Differences which arise betwixt Copy-holders A Copy-holder doth surrender his Copy-hold-lands H. 25 Eliz. in B. R. Leon 1. part 2. to A to hold the Lands till he hath levied the summe of 100 l. upon trust that afterwards he shall surrender to the Use of B A levies the money and being required to make the surrender to B he refuseth to doe it whereupon B exhibits his Bill to the Lord in the Court of the Manor The Lord there makes a Decree that A make the Surrender to B which he again refuseth to doe and thereupon the Lord seizeth the Lands and afterwards admits B to the same It was the opinion of the whole Court in this Case That both the Seizure of the Lord and his Admittance of B were lawfull because the Lord in such Cases of Equity to execute Trusts is Chancellour in his own Court If a false Judgment be given in a Vid. 14 H. 4. 34. Court-Baron by the Steward against a Copy-holder the Copy-holder in such case shall not have either a Writ of Errour or a Writ of False Judgment but he may sue in the Court of the Lord by Bill to be relieved against such Judgment and the Lord as Chancellour may give him Relief therein and shall restore the Land to the party upon the false Judgment given by the Steward and Restitution made to the Copy-holder SECT XV. Of Surrenders upon Conditions and where such Surrenders shall be good where not Proofs A Copy-holder in Fee surrendred out P. 31 Eliz. Co. 4. part Kite and Queinton's Case of Court his Copy-hold-lands to the Use of another and his Heirs upon Condition At the next Court the Surrender was presented but in the Presentment the Condition was omitted He to whose Use the Surrender was made being dead the Lord admitted his Heir It was Resolved in this Case That the Presentment of the Surrender was void because it was not made in such manner as the Surrender was made But if the Conditional Surrender had been presented it had beed good although it was not entred into the Court-Roll A Copy-holder surrendred his Copy-hold Tr. 2 Jac. B. R. Cro. 2. part Hall Shardbrook's Case upon Condition and afterwards by Deed he released the Condition Resolved it was good without a Surrender for that a Condition or a Right cannot properly be said to be determined by a Surrender but it may be by a Release The Case was Grandfather Father M. 15 E. 3. 13. and Son The Grandfather died The Father assigned Dower to the Grandmother being his Mother who surrendred it back to the Father paying 10 l. per annum The Father died his Wife brought Dower against the Son and recovered because the Father had the Fee and Freehold conjoyned in the life of the Grandmother by the Surrender It was Resolved in this Case That when the Wife of the Father doth recover Dower she shall pay to the Grandmother so much Rent as doth belong to her proportion in Dower And in this Case it was holden That although the Estate of a man be Conditional and defeasible upon a bad Title yet the Wife shall not be ousted of her Dower untill the Conditional or defeasible Title be defeated And where Husband and Wife are Tenants for life and surrender to him in the Reversion the Wife of him in the Reversion shall be endowed and yet the Surrender is but Conditional for if the Wife of the Tenant for life overliveth her Husband the Surrender is defeasible à fortiori in case where it is not defeasible as in this Case And it was said in case of a Surrender of copy-hold-Copy-hold-land where it was Conditional the Wife is dowable of it if the Condition do not determine the Estate in the life-time of the Husband But a Feme is not dowable of Copy-hold but by Custome of the Manor H. 27 Eliz. Cro. 3. part 68. Bright and Hubbard's Case A Copy-holder devised his Lands to his Wife for life and that she should sell the Lands for the payment of his Debts and surrendred to the Use of his Will The Copy-holder died His Wife surrendred the Land upon Condition to pay 12 l. It was Adjudged It was a good Surrender upon the Condition and that it was a good Sale made by her The Father Copy-holder in Fee surrendred Tr. 33 Eliz. Cro. 1. part Symonds and Lawnâ—'s Case his Copy-hold-lands to the Use of his Son in Fee upon Condition to perform Covenants in an Indenture The Son after Admittance surrendred to J S upon Condition that if the Son pay 10 l. the Surrender to be void The Son neither pays the 10 l. nor performs the Covenants in the Indenture The Father enters Resolved That by the Entry of the Father both the Surrenders were avoided and there the Son might well enter after the death of his Father and the Surrender made by him to J S. If a Copy-holder doth surrender his 33 Eliz. Co. 4. part Westwick's Case Lands to the Use of J S and his Heirs absolutely and the Lord admits the Tenant upon Condition it is void for that after Admittance the Tenant is in by him who made the Surrender not by the