Copy-holder It hath been a Question when a Copy-holder bargains and sells his Copy-hold to the Lord of a Manor in Lease for years whether the Copyhold Estate was extinguished But in Hutton p. 81. it is agreed that this Copy-hold is not extinguished but that the Lord who is Lessee for years is Dominus pro tempore and may grant it by Copy de novo The Lord of a Manor demised Copy-hold Lands to three Sisters Habend to them for their Lives successive the eldest Sister married one C. after which the Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after making the said Indenture but four days after the Lease made she agreed to it in pais and then married a Husband Agreement to an Indenture by one in Remainder for Life and they claim the Land The point is if by Agreement of the second Sister her Right to the Copy-hold were extinct The Interest of the eldest Sister is gone by her acceptance of the Estate by Indenture now if the second Sister may come and claim her customary Interest Per Cur. it s no extinguishment in the second Sister and yet Judgment was against her for Per Gaudy none can take advantage of the eldest Sister's Estate being determined the Lord against his Lease cannot enter or claim and the second Sister cannot enter during the Life of the eldest Sister for her Remainder takes effect in possession after the death of her said Sister 1 Leon. p. 73. Curtis and Cottell's Case 28 Eliz. Trin. B. R. By acceptance of a new Estate of Free-hold Baron and Feme Copy-holders to them and their Heirs the Baron in consideration of mony paid by him to the Lord obtaineth an Estate of the Freehold to him and his Wife and to the Heirs of their Bodies Baron dieth having Issue the Feme enters and suffers a Recovery and his Heir enters Per Statute 11 H. 7. Per Cur. the Entry is lawful for the Copy-hold by the Acceptance of the new Estate was extinguished Cro. El. 24. Stockbridge's Case Where and how Right to a Copy-hold shall be Extinguished by Release A man makes a Surrender of his Copy-hold Land to J. S. which is not good and after J. S. is admitted he which made the Surrender releaseth to him being in possession and after enters upon him The Question was if his Entry be congeable and if by the Release by Deed the customary Right of the Copy-holder was extinct And Per Cur. it is extinct by the Release for he to whom the Release was made was Copy-holder in possession and admitted to the Tenements and therefore the Release of a customary right may enure to him and the Lord hath no prejudice for he hath received his Fine for Admittance and he to whom the Release is made is in by Title viz. by Admittance of the Lord and so this Release enures by way of extinguishment And there is great difference between transferring of an Estate and an extinguishment of a Right Diversity between the transferring of an Estate and the extinguishment of a Right But if a Copy-holder be ousted per Tort there his Release to the disseisor or other wrong doer does not transfer his Right or Bar him 1. Because there is no customary Estate upon which a Release of any customary Right may enure and then 2. It would be a prejudice to the Lord who would lose his Fines and Services Co. 4 Rep. 25. b. Kite and Queinton In Replevin bar to the Conisance That K.D. was seized of the Manor of R. in Fee and that the Tenements in which c. were customary held of the said Manor and that at such a Court a Copy was granted to the Plaintiff whereby he entred and put in his Beasts The Defendant protesting the Premisses were not customary for Plea saith That before the Plaintiffs Title J. Abbot of the Monastery of B. was seized of the Manor of R. c. and one R. T. being seized of the customary Lands in which c. in Fee at the will of the Lord the said R. surrendred to the Abbot who was possessed and occupied the said Premisses for divers years and afterwards demised the said Manor for 40 years to W. M. and then surrendred the entire Manor and Abbathy to H. 8. who granted the entire Manor to the Duke of Norfolk in Fee and he with the assent of the Termor made a Feoffment to Drury of the Manor to whom the Termor surrendred his Lease Drury dyes and it descends to his Heir who granted the Land in which c. again by Copy to Tillot for his Life who entred and put in his Beasts Demurrer The Question was if the Custom is destroyed or if Drury the Defendant may avoid his Grant by Copy Note The custumary Land was never severed from the Manor but granted with the Manor as part of it and was demisable by Copy by all the Lords of the Manor and so it remained till the 15th of Eliz. when the Defendant granted the Copy to the Plaintiff Winch Ent. 991 992. Where a Copy-hold shall be perpetually extinct or where it shall after become a Copy-hold by regrant Forfeit Escheat If a Copy-hold Estate be forfeit or escheat to the Lord or otherwise come into the Hands of the Lord if the Lord make a Lease for years or for Life or other Estate by Deed or without Deed this Land shall never after be granted again by Copy for the Custom is destroyed for that during such Estates the Land was not demised nor demisable by Copy of Court Roll So if the Lord make a Feoffment and enter for the Condition broken it shall never be granted again by Copy But if the Lord keep it in his Hands a long time or let this at will then he may re-grant it Lach p. 213. 1 Rolls Abr. 498. Downcliff and Minors So if the interruption be tortious as if the Lord be disseised and the disseisor dye seized or the Land be recovered against the Lord by false Verdict or erroneous Judgment yet after the Land recovered or the judgment reversed this is grantable again by Copy Legal Interruptions But if the Land so Forfeited or Escheated before any new Grant be extended upon a Statute or Recognizance acknowledged by the Lord or the Lords Wife hath this assigned to her in a Writ of Dower though these are impediments by acts in Law yet the interruptions are lawful and the Lands may never again be granted by Copy 4 Rep. 31. Frenches Case If Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed but such Lessee may re-grant the Copy-hold again to whom he will for the Land was always demised or demisable If a Copy-hold be surrendred to the Lessor of a Manor or be Forfeited to him he his Executors or Assigns may well
Merton Cap. 1. Of Damages sur Recovery en Dower which gives Damages to a Feme Covert upon a Recovery in a Writ of Dower where the Baron dyed seized extends to Copy-holds And Stat. W. 2. C. 3. W. 2. Cap. 3. Cui in vita And the three several branches of that Stat. the one which gives a cui in vita upon a discontinuance made by the Husband The second which gives the Receit to the Wife upon her Husbands refusal to defend the Wifes Title Resceit And the third which gives a Quod ei deforceat to particular Tenants extends to Copy-holds Quod ei deforceat And The Statute 32 H. 8. Cap. 9. 32 H. 8. cap. 9. Champerty against Champerty and litigious Titles which gives an Entry in lieu of a Cui in vita extendeth to Copy-holds Cro. Car. 43. Rowden and Malster Vide Plowd f. 371. The Statute W. 2. which gives Elegits Elegit extends not to Copy-holds for that would be a prejudice and the Common Law would break the Custom Savil's Reports Heydon's Case vide supra Copy-hold Lands are liable to the Statutes of Recusants 13 El. cap. 4. Of Recusants and the King shall have the profits of the Lands only but no Estate and such Statute doth not make a Tenant to the Lord and though the King hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the King 1 Leon. p. 98. Saliard and Everat's Case Owen p. 37. mesme Case Copy-hold Lands are not within the words of that Statute but by Anderson 34 H. 8.5 Of Wills the Equity of that Act doth extend to Copy-holds 1 Leon. 83. in Skipwith's Case 31 Eliz. cap. 7. Cottages Copy-hold is not within that Stat. 1 Bulstr 50. Brock's Case 11 H. 7. cap. 10. Joyntresses Copy-hold Lands are assured to the Wife for her Joynture and she aliens them it s no Forfeiture within Statute 11 H. 8. Cap. 10. Copy-hold Land is not within that Statute 2 Siderfin p. 41 73. Harrington and Smith CAP. XXVII Of Emblements who shall have them the Lord or the Copy-holder A Woman who had her Widows Estate of Copy-hold Land and before severance took Husband the Lord shall have the Corn because the Estate of the Woman determined by her own act otherwise if her Estate had ended by Death Divorce Determination of the Will c. Moor n. 512. Oland and Burdwick 5 Rep. 115. mesme Case If a Copy-holder Durante viduitate Lease for one year and the Lessee sows the Land and after the Copy-holder takes an Husband yet the Lessee shall have the Corn for her act shall not prejudice a third person Ibid. Oland's Case If the Husband seized of a Copy-hold in Fee sows the Land and after surrenders to the Use of his Wife who is admitted accordingly and after the Husband dyes before severance it seems the Wife shall have the Corn and not the Executors or Administrators of the Husband Annexed to the Land for that the Husband passed the Emblements with the Land to the Wife as annexed to the Land and by this the Priviledge which the Law gives to him who sows it is taken away by the Surrender and so it is all one as if the Wife had sowed it or purchased the Land sowed by a Stranger 1 Rolls Abr. 727. CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not IF a Copy-holder in Fee dyeth seized and the Lord admit a Stranger to the Land who entreth he is but a Tenant at will and not a Disseisor to the Copy-holder who hath the Land by Discent because he cometh