now hath is an Ancient Tenement and was granted to him with all Common appurtenant to the said Messuage and Close accepted or reputed as part parcel or member of the same And the Question upon a special Verdict was when the Lord of a Manor is seized of a Waste and a Tenant of an ancient Tenement prescribes to have Common in the Waste of the Lord afterwards the Tenement is severed from the Manor and granted for a Term to the Defendant with all Common appurtenant to the said Messuage and Close whether this Common that was before belonging to this Ancient Tenement shall pass to the Grantee Per Cur. This Prescription as it is here laid with an usitatum fuit Pleading by an usitatum fuit annexed to the Estate of a Termor is not good is not good It was agreed That if a Copy-holder doth purchase the Inheritance of his Copy-hold and afterwards grants this with all Commons belonging to the same The Common that was before used with the Copy-hold shall pass to the Grantee but the Pleading here is not good The beginning of this Common was by Grant and by permission of the Lord and this for the advancement of his Tenant and not by Prescription and no remedy he hath for this but only in Equity Per Williams a Termor may prescribe but not in his own name but in the name of his Lord That he hath had for himself and his Farmers c Had it been laid here with all Commons Profits used occupied and enjoyed with the Tenement by the Farmers this with an averment had been good but not as it is here the Grant is here with the usitatum fuit now here the usitatum est is annexed to the Estate of the Termor which is not good 1 Bulstr 17 18. 7 Jac. Grimes and Peacock 2 Brownl 222. mesme Case Lessee for years cannot alledge an Usage for every usitatum ought to go in one self same current not interrupted as in the Case of a Copy-hold but it might pass by apt words It was pleaded That all the Inhabitants in such an ancient Messuage ratione commorantiae Pleading Common ratione commorantie have used to have Common of Pasture in loco in quo c. 't is ill for in this word Inhabitants is included he which hath no Interest but Habitation only and he that hath no Interest cannot have Common 6 Rep. Gateward's Case My Lord Hobart's Reason is good Common is an Interest which must inhere in somebody and cannot be pleaded by way of Custom for the Inhabitants that are not permanent to prescribe Tenants in Fee must prescribe for Common c. in their own name and others that have Interest as for Life Years by Elegit at Will c. in the name of the Lord Gateward's Case 6 Rep. It was a Question in Roberts and Hoskin's Case Modern Rep. 74. and 2 Keb. 757. Sanders p. 324. Sola separalis pastura excluding the Lord is a good Custom Vaughan 251. North and Coe Whether a Custom for the customary Tenants to have solam separalem pasturam excluding the Lord were a good Custom Per Cur. it is notwithstanding this Prescription for the sole Pasture yet the Soil is the Lords and he hath Mines Trees c. And my Lord Coke is express in the point a man cannot Prescribe for sole Common but for sole Pasture he may As for the manner of pleading it Vide the Books cited Customs as to devising by last Will and Testament Vide infra Surrender to the use of 〈◊〉 mans last Will. CAP. IX Of custumary Incidents or collateral Qualities Of Copy-hold Estates and how to 〈◊〉 governed With the Illustration of seven particular Cases YOU may observe what has been beforâ— treated about the nature of Copy-hold Estates that amongst the rest of the Consâ—derations in that Chapter where the Copy-hold Estate is inheritable and the Land discendible That in such Case the Law shall direcâ— the descent according to the Rules and Maâ—ims of the Common Law as incidents to everâ— Estate descendible as it was in the Case of Uses When they had gained the reputation of Inheritances descendible the Common Law directed the descent of them and that there should be a possessio fratris of them as well as of other Inheritances So it is in Copy-hold Inheritances possessio fratris facit sororem esse haeredem Vide prius sub titulo Maxims But now such customary Inheritances shall not have by the Law any other collateral Qualities which do not concern descents of Inheritance which other
Per Cur. to take a Surrender and grant Land by Copy Act done by the Servant of a Deputy is not any judicial Act and the admitting of a Copy-holder is not any judicial Act for there need not be any Suitors there who are Judges and such a Court may be holden out of the Precincts of the Manor Per Cur. the Grant is good What Court may be held out of the Manor especially if the Lord of the Manor agree to it afterwards 1 Leon. 288. Lord Dacres's Case One is made Steward ad exequendum per se vel sufficien ' deputatum suum J. S. makes A. his Deputy hac vice to take a Surrender ad ulterius faciend c. it s a good deputation and though the authority was to take the Surrender absolute and he takes a Surrender upon a Condition yet its good by reason of these words Et ad ulterius faciend Cro. Eliz. p. 48. Burdets's Case The Kings Copy-holder is attainted of Felony whereby his Copy-hold Escheats the Steward may grant this over ex officio without any especial Grant yet it s his duty before he does it to inform the Lord Chancellor Treasurer and Barons 4 Rep. 30. Harris and Jay Surrender by a Deputy Steward not according to his Warrant Stewardship was granted to A. to execute the Office per se vel sufficien ' Deputat suum A. made a Deputation to M. ad capiend unam sursum redditionem of one J. W. and J. his Wife and to examine J. ea intentione that the said J. W. and J. might take back an Estate for their Lives the remainder over to J. B. in Fee M. took two several Surrenders from the Husband and Wife the remainder to J. B. in Fee upon condition to pay a certain Sum of mony c. Per Cur. The proceedings are well warranted by the Deputation aforesaid 1 Leon. p. 289. Burgess and Foster I can conceive this to be the same Case as the former and one will well help to explain the other If the Surrender and Re-grant is entred in the Roll of the Court dated to be holdâ—â— the second day of May and the Deputation bears date the third day of June after Per. Cur. This misentry of the date of the Court shall not prejudice the Party for this Entry is not matter of Record Vide ibid. The Kings Auditor and Surveyor for the County of N. appointed a Steward for one of the Manors illa vice The Kings Auditor and Surveyor cannot appoint a Steward hac vice He kept Court and granted Copy-hold c. their appointment is not good they have no authority to appoint Stewards the one being to take Accounts the other to survey Land and the Grant is void Things of necessity done by one who is but in a reputed Authority is good if they come in by presentment from the Jury or of necessity are good as the admittance of an Heir upon a presentment or admittance by a Surrender to an Use But acts voluntary Things of necessity by a reputed Steward good not acts voluntary as Grant of a Copy-hold is not good If the Steward diminish the ancient Rents and Services it s a void Copy If a Lord command a Steward that he shall not grant such Land by Copy Lord countermands a Steward if he grant it it is void Cro. El. 699. Harris and Jay 4 Rep. 38. mesme Case They ought to have Letters Patents of the Office of Steward Infant not to be Steward Infant is not capable of the Stewardship of a Manor March p. 41. Copy-holder moved the Court That the Steward might be ordered to bring in the Court Rolls to enable him to defend his Title but the Court denied it Stiles 128. Baron and Feme Copy-holder in right of his Wife surrender out of Court into the Hands of the Steward and she was examined by him and it was not proved that he was Steward by Patent Though it is not proved he is Steward by Patent c. yet Surrender out of Court into his Hands is good nor any special Custom to warrant it yet Per Cur. it was good Cro. Jac. p. 526. Smithson and Cage Declaration Pro Senescallo Cur. Maner ' impedit de Officio unde ei conces pro vita Rast Ent. 5.9 Co. 42. 1 Br. 192. Hern 232. CAP. XI What things way be granted by Copy Of Grants by the Lord legitimus Dominus pro tempore Disseisor Infant And in respect of the Lords person or Estate what shall be good or not Of Grants by the King Lord. VVho shall be said a Lord sufficient to grant Copies VVhat amounts to a Grant at what place to be granted Of Grants by the Copy-holder to the Lord. A Manor may be granted by Copy Câ— Lit. 58. b. i. e. a customary Manor and so a Manor may be parcel of another Manor Generally all Lands and Tenements with in the Manor and whatsoever concerneth Lands and Tenements may be granted by Copy as a Fair appendant to a Manor may be granted by Copy Co. Lit. 58 b. Underwoods without the Soyl may be granted by Copy to one and his Heirs and so may the Herbage or Vesture of Land The Lord granted to one and his Heirs subboscum in M. Wood annuatim succidend by four or five Acres at the least and then made a Lease of the Manor The Lessee cut Trees Copy-holder brought Trespass Lessee justifies with averment That he had left sufficient for the Copy-holder to cut down by four or five Acres yearly 1. Per Cur. Order of direction not of instruction Underwood may be granted by Copy if the Custom permit it 2. That the whole Wood passed and the words annuatm succidend is an Order only appointed for the cutting it and not to restrain the Grant More n. 480. Taylor and Hoe and Cro. El. 413. The Market of Crokeham in Sommersetshire is always demised by Copy 4 H. 6.21 cited in Hoe and Taylor 's Case More n. 480. and Cro. Eliz. 413. Hoe and Taylor The grant of Waste by Copy is void unless so granted time out of mind also were it good it would not bind the Successor in the Case of a Bishop 3 Keb. p. 124. Bishop of London and Rowe Tonsura Prati is grantable by Copy So Herbagia 1 Rolls Abr. 498. Of Grants by the Lord or voluntary Grants Copy-holder Copy-holds come to the Lord by Escheats Note or Forfeiture or Purchase What comes by Escheat or Forfeiture he may grant again H. 8. seized of a Manor in which are Copyholds Grants Copy-hold for Life generally It was a Quaere in March Rep. 206. Fulham's Case and not resolved whether this be a good Grant or not and Per Cur. The Grant is not void it never recites in any Grant of the King what is Copy-hold But the great Question was whether the Copy-hold was destroyed or not It was not there resolved but seems so But Downcliff and Minor's Case is
Manor after the Grant made hath stablish'd and fixed this firm to the Grantee So if the Copy-holders for Life used to have Common in the Lords Wastes or Woods and the Lord aliens the Wastes or Woods to another in Fee and after grants certain Copy-hold Lands or Houses for Lives such Grantees shall have Common of Pasture or Estovers notwithstanding the Severance for the Title of Copy-holder is paramount the Severance and the Custom unites the Common or Estovers which are but accessories and incidents so long as the House and Land being the principal is maintained by the Custom which customary Appurtenants are not pertaining to the Estate of the Lord for he is Owner of the Free-hold and Inheritance of the whole Manor but they are appertaining to the customary Estate of the Copy-holder after the Grant made 8 Rep. 63. Swain's Case Voluntary Grants made by Feoffee of Manor on Condition good Feoffee of a Manor upon Condition grants Land by Copy and afterwards the Manor becomes forfeited and the Feoffor entreth yet the Copy-hold Estate remains untouched so if Feoffee of a Manor on Condition to Enfeoff a Stranger and the next day makes a voluntary Grant by Copy this shall bind Coke Cop. Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio Nay though the Estate of the Lord in the Manor by Relation happen to be void ab initio yet if he grant by Copy during the continuance of his Interest it is good So Copy-holders Estates granted before a Divorce causa praecontractus shall be good So if a man espouseth the Lady of a Manor under the Age of consent and after she disagreeeth though the Marriage by relation was void ab initio yet Copy-holds granted before disagreement shall never be avoided So by Popham in Rowse's Case Owen 28. If a Manor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet such Copies of Surrenders are good Aliter where such Devisee makes new or voluntary Copies If the Lord of a Manor commits Felony or Murder and Process of Outlawry is awarded against him after the Exigent he granteth Copyhold Estates according to the Custom and then is Attainted these Grants are good though by relation the Manor was forfeited from the time of the Exigent awarded So if the Lord had been Attainted by Verdict or Confession If the Lord of a Manor acknowledgeth a Statute and then granteth Lands by Copy Grant after Stat. acknowledged and the Manor extended yet shall be good and after the Manor is delivered to the Conusee in Extent the Grant cannot by this be impeached Lease for years is made of a Manor and to be void upon breach of a Condition Condition is broken and Lessee before entry of the Lessor grants Estates by Copy these Grants shall never exclude the Lessor for upon breach of the Condition the Lease is void But in case of a Lease for Life or Grant in Tayl or Fee of the Manor on such Condition the granting Estates by Copy before Entry of the Lessor c. may be good for before his Title be executed by Entry the Tenant c. hath a lawful Interest to grant by Copy Coke Cop. p. 100 101. Sect. 34. But if a Parson before Induction grant Lands by Copy being parcel of a Manor which is Glebe Land this admitting binds not though he be afterwards Inducted Ibid. Tenant in Dower shall not avoid such Grant If the Lord of a Manor taketh a Wife and after that granteth Copy-hold Estates according to the Custom and dyeth and the Feme hath this Manor assigned to her in Dower yet she cannot avoid these Copy-hold Estates because the Copy-holders are in by a Title paramount to the Feme viz. by Custom Coke 8 Rep. 63. b. Swain's Case But if the Lords Heir make such assignment of Dower she may avoid them But in all these Cases before put