pleading we say such Lands or Tenements are demised and demisable A tempore cujus contrarij memoria hominum non existit And yet this Rule fails in the Kings Case vide supra It was said by Rolls Chief Justice in Pilkington and Bagshaw's Case Stiles 450. That a Custom cannot be urged for a thing that had its beginning since the time of Richard 1. if a Record can be shewed to the contrary But what measure of time shall make a Custom many differ Some judge it from the time of Henry 1. to the Stat. of Merton Cap. 8. which appointeth the Limitation in a Writ of Right and others say otherwise And by the Statute W. 1. the Limitation was from the time of R. 1. and these are Limitations as to Writs but this is since altered by 32 H. 8. What shall be said time out of memory which is reduced to sixty years next before the Teste of the Writ But the true measure is Littleton's Rule Where a Custom hath been used so long that man's Memory cannot remember the contrary that is when such a thing is pleaded that no man then living hath heard or known any proof to the contrary for if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the memory of any man living yet it is within the memory of man and therefore regularly a man cannot prescribe or alledge a Custom against a Statute for that is the highest Record but affirmative Acts do not take away a Custom If Land hath been demised by Copy for fifty years and yet some alive remember the same occupied by Indenture this is not a good Copy hold And if Land hath been demised by 40 years by Copy and none alive can remember the same to be otherwise demised this is a good Copy But sixty or eighty or an hundred years may make a good Limitation Calthrop's Reading Coke Lit. 114 115. 2. Continuance Custom ought to have continuance without interruption time out of memory for if it be discontinued time out memory the Custom is gone As if a Copy-hold be let by the Lord for life or for years according to the course of the Common Law it shall never be demised as Copy-hold according to the Custom afterwards Consuetudo semel reprobata non potest amplius induci and as Continuance makes the Custom so discontinuance destroys it The Continuance for fifty years is enough to fasten customary Conditions upon the Land against the Lord And per Cur. Though the original Commencement and the customary Interest did commence 10 H. 8. from which time sixty years passed yet the seizure for a Forfeiture in the mean time interrupted utterly the Continuance from the time which might by the Law have perfected the customary Interest What shall be said an interruption of a customary Estate or not Within the time of forty seven years a customary Interest cannot be Attached upon the Land 3 Leon. 107. Tavernor and Cromwel If the Lord of a Manor is seized of an ancient Copy-hold for Forfeiture or by Escheat and let the same at Will without Copy for divers years this is not any interruption of the customary nature of the Land but that he may grant it again by Copy Ibid. Interruption If customary Land hath been of ancient time grantable in Fee and now of late times for the space of forty years the Lord hath granted the same for Life only yet he may if he please resort to his ancient Custom and grant it in Fee 1 Leon. p. 56. Kemp and Carter Customary Land within a Manor hath been grantable in Fee and it Escheats the Lord may grant the same to another for Life for the Custom which enables him to grant in Fee shall enable him to grant for Life and after the death of Tenant pur vie the Lord may grant the same again in Fee for the grant for Life was not any interruption of the Custom 1 Leon. 56. id Case 3. Certainty Custom ought to be certain for incerta pro nullis habentur 13 Ed. 3. Fitzh dum fuit infra aetatem 3. A Writ of Dum fuit infra aetatem was brought against an Infant the Tenant pleads a Custom That when the Infant is within such an Age as that he may count twelve Pence or measure an Ell of Cloth that then his Feoffment shall be good this Custom is adjudged void for the incertainty Why an uncertain Custom shall be void Now the Reasons why an uncertain Custom shall be void are 1. Because an uncertain thing may not be continued time out of memory 2. A man cannot prescribe in a thing which may not at the beginning be well granted and an uncertain thing cannot well commence by Grant And if Tenants of a Manor prescribe that they ought not to pay for a Fine to renew their Copy-hold Estates more than the Rent of two years but ought to pay the Rent for two years or less this is not a good Prescription for the uncertainty for sometimes they are to pay two years Rent and sometimes less 2 Rolls Abridg. 264 265. Green and Berry 4. Reason Custom must be reasonable therefore it must not be against common Right or purely against the Law of the Land as is Littleton's Case The Lord prescibes That there hath been a Custom within his Manor that every Tenant who marries his Daughter without Licence of the Lord shall make Fine c. This Prescription is void it is against the freedom of a Freeman who is not bound thereto by particular Tenure Alit if it be upon a special Reservation of Gift of Lands or Tenure in Villanage Lit. Sect. 209. So in Sect. 212. To prescribe that the Lord of the Manor hath used to distrain Cattel Damage feasant and to retain the Distress till Fine were made to him for the Damages at his will This Prescription is void for it s against reason a man should be Judge in his own Cause If the Lord will prescribe to have of every Copy-holder belonging to his Manor for every Court he keepeth a certain Sum of Mony this is a void Prescription because it is not according to common Right for he ought to do it gratis for Justice sake But if the Lord Prescribe to have a certain Fee of his Tenants for keeping an extraordinary Court which is purchased only for the benefit of some particular Tenants to take up their Copy-holds and such like this is a good Prescription and according to common Right Coke Cop. 81. But now to distinguish what Customs are unreasonable and what not observe these differences Every Custom is not unreasonable which is contrary to a particular Rule or Maxim of the positive Law For its a Rule Consuetudo ex certa causa rationabili privat communem Legem As the Customs of Gavel-kind and Burrough English are against the Maxim of descent of Inheritance and the Maxim of Escheat as in Kent the Father to the Bough and
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
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
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
severance of the Copyhold from the Manor the Copy-hold is not destroyed but it is not parcel of the Manor now if one would alien this he cannot do it by Surrender for it s not parcel of the Manor neither can the Feoffee make Admittance for he is not Dominus but if such Copy-holder will alien there is no way but to have a Decree against him and his Heirs in Chancery and so to bind his person but by it the Interest of the Land is not bound 4 Rep. 24 25. By the Statute of 13 El. Cap. 7. Copy-hold Lands are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record as other the Bankrupts Land but by the same Statute it is provided That all Persons to whom any such Sale shall be made shall before such time as they shall enter and take the Profit of the same agree and compound with the Lord of the Manor of whom the same shall be holden for such Fines or Incomes as heretofore hath been usual and accustomed to be yielded or paid therefore and upon every such Composition the Lord for the time being at the next Court to be holden at and for the said Manor shall not only grant to such Vendee upon request the same Copy or customary Lands or Tenements by Copy of Court Roll of the said Manors for such Estate or Interest as to them shall be sold and reserving the ancient Rents Customs and Services but also in the same Court admit them Tenants of the same Copy or customary Lands as other Copy-holders of the same Manor have been wont to be admitted as also to receive their Fealty accordingly Note Copy-hold Lands are within all the Statutes of Bankrupt Cro. Car. 550. Crisp and Plat. Title to a Copy-hold cannot be made by the Commissioners without Surrender or Admittance 1 Keb. 24. How and to what purpose such Estate Vests before Admittance Cro. Car. 569. In Parker and Bleke's Case it is adjudged That by Bargain and Sale made by the Commissioners of Bankrupts the Estate of the Copy-holder is vested in the Bargainee before Admittance though he may not enter and take the Profits till Admittance The Bargain and Sale binds the Copy-holder and bars his Estate and he is no Copy-holder after the Bargain and Sale enrolled And where the Bargainee is admitted by the Lord it shall have relation to the Bargain and Sale And where the Custom was That the Wife of a Copy-holder dying Tenant shall have a Life Estate it was adjudged the Copy-holder dying after the Bargain and Sale his Wife shall be barr'd of her Widows Estate A Bankrupt purchaseth a Copy-hold and the Tenant Surrenders into two Tenants Hands to the use of the Bankrupt and now he will not be admitted This may be sold by the Commissioners and the Vendee may pay the Admittance Of Surrender Now I shall treat of Surrenders then of Presentment and Admittance for that they make up but one Copy-hold Title First of Surrenders We have seen in the last Chapter how that in some Cases Copy-hold Lands may pass without Surrender Now In some few Cases a Surrender is sufficient without Admittance or Presentment Where Surrenders is sufficient without Admittance as if the Copy-holder Surrender to the Lords use there needs no Admittance And In some Cases Admittance will do without a Surrender Where Admittance is sufficient without a Surrender as if the Lord make a voluntary Grant of the Copy-hold in his hands no Surrender is needful but Admittance only But regularly Estates of Copy-hold must pass by Surrender and Admittance and if the Surrender be out of Court there must be a Presentment Of a Surrender in Court By what words a Surrender will pass It cannot well pass by any other word then sursum reddidit Surrender if it pass in the Court by the words Give Grant Bargain Sell this will not so pass it but the Heirs of the Copy-holder shall avoid it It is vocabulum artis as Warrantizare and some other Law words are What will amount to a Surrender in Court or not By Hobart in Hutton Rep. p. 81. What Words If a Copy-holder comes into Court and saith That he is weary of his Copy-hold and requests the Lord to take it that is a Surrender And by some if he come into the Court and desire the Lord to admit his Son into the Copy-hold this is a good Surrender to the use of the Son But if a Copy-holder comes into Court and saith He renounceth his Copy this is not any Surrender and if the Copy-holder say in the presence of any other Copy-holders He is content to Surrender to the use of J. S. This is not a good Surrender Any words in the Court that declare his intention of surrendring into the Lords Hands is good 3 Rep. 80. in Belfield's Case What Acts. It was agreed between the Lord of a Manor and J. S. That in Consideration of 5 l. paid to the Lord J. S. should enjoy the customary Lands for his Life and also of Alice his Wife durante viduitate and that J. S. should have election whether the said Lands should be assured to him and his Wife by Copy or by Bill c. and he chose by Bill which was made accordingly Per Cur. Here is a good Surrender of the said Lands and that for Life only 1 Leon. p. 191. Collman and Sir H. Portman's Case Cannot be surrendred but by actual Surrender If a Copy-holder in Fee takes the same Lands 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 and not by a Surrender in Law 1 Rolls Abr. 501. Shepard and Adams But in 3 Bulst p. 80. Belfield and Adams its Reported thus Copy-holder in Fee comes into the Lord's Court and there takes a new Estate of his Copy-hold from the Lord to himself for his Life after to his Wife for Life and after to his Son for Life this was admitted a Surrender and so was the other Case in 1 Roll 501. In whom the Reversion after a particular Estate remains Postea 13 Jac. But the Reversion is in the Surrenderor no disposition having been made of it So in this Case this is not a giving up his Estate of Inheritance but only it shall enure by way of Surrender to the use of himself for Life after to the use of his Wife for Life and after to the use of his Son for Life But if a Copy-holder of Inheritance takes a Lease by Indenture for years by this his Copy-hold Estate is gone and this is a Surrender of his Inheritance in the other Case the Inheritance remains in him and is thus Reported by Rolls If a Copy-holder in Fee comes into Court Copy-holder by accepting of an Estate is not Estopt from claiming another Estate and accepts by Copy an
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
yet if he that hath the pure right to the Copy-hold Release to the wrong doer before the Lord enters that is good for until the Lord enter he is Tenant in fait 4 Rep. 15. I Brownl 149. in Odingsal and Jackson's Case Quaere Acceptance Copy-holder sold Timber off the Land Lord enters Copy-holder dyes Lord seises a Beast the Heir brought Trespass the Plaintiff justified the seizure for an Harriot Per Cur. in Ejectment this being the Defendants Evidence Justification for Harriot Service or Seisin of Ancestor is an acceptance of Heir as Tenant and purgeth the Forfeiture contra on Acceptance Justication or Avowry for Harriot Custom but now there being an actual Entry in the Life-time of the Ancestor by the Lord for the Forfeiture no acceptance after will purge it 3 Keb. 641. Pascal and Wood. Repairs of waste If a Tenant permit Waste and after repair yet it seems this doth not purge the Forfeiture Lach. 227. But Moor n. 508. is contra If a Copy-holder cut down Trees without a Custom it is a Forfeiture unless it be for Reparation Note The Repairing with Timber though after five years cut and after Action brought is a dispensation of the Forfeiture Affirmance or confirmation by the Lord Feoffment or Lease of the Freehold If a Copy-holder makes a Lease for years which is a Forfeiture at common Law and afterwards the Lord makes a Feoffment or a Lease for years of the Freehold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Lessee of the Copy-holder shall continue his Estate and so is in nature of an affirmance or a confirmation of the Lease Owen p. 63. Pen and Merival So the difference is when the Lord enters or not and also whether the Forfeiture be committed before the Lords feoffment c. or after Whether Forfeiteres in the time of the Ancestors of the Lord shall descend to the Heir Copy-holder doth waste the Lord dyes Where the Heir shall not take advantage of a Forfeiture the waste is presented in the Court and the Lords Heir enters the better Opinion is he cannot enter Per Dodderidge Actions ancestrel shall descend to the Heir but not Forfeitures which is in the Will of the Lord to take advantage or not Palmers Rep. 416. Cornwallis and Hammond 18 Eliz. in Harpers Rep. cited by Lach. p. 227. in Cornwallis's Case The Case was Lord and two Co-partners Copy-holders the one makes a Feoffment and the Lord makes a Lease of the Manor the Lessee shall not take advantage of this Forfeiture because he is not privy to the Title but if the Lessor dyes it was agreed the Heir should take advantage of it Ideo Quaere It s a mischievous Case if the Lord should be suffered to rake up old Forfeitures a long time past and yet on the other side there is no reason that the Lords should be abridged of their Rights And it s adjudged 2 Siderfin p. 8. Chamberlain and Drake's Case That the succeeding Lord shall not take advantage of waste made in the time of the preceeding Lord. Upon Entry for a Forfeiture who shall have the Emblements Upon Entry by the Lord for a Forfeiture he shall have the Emblements then growing as if a Feme Copy-holder durante viduitate sows the Land and before severance takes a Husband the Lord shall have the Emblements for her own act is the cause of the determination of the Estate If such Woman let for years and the Lessee sows the Land and after the Widow takes Husband the Lessee shall not have the Emblements for although his Estate is determined by the act of a Stranger yet as to the first Lessor he shall not be in better case than his Lessor was 5 Rep. Oland's Case Vide Emblements The Lords Remedy for a Forfeiture For Forfeitures presented by the homage the Lord may distrain or seize 1 Keb. 287. Pateson and Danges By Entry the Lord shall have the Emblements CAP. XXIII Of extinguishment of Copy-holds How they are destroyed by the act of the Lord or of the Copy-holder VVhere and how a Right to a Copy-hold shall be Estopped or Extinguished by Acceptance or Release VVhere a Copy-hold shall be suspended and where it may be regranted Where and by what acts a Copy-hold shall grow extinct and destroyed for ever and where not and to what purposes and to what not By the act of the Lord Copy-holder BY the act of the Lord. And here observe two Rules By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed for though the Copy-hold must be parcel of the Manor yet severance made by the Lord shall not destroy the Estate of the Copy-holder Custom has so fixt and established his Estate In all cases where the Copy-hold is gone by the Grant of the Reversion it is not so gone but that the Tenant shall hold his Estate still and subject to Forfeiture as before To Illustrate this I shall cite two or three Cases That the Lords act shall not prejudice the Copy-holders Estate If the Lord makes a Lease for an hundred years the Lands are not so severed from the Manor as that the Copy-hold is extinct and the customary Interest is not determined but the Lord himself hath destroyed the Custom as to the Services for the Services reserved upon the Copy Copy-hold extinct as to Services but remains as to the Customary Estate and the advantage of waste and other Forfeitures are extinct But by Anderson the Rents and Services remain and waste shall be a Forfeiture though such waste cannot be found by an ordinary Presentment and that the Lord shall have the Rents and Services and not the Lessee quod mirum saith the Reporter against his own Lease 2 Leon. 208. Beal and Langley But this point is well setled in Murrel and Smith's Case 4 Rep. 25. though the Reversion of the Copy-hold be granted and so severed from the Manor yet the Copy-holder shall hold his Estate and subject to Forfeiture as before and shall perform the same Services suit of Court excepted as before and the Custom incident to the Land as Burrough English Gavel-kind continue still but Fine upon Alienations and Suit of Court and Admittances are gone 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 deviseth it to M. in Fee which was surrendred at next Court Per Cur. 1. Copy-hold though severed from the Manor not destroyed by the Lords act By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed being the Lords act 2. The Surrender after the Severance of the said Copy-hold was void and so was the Will for the Lands were not parcel of the Manor at the time of