in by the Assent of the Lord 3 Leon. 210. If a Copy-holder without Licence makes a Lease for years the Lessee who enters by colour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firmae 2. Brownl p. 40. Petty and Evans If a Copy-holder Lease for years by License of the Lord and after enters upon the Lessee and ousts him this is a Disseisin to the Lord of the Frank-Tenement 1 Rolls Abr. 662. by Coke Vide sparsim CAP. XXIX Actions and Suits What Action may be brought by the Lords What Actions brought by Copy-holders or their Executors in respect to their Copy-hold Estates shall be good or not either against their Lords or others What Actions may be brought by the Lords THE Lord upon seizure of Copy-holder may maintain Ejectment till the Heir comes to be admitted as in Harverights Case Latch 511. upon Entry of the Feoffor upon Rent reserved and Entry till satisfaction he may upon such Interest quousque maintain an Ejectment 1 Keb. 2â—7 Lord Salisbury's Case As to the Lords Action for Rent Distress Remedy for Forfeitures Vide supra sparsim per tout in Indice What Actions a Copy-holder may bring against his Lord and what not Trespass upon Ejectment by the Lord. Copy-holder doing and paying the Customs and Services if he be ejected by his Lord he shall have an Action of Trespass against him Co. Lit. 60. b. 61. a. 4 Rep. 22. a. For though he is Tenens ad voluntatem Domini yet it is Secundumconsuetudinem Manerij For cutting Trees He shall have Trespass against his Lord for cutting of Trees or breaking his House in the Case of Stebbing and Gosnel 1 Rolls Abr. 108. The Custom was That every Copy-holder in Fee shall have the Loppings of the Pollingers The Lord cuts down two Oaks and in his Plea to an Action sur Case saith he cut down two Oakes being Pollinger Timber Trees and left the Loppings there for the Plaintiff On Demurrer it was adjudged for the Plaintiff for a Copy-holder of Inheritance hath interest in the Loppings and Boughs as well as the Lord in the Timber And if the Lord shall cut down all the Timber Trees than the Copy-holder shall lose the Profit Cro. El. p. 629. Moor n. 727. mesme Case 1 Rolls Rep. Ford and Hoskin's Case Nay the Action of Trespass by a Copy-holder in Fee against his Lord for cutting down the Trees lyes at Common Law without any special Custom for the Copy-holder hath a special property therein and the Lord a general property the Lord may as well subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to Repair it 2 Brownl 328. Heydon and Smith and in Doyle's Case Mich. 25. and 26 El. it was adjudged where it was a Custom that the Copy-holder might cut Maremium to Repair if the Lord carry it away an Action of Trespass lyes against him by the Tenant in Taylor 's Case Pasch 36. Eliz. A man was Tenant by Copy of Court Roll of Wood and the Soyl was excepted to the Lord and yet the Copy-holder maintained an Action of Trespass against the Lord for cutting his Wood Moor n. 480. If a Stranger cut a Tree Trespass by the Lord and the Copy-holder for cutting down Trees the
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
the Son to the Plow So the Custom that the Wife shall have the whole for her free Bench is against the Maxim of Common Law for Dower These Customs might have a reasonable beginning where they are not prejudicial to the Common-wealth nor to the present Interest of any particular person yet a Custom may be prejudicial to the Interest of a particular person and reasonable also where it is for the benefit of the Common-wealth in general as to make Bulwarks upon another mans Land in time of War c. But Custom which is contrary to the publick Good or injurious to a Multitude and beneficial only to some particular Person such Custom is repugnant to the Law of Reason and void ab initio and no Prescription can make it good therefore the Custom of a Manor was That no Commoner should put in his Beasts till the Lord had put in his and it was adjudged void 2 H. 4.24 For if the Lord would never put in his Beast the Commoners should lose their Common As to Customs being reasonable or unreasonable vide several more instances in the Argument of Rolls and Mason's Case 2 Brownl 86 88. Customs may be reasonable ratione loci Custom is Several particular Customs in several places where Copy-holder had Issue only Daughters the eldest shall have this for Life and after her death it shall go to the next Heir Male of the Father to him and his Heirs and if no such Heir then it shall Escheat to the Lord. Copy-holder dyes Borderers on Scotland his Wife hath it durante viduitate leaving two Daughters and during this time the eldest dyes The Question was if the second Daughter or the Lord by Escheat had the better Title Per Cur. 1. The Custom is good and the Estate which the Daughter had is an excrescent Estate and not properly a descent 2. She that was eldest at the time of the death of the Mother shall have it and not only Primogenita filia Siderfin p. 267. Newton and Shafto This Custom was good ratione loci for such Manor is bordering on Scotland where were frequent Invasions And Feme sole Merchant is good ratione loci Feme Sole Merchant London The Custom of the Isle of Man That one shall be hanged for stealing a Capon Isle Man but not for stealing an Ox is good In the Manor of Bemister in Dorset Bemister is this Custom That a Copy-holder ought to nominate his Successor otherwise the Land shall Escheat and it has been allowed to be a good Custom So the Manor of Taunton Taunton Dean That the Wife of the Copy-holder shall have the Inheritance of her Husband Siderfin p. 267. id Case The Custom of Millan in Norfolk is Millan in Norfolk If any Copy-holder will sell his Land and agree upon the Price at the next Court the next of his Blood and if he refuse any other of his Blood may have the Land And such like Custom there is at Ham in Middlesex Ham in Middlesex The next Clivener which is he that dwelleth next to him shall have the refusal giving as much as another will and he which inhabits on the East the first and then the South c. 2 Brownl 177. As for the other Rules of the validities of Customs as that they ought to be on good Considerations and beneficial to the Prescriber as Calthrop and Cokes Copyholder treat of they may be referred to the forgoing Rules Now you see there are three supporters of a Copy-hold Custom 1. Time and that must be out of the memory of Man so that Copy-hold cannot begin at this day 2. That the Tenements be parcel of the Manor or within the Manor 3. That it hath been demised and demisible by Copy of Court Roll Demised and demisible how understood for it need not be demised time out of mind by Copy of Court Roll but if it be demisible it is sufficient For Example If a Copy-hold Tenement Escheat to the Lord and the Lord keeps it in his hands many years during this time it is not demised but demisible for the Lord hath power to demise it again Coke Lit. 58. b. Customs of Manors are Disabling Enabling Disabling is That the Tenant by a particular Custom shall not be allowed to do that which he might by the general Custom of Manors As a man may sell Land to whom he will by the general Custom of Manors yet in some Manors by special Custom he must make an offer to the next of Blood Vide supra Customs ratione loci Enabling is where the Tenant by a particular Custom shall be enabled to do that from which he is restrained by the general Custom of Manors By the general Custom of Manors the granting of Copy-hold Land for more than one year without Licence is a Forfeiture yet in some Manors they may do it and it shall not be a Forfeiture Coke Copy-hold 79. Sect. 33. You will find Prescription mentioned in the ensuing Cases therefore it will be of good use a little to open the nature of Custom and Prescription and to shew how and wherein they agree and wherein they differ and also the difference as to Pleadings Custom Prescription and Usage are of great Affinity yet they differ thus Custom is where by continuance of time a Right is obtained concerning divers persons in Common Prescription is where by continuance of time one particular person obtaineth Right against another either a Person or Body Politick Usage is by continuance of time and an efficient cause of both Limitation is where a Right may be obtained by reason of Non-claim by the space of a certain number of years Calthrops Reading 1. Prescription is made in the Person and so the Pleading is That he and all his Ancestors c. Or he and all those whose Estate he hath time out of mind used to have Common of Pasture in such a place c. being the Land of some other c. as pertaining to the said Manor Custom is a Copy-holder of the Manor of D. doth plead That within the same Manor there is and hath been such a Custom timeout of mind used that all the Copy-holders of the said Manor have and used to have Common c. Coke Lit. 113. b. So Custom lyes upon the Land As infra manerium talis habetur consuetudo c. 8 Rep. Swain's Case And such Custom binds the Land as Gavel-kind Borough English c. Prescription ought to have a Lawful beginning not so of Custom So is Coke 6 Rep. Gateward's Case Prescription is alledged in the Person and a Custom ought always to be alledged upon the Land for every Prescription by common intendment ought to have a lawful beginning but it is otherwise of a Custom for this ought to be reasonable and Ex certa rationabili causa usitata but it need not to have an intendment of a lawful commencement as Custom to have Land devisable
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