observe these three Rules 1. These Grants must be according to the Custom of the Manor and Rents and Services customary must be reserved 2. Though it is not material what Estate or Interest the Lord hath Tenant at sufferance Grants c. shall not bind yet it must be an Estate or Interest and therefore Tenant Pur auer vie of a Manor is Cesty que vie dyes the Tenant continued possession of the Manor and held Courts and made voluntary Grants by Copy Per Cur. This shall not bind the Lord for he was but Tenant at sufferance who had not any Interest and so he was a Disseisor of the Manor More n. 369. Rouse and Artois 3. As to the Lords Grant of the Copy-hold Estate in respect of his Estate in the Copy-hold there the quantity of the Lords Estate is to be regarded for if a Copy-holder in Fee surrender to the use of the Lord for Life the remainder over to a Stranger or reserving the reversion to himself if the Lord will grant this by Copy in Fee whatsoever Estate the Lord hath in the Manor yet having but an Estate for Life in the Copy-hold no larger Estate shall pass than he himself hath Coke Cop. 96. What acts of the Lord in granting Copy-holds are not confirmed by Custom but only strengthned by the Power Interest and Authority of the Lord have no longer continuance than the Lords Estate continueth Therefore if a Tenant for Life of a Manor granteth a Licence to a Copy-holder to alien and dyeth the Licence is destroyed and the power of Alienation ceaseth Now as to the Quality of the Lords Estate he must be Legitimus Dominus he must have a lawful Estate in the Manor The Rule in Cokes 4 Rep. Clark and Pennyfeather's Case is universally true Grant by one that hath a tortious Title not Good If a Disseisor or Feoffee of a Disseisor or any other who had a tortious or defeazable Estate or Interest subject to the Action or Entry of another hold Court and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold such voluntary Grant shall not bind him that hath right when he hath re-continued the Manor by Action or Entry for to this intent the said Custom shall be understood of a Lord who hath a lawful Estate or Interest A Grant upon an usurped Title shall never bind the right Owner but that by Action or Entry he may avoid them for the Law will not support a Custom which shall work or tend to the disherison of the right owner If the Heir of a Disseisor who comes in by descent Grants any Copy-hold Estate it may be avoided by the Disseisee So of a Feoffee of a Disseisor who comes in by Title If Tenant in Tayl of a Manor discontinueth the Tayl and after the discontinuance granteth Copy-hold Estates and dyeth now the Discontinuee comes in under a just Title and shall enjoy against all the World during the
Deed of Purchase of all Commons appertaining to his said Messuage Per Cur. The Common which he had in the Copy-Estate was extinct because the Common appertained to the customary Estate which is determined and because now he claims from the Lord in whom the Common may not stand divided from the Land and Soil of the Wood but had there been special words in the Grant of the like Common as he had in the Common Before the Surrender it had been good as a new Grant of the Common More n. 915.866 Fort and Ward By what words in Grants Copy-holds shall pass or not What shall pass by the words All the Demesn Lands King Ed. 6. by Patent granted omnes terras Dominicales Manerij de W. It was adjudged That customary Lands held by Copy parcel of the same Manor shall not pass and yet they are in the Law parcel of the Demesns of the Manor but in the Case of a common Person they shall pass by those words 1 Rep. 46. in Alton Wood's Case But if a man grant all his Demesn Lands his Copy-hold Lands will not pass if he had other Demesns to satisfie the words of the Grant 2 Rolls Rep. 236. And if I grant all my Lands and Tenements in D. my Copy-hold Lands there pass not because they cannot pass by any such assurance Owen Upon a special Verdict King H. 8. seized in Fee of the Manor of D. granted by his Letters Patents to Richard Andrews and Peter Temple in Fee Inter alia omnia Messuagia terras tenementa redditus reversiones servitia hereditamenta sua in D. subscripta viz. totum illum annualem redditum quindecim solidorum alia ser vitia exâ—untia de terris W. K. ac totum illud Messuagium 6 vergatas terrae in D. in tenura J. D. Habend tenend omnia predicta Messuagia terras tenementa redditus reversione servitia hereditamenta in D. pred to the said Richard Andrews and Peter Temple and their Heirs The Question was whether this was a good Patent to convey the said Lands of the said W. R. being a Copy-holder pur vie Per Cur. It was a void Patent to convey the Lands of the Copy-holder to them for there is not any Land granted but the Rents and Services of W. R. which is intended Freehold and there being none such the Grant is meerly void Cro. Car. 21. Castle and Hobbs By Hobart if the King grant you his Demesns you shall not have his Copy-holds in Waste and Pretty's Case Winch p. 3. What things shall pass by Grant of another thing as Appurtenant or Incident or not If there be a Common appendant to a Copy-hold Tenement Appurtenant and the Lord makes a Feoffment of the Tenement with all Profits Commodities and Common to this Appurtenant Yet the Feoffee shall not have any Common for this was Appurtenant to the Copy-hold and not to the Freehold 2 Rolls Abr. 61. So if he Lease the Copy-hold Tenements for years with such words as before yet Lessee shall not have any Common for the reason aforesaid ibid. What passeth or not by the words cum pertinentijs There being a Copy-hold Messuage called Symonds whereto divers Copy-hold Lands were appertaining the said Messuage called Symonds cum pertinentiis being surrendred to the Lord and all his rights therein It was moved whether by that surrender the Copy-hold Land shall pass or only the said House with the Orchards Yards and Curtelage And Per Cur. The Copy-hold Land shall not pass by these words cum Pertinentiis and in this it is all one in case of a Copy-hold as a Freehold Cro. Jac· p. 526. Smithson and Cage By Feoffment of the Manor Copy-holds pass 3 Keb. 456. Copy-holder had Common of Estovers in the Lords Wood appurtenant to his Copy-hold and he purchased the Inheritance of the Copy-hold Common and had the words in his Deed of all Commons appertaining the Common is extinct had there been special words aliter More n. 915.866 Vide supra Cum Pertin Copy-holder hath Common in the Wastes of the Lord the Lord by Deed confirms to a Copy-holder Hab. to him and his Heirs with the Appurtenances the Common is extinct for he hath his Common in respect as he is customary Tenant 2 Brownl 210. Marsham and Hunter CAP. XIII Of Surrenders The nature of a Surrender General Rules and Diversities for the better Explication Of the Alienation of Copy-hold Estates in general and of selling Copy-holds by Commissioners of Bankrupts in particular Of Surrender in Court. By what words a Surrender will pass What amounts to a Surrender Of a Surrender out of Court Who may take a Surrender out of Court What Surrender out of Court is good or not Of Surrenders The Nature of a Surrender A Surrender is a giving up of the Land by the Tenant to the Lord according to the Custom to the use of him that is to have the Estate and is entred in this manner The form thus according to Mr. Littleton Ad hanc curiam venit A. de B. sursum reddidit in ead curia unum Messuagium c. in manus Domini ad usum C. de D. Haeredum suorum vel Haeredum de corpore suo exeuntium vel pro termino vitae suae c. Et super hoc venit paerdictus C. de D. cepit de Domino in ead Curia Messuagium praed c. Habend tenend sibi haeredibus suis vel sibi haeredibus de corpore suo exeuntibus vel sibi ad terminum vitae c. Ad voluntatem Domini secundum consuetudinem manerij faciendo reddendo inde redditus servitia consuetudines inde prius debita consueta c. Et dat Domino pro fine c. Et fecit fidelitatem c. Note The Surrender to the Lord is general without expressing any Estate for that he is but an Instrument to admit Cesty que use for no more passeth to the Lord but to serve the Limitation of the Use and Cesty que use when he is admitted shall be in by him that made the Surrender and not by the Lord. And therefore if Copyholder in Fee Surrender to the use of another for Life nothing more passeth from him but what shall serve the Estate limited to use 9 Rep. 107. Podger's Case A Surrender is in nature of a Deed Poll rather than of an Indenture and enures by way of limitation of use 1 Sanders 151. If a Copy-holder Tenant Surrender to the use of himself Habend to him and his Wife and the Heirs of their Bodies it seems this is void for it is in nature of a Grant at Common Law for she was not named in the Premisses 2 Rolls Abr. 67. Brooks's Case Vide infra A Surrender is to this purpose that the Lord should not be a Stranger to his Tenant A Surrender is but a Conveyance by matter of Fact and no higher and
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
this he is not a customary Tenant and so he can transfer nothing to another Yelv. p. 144 145. Wilson and Weddel Cro. Jac. p. 36. Joyner's Case The Heir may surrender the Reversion before Admittance Copy-holders Baron and Feme to them and the Heirs of the Husband Husband dyes the Heir may surrender his Reversion into the hands of two Tenants out of Court if the Custom be so before any Admittance and during the Life of the VVife and its a good Surrender for the Reversion was cast upon him by the Surrender before any Admittance 1 Rolls Abr. 499. Calchin and Calchin Surrender by whom By Infant An Infant who Surrendred his Copy-hold Land within Age may enter at his full Age without being put to any Suit for it Popham p. 39. Infant within Age surrenders to the Use of another it s not good in Chancery Mich. 9 Jac. Hughs and Carpenter Baron seized of Copy-hold in right of his Feme in Fee surrenders without his Wife By Husband of the Wives Land to the Use of J. S. in Fee who was Admitted Baron dyes VVife dyes the Heir of the VVife enters and makes a Lease and good this was not any discontinuance against the VVife to put the Heir to his Plaint in nature of a sur cui in vita That Action is given where Recovery by default is against the Baron and Feme Popham 39. Bullock and Dibler Copy-holder pur vie Surrenders to the Use of another By Copyholder for Life there can be no possibility of having it again if he survive for the Surrenderer is meerly in by the Lord and not by the Copy-holder but if a Copy-holder in Fee surrender to the Use of another for Life who is admitted he is in quasi by the Copy-holder and by his death the Copy-holder shall have it again Cro. Car. 204 King and Lord. Tenant for Life of a Copy-hold where the Remainder is over may surrender to the Lord 9 Rep. 107. Podger's Case A Feme Covert and J. S. are Tenants for Life of a Copy-hold By Joynt-Tenants and J. S. surrenders his moiety to the Husband of the VVife this is a severance of the Joynture so that he is Tenant in Common with his VVife 2 Rolls Abr. 88. Lane and Pannel Two Joynt-Tenants of a Copy-hold and the one surrenders his moiety into the Hands of the Lord to the Use of his last VVill and thereby deviseth it to another this is a good Devise because by the Surrender the Joynture was severed between them Co. Lit. 59. b. So if there are two Joynt-Tenants in Fee of a Copy-hold and the one Surrenders his part out of Court into the Hands of the Lord to the Use of his last VVill and by his last VVill afterwards deviseth it to the Use of a Stranger in Fee and after at next Court the Surrender is presented by the Surrender and Presentment the Joynture was severed and the Devisee ought to be Admitted to the moiety of the Land for now by relation the State of the Land was bound by the Surrender Co. Lit. 59 b. Constable's Case cited there Where a Copy-hold granted by a Disseisor c. shall be good and stand in force against the Disseisee and where not By Disseisor c. Tenant for Life Remainder for Life of a Copy-hold the Remainder man for Life enters upon Tenant for Life in possession and makes a Surrender nothing at all passeth hereby for by his Entry he is a Disseisor and hath no customary Estate in him whereof to make a Surrender Mod. Rep. 199. Bird and Keck Of the lawful Lord who can make Grants and admit upon Surrenders This diversity was unanimously agreed If Disseisor or Feoffee of a Disseisor or any other who has a tortious or defeasible Estate or Interest subject to the Action or Entry of another hold Court and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold such voluntary Grant shall not bind him that had right when he shall re-continue the Manor by Action or Entry for to this intent the said Custom shall be intended of a Lord which had a lawful Estate or Interest but if such Lord who had a tortious or defeasible Estate admit any upon Surrender made to the Use of another or give Admittance to the Heir upon a Descent such Admittance shall be good and within the Custom for such acts are lawful and quodammodo judiciales and which he may be compelled to do in a Court of Equity 4 Rep. 23. b. Clark and Penyfeather So every one who had a lawful Estate or Interest in a Manor Dom. pro Tempore both in Fee or Tayl or Dower or by the Curtesie or for Life or Years or as Guardian or Tenant by the Statute or Elegit or at Will Otherwise of Tenant at Sufferance For if there be Tenant pur auter vie of a Manor and Cesty que vie dyes and the Tenant continue in the Manor and hold Courts and makes voluntary Grants by Copy this shall not bind the Lessor aliter of Admittance upon Surrender or upon Descent 4 Rep. 24. Rous and Archer's Case such Grants shall not be avoided by disability of the person or defect of Interest or exility of the Estate of the Lords as at VVill sur condition c. 8 Rep. 63. Swain's Case Or whether it were granted by non compos mentis Infant Bishop Parson non sanae memoriae c. it is not material in Surrenders Vide supra in Tit. Lords Grants If a Copy-hold Escheat or come into their Hands during their time they may re-grant it reddendum the ancient Rents Customs and Services and this shall bind the Lord who had the Inheritance or Free-hold 4 Rep. ibid. So such Grant by Baron and Feme shall bind the VVife notwithstanding the Coverture So a Grant by a non compos mentis a Bishop Infant and so Feme Covert non sanae memorie Infants Successors of Bishops Parsons Prebends are bound by the said Custom it being that the Tenements sunt dimiss dimissib per Dom. Manerij pro tempore existen c. ibid. vide supra By a Feme Covert A Tenant out of Court cannot take a Surrender of a Feme Covert for that she is secretly to be examined by the Steward Tothil p. 108. unless by special Custom Sola secreta examinat The Surrender of a Feme Covert being so le examined shall bind her but whether such a Surrenderer upon her examination made before two Tenants of the Manor such Surrenders before them being used to be made be good was the Question in the Case of Erish and Rives Mich. 41 El. B. C. and Per Cur. by special Custom to warrant it it may be good By Infant Vide supra By the Husband of the Wives Land Quid operatur Feme Tenant for Life of a Copy-hold the Reversion being granted over to B. for Life Remainder to C. for Life cum acciderit post