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
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
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
descensu Cro. Entr. 575 657. Dom concessit querenti terras custumar que ei descend restituend eum ad jus ubi terre fuer prius concesse alij qui obiit Ra. Ent. 628. Dominus ob certas causas seiseivit terras custom concessit eas in feod al W. cui Vir et Vxor propretarij unde relaxaverunt jus 3 Br. 464. Dominus ex traditione propria grant al un pur vie per Copie 1 Coke 117. Grants Grant per Copie in Fee Rast Entr. 627. Limitation dea Estate Co. Ent. 9 10 123 274 645 611 657. 3 Br. 97 464. Hern 81 226 707. Simile al Baron Feme Ra. Entr. 627. Simile al Baron Feme Heires del Feme Cro. Encr. 575. Al un pur vie ove several Remainders in Tayl in defectu exitus quod terre venderentur deuar inde provenien disponerentur juxta Testamentum Co. Ent. 207. Al un pur vie Co. Ent. 576 662. Al 2 pur vies Co. Ent. 273. Hern 73. Al 3 pur vies successive Hern 83 711. Al un pur vie en Reversion Hern 255. Grant al un pur vie in Reversion apres mort de Tenant pur vie per primer grant Hern 724. Simile al 2 pur vies in Reversion Co. Ent. 114. bis 662. Per Senescallum Regis ratione Temporal Episcopatus in manu Regis duran vacac Co. Entr. 645. Grant reddend faciend redditus consuetudines servitia consueta Co. Ent. 662. Terres grant per nosmes Co. Entr. 662. Hern 254 255. Pleading a Manor held by another Manor 11 Rep. p. 17. Sir Henry Nevil's Case Cur tentur coram Deptur Senescallo Co. Entr. 570. Forms of Pleadings of Lords and Copy-holders in reference to Common Per Dom Manerij habere communiam pro tenentibus Custumariis Hern 117 124. Rex Seisitus de Manerio habuit communiam Pasture in bosco pro se liberis tenentur custumar manerij pro omnibus averijs ê‘ totur Annum Co. Entr. 656. Rector Ecclesie seisitus de Manerio Rectorie habuit communiam pro se tenen custumar MessuagÌ„ Terrarum in loco in quo c. pro omnibus magnis averiis per totur Annum Co. Entr. 574. Vn seisitus de Manerio habuit communiam pro se tenen suis in terris tentur de manerio quando non seminantur Co. Entr. 118 Quer seisitus de manerio habuit communiam pastur pro tenen custumariis MessuagÌ„ Terrarum in 10 Acres Pasture pro omnibus averiis per totur Annum Co. Entr. 9. 9 Co. 112. Hern 117. Domini separalium Maneriorum habuer communiam pasture pro tenen custumariis causa vicinagij Co. Entr. 10. vetur intur 191. de injur propr traverse prescriptur Prior seisitus de manerio habuit communiam pro se tenementis suis ad voluntatem in terra post blada asportata usque reseminationem quando facet frisca per totur annum Et in prato post foenu asportur usque Purit ' Rast Entr. 622. 1 Brownl 66. TransÌ„ bar ' per prescription de communia in clauso parcel Manerij Repl protestando quod clausum non est parcel Manerij pro placito de injur propria travers prescription 3 Browl. 418. Iustificatur in TransÌ„ pro common per Custome infra Manerium pro defectu sufficien fensur Def. existen Lessee pÌ„ ans d'un Widdw que tenuit terras per Custome quamdiu casta innupta viveret Tomps 331. Trans Iustificatur pro common prescribe in in Dom Manerij Tomps 371 379 392 418. Pled que customarij Tenants debent habere solam separalem pasturam cum liberis tenentibus pro omnibus averiis barbits except Levant Couchant 1 Sanders 347. 2 Sanders 321. Pled que custumary Tenants usi sunt habere separalem pasturam come appurtenant Tenementis suis 2 Sanders 351. Per Lessee del Copyholder de Turbis fossis in communia pasture Hern 80. Simile pro Hern 116. Bar in ReplegÌ„ That he is Copyholder of another Manor of Copy-hold called P. and prescribes for Common in loco quo c. omni tempore Anni pro omnibus averiis communicalibus Levant Couchant sur le Cohy-hold appell P. que posuit averia sua utendo communia Repl per Traverse que barbits la fuer Levant Couchant c. Demur special the Traverse not being good Winch Entr. p. 970. By four Judges the Traverse was good it s an essential part of the Plea and the Avowant hath election to Traverse any part of the Plea which goes to the end of the Action or Justification Pled Custome aver common in loco in quo c. Repl de son Tort Demesne traverse que les avers fuer Levant Couchant sur le Copy-hold Tempore quo c. Rej. issue sur le Traverse Winch. 1068. ad 1071. Def. in Trespas plead severally pro defâ—â— sufficien ' fensur monstre lour Title al Copy-hold Estates Tomps 410. Iustificatur pÌ„ Common per Custome per un Copyholder Toms 410. Custome pleaded quod tenen custumarii habeant communiam pasture per totur Annum in terris parcel Manerij Hern 81. Simile in terris non allegatur fore parcel Manerij Hern 708. Simile pro averiis vocatur Horse-Beasts Neat-Beasts Levant c. per totum Annum Coke Etr. 10. Simile pro bobus levan a festo ad festum in pastura 3 Br. 61. Simile in 7 acris terre post blada messa asportatur ex eisdem resid camporum usque AnnunciacÌ„ nisi interim seminatur 3 Br. 96. De Arboribus Bar to the Avowry That Sir R. D. was seized of the Manor of R. Vnde c. locus in quo contains 14 Acres and are customary Lands held of the said Manor Sir Robert granted this by Copy to T. who dyed and the Premisses descended to T. his Son c. who demised for a year to the Plaintiff Replication The Defendant confesseth the seisin of Sir Robert but said the 20 Acres of Land and 30 Acres of Meadow of which the 4 Acres are parcel are custumary Lands of the said Manor which Lands Sir Robert granted by Copy to T. T. the Father T. the Father forfeits his Copy-hold Land for Waste and Sir Robert enters for the Forfeiture c. Rejoynder the Plaintiff confesseth the matter in the Replication to the seisin of T. T. the Father And farther the Plaintiff shews the Custom of the Manor was for every Copy-holder d'amputer decapiter tam touts arbores que devant ustoient estre amputes decapitates quam touts juveniles arbores n'esteant pluis que 12 Inches square al stubb The Trees supposed to be decapitated by the Father were decapitable by the Custom c. Demur Winch Ent. 1022. c Drury's Case Bar al cognizance Dean Cap. West seisitur de Manor de T. a quel certain custumary Tenants appertain c. S. H. fermor del Dean
and Judgment pro Quer for that the Replication doth not confess or avoid nor deny the bar to the Avowry Winch Entur p 997 998 999. Foster and Woodcock Eject Bar que W. seisitus de Manor grants custumar terÌ„es in Reversion al Def. auters pur vies Repl que W. demised ceo Manor al C. R. determinable pur vie del M. ilsÌ„ assigne al M. qui grant Reversion de terÌ„es al H. pur vie Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise c. Surrej ê‘ maintenance de Replic Traverse le disseisin Demur inde Co. Ent. 184. Replev Quod Reg. Eliz. seisita de manerio unde c. concessit terÌ„as custumar R. M. Vxori ejus hered Vxoris qui sursum reddider ad usum Def. Bar quod W. prius seisitus de maner concessit terras al J. de quo descend al P. qut sursum reddidit al A. qui sursum reddidit al M. pur vie qui dimisit quer Repl quod W. ante concession al J. concessit terÌ„as al B. de quo discend al M. qui sursum reddidit Def. travers grant al J. issue inde Co. Ent. 575. Quod J. seisitus de maner unde c. concessit Def. pro vita in Reversion terÌ„as custumar dimissibil pro 2 vitis tam in Possessione quam in Reversione Hern 724. TrnsÌ„ quod C. seisitus de manerio concessit terÌ„as customar in feod al B. de quo descend Def. Repl C. fuit sisitus de manerio unde c. quod discend quer traverse quod terÌ„e sunt custum U. B. 153. TrnsÌ„ Def. justif sub tenentur custum monstroit le Estate de Copyhold durante viduitate Tomps 395. TrnÌ„s novel assignmtur Def. dicit quod pmissa tempore c. parcel custmaria dimissibilia ê‘ cop cuicunque ê‘sone ill capere volent in Talliatur seu pro vita Et quod F. G. pd fuit seisitus ad cur tentur 26 Martij dimisit cuidam W. in feodo qui dimisit Def. pro Anno virtute cujus c. done Colour Repl quod pmissa sunt liberum tenementum quer sic manutenet narÌ„ationem traverse que pmisse fuer parcel manerij de L. Rej. exitus sur traverse Keb. 465 467. In Repl Copyhold in Reversion ê‘ copiam tenentur in possessione advocat captionem pur Damage fesant custom del Manor granter Estates en possession ou reversion Hern 777. CAP. XXXIII Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not Presumptive Evidence Where Copy of a Lease is good Evidence What shall be tryed by the Jury and what by the Court-Rolls Substance found in special Verdict Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be Tryed Venue What shall be a good Evidence to prove the Custom or not THE Custom of a Manor was laid to be That if a Copy-holder hath two Sons and a Wife and dyes and the eldest Son hath Issue and dies in the Life of the Wife that the younger Son shall have the Land the Issue being upon the Custom the Jury found the Custom to be That the younger Son shall have the Land unless the eldest was admitted in his Life and paid the Lords Fine Per Curiam the Verdict is not sufficient to prove the Issue Moor n. 566. In Replevin If the Defendant justifies the taking as Damage fesant The Plaintiff in bar pleads by reason of a Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties were at Issue and it is found that part of the Beasts were Levant and Couchant Part found for the whole and part not this is found for the Defendant for the Issue is upon the whole and the contrary to it is found Trin. 17 Jac. B. Sloper and Allen. The Issue was in Kemp and Carters Case 1 Leon Case 70. p. 55. If the Lord of the Manor granted the Lands in question Per copiam rotulorum curiae Manerij praed secundum consuetud Manerij praed It was given in Evidence That within the said Manor were divers custumary Lands and that the Lord now of late at the Court of the said Manor granted the Land per Copiam Rotulorum curiae where it was never granted by Copy before Per Cur. the Jury are bound to find Dominus non concessit for notwithstanding de facto Dominus concessit per Copiam Rotulorum curiae Non concessit yet non concessit secundum consuetudinem manerij predict for the said Land was not custumary nor had the Custom taken hold of it Several Customs within several limits ought to be specially shewed It was shewed then That within the said Manor some customary Lands are demisable for Life only and some in Fee By Anderson Chief Justice He who will give in Evidence these several Customs ought to shew the several Limits wherein the several Customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for Lives only and the Lands in the other in Fee and he ought not to shew the several Customs promiscue valere through the whole Manor In an Action brought The Defendant alledgeth a Custom of a Copy-hold to be demised in Fee Tayl or for Life and made Title by a demise in Fee to himself The Plaintiff traversed the Custom and the Custom was found to be Substance found to demise in Fee or for Life but not in Tayl Per Cur. the Issue was found for the Defendant because the substance was found for him and the Tayl was but inducement Moor n. 490. Dorley and Wood. Wadsworth's Case before Judge Crawley at York Assises was upon an Intail of a Copy-hold within the Manor of W. and several antient Intails shewed in Evidence in Edward III. time and remainders limited over upon such Intails and Plaints in nature of Formedons brought there for such Remainders and Recoveries thereupon and several Issues after had taken their Admittances as of Fee simple Land as Heirs in Fee and for this cause Purchasers look at the Copies Presumptive Evidence and seeing Fee-simple in Admittances are secure the Estate is so and apply their Assurances accordingly the Jury found for the Plaintiff against this Intail and it shall be presumed the Intail hath been cut off some way when many Admittances have been in Fee simple The Custom of a Manor is Less Estate than the Custom That the Wife shall have it during her Life and on Evidence it appears that she shall have it durante viduitate this Evidence doth not maintain the Custom 4 Rep. 30. If the Parties be at Issue upon the time of the Surrender made or the Court holden The time of the Surrender or of the
Attornies by their appointment in the Name or Names of them the said T. S. and M. in case the same Marriage take effect to commence Suit against sue and prosecute all and every the person or persons as occasion shall require for all every of any the said monies that are now owing to the said M. And that he the said T. S. shall justifie all and every such Actions and Suits That he shall not release the Action and shall not Release or discharge the same or any Judgment or Judgments or Execution thereupon to be had without the consent of the said Trustees but shall suffer the said Trustees to receive the same monies and every Sum thereof That what is received shall be at her disposal and all and other the Sum and Sums above the Sum of 300 l. and to preserve and dispose of the same according to the Trust in them reposed by the aforeseid M. And that the said M. shall have full power of the disposal thereof to any person or persons other than the said T. S. without any contradiction of him the said T. S. or any threats or uncivil carriage to deter her thereunto That neither of the Estates be charged with the others Debts due before Marriage And it is farther agreed by and between the said T. S. and M. F. That neither of them nor their Estates shall be charged with the Debts or Engagements of either of the other of them due or payable before the date of these presents And to that end the said T. S. doth covenant promise and grant to and with the said Trustees before named and to and with every of them That he will pay and discharge all his own particular Debts or which he is bound for or stands chargable to pay to any person or persons out of his own particular Estate without having or craving any of the now personal Estate of her the said M. other than the aforesaid 300 l. before mentioned If there appear any Debts on her part Trustees to pay them out of her personal Estate in their Hands And also the said M. F. doth hereby agree That in case the said T. S. after the said intended Marriage shall take effect and be solemnized shall be questioned or molested for any the proper Debts of her the said M. contracted or owing by her before the solemnization of the said intended Marriage or for any Legacy or Legacies which she is any ways chargable to pay to any person or person That the Trustees shall have power and authority hereby to pay and discharge the said Debts and Legacies which she the said M. is so chargable to pay and that out of any her now proper Estate other than the aforesaid 300 l. and in so doing the Trustees shall be discharged of any other account thereof unto the said M. or to the said T. S. after the solemnization of the said intended Marriage And the said Trustees and every of them do hereby declare That they will perform the Trust in them reposed by these presents according to the true intent and meaning thereof And do hereby Covenant every one of them one with the other respectively not to act or do any thing touching the Premisses without the consent of them all In Witness whereof to the first part of these presents remaining with the said T. S. the said M. F. and the said Trustees have put their Hands and Seals to the second part of these Indentures remaining with the said Trustees the said M. F. and T. S. have put their Hands and Seals to the third part of these Indentures remaining with the said M. F. the said T. S. and the said Trustees have put their Hands and Seals the day and year first above written Covenant to Surrender Copy-hold Land after a Bargain and Sale of Free-hold And whereas the said I. W. holdeth to him and his Heirs by Copy of Court Roll at the Will of the Lord according to the Custom