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
the Surrenderer should have a particular Estate in him without a Donor or Lessor which by the Rule of Law cannot be March Rep. 177. Bambridge and Whitton therefore Noy p. 152. is not Law Vid. 1 Roll Rep. 135. CAP. XV. Constructions of Surrenders as to Limitations of Remainders and Reversions Of Contingent Remainders Where the Heir shall be in by Descent or Purchase Of a Surrender to the Vse of ones last Will and how to be Construed Surrender upon Condition or Contingency Of Surrender before Admittance Surrender by whom to whom by Feme Covert Countermand of a Surrender What Remedy to force a Trustee to Surender Construction of Surrenders as to Reversion Remainder Limitation What shall be good to pass by the Name of a Reversion or not Surrender by the name of a Reversion COpy-holder by Licence of the Lord demised the Copy-hold to the Plaintiff for twenty years by Indenture rendring Rent the same Copy-holder surrendred the Reversion of the one moity to A. and of the other to B. and they were admitted Per Cur. The Surrender by the name of a Reversion was good in this Case though the Lease was not made by Surrender which had then been directly derived out of the customary Estate but by Indenture for it is still the Lease of the Copy-holder and not of the Lord and the Rent will be divided by moities Husband seized of Copy-hold Land in the right of his Wife who had the Fee surrendred the Copy-hold Land by the name of a Reversion after the death of the Husband and Wife the Surrender is void for by that pretence there shall be a particular Estate left in the Wife and also in the Husband One cannot leave a particular Estate in himself whereas the Husband had nothing before which cannot be And when one is seized in Fee he cannot by any matter in Fact give away the Inheritance after his death and so leave a particular Estate in himself Peradventure by matter of Record he may Cro. Eliz. p. 29. Clamp's Case Copy-holder in Fee by Licence of the Lord 15 Feb. 4 Jac. makes a Lease for sixty years rendring Rent and the Lease was to commence at Michaelmass next ensuing Lessee enters and was possessed Postea scil 8. May the Copy-holder surrenders the Reversion to divers Uses the Grantee of the Reversion distrains for Rent this Grant of the Reversion seems not to be good the Surrender being made the 8th of May which was before the inception of the Lease perhaps if no day had been named it had been good Lit. Rep. 17 18. Surrender of a Reversion bears date before the inception of the Lease Mary Selby and Beck and Drewet's Case there cited A Feme Copy-holder in Fee comes into Court and offers to Surrender to J. S. in Fee but she desires to retain to her self an Estate for Life the Steward enters that she surrenders the Reversion of her Copy-hold to J. S. after her her death it s naught Vide Attornment supra Limitations in Remainder and Construction thereon and of Contingent Remainder Tenant for Life and he in Remainder of a Copy-hold he in Remainder surrenders his Remainder to the Use of Tenant for Life and after his decease to the Use of himself and his Wife the Estate limited to the Tenant for Life is void but the Estate limited to Baron and Feme is good by way of present Estate and not of Remainder 1 Sanders Rep. 150 151 152. So in Siderfin Remainder over good by way of Grant and doth not depend upon a particular void Estate p. 360. Copy-holder in Remainder surrenders to a Copy-holder for Life Remainder over this Remainder over is good by way of grant in the Estate limited to the Tenant for Life because he had an Estate in it for his Life before and therefore it was argued That the Remainder limited after this particular Estate which is void in its creation are void also But Per Cur. the intent was that Husband and Wife shall have the Land joynly for their Lives in possession after the death of Tenant for Life as by mediate Settlement A Surrender is rather in nature of a Deed Poll than of an Indenture and enures by way of limitation of Use ut res magis valeat Wade and Bath Fee upon a Fee upon a Contingency A Fee may be limited upon a Fee upon a collateral Contingent in Copy-hold Estates As if a man surrender a Copy-hold in Fee to the Use of J. S. and his Heirs who is an Infant and if J. S. dyes before the age of twenty one years or marriage then he surrenders this to the use of J. D. in Fee This is a good Remainder to D. upon the Contingent 2 Rolls 791. Simpson and Southwood It s made a Quaere in Stiles in the Argument of Pausley's Case If by the destruction of a particular Copy-hold a Contingent Remainder be destroyed Rolls conceived not because it doth not depend upon the particular Estate but ought to expect till the Remainder happen Stiles 251. and there is one in esse to take the particular Estate But it seems the Law to be contrary and that if the particular Estate be destroyed the Contingent Remainder is gone As to this A Surrender is to the Use of a Feme Covert the Remainder to the right Heirs of the Body of the Husband and Wife he in the Remainder shall not take till the Husband dyes for he which is to have this ought to be Heir of the Body of both 2 Rolls Abr. 415. Lane and Pannel A like Case as this is also Reported 3 Leon. p. 4. Copy-holder is surrendred to the Use of the Wife for Life the Remainder to the Use of the right Heirs of the Husband and Wife the Husband entred in the right of his Wife Per Cur. The Remainder is executed for a moiety presently in the Wife and the Husband was seised of that in the Right of his Wife and the Wife dying first her Heir shall have it but if the Husband had dyed first his Heir should have had one moiety But the Case of Lane and Pannel wherein was good Law and nicely argued is better Reported in 1 Rolls Rep. 238 317 438. The Case was this Lane was seized of a Copy-hold in Fee and having a Wife surrenders it to the Use of Dixon and the Wife for their Lives and after to the Use of the Heirs of the Body of the Husband and Wife and the Wife and Dixon are admitted to them and their Heirs and after Dixon surrenders his moiety to the Husband and Wife and their Heirs upon which they were admitted and afterwards they Surrender it to the Use of one Davis in Fee who was admitted then the Wife dyes having Issue and after the Husband dyes the Heir brings an Action of Trespass it s not maintainable The great Question was whether the Wife had an Estate Tayl executed vested in her Per Coke Whether
this he is not a customary Tenant and so he can transfer nothing to another Yelv. p. 144 145. Wilson and Weddel Cro. Jac. p. 36. Joyner's Case The Heir may surrender the Reversion before Admittance Copy-holders Baron and Feme to them and the Heirs of the Husband Husband dyes the Heir may surrender his Reversion into the hands of two Tenants out of Court if the Custom be so before any Admittance and during the Life of the VVife and its a good Surrender for the Reversion was cast upon him by the Surrender before any Admittance 1 Rolls Abr. 499. Calchin and Calchin Surrender by whom By Infant An Infant who Surrendred his Copy-hold Land within Age may enter at his full Age without being put to any Suit for it Popham p. 39. Infant within Age surrenders to the Use of another it s not good in Chancery Mich. 9 Jac. Hughs and Carpenter Baron seized of Copy-hold in right of his Feme in Fee surrenders without his Wife By Husband of the Wives Land to the Use of J. S. in Fee who was Admitted Baron dyes VVife dyes the Heir of the VVife enters and makes a Lease and good this was not any discontinuance against the VVife to put the Heir to his Plaint in nature of a sur cui in vita That Action is given where Recovery by default is against the Baron and Feme Popham 39. Bullock and Dibler Copy-holder pur vie Surrenders to the Use of another By Copyholder for Life there can be no possibility of having it again if he survive for the Surrenderer is meerly in by the Lord and not by the Copy-holder but if a Copy-holder in Fee surrender to the Use of another for Life who is admitted he is in quasi by the Copy-holder and by his death the Copy-holder shall have it again Cro. Car. 204 King and Lord. Tenant for Life of a Copy-hold where the Remainder is over may surrender to the Lord 9 Rep. 107. Podger's Case A Feme Covert and J. S. are Tenants for Life of a Copy-hold By Joynt-Tenants and J. S. surrenders his moiety to the Husband of the VVife this is a severance of the Joynture so that he is Tenant in Common with his VVife 2 Rolls Abr. 88. Lane and Pannel Two Joynt-Tenants of a Copy-hold and the one surrenders his moiety into the Hands of the Lord to the Use of his last VVill and thereby deviseth it to another this is a good Devise because by the Surrender the Joynture was severed between them Co. Lit. 59. b. So if there are two Joynt-Tenants in Fee of a Copy-hold and the one Surrenders his part out of Court into the Hands of the Lord to the Use of his last VVill and by his last VVill afterwards deviseth it to the Use of a Stranger in Fee and after at next Court the Surrender is presented by the Surrender and Presentment the Joynture was severed and the Devisee ought to be Admitted to the moiety of the Land for now by relation the State of the Land was bound by the Surrender Co. Lit. 59 b. Constable's Case cited there Where a Copy-hold granted by a Disseisor c. shall be good and stand in force against the Disseisee and where not By Disseisor c. Tenant for Life Remainder for Life of a Copy-hold the Remainder man for Life enters upon Tenant for Life in possession and