the Lord M. with divers Remainders over with a Proviso That the Donees non facerent aliquid in nocumentum vel ex heredat haeredum suorum vel c. sed tantum pro junctura vel pro termino vitae vel pro annis vel ad voluntatem secundum consuetudinem manerij reddend antiquum redditum The said Manor consisted of divers free Rents amounting to 7 l. 15 s. Copy-hold Tenements held for Lives the customary Rent of which was 3 l. and Waste and Herriots The free Rents or Copy-hold Rents or Herriots were never devised before for Life or Years or otherwise A post mortem viri by Fine grants and renders the moiety of the Manor for 300 years rendring Rent amounting to the Free and Copy-hold Rents and 8 d. more payable at two Feasts whereas the ancient Rents were payable at four Per Cur. the Lease was void the Copy-holds ought to have been granted by Copy and not by Fine and the reservation at two days where the Rent was payable at four days before made the Grant void for its ad nocumentum haered and there can be no apportionment in that case for Copy-holds for Lives are uncertain and Herriots accidental When two Ferms are joyned together the entire Rent which is reserved out of both of them is a new Rent and not the accustomable Rent 5 Rep. 5. Lord Mountjoy's Case By whom made Ecclesiastical person If a Bishop let Copy-hold Land for Life rendring the ancient Rent it s not good because the Successor cannot Distrain the Copy-holder for Rent but if it be of a Manor to which a Copy-hold belongs its good Lit. Rep. 305. in Sheers Case Dean and Chapter of Worcester Lord of a Manor in jure Ecclesiae of which Manor H. G. was a Copy-holder for Life of Lands under the Rent of 8 s. 8 d. per annum payable Quarterly and Herriotable at the death of the Tenant the Copy-holds were by the Custom grantable for three Lives they demise the said Lands to H. G. and his Assigns for the Lives of R. J. and M. and the survivor of them renduring 8 s. 4 d. per annum at two Feasts Question was if this Lease were good or might be avoided by the Successor Per the Statute 13 Eliz. Cap. 10. It was resolved 1. The Lease was good though it was made pur auter vies and that the Occupants shall be punishable for Waste 2. Customary Demises are within this Law Customary demises are not in the Statute 13 Fl. cap. 10. for this Estate granted by Copy was in judgment of Law an Estate at Will and without doubt Lands which have been accustomed to be demised at will by those which have the Inheritance of the Land rendring rent are Lands accustomably let to Farm within the said Act. 3. The said Act of 13 El. doth not avoid the Lease if the accustomed yearly Rent or more be reserved and for that an Herriot is not a thing Annual nor a thing depending on the Rent it sufficeth if the Annual Rent be reserved 6 Rep. 37. Dean and Chapter of Worcesters Case Cro. Jac. 76. Baugh and Heyns mesme Case As to Leases by Bishops of Manors consisting of Copy-hold Lands and Services of Free-Tenants and reserving the ancient Rent vide 3 Keb. 372. Mod. Rep. 203. Threadneedle and Lynham Infant Copy-holder in Fee leaseth for years Infant without Licence by parcel rendring Rent Lease affirmed by acceptance at full Age he accepts the Rent being admitted to the Copy-hold and after ousts his Lessee Lessee brought Ejectment Judgment for the Lessee Per Cur. this Lease for years is no Disseisin to the Lord though it may be a Forfeiture and this Lease is not void but voidable and may be affirmed by acceptance Noy p. 92. Ashfield's Case Lach. p. 199. Vide Rolls Rep. 256. By a Copy-holder or Heir before Admittance vide Admittance As to Rents reserved Lands at Common Law and Copy-hold Lands are leased by one Indenture Lease of Free-hold and Copy-hold the Rent issues out of both rendring Rent the whole Rent shall issue out of the Lands at Common Law and not out of the Copy-hold But if a man leaseth Land part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the entry of the Disseisee the Rent shall be apportionted Moor n. 144. Term. Pasch 5 El. But the Law is not so for in Collins and Harding's Case Moor n. 723. the Judges were divided in Opinion about this very point But in Rolls 2 Abr. p. 426. it is resolved That this Rent shall issue out of the Copy-hold Land as well as out of the other Land for a Rent may be reserved out of the Copy-hold Land and this is such a thing to which one may resort for a Distress Collins and Harding's Case And this Case is farther Reported by Rolls 1 Abr. p. 234. If a man Lease for years Freehold Land and also Copy-hold Land by Licence of the Lord reserving a Rent and after grants the Reversion of the Free Land to another and the Lessee Attorn the Rent shall be apportioned for this waits upon the Reversion Rent apportioned vide Collins and Harding's Case also Reported in Cro. El. p. 600 622. The Rent issueth out of both and is not like to a Lease of Lands and Goods for all the Rent is there issuing out of the Lands and it is now in the Hands of the Grantee as one entire Reversion Pleading and he shall declare accordingly and although they be several Reversions yet he shall declare upon the truth of the matter Copy-holder by Licence of the Lord demised the same by Indenture to the Plaintiff for twenty years under the Rent of 25 l. per annum the Copy-holder surrenders the Reversion of the one moiety of the same Copy-hold to the Use of one N. W. to which he was admitted and then the Reversion of the other moiety to W. who was admitted Per Cur. the Surrender by the name of a Reversion is good though the Lease is by Indenture and not by Surrender Rent apportioned which if it had been so it had been derived directly out of the customary Estate for still it is the Lease of the Copy-holder and not of the Lord. Quaere if the Copy-holder in this case should forfeit his Estate the Lease would stand good against the Lord being by Licence And Per Cur. the Rent is to be divided by moyeties according to the halves of the Reversion and in this case it was resolved there needed no Attornment upon the Surrender for the Admittance settles the Estate Attornment Hobart 177. Swinnerton and Miller It was said by Hale Chief Justice That a Lease for years of Lands that are Copy-hold Lease of Copy-hold without taking notice that it was Copy-hold particularly without taking notice that this was Copy-hold this is good for the Rent of the Copy-holder and after
the Surrender and the devise only cannot transfer for such customary Estate 3. After the severance the Copy-holder shall pay his Rent to the Feoffee and other Services which are due without Admittance as Harriot c. But not Fine or Suit of Court After severance Forfeitures continue But such Forfeitures as were Forfeitures before the Severance as Feoffment Lease Waste are Forfeitures after 4 Rep. 24 25. In Lee and Boothby's Case Cro. Car. 521. The Question was If a Copy-holder in Fee surrender to the Lord of the Manor his Copy-hold Estate and the Lord makes a Lease for years of the Manor and of the said Copy-hold by the name of his Tenement called H. whether it was a determination of his Copy-hold Per Curiam it is not because when he lets the Manor it is included as parcel of the Manor the Manor being demised includes the Copy-hold as parcel of the Manor and the naming of the Copy-hold is surplusage But if he though he had been but Dominus pro tempore or for half a year though by parol had made a Lease for years of the Copy-hold by it self that had destroyed the Copy-hold for it was then during that time severed from the Manor and so could never after be demised by Copy Lease for years of a particular Copy-hold by name together with the Manor by the King hath not so extinguished that the Copy-hold though by the surrender of it it is parcel of the Manor in the King but that after such Lease the Patentee of the Reversion may regrant it as Copy-hold 1 Keb. 720. Act of the Lord with consent of the Tenant where it destroys it or not But the act of the Lord with consent and acceptance of the Tenant will destroy the Copy-hold otherwise it shall not prejudice the Copy-holder But in some sense the Copy-holder may assent and yet not be prejudiced as in Howard and Bartlet's Case Hob. 181. The Custom was Copy hold Estate may remain to some purpose notwithstanding the severance from the Freehold if Copy-holders for Life dye seized their Wives shall have this during their Widowhood and A. being Copy-holder for Life the Lord conveys the Freehold and Inheritance of the Copy-hold of A. by the procurement of A. to J. S. a Stranger and his Heirs during the Life of A. Remainder to B. the Wife of A. for Life Remainder to A. and after A. grants the Remainder to W. his Son after this B. the Wife of A. dyes and A. marries C. and dyes seized now though here appears the Copy-holders privity and consent in that he takes the Remainder in Fee and grants it over to his Son that it should be destroyed and though this Copy-hold Estate was destroyed before her marriage yet the viduity of C. is not extinguished for the Freehold being in J. S. during the Life of A. the Estate of A. was not so extinct but the Custom shall continue quoad her The Copy-hold Estate here remains notwithstanding the severance from the Free-hold and though the Remainder was in him and he granted it over yet he lived and dyed a Copy-holder Hobart p. 181. Howard and Bartlet 1 Rolls Abr. 510. Cro. Jac. 573. the same Case by the name of Waldee and Bartlet Copy-holder in Tayl accepts a Feoffment from the Lord it destroys not the Copy-hold so as to conclude his Issue Carters Rep. 6 7. 2. By the act of the Copy-holder If a Copy-holder accept a Lease for years of his Copy-hold Acceptance of a Lease by this his Copy-hold is destroyed whether it be immediately from the Lord or mediately as was Lane's Case 2 Rep. 16. b. The King seized of a Manor in Fee grants Copy-hold Lands parcel of this Manor to another in Fee by Copy of Court Roll according to the Custom of the Manor And after the King by his Letters Patents under the Exchequer Seal makes a Lease for 21 years to another of these Lands the Lessee grants his Term to the Copy-holder afterwards Queen Elizabeth reciting the Lease for 21 years grants the Reversion in Fee the 21 years expire and the Patentee of the Reversion enters upon the Copy-holder his Entry adjudged good for Per Cur. by the acceptance of the Term by the Copy-holder the Copy-hold Estate was determined as well as if the Copy-holder had immediately accepted a Lease for years of his Copy-hold The reason of the Extinguishment the reason is the same in both Cases A Copy-hold Interest and an Estate for years of one and the same Land may not stand together in one and the same person at one time without confounding the lesser and if one of them ought to be determined it ought to be the Copy-hold Estate Also they are of divers natures and so cannot stand together in the same person the Estate at the Common-Law cannot drown it being the more worthy than the customary Estate and the customary must Vide mesme Case in Anderson 1 Rep. 191. and 1 Leon. 170. So it was resolved in Hide and Newport's Case A Copy-holder in Fee took a Lease for years of the Manor the Copy-hold is extinct for ever and not only during the Lease Moor Rep. n. 330. Acceptance to hold the Land by Bill and not by Copy Copy-holder accepts to hold his Land by Bill under the Lords Hand and not by Copy this determines the Copy-hold 1 Anderson 199. Colman and Bedil If a Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed 4 Rep. 21. French's Case But such Lessee may re-grant the Copy-hold to whom he will for the Land was always demised and demisable If the Lord make a Lease for Life to the Copy-holder by parol this shall confound the Copy-hold if Livery be made otherwise not Latch 213. If there be a Lease for years of the Manor and one of the Copy-holders doth purchase the Reversion in Fee by this the Copy-hold is destroyed and the Lessee of the Manor shall oust the Copy-holder and hold the Land for the time Calth p. 97. By the Tenants Release to the Lord. By the Copy-holders Release to the Lord. If a Copy-holder releaseth to his Lord that extinguisheth his Copy-hold although it be contrary to the nature of a Release to give possession Hutton p. 81. Or to a Purchasor The Lord sells the Freehold interest of a Copy-holder of Inheritance unto another so as it is divided from the Manor and afterwards the Copy-holder releaseth to the Purchaser by it the Copy-hold Interest is extinct but if the Lord be disseised and the Copy-holder releaseth to the Disseisor Nihil operatur 1 Leon. 102. Wakeford's Case Cro. Eliz. 21. For if a Copy-holder is ousted and so the Lord is disseised and the Copy-holder releaseth all his right to the disseisor and dyes his Heir Enters and brings an Action of Trespass against the disseisor who pleads his Frank-tenement Per Cur. the Release is void the disseisor not being admitted
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
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.