Lord. The Custome was That a Copy-holder might out of Court surrender to the Tr. 28 Eliz. in B. R. Cro. 1. part 〈◊〉 dett's Case Use of a Stranger in Fee The Lord of the Manor made J his Steward ad exequendum per se or his sufficient Deputy who made A his Deputy pro hac vice to take a Surrender of Husband and Wife the Remainder in Fee The Deputation was farther viz. Et ulteriùs faciendum quantum in me est A took a Surrender of the Husband and Wife upon Condition which Condition was afterwards peformed and executed Resolved in this Case That although the authority to take the Surrender was absolute and to be without a Condition yet when A took it upon a Condition to be performed it was a good Surrender made to him by reason of the words in the Deputation Et ulteriùs faciendum c. A Woman Copy-holder durante Viduitate P. 39 Eliz. B. R. Oland and Barwick's Case Cro. 1. part acc sowed the Land and before Severance of the Corn she took Husband Resolved That although the Estate of the Wife was incertain and determined by the Limitation and not by any Condition either in Fact or in Law that the Lord should have the Corn sowed upon the Lands A Copy-holder in Fee of Lands discendable in Borough-English had 3 Sons H. 2 Jac. B. R. Cro. 2. part Curâ—ies and Wolverston's Case and surrendred to the Use of his Will and thereby devised his Lands to his middle Son in Fee upon Condition to pay to his 4 Daughters to every of them 20 l. at their full age The eldest Son had Issue 2 Daughters and died The middle Son is admitted and doth not pay the Daughters their Summs at their full ages The youngest Son
the nature of a Copy-hold The other Case was this Land was M. 37 Eliz. in B. R. Eylett and Lane's Case Cro. 1. part demisable in Tail by Custome A Copy-holder demised the Land in Tail by Copy The Copy-holder suffered a Common Recovery in the Court of the Manor with Voucher and Warranty The Court at the first doubted of it because a Warranty could not be annexed to such an Estate in Tail But yet afterwards it was Resolved That the Recovery there was a Bar of the Tail And Note for a Conclusion of this Point That at this day by the Customes of several Manors Common Recoveries are had and suffered in the Courts of Lords of Manors for the docking and barring of Estate tails of Copy-holds And much inconvenience would ensue both if Copy-holds at this day might not by Custome be entailed and likewise if by Custome Common Recoveries had of Estate-tails with Voucher over in the Courts of Lords of Manors should not thereby be docked and barred SECT XIII What things are incident to a Copy-holder and what he may take of common right without the Grant or Licence of the Lord And what Acts upon the Land shall bind the Copy-holder what not IF a Copy-holder according to the Custome doth surrender into the hands of 2 Tenants to the Use of J S and his Heirs and afterwards the Copy-holder dieth before the Presentment be made of the Surrender by the Tenants and the Lord before the Presentment accepts of the Rent of J S generally but not as a Copy-holder the Heir of the Surrenderor may eâ—ter into and upon the Lands and receive the Profits thereof to his own use for that nothing vesteth in the Surrenderee before Admittance and the Inheritance of the Copy-hold is in the Heir quasi by Discent To have Common in the Wastes of Pasch 45 Eliz adjudge acc the Lord is not a thing incident to his Copy-hold but is by Prescription or Custome of the Manor If therefore a Copy-holder purchaseth the Inheritance of the Land the Interest of the Common being a thing intire is gone and determined But if the Copy-holder doth surrender part of his Copy-hold-lands to the Use of another who is admitted yet his whole Common is not thereby determined but he shall have Common still for the Lands not surrendred A Copy-holder may take House-bote 9 H. 4. â— Waste 59. Coke select Cases 68. Hedg-bote and Plough-bote upon his Copy-hold-lands of common right as a thing incident to the Grant if it be not restrained by a Custome that the Copy-holder shall not take it but by Assignment of the Lord or his Bailiff And if the Lord where the Tenant hath such Botes cuts down all the Woods and Under-woods which are standing and growing upon the Lands to prevent the Copy-holder of his Botes he may have an Action of Trespass against the Lord as it was Resolved in Heydon and Smith's Case Pasch 8 Jac. in Co. B. A Manor may be Copy-hold and holden M. 8 Jac. B. R. The King and Stafferton's Case Yelv. 190 191. of another Manor by Copy of Court-Roll and if such a Copy-hold-Manor be granted unto J S and his Heirs J S may hold a Copy-Court within his said Manor without a special Grant of it for that of common right a Court-Baron or a Copy-hold Court is incident to every Manor A Lord of a Manor grants a Copy-hold P. 26 Eliz. C. B. Chaw