makes a Surrender nothing at all passeth hereby for by his Entry he is a Disseisor and hath no customary Estate in him whereof to make a Surrender Mod. Rep. 199. Bird and Keck Of the lawful Lord who can make Grants and admit upon Surrenders This diversity was unanimously agreed If Disseisor or Feoffee of a Disseisor or any other who has a tortious or defeasible Estate or Interest subject to the Action or Entry of another hold Court and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold such voluntary Grant shall not bind him that had right when he shall re-continue the Manor by Action or Entry for to this intent the said Custom shall be intended of a Lord which had a lawful Estate or Interest but if such Lord who had a tortious or defeasible Estate admit any upon Surrender made to the Use of another or give Admittance to the Heir upon a Descent such Admittance shall be good and within the Custom for such acts are lawful and quodammodo judiciales and which he may be compelled to do in a Court of Equity 4 Rep. 23. b. Clark and Penyfeather So every one who had a lawful Estate or Interest in a Manor Dom. pro Tempore both in Fee or Tayl or Dower or by the Curtesie or for Life or Years or as Guardian or Tenant by the Statute or Elegit or at Will Otherwise of Tenant at Sufferance For if there be Tenant pur auter vie of a Manor and Cesty que vie dyes and the Tenant continue in the Manor and hold Courts and makes voluntary Grants by Copy this shall not bind the Lessor aliter of Admittance upon Surrender or upon Descent 4 Rep. 24. Rous and Archer's Case such Grants shall not be avoided by disability of the person or defect of Interest or exility of the Estate of the Lords as at VVill sur condition c. 8 Rep. 63. Swain's Case Or whether it were granted by non compos mentis Infant Bishop Parson non sanae memoriae c. it is not material in Surrenders Vide supra in Tit. Lords Grants If a Copy-hold Escheat or come into their Hands during their time they may re-grant it reddendum the ancient Rents Customs and Services and this shall bind the Lord who had the Inheritance or Free-hold 4 Rep. ibid. So such Grant by Baron and Feme shall bind the VVife notwithstanding the Coverture So a Grant by a non compos mentis a Bishop Infant and so Feme Covert non sanae memorie Infants Successors of Bishops Parsons Prebends are bound by the said Custom it being that the Tenements sunt dimiss dimissib per Dom. Manerij pro tempore existen c. ibid. vide supra By a Feme Covert A Tenant out of Court cannot take a Surrender of a Feme Covert for that she is secretly to be examined by the Steward Tothil p. 108. unless by special Custom Sola secreta examinat The Surrender of a Feme Covert being so le examined shall bind her but whether such a Surrenderer upon her examination made before two Tenants of the Manor such Surrenders before them being used to be made be good was the Question in the Case of Erish and Rives Mich. 41 El. B. C. and Per Cur. by special Custom to warrant it it may be good By Infant Vide supra By the Husband of the Wives Land Quid operatur Feme Tenant for Life of a Copy-hold the Reversion being granted over to B. for Life Remainder to C. for Life cum acciderit post
enter upon the Land before Admittance he may take the Profits punish any Trespass done upon the Land 4 Rep. 21. Brown's Case and 23 Fitch and Huckly He may before Admittance surrender to whose Use he pleaseth paying the Lord his Fine The Lord may avow upon him before Admittance for arrears of Rents or other Services If Baron and Feme Copy-holders to them and to the Heirs of the Husband are and the Husband dyes the Heir of the Husband may surrender his Reversion into the hands of two Tenants of the Manor out of Court before any Admittance during the Life of the Wife and this is a good Surrender for the Reversion was cast upon him before any Admittance Calchin's Case 1 Rolls Abr. 499. Possessio Fratris before Admittance There shall be a possessio fratris before Admittance for if a Copy-holder in Fee have Issue a Son and a Daughter by one Venter and a Son by another Venter What makes a Possession or not for that purpose and his Son by the first Venter enter into the Land and dyeth before Admittance the Daughter shall Inherit as Heir to her Brother and not the Son by the second Venter as Heir to his Father And sometimes the Possession of a Termor without any actual Entry or Claim made by the Heir will make a possessio fratris as if the Copy-holder by Licence of the Lord maketh a Lease for years and dyeth and the Son of the first Venter dyeth before the expiration of the Term being neither admitted nor having made any actual Entry or Claim yet this Possession of the Lessee is sufficient and the Reversion shall descend to the Daughter of the first Venter and not to the Son of the second Venter but if the Lease had determined the Son living by the first Venter and afterwards he had dyed before any actual Entry made the Law would have fallen out otherwise because there was a time when he might have lawfully entred The same Law was as to the possession of a Guardian Heir before Admittance is not a compleat Tenant to all purposes But yet the Heir before Admittance is not a compleat Tenant to all intents and purposes for before that he cannot be sworn of the Homage and he cannot maintain a Pleint in the nature of an Assise in the Lords Court till he is admitted Co. Cop. As there may be possessio fratris c. before the Heirs Admittance so there may be a Tenant by the Curtesie Dyer f. 292. before Admittance of the Feme More n. 425. By Hales in the Case of Blackburn and Greaves Modern Rep. 120. If a Surrender be to the Use of A. for Life the Remainder to his eldest Son c. or to the Use of A. and his Heirs and then A. dyes the Estate is in the Son without Admittance whether he takes by Purchase or Descent One seized of a Copy-hold Tenement in right of his Wife in his Demesn as of Fee surrenders this Copy-hold Tenement without his Wife to the Use of a Stranger in Fee who was admitted by the Lord accordingly Husband dyes and Wife dyes the Heir of the Wife without Admittance enters on the Stranger and made a Lease and good Popham 39. Bullock and Dibler This is no such discontinuance against the Heir as to put the Heir to a Plaint in the nature of a cui in vita it s no more than a Grant which passeth no more than his own Estate and the Heir may intermeddle with the Possession before Admittance Upon a Custom to surrender to two Copy-holders out of Court Surrender to the Heir as a Copy-hold Tenant is good before Admittance Heir may enter and have Trespass before Admittance a Surrender to the Heir of a Copy-holder before Admittance is good 1 Keb. 25. Munifas and Baker Copy-holder dyes the Lord admits a Stranger the Heir may enter and upon re-entry maintain a Trespass without Admittance Noy p. 172. Simpson and Gillion He shall have Trespass and this before his Admittance upon Descent 2 H. 4.12 Pl. 49. 4 Rep. 23. b. Cro. El. 349. Berry and Green When the Heir shall be in by Purchase and not by descent If a Copy-holder of Inheritance surrender this to the Use of another and his Heirs and he to whom the Surrender is made dyes before Admittance and after the Lord admits his Heir he shall be in by Purchase and not by Descent for he is in by the Lord for nothing was in his Father by the Surrender before Admittance 1 Rolls Abr. 827. More 's Case Where there needs no Admittance In the Cases of the Heir per Descent Vide supra When one comes in as of an old Estate A. surrenders Copy-hold into the hands of the Lord and the Lord de novo re-grants the same to A. for Life and afterwards to J. his Wife during the non-age of the Son and Heir of A. and after to the Son and Heir in Tayl. A. dyes the Child being 5 years old Now the Wife is to have the said Lands for 16 years by force of the said Surrender and Admittance The Wife took another Husband and dyed Per Cur. The Husband shall have the Land during the non-age of the Infant and that without any Admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee 3 Leon. p. 9. Dedicot's Case If a Copy-holder be for years and maketh his Executors Executors and dyeth the Executors shall have the Term without any Admittance Sed Quaere for Weston in this point was against Dyer and Brown Joynt-Tenants Release One Joynt-Copy-holder released to his Companion and it was resolved That the Release was good without Surrender or Admittance for the first Admittance is of them and every of them and the ability to Release was from the first Conveyance and Admittance Winch p. 3. Wase and Pretty In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant before Admittance and to what purposes not and what Leases made by them shall be good Upon Surrender nothing is vested in the Grantee before Admittance Vide supra The Copy-holder upon Surrender if the Lord refuse to admit him He who makes the Surrender continues in possession till Admittance cannot enter without Admittance nor have an Action unless there be a special Custom to warrant it for he who makes the Surrender continues in possession till Admittance and not the Lord or Cesty que use and he shall have Trespass against any that enters Cro. El. 349. Berry and Green If by the Custom of the Manor the Copy-hold ought to descend to the youngest Son and the Copy-holder in Fee surrender this to the Use of himself and his Heirs and dyes before any Admittance upon the Surrender and the youngest Son first enters the eldest may not justifie his entrance upon him before Admittance 1 Rolls Abr. 502. If a Copy-holder surrendreth to the Use