of the Manor of S. aforesaid the said Parcel of Land in S. aforesaid before excepted It is Covenanted and agreed by and between the said Parties to these presents and the said I. W. for himself his Heirs Executors and Administrators for the Considerations aforesaid doth Covenant to and with the said H. A. RG and I. A. their Heirs and Assigns by these presents That he the said I. W. shall and will before the Feast of St. John Baptist now next ensuing surrender according to the Custom of the said Manor the said Parcels of customary Lands before excepted unto the use and behoof of the said H. A. R. G. and I. A. and their Heirs for ever and procure them to be admitted unto the same accordingly To hold according to the Custom of the said Manor freed and discharged of all Forferfeitures Charges and Incumbrances done or suffered by him the said J. W. or F. W. his Father or either of them In Witness c. Covenant that he is rightfully seized of Copy-hold Land And the said A. B. for the Considerations aforesaid doth for himself his Heirs Executors Administrators and Assigns and for every of them covenant promise and grant to and with the said I. G. his Heirs and Assigns by these presents that he the said A. B. now at the sealing and delivery of this c. is solely lawfully and rightfully seized of and in all and singular the said Copy-hold Lands and Premisses herein before mentioned to be granted with their c. Appurtenances of a good Estate in Fee-simple according to the Custom of the Manor of which the same Premisses are holden If the Copy-holds belong to two Manors then thus of a good Estate in Fee-simple according to the Custom of the several Manors of which the said Premisses are respectively holden Covenant to Surrender Copy-hold Lands And also that he the said A. B. or his Heirs shall and will at the next Court-Baron to be held for the Manor of W. in the said County c. or at any other time or times upon the request of the said I. G. his Heirs or Assigns but at the proper Costs and Charges of the said A. B. or his Heirs surrender into the Hands of the Lord of the Manor or to the Steward thereof or otherwise according to the Custom of the said Manor to the use of the said I.G. his Heirs and Assigns all those Lands Tenements and Hereditaments herein after mentioned which he the said A. B. doth hold of the said Manor aforesaid by Copy of Court Roll according to the Custom of the said Manor viz. one piece of Land called c. And all other the Copy-hold or customary Lands of the said A. B. held of the said Manor of W. And the said A. B. for himself c. doth farther Covenant c. to and with the said I. G. his Heirs and Assigns c. that he the said A. B. his Heirs Executors or Administrators shall and will pay the Fines
IV. The nature of Custom in general and the general Maxims of it What things are requisite to make a good Custom Time out of memory what and explained What shall be said an Interruption of Custom or not The unreasonableness of Customs by whom to be judged Several particular Customs ratione loci Of enabling and disabling Customs Of Customs and Prescriptions and the different manner of Pleading them The several sorts of Prescriptions and how and where Prescription must be made and by whom And when a Custom shall be said to be persued or not CAP. V. Of particular Customs enabling or disabling in respect of the Lord of the Tenant and of the Estate limited or leased and in respect of Discents CAP. VI. Customs of Manors as to Wives and Widows of Copy-holders what are good and what not And where the severance of the customary Tenements from the Manor shall not prejudice the Copy-holder CAP. VII Customs as to Timber Woods and Under-Woods and what Prescription by a Copy-holder to cut Trees c. shall be good or not CAP. VIII Customs as to Commons and where severance of the customary Tenements from the Manor by the Lord shall not prejudice and how the Copy-holder in such Cases shall be relieved by his Pleading CAP. IX Of customary Incidents or Collateral Qualities of Copy-hold Estates and how guided with the Illustration of several particular Cases CAP. X. The several sorts of Copy-holders and who shall be said to be customary Tenants Of Copy-hold Burrough English Of the Court Two sorts of Courts Baron Of the Copy-holders Court. Who may keep Courts and to what purposes and where Of the Steward his Office and power of Deputation and what he may do ex officio or not CAP. XI What things may be granted by Copy of Grants by the Lord Legitimus Dominus pro tempore What Grants by Disseisor Infant c. shall be good void or voidable Grants in respect of the Lords Person or Estate what shall be good or not Of Grants by the King Lord. Who shall be said a Lord sufficient to grant Copies What amounts to a Grant at what place to be granted Of Grants by the Copy-holder to the Lord. CAP. XII Exposition of Grants By what words in Grants Copyholds shall pass or not What thing shall pass by Grant of another thing as Appurtenant or Incident CAP. XIII Of Surrenders The nature of a Surrender General Rules and Diversities for the Explication Of the Alienation of Copy-hold Estates in general and of the selling of Copy-holds by Commissioners of Bankrupts in particular Of Surrenders 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 CAP. XIV What shall pass and by what words in a Surrender Of Attornment The Construction and Exposition of a Surrender Where no Use or Estate is immediately limited in whole or in part and where an Use is limited how far the construction shall be guided according to the Rules of Common Law or not Of use upon Use Surrender to the Use of ones Wife Where a Surrender is void for the uncertainty Of a Surrender to the Use of a person not in esse and of a Surrender to take effect in futuro CAP. XV. Constructions of Surrenders as to Limitations of Remainders and Reversions Of contingent Remainders Where the Heir shall be in by Discent or Purchase Of a Surrender to the Use of ones last Will and how to be construed Surrender upon Condition or Contingency Of Surrender before Admittance Surrender by whom and to whom By a Feme Covert Countermand of a Surrender and what Remedy to force a Trustee to Surrender CAP. XVI Of Presentment how and when to be made how to be pursuant to the Surrender Of the death of Surrendror or cesty que use or of the customary Tenants before Presentment or Admittance Two Surrenders and the second first presented CAP. XVII Of Admittances upon voluntary Grants Surrenders and Discents By whom Admittances upon Surrender made shall bind In what Cases the Admittance of one shall be the Admittance o another Of Admittance by Attorny Admittance where to be made Of Admittance upon Discent 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 before Admittance In what case the Lord shall be compelled to admit CAP. XVIII Fines certain uncertain Fines upon Discent or Purchase Of excessive Fines What Customs are good as to payment of Fines Of Fines as to Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine CAP. XIX Of the Entayling Copy-hold Estates The different Opinion of the Judges with an Abstract of the Reasons or Arguments how Copy-holds are or may be Intayled and when the Law setled as to that point How such Copy-hold Intayls may be barred And what Acts of a Copy-holder may be a Discontinuance CAP. XX. Of Leases of Copy-hold Estates Leases by the Lord and Rent reserved and his remedy Of Leases made by Copy-holders What Leases are a Forfeiture or not When a Licence to make a Lease shall be said to be pursued or not Commencement of Leases Leases by whom made Bishops Tenants in Tayl. Infant Of Rents What things are demisable by Copy CAP. XXI Of Licences What Licence shall be good By whom made shall bind or not Licence taken for a Confirmation When and where and how a Licence is to be pleaded specially CAP. XXII What shall amount to a Forfeiture Non-fezance Mis-fezance Of refusal of Rent Services c. Non-appearance at Courts Of making Leases not warranted What shall be said a Covenant and so no Lease and so no Forfeiture What alienation shall be a Forfeiture or not Of Forfeitures by Waste in Trees By Attainder of the Tenant What act of the Husband shall forfeit the Wives Lands or not Who shall take advantage of a Forfeiture Where the Lord shall take advantage before a Presentment or not Where the Forfeiture of one Copy-hold shall be the Forfeiture of another either as to Estates or Persons What shall be a dispensation of a Forfeiture and if the Heir shall take advantage of a Forfeiture made in the Life of his Ancestor CAP. XXIII Of Extinguishment of Copy-holds How Copy-holds are destroyed by the act of the Lord or of the Copy-holder Where and how a right to a Copy-hold shall be estopp'd or extinguished by acceptance of a new Estate or release of the old Where and in what Cases a Copy-hold shall be suspended and revived or re-granted CAP. XXIV How and where a Copy-holder shall hold his Land charged or not Of charges by the Lord Copy-holder as Dowers Rent-charges Statutes c. and by whom they shall be avoided CAP. XXV Of Harriots The nature of Harriot-Custom and Harriot-Service
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
concessis al 2. pro vitis in reversione Co. Entr. 184. Paying Fine and renewing Leases The Custom was That the Land was demiseable for twenty one years paying the treble value of the Rent and if he dyed within the Term that the Term should be to his Heir paying a Fine certain of one years Rent and if he Assigned the Term the Assignee should have it paying for a Fine one years value of the Rent and he who had it might by the Custom renew it for twenty one years paying three years value and this was admitted to be a good Custom by the Court Croke Jac. p. 671. Page's Case To assign one to take the Profits of a Copy-holder Infant The Custom was The Lord of a Manor might assign one to take the Profits of a Copy-hold descended to an Infant during his non-Age to the use of the Assignee without rendring an account it was held to be a good Custom as a Rent granted to one and his Heirs to cease during the non-Age of every Heir and admitting the Custom were void yet an Action of Account lyes not Prochein Amy. for the Defendant hath not entred and taken the Profits as Prochein Amy in which case although he was not Prochien Amy he is chargable as Prochein Amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the Right of the Heir 1 Leon. p. 266. Case 357. Anonymus The Custom was The Lord to dispose the Estate when the Tenant leaves it in incertainty That if any one surrender to the use of another without expressing any Estate that the Lord may grant it in Fee to him to whose use the surrender was made it s a good Custom for he is a Chancellor in his own Court to dispose thereof when the Tenant leaves it uncertain Crok El. 392. Brown and Foster Custom in the Manor of Sedgly in Com. Staff was Lease to be void if Copy-holder dye within the year If a Copy-holder make a Lease without Licence of the Lord for one year and dyes within the term it shall be void against the Heir Per Cur. it s a good Custom for then the Lord may know his Tenant and the Tenant may have the Estate and pay his Fine It s void by the act of God but had the Custom been That if a Copy-holder within the year surrender his Copy-hold that the Lease shall be void this is an unreasonable Custom Lit. Rep. 233. Hutton 126 127. Turner and Hodges Custom To Lease without Licence That five Copy-holders without License they being seized in Fee may make any Lease for one year or many years and when they dye the term shall cease and the Heir may enter it s a good Custom Hutton p. 101. Custom To hold after the term ended That a Lessee for years may hold the Land for half an year after the term ended it s no good Custom More n. 27. Not to alien without Licence Custom That a Copy-holder shall not alien without Licence is good for it may have a lawful commencement by agreement To Lease without Licence A Custom That on payment of a years Rent the Lord should Licence to let for 99 years and if he refused the Tenant might do it without Licence adjudged a good and reasonable Custom Grove and Bridges cited in Porphyry and Legingham's Case 2 Keb. 344. For Lessee pur vie to let for another mans Life A Custom That Lessee for Life may let for another man's Life is no good Custom but the Lord may by Custom Lease the same for Life and forty years after More n. 27. To commit a forfeiture and so to bar the Intayl A Custom for a Copy-holder tenant in tayl to make a Lease for years without Licence to commit a Forfeiture on purpose to bar the Intayl and to transfer the Lands over to any other person is a good Custom and is but in the nature of a Surrender or Common Recovery 2 Saunders 422. Grantham and Coples And the Lord in such cases may not admit any other but him to whom it is appointed by the Tenant making such Forfeiture and when such Cesty que use is admitted he shall avoid all mean acts or dispositions made by the Lord as well as upon a Surrender and this though he was not admitted in the life of the Tenant so forfeiting Vide infra Tit. Intayling Copy-holders In respect of Discents The Manor of Wadhurst in Com. Sussex consisted of two sorts of Copy-hold viz. Sookland and Bondland and by several Customs in several Manors as if a man be first admitted to Sookland and afterwards to Bondland and dyes seized of both his Heir shall inherit both but if he be first admitted to Bondland and afterwards to Sookland and of them dye seized his youngest Son shall Inherit 1 Leon. p. 36. Kemp and Carter A. Seized of Copy-hold in Fee Copy-hold Burrough English in the nature of Burrough-English surrenders this into the Hands of the Lord ea intentione That he shall re-grant this to him and his Wife and to the Heirs of himself and the Lord re-grants this accordingly And there is a Custom That if any person seised in Fee of such customary Lands and dyes so seized that the Land shall descend filio juniori c. And A. having Issue three Sons and ten years after his death the youngest Son dyes in the Life of his Mother without Issue Per Jones and Crook The elder Brother shall have this as Heir to the youngest and not the middle Brother Custom not to extend to Collateral Descents for the Custom may not extend to a collateral Descent viz. to direct the Descent amongst the Brothers for this is out of the Custom and the Custom was once satisfied by Descent to the youngest and there is an end of the Custom and where Custom fails Common Law shall guide the Descent Where Custom fails Common Law guides the Descent And by this special Custom he which is youngest Son at the death of the Father shall have the Land and not he which comes to be youngest afterwards but Bramston and Berkly contra 1 Rolls Abr. 624. Reeve and Malster Vide Maxims of Copy-holds supra CAP. VI. Customs of a Manor as to Wives and Widows of Copy-holders What are good and what not As also of Tenancy per le Curtesie And where the Severance of the customary Tenants from the Manor shall not prejudice CUstom of Manors That Husbands shall be Tenant per le Curtesie and the Pleading More 171. Custom of a Manor is That the Wife shall have it during her Life and on Evidence it appears the Custom was she should have it durante viduitate this Evidence doth not maintain the Custom because it is a less Estate Cok. 4. Rep. 30. That the Wife of a Copy-holder for Life may hold it durante viduitate was agreed to be a good Custom