Seigniory as suppose he is only for Life and he licenseth for 21 years and dies it s determined 2 Brownl 40. Petty and Evans In Ejectment The Defendant pleaded a Surrender of a Copy-hold by the Hand of F. then Steward of the Manor Issue was joyned absque hoc that he was Steward Per tot Cur. it s no Issue Pleading a Surrender how for the Traverse ought to be general that he did not surrender for if he were not Steward the Surrender is void So of a Surrender pleaded into the Hands of the Tenants of the Manor Cro. El. p. 260. Wood and Butts Pleads Prescription to be discharged of Tythes Copy-holders of Inheritance who held of a Bishop as of his Manor may prescribe That the Bishop and his Predecessors seized of the said Manor for themselves their Tenants for Lives Years and Tenants by Copy of Court Roll of the said Manor time out of memory c. have been discharged from payment of Tythes for their Lands parcel of the said Manor for this is a good Prescription for their Tenements are parcel of the Demesns of the Manor and this may commence upon a real composition of all the Manor 1 Rolls Abr. 652. The Case was thus A Parson sues a Copy-holder in the Spiritual Court for Tythes arising upon the Copy-hold Land he brought his Prohibition and suggests that the Bishop of Winchester Lord of the Manor whereof his Copy-hold is parcel and his Predecessors c. time out of memory c. for them their Tenants and Farmers have been discharged of Tythes arising upon the Manor and shews that he had been Copy-holder of the said Manor time out of memory c. and prescribes in his Lord the Bishop of Winchester's Name the Spiritual Court would not allow this Plea but Per Cur. a Prohibition was granted although here be a Prescription upon a Prescription Prescription upon a Prescription one in the Copy-holder to make his Estate good the other in the Bishop to make his Discharge good yet it was allowed for all Copy-holds are derived out of the Manor and it shall be intended That this Prescription had its commencement at such time when all was in the Lords Hands and the one Prescription is not contrariant to the other although both were from time whereof c. Prescription in the Lord ought of necessity to precede the Prescription in the Estate of the Copy-hold and the discharge of Tythes in the Lord which may well be in this case because he is a Spiritual person trenches to the benefit of the Tenant who is a Copy-holder for by this means it may be presumed that the Lord had greater Fines and Rents Yelv. 2. Croucher and Fryar which case is more largely Reported by Cro. El. 784. Otherwise a Copy-holder which is a Temporal person cannot prescribe in non decimando Prohibition granted out of B. C. against the Ordinary of G. and one Branch the surmise was That the Land out of which the Tythes were demanded is Copy-hold parcel of a Manor of which a Prior was seized in Fee and was also Parson imparsonee Union by which Union the Tythes were extinct Per Cur. the surmise is not good and a Consultation was awarded it was no good Prescription to discharge the Tythes Moor Rep. n. 356. Branches Case A Prohibition prayed upon a surmise that the Dean and Chapter of C. seized of the Manor and Rectory of M. and one G. a customary Tenant prescribes That every Tenant of his Tenement hath used to pay 3 s. 4 d. to the Lord who is also a Parson in discharge of his Rent and a fourth part of the Tythe of B. Per Cur. it s no good Prescription for the Parson cannot libel for the Rent nor the Lord for the Tythe Uncertain and non constat what each should have and the Parson must have a satisfaction or else there can be no discharge 1 Keb. 886 906. Wilkinson and Richardson Traverses Traversing the day of the Grant In Ejectment The Defendant entitles himself by Copy granted 44 Eliz. The Plaintiff by Replication intitles himself by Grant 1 June 43 Eliz. The Defendant maintains his bar and traverseth absque hoc that the Queen 1 June 43 regni sui granted the Land by Copy modo forma prout c. This Replication is not good for the day and year of granting the Copy is not material but only whether it were granted before the Copy made to the Defendant therefore he ought to have traversed absque hoc That the Queen granted modo forma prout c. and this is matter of substance and not aided the traversing of the day where it ought not is matter of substance for thereby he makes it parcel of the Issue which ought not to be Cro. Jac. 202. Lane and Alexander 1 Brownl 140. mesme Case In Ejectment The Defendant pleads the Land is Copy-hold parcel of the Manor of S. whereof the King was and is seised who by his Steward granted the same such a day to him in Fee Habend c. by vertue whereof he was admitted entred and was seized and so justifies The Plaintiff replies That long before the King had any thing in the Manor Queen Elizabeth was seized in Fee in Jure Coronae who by her Steward at such a Court granted the Land in question by Copy to him in Fee Habend c. secundum consuet c. who was admitted and entred Confessing and avoyding Per Cur. the Replication is good and the Plaintiff need not Traverse the Grant alledged in the Bar by the Defendant for the Plaintiff hath confessed and avoided the Defendants Title by a former Copy granted by Queen Elizabeth and so need not traverse and as no man can have a Lease for years without assignment no more can a man have a Copy without a Grant made in Court Cro. Jac. p. 299. Rice and Harrison 1 Brownl p. 147. mesme Case The Plaintiffs Replication is good without any Traverse for how can the Defendant have this when as the Plaintiff had it before as by his Replication appears for that his Lease being first in time avoids the Defendants Lease being the latter and therefore the Defendant in this case ought to have rejoyned and so to have traversed the first Lease but by his Demurrer to the Replication he hath confessed the Lease under which the Plaintiff claims mesme Case 2 Bulstrode p. 1. 6 Rep. Helliar's Case A man pleads a descent of a Copy-hold in Fee the Defendant to take away the descent pleaded That the Ancestor did Surrender to the Use of another Traversing the dying seized absque hoc That the Copy-holder died seized Per Cur. the Traverse is ill because that he traversed that which needed not to be traversed for being Copy-hold and having pleaded a Surrender of it Difference between that and at Common Law the Party cannot have it again if not by Surrender But if a man plead
Cap. Senesc del Manor al Court tenus 28 March grants al Plaintiff in Fee secundum consuetudinem le lieu in Question parcel del Manor Custom del Manor fuit pro chesun Tenant aver common en le lieu in Question per que le Plaintiff mit sa vache pur user sa common jesque c. Repl. per confession vel grant des custumarie Terres al Plaintiff mes ouster il replie que D. Cap. 7 May 8 Jac. demised al H. H. le dit Manor pur vies del A. sa feme H. son fitz J. sa file que un auter Close de Pasture nosme L. estreant custumarij terres 28 March 18 Jac. fuer grant per H. al Green in Fee Green 10 June fist Waste per succision de Timber Ash in le man 21 April 15 Jac. le Plaintiff ove auters del Homage fuit jure d'enquirer des choses enquirables deins le Manor le Plaintiff refuse a presenter le Waste pur que il forfeitur son Copy-hold le Seignior 12 July 15 Jac. enter le Def. come Bayliff a luy distreine pur damage fesant Rej. Quod protestand que Senescal ne done luy un charge de presenter le Waste que il nemy refuse a presenter ceo pro placito dic qd D. Cap. demise al H. prout devant que il grant al Green en Fee monstre Custome del Manor que chesun Ten poet crop lop arbores crescents sur leur customary Terres except Fruit Trees traverse le succision del Ash in le man la. Demur genÌ„al al Rejoynder Winch Entr. 931. al 934. Adjudged pro Quer sur gross default in Pleading the Forfeiture is alledged to be in May and the Court was holden in April before which was impossible Vide mesme Case Winch Rep. p. 63. Webb and Barlow Vide Winch Ent. 125. al 129. Custom that every Tenant had used to take Woods and Underwoods 2 Brown 350 251. 1 Brown 273 274. De Aquae cursu Prescriptur per seperales Dominos Manerii de aqua pro tenen custumariis Hern 255. De Chimin Way Pro domino Manerii habere viam c. ê‘ tenen custumariis trans diversa clausa c. Hern 72 711. 1 Brown 368. Prescription to have an Horse and Foot-way appertaining to a customary Messuage and Close over the Close newly assigned and the Lord of the Manor grants to Tenant for Life by Copy Defendant justifies as Servant to Tenant for Life for to use the way Replication de son Tort Demesn with a Traverse of the Prescription Rejoinder by maintainance of the Prescription and Issue upon this Winch 1093. Lock and Troublefield Bar in Trespass That every Copy-holder had an Horse and a Foot-way c. 2 Brown 248 249. De Inclosures Facere sepes fensuras clausi versus venellam ne averia tenen custumar ibidem evadant pasturam Hern p. 708. De Forisfacturis TrnsÌ„ Bar quod P. seisitus de maner grant custumar terres all Def. pur vie Repl Def. forisfecit terras per non residence per custom Rejoynd Def. fuit residens apud manerium non extra V. B. 157. TrnsÌ„ Bar per Franktenement Repl Terres sunt custumar grant al Def. in Fee Rejoynd quer forisfecit terras per succissonem arborum Sur maintenance de Replic Demur inde Co. Ent. 277 280. Similis Bar Replic Rej. quod quer forisfecit terras per decasum horrei Surrej Dominus expulsit quer dimisit aliis Horreum cecidit Quer reintravit Et travers quod quer fecit voluntarium vastum permittend horreu cadere Co. Entr. 280. Similes Bar Repl Rej. quer forisfecit terras per sectam Curie infactam Surrej Dominus expulit quer dimisit alij Cur tentur quer reintravit Et postea Curia tentur ad quam quer fecit defaltur Demur inde Co. Entr. 289. Des terres devises pur Cond broken Heir enter 1 Rep. 21. In Replevin the Defendant makes conizance as Bayliff to Sir Robert Chichester by Damage fesant Bar to the Conisance Sir Iohn Chichester Father to the said Sir Robert seized of the Manor of D. unde locus in quo est parcel and customary Lands in Fee granted by Copy to Geo. Allen in Reversion for Life Tenant in possession dyes Geo. Allen enters and the Manor descended to Sir Robert Geo. Allen espoused the Plaintiff and dyes The Custom of the Manor was That the Wife of every customary Tenant pur vie dying in possession shall have her Widows Estate by which her Husband being dead the Plaintiff enters and was seized for Life and put in her Beasts till the Defendant took them c. Replication the Defendant confesseth the bar as far as the entry of the Husband of the Plaintiff and the descent of the Manor to Sir R. But saith the Plaintiffs Husband such a day committed Felony by stealing a Mare and was Executed for this for which the Lord entred as forfeited Demur general and Joynder Winch Ent. 968. to to 970. Allen and Branch By Winch the Woman shall not have her Widows Estate without special Custom as in Gavelkind The Father to the Bough the Son to the Plough Similes Bar RepiÌ„ Rejoynd maintenance de franktenement traverse le grant per Copie Co. Entr. 280. Similes Bar Repl. Rej. quod quer forisfecit terras per Forgery del Roll de Customes Surrej Quer alij tenentes agreaverunt ponere consuetud manerij in scriptur traverse Forgery Co. Entr. 280. Forisfacttur pleaded pur fine insolutur Surrej quod finis non fuit rationabilis Demur ind Co. Entr. 645 647. Forfeiture de terme per tenant pur ans demise pur vie Plo. 188. Simile by Fine levied Co. Entr. 691. 1 Rep. 71. Hern 25. De terme pur felo de se Plo. 254. Rast Entr. 609. De Estate de tenant pur vie per alienation in Fee Ra. Ent. 65 208 398 647. 1 Rep. 107. Vet. Intr. 30 121. Per Recovery per fraud en Formedon Ra. Ent. 643. 1 Rep. 82. Bars per franktenement Repl. quod terre sunt cust bars que sunt customary terres c. TrnsÌ„ Bar quod C. seisitus de maner grant customar terres al D. de quo descend al Def. Repl quod maner descend quer qui fuit seisitus quousque transÌ„ travers quod terres sunt customar V.B. 153. Dower Dower Bar quod terres sunt Copy-hold grant per copie issint non-tenure Repl. Tenens est Tenens ut de libero tenemento Ra Ent. 231. Repl Bar quod F. seisitus in see prist al baron Def. qui est Tenant per le Curtesie Repl terres sunt customarie travers quod F. fuit seisitus in Fee Hern 681. TrnsÌ„ Bar quod terre sunt Liberum Tenementur Def. Rej. quod terre sunt custumar fuer dimiss quer per copiam Repl. per maintenance de frank-tenement traverse grant
c. is but a Conveyance to his Title and for that it was found that it was demisable in Fee and that it was demised unto him in Fee this is the substance of his Title and so sufficient Cro. Eliz. p. 431. Doyle and Wood. In Eject Fir. If the Jury find a special Verdict That J. S. was seized of the Manor of D. in his Demesn as of Fee in which Manor was a Copy-holder of the place where c. and commits Waste by cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters in the Manor in the place where c. for the said Forfeiture and was of this seized in his Demesn as of Fee and concludes si super totam materiam c. This is not a good Verdict because it is not found that J. S. died seized of the Manor and that this descends to the Lessor Seisin and descent as Cousin and Heir as his Cousin and Heir for it may be that J. S. aliened the Land and that the Father of the Lessor or the Lessor himself re-purchased this and that he was also Cousin and Heir to J. S. and although it be in a Verdict it shall not be intended that the Fee continued in J. S. at the time of his death and that he died thereof seized without finding it 2 Rolls Abr. 699. Cornwallis and Hammond Part found the Issue upon the whole not good In Replevin The Defendant justifies by reason of Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties are at issue and it is found that part of the Beasts were Levant and Couchant and part not this is found for the Defendant for the whole for the issue was upon the whole and the contrary is found 2 Rolls Abr. 707. Sloper and Allen. Presidents in Special Verdicts Quod Tenementa sunt custumaria dimissibilia per Copiam dimissio per Dominum ex traditione propria 1 Rep. 117. Chudleigh 's Case Sursum redditio admissio in feodo Co. Entr. 207. Simile in Tallio communis recuperatio inde Co. Entr. 206. Tenementa concessa per copiam la A. B. super vixit Co. Ent. 273. Consuetudo infra manerium de devisatione devisatio in haec verba Co. Ent. 124. Littera Attornat ' ad sursum reddend ' tenementa custumaria sursum redditio admissio superinde Coke Entr. 576 577. Et si sit sufficiens in Lege Manerium Tenementa ab antiquo discendebant 2 percenariis qui fecer ' partitionem de terris dominicalibus ac Tenementa Custumaria servitia remanser ' in communi Coke Entr. 711. Officium Seneschalli manerij execut ' per deput ' contentio inter 2 Seneschallos de Cur. Baron Tenend 9 Rep. 45. In Ejectment Jury find that the Lands are demisable by Lives in possession or reversion and that the Widow in possession held the Lands so long as she remained sole and chaste and that M. C. Widow was seized for Life durante viduitate the Lord grants the Reversion of the said Lands by Copy to R. C. the Son of M. for Life to commence after the death forfeiture or surrender of M. M. surrenders one moiety of the Premisses