Plaintiff replyed That the Copy-holder by Licence first then had of the Lord did demise and did not shew what Estate the Lord had nor the time and place when it was made it is not good for the Licence is traversable The Defendant cannot plead That the Plaintiff by Licence did not demise for this is a negative pregnant 2 Browl. 40. Petty and Evans Licentia dat ad dimittendas terras custumarias Co. Ent. 185. CAP. XXII Of Forfeitures What shall amount to a Forfeiture of a Copy-hold Estate by act of the Party by non-feazance or misfeazance Of refusal of Writ Services c. Non-Appearance at Courts Of making Leases not warranted Rent shall be said a Covenant and no Lease and so shall be no Forfeiture VVhat Alienation shall be a Forfeiture or not Of Forfeiture by wast in Trees By Attainder of the Tenant What act of the Husband shall forfeit the Wifes Land or not Who shall take advantage of a Forfeiture Where the Lord shall take advantage before a Presentment or not VVhere the Forfeiture of one Copy-holder shall be the Forfeiture of another as to Estates or Persons What is a dispensation of a Forfeiture and of what Forfeitures in the Life of the Ancestor the Heir shall take advantage Of Forfeitures What shall amount to a Forfeiture of a Copy-hold Estate BY act of the Party By Operatation of the Law What act of the Party respecting Non-Feazance Mis-Feazance Of refusal to pay Rent perform Services or Suit of Court when they shall be causes of Forfeitures or not A Copy-holder hath an Inheritance by Custom but when he doth that which is contrary to the Custom as to cut down Trees c. he shall then be in no better a condition than a bare Tenant at will and so it will be a Forfeiture If a Copy-holder be to pay a certain Rent yearly by his Copy to the Lord and the Lord comes upon the Land and demands the Rent at the day if the Copy-holder being present refuseth to pay it this is a Forfeiture but if in such Case the Copy-holder saith to the Lord he hath not his Rent ready this is not any Forfeiture for the Lord may Distrain 1 Rolls Abr. 506. therefore the Case in Cokes Copy-holder p. 189. is not Law which saith That if the Copy-holder tells his Lord that he wanteth Mony to discharge the Rent and intreateth him to forbear unless the Lord giveth his consent that this is a Forfeiture vide Noy p. 58. Crispe and Fryar Cro. El. 505. mesme Case A Widow had Copy-hold Land and knew not how to pay her Rent and divers persons came for the Rent but she dismist them with dilatory Answers last of all comes a young Gallant and demands the Rent she answers That she did not know him but if he would dance before her if she liked his dancing she would pay it This denyal was adjudged no Forfeiture not being wilful Lit. Rep. 268 in Paston and Uthert's Case Voluntary refusal If the Copy-holder be absent when the Lord demands the Rent at a day and none is there to pay it this is a refusal in Law yet this is no Forfeiture for this amounts not to a voluntary refusal and there ought to be a demand of the person of the Copy-holder to make a Forfeiture Hob. p. 135. Denny and Lemon p. 38. El. B. R. Crisp and Fryer And therefore that other Assertion in Cokes Copy-holder p. 190 That if the Lord continue in making his demand upon the Land and the Copy-holder is still absent Absence that this makes the Copy-holders Estate subject to a Forfeiture seems not to be Law for the Lord may have other remedy for his Rent William's Case cited in Latch 122. Grey and Ulisses was thus The Lord demanded the Rent of his Copy-holder and he answered that he had it not with him then but that he would pay it as soon as he could the Lord said pay this at my House such a day which House was within the Manor it was resolved that the first words were not any Forfeiture Notice to pay the Rent at a place out of the Manor but when the Lord assigned him a day certain at which day he pays it not this failure amounts to a wilful refusal and was a Forfeiture But had the place been out of the Manor it had been no Forfeiture which Crew Chief Justice agreed to Copy-holder in Fee rendring Rent at Michaelmas and Lady-day Not paid at the last instant of the day he suffers the Rent to be unpaid for three years the Lord at the last Instant of the day of payment demands the Rent upon the Land and the Copy-holder is not there to pay it the better Opinion was that it is a Forfeiture Moor n. 468. Crisp and Fryar An Act which makes a Forfeiture ought to be to the disherison of the Lord of his Copy-hold not of a collateral thing Copy-holds are determinable the same way as Estates at Will When a Copy-holder doth acts as Owner not warranted by the Custom 5 Rep. 13. as Waste unless the special Custom aid 2 Keb. 466. Ivery's Case If the Estate of the Lord of the Manor cease by limitation of Use and the Use and Estate of it is transferred to another Notice of the alteration of the use and Estate or else no Forfeiture for denyal of payment of Rent who demands the Rent of the Copy-holder and he denies to pay it this is no Forfeiture without notice given to the Copy-holder of the Use and Estate Beconshaw and Southcot's Case cited in 8 Rep. 92. Francis's Case Bargainee of a Manor by Deed Indented and Inrolled shall not take advantage of the Forfeiture of a Copy-hold for denyal of payment of Rent to him without notice given to him of the Bargain and Sale agreed for Law in Francis's Case 8 Rep. Copy-holder before any Rent due saith he will not pay any Rent to the Lord hereafter What words of denyal amount to a Forfeiture or not or when a Court is to be holden that he will not appear to do any Suit at the Court of the Lord these are no Forfeitures But if his Rent being due he denies it or when the Court is holden he saith he will not do any Suit the same is a Forfeiture Sir Christopher Hatton's Case cited 3 Leon. 108. in Tavernor and Cromwel's Case Vide supra Paston and Utbert's Case In case of the forfeiture of a Copy-hold either for Rent or Fine the Lord must demand the Rent or Fine of the person of the Tenant Fine and therefore in Denny and Lemon's Case Hob. p. 135. Demand must be made of the person of the Tenant In Trespass by the Copy-holder against his Lord the Defendant pleads he had admitted the Copy-holder and assessed a Fine of 20 Nobles upon it and had appointed him to pay it to his Bayliff at his House being within the Manor three Months after and alledged That he
the principal and reversed the Outlawry and was found Not Guilty and the Heir of him which was hang'd entred upon the Lord adjudged inasmuch as there cannot be an accessary unless there be a principal that the Entry of the Heir was lawful 2 Brownl 217. Gittins and Cooper So it s a good Custom in 1 Leon. p. 1. Burnford and Packington Copy-holder for Life was arraigned for Felony and convicted and prayed his Clergy whereupon the Plaintiff as Lord entred for the Forfeiture without alledging any special Custom or Attainder Q. 2 Keb. 451 456. Jury and Pawlet Of other acts which are Forfeitures If a Copy-holder forgeth a Customary containing divers false Customs and pretending them to be true Customs Quaere if this be a Forfeiture 3 Leon. 107 108. Tavernor and Cromwel By Inclosure Custom is That the Lord hath a Field-course for five hundred Ewes over the Lands of the Copy-holder from Michaelmas till Lady-day in all the Lands of the Copy-holders not inclosed the Custom was too That if they did Inclose he might Fine them Per Cur. Inclosure is no Forfeiture Paston and Utbert 5 Car. 1. Hutton p. 102. Lit. Rep. 246. mesme Case Rescous Rescous by a Copy-holder is a Forfeiture Replevin by a Copy-holder If a Copy-holder bring a Replevin it is a Forfeiture 1 Rolls Rep. 48. in the case of Warn and Sawyer Outlawry A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by it and yet the King shall have the Profits Inclosure Bare Inclosure is not Forfeiture of a Copy-hold Hetly p. 7 8. The manuring of Land to Hop Ground was agreed to be a Forfeiture If Doal Marks are about a Copy-hold and the Copy-holder makes such Ditches that he defaceth the Doal Marks this may be a Forfeiture for in time it may prove to the disheritance and loss of the Copy-hold What Acts of the Husband shall forfeit the Wives Land or not Feme Copy-holder of Inheritance takes Husband Husband makes a Lease for years Lease of a Copy-hold shall not bind the Wives Estate of Inheritance the Lord enters for a Forfeiture Husband dies the Feme dies the Heir of the Wife enters and his entry was adjudged lawful Palmer's Rep. 387. Savern and Smith 35 El. Sandley's Case 2 Rolls 344. mesme Case Denial of Rent by the Husband shall be a Forfeiture against the Wife and so shall waste Denyal of Rent by the Husband Quaere if waste be not a Forfeiture by the Statute of Gloucester which extends to Copy-holds but not collateral acts as cutting Trees c. By Doddridge waste at Common Law by the Husband shall bind the Wife but not a Feoffment and he took this difference Diversity where the Copyhold came to the Woman after Coverture his Forfeiture shall not bind her for then it cannot be said it was her folly to take an Husband that would forfeit c. Palmer's Rep. 387. Savern and Smith If a Feme Copy-holder pur vie Waste committed by Husband takes Husband who commits waste this shall bind the Wife and the difference is as to this and the Husbands making a Lease In waste the Forfeiture goes to the Inheritance of the waste which continues for ever but in Savern and Smith's Case this Forfeiture determines with the Lease But if a stranger commits waste without