and so the Custom of Taunton-Dean That if a Copy-holder in Fee marries a Wife If the Wife survives she shall have the Fee if the Wife survives she shall have the Fee sic e converso agreed to be good Noy Rep. p. 2. There can be no Dower nor Tenancy by the Curtesie of the Copy-hold unless by special Custom 1 Anderson 292. Lease made before admittance A man may be Tenant by the Curtesie by Custom Though the Husband enter into the Land in the right of the Wife before admittance and the Wife dyes before admittance his Lease shall be good 1 Anderson 192. Ewer and Astwick It was admitted by the Court to be a good Custom That an Executor or Administrator shall have an year in the Land of the Copy-holder Custom that the Executor shall have an year in the Copy-hold against the Wife that claims her Free-Bench Noy p. 29. Remington and Cole If a Woman be Dowable of Copy-hold by Custom if the Husband after the marriage makes a Lease for years good by the Custom Tenant in Dower shall not avoid a Lease made by the Husband the Tenant in Dower shall not avoid it but it shall precede the Dower More n. 147. Holder and Fairly For he comes under the Custom as well as the Feme The Custom of a Manor was Quod quilibet tenens per Copiam poterit dimittere terras suas pur vie or in Fee or in Tayl Custom that the Wife Feme covert may Devise and that a Woman cooperta viro poterit devisare her Copy-hold Land to her Husband or to any other by the assent of her Husband Per Cur. The Custom is not unreasonable But because it was poterit devisare which is a word of justification and it should have been usi sunt devisare by way of excuse it was adjudged against the Plaintiff More n. 268. And so was one Welsh's Case in C. B. 41 El. 3 Leon. p. 81. Skipwith's Case The Custom was That Widows should enjoy during their Widow-hood Where the severance of the customary Tenants from the Manor shall not prejudice the Widow in her customary Estate The Lord Grants a customary Tenement of the Manor unto J. B. for Life by Copy and after conveys the whole Manor to W. who conveyed the Inheritance and Free-hold of B's Tenement for mony paid by B. to J. S. and others and their Heirs during the Life of J. B. the remainder to Ellen then Wife of J. B. the remainder to J. B. in Fee J. B. Grants his remainder in Fee to his Son and his Heirs The Son having Issue a Son dyed and then Ellen dyed J. B. marries Frances and dyes seized of his customary Estate Frances shall enter and enjoy her Widows Estate for it is clear That the customary Estate of J. B. remained as it was during his Life not extinct nor altered by the purchase of the Fee-simple which during his Life was in others not in him and then it follows by consequence That all customary Incidents to such a customary Estate remain whereof this is one which by Custom and Law grows of it self out of that Estate as a Descent should have done if J. B. had been a Copy-holder in Fee and the Freehold had been granted to another in Fee Hobart p. 181. Howard and Bartlet It is not in the power of the Lord to destroy Widows Estates By the severance Incidents to the Tenancy are not destroyed but Incidents to the Seigniory are The Law vests the Estate in a Woman that is to hold durante viduitate before admittance The Custom is That a Woman shall hold durante viduitate she shall make a Lease before admittance for in that case there is no Fine due to the Lord and the Law vests the Estate in her Noy 29. Remington and Cole Hobart 181. Vide Admittance The Lord Enfeoffs the Copy-holder this destroys Free-Bench A Custom of a Manor was found to be That if a Copy-holder in Fee dyes seized his Wife should hold it during her Life as Free-Bench the Lord Enfeoffs the Copy-holder who dyed seized Per Cur. she shall not hold her Free-Bench aliter if the Lord had enfeoffed a Stranger of that Land yet the Land remained Copy-hold and the Custom is not taken away Crok Jac. 126. Lashmer and Avery Damages recovered in Dower A Woman recovered Dower in the Lords Court and 40 l. because her Husband dyed seized and she brought Debt for the Damages in the Kings-Bench Per Cur. The Action lyes not because the Court-Baron could not hold Plea nor award Execution of 40 l. Damages although the Damages were there well assessed More n. 559. If a Feme Copy-holder holds the Land durante viduitate and then takes Husband the Lord shall have the Corn Oland's Case Vide Emblements The Widows customary Estate is due to her Divorce though there was a Divorce a mensa thoro Hobart p. 181. Howard and Bartlet Tenant of a Copy-hold for Life Whether the Widow attaint for Felony shall have her Estate of viduity in which the Custom was That the Wife should have her Widows Estate and the Husband was attaint of Felony and Executed The Question was whether she should have it Winch not without a special Custom Winch Rep. 27. Allen and Branch That the Wife shall not have her Dower The Wife to claim her Dower within a year and day except she claim it within a year and a day it s said to be a good Custom 3 Leon. p. 226. Pleadings Custom Quod Uxores habeant Tenementa custumaria durante viduitate sua Dyer 192. 3 Br. 403 476. Hern 73. Quod Uxores Tenen custumar in feodo habeant pro vita Tenementa unde viri obierunt seisita Et si viri dimiser tunc revers reddit Cok. Ent. 123. CAP. VII Custom as to Timber Woods and Vnder-Woods and what Prescription by a Copy-holder to cut Trees shall be good or not TEnant by Copy of Court Roll cannot by the Common Law take Trees for House-bote Hedge-bote and Cart-bote c. as Tenant for Life or Years may do who have an Estate certain but a Copy-holder by special Custom may do it Cro. El. p. 5. Lord Mountague against Sheppard Where a Custom was alledged to be That every Copy holder may cut down Trees at his pleasure this Custom is against Common Law Winch p. 1. If a Custom be That a Copy-holder may not cut down Trees it is good or not good with this difference If he be a Copy-holde of Inheritance such a Custom is good but if he be a Copy-holder for Life its noâ— good 1 Bulstr 150. Earl of Northumberlanâ— against Wheeler The Tenant prescribes to câ—â— and dispose all the Trees upon his Tenancy its an ill Prescription Aliter of a Copy-holde of Inheritance Noy p. 2. So it is adjudged it 1 Rolls Abr. 650. Glascock and Peche It s a good Custom Copy-holder in Fee
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
Inheritances at the Common Law have unless it be by Custom for though they are Estates of Inheritance according to the Custom yet they are not Estates of Inheritance simpliciter that is to have all collateral Qualities as Estates in Fee-simple have but only such which Custom hath setled and allowed 4 Rep. 22. Brown's Case And accordingly my Lord Hobart in Cox and Darsen's Case p. 215. c. saith The collateral Incidents of Estates as Dower Tenancy by the Curtesie Wardship c. are not without special Custom And therefore Copy-hold Inheritance shall not be Assets to charge the Heir in an Action of Debt upon Bond made by his Father Copy-hold Lands not Assets in the Heir tho' he has therein bound his Heirs neither shall the Wife of such customary Estate be indowed nor the Husband be Tenant by the Curtesie neither shall the descent of any such Estate toll the Entry of him that had customary Right c. But to explain this in these before-mentioned Qualities and others I shall Illustrate it by several Cases and Resolutions Dower The Wife shall have Dower of a Copy-hold by special Custom otherwise not and when she is to be endowed of a Copy-hold by the Custom then she shall have all the incidents to Dower as to recover Damages for the Profits from the death of her Husband by the Statute of Merton C. 1. De viduis 4 Rep. 30. Shaw and Tompson Tenant by the Curtesie and that without admittance of the Wife The Custom of a Manor was That if any man had a Wife who was a Copy-holder in Fee of the Manor and had Issue by her that he should be Tenant by the Curtesie of the Land A. a Copy-holder was seized and had Issue a Daughter who was married to J. S. who had Issue A. dyed his Wife entred the Wife dyed before admittance The Question was if by the Entry of the Husband without admittance of the Wife he should be Tenant by the Curtesie Per Cur. he shall the delay of the admittance of the Wife shall not prejudice the Husband being a third person More n. 425. Ever and Aston but if a Woman Copy-holder in Fee takes Husband who had Issue and the Wife dyes there the Husband shall not be Tenant by the Curtesie without special Custom 4 Rep. 22. Ryers Case Descent tolls not an Entry Discontinuance The Descent of a Copy-hold doth not toll an Entry 4 Rep. 22 23. Bullock and Dibly and 3 Rep. 9. You may see there where the Entry shall be congeable by the Issue after a Surrender or Lease by Licence of the Lord made by the Ancestor and shall not be a Discontinuance The Lord seized a Copy-hold without cause and grants it to another in Fee Grantee dyes seized and his Heir is admitted The first Copy-holder dyes his Heir enters and Surrenders to the use of a Stranger Per Cur. 1. Descent of a Copy-hold shall not take away the Entry of another Copy-holder who hath right 2. The Entry of the Heir without admission is lawful and being in his Surrender is good Cro. Jac. 36. Joyner and Lambert If one seized of Copy-hold Land in the Right of his Wife Surrender this to the use of another in Fee who is admitted accordingly the Husband dyes this is no discontinuance to the Wife nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to her sur cui in vita If Copy-holder for Life Surrender to the use of another in Fee this is no Forfeiture Surrender by Copy-holder for Life to one in Fee is no forfeiture for this passeth by Surrender to the Lord and not by Livery And Copy-hold Estates shall not have such qualities as Estates at Common Law have without special Custom 4 Rep. 4. Clun and Pearse and therefore where by Custom of the Manor But recovery by Pleint in a real Action shall be a discontinuance Pleints have been made in the Court of the Manor in the nature of real Actions That if a Recovery be in a Pleint in the nature of a real Action against a Tenant Copy-holder in Tayl it s adjudged that this shall be a discontinuance and shall take away the Entry of the Heir in Tayl for these Pleints in the nature of real Actions are warranted by the Custom this is an incident which the Law annexeth to the said Custom and such recovery shall be a discontinuance 4 Rep. 23. Deal and Rigden Having finished the Learning of Customs in order to the understanding of Copy-hold Estates it will be convenient to say something of the customary Tenant and of the Court and the Steward which shall be attempted briefly in the next Chapter CAP. X. The several sorts of Coph-holders and who shall be said to be customary Tenants Of Copy-hold Burrough-English Of the Court Two sorts of Courts Baron Of the Copy-holders Court. Who may keep Courts and to what purposes and where Of the Steward his Office and power of Deputation what he may do ex officio or not WE read of three kinds of Copy-holders in our Book I. Terra Nativa These were called Bond-Lands also because they held in Villenage II. Custumary And this was held by Free-Tenants III. Mensales As also Dominica because by this the Table of the Lord is maintained Some Copy-hold Land is called Poadland and some Molland a molli redditu where some small Rent was reserved There were two other manner of Copy-holds Old Aster and new Aster Aster signifies a Chimney those Copy-hold Lands which had had usually for a long time an House on them they called Old Aster Lands but those which of late had an House built on them they called New Asters And in old Records the Bastard Eigne did plead That he was Filius Askarius as much as to say Born in the House 2 Rolls Rep. 235. M. 20 Jac. B. R. Smith and Reynard Some Copy-hold Land is in the nature of Burrough-English Cro. Jac. 56. Curtis's Case Copy-hold Burrough-English And so shall descend to the youngest Son Some Copy-hold is of the nature of Burrough-English as well for the Brother as the Son Cro. Jac. 101. Whitton and Williams Between a Copy-hold in Burrough-English and a Freehold in Burrough-English there is not any difference as to descents Cro. Car. 411. Baron and Feme Copy holders for Life of Copy-hold of the nature of Burrough-English Reversion to the Husband in Fee he had Issue three Sons William George and Charles The Father dyed seized of this Reversion which descended to Charles Charles dies without Issue the Wife dyes Question was whether William Brother and Heir of Charles or George should have it Berkly and Bramston were for George because there being a Reversion expectant upon Estate for Life George shall take his Title from his Father and take by descent from him who had seisin of the Free-hold and not make mention of him who had the
Reversion expectant upon an Estate for Life In all Writs where a man conveys by discent there shall not be mention of any but those who had seisin And in all Actions and Writs where a man conveys by descent there shall not be mention of any but of those who took the Estate and had seisin and not from others who never had seisin the Law esteeming them as if there had been never any such persons and by consequence he may claim here as youngest Son by the custom as Heir in Burrough-English as if Charles had never been because he hath it in course of descent and this is true at Common Law but Jones and Croke held that William had the better Title for Charles being youngest Son at the time of the death of his Father that makes him Heir in Burrough-English by the Custom and when it rests in the youngest Son as Heir by the Custom the Inheritance is fixed in him and he only who is in esse at the time of his Fathers death shall have as by Custom this seems to be the better Opinion Crok Car. 410. Reeve and Malster Who may be said to be customary Tenants A Wife that hath her Widows Estate according to the Custom of the Manor is a good customary Tenant So Tenant per the Curtesie per the Custom In Gloucestershire there is in a Manor a Custom That Executors shall have the Profits for a year In some sense they are good customary Tenants Under-Tenant in what respect Custom was That for Waste to be amerced and to distrain for such amerciament the Beast of the under-Tenant as well as the Tenant is liable The under-Tenant is a customary Tenant to this purpose and no Stranger Transit terra cum onere he enjoys the Priviledge of a customary Tenant and he shall undergo the Charges March Rep. 161. Thorn and Tyler Note There is difference between customary Lands and Copy-hold Lands Freehold as well as Copy may be customary Lands as ancient Demesn may pass by Surrender in some Manors and by Copy and ancient Demesn may pass by Feoffment as Surrender Vide Peryman's Case Rep. Court The Nature of a Court Baron and who may keep Courts or not A Manor cannot be without a Court Baron Vide supra it is inseperably incident to a Manor without any Grant from the King to keep the same and this is not drawn from the Crown but is to be held de necessitate 1 Bulstr 6. The King and Stafferton The Court Baron must be holden within the Manor Where to be held for if it be holden without the Manor it is void unless a Lord being seized of two or three Manors hath usually time out of mind kept at one of his Manors Courts for for all the said Manors then by Custom such Courts are sufficient in Law albeit they are not holden within the several Manors Co. Lit. 58. a. There may be a customary Manor held by Copy and such a customary Lord may keep Courts and grant Copies 11 Rep. Nevil's Case Cro. Jac. 260. contra Now there are two sorts of Court Baron Two sorts of Court Baron one at Common Law incident to every Manor and is of Freeholders and the Freeholders are Judges There is also a customary Court consisting of customary Tenants for without them it cannot be and this Court may be holden without any Free Tenants or other Suitors except Copy-holders and of this Court the Lord or his Steward is Judge Co. Lit. 58. And when the Court Baron is of this double nature the Court Rolls contain matters appertaining to both Honour what An Honour consists of many Manors yet all the Courts for the Manors are distinguished and have several Copy-holders and though there is for all the Manors but one Court yet are they quasi several and distinct Courts One Court kept for many Manors and so it was usually in the time of the Abbots they kept but one Court for many Manors Cro. Car. 361. Seagood and Hone. When the Lord of a Manor having many ancient Copy-holds in a Vill grants the Inheritance of all his Copy-holds to another Customary Court how made and may be held the Grantee may hold Court for the customary Tenants and accept of Surrenders and make Admittances and Grants for although this is not a Manor in Law because there want Freeholders yet there may be holden a Court for Copy-holders and the Lord or Steward is Judge And as the other being a Court Baron may be called the Freeholders Court this may be called the Copy-holders Court so if all the Freehold do Escheat or if the Lord release the Tenure and Services of all his Free Tenants yet the Lord may hold a customary Court for his Copy-hold Tenants So if the Lord demise all his Lands granted by Copy to another for a thousand years such Lessee may hold Court for the Copy-holders 4 Rep. 26 Melwich's Case and Sir Christopher Hatton's Case cited in Neal and Jackson's Case 27. These number of Copy-holds may support a Custom but a single Copy-hold cannot hold a Court. Tenant at Will of a Copy-hold Manor may grant Copyhold Estates but cannot keep Courts Guardian in Socage keeps Courts in his own name and grants Copies its good and shall bind the Heir Vide Tit. Grants Cro. Jac. 55 98. Shopland and Rider The Lord himself may Grant or make Admittance out of the Manor at what place he pleaseth but so cannot the Steward 4 Rep. 26. Melwich's Case 27 Clifton and Mollineux Court may be held out of the Manor by Custom but by Custom the Court may be held out of the Manor and Grants and Admittances there made be good as divers Abbots Priors c. have kept one Court for many Manors Steward Every Steward of Courts is either by Deed or without Deed for a man may be retained a Steward to keep his Court Baron and Leet without Deed and that retainer shall continue till he be discharged Co. Lit. 61. b. 4 Rep. 30. And such Steward may take Surrender of customary Tenants out of the Court 4 Rep. 30. Holcroft's Case In all real Actions which concern Lands the Suitors are the Judges but in personal Actions under the Sum of forty shillings the Steward is the Judge Steward without Deed may take Surrenders out of Court but the Custom must warrant it Note Difference between a Steward of a Manor and the Steward of a Court. A difference between Steward of a Manor and the Steward of Courts Steward of a Manor may take Surrenders in any place 1 Leon. p. 227. Case 307. Blagrave and Wood. Steward appoints his Deputy to keep a Court ad tradendum Copy-hold Land to W. for Life Deputy the Deputy commands H. his Servant to keep Court and grant the said Land and the Custom found did not extend farther than the Deputy though a Deputy cannot transfer his Authority over being an office of Trust yet