to R. The Lord dies discent of the Manor to C. S. his Cousin and Heir R. Tenant for Life of one moiety and M. Tenant in Free-Bench of the other moiety the Lord by Indenture demiseth to the Lessor of the Plaintiff for 99 years if he and J. and B. his Sons shall so long live to commence after the death and determination of the Estates of the said M. and R. and of the viduity of such person as shall be his Wife at the time of his death M. surrenders her moiety to R. R. dies seized of both moieties P. C. the Defendant his Wife is admitted she commits Fornication and had a Bastard Jury find the entry of the Lessor If the Lease shall commence before P. dies was the Question Winch Ent. 455. Jury found that the Messuage and Lands tempore quo c. tempore hors memory were custumary part of the Manor of B. a Prebend of S. demisable by Copy of Court Roll for one two or three Lives and that by the Custom of the Manor every Tenant for Life sole seized of any customary Estate for Life in possession may nominate one to succeed him to be Tenant to the Lord for Life and that the party nominated used to require his Admittance and pay such Fines as were taxed by the Homage Another Custom was That every customary Tenant sole seized in possession may cut Timber Trees c. and that Mason the Defendant being Copy-holder for Life 1 May 40 Eliz. named R. P. to be his succeeding Tenant They also find that Robert P. being Prebendary of the said Prebend and seized in Fee of the said Manor 20 March 40 Eliz. demised by Indenture the Manor of B. to Peter Hoskins for three Lives and by the said Indenture Bargains and Sells to him all the Timber Trees c. by which Indenture is a Letter of Attorny to make Livery and they find the Indorsement on the Indenture to this effect Midd. That J. B. one of the Attornies entred into part and made Livery Midd. That J. G. the other Attorny entred into part and made Livery The Livery made in the House of the Lord was Endorsed but it is not mentioned to be part of the Manor The Jury find the entry of Peter Hoskins and seisin for three Lives according to the Lease which aids the other Imperfections Verdict aided 1 Jan. 43 Eliz. Peter Hoskins demiseth to J. Hoskins Masons Tenement and Lands for 99 years March 3 Jac. Mason continuing customary Tenant for Life after his nomination aforesaid cut down 20 Trees off his Copy-hold upon which J. Hoskins 6 Jac. entred upon the Land and demised to the Plaintiff who enters upon Mason who re-enters and if his re-entry be lawful they find for Mason After non-suit one of the Defendants was dead this suggestion must be entred on the Roll. and if not lawful they find for the Defendant Winch Ent. 440. Rowls and Mason In Ejectment to try the Custom of E. of Copies for three Lives the Plaintiff was non-suit and one of the Defendants being dead Hales Chief Justice advised to enter a Suggestion on the Roll That one was dead or else the Judgment for the Defendant on the non-suit will be erroneous as to all 2 Keb. 832. Hawthorn versus Bawden CAP. XXXV Copy-holders relieved in Chancery or what things in respect of Copy-hold Estates are relievable in Chancery or not NOW I conceive it will not be impertinent but rather a thing well approved of to cite some Cases Resolutions and Decrees wherein Copy-holders have been relieved and what remedy the Chancellor will give in respect of Lords
and how they differ What Customs for Harriots are good or not Where they shall be apportioned and by whose Acts. Who shall pay Harriot or not and the Pleadings CAP. XXVI What Statutes extend to Copy-hold Lands and within what Statutes Copy-hold Lands shall be contained by Construction of Law without express words and what not and therein how Copy-holds shall be barred by Fine and non-claim c. CAP. XXVII Of Embleaments Who shall have them the Lord or the Copy-holder CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not CAP. XXIX Of Actions and Suits What Actions may be brought by the Lord and what Actions may be brought by Copy-holders or their Executors against the Lord or against Strangers in respect to their Copy-hold Estates and Priviledges CAP. XXX Of Copy-holders being impleaded and impleadable in the Lords Court and a Faux Judgment in the Lords Court and how and where to be relieved CAP. XXXI Of Declarations of for and concerning Copy-hold Estates how to be brought and laid and Presidents in what Cases they have been brought CAP. XXXII Of Pleadings The general Rules of Pleading as to Copy-hold Estates The different Forms of Pleading Customs and Prescriptions Of Pleading in reference to Common belonging to Copy-hold and when to be pleaded by way of Custom or by way of Prescription The manner of Pleading when a Lease is to be answered which is set forth in the Avowry Where in pleading the Commencement of the Estate must be shewed and by whom granted or not And how a Licence must be pleaded by the Lessee Prescription of Copy-holder to be discharged of Tythes how to be pleaded Of Traverses when how and where to be taken Forms of Pleading of Surrenders Admittances Estates in Fee Tayl for Lives or Years Pleadings of Presentments and Grants Presidents of bars by Commons Woods Ways Inclosures Forfeitures and all other Pleadings necessary for the Copy-holder to set forth his Title or defend it CAP. XXXIV Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not What shall be tryed by the Jury and what by the Court Rolls Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be tryed Venue CAP. XXXIV Of Special Verdicts Imperfect Custom not well found Failure of Prescription How the Custom must be found by the Jury Presidents of special Verdicts CAP. XXXV How and in what Cases Copy-holders have been relieved in Chancery Presidents of Conveyances respecting Copy-hold Estates and Presidents of Surrenders Grants Admittances Presentments Lex Custumaria OR A TREATISE OF Copy-hold ESTATES c. CAP. I. Of the Original and Nature of a Manor and of what it consists Of a Manor Real and by Reputation Of a Customary Manor Of Grants and Leases of Manors with respect to this Subject of Copy-holds and what shall be said Parcel of a Manor or what shall be said a Severance FOR the right understanding of the Law as to Copy-hold Estates it 's necessary to premise something of the Nature and Notion of a Manor upon which they depend as the Materia though Custom is the Form thereof And I shall say no more of Manors than what shall have a direct influence upon the Explication of the nature of Copy-hold Original of Manors As for the Original of Manors Take this brief Account out of Perkins 670. Horns Mirror Lib. 1. Cap. de Roy Alfred Fulbeck f. 18. Lambert verbo Thaine Bacon's Elements of the Law 41 42 c. The ancient Kings of this Realm who had all the Lands of England in Demesn that is in their own Hands or totally at their own disposal did grant a certain compass or circuit of Ground upon some great Personages with liberty to parcel out the Lands to other inferior Tenants reserving such Duties and Services as they thought fit with power to keep Courts where they might redress Misdemeanors within such their Precincts and decide Controversies of meum and tuum within their Jurisdictions these Lords and Noblemen performing such Services and paying and yielding such Rents as the said Kings by their Grants reserved These Grantees were called Barons and were such as came to Parliament and from thence it keeps the name of Court Baron to this day though in process of time by the Grants of such Barons these Lands and Manors came into the Hands of meaner Men by Purchase c. as it is at this day And according to this our Custom all Lands holden in Fee throughout France are divided into Feifs and Arrear-Feifs into Feifs or Knights Fees and Mesne Fees whereof the former are such as were granted by the King the second such as the Kings Feudatories do again grant to others Now by Justice Winch in his Argument in the Case of Rowles and Mason 2 Brownlow 195. Manors are divided into three sorts of Tenures 1. The first holds by Knight Service and this is for defence of the Lord. 2. The second holds by Socage and this is to Plow and Manure the Demesns of the Lord c. since turn'd into Rent 3. The third holds by base Tenure and these are at the will of the Lord and these were to do Services and some had greater Priviledges than others to encourage them to perform their Services as it is in Ireland at this day Out of these by length of time and Custom sprang up the Race of Copy-holders For the Name or Etymology of the word Manor Etymology some fancy it to be Manerium quasi Manurium from manuring the Ground and then it takes its Name either from the Lords Demesns which the Tenants are bound to Manure or from the Lands remaining in the Tenants hands and others with more probability think it to be derived from the French word Mesner to govern or guide because the Lord hath the government of the Tenants within his Jurisdiction But that I may come to the thing intended and to leave the flourishes of guess and fancy It is a Maxim common in our Books Of what a Manor consists Demesns what That a Manor consists of Demesns and Services As for the word Demesns Dominicum or Domainium it is taken it two senses It is most properly taken for those Lands which remain in the Kings hands and so all Subjects are excluded from being seized in Dominico and we have little of that now but ancient Demesn Lands which are such as were in the hands of King Edward the Confessor But in a sense less proper Demesn Lands may be said to be in the hands of an inferior Lord or Tenant and as my Lord Coke on Littleton f. observes the form of Pleading shews this difference for an inferior Lord or Tenant never pleads That he is seized in Dominico absolutely but qualified with this addition in dominico suo ut de feodo Pleading and the word Fee or Feif implies that his Estate is not absolute but depending on some superior Lord. So
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
4. Rep. 29. Bunting and Lepingwel 5. Copy-hold ought to be dimissa dimissibilis as it is in Murrels Case 4 Rep. vide infra Tit. Custom Yet this Rule is not Infallible For if a Copy-hold Land be in the hand of a Subject who is after preferred to Dignity Royal the Copy-hold is extinct for it is below the Majesty of a King to perform servile Services and yet after his Decease the next who hath right shall be admitted and the Tenure shall be revived in him 2 Siderfin 82. CAP. III. Priviledges of Copy-hold Estates 1. Priviledges of the Lord. 2. Of the Tenant 3. Priviledges of Infants Copy-holders 4. Of Copy-holds in respect of the Kings Prerogative and Priviledge BEfore I come to Treat farther of Copy-holds I thought it might not be amiss to set down the Priviledges of Copy-holders and Lords and Prerogative of the King that so the Student being well setled in these they need not be mentioned or explicated hereafter though they may lye here and there scattered in the following Cases Priviledges of the Lord. The Lord may upon Seizure of a Copy-hold maintain an Ejectment till the Heir come to be admitted 1 Keb. 287. Pateson and Danges The King shall not have the custody of the Land that the Ideot holds by Copy The Lord to have the custody of an Ideot for this is no more than an Estate at Will at Common Law and if the King should have the custody of the Land he would much prejudice the Lord. Yet alienation made of it by the Ideot after Office found shall be avoided Coke 4 Rep. 126. Beverly's Case Copy-hold Lands granted to three for the Lives of two if the Tenants pur auter vie dye Living cesty que vie the Lord shall have it for there shall no be Occupancy 1 Rolls Abridg. 511. Ven and Howel's Case No Occupancy The Lord shall have the custody and not the Prochein Amy. The Copy-holder is surdus mutus the Lord shall have the Custody and not the Prochein Amy for otherwise he should be prejudiced in his Rents and Services Cro. Jac. 105. Evers and Skinner The Lord is Chancellor in his own Court to dispose of the Estate when the Tenant leaves it uncertain Vide infra sub Tit. Customs in reference to Estates sparsim per tout If a Copy-holder surrender to the use of one and the Lord refuseth to admit him no Action of the Case lyeth against him so if such Copy-holder prays the Lord to hold a Court and he refuseth Where a Surrender is to be made to a Tenant of the Manor if he will not take such Surrender yet no Action of the Case lyes against him 1 Rolls Abr. 108. In what capacity the Lord stands in reference to the Copy-holder's Estate He is an Instrument of Conveyance upon Surrenders and a Conveyer himself upon voluntary Grants He is Chancellor in his own Court and may proceed by Bill vide infra Of the Priviledges of Copy-holders In this Chapter I shall sum up some general Priviledges of Copy-holders which lye scattered in the several Customs hereafter treated of A Copy-holder may make a Lease for a year without Licence of the Lord vide Lease Lease Copy-holders of a Manor may have Solam separalem pasturam in the Soyl of the Lord Sola separalis pastura and exclude him 2 Sanders 326 327 328. If a man be obliged in a Statute Staple Stat. Staple Elegit his Copy-hold Land is not extendible but aliter upon a Statute of Bankrupts vide Tit. Grant It s not extendible upon Elegit If a Copy-holder Lease for years by Licence of the Lord this is not extendible in the Hands of the Lessee Rolls Abr. 888. Picto's Case Copy-holder of Inheritance may dig for Mines in his Land So the Parson in his Glebe as it seems Siderfin p. 152. The Lord of Rutland against Gee per Hobart and Warburton Copy-holder may dig for Marle without any danger of Forfeiture Digging for Marle but he ought to lay the said Marle upon the same Copy-hold Land Winch p. 8. A Custom is that the Lord of a Manor may dig for Coals and open Mines in the Land of his Copy-holder Coals It was made a doubt in Goodrick and Gascoin's Case if Lessee of the Manor may have this liberty and whether such liberty can pass by Grant of the Manor without special words Latch p. 189. A Copy-holder may hedge and enclose but not where it was never enclosed before Winch p. 8. Note a difference between Priviledges which are annexed to the Seigniory and Priviledges annexed to the Tenancy The first the Lord may destroy but not the last Therefore If Tenant at Will be Out-lawed his Estate is determined Outlawry but a Copy-hold is not forfeited or determined by Outlawry Lit. Rep. 234. cited to be adjudged in 44 Eliz. Yet vide 1 Leon. p. 99. Where a Copy-holder is Outlawed the King shall have the Profits of his Copy-hold Lands and the Lord hath not any remedy for the Rent If the King grants a Manor in which are Copy-holders in Fee-farm Fee-Farm Rent the Lands or Goods of the Copy-holders are not liable to the Fee-farm Rent although the Free-hold is for the Copy-holders are elder than the Rent being by Prescription So Rent by Prescription If the King had a Rent by Prescription out of the Manor in which there are Copy-holders if the King had not used to Levy this upon the Copy-holds it seems he cannot charge them forasmuch as they are in by Prescription also M. 12 Jac. B. 2 Rolls Abr. 157. Assets Copy-hold Inheritance shall not be Assets to charge the Heir Popham 188. Copy-holder makes a Lease for years by Licence and dyes this shall not be Assets in the Hands of his Executors Popham 188. Copy-holder shall have Ayd of the Lord where the right of the Seigniory comes in question upon the Issue taken Ayd 21 H. 6.37 But where he hath Ayd of a Bishop and after the King hath the Temporalties he shall not have Ayd of the King for so the Plaintiff may be perpetually delay'd 21 H. 6.37.39 Priviledge of Infants Copy-holders Or Resolutions concerning Infants in respect of Fines Admittances barring Estates and being bound by Customs or not Custom of a Manor is That if a Copy-hold descends to any man that Proclamation shall be made at three several Courts that he shall come in to be admitted Infant not comprehended within the Custom of coming in after three Proclamations and if he come not in it shall be a forfeiture to the Lord yet an Infant shall not be comprehended within this Custom for he by intendment of Law is not at discretion to make his Claim 8 Rep. 100. Letchford's Case It seems to be a Rule in Law An Infant cannot be protected by the Law by his non-age in any Case but where his Right which he had while an Infant and descended