the assent of the Husband By Estranger this is no Forfeiture 4 Rep. 27. Clifton and Molineux Vide pluis infra A Feme Copy-holder takes an Husband who lets the Land for more years than the Custom doth warrant it is Quaere whether this shall bind the Wife as a condition in Law Per Wray If the Husband deny to pay the Rent or to do Suit of Court these are present Forfeitures which shall bind the Wife for they are things that the Lord must of necessity have but Quaere of the Lease saith the Book Cro. El. 149. Hedd and Challener But it hath been resolved ut supra in Savern's Case Who shall take advantage or enter for a Forfeiture and of what Forfeitures or not After a Copy-hold is dismembred from the Manor yet of what Forfeitures the Grantee or Feoffee shall take advantage It was a Question in East and Harding's Case If the dismembring of the Inheritance of the Copy-hold Land by the Feoffment of the Manor had disabled from taking the advantage of the Forfeiture It was ruled with this difference that all Forfeitures which accrew by reason of any matters of the Court are discharged but not Forfeitures at Common Law as Waste or Leases made to the disherison of the Lord but the Feoffee of them made in his time shall enter and take advantage thereof Moor n. 508. Lessee for years Dom. pro tempore Lessee for years of a Manor shall take advantage of a Forfeiture committed by a Copy-holder for he is Dominus pro tempore East and Harding's Case So Tr. 10. Jac. B. C. Rowls and Mason Lessee for years shall take advantage of a Forfeiture by waste after his Lease made and before the commencement of his Term Moor n. 508. If the Lord of a Manor in which are Copy-holders Tenants of the Manor and the Lord grant to a Stranger the Free-hold of a Copy-hold in Fee although by this his Tenement is divided from the Manor and not demisable per Copy again yet the Grantee of the Free-hold shall take advantage of a Forfeiture committed after by the Copy-holder for he ought to pay his Rent to the Grantee So in this case if the Grantee of the Frank-Tenement make a Lease for years of the Frank-Tenement this Lessee for years shall take advantage of a Forfeiture committed after by the Copy-holder for that he is Dominus pro tempore 1 Rolls Abr. 509. East and Harding Cro. El. 499. mesme Case For Copy-holder as to the Forfeiture of his Estate remains in all degrees as before the severance thereof from the Manor If a Copy-holder makes a Lease for years Where Lessee or Feoffee shall take advantage which is a Forfeiture at Common Law and afterwards the Lord make a Feoffment or a Lease for years of the Free-hold 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 Copy-holder shall continue his Estate and so is in nature of an affirmance or confirmation of the Lease Owen p. 63. Pen and Merival But If the Lord of a Copy-holder for Life Where he shall Lease the Copy-hold for years to commence after the end forfeiture or determination of the Tenant for Life and after the Tenant for Life commits a Forfeiture by making a Feoffment if the Lord will not enter for the Forfeiture yet the Lessee for years may 8 Rolls Abr. 858. Mere and Ridealt He in Remainder Copy-holder for Life the Remainder for Life
Lease had been in possession and the Lessee had never entred he had been barred 1 Brownl 181. This Fine shall not be a bar to the Copy-hold Estate in Remainder for Life for it is not turned to a right the Estate is given by Custom and is to have his beginning after the death of the first Tenant and if the first Tenant commit Forfeiture he in Remainder cannot enter and by Coke notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for Life remains in esse 2 Br. 153. mesme Case Custom that the Lord shall seize Copy-hold after three Proclamations and non-Claim by the Heir shall not bind the Heir that is beyond the Sea 8 Rep. Sir Richard Lechford's Case Statute 37 H. 8. Of Dissolutions 37 H. 8. Of Monasteries extends not to Copy-holds A Copy-holders Estate is not within the Statute of Monasteries and Chanteries to be avoided by any of the Statutes So by Statute 1 Ed. 6. Cap. 14. it is expresly provided That upon the dissolution of Abbies and Monasteries Copy-holds should continue as they did before the Statutes and should fall into the Kings Hands A Copy-holder dissolved by the Statute of Edw. 6. did between the Statute of 37 H. 8. and 1 Edw. 6. grant a Copy-hold Estate in Reversion but the Statute 37 H. 8. extends not to them 3 Bulstr p. 15. Long and Baker Vide 1 Leon. p. 4. mesme Case 31 H. 8. Eccles Leases Of making Leases of Copy-hold Lands belonging to Religious Houses for years after Leases for Lives or Years in being is within that Statute 8 Rep. 7. Heydon's Case 32 H. 8. Of Conditions Entries Assignee Copy-hold is not within the Statute of Entries for Conditions broken Surrendree of Reversion shall not enter for a Condition broken it s not within the Statute of Conditions Hob. p. 177 178. Swinnerton and Miller Copy-hold is not within the Statute of 32 H 8. Entries for Conditions Copy-holder by Licence makes a Lease for 60 Acres rendring Rent and condition of Re-entry Copy-holder Surrenders to J. S. and he demands Rent and enters for Non-payment J. S. is not such an Assignee as the Statute intends and Custom doth not trench to such collateral things such Assignee being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but he may plead his Estate immediately under the Lord Yel 222. Brasier's Case But Assignee of a Copy-hold is within the Statute to have Action of Covenant 1 Keb. 356. Arrears of Rent Baker's Case Quaere if of Debt Cro. Car. 21. Platt and Plummer Executors brought Action for Arrears of Rent of Copy-hold of which Manor the Testator died seized Per Cur. Action doth not lye for Arrears of Copy-hold Rents but only of Rents of Free Land and Statute 32 H. 8. extends not to them Yelv. 135. Appleton and Doiley 1 Brownl 102. Tenant in Tayl of a Manor wherein Copy-holds are demisable for Life c. for a certain Rent Copy-holder for Life dyes and the Lord demiseth it for 21 years 38 H. 8. Rents of Leases in Tayl. rendring the ancient Rent c. it s good within the Statute 38 H. 8. for its not any prejudice to the Issue as to the Rent Noy p. 106. The Lord Norris's Case Vide infra hoc capite If the Lord of a Copy-holder for Life demisable by 10 s. Rent leaseth it by Indenture to the Copy-holder and two others for their Lives rendring 10 s. Rent by which it is within the Statute of 32 H. 8. and is not material though the Harriot be lost because it is meerly casual Noy p. 110. Banks and Brown Vide Montjoy's Case 5 Rep. Et supra Copy-hold is within the Statute 32 H. 8. 9. 32 H. 8. Cap. 9. Of maintenance Of Maintenance for the Word is Any Right or Title 4 Rep. 26. a. Vide infra hoc capite Copy-hold is grantable for three Lives 13 El. Cap. 10. Dean and Chapter of London grant this to H. G. for the Lives of J. R. and M. reserving the ancient Rent but no Harriot the Rent was payable at four Quarters and by this Lease its payable half yearly yet this is not void by the Statute 13 El. Cap. 10. For the Occupant shall be punish'd for Waste and the Harriot is not annual nor depends on the Rent and as to the Rent it s the accustomed yearly Rent but in Mountjoy's 5 Rep. yearly was wanting 6 Rep. 37 Dean and Chapter of Worcesters Case Copy-holds are within all the Statutes of Bankrupts by express words vide supra Statutes of Bankrupts 1 El. and Jac. A Copy-hold is not within the Statute of Limitations Debt for the Fine of a Copy-holder is not within the Statute of Limitations 2 Keb. 536. Statute of Limitations Hodsden and Harris Vide. It is laid down for a Rule in Rowden and Malster's Case Cro. Car. 44. When an Act of Parliament altereth the Service Custom Tenure and Interest of the Land Rules when Acts of Parliament extend to Copy-holds or not or other thing in prejudice of the Lord or Tenant there the general words of such an Act shall not extend to Copy-holds Therefore W. 2. Cap. 20. Elegit Statute W. 2. Cap. 20. which gives Elegit extends not to Copy-hold Lands because it would be prejudicial to the Lord and a breach of the Custom that any stranger should have Interest there without admittance and allowance of the Lord. 27 H. 8.10 Stat. of Uses Statute 27 H. 8.10 of Uses toucheth not Copy-holds because the transmutation of Possession by the sole Operation of the Statute without allowance of the Lord would be to the Lords prejudice 31 H. 8. and 32 H. 8. Of Partition The Statute 31 H. 8. Cap. 1. and 32 H. 8. Cap. 2. whereby Joynt-tenants and Tenants in common are compellable to make Prohibition extend not to Copy-holds And the 32 H. 8. Cap. 28. Leases by Tenant in Tayl or by Husband of the Wives Land Statute 32 H. 8. Cap. 28. Which confirms Leases for 21 years made by Tenants in Tayl or by the Husband and Wife of the Wives Land touch not Copy-holds for that Statute warrants only such Leases of Lands which are grantable by Deed such are not Copy-hold Lands though by the Lords Licence they may be granted by Indenture yet in their own nature they are only demisable by Copy So Statute 32 H. 8. Cap. 34. And for the same reason which gives an Entry to the Grantee of a Reversion upon the breach of a condition by the particular Tenant toucheth not Copy-hold In all Statutes made for the good of the Common-wealth and wherein no prejudice accrues to the Lord or Tenants by reason of the alteration of any Interest Service Tenure or Custom of the Manor there the general words of such acts of Parliament do extend to Copy-hold Lands as Statute of Merton Cap. 1.