mortem sursum redditionem vel forisfacturam of the Feme and after the Husband Surrenders to the Use of B. for Life and so he is Admitted Tenant and after dyes In this Case C. shall not have this because his Estate is not to commence till after the Death Surrender or Forfeiture of the Feme and the Feme here is in Life and had not made any Surrender or Forfeiture and the Wife had right in this in the nature of a plaint de cui in vita But the Lord in this Case may retain it in his own proper hands or disposition Occupant during the Life of the Husband quasi an Occupant Dyer 9 El. 264. Sect. 38. Surrender to whom To the Wife By the Husband to the Use of the Wife is good vide supra and 4 Rep. 29. Bunting's Case for it is done by Surrender to the Lord and Admittance To the Steward A Surrender made to the Steward to the Use of the Steward is good for the Entry is quod sursum reddidit in manus Domini and the Steward is but the Lords Servant and the surrender is to the Lord and not to him Cro. El. p. 717. Erish and Rives So Infant Vide supra Of Countermand of a Surrender Where the Surrender of a Copy-hold may be Countermanded by the Party himself and what collateral Act without the assent and privity of the Party shall be a countermand and where and what not Grant by Baron and Feme shall bind the Feme notwithstanding the Coverture so Grant by non compos mentis Infant Vide supra Vide supra Where and what Grants by Lords of Manors shall be good or defeasible in respect of the Estate they had therein Surrender is not Countermanded by the death of Surrenderor before Presentment 4 Rep. 29 Bunting's Case VVhere the Customs are not pursued the surrenders are void Vide sparsim and 5 Rep. 84. Peryman's Case Surrender by Steward or Deputy Steward and of persuing their Warrants vide Steward supra What remedy to force a Trustee to Surrender A Copy-holder doth surrender to the Use of one A. in Trust In the Lord's Court. that he shall hold the Land until he hath levied certain Monies and that afterwards he shall surrender to the Use of B. The Monies are levied A. is required to make surrender to the Use of B. he refuseth B. exhibits a Bill to the Lord of the Manor against A. who upon hearing of the Cause Decrees against A. That he shall Surrender he refuseth Now the Lord may seize and admit B. to the Copy-hold for he in such case is Chancellor in his own Court Per totam Curiam 1 Leon. 2. Or relief may be had in Chancery CAP. XVI Of Presentment How and when to be made How to be pursuant to the Surrender What the Law is if Surrenderor or Cesty que use or the customary Tenants into whose Hands the Surrender was made dye before Presentment or Admittance VVhere two Surrenders are and the second Surrender is presented first Presentment No good Surrender till presented IF the Surrender be made out of Court into the Hands of the Lord himself which the general Custom will warrant or into the Hands of the Bayliff or of two Tenants of the Manor which is warrantable only by special Custom there must be a true Presentment of the Surrender in Court by the same Persons into whose Hands the Surrender was made and the Admittance of the Lord must be according to the effect and tenor of both the Surrender and Presentment It is not an effectual Surrender till it be presented in Court And therefore in an Action on the Case on Assumpsit in Consideration that the Plaintiff would surrender to the Defendant and his Heirs a Copyhold according to the Custom of the Manor Defendant assumed to pay 500 l. and for breach of this promise the Plaintiff brings the Action and had a Verdict but Judgment was arrested because the Consideration on the Plaintiffs part was not performed for the Consideration was That he should surrender the Copy-hold to the Defendant and his Heirs and he hath alledged the surrender to be into the Hands of a Copy-hold Tenant of the Manor to Use of the Defendant which is no surrender untill it be presented at the next Court and so it is uncertain whether it shall take effect or not Stiles p. 256. Shaan and Shaan The Presentment by the general Custom of Manors is to be made at the next Court day When to be be made immediately after the surrender but by special Custom at the second or third day afterwards and by Rolls in Jay's Case Stiles 275. there is no certain time but as the Custom is so that it be within the Life of the Tenant it is to be made by the same persons that took the Surrender and in points material according to the true tenor of the Surrender But if the Surrender be conditional Presentment must pursue the Surrender and the Presentment absolute the Surrender Presentment and Admittance are void except the Steward in the entry of it omits the Condition and upon sufficient proof made in Court of that the Surrender shall not be avoided but the Roll amended and this shall be no conclusion to the Party to plead or give in Evidence the truth of the matter 4 Rep. 25. Kite and Quinton But in May's Case Norf. Summer Assises 1663. The Custom of a Manor was for a Copy-holder in extremis to surrender into one Tenants Hands in the presence of credible Witnesses and a Surrender was made accordingly but presented to be done to another Tenant yet being proved to be done to a Tenant of the Manor It was holden by Wadham Windham Justice to be good Of Presentment where the Surrenderor or Surrendree Cesty que use or customary Tenants dye before Presentment or Admittance Surrenderor dyes If one Surrender out of Court and dye before Presentment if Presentment be made after his death this is good 4 Rep. 29. Bunting's Case Cesty que use dyes If Cesty que use he to whose Use the Surrender is made dyeth before Presentment yet upon Presentment made after his death his Heir shall be admitted Stiles p. 145. Barker and Denhan Surrenderor and Cesty que use both dye If one Surrender out of Court to the Use of one for Life the Surrenderor and the Lessee for Life both dye before the Presentment yet upon Presentment made he in Remainder shall be Admitted Surrendree dyes Surrendree dyes before Admittance his Heir may be Admitted and if it be Burrough-English the youngest Son 2 Siderfin 38 61. The Tenants into whose hands the Surrender was made dye If the Tenant into whose Hands the Surrender was made dye before Presentment yet upon sufficient proof made in Court That such a Surrender was made the Lord shall be compelled to admit Co. Lit. 62. Nothing passeth till presentment But nothing passeth till Presentment
of Fines the Plaintiff shewed divers Court Rolls of Admittances upon Surrenders and that the Fines taken by the Lord were not certain but sometimes one sometimes another Per Curiam To prove a Custom for uncertainty of Fines and not to be certain two years Rent there ought to be shewed Court Rolls Fines upon Discent and Purchase and that in Cases of Descents and that upon such Admittances they used to pay two years Rent the proof ought to be in case of Descents for in case of a Surrender or Purchase the Lord may take what Fine he will But such Fines are no proof to prove the taking uncertain Fines by the Custom but the same ought to be in cases of Descents Of Fines reasonable Excessive Fines how to be determined But where the Fines are uncertain yet the Lord cannot exact excessive Fines and if the Copy-holder deny to pay it it shall be determined by the Opinion of the Judges before whom the matter depends Hubbard and Hamon's Case cited 1 Brownl 186.4 Rep. 27. mesme Case Co. Lit. 59 60. To this purpose is Denny and Lemon's Case Hobart p. 135. Copy-holder brought Trespass against his Lord. Defendant pleads he had admitted the Copy-holder and had assessed a Fine of twenty Nobles and had appointed him to pay it to his Bayliff at his House within the Manor three Months after and alledged he had not paid it The Plaintiff demurs Whether in pleading the reasonableness of the Fine must be averred for that the Lord had not averred the Fine was reasonable But Per Cur. the Lord is not bound to aver it but it must come on the Copy-holders side to shew the circumstances of the Case to make it appear to the Court to be unreasonable and so to put it upon the Judgment of the Court for the Fine in Law is arbitrary and is due to the Lord of common Right and it is only in point of excuse to the Tenant if it be unreasonable and the Court shall judge the unreasonableness of it The Copy-holder if he be Defendant may plead not Guilty and then it shall come in Evidence whether the Fine were reasonable or not and so is the Opinion of my Lord Coke Comment upon Lit. Sect. 74. The reasonableness saith he shall be discussed by the Justices upon the true circumstances of the case appearing unto them and if the Court where the Cause dependeth adjudgeth the Fine exacted unreasonable then is not the Copy-holder compellable to pay it for all excessiveness is abhorred in the Law It was argued in Wheeler and Honor's Case That all Fines are reasonable unless the contrary appear 1 Keb. 154. What Customs are good as to payment of Fines Of Fines due by the Copy-holder to the Lord some be by change or alteration of the Lord and some by change or alteration of the Tenant If the Fine be due by the alteration of the Lord such alteration must be by act of God Fines due by the alteration of the Lord. for if the Lord do alledge a Custom within his Manor to have a Fine of every one of his Copy-holders at the alteration or change of the Lord of the Manor be it by alienation demise death or otherwise this Custom is against the Law as to the change of the Lord by the act of the Party for by that means the Copy-holders should be oppressed by the multitudes of Fines by the Lords own act but when the change groweth by the act of God there the Custom is good By the act of God as by the death of the Lord Co. Lit. 59. b. Due by the alteration of the Tenant But it is a good Custom that the Copy-holder had used to pay a Fine upon every alteration of the Tenant either by the act of God or by the act of the Party Co. Lit. 59. b. Armstrong's Case The Fine is to be assessed by the Lord. The Fine by whom to be assessed But in some places the Custom is That the succeeding Copy-holder shall compound with the Lord for his Fine and if he cannot compound then the Homage of the Manor shall assess the Fine as was the Case of Ford and Hoskins Cro. Jac. 368. Custom not to pay a Fine till full Age. The Custom is not to pay a Fine till one come to Age it s a good Custom 3 Keb. 90. agreed to in Champian and Atkinson's Case Fines as to Admittances to Reversions or Remainders Copy-holder in Fee surrenders to the Use of another for Life when Lessee dyes he shall not pay a Fine for his Admittance to the Reversion for this continues always in him 2 Rep. 107. Margaret Podger's Case If Copy-holder in Fee surrender to the Use of one for Life the Remainder to another for Life the Remainder to another in Fee there is but one Fine due for the particular Estate and the Remainders are but one Estate 1 Rolls Abr. 505. What refusal to pay a Fine shall be a Forfeiture or not If the Fine be uncertain Notice to be given if the Fines be uncertain notice must be given before there be a Forfeiture aliter if the Fine be certain but yet Denny and Lemon's Case is good Law Time and place must be ascertained and refusal must be proved 1 Keb. 154. 4 Rep. 27 28. The Lord assesseth a Fine of 12 l. to be paid by a Copy-holder Tendring the Fine certain though not the Fine assess'd is no forfeiture and appoints it to be paid at his Capital Messuage of the Manor three Months after and the Copy-holder pretending the Fine to be certain viz. two years Quit-Rent offered at the day of assessing the Fine according to the Rent for two years but at the day appointed for the payment thereof cometh not thither to excuse his non-payment nor makes any other refusal Per Cur. this is in Law a forfeiture of his Copy-hold but if he had come at the day assigned him for the payment and had then tendred the two years Quit-Rent being the Fine certain though not the Fine assessed it had been no forfeiture Cro. Jac. p. 617. Gardner and Norman It is adjudged in the Case of Dalton and Hammond More n. 851. If the Fine be certain the Tenant is to bring it with him to the Court and pay it before Admittance and if he be not ready to pay it it s a Forfeiture aliter of the refusal to pay an excessive Fine Where a Copy-holder hath divers several Lands For every several Tenure several Fines severally holden by several Services by Copy there the Lord may assess and demand Fines severally for every parcel which is so severally held for the Tenant may refuse to pay a Fine for the one and so forfeit this and yet pay the Fines for the others and for every several Tenure the Lord ought to demand and assess a several Fine as in Tavernor and Cromwel's Case 4 Rep. 28. Hobart and Hamond's Case How the
Statute by Equity work to make it an Estate Tayl also of this nature of the Land Popham's Rep. 33. Gravenor and Brooks so Bullen and Grant's Case A Copy-holder Surrendred to the Use of J. for Life the Remainder to H. and the Heirs of his Body it was a Question if this Estate limitted to H. was an Estate Tayl or a Fee-simple conditional for if it were a Fee-simple conditional then there cannot be an other Estate over but yet in Case of a Devise an Estate may depend upon a Fee-simple precedent but not as a Will but as an executory Devise Per Wray it is an Estate Tayl. Coke then said They who would prove the Custom to Entayl Copy-hold Lands within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies but they ought to shew that Surrenders made by such persons have been avoided by such matter But by Wray that is not so for customary Lands may be granted in Tayl and yet no Surrenders have been made within time of memory 1 Leon. p. 174. Bullen and Grant Cro. El. 148. mesme Case Heyden's Case in 3 Rep. 8. is clear That neither Statute without the Custom nor the Custom without the Statute but both co-operating may create Tayl. And as for Custom if the Custom be to grant Lands in Fee-simple this without question may be granted to one and the Heirs of his Body by Copy for omne majus includit minus My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case First says he a Copy-hold may be Entayled not Entayled as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold which is a kind of base Estate and which might be grantable to one and the Heirs of his Body according to the Custom and if he dyed without Issue it might be aliened again and that a Copy-holder could not bar his Issue unless by a Recovery such an Estate might be by Custom I hold saith he That the Evidence may fall out to be such that we may take it for granted that Lands granted by Copy to one and the Heirs of his Body the Remainder over may be a good Remainder and the Reversion may continue in the Copy-holder the Donor may have a good Reversion and all this without the help of W. 2. That which confirms me is the constant practice of most Copyholds to have Estates over As for the reason of it if we shall give in Evidence for the purpose a Surrender in H. 7ths time wherein Lands are limited to one and the Heirs of his Body the Remainder over this is an Evidence that it was so in H. 7ths time and we have reason to think so it was past time of memory of Man And as your Evidence is for Custom so may your Case be to make an immemorial Custom Then all the Question is whether it will bear it or not In this Case of a Copy-hold being an Estate at will you may have it at will according to the nature of the Custom it is not against the Analogy and Reason of the Law and it may bear it the Evidence may be such If in H. 7th or E. the 4ths time it appears so it is a good warrant for matter of Evidence for a Jury to find That there were such Copy-hold Estates with limitation over Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body the Remainder over or to grant the Land by the name of a Reversion for here is no alteration of Common Law Estates The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate Proofs of an Estate Tayl. neither a Remainder nor a Reversion but the Act prohibiting Alienations Quo minus ad exitum illorum quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad donatorem si exitus ejus deficiat revertatur by operation of Law it comes to a Remainder or Reversion if by Custom such Estates may remain or revert so may Copy-holds by Custom because they are Tenants at will Now as by that construction W. 2. did make a Remainder or a Reversion so the Custom of prohibiting Alienations by Copy may make Reversions or Remainders of Copy-hold Estates If the Reader hath a mind to see other Cases about the Entayling of Copy-holds though they are all reduced to what is before cited he may peruse 2 Brownl 42 76. Keymer and Poel 121. Hill and Upchurch 1 Rolls Rep. 48. Warn and Sawyer Cro. El. 717. Erish and Rives c. 2 Brownl 121. The Law about Entayling of Copy-holds is setled and agreed by the Judges B. R. 17 Car. 2. Newton and Shaftoe's Case That it is by Custom and not by the Statute so agreed M. 18. Car. Pilkington and Stanhop's Case queux vide apres Of docking or barring Copy-hold Estates being barred by Fine or Recovery or otherwise It is agreed by all the Judges 1 Rolls Rep. 48. Warn and Sawyer's Case That if an Estate Tayl may be of a Copy-hold by Custom that by Custom it may be dock'd and destroyed See More n. 877. A Copy-hold may be Entayled by Custom and barred by a Recovery by special Custom and it was agreed that a Surrender may bar the Issue by special Custom Chard and Wyat so Lee and Brown M. 15 Jac. B. R. And it was agreed to be a strong proof of the Custom that they to whose Use such Surrenders had been made had enjoyed the Land against the Issue in Tayl 1 Rolls Abr. 506. mesme Case The Custom of the Manor of Wakefield was That they may Entayl their Copy-hold Lands and the Custom of the Manor to bar the Entayls and the Remainders there is That the Tenant in Tayl shall commit a Forfeiture as by making a Lease without Licenc c. and then for the Lord to make three Proclamations and to seize the Copyhold and then to grant this to the Copy-holder and his Heirs allowed to be a good Custom Also this Custom there was good That if Tenant in Tayl make a Surrender to a Purchaser and his Heirs of his Copy-hold and such Purchasor intending to bar the Entayl and the Remainders commits a Forfeiture upon which there is a seizure by the Lord and three Proclamations c. and so for him to grant these were adjuged good Customs though the Tenant in Tayl nor his Issue are privy See as to this last Custom in a Tryal at Bar in Ejectment Siderfin p. 314. Lessee of Pilkington contra Stanhop So in Ejectment in Grantham and Coplies Case 2 Sanders 422. And it was faâ—ther adjudged If such Forfeiture be presented in the Copy-hold Court and the Land seized in Manus Domini the Lord may not