the Son to the Plow So the Custom that the Wife shall have the whole for her free Bench is against the Maxim of Common Law for Dower These Customs might have a reasonable beginning where they are not prejudicial to the Common-wealth nor to the present Interest of any particular person yet a Custom may be prejudicial to the Interest of a particular person and reasonable also where it is for the benefit of the Common-wealth in general as to make Bulwarks upon another mans Land in time of War c. But Custom which is contrary to the publick Good or injurious to a Multitude and beneficial only to some particular Person such Custom is repugnant to the Law of Reason and void ab initio and no Prescription can make it good therefore the Custom of a Manor was That no Commoner should put in his Beasts till the Lord had put in his and it was adjudged void 2 H. 4.24 For if the Lord would never put in his Beast the Commoners should lose their Common As to Customs being reasonable or unreasonable vide several more instances in the Argument of Rolls and Mason's Case 2 Brownl 86 88. Customs may be reasonable ratione loci Custom is Several particular Customs in several places where Copy-holder had Issue only Daughters the eldest shall have this for Life and after her death it shall go to the next Heir Male of the Father to him and his Heirs and if no such Heir then it shall Escheat to the Lord. Copy-holder dyes Borderers on Scotland his Wife hath it durante viduitate leaving two Daughters and during this time the eldest dyes The Question was if the second Daughter or the Lord by Escheat had the better Title Per Cur. 1. The Custom is good and the Estate which the Daughter had is an excrescent Estate and not properly a descent 2. She that was eldest at the time of the death of the Mother shall have it and not only Primogenita filia Siderfin p. 267. Newton and Shafto This Custom was good ratione loci for such Manor is bordering on Scotland where were frequent Invasions And Feme sole Merchant is good ratione loci Feme Sole Merchant London The Custom of the Isle of Man That one shall be hanged for stealing a Capon Isle Man but not for stealing an Ox is good In the Manor of Bemister in Dorset Bemister is this Custom That a Copy-holder ought to nominate his Successor otherwise the Land shall Escheat and it has been allowed to be a good Custom So the Manor of Taunton Taunton Dean That the Wife of the Copy-holder shall have the Inheritance of her Husband Siderfin p. 267. id Case The Custom of Millan in Norfolk is Millan in Norfolk If any Copy-holder will sell his Land and agree upon the Price at the next Court the next of his Blood and if he refuse any other of his Blood may have the Land And such like Custom there is at Ham in Middlesex Ham in Middlesex The next Clivener which is he that dwelleth next to him shall have the refusal giving as much as another will and he which inhabits on the East the first and then the South c. 2 Brownl 177. As for the other Rules of the validities of Customs as that they ought to be on good Considerations and beneficial to the Prescriber as Calthrop and Cokes Copyholder treat of they may be referred to the forgoing Rules Now you see there are three supporters of a Copy-hold Custom 1. Time and that must be out of the memory of Man so that Copy-hold cannot begin at this day 2. That the Tenements be parcel of the Manor or within the Manor 3. That it hath been demised and demisible by Copy of Court Roll Demised and demisible how understood for it need not be demised time out of mind by Copy of Court Roll but if it be demisible it is sufficient For Example If a Copy-hold Tenement Escheat to the Lord and the Lord keeps it in his hands many years during this time it is not demised but demisible for the Lord hath power to demise it again Coke Lit. 58. b. Customs of Manors are Disabling Enabling Disabling is That the Tenant by a particular Custom shall not be allowed to do that which he might by the general Custom of Manors As a man may sell Land to whom he will by the general Custom of Manors yet in some Manors by special Custom he must make an offer to the next of Blood Vide supra Customs ratione loci Enabling is where the Tenant by a particular Custom shall be enabled to do that from which he is restrained by the general Custom of Manors By the general Custom of Manors the granting of Copy-hold Land for more than one year without Licence is a Forfeiture yet in some Manors they may do it and it shall not be a Forfeiture Coke Copy-hold 79. Sect. 33. You will find Prescription mentioned in the ensuing Cases therefore it will be of good use a little to open the nature of Custom and Prescription and to shew how and wherein they agree and wherein they differ and also the difference as to Pleadings Custom Prescription and Usage are of great Affinity yet they differ thus Custom is where by continuance of time a Right is obtained concerning divers persons in Common Prescription is where by continuance of time one particular person obtaineth Right against another either a Person or Body Politick Usage is by continuance of time and an efficient cause of both Limitation is where a Right may be obtained by reason of Non-claim by the space of a certain number of years Calthrops Reading 1. Prescription is made in the Person and so the Pleading is That he and all his Ancestors c. Or he and all those whose Estate he hath time out of mind used to have Common of Pasture in such a place c. being the Land of some other c. as pertaining to the said Manor Custom is a Copy-holder of the Manor of D. doth plead That within the same Manor there is and hath been such a Custom timeout of mind used that all the Copy-holders of the said Manor have and used to have Common c. Coke Lit. 113. b. So Custom lyes upon the Land As infra manerium talis habetur consuetudo c. 8 Rep. Swain's Case And such Custom binds the Land as Gavel-kind Borough English c. Prescription ought to have a Lawful beginning not so of Custom So is Coke 6 Rep. Gateward's Case Prescription is alledged in the Person and a Custom ought always to be alledged upon the Land for every Prescription by common intendment ought to have a lawful beginning but it is otherwise of a Custom for this ought to be reasonable and Ex certa rationabili causa usitata but it need not to have an intendment of a lawful commencement as Custom to have Land devisable
or of the nature of Gavel-kind c. but by common intendment they may not have a lawful commencement by Grant or Agreement but by Act of Parliament Gatward's Case 6 Rep. So 4 Rep. 32. in Foyston's Case Prescription is personal and is always made in the name of a person certain and his Ancestors or of those whose Estate he hath But Custom is local and alledged in no person but that within a Manor c. is such a Custom and this shall serve for those which cannot Prescribe in their own name nor in the name of a person certain In Gateward's Case 6 Rep. Defendant justifies in Trespass by Custom That all the Inhabitants in such an Ancient Messuage within the Vill of D. ratione commorationis have used to have common of Pasture in loco in quo c. this is ill pleaded for in this word Inhabitants are included Tenants in Fee for Life Years by Elegit at Will and also he that hath no Interest but Habitation only Now Tenant in Fee ought to Prescribe in his own Name Tenant in Fee in whose name to Prescribe in whose name others and the others which have Interest in the name of the Lord and he that hath no Interest cannot have Common But there is no one that hath an Interest be he Tenant at Will but by good Pleading he may enjoy it Now Copy-holder in Fee or for Life may by Custom of the Manor have Common in the Demesns of the Lord of the Manor but then he ought to alledge the Custom of the Manor to be Quod quilibet tenens customar cujuslibet anti qui Mesuagii Custumarii c. How a Copy-holder shall plead and not Quod quilibet Inhabitans infra aliquod antiquum Mesuag Custumar c. And a Prescription for the Inhabitants to be discharged of Tythes by a Modus or Freemen of London to be discharged of Wharfage c. must be pleaded by way of Custom When a thing must be pleaded by way of Custom and when by way of Prescription and not by way of Prescription because the Inhabitants or Freemen cannot Prescribe in their persons and therefore are allowed to lay a Custom for their Discharge and the nature of the things is not changed but remains still a Prescription in his kind though it be allowed to be pleaded by way of Custom for necessity sake And in Gateward's Case a thing lying properly in Prescription as Common did in that Case being an Interest which must inhere in some body Common for Copy-holders in the Lords Soyl must be pleaded by a Custom in the Soyl of another by Prescription cannot be pleaded by way of Custom as there they would have made it for Inhabitants that are not permanent to Prescribe but yet Common for Copy-holders in the Lords Soyl is allowed to be pleaded by Custom for necessities sake whereas in the Soyl of another it must be laid by Prescription in the Lord and yet the nature of both is a Prescription but a matter of discharge may be laid by way of Custom for that is not an Interest but an Exemption thus that great man my Lord Hobart p. 86. in Day and Savage his Case My Lord Coke in the Argument of Rowls and Mason's Case makes four differences between Prescription and Custom 1. In the beginning pugnant ex diametro for nothing may be good by Prescription but that which may have beginning by Grant 2. Prescription is incident to the Person and Custom to some Place and holds place in many Cases which cannot be by Grant As Lands may be devised by Custom So Gavel-kind and Burrough English c. which cannot have their beginning by Grant But Prescription and Custom are Brothers and ought to have the same Age and Reason ought to be the Father and Congruence the Mother and Use the Nurse and Time out of Memory to Fortifie them both 3. They vary in Quality for Prescription is for one man only and Custom for many if all but one be not dead 4. They vary in Extent and Latitude for Prescription extends to Fee-simple only but Custom extends to all Interests and Estates whatsoever as appears by the Pleading Prescription that a Copy-holder of Inheritance may sell the Trees is not good but such a Custom is good Tenant in Tayl for Life or Years cannot Prescribe in a Que Estate nor against the Lord in his Demesns Who may prescribe in a Que Estate or not but they ought to alledge the Custom and against a Stranger they ought to Prescribe in the name of the Lord 2 Brownl 198. In a Manor the Custom was That every Copy-holder for Life had Estovers for Fuel c. in the customary Lands Now if the Lord aliens the Woods c. in Fee and after Grant Copy-hold Lands and Houses for Lives the Grantees shall have Common of Estovers Pasture c. notwithstanding the Severance but after such Severance of the Waste or Woods Common is due to the Copy-holder notwithstanding Severance by the Lord and how to be pleaded the Copy-holder when he would entitle himself to Common or Estovers the Copy-holder shall not plead generally Quod infra Manerium praed talis habetur c. consuetudo c. for after the Severance this Waste or Wood is not within the Manor but absolutely divided from it but he shall plead That until such a time viz. before the Severance Talis habebatur a toto tempore c. consuetudo c. and then shew the Severance as in Murrel's Case 4 Rep. So he must do where the Lord aliens the Freehold and Inheritance of the Copy-holder Swain's Case 8 Rep. 2. It is said a Prescription goeth to one man and a Custom to many 1 Brownl Rep. 133. in Rowls and Mason and yet in Foystons Case 4 Rep. the Custom for Common may be applied to one single Copy-holder 3. The Allegation of a Custom shall serve when it is referred to a thing insensible as that such Lands are devisable c. Foystons Case There is nothing more common than for the Lord to Prescribe for his Tenants by Copy in another mans Land whereas if it be laid in his own it shall ever be laid by Custom Hobart p. 286. Roberts and Young There is a difference between a Prescription for Freehold Land and for Copy-hold Land for Custom which concerneth Freehold Difference between a Prescription for Freehold Land and for Copy-hold Land ought to be throughout the County and cannot be in a particular place 45 Ass but Precription concerning Copy-hold Land is good in one particular Cro. El. p. 353. Taverner and Cromwel 4. A Prescription must be in a thing done and not in posse therefore a Custom that Quaelibet femina vira cooperta poterit devisare her Copy-hold Inheritance to her Husband is not good 3 Leon. 83. Skipwith's Case To Customs and Prescriptions these two things are inseparable Incidents viz. Possession or Usage Interruption