a descent of Inheritance at Common Law there the Defendant may plead a Feoffment made by the Ancestor absque hoc that he died seized because he may have an Estate by disseisin after the Feoffment Traverse of the descent and not of the dying seized is not good March p. 21. Anonymus Copy-hold Land was granted by the Lord of a Manor 10 May 3 Car. to the Wife of Tho. Kett and in the Replication the Defendant justifies as Bayliff to Tho. Kett the Plaintiff confesseth the Land is Copy-hold Land but that the Lord granted it 1 Jac. to N. S. in Fee who had two Daughters the Wife of the Plaintiff and the Wife of Tho. Kett and died seized and that the Lands descended to them upon which it was demurred By Berkley the Grant of the whole ought to be traversed Coparceners or confessed and avoided for the first Grant shews that the Defendant was in of all and the descent to the Wife is but for a moity Dyer 171. pl. 8. Per Cur. upon the whole matter disclosed Quaere if a Coparcener cannot distrain upon the Land of another Matter of Form damage fesant and the matter of form in the pleading ought not to be regarded by the Judges upon Statute 23 El. Cap. 5. Judgment was pro Quer. Hutton said The descent which was pleaded makes the second Grant void but by Richardson Though it be avoided yet it is not confessed Hetly p. 114. Port and Yates In Replevin the Defendant avows for damage fesant by reason of a Copy granted to him of the place where c. by the Lord of the Manor Cooper Bishop of Winchester The Plaintiff saith That before Cooper Horn was Bishop by whose death the Temporalties came into the Queens Hands and this Copy-hold during the time that the Temporalties were in the Queens Hands Escheated and the Queen granted it to the Plaintiff in Fee by force whereof he put in his Beasts If there is not confessing and avoiding there must be a Traverse and traverseth the Grant by Cooper Per. Cur. this Traverse is good and ought to be for there is not any confessing and avoiding because he doth not confess the Seisin and grant by Copy but if he had confessed That the Bishop had entred and granted it by Copy Where needs no Travers then there needed not any Traverse So where one justifies by Lease from J. S. the Plaintiff saith That J. S. enfeoffed himself it is not good without a Traverse Cro. El. p. 754. Covert's Case In Ejectment Ancient Demesn pleaded Replication That they are Copy-hold and Traverse The Defendant pleaded that the Lands were ancient Demesn and pleadable by a Writ of Right Close c. The Plaintiff shews That they were Copy-hold Lands and parcel of the Manor and entitles himself by Lease under the Copy-holder and traverseth That they were impleadable by a Writ of Right Close the Traverse is well enough taken Cro. Jac. 559. Pimmock and Helder The Avowant hath Election to Traverse any part of the Plea which goes to the end of the Action or justifies the Action Traverse the consequence In Ejectment the Defendant pleaded That the Lands were ancient Demesn and pleadable by a Writ of Right Close c. the Plaintiff shews they were Copy-hold Lands parcel of the Manor and intitles himself by Lease under the Copy-holder and traverseth that they are impleadable by a Writ of Right Close Demurrer because this Traverse that they were impleadable is but the consequence of ancient Demesn and therefore not traversable but Per Curiam that the Traverse is well enough taken Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom If the Plaintiff in his Rejoynder confesseth a particular Custom he ought to Traverse the general Custom alledged by the Defendant as in Replication the Defendant alledgeth a general Custom Quod quaelibet femina cooperta viro joyning with her Husband in a Surrender of Copy-hold Lands and being privately examined by the Steward that this by the Custom is a good Surrender the Plaintiff replies That there is a Custom in the Manor quod quaelibet c. who is of full Age may Surrender but the Wife who surrendred here was of full Age and doth not traverse the other Custom And Per Curiam it was ill Lit. Rep. 174. Anonymus Presidents and Forms of Pleading as to Copy-hold Estates The Form of Pleading that a Messuage is parcel of a Manor dimissibil dimiss per Copiam 1 Sanders 146. Wade and Batch That the Lands are Copy-hold Lands c. 2 Sanders 321. Pleading of a Surrender made in the Court of the Lord of the Manor to the Use of J. W. in Fee and of the Grant of the Lord to the said J. W. accordingly 1 Sanders 146. Pleading of the Surrender of a Remainder of a Copy-hold Estate to one for Life to another for Life to another in Fee and admission of them accordingly 1 Sanders 147. Pleading the Admittance of two Tenants in the Remainder for Life the Remainder in Fee 1 Sanders 147. Wade and Batch The Form of Pleading Copy-hold in Fee-simple in Tail for term of Life or Years In Fee-simple Hern p. 80. Co. Entr. 10. 647. Estate 3 Br. 463. Hern 227.607 In feod simplici Tail Life or Years Ra. Ent. 627. Co. Ent. 206. U. B. 128 157. Co. Ent. 657 123. Hern 679. Ad terminum vite vel vitarum Hern 653. Ad terminum 2 vitarum successive Hern 72. Ad terminum 1 2 vel 3 vitarum successive Hern 83 123. Simile in possessione Hern 711. Ad terminum vite vel vitarum tam in possessione quam in Reversione Co. Ent. 373 672. Ad terminum 1 vel 2 vitarum in possessione 1 vite in Reversione Hern 724. Ad Terminum 1 vite in possessione 1 vel 2 vitarum in Reversione Hern 254. Ad terminum 1 2 vel 3 vitarum in possessione vel 2 vitarum in reversione unius vite in possessione Coke Ent. p. 184 3 Br. 745. Pleading Surrender Surrender in Cur ad usum in feod Ra. Entr. 627. Co. Entr. 206. 3 Br. 465. Extra Curiam in manus 2 Tenentur ad usum in feod Co. Entr. 575 645. Usi Extra Curiam ad usum W. pur vie Remainder al Baron Feme Heires de Feme Co. Entr. 207. In manus Dom Co. Entr. 575. Per Tenant pur vie de moiety al use des Fitz Hern 255. Per 2 Tenants pur vie al intent de regrant Hern 656. Per Feme Covert secretur examinatur Co. Entr. 576. 3 Br. 465. Per Attorn secundum consuetudinem Manerij Co. Entr. 657. Per literam Attoruatur Co. Entr. 576. Presentment per l' homage de surrender extra Curiam Co. Entr. 206. Simile per tenentur jacen in extremis Co. Ent. 206. Admissio secundum sursum redditionem Co. Entr. 207 575 bis 577 645 657. Admissio heredis super
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
Estate Tayl Executed or rests in Contingency its Estate Tayl executed in the Wife but by the Reporter it seems it is not executed but rests in contingency the Case as to that is but this A man gives Lands to the Use of his Wife for Life for as to this the Estate of the Stranger is not material and after to the Use of the Heirs of the Body of the Husband and Wife begotten for had it been to the Use of the Wife for Life the Remainder to the Use of the Heirs of the Wife by the Husband begotten it had been no Question he which is to have this ought to be Heir of both their Bodies which cannot be before the death of both and then it may so happen that this Remainder shall never take effect for if the Wife dye who had the particular Estate during the Life of the Husband as it was here her Heir of her Body cannot take it because he is not Heir of the Body of the Husband also and then he not being capable of the determination of the particular Estate he shall never have it and where an Estate rests upon Contingency this may not be executed before the Contingency happen Per Cur. when the Wife and the Estranger are admitted in Fee this doth not alter the Estate but they shall be seized according to the Surrender And when Dixon surrenders his moiety to the Use of the Husband Severance of a Joynture this was a severance of the Joynture between him and the Woman and the Husband aliening the whole to the Defendant he had a moity for the Life of the Wife defeazable by the Wife and the other moiety for the Life of Dixon and after when the Wife dyes the Estate of Pannel is determined as to one moity and on this the Remainder ought then to have vested but the Plaintiff being Heir of the Body of the Wife begotten by the Husband Remainder destroyed because not vests on the determination of the particular Estate cannot take the Remainder which was limited to the Heirs of the Body of the Baron and Feme during the Life of the Husband because non est haeres viventius and he which takes this Remainder ought to be Heir of both their Bodies or otherwise he shall not take it at all and therefore the Remainder is destroyed as to this moiety As to the Admittance of him in Remainder Vide Admittance Note The possession of a Lessee for years is the possession of him in Remainder yea so as to make a possessio fratris Modern Rep. 102. Blackburn and Greaves Where the Heir shall be in by Descent or Purchase It is a common diversity in our Law where a Man surrenders to the Use of himself for Life and afterwards to another in Tayl the Remainder to the right Heir of him who surrendreth there his Heirs shall have it by descent otherwise where the Surrenderer hath not an Estate for Life or in Tayl there his Heir shall enter as a Purchaser To illustrate this by a Case or two A Copy-holder surrendred his Lands to the Use of a Stranger for Life and afterwards to the Use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the Use of a Stranger in Fee and dyed and Tenant for Life dyed the right Heir of the first Copy-holder entred Per Coke nothing remained in the Copy-holder upon the first Surrender but the Fee is reserved to his right Heirs for if he had not made any second Surrender the Heir should be in not by Descent but by Purchase 1 Leon. Allen and Palmer Heir A. seized in Fee of a Copy-hold surrenders this to the Use of his last Will and after by his last Will devised it to B. for Life and after his death to the Heir of his Body begotten for ever Per Cur. The word Heir being limited to the Body of B. is nomen collectivum and all one with the word Heirs and so B. had a Fee executed and his Heir shall have this by Descent and not by Purchase And it is not like to Archer's Case 1 Rep. Where the Devise is to B. for Life and after to his Heir Male and to the Heirs Males of such Heir Male for there the Inheritance is limited to the Heir Male of the Body of such Heir Male Stiles 249 271. 