admit any other but him to whom it is limited and assigned by the Tenant who made such Forfeiture and the Lord cannot dispose of it otherwise And farther That if the Lord admit any other and after sells the Manor to a Stranger by whom Cesty que use is admitted Cesty que use hath a good Title and shall avoid all mean acts and dispositions made by the Lord as he should if a Surrender had been made to his Use ibid. Mr. Keble in the Reporting of this Case of Coply's 2.823 saith A Surrender is to the Lord to the intent quod inde faciat voluntatem yet by Custom the Surrenderer by Petition or Declaration may direct it to any person whatever and the Lord must pursue it and there is no Estate in the Lord but it remains in the Tenants hands till Admittance of such party and the Purchasor might come in at any time The Case of Taylor and Shaw in Carters Rep. 6 22. The like Custom is adjudged void but that was upon a fault in the special Verdict Tenant in Tayl of Copy-hold Lands the Jury find a Custom That this is to be barred by seizure of the Lord as a Forfeiture non alio modo and not otherwise as the Lord Chief Justice Bridgman well observed and that being naught the whole Custom is in vain As for his first Reason of such a Custom being void that its a precarious Custom you must have the concurrence of the Lord or you cannot do it and Custom implies Right though this is of weight yet it might have been objected in Pilkinton's Case and Grantham's Case yet in these Cases such Custom is adjudged good But his second Reason is cogent by this negative Custom you destroy that which is essential to the Estate If you will allow a customary Tayl you must allow a customary Recovery and so this Case differs from those others Now these ways of barring Entayled Copy-holds are in nature of a Recovery to dock the Entayl But Rolls Opinin in Stiles 450. Pilkington and Bagshaws Case is not Law he conceived there could be no such Custom to cut off Entayled Lands of Copy-hold by the Forfeiture and seizure of the Lord for his seizure upon the forfeiture destroys the Copy-hold Estate at Common Law Modus Conventio vincunt Legem And therefore It was made a Question in Dell and Heydon's Case If Tenant in Tayl of a Copy-hold Remainder in Fee is impleaded by plaint in a Court Baron in nature of a Writ of Entry in the Post The manner how and the reason why a Recovery shall bar a Copy-hold Estate and suffers a Common Recovery with Voucher whether if Tenant in Tayl dye sans issue this shall bind the Remainder Cro El. p. 372. But Rolls in 1 Abr. 506. in the same Case saith this may be barred by a Common Recovery for a warranty may be annexed upon this by a Surrender to an Use or by a confirmation or by Release with Warranty and it may be intended he shall have other Copy-hold in value And Sir Francis More in the Report of this Case saith if Tenenant in Tayl come in as Vouchee this is a bar to the Issues and Remainder Surrender with warranty to an Use and grant accordingly makes the party in the per by the Surrenderor and upon this Warranty the Surrenderor may be vouched and Recovery in value shall be only of other Copy-hold Lands in the Manor No. 488. and in 4 Rep. mesme Case it s adjudged that such Recovery shall make a Discontinuance and shall take away the Entry of the Heir in Tayl. If a Copy-holder surrenders in Tayl and the Heir of the Donee is to bring a Formedon he ought to count of a Gift made by the Copy-holder who surrendred and not by the Lord for he is but the Instrument to convey it and nothing passeth from him Cro. El. 361. Paulter and Cornhil And yet in the Case of Clun and Pease adjudged since Dell and Higden's Case Per totam Curiam A Recovery with common Voucher in a Plaint in nature of a Writ of Entry in Curia Manerij shall not bind the Issue in Tayl for it shall not bind but upon expectancy of a Recovery in value which is the reason it binds for Land at the Common Law and here he cannot have any Land in value neither at Common Law nor customary Land for if it should be so Conveyed the Lord should lose his Fine and one should hold his Land as a Copy-holder without Admittance or Grant from the Lord which is contrary to the nature of a Copy-hold but it s a Discontinuance clearly which cannot be defeated by Entry Cro. El. p. 391. Now as a Feoffment will not destroy a Copy-hold Estate Entayled so neither a Fine or Recovery at Common Law It doth not make any Discontinuance Copy-hold Estate how discontinued or not for these being Common Law Assurances they do not work upon the Assurance of the Copy-hold and that that doth not work upon the right of the Estate Tayl cannot make a Discontinuance And the same reason of a Fine which is but a Feoffment on Record and the same reason holds a Fine may work to the destruction of an Estate where it is not preserved by special Custom but this is preserved by special Custom so for a Recovery that that is in demand is the Free-hold True if the Recovery were in the Lords Court there the Estate may be turned to a Right and a Recovery at Common Law cannot bar a Copy-hold Estate because of the Recovery in value to which the Warranty is annexed doth not go according to the Copy-hold but according to the Freehold These being Common Law Assurances work only a Common Law Interest and cannot work upon a Copy-hold this is the Abstract of Glin's Argument in Taylor and Shaw's Case Carter's Rep. How Copy-hold barred by a Fine at Common Law But the Lord Chief Justice Bridgman in that Case put a nice difference as to the barring Entayled Copy by a Fine at Common Law if a Copy-hold be suspended while it is in suspence a Fine at Common Law bars it for one cannot be a Copy-holder in Tayl and have the Inheritance of Freehold in himself it must be suspended for a time as if he divide the Copy-hold from the Freehold for a time and he there gave a notable difference Difference as to what may pass by a Fine or be barred by a Fine where a man may pass a thing by a Fine and where he may bar by a Fine a right of Copy-hold cannot be passed by a Fine but may be barred by a Fine A man that hath a Rent-charge he levies a Fine of the Land the Rent-charge is gone by it yet the Fine is not levied of the Rent but of the Land as for his other Reason from the words of the Statute 32 H. 8 Of Lands any ways Entayled c. I conceive that cannot extend to Copy-hold Lands Carter's
329. If a Copy-holder Lease for three years by the Custom and he leaseth for three years A Lease from three years to three years and so from three years to three years unto nine years this is a Forfeiture for this is a Lease for six years at least 1 Rolls Abr. 508. Luttrel and Weston T. Let Copy-hold Lands to W. by Articles of Agreement with promise and Covenant to hold for a year to halves at such a Rent according to the Custom of the Manor and so from year to year for five years the Question was If this be a Forfeiture And by the Justices in C. B. 19 Car. 2. in the Case of Lenthal and Wallop against Thomas A Covenant and not a Lease and so no Forfeiture It s no Lease A Covenant to hold to halves makes a Lease in no case A covenant and promise that J. S. shall have my Lands for five years may be a Lease where a Lease may be made especially where the words Covenant and Agreed is added but only by a favourable construction of Law which shall never work a Forfeiture 2 Keb. p. 267. Lease for years not warranted is no disseisin to the Lord. Note Lease for years by a Copy-hold though it be a Forfeiture yet it s not any disseisin to the Lord 8 Rep. 44. Noy 92. Therefore Infant Copy-holder in Fee leaseth for years sans Licence rendring Rent at full Age he accepts the Rent and after ousts the Lessee The Lessee brings Ejectment and Judgment for him Per Cur. this Lease may be affirmed by acceptance and agreed that such a Forfeiture doth not bind an Infant What Alienation shall be a Forfeiture and what not Surrender by a Tenant for Life to the Use of another in Fee is no Forfeiture Moor n. 983. Oldcot's Case If Tenant for Life of a Copy-hold suffer a Recovery as Tenant in Fee this is no Forfeiture of his Estate for the Free-hold is concerned and it is in a Court Baron where there is no Estoppel Mod. Rep. 199. Bird and Kick 200. If he make a Deed of feoffment and no Livery it s not a Forfeiture nothing passeth and so it s no alienation aliter of a Lease Quaere if the Feoffment be with Letter of Attorny Co. Lit. 59. Of Forfeitures by Waste If a Copy-holder erect a new House upon his Copy-hold without Licence Waste Erecting a new House this is not any Forfeiture for this is for the melioration of the Tenement 1 Rolls Abr. 507. Cecil and Cave A Mill. If he erect a Mill upon his Copy-hold it is a Forfeiture by Dodredge Lach. p. 123. in Grey's Case If a Copy-holder build an House upon his Copy-hold and after pulls it down again this is a Forfeiture 1 Bulst 50. Brook and Bear Where the Lord hath any other recompence the Law will not make any Forfeiture as Custom to amerce or fine for Hedges Inclosing Lit. Rep. 267. in Paston and Utbert's Case If a Copy-holder commits waste against the Custom of the Manor it is a Forfeiture 4 Rep. 27. Clifton's Case Voluntary waste is a Forfeiture of the Copy-hold by the Common Law Voluntary permissive but negligent waste not without a Custom Per Anderson and Walmsly Noy p. 51. in Farmer and Ward 's Case Vide infra Co. Lit. 63. a. If a Copy-holder suffer the House to decay and to be wasted this is a Forfeiture 1 Rolls Abr. 508. Rastal and Turnor Stranger commits Waste But if a Stranger commit waste upon the Copy-hold without the assent of the Copy-holder himself this is not any Forfeiture of the Estate of the Copy-holder 4 Rep. 27. Clifton's Case If a Copy-holder for Life cuts down Timber Trees the Lord may take them Under-Lessee cuts down Timber Trees 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. Cutting Timber Trees If a Copy-holder cut down great Trees viz. Elms to repair his Copy-hold House which is in decay and employ them accordingly this is not any Forfeiture because the Law allows this to him without any Custom to warrant it M. 38 39 El. B. R. East and Harding's Case So if he cut down two great Trees for that purpose and only employ one of them yet this is not any Forfeiture for a man cannot precisely know what is sufficient ibid. But if he lets them lye and suffers them to rot this is a Forfeiture If a Copy-holder for Life cuts down great Trees this is a Forfeiture and if a Custom for so doing is alledged it is unreasonable and not good Cro Car. 220. Rockey and Higgins If a Copy-holder fell Trees it s no Forfeiture because it may be for the reparation of the House but an act afterwards as selling them may cause a Forfeiture 9 Rep. 76. Ampuattion of Top-boughs A Copy-holder by the common Law may lop off under Boughs without especial Custom but the amputation of the Top-boughs will cause the putrefaction of the whole Tree and so that is Waste and a Forfeiture Cro. El. 361. Drawbridge and Cox Dodderidge put the Question in Cornwallis's Case 227. If Tenant permit waste and after repair may the Lord enter Per Hicham it was once a Forfeiture and so remains If the Lord grant to his Copy-holder the Trees growing upon the Land and which afterwards shall grow and that it shall be lawful for the Tenant to cut and carry them away The cutting down the Trees is no Forfeiture of his Copy-hold because he had dispensed with the Forfeiture by his Grant but he cannot cut the Trees that shall grow after for as to them the Grant is void Moor n. 234. As to waste about Trees Vide sub titulo Customs If there be no Custom to the contrary Waste waste either permissive or voluntary of a Copy-holder is a Forfeiture of his Copy-hold Co. Lit. 63. a. Vide supra The manuring of Land to Hop Ground was agreed to be a Forfeiture If the Copy-holder convert part of the Land into a Piscary it s a Forfeiture Lit. Rep. 267 268. in Paston and Utbert's Case Of Forfeiture by Attainder of the Tenant Custom of the Manor was if any Copy-holder within the Manor committed any Felony and this was presented by the Homage that the Lord may take and seize the Land A Copy-holder committed Felony and this was presented by the Homage and after the Copy-holder was Indicted and by Verdict Acquitted and the Lord entred Per Cur. It s a good Custom but they delivered no Opinion whether the Lords Entry in this case was lawful though it seems the Lord is concluded and he cannot enter to which purpose there is cited a pretty Case A man was Indicted as principal for the death of J. S. and another as accessary in receiving the principal after the principal was Outlawed and the accessary hang'd and the Lord seized the Land of the accessary as Escheat Afterwards came
the Goods in such Case it is good because it is as a Pledge 2 Leon. p. 725. Parker's Case Where Harriot shall be apportionable or not By the Act of the Lord. Tenant Lord and Tenant by Fealty and Harriot Service and the Lord purchaseth part of the Land the Harriot Service is extinct because it is intire valuable Aliter of Harriot Custom for if the Custom of a Manor be That upon the death of every Tenant of the Manor that dyes seized of any Land holden of the said Manor the Lord shall have an Harriot although the Lord purchase parcel of the Tenancy yet the Lord shall have an Harriot by the Custom of the Manor for the residue for he remains Tenant to the Lord and the Custom extends to every Tenant Co. Lit. 149. b. 6. Rep. 1.2 Bruerton's Case 8 Rep. 105. Talbot's Case 106. Feme by Custom is to have a moiety by Survivor and if Harriot be to be paid for the whole if it be part surrendred both shall pay Harriots 1 Keb. 356. Muniface and Baker Act of the Tenant If Tenant alien parcel of the Tenancy entire Services as Homage Fealty Harriot c. shall be multiplied Solida a singulis praestantur If my Tenant who holds of me by an Harriot aliens parcel of his Land to another each of them is chargable to me with an Harriot because it is entire and though the Tenant purchase the Land back again I shall have of him for every portion an Harriot 6 Rep. 1. Bruerton's Case 8 Rep. 105. Talbot's Case 34 Edw. 3.1 Copy-hold was held by Rent and Harriot upon Alienation and Surrender Copy-holder aliens parts of his Copyhold to one and part to another and retains part in his Hands and surrenders to the Use of the Alienees Per Cur. the Lord shall have an Harriot upon every alienation in case of a Copy-holder as well as a Tenant at Common Law If they should not be multiplied it would be in the power of the Tenant to defraud the Lord by Alienation of parcels and in this case the Alienor pays the Harriot because he continues Tenant and upon every Alienation after by the Alienees they shall pay it Palmer's Rep. 342. Sir Francis Snag against Fox 1 Keb. 357. If a Copy-holder being sick in his Bed doth surrender into the Hands of two Tenants c. to the Use of his eldest Son in Fee and dyeth before the Surrender is presented in Court the Lord must have an Harriot If Surrender had been presented in Court and Admission before the Father's death Aliter If an Harriot is due to the Lord upon every descent only and a Surrender is made by a Copy-holder unto the Use of his Heirs in full Court and to his Heirs and the eldest Son is admitted Tenant accordingly and the Father dyeth the Lord shall have no Harriot Who shall pay an Harriot and when or not Where many Purchase Land joyntly an Harriot shall not be paid till after the death of the Survivor 8 Rep. 105. If by Custom a Copy-holder dyes seized he shall pay an Harriot to the Lord and after the Copy-holder is disseised and dyes during the disseisin yet he shall pay an Harriot within this Custom for he was Tenant in right notwithstanding this disseisin 2 Rolls Abr. 72. Norris's Case Lease is made to A. for 99 years if B. C. and D. or any of them so long shall live to commence after the determination of a former Lease rendring Rent after the commencement of the term ac etiam post mortem B. C. D. respective for an Harriot 3 l. B. dyes before determination of the first term and Lessor brings det for 3 l. for an Harriot Per Cur. no Harriot is due because coupled with a Rent and no Rent is due during the interesse termini but both begin together Siderfin p. 437. Hangon and Carve Lease is made for 99 years if I. and S. live so long to commence after the determination of a former Lease to Sibel if Sibel lived so long reddendo 40 s. per