may cut Trees and sell them by Custom That Copy-holder in Fee may cut Trees and sell them at his pleasure aliter 〈◊〉 a Copy-holder for Life Rook and Higgins's Case Ibid. Queen Eliz. Seized of the Manor of H. i◠Fee demiseth the same to J. W. except Omnibus boscis subboscis arboribus maremiis c Habend for twenty one years He 35 Eliz. Assigns his Interest to J. P. and others Queen Eliz. dyes King James grants to F. S. and W. reversionem praed ac premissa sic ut prefertur except to them and their Heirs the Lessees Attorn afterwards F. and W. by Deed release to S. and his Heirs And at a Court held by the Lessees their Steward grants by Copy to W. B. Def. certain of these Copy-hold Lands on which Oaks and Ashes grew for term of Life secundum consuetudinem Manerij and that there is such a Custom That every Copy-holder Tenant for Life used to take all Trees growing upon his Copy-hold to be employed for Fuel Bounds Fences Grantee by voluntary Grant shall have Trees though they are severed by an Exception The doubt was in as much as the said Lessees hold the Court by virtue of the said Lease of the Manor out of which Lease the said Trees were excepted if the Tenant may shroud them c. Per Cur. 1. Notwithstanding the Severance by the Exception and notwithstanding the Tenant comes in by Voluntary Grant for Life yet such Grantee shall have the Estovers for the Estate of the Copy-hold is not derived out of the Lord And so though the Waste be aliened in Fee by the Lord and so severed who is but an Instrument and though the Grant be new yet the Title to the Copy-hold is ancient 2. When the Copy-holders for Life have used to have Common or Waste or Estovers or any other Profit apprender and afterwards the Lord alien the Waste Woods c. in Fee and after grant certain Copy-hold Houses and Lands for Lives such Grantees shall have Estovers c. notwithstanding the Severance for the Title of Copy-hold is paramount the Severance 8 Rep. Swain's Case 63 64. 2 Brownl 231. mesme Case Vide infra What 's included by Timber Trees If a Copy-holder by the Custom cut down Timber-Trees for reparations he shall have the Trees Lop Top and Bark and though he cannot repair with the Tops and Bark yet he may sell them towards defraying the charge in repairing 3 Bulstr 281. Sandford and Stephens Where Copy-holder by Custom may not Fell and Sell Trees but take the Shrouds of the Trees for Fuel if the Copy-holder by force of the Custom shrouds the Trees and the Lord takes the Body of the Trees Copy-holder may bring Action of the Case against him Goswell's Case cited in Ford and Hoskins Case Rolls Rep. 196. To cut Timber for repairs to what that extends The Custom is for Copy-holders of Inheritance to cut Timber for Repairs he nor his Lessee cannot employ Trees fell'd with the Wind to any such use in regard that hereby his special property ceaseth much less can Lessee or Copy-holder for Life by any such Custom take Trees 1 Keb. 690. Custom for the Copy-holder to cut down all the Trees Copy-holder for Life by the Custom hath power to name a Successor such Copy-holder may cut and sell all the Trees growing upon the Copy-hold A bare Tenant for Life cannot be warranted by Custom to do such an act Powel and Peacock's Case yet here he had a greater Estate than for Life for he hath power to make another Estate for Life 2 Brownl p. 192. Rolls and Mason In this Case which was well argued by the Judges in 2 Brownl 195. There were two Customs 1. That a Copy-holder for Life may name his Successor 2. That such Copy-holder may cut down all the Trees growing upon the Copy-hold Lands The first Custom was adjudged good and reasonable and the second was adjudged void Copy-holder may justifie cutting Boughs for House-bote Hedge-bote Cart-bote c. To sell Trees 2 Brownl p. 329. Heydon and Smith But Tenant by Copy of Court Roll cannot make Waste nor cut Trees to sell but for his benefit in repairing his House If a Copy-holder for Life cuts down Timber Trees the Lord may take them If under Lessee for years of a Copy-holder cuts down Timber it shall not be a forfeiture of the Copy-hold Estate Stiles p. 233. A Copy-holder may prescribe to have the Toppings of Trees for Fire-bote and Hedge-bote Uncertain Pleading but the Prescription was to cut ramos aliquarum arborum which is uncertain if omnium arborum it had been well Noy p. 14. Cross and Abbot Presidents of Customs as to cutting Wood and Trees Quod tenentes custumarii mes habuer communiam estoveriorum in solo alterius solvendum annuatim 2d Dyer 363. Quod tenentes custumar in feodo succidant arbores ad libitum Cok. Entr. 284. Ub. 130. Simile 1. Br. 252. Quod tenentes custumarii amputent pollingers 13 Rep. 67. Quod tenen custumar repararent sepes in t terras custumar boscum per lignum capiend in bosco 1 Leon. 313. Quod tenentes custumarii usi fuer amputare arbores pro sepiment focali succidere arbores pro reparatione domorum per assigna ' Hern 226. CAP. VIII Customs as to Commons and where Severance shall not prejudice And Pleadings in such case THE Custom is that Copy-holders for Life have used to have Common in Waste or Estovers in Wood or any other profit appendant in parcel of the Manor after the Lord aliens the Waste Woods c. in Fee and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Estovers Common c. notwithstanding the Severance Severance by the Lord shall not prejudice the Common of Estovers for the title of Copy-hold is pararamount the Severance 8 Rep. 63 64. Swain's Case 2 Brownl 231. mesme But after such Severance the Copy-holder when he would intitle himself to Common or Estovers he shall not plead generally Quod infra manerium tali◠habetur Pleading c. consuetudo for after the Severance the Waste or the Woods are not within the Manor but absolutely divided from it but he shall plead That until such a time viz. before the severance talis habetur a toto tempore c. consuetudo c. and then shew the Severance mesme Case Where Copy-hold is extinct the Common is lost though the word cum pertin be in the Grant Common which was first gained by Custom and annexed to the customary Estate is lost when the Copy-hold is extinct and infranchised for Common is not in its own nature incident to a Copy-hold Estate but a collateral interest gained by usage therefore Copy-holder of a Messuage and two Acres of Land for Life had Common in the Lords Waste the Lord grants and confirms the said Copy-hold Messuage and Lands cum pertinentiis to him and
Life of Tenant in Tayl yet his Interest being determined by the death of Tenant in Tayl Grants made by whom shall be avoided the continuance of the Possession is a Tort to the Heir and upon his rcovery in a Formedon in the Descender he shall avoid these Grants So in cases of alienee of a Manor whereof a man was seized in jure Uxoris making Grants may be avoided after his death by the Feme So Lessee for years of Tenant for Life of a Manor So by a Tenant at sufferance as Tenant pur auter vie who continues in after the death of Cesty que vie Vide supra Rous and Artois Case 4 Rep. 24. mesme Case By Lessee of a Manor Lessee for years of a Manor grants a Copy-hold in Reversion and before the Reversion happen the Term is expired the Grant is void So if such Lessee surrenders his Term and then before his Lease should have ended in point of Limitation the Reversion falleth yet the Grantee shall not have it Infant One that hath in present a Lawful Estate or Interest in a Manor defeasable upon breach of Condition Enters he may make Grant by Copy before such Entry and it shall be good If Infant infeoff me of a Manor though he may enter upon me at his pleasure yet Grants made before his Entry shall not be avoided by any subsequent Entry vide supra Guardian in Socage may hold Courts and grant Copies not the Bayliff of a Manor A Guardian in Socage may hold Courts in his own name and may grant Copies for he is Dominus pro tempore and hath interest in the Land but a Bayliff of a Manor hath no interest therefore he cannot make Grants and Copies but the Guardian hath interest Provisione Legis but so as to be accountable for Fines Owen p. 115. Shopland and Radlen Grants of Copies in Reversion The Lord of a Manor for Life or a particular Tenant having interest in the Manor might grant Copies in Reversion although they were not executed in the Life of the Grantor More n. 292. Sir Peter Carew's Case 236. contra So a Tenant in Dower of a Manor may grant Copy-hold parcel of that which she hath assigned in Dower in Reversion Habend post mortem A. P. though it was doubted in the Earl of Arundel's Case and the reason is the Custom For it is said in Gay's Case Cro. El. p. 661. There is a Custom alledged That Dominus pro tempore may demise for one two or three Lives Copy-hold not to be granted by parcels in Possession or Reversion But one who hath a particular Estate in a Manor cannot grant a Copy-hold by parcel or demise part and retain the residue himself If a Feme be indowed of several Copy-hold Tenements she cannot grant part of them by Copy in possession or Reversion per Popham ibid. Vide mesme Case 1 Rolls Abr. 499. In some special Case an Estate may be granted by Copy Where a Grant may be good by one who is not Dominus pro tempore by one that is not Dominus pro tempore nor that hath any thing in the Manor as if the Lord of a Manor by his Will in writing deviseth That his Executors shall grant the customary Tenements of the Manor according to the Custom of the Manor for the payment of his Debts and dyeth the Executor though he hath nothing in the Manor may make Grants according to the Custom of the Manor Co. Lit. 58. b. At what place the Lord may Grant The Lord of a Copy-hold Manor may himself grant a Copy-hold at any place out of the Manor 4 Rep. 26. b. Melwich's Case What amounts to a Grant The admittance of the Lord amounts to a Grant to him who had a Title Aliter if it is to him who was in by wrong as by disseisin 4 Rep. 22. Winch Rep. 67. Hasset and Hanson Grant by the Copy-holder to the Lord. Though a Copy-holder may not convey his Copy-hold to a Stranger without Surrender and Admittance yet he may grant his Estate out of Court to the Lord of the Manor by Bargain and Sale for the Custom is not between the Lord and his Tenant but between themselves only Winch Rep. p. 57. Hasset and Hanson A Copy-holders Release to the Lord is a good Release 1 Keb. 808. CAP. XII Exposition of Grants By what words in Grants Copy-hold shall pass or not What things shall pass by Grant of another thing as Appurtenant or Incident A Copy-holder of a Manor which had Common by Prescription in sixty Acres parcel of the Demesns of the Manor Escheated and the Lord by Deed granted it to another in Tayl Per nomina c. communiarum quarumcunque dicto Messuagio sive tenemento spectan sive in aliquo modo pertinen vel cum eodem Messuagio dimisso usitat Though the ancient Common is determined by unity of possession in the Lord upon Escheat yet revived by a new Grant and by what words The Question was whether by these words the Grantee shall have Common in those sixty Acres Per Cur. The Donee in Tayl shall have such Common as the Copy-holder had But the ancient Common which was by Prescription is determined by unity of possession in the Lord but the Grant enures as a new Grant of the same Common As a Grant to Islington of the like Liberties which London hath is a new Grant of the like Liberties Cro. Eliz. p. 794. M. 42 Eliz. B. R. Worledge and Kingswel If the Lord of a Manor be seized of a Copy-hold Estate and grants this to another Nothing passeth to one named in the Hab. that is not named in the Premisses Hab. to him and his Wife and to the Heirs of their Bodies the Wife shall take nothing by this Grant because she was not mentioned in the Premisses and here is not any Surrender precedent to direct the Grant Where a Grant shall be expounded as a Grant at Common Law but it passeth only by the Grant and so it ought to be expounded as a Conveyance at Common Law So if a Copy-hold Tenant Surrender to the Use of himself Habend to him and his Wife and to the Heirs of their Bodies it seems that this is void for it is in nature of a Grant at Common Law 2 Rolls Abr. 67. Brooks and Brooks But in Surrender aliter Vide infra Tit. Surrender Copy-holder in Fee Surrenders to the Lord ad intentionem That the Lord shall grant this again to him for Life the remainder to his Wife until his Son shall come at full Age and after to his Son the Copy-holder dyes and after the Lord executes it to the Woman Per Cur. This Interest to the Wife is a Term Dyer 251 259. By cum pertin what passeth Copy-holder had Common of Estovers in the Lords Woods appurtenant to his Copy-hold and he purchased the Free-hold of Inheritance in the Copy-hold and had words in his
the Surrenderer should have a particular Estate in him without a Donor or Lessor which by the Rule of Law cannot be March Rep. 177. Bambridge and Whitton therefore Noy p. 152. is not Law Vid. 1 Roll Rep. 135. CAP. XV. Constructions of Surrenders as to Limitations of Remainders and Reversions Of Contingent Remainders Where the Heir shall be in by Descent or Purchase Of a Surrender to the Vse of ones last Will and how to be Construed Surrender upon Condition or Contingency Of Surrender before Admittance Surrender by whom to whom by Feme Covert Countermand of a Surrender What Remedy to force a Trustee to Surender Construction of Surrenders as to Reversion Remainder Limitation What shall be good to pass by the Name of a Reversion or not Surrender by the name of a Reversion COpy-holder by Licence of the Lord demised the Copy-hold to the Plaintiff for twenty years by Indenture rendring Rent the same Copy-holder surrendred the Reversion of the one moity to A. and of the other to B. and they were admitted Per Cur. The Surrender by the name of a Reversion was good in this Case though the Lease was not made by Surrender which had then been directly derived out of the customary Estate but by Indenture for it is still the Lease of the Copy-holder and not of the Lord and the Rent will be divided by moities Husband seized of Copy-hold Land in the right of his Wife who had the Fee surrendred the Copy-hold Land by the name of a Reversion after the death of the Husband and Wife the Surrender is void for by that pretence there shall be a particular Estate left in the Wife and also in the Husband One cannot leave a particular Estate in himself whereas the Husband had nothing before which cannot be And when one is seized in Fee he cannot by any matter in Fact give away the Inheritance after his death and so leave a particular Estate in himself Peradventure by matter of Record he may Cro. Eliz. p. 29. Clamp's Case Copy-holder in Fee by Licence of the Lord 15 Feb. 4 Jac. makes a Lease for sixty years rendring Rent and the Lease was to commence at Michaelmass next ensuing Lessee enters and was possessed Postea scil 8. May the Copy-holder surrenders the Reversion to divers Uses the Grantee of the Reversion distrains for Rent this Grant of the Reversion seems not to be good the Surrender being made the 8th of May which was before the inception of the Lease perhaps if no day had been named it had been good Lit. Rep. 17 18. Surrender of a Reversion bears date before the inception of the Lease Mary Selby and Beck and Drewet's Case there cited A Feme Copy-holder in Fee comes into Court and offers to Surrender to J. S. in Fee but she desires to retain to her self an Estate for Life the Steward enters that she surrenders the Reversion of her Copy-hold to J. S. after her her death it s naught Vide Attornment supra Limitations in Remainder and Construction thereon and of Contingent Remainder Tenant for Life and he in Remainder of a Copy-hold he in Remainder surrenders his Remainder to the Use of Tenant for Life and after his decease to the Use of himself and his Wife the Estate limited to the Tenant for Life is void but the Estate limited to Baron and Feme is good by way of present Estate and not of Remainder 1 Sanders Rep. 150 151 152. So in Siderfin Remainder over good by way of Grant and doth not depend upon a particular void Estate p. 360. Copy-holder in Remainder surrenders to a Copy-holder for Life Remainder over this Remainder over is good by way of grant in the Estate limited to the Tenant for Life because he had an Estate in it for his Life before and therefore it was argued That the Remainder limited after this particular Estate which is void in its creation are void also But Per Cur. the intent was that Husband and Wife shall have the Land joynly for their Lives in possession after the death of Tenant for Life as by mediate Settlement A Surrender is rather in nature of a Deed