and Dover's Case Leon. 1. part 16. for â— Lives and afterwards takes a Wife The 3 Lives end 〈◊〉 determine The Lord enters into the Manor and keeps the Copy-hold-lands in his hands for a time and then grants the Lands over again by Copy and dieth The Wife of the Lord enters and clums Dower in it In this Case it was Resolved That the Copy-holder should hold the Lands discharged of the Dower because the Copy-holder comes and is in the Lands by the Custome which is paramount to the title of Dower A Copy-holder is feised of Lands at P. 5 Eliz. by Dyer Vâ—de Moore 50. Common Law and also of Lands holden by Copy of Court-Roll and he by Indenture without Licence of the Lord makes one Lease of both Lands rendring Rent It was said by Dyer That in such case the whole Rent is issuing out of the Lands at Common Law because the Lease as to the Copy-hold-lands was utterly void If the Lord grants to his Copy-holder P. 12 Eliz. in B. R. Moore 94. the Trees growing upon the Lands and which shall after grow with liberty to cut them down and carry them away he may justifie the cutting of the Trees which are growing and it shall not be a Forfeiture of his Copy-hold because the Lord hath by his Grant dispensed with it But he cannot cut down the Trees which shall there after grow as it was said by Plowden and Popham If a Copy-holder binds himself in a Pasc 12 Eliz. in B. R. adjudge acc Statute his Copy-hold-lands shall not be extended upon the said Statute because the Copy-holder in the eye of the Law hath an Estate but ad voluntatem Domini secundùm Consuetudinem Manerii But if a man be Tenant for life or years of a Manor and a Copy-hold comes to his hands by Forfeiture or other determination and he binds himself in a Statute although the Copy-hold be after granted yet it may be extended upon the Statute because the Copy-hold was annexed to the Free-hold and joyned with it in the hands of the Lord when the Statute was acknowledged and entred into The Custome of a Manor was That a Copy-holder might cut and lop Trees M. 5 Jac. Swayn and Beckett's Case Moore 812. for Hedg-bote and other necessaries The Queen made a Lease of the Manor to J S with Exception of Trees King James granted the Reversion to J D in Fee The Assignees of the Term granted a Copy-hold to other for 3 Lives Habendum to them successivé The Copy-holder cut Trees It was Resolved That the Copy-holder was in by the Custome paramount the Exception although he took his Estate after the Exception and therefore might justifie the cutting of the Trees for the Hedg-bâ—â—e and other necessaries The Husband seised in Fee of copy-hold-Copy-hold-lands 35 Eliz. Co. 4. part Bullock and Dibles's Case in the right of his Wife surrendred the same to another who was admitted and afterwards the Husband died It was Adjudged that in this case the Wife might enter and she should not be put to her Cui in vita If there be Lessee for life the Remainder M. 9 Jac. in Co. B. adiudge acc for life of a Copy-hold and the first Tenant for life doth purchase the Freehold of the Copy-hold and levies a Fine thereof and 5 years pass it was Adjudged That this Fine should bar him in the Remainder of his Copy-hold SECT XIV Where the Lord of the Manor shall be Chancellour in his own Court to determine the
E. 6. a Custome that a Lessee for years may hold the Land for half a year after his Term ended is no good Custome But it was agreed That the Lord of a Copy-hold might by Custome lease the same for life and 40 years after and that such a Custome was good A Custome was alledged That all Inhabitants Tr. 14 Jac. in Co. B. Harbin and Green's Case Moore 887. of certain Messuages holden of the Bishop of S had used to grind their Corn which they used to spend in their Houses or should sell at certain Mills called the Bishops Mills in S and not elsewhere without the Licence of the Bishop It was the opinion of the Justices That it was a void and unreasonable Custome to grind all their Corn there which they should sell c. The Custome of the Manor of Y in the P. 13 Jac. Ford and Hoâ—kâ—n's Case Moore 842. County of Dorset was That every Copy-holder might name who should have his Copy-hold and that the Lord ought to admit the Copy-holder so named at the death of the Nominator Quere if it be a good Custome because the person nominated hath neither jus ad rem nec in re the Interest being in the Lord and a man cannot gain an Interest to himself from the Lord against the will of the Lord. And therefore it was holden That where the party in that case brought an Action against the Lord for denying to admit him to the Copy-hold upon such Nomination the Action would not lie But Quere that Case as to the Custome for that in 45 Eliz. in B. R. in Powell 45 Eliz. B. R. Powell and Peacock's Case and Peacock's Case it was adjudged That a Custome that