annum and 3 l. in the name of an Harriot post mortem of each Cesty que vie Per Cur. the Harriot ought not to be paid till the Lease come in possession which is not till Sibel dye at which time the second Lease takes effect and this shall follow the nature of the Rent being in company with such Rents and Services as are to be only done when the Lease comes in possession and the Lease to Lessee for 99 years is but a future Interest where the Lessor hath no Reversion nor the Lessee any term and reddendo is a reservation and therefore cannot take effect till there is a Reversion but Keeling contra this being a sum in gross and here is an express agreement to pay after the death of either of the Parties and agreements may reach payments as well on contingency as where the Party hath Interest 1 Keb. 677. Lemal against Cara. Who shall have an Harriot A. is Copy-holder for Life of Lands Harriotable by the Custom if he dye seized and the Lord grants the Freehold of the Copy-hold to B. for 99 years if A. the Copy-holder so long live the Remainder to A. for 1000 years and afterwards A. assigns over his Lease of 1000 years to C. and afterwards A. makes F. his Executor and dyes seized Per. Cur. C. the Assignee of 1000 years shall not have an Harriot because at the time of the death of A. when the Harriot became due he was not Lord but had only a future Interest and if any Harriot be to be paid the Executor of A. or the Lord in Fee shall have it P. 15 Jac. B. R. Norris and Norris 2 Rolls Abr. 72. This Case in March p. 23. is Reported thus The Lord granted the Seigniory for 99 years if the Tenant should so long live and after he made a Lease for 4000 years Tenant for Life is disseized or more properly ousted and dyed Two points resolved 1. An Harriot was to be paid notwithstanding the Tenant did not dye seized because he had the Estate in right and might have entred 2. He in the remainder for years should not have it their reason was because the Tenant for Life was not the Tenant of him who had the future Interest of 4000 years but of him who had the Interest for 99 years but the Court was not agreed that the Grantee for 99 years should have the Harriot the reason of the doubt was because that eo instante the Tenant died eodem instante the Estate of the Grantee for 99 years determined A Bishop is seized of the Manor of D. and he lets twenty Acres of it to A. and B. during the iives of their three Children rendring 21 s. Rent per Annum and also paying and delivering to the Bishop and his Successors two of the best Beasts upon the death of every Cesty que vie The Bishop after lets all the Manor to W. rendring the ancient
Lord shall have one Action and the Copy-holder another and each one shall recover Damages according to his Interest Vide Leon. 1. 272. Copy-holder dyes Lord admits a Stranger the Heir may enter and upon a re-entry maintain Trespass without Admittance Noy p. 172. Simpson and Gillion Vide Admittance For non-Admittance no Action by Surrendree Action on the Case against the Lord lyes not for non-Admittance A Copy-holder in the Eye of the Law is but Tenant at the Lords Will and if the Lord will not hold Court he hath no remedy to compel him but by order in Chancery Cro. Jac. p. 368. Ford and Hoskins No Action on the Case by a named Successor By Surrendror Surrendror may have an Action on the Case for not admitting but not the Surrendree 2 Keb. 357. Quaere Remedy in faux Judgment The Demandant in a Pleint in nature of a real Action recovereth the Land erroneously with remedy for the party grieved for he cannot have the Kings Writ of faux Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a Tenant at Will and the Freehold being in another yet he shall have Petition to the Lord in nature of a Writ of faux Judgment and therein assign Errors and have remedy according to Law Co. Lit. 60. And if there be cause the Judgment may be reversed Assise Tenant by Copy shall not have Assise against his Lord as Tenant in ancient Demesn shall have because he hath no Frank-Tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. The Copy-holders Actions and Remedies against Strangers and where A man grants all the Coals and Coal-Mines within a Manor and parcel was Copy-hold for Life to J. S. Where Copy-holder shall have Trover for Coals digged out of his Copy-hold Land Lessee enters into the Copy-hold and digs a new Pit in the Copy-hold Land during the Life of the Copy-holder and takes the Coals and converts them c. And Lessee of the Coal-Mine brought Trover against the Lessor Per Curiam he may do it for when the Lessor or Lessee of the Coals or a Stranger enters and digs the Coals out of the Pits these belong to the Lessee and if any one else take the Coals he shall have Trover Jones Rep. 243. Player and Roberts Lessee of a Copy-holder for a year Ejectment shall maintain an Ejectione Firmae for in as much as his Term is warranted by Law by force of the general Custom of the Realm it is but reason if he be ejected that he shall have Ejectione Firmae and it is a speedy course for a Copy-holder to have the possession of the Land against a Stranger 4 Rep. 26. As to the Declaration in Ejectment Vide Tit. Declaration In Cro. El. p. 224. It is said to be adjudged Ejectment Per tot Cur. That an Ejectione Firmae doth not lye of a Copy-hold Estate But it was agreed That an Ejectione Firmae doth lye of a Lease made by a Copy-holder but not of a Demise made by the Lord of a Copy-hold by Copy of Court Roll Cole and Wall 's Case A Copy-holder had Licence from his Lord to let his Land for 21 years he lets it to the Plaintiff for three years who entred and being Ejected brought Ejectione Firmae Ejectment by Lessee upon a Lease not warranted good against a Stranger Per Cur. he may maintain this Action at Common Law for it is a good Lease between the Paâ—â—â—s and against all others but the Lord and as this Case is it is good against him because it is done by his Licence and it is a good Lease and well warranted by the Licence Cro. El. 535. Goodwin and Longhurst A Copy-holder made a Lease for one year excepting one day which was warranted by the Custom Lessee being ousted by a Stranger brings Ejectione Firmae it well lyes and if there were not any Custom yet it shall be good against all but him who had the Inheritance and Freehold So if a Lessee for Will at the Common Law had made a Lease for years for the Tenant at Will is only a Disseisor and the Lease is good against him Cro. Trin. 41 El. p. 676. Spark's Case So 717. Erish's Case Moor n. 709. Stoner and Gibson Ejectment by the Heir without Admittance to presentment If customary Lands do descend to the younger 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 n. 128. If a Copy-holder had Common by Prescription in the Waste of the Lord and the Lord stores the Waste with Conies every Copy-holder may have Action on the Case against the Lord averring That by this the Common is impaired 1 Rolls Abr. 106. Clayton and Sir Jerom Horsey Trespass for Beasts depasturing his Common by every Commoner Copy-holder prescribes to have Common in the Waste of the Lord and brings Trespass on the Case against a Stranger for his Beasts depasturing on the Common there The Question was whether this Action lyes for 15 H. 7.12 it s agreed a Commoner cannot maintain an Action of Trespass nor no other but the Owner of the Soyl 12 H. 8.2 And the Commoner hath no right till he hath taken it by the mouth of his Beasts and the Damage is to the Tenant of the Land and then every other Commoner may have Action of Trespass and so the Stranger shall be infinitely punishable Per Coke If a Commoner may distrain Damage feasant doing Damage which proves lie hath wrong then by the same reason if the Beasts are gone before his coming he may have Action on the Case otherwise one that hath many Beasts may destroy the Common in a night And it s not like a Nusance for that is Publick and may be punished in a Leet But the other is private to the Commoners and cannot be punished in another course he cited one Whitehand's Case Many Copy-holders prescribe to have the Loppings and Toppings of Pollards the Lord cuts them every Copy-holder may have his Action and also Hill 5. Jac. Rot. 1427. Geo. England's Case and Warburton of the same Opinion 2 Brownl p. 146. Crogate and Morris If a Copy-holder by the Custom of a Manor had used to have Common for all his Beasts Action on the Case for digging Turffs on the Common Levant and Couchant upon his customary Tenements in a certain parcel of the Manor and a Stranger digs Turffs there and takes them away by which his Common is impaired Action on the Case lyes declaring That the Defendant digged so many Turffs there and then with his Horses and Carts Herbam tunc ibid crescen ' predict ambulando conculcando Declaration from the place aforesaid minus rite ceperit abcarriavit
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
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
Copy-holders Fines Forfeitures Surrenders Admittances Trusts c. and what is proper to be brought and examined in that Court Alteration of a Custom by consent of Lord and Tenants allowed in Chancery Custom altered and decreed accordingly Dyer contra Dyer 10 July 44 El. If any particular Copy-holders complain in Chancery of the grievousness of a Fine Outragious Fines as to particular Copy-holders relieved but not upon a Petition by all the Copy-holders where the Fine is arbitrable at the will of the Lord if such Fine be outragious my Lord will mitigate it and lessen it according to the time But if the whole company of Copy-holders do exhibit a Bill praying a mitigation of their unreasonable Fines where they are arbitrable at the will of the Lord in this Case my Lord will reject the Bill for said he I can make no Act of Parliament for them 24 Nov. 44 Eliz. The Defendant being Lord of a Manor had 150 l. as a Fine upon the Plaintiffs admission to the Lands in question The Court of Chancery directed to an Issue whether the 150 l. were a reasonable Fine or not and the Defendant got a Verdict and the Damages were given by the Jury being to the Value This Court declared Reasonableness of a Fine how to be determined and properly recovered That the Fine was proper to be recovered at Law and that the reasonableness or unreasonableness of a Fine to be paid by a Copy-holder is a question of Law and not to be determined by a Jury Hill contra Jacobs 3 Jac. 2. f. 2. One improved years value decreed to be a moderate Fine In the case of Popham and Lancastar 12 Car. 1. The Court seeing there hath been a variation of the Fines and not certain decreed That one improved years value is a moderate Fine between Lord and Tenant so was Middleton and Jackson's Case 5 Car. 1. Forfeitures wilful not relieved In the Case of Ackland Pope and my Lady Wentworth the Lord Chancellor said he would not relieve any Copy-holder who through wilful Forfeiture hath given cause of seizure to the Lord for he said The Lord had as good a right to a seizure for a Forfeiture as a Copy-holder to his Copy-hold Estate but a wilful Forfeiture he would not relieve but for negligence he might Copyholder conceals the Land of the Lord. If a Copy-holder conceal the Land of the Copy-hold to the disherison of the Lord and say to the Lord Lay out of my Land and I will pay you your Rent for it My Lord Chancellor Elsemere said He is worthy to return to his ancient villainous Tenure again Commons for Copy-holders Commons for Copy-holders and Terminors to be relieved in Chancery Tothil 108. Colcot and Lee. A Copy-holder can have no assise of Common against his Lord Copy-holder can have no Assise against his Lord but relievable in Equity Copy-holder to sue at Law sans forfeiture but is to be relieved in Equity The Tenants of Petsworth and the Earl of Northumberlands Case Tothil 108. The Court will compel the Lord to admit a Tenant Copy-holder to sue at Law without any forfeiture of his Copy-hold Tothil 65. Tenant by Copy shall not have Assise against his Lord because he hath a Frank-tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. A Suit was to compel a Lord to Grant a Licence to let a Copy-hold Licence Forfeiture to be examined before a Licence be decreed but because the Defendant said in his Answer That the Copy-hold was forfeited the Court would not enforce him to grant a Licence till the forfeiture was examined Tothil 107 108. A Court of Equity shall compel a Lord to admit a Copy-holder Admittances for before Admittance he cannot have an Action upon Surrender and he hath no remedy at Common Law Hetly Rep. p. 2. A Bill in Chancery to admit a Copy-holder against Lord and Steward Plaintiff admitted to try a Title upon a Mortgage and this was only to try a Title to enable a Mortgagee to try a Custom That if mony be paid after the day so it be before Entry of the Surrender made by Mortgagee that its a sufficient Redemptition and also where the Wife Inheretrix dies sans Issue the Husband shall have the Fee at Taunton Dean Per Cur. the Plaintiff shall be admitted though the Steward need not have been made one of the Defendants 2 Keb. 357. Towel versus Cornish * Chancery will design the Bounds of a Copy-hold but not whether parcel or not parcel If a Copy-holder removes or defaceth the bounds of a Copy-hold it is proper for such a Court to design them but parcel or not parcel of a Copy-hold belongs to the Common Law to try Hetly p. 2. Blackhal and Thursby Possession after 43 years Lyford contra Coward 35 Car. 2. Richard Lyford Senior the Plaintiffs Father being seized in Fee of Freehold and Copy-hold Lands and having had Issue Richard Thomas and John now Plaintiff by Will gave the Plaintiff all his Copy-hold Lands and to his Heirs Males and for default of such Issue to his Heirs general and made a Surrender to the Use of his Will That the Surrender was presented and the Plaintiff admited Tenant and hath ever since been of the Homage and enjoyed the Copy-hold Lands That Richard the Son died 1637. leaving only one Daughter the Defendant Mary That the Court Rolls are lost and the Defendant insists That he in right of his Wife the Defendant Mary as Heir at Law to the said Richard Lyford Senior is entitled to the Premises there being no such Surrender or Admittance to be found and that no such Will was made or any thing that will make out the Defendants Title The Court declared they would see Presidents but then declared That after 43 years possession they thought it hard that the Plaintiff should be evicted and Ordered That the Defendant should admit of a Surrender and Admittance upon payment of Costs and bring an Ejectment and the Plaintiff not to insist on his possession to hinder the Tryal The Court Decreed to the Plaintiff and his Heirs to enjoy the Land according to the said Will and Custom of the Manor Relief as to Surrenders Purchases Agreements Trusts Rolls lost and Rents Arrear It is Decreed in the Case of Greenwood cont Hare 18 Car. 2. That where one was a Copy-holder for the Lives of himself and his two Sons and he paid the Fine Defendant decreed to surrender according to an Agreement and afterwards covenanted and agreed with the Plaintiffs Father to Surrender his Title and Interest in the Premisses to the Plaintiffs Father and his Heirs Copy-holder dies before any Surrender The Plaintiffs Father dyes he Exhibits his Bill to have the Premisses surrendred according to the Agreement the Purchase-mony having been paid by the Plaintiffs Father The Court considering That by the Custom the Defendants Father could have