Poll than of an Indenture and enures by way of limitation of Use ut res magis valeat Wade and Bath Fee upon a Fee upon a Contingency A Fee may be limited upon a Fee upon a collateral Contingent in Copy-hold Estates As if a man surrender a Copy-hold in Fee to the Use of J. S. and his Heirs who is an Infant and if J. S. dyes before the age of twenty one years or marriage then he surrenders this to the use of J. D. in Fee This is a good Remainder to D. upon the Contingent 2 Rolls 791. Simpson and Southwood It s made a Quaere in Stiles in the Argument of Pausley's Case If by the destruction of a particular Copy-hold a Contingent Remainder be destroyed Rolls conceived not because it doth not depend upon the particular Estate but ought to expect till the Remainder happen Stiles 251. and there is one in esse to take the particular Estate But it seems the Law to be contrary and that if the particular Estate be destroyed the Contingent Remainder is gone As to this A Surrender is to the Use of a Feme Covert the Remainder to the right Heirs of the Body of the Husband and Wife he in the Remainder shall not take till the Husband dyes for he which is to have this ought to be Heir of the Body of both 2 Rolls Abr. 415. Lane and Pannel A like Case as this is also Reported 3 Leon. p. 4. Copy-holder is surrendred to the Use of the Wife for Life the Remainder to the Use of the right Heirs of the Husband and Wife the Husband entred in the right of his Wife Per Cur. The Remainder is executed for a moiety presently in the Wife and the Husband was seised of that in the Right of his Wife and the Wife dying first her Heir shall have it but if the Husband had dyed first his Heir should have had one moiety But the Case of Lane and Pannel wherein was good Law and nicely argued is better Reported in 1 Rolls Rep. 238 317 438. The Case was this Lane was seized of a Copy-hold in Fee and having a Wife surrenders it to the Use of Dixon and the Wife for their Lives and after to the Use of the Heirs of the Body of the Husband and Wife and the Wife and Dixon are admitted to them and their Heirs and after Dixon surrenders his moiety to the Husband and Wife and their Heirs upon which they were admitted and afterwards they Surrender it to the Use of one Davis in Fee who was admitted then the Wife dyes having Issue and after the Husband dyes the Heir brings an Action of Trespass it s not maintainable The great Question was whether the Wife had an Estate Tayl executed vested in her Per Coke Whether
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
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
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
a descent of Inheritance at Common Law there the Defendant may plead a Feoffment made by the Ancestor absque hoc that he died seized because he may have an Estate by disseisin after the Feoffment Traverse of the descent and not of the dying seized is not good March p. 21. Anonymus Copy-hold Land was granted by the Lord of a Manor 10 May 3 Car. to the Wife of Tho. Kett and in the Replication the Defendant justifies as Bayliff to Tho. Kett the Plaintiff confesseth the Land is Copy-hold Land but that the Lord granted it 1 Jac. to N. S. in Fee who had two Daughters the Wife of the Plaintiff and the Wife of Tho. Kett and died seized and that the Lands descended to them upon which it was demurred By Berkley the Grant of the whole ought to be traversed Coparceners or confessed and avoided for the first Grant shews that the Defendant was in of all and the descent to the Wife is but for a moity Dyer 171. pl. 8. Per Cur. upon the whole matter disclosed Quaere if a Coparcener cannot distrain upon the Land of another Matter of Form damage fesant and the matter of form in the pleading ought not to be regarded by the Judges upon Statute 23 El. Cap. 5. Judgment was pro Quer. Hutton said The descent which was pleaded makes the second Grant void but by Richardson Though it be avoided yet it is not confessed Hetly p. 114. Port and Yates In Replevin the Defendant avows for damage fesant by reason of a Copy granted to him of the place where c. by the Lord of the Manor Cooper Bishop of Winchester The Plaintiff saith That before Cooper Horn was Bishop by whose death the Temporalties came into the Queens Hands and this Copy-hold during the time that the Temporalties were in the Queens Hands Escheated and the Queen granted it to the Plaintiff in Fee by force whereof he put in his Beasts If there is not confessing and avoiding there must be a Traverse and traverseth the Grant by Cooper Per. Cur. this Traverse is good and ought to be for there is not any confessing and avoiding because he doth not confess the Seisin and grant by Copy but if he had confessed That the Bishop had entred and granted it by Copy Where needs no Travers then there needed not any Traverse So where one justifies by Lease from J. S. the Plaintiff saith That J. S. enfeoffed himself it is not good without a Traverse Cro. El. p. 754. Covert's Case In Ejectment Ancient Demesn pleaded Replication That they are Copy-hold and Traverse The Defendant pleaded that the Lands were ancient Demesn and pleadable by a Writ of Right Close c. The Plaintiff shews That they were Copy-hold Lands and parcel of the Manor and entitles himself by Lease under the Copy-holder and traverseth That they were impleadable by a Writ of Right Close the Traverse is well enough taken Cro. Jac. 559. Pimmock and Helder The Avowant hath Election to Traverse any part of the Plea which goes to the end of the Action or justifies the Action Traverse the consequence In Ejectment the Defendant pleaded That the Lands were ancient Demesn and pleadable by a Writ of Right Close c. the Plaintiff shews they were Copy-hold Lands parcel of the Manor and intitles himself by Lease under the Copy-holder and traverseth that they are impleadable by a Writ of Right Close Demurrer because this Traverse that they were impleadable is but the consequence of ancient Demesn and therefore not traversable but Per Curiam that the Traverse is well enough taken Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom If the Plaintiff in his Rejoynder confesseth a particular Custom he ought to Traverse the general Custom alledged by the Defendant as in Replication the Defendant alledgeth a general Custom Quod quaelibet femina cooperta viro joyning with her Husband in a Surrender of Copy-hold Lands and being privately examined by the Steward that this by the Custom is a good Surrender the Plaintiff replies That there is a Custom in the Manor quod quaelibet c. who is of full Age may Surrender but the Wife who surrendred here was of full Age and doth not traverse the other Custom And Per Curiam it was ill Lit. Rep. 174. Anonymus Presidents and Forms of Pleading as to Copy-hold Estates The Form of Pleading that a Messuage is parcel of a Manor dimissibil dimiss per Copiam 1 Sanders 146. Wade and Batch That the Lands are Copy-hold Lands c. 2 Sanders 321. Pleading of a Surrender made in the Court of the Lord of the Manor to the Use of J. W. in Fee and of the Grant of the Lord to the said J. W. accordingly 1 Sanders 146. Pleading of the Surrender of a Remainder of a Copy-hold Estate to one for Life to another for Life to another in Fee and admission of them accordingly 1 Sanders 147. Pleading the Admittance of two Tenants in the Remainder for Life the Remainder in Fee 1 Sanders 147. Wade and Batch The Form of Pleading Copy-hold in Fee-simple in Tail for term of Life or Years In Fee-simple Hern p. 80. Co. Entr. 10. 647. Estate 3 Br. 463. Hern 227.607 In feod simplici Tail Life or Years Ra. Ent. 627. Co. Ent. 206. U. B. 128 157. Co. Ent. 657 123. Hern 679. Ad terminum vite vel vitarum Hern 653. Ad terminum 2 vitarum successive Hern 72. Ad terminum 1 2 vel 3 vitarum successive Hern 83 123. Simile in possessione Hern 711. Ad terminum vite vel vitarum tam in possessione quam in Reversione Co. Ent. 373 672. Ad terminum 1 vel 2 vitarum in possessione 1 vite in Reversione Hern 724. Ad Terminum 1 vite in possessione 1 vel 2 vitarum in Reversione Hern 254. Ad terminum 1 2 vel 3 vitarum in possessione vel 2 vitarum in reversione unius vite in possessione Coke Ent. p. 184 3 Br. 745. Pleading Surrender Surrender in Cur ad usum in feod Ra. Entr. 627. Co. Entr. 206. 3 Br. 465. Extra Curiam in manus 2 Tenentur ad usum in feod Co. Entr. 575 645. Usi Extra Curiam ad usum W. pur vie Remainder al Baron Feme Heires de Feme Co. Entr. 207. In manus Dom Co. Entr. 575. Per Tenant pur vie de moiety al use des Fitz Hern 255. Per 2 Tenants pur vie al intent de regrant Hern 656. Per Feme Covert secretur examinatur Co. Entr. 576. 3 Br. 465. Per Attorn secundum consuetudinem Manerij Co. Entr. 657. Per literam Attoruatur Co. Entr. 576. Presentment per l' homage de surrender extra Curiam Co. Entr. 206. Simile per tenentur jacen in extremis Co. Ent. 206. Admissio secundum sursum redditionem Co. Entr. 207 575 bis 577 645 657. Admissio heredis super
and from E. F. Lord of the Manor of W. in the County of S. for the granting and letting to Farm the Tenements c. hereafter in and by these presents demised to the said C. D. according to the tenor and true meaning of these presents Hath demised leased and to farm let and by these presents doth demise lease and to farm let unto the said C. D. c. all c. To have and to hold the said c. with their and every of their Apputenances unto the said C. D. his Executors Administrators and Assigns from the c. for and during the term and unto the full end and term of c. from thenceforth next ensuing and fully to be compleat and ended Yielding and paying therefore yearly and every year during the said term unto the said A. B. his Heirs and Assigns the yearly Rent or Sum of 3 s. of c. at c. with clause of Distress c. and usual Covenants to repair c. And also the said C. D. for himself his Executors Administrators and Assigns and every of them doth covenant promise and grant to and with the said A. B. his Heirs Executors and Assigns That he the said C. D. his Executors nor Assigns nor any of them shall do or wittingly or willingly permit or suffer any act matter or thing whatsoever which may forfeit lose or impair the Estate or Interest of the said A. B. of in or to the said hereby demised Premisses or of in or to any part or parcel thereof or which may be otherwise hurtful or prejudicial to the said A. B. his Heirs or Assigns for or concerning the having holding or enjoying of the same or any part thereof And the said A. B. for himself his c. doth covenant and grant to and with the said C. D. his Executors and Assigns that he the said C. D. his Executors and Assigns under the payment of the said yearly Rent and performance of the Covenants and Agreements aforesaid which on his and their parts and behalfs are and ought to be performed shall and may quietly and peaceably have hold and enjoy all and singular the before-mentioned to be hereby demised Premisses and every part and parcel thereof during the term hereby demised without any interruption molestation or eviction of him the said A. B. his Heirs and Assigns or of any person or persons whatsoever now lawfully claiming or that shall or may hereafter lawfully claim any Estate Right Title or Interest of in or to the same or any part thereof by from or under him them or any of them And also that he the said A. B. his Heirs Executors and Assigns or some or one of them shall and will from time to time and at all times hereafter discharge or upon reasonable request save harmless and keep indemnified the said C. D. his Executors and Assigns of for and from all Quit-Rents payments Duties and Services to be had paid made or done for or out of the said hereby demised Premisses or any part thereof to the said E. F. Lord of the Manor aforesaid his Heirs and Assigns A Release of a Copy hold Estate To all Christian people to whom these presents shall come A. B. of c. and C. B. of c. Brother of the said A. B. send Greeting Whereas the said A. B. is or was seized for and during the term of his natural Life according to the Custom of the Manor of W. in the c. of and in one Copy-hold Messuage or Tenement with the Appurtenances in W. aforesaid being parcel of the said Manor late in the Tenure or Occupation of c. deceased and of and in several parcels of Land Meadow and Pasture to the same belonging or reputed part thereof And whereas the said C. B. hath a Copy-hold Estate for the term of his Life in the said Messuage and Premisses in Reversion after the death of the said A. B. as by the Court Rolls of the said Manor of W. more at large appeareth Now know ye therefore That the said A. B. and C. B. for and in pursuance of an Agreement heretofore made and concluded between the said A. B. E. F. Esq Lord of the said Manor of W. of and for the said Copy-hold Estate and for and in consideration of the Sum of c. of lawful mony of England by him the said E. F. in hand paid to the said A. B. and C. B. or one of them before the sealing and delivery hereof the receit whereof they do hereby acknowledge and for other good causes and considerations them hereunto moving have granted yeilded up surrendred remised released and quit claimed and by these presents they the said A. B. and C. B. do and either of them doth grant yield up surrender remise release and for ever quit claim unto the said E. F. and unto F. C. of c. and to their Heirs Executors and Administrators for ever which said E. F. and F. C. are or one of them now is Lord of the said Manor of W. and are or one of them now is in the actual possession of the said Premisses their said several and respective Copy-hold Estates in the said Messuage Lands and Premisses and in any part or parcel of the same and all their and either of their Estate as well Free-hold as Copy-hold Right Title Interest Possession Claim and Demand whatsoever either in Law or Equity or according to the Custom of the said Manor or otherwise howsoever And the said A. B. and C. B. do for themselves their Heirs Executors and Administrators covenant and grant to and with the said E. F. and F. C. their Heirs Executors and Administrators by these presents that they the said A. B. and C. B. shall and will from time to time and at all times hereafter upon request and at the Costs and Charges in the Law of the said E. F. and F. C. or either of them do and perfect or cause to be done and perfected all such lawful and reasonable acts and things in the Law for the surrendring barring and extinguishing of their or either of their Right and Estate as well Free-hold as Customary and all their or either of their Claim or Demand in or to the said Messuage or Tenement and Premisses or any of them as by them the said E. F. or either of them their or either Heirs or Assigns of the said Manor shall be reasonably advised and required In Witness c. Copy of a Court Roll or an Extract of a Surrender out of the Rolls of the Court. Ad curiam Baron F. R. Mil Baronet Dom manerij pred ibid tentur die Lune videlicet secundo die Junij Anno Domini millesimo sextentesimo nonagesimo Annoque Regni Domini 〈◊〉 Gulielmi Mariae Dei gratia Anglie Scotie Francie Hibernie Regis Regine fidei defensor c. primo coram S. C. Arm Senescallo ibid Irrotulatur sic Ad hanc curiam venit A.
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