a Copy-holder in Fee might nominate his Successor and so in perpetuum was adjudged a good Custome Vid. Hob. Reports 6 and 11. Brock and Spencer's Case And Vid. Brock and Spencer's Case in Hobart 6 and 11. a Custome that such a Copy-holder in Fee might fell Timber-trees was adjudged a good Custome The Custome of a Manor was That P. 41 Eliz. B. R. Parman and Bowyer 's Case if any Tenant allowed his Lands holden of the Manor by Writing or Feoffment or devised them or surrendred them into Vid. the same Case in Anderson's 2. part 125. where it seemeth the Custome was much doubed if good or â—ot the hands of the Lord of the Manor to the Use of another that such Alienation Feoffment Devise or Surrender ought to be presented within one Year next after It was said It was no good Custome But the Court ruled the Custome to be good and agreeable to the Law for that it is reason that the Lord should know c. Tant Vid. before A Custome was That a Copy-holder Vid. Willis and Bucknall's Case in B. R. Style 's Reports 311. of Inheritance might make a Letter of Attorney to two Joynt-tenants and severally to surrender his Copy-hold-lands in Fee to certain Uses after his death It was Resolved That the Custome was a void Custome because by the death of the Copy-holder the Lands were settled in the Heir and an Authority given to devest him was not good The Custome of a Manor was That M. 21 Jac. Cro. 2. part Page's Case the Land was devisable by Custome for 21 years paying the treble value of the Rent and if the Lessee died that the Term should be to his Heirs paying for a Fine one year 's Rent and if he assigned it the Assignee to have it for one year's value of the Rent and that he might renew the Devise for 3 years value The Court held all the said Customes to be good and reasonable The Custome of a Manor was That if P. 17 Car. in B. R. Thorne and Tyler's Case any Copy-hold-tenant did suffer his Messuage to be ruined for want of Reparations and the same be presented in Court by the Homage that such a Tenant should be amerced and that the Lord had used to distrain the Beasts as well of the Under-tenant as of the Tenant himself which were levant and couchant upon the Lands for such Amercement It was said That the Custome was not good but unreasonable to distrain a Stranger 's Cattel such as the Under-tenant was But it was Resolved that the Custome was good for the Under-tenant although he was but Tenant for a year yet he should have all the benefits and privileges which the Copy-holder himself should have had qui sentit Commodum sentire debet Onus and he is distrainable for the Rents and Services due and payable to the Lord and the Charge lies upon the Land and not upon the Custome and therefore the Custome is good The Custome of a Manor was shewed H. 37 Eliz. B. R. Brown and Foster's Case Cro. 1. part acc to be That any Copy-holder of the Manor may surrender within any place of the Manor into the hands of two Tenants and if a Surrender be to the Use of a Stranger without expressing any Estate that the Lord might grant it in Fee to him to whom the Surrender was made It was objected That the Custome was unreasonable because it is to charge the Land with a greater Estate then the Copy-holder gave On the other side it was said That the Custome was good for that the Lord is Chancellour in his own Court and might dispose thereof when the Tenant leaves it uncertain Quere for the Case was not Resolved SECT XX. Where and in what case a Copy-holder or his Lessee upon an Ouster may have and maintain against the Ejector an Ejectione firme and where and in what not Proofs IN Ejectione firme the Case was The H. 38 Eliz. C. B. Wells and Partridge's Case Cro. 1. part Plaintiff was Lessee for years of a Copy-hold and the Custome of the Manor was That a Copy-holder might let the Land for 3 years It was the opinion of Anderson Chief Justice That the Lessee of a Copy-holder cannot maintain Ejectione firme but if he might he ought to shew his Lessor's Estate or his Licence or a special Custome to warrant it A Copy-holder made a Lease for M. 14 15 Eliz. Leon. 1. part 4. years by Indenture warranted by the Custome It was adjudged That the Lessee should maintain Ejectione firme although it was strongly objected That if it were so then the Plaintiff should have an Habere facias possessionem and so Copy-holds should be ordered by the Laws of the Land The Custome of a Manor was That if any Copy-holder of Inheritance died P. 33 Eliz. in B. R. Cole and Wall 's Case Leon. 1. part 328. his Heir within the age of 14 years then the Lord of the Manor might grant the Custody of his Body and Lands to whom he pleased A Copy-holder of Inheritance died his Heir within the age of 14 years The Lord committed the Custody of his Body and Lands to J S who being ejected brought a Writ of Ejectione