surrendred all the three Lives and though it was not a Copy-hold in Fee yet it was decreed That the Agreement should be performed and that the Defendant do Surrender to the Plaintiffs Use and an Injunction for quiet enjoyment A Woman Copy-holder for Life took an Husband and the Reversion of the said Copy-hold was granted to three viz. A. B. C. cum acciderit by Surrender or Forfeiture for their Lives successive according to the Custom The Husband doth Surrender to the Use of A. for Life to whom the Lord doth grant a Copy accordingly A. and B. dye and the Opinion of the Court was That C. hath no right to be admitted by the Law nor in Conscience for that after the death of the Husband the Wife may enter and have a Plaint in nature of a Cui in vita contradicere non potest and during the Husbands Life the Lord may have it in the nature of an Occupancy But the Case did proceed farther viz. That the Husband and Wife were willing to release all the Right of the Wife to the surviving Reversioner The Lord Decreed to hold a Court. and the Lord would not receive it nor hold a Court But it was decreed That the Lord should hold his Court and accept their Conveyance or else avoid the Possession thereof Dyer 246. a. Copy-hold Estate in some cases not to be passed but by Decree Where the Lord grants the Reversion of the Copy-holds the Tenant cannot Surrender there being no Dominus servitiorum as the Custom will warrant and he cannot pass his Estate any way but by a Decree in Chancery and this will bind the person only 4 Rep. p. 25. in Murrel's Case vide supra Fines and Rents arrear not relieved after Sale of the Manor Copy-hold Tenant in Fee surrenders to the Use of one for Life Remainder to B. in Fee Tenant for Life dies and B. pays no Fine for his Admittance but after dies and this descends to his Son and after his Son surrenders to the Use of J. S. in Fee and no Fine paid for it and also the Rents for divers years are behind and after the Lord grants the Manor in Fee to J. B. and after sues in a Court of Equity for the Fines and Rents due before the Sale of the Manor and alledgeth in his Bill That the Copy-holder had Free Land intermixed with the Copy-hold Land so that he could not know where to Distrain for it yet he shall not be relieved in Equity for this for it is against a Maxim in Law for as much as by his own Act he had destroyed his Remedy P. 10 Car. B. R. Serjeant Hicham Plaintiff and Finch and Block Defendants and a Prohibition was granted to the Court of Requests where the Suit was Gold versus Dore Martis 23. Oct. 2 Jac. The Plaintiff delivered to the Defendant an 100 l. to buy a Copy-hold in the Defendants Name but to the Plaintiffs Use because there were differences between the Lord of the Manor and the Plaintiff so as the Plaintiff had no hopes to prevail for himself and when the Copy-hold should be obtained then the Trust was That the Defendant should Surrender the same to the Use of the Plaintiff The Defendant accordingly bought the Copy-hold Trustee refusing to surrender according to his Trust not relieved and took it in his own name and his Childrens but afterwards would not surrender it to the Use of the Plaintiff notwithstanding the same was bought with the Plaintiffs mony for this the Plaintiff Exhibited his Bill in Chancery and this appearing to be the true state of the Case my Lord would not relieve the Plaintiff because he said he would never ground a Decree upon a Lye a Falsity it appearing to him that this packing was used to thrust a Tenant upon the Lord whom he liked not and so dismist the Cause Tracy versus Noel M. 2 Jac. Copy-holder in Fee takes a Lease the Manor is sold Copy-holder not relieved though the Purchaser had notice A Copy-holder of Inheritance took a Lease for years of his Copy-hold from the Lord of the Manor the Lord sold his Manor to J. S. who had notice of this Copy-hold of Inheritance yet would not this Court relieve the Copy-holder his Lease being ended for by Law his Copy-hold Estate is determined Robes Purchased the Inheritance of a Copy-hold in the Name of B. and another in Trust B. surrendred his moiety to the Use of his own Son and the other died seized The Son of B. and the Heir of the other for mony sold the Copy-hold to C. for 50 l. being of the value of 80 l. Robes sued the Son of B. and the Heir of the other and C. in Chancery for the 80 l. It was decreed That A. should recover this 50 l. only from B. and the Heir of the other No Recompence for the over-value of an Estate because no Fraud and C. should be discharged of it and hold it in peace But if notice had been proved in C. Robes shall have the Land and no recompence for the over-value was given against the Vendors because no Fraud Moor Rep. n. 745. Kobes Bent and Cock's Case Copy-hold devised without Surrender executed by Decree in Chancery A Copy-hold devised without Surrender it cannot be executed in point of Interest but only by Decree in Chancery by a Concessum in 2 Keb. 837. Harrison's Case A Copy-hold granted out of a Manor confirmed Court Rolls produced A Copy-hold granted at a Court kept out of the Manor confirmed against the Lord who made it Tothil 107. Mark contra Suliard In Corbet and Peshal's Case 12 Jac. it was Ordered That Court Rolls should be brought and shewed to Councel to shew which is Copy-hold and which is Free-hold Composition Decreed Sterling's Case a Composition formerly made between Lords and Tenants Decreed to bind a Purchasor or an Heir 9 Car. Bill in Chancery to reverse a Faux Judgment in the Lords Court If an erroneous Judgment be given in a Copy-hold Court of a common Lord in a Formedon a Bill may be exhibited in Chancery in nature of a Faux Judgment to reverse it Pateshull's Case in Scaccario 1 Rolls Abridgment 373. Admission by Letter of Attorny Copy-holder ought not to be admitted to a Copy-hold Estate by Letter of Attorny for he ought to do Fealty at the time of his Admittance which must be done in person 21 Car. 2. Flyer and Hedgingham Fines certain or not having been tryed at Law no farther Relief here Smith contra Sallet 24 Car. 2. Fines of Copy-holders whether certain or arbitrary it having been tryed at Law and in two Tryals Verdict for Fines certain This Court would not relieve the Plaintiff other than for the preservation of Witnesses and so dismist the Plaintiffs Bill it being to have an Issue directed to try whether certain or not Morgan versus Scudamore 29 Car. 2. The Lord limitted to a
due for Admittances of the said I. G. or his Heirs into the said Copy-hold Lands unto the Lords of the said Manors respectively And that he the said A. B. and his Heirs from time to time and at all times hereafter within the space of seven years next ensuing the date hereof c. at and upon the reasonable Request and proper Costs and Charges in the Law of the said I. G. his Heirs or Assigns shall and will make and do all and every such farther and other lawful and reasonable acts and things for the farther better and more perfect assuring and conveying all and singular the said Copy-hold Lands and Tenements and all other the Copy-hold Lands of the said A. B. in the County of S. to or to the Use of the said I. G. his Heirs or Assigns or by his or their Councel learned in the Law shall be reasonably devised or advised and required And that at the time of such Surrender or Surrenders or other Assurance or Assurances to be made of the same Copy-hold Lands and Premisses all and singular the said Copy-hold Lands and Premisses so to be surrendred or otherwise conveyed as aforesaid shall be free and clear and freely and clearly and absolutely acquitted freed and discharged of and from all former Surrenders and Forfeitures and other Incumbrances whatsoever had made done or wittingly and willingly suffered by him the said A. B. or by any other person and persons whatsoever one Lease made by the Licence of the Lord of the Manor aforesaid to K. F. c. of c. of one Copy-hold Messuage c. excepted A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time This Indenture made c. between Sir T. D. of P. c. of the one part and I. H. of c. of the other part Witneseth That whereas the said Sir T. D. hath now lately surrendred into the Hands of the Lord or Lords of the Manor of W. in the said County of S. by the Rod according to the Custom of the said Manor by the Hands and acceptanc of R. C. and E. M. two of the customary Tenants of the said Manor all that Messuage c. To the Use of the said I. H. his Heirs and Assigns to hold according to the Custom of the said Manor with a proviso and upon condition That if the said Sir T. D. his c. shall and do well and truly pay or cause to be paid c. at c. then the said Surrender to be void and of none effect as by a Note or Memorandum of the said Surrender taken out of the Court the day of the date hereof relation c. more plainly appeareth Now the said Sir T. D. doth for himself his Heirs Executors and Administrators Covenant c. to and with the said I. H. his Executors and Administrators by these presents to pay the Mony at the day and place and in manner and form in the said Proviso or Condition of the said Surrender before recited limited and appointed for the payment thereof And farther also That the said Sir T. D. at the time of the making of the said Surrender before recited had a good Estate of Inheritance in Fee-simple according to the Custom of the said Manor of W. of and in all and singular the said Messuages c. before mentioned to be surrendred and had good right and lawful and absolute power and authority in himself to surrender the same and every part thereof unto the said I. H. and his Heirs in manner and form aforesaid and that the same are free from all former Surrenders and Incumbranses whatsoever In default of payment I. H. and his Heirs to enjoy the Premisses for ever After default in payment Sir T. D. covenants for farther Assurance be it by Fine or Recovery according to the Custom of the said Manor Surrender Release or Confirmation or all or any of the said wayes or means in the Law whatsoever as by the said I. H. his Heirs or Assigns or his or their Councel learned in the Law shall be reasonably devised advised or required Till default of payment I. H. to permit and suffer Sir T. D. to enjoy c. A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts This Indenture c. Between A. B. c. the Commissioners of the one part and C. D. c. Assignees of the other part Whereas the King and Queens Majesties Commission under the Great Seal of England grounded upon the several Statutes made concerning Bankrupts bearing date at Westminster the day of c. last past hath been awarded against E. F. of c. and directed to the said Commissioners thereby giving full power and authority unto the said Commissioners four or three of them whereof the said A. B. and P. B. to be one to execute the same as by the said Commission more at large appeareth And whereas the Commissioners parties to these presents or the major part of them or the major part of the Commissioners by the said Commission authorized having begun to put the said Commission in Execution upon due examination of Witnesses and other good proof and upon Oath before them taken do find That the said E. D. hath for the space of six years last past or thereabouts used and exercised the Trade and profession of a c. in buying and selling of c. at his House and Shop in S. aforesaid and sought and endeavoured to get his living by buying and selling And that the said E. F. so seeking and endeavouring to get his living by buying and selling during the time of his said Trading did become justly and truly indebted and still doth owe and stand indebted unto the above-named C. D. and other his Creditors in the sum of c. and being so indebted he the said E. F. did in the judgment of the said Commissioners parties to these presents become Bankrupt to all intents and purposes within the compass true intent and meaning of several Statutes made concerning Bankrupts or within some or one of them before the date and suing forth the said Commission And whereas also the said Commissioners parties to these presents or the major part of the Commissioners by the said Commission authorized having also found out and discovered that he the said E. F. at the time and since he became Bankrupt was and stood seized to him and his Heirs according to the Custom of the Manor of L. in the County of L. of and in c. All which Copy-hold or customary Premisses the greater part of the above-named Commissioners by the said Commission authorized have caused to be viewed and rented and the same to be appraised to the best value they can or may and accordingly the same have been viewed rented and appraised by R. S. and T. V. men of sufficient skill and ability for the doing thereof in manner and form following that is to say
be in the Tenant before Admittance and to what purposes not 155 Where there need no Admittance 154 In what cases the Lord shall be compelled to make Admittances 157 Actions Suits What Actions may be brought by the Lord 256 What Actions may be brought by the Copy-holder 256 257 258 What Actions the Copy-holder shall have against Strangers 258 Action on the Case by a Copy-holder for digging Turfs on the Common and Narr ' 261 No Actions or Remedies for Fines Rents Amerciament after Sale of the Manor 263 Of Copy-holders being impleaded and impleadable in the Lords Courts and the remedy there and how to be relieved against faux Judgment there 265 Copy-holder shall not have Assise against his Lord ibid. Copy-hold Inheritance shall not be Assets in the Heirs hands 267 Where Attornment is necessary to the passing of a Manor and where not 9 Attornment not necessary in the Grant of a Reversion of a Copy-hold Authority must be strictly persued Avowry for Rent by Lessee of a Copy-holder 262 Action must be brought in the name of a Copy-holder Lunatick and not in the name of the Committees 263 Acceptance of a Lease by the Tenant destroys the Copy-hold 225 Action on the Case lyes against the Lord for non-Admittance by the Surrendror but not by Cesty que use Chancery will compel the Lord to admit a Tenant 321 Admittance where it shall be pleaded as a Grant 271 B. Baron and Feme Custom That the Wife Feme Covert may devise good 55 Where the severance of the customary Tenants from the Manor shall not prejudice the Wife in her customary Estate 5 If the Lord enfeoff the Copy-holder this destroys the Widows Free-Bench 56 Of the transferring and assigning the Copy-hold Estate of a Bankrupts by Commissioners 251 Where and what acts of the Husband shall forfeit the Wives Estate or not 211 Copy-holds within the Statutes of Bankrupts 201 Of customary By-Laws 48 C. Original and nature of Copy-holds 1 Copy-hold created and guided by Custom 28 How a Copy Copy-holder and bare Tenant at Will differ 14 Three sorts of Copy-holders 70 Who may be said to be customary Tenants and in what respects What Evidence Copy-holders have for their Estates Copy-holders may have Sola separalis pastura in the Lords Soyl and exclude the Lord 66 Where a Copy-holder shall hold his Land charged by the Lord or the Copy-holder as to Dower Rents Charge and Statutes and how and where they shall be avoided 233 Custom The Nature of it 25 To be taken strictly and in many cases Cases Secundum vulgarem conceptum cannot extend out of the Manor 29 What is a good Custom or not and what things are required to the making a good Custom 30 How Customs ought to be certain 32 Of the reasonableness of Customs and when they are said to be unreasonable or not 33 Several Customs in several places 35 Three supporters of Copy-hold Custom 36 Of Customs enabling or disabling 36 37 Where a Custom shall be said to be pursued or not 43 Where one shall be Tenant by the Curtesie of a Copy-hold without Admittance of the Wife 86 Where Copy-hold is extinct Common is lost 62 Severance by the Lord shall not prejudice the Commoner 41 62 The nature of a Court Baron 73 Courts may be held out of the Manor by Custom and where 75 Of warning of Courts being holden at what place Relief for a Copy-holder in Chancery in many Cases where none is at Law 319 Chancery will design the bounds of Fines and of a Copy-hold but not whether parcel or not parcel 321 The Lord Decreed to hold a Court 324 Fines and Rents arrear not relieved after the Sale of the Manor 324 Composition decreed Statute 32 H. 8. cap. 7. against Champertry extends to Copy-hold 251 Copy-hold is not within Statute 31 Eliz. of Cottages 254 Copy-hold is not within the Stat. 32 H. 8. Of Entrys for Conditions broken 150 D. Demesns what 3 Dimis dimissib how to be understood Custom extends not to collateral Discents Discent of a Copy-hold Tolls not an Entry 68 Where the Heir shall be in by Discent or Purchase Copy-hold Estates how discontinued or not Surrender makes not a Discontinuance 175 176 What shall amount to a Discontinuance 69 Distress Avowry for Rent of a Copy-hold 236 Copy-holders Beasts distrainable or not for a Rent Charge 236 What shall be said a Disseisin as to Copy-hold Estates or not 255 Whether in Declaration in Ejectment the Plaintiff need to shew that the Lease was warranted by the Custom 257 Declaration by a Copy-holder That he is seised in Dominico suo ut de feodo secundum consuetud Manerii and also must shew that they are customary Lands 268 Presidents of Declarations ibid. E. Exposition of words Dimiss Dimissibile 16 Solum modo 44 Cum pertin 92 94 Ejectment brought by Copy-holder and how to declare 257 259 Emblements who shall have them upon a Ferfeiture 219 220 254 Evidence What shall be good Evidence to prove a Custom 305 Special Customs within several Limits ought to be shewed 306 Custom found 306 307 Evidence of Prescription 307 308 Where proof by Court Rolls are good Evidence 309 Copy of a Lease where good Evidence ibid. Who and what may be admitted to give Evidence Steward Court Books c. ibid. Extingushment A Copy-hold may be extinct as to the Services and remain as to the Customary Estate Copy-hold though severed from the Manor by the Lords act is not destroyed 222 Acceptance of a Lease by the Tenant destroys the Copy-hold 225 Copy-hold extinct by the Copy-holders Release to the Lord and where or how a Right to a Copy-hold shall shall be exinct by a Release 226 228 Copy-hold suspended and revived 230 231 After Escheat of a Copy-hold the Wife shall not be endowed 233 The Statute of VV. 2. that gives Elegits extends not to Copy-hold 253 F. Copy-hold Estates are within the words and intention of the Statute of Fines and non-claim 247 248 Of Copy-holder compounding for a Fine Fine on Admittance when to be paid 159 Of Fines certain 159 What Evidence shall prove the uncertainty of Fines 160 Excessive Fines how to be determined 160 What Customs are good as to payment of Fines and what not 161 Fine by whom to be Assessed 162 For every several Tenure several Fines 163 How the Lord shall recover his Fine 164 Difference as to what may pass by a Fine or be barred by a Fine at Common Law 176 Outragious Fines relieved in Chancery Forfeiture 319 Notice must be given if the Fines be uncertain before there can be a Forfeiture 198 Refusal to pay an excessive Fine no Forfeiture 198 What shall amount to a Forfeiture of a Copy-hold Estate 69 194 195 Refusal to pay Rent perform Services or Suit of Court when they shall be cause of Forfeitures 195 What words of denyal amount to a Forfeiture 197 Demand must be made of the person of a Tenant for a Fine or
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