2 Rolls Abr. 253. Powsly and Lowdal Not a good Remainder within the Custom A Copy-hold which by Custom was demisable for three Lives was demised to one for Life the Remainder to such a Wife as he shall marry and to the first Son of his Wife Per Cur. These two Remainders are void but the Estate for his Life was good More n. 1922. Webster and Allen Vide supra Of a Surrender to the Use of one's last Will and how to be construed A man cannot devise Copy-hold Estate to transfer it by his last Will only but he must Surrender it in Manus Domini to the Use of his last Will and then he may devise it to whom he pleaseth but its apparent that nothing passeth by the Will but all by the Surrender and the Will is only a Declaration of the Uses of the Surrender 1 Bulst p. 200. Semain's Case But if a Copy-hold he devised without Surrender Decreed it cannot be executed in point of Interest but only by Decree in Chancery 2 Keb. 837. Harrison and Grosvener But a Custom that a Copy-holder shall Devise his Land is not good without Surrender p. 35 Eliz. E. R. Rot. 334. Wrot's Case A man seized of Copy-hold Lands devised a certain parcel of them to his Wife for Life A general Surrender restrained by the Will the Remainder to his Brother and his Heirs and afterwards in presence of three persons of the Court said to them I have made my Will and have appointed all things in my Will as I will have it and afterwards he said And here I Surrender all my Copy-hold Lands into your Hands accordingly Per Cur. The Surrender is restrained by the VVill and not all his Copy-hold Lands but only so much as are mentioned in the Will pass to the Wife 3 Leon. p. 18. Copy-holder in Fee surrenders into the Hands of a Tenant according to the Custom to the Use of a Will which he said he would make and leave in the Hands of his Partner Moss Moss dyes and after the Copyholder makes his Will and recites the Surrender it seems that the Devisee shall have the Lands for the words Words of Demonstration and not of restraint That he would leave in the Hands of Moss are words of demonstration and not of restraint and then it is a ground in our Law When an act is to be done with referrence to another thing which is impossible illegal or variant the act shall stand and the reference shall be void Lit. Rep. p. 23. Littleton against Eaton Let us see now when a man hath surrendred to the Use
of one for Life who is admitted and dyeth He in Reversion he in the Reversion may enter without a new Admittance and therefore H. B. being seized of Copy-hold Land in Fee and having Issue three Sons G. H. and J. he surrenders it to the Use of his last Will and thereby devised it to his Wife for Life the Remainder to H. and the Heirs of his Body the Wife dyed after Admittance Henry dyes without Issue G. may enter and Admittance for him is not necessary 1 Leon. p. 174. Bullen and Grant If customary Lands do descend to the youngest Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected He shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves Feme to her Free-Bench the Freehold of the Copy-hold being granted over The Custom of Free Bench was durante viduitate si tam diu casta vixerit the Wife after the death of her Husband comes into Court and challenged her Right of Free Bench and prayed to be admitted and the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring an Action by reason the Woman was not admitted was the Question for it was agreed no Fine was due to the Lord. Per Cur. If the Freehold of the Copy-hold be granted over and the Husband dyes Admittance in Law there cannot be Admittance in that Case and yet she may enter And in this case she hath done all she could for Admittance and it is an Admittance in Law to an Estate created by Custom and by act of God and Law Continual Claim amounts to an Entry Hutton p. 18. Jordan and Stone In this Case after the death of the Husband the Law casts the Estate upon the Wife before Admittance and she may make a Lease for years as any other Copy-Holder may mesme Case 1 Rolls Abr. 592. Steward will not admit Cesty que use He enters and takes the Profits Lord brings Ejectment the Defendant shall plead not Guilty If a Copy-holder Surrender to a Stranger and the Steward will not admit him and the Stranger enters and occupies the Land if the Lord Lease to a Stranger to try the Title he to whom the Surrender was made although he be not admitted may well plead not Guilty and it shall be found for him against the Lord. In the Case of Arnold and George Yelv. p. 16. agreed by the four Judges Yet Quaere for how can the Stranger make a Title to the Profits without Admittance But perhaps the reason was That the Lord seemed to be particeps criminis for it may be intended he would not suffer the Steward to admit the Defendant She who hath a Widows Estate shall make a Lease before Admittance for the Law vested the Estate in her and there is no Fine due to the Lord Noy p. _____ Remington and Cole Husband enters into the Lands in right of the Wife before Admittance Entry of the Husband in Right of the Wife and Lease by him before Admittance and the Wife dyes before Admittance yet his Lease shall be good 1 Anderson 192. Ewer and Astwick in More n. 425. mesme Case If by the Entry of the Husband without Admittance of the Wife he should be Tenant by the Curtesie and resolved he shall In what Cases the Lord shall be compelled to make Admittances and how and in what not If the Lord of the Manor for the time being be Lessee for Life or Years Guardian or any that hath any particular Interest or Tenant at Will of a Manor all which are accounted in Law Domini pro tempore do take a Surrender into his hands and before Admittance the Lessee for Life dieth or the Years Interest or Custody do end or determine or the Will is determined though the Lord cometh in above the Lease for Life or years or other the particular Tenancies yet shall he be compelled to make Admittances according to the Surrender Co. Lit. 59. b. Earl of Arundel's Case Action on Case by the Surrenderor but not by Cesty que use It was resolved in Gallaway's Case 26 El. The Party that made the Surrender may have Action on the Case against the Lord for not holding his Court and admitting him to whose Use the Surrender was made but Cesty que use cannot Chancery Chancery will compel the Lord to admit a Tenant Tothil p. 65. Custom was That a Copy-holder for Life should name his Successor for Life and to compound with the Lord if he cannot compound then the Homage to assess the Fine he tenders it the Lord refuseth to admit Action on the Case lies not against the Lord and he that is nominated hath not any Interest therein but he may compel him in Chancery Cro. Jac. 368. He that hath no Interest as a Nominee shall have no Action sur Case Ford and Hoskins 1 Rolls Rep. 125 195. ibid. 2 Bulstr 236. mesme Case The Nominee hath neither jus in re nor jus ad rem he hath a nomination only which is matter meerly in Equity he hath neither damnum nor injuriam here because he hath no Interest Littera Attornatu ad sursum reddend tenmenta Custumaria sursum redditio admissio Co. Ent. 576. CAP. XVIII Of Fines Fines certain Vncertain Vpon Descent and Purchase Of Fine Excessive What Customs are good as to payment of Fines Of Fines as to Admittances to Reversions or Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine Fines FInes due to the Lord upon Admittance are not to be paid till Admittance either upon a Surrender or Descent for Admittance is the cause of the Fine and the Parties being Admitted intitles the Lord to the Fine 4 Rep. 28. Sand's Case and Bacon's Case Though sometimes they are certain and by some Customs uncertain yet they ought to be reasonable Of Fines certain It was the Opinion of Richardson Chief Justice There is scarce a Copy-holder in England but the Fines are uncertain for saith he If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine this makes the Fine uncertain the ordinary course to search it is by Bill in Chancery Lit. Rep. 252. It was but his private Opinion for Fines are certain in great numbers of Manors And I suppose he means as to Evidence for in the Case of Allen and Abraham 2 Bulst 32. there is diversity between proof in case of Descents and Purchase The Case was this Upon not Guilty in Ejectment the matter upon the issue was about the Custom of a Copy-hold Manor whether the Copy-holders upon their Admittances have used to pay Fines uncertain at the will of the Lord or certain i. e. the value of two years Rent To prove the Fines uncertain Evidence to prove uncertainty
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
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
per quod quer ' communiam suam predict pro averiis suis c. in tam amplo beneficiali modo prout antea habuit c. habere non potuit This is a good Declaration though the Commoner cannot have any Damage for the taking and carrying away the Turffs yet the coming on the Land with Horse and Carts is a prejudice to the Common and the per quod the Common is impaired is the cause of Action and the carrying away a means to impair it 1 Rolls Abr. 89. Terry and Goodier and good tho' Damages were entire Action shall be brought in a Copy-holder Lunaticks name for though the custody of the Land was granted to one by the Lord yet no Interest was gained by this commitment and the Lord hath not power over the Lunaticks Lands without a Custom Hobart p. 215 216. Cox and Darson Trespass Quare clausum fregit Copy-holder of Under-Wood without the Soil shall have Trespass Quare clausum fregit Moor n. 480. Account for Profits Account lies not for an Heir Copy-holder for the Profits of his Copy-hold Lands taken during his non-Age where the Defendant hath not entred and taken the Profits as Prochein Amy but claims by Custom and Grant of the Lord to the Use of the Assignee which Custom is good 1 Leon. p. 226. n. 356. Anonymus Faux Judgment Writ of faux Judgment lies not for a Copy-holder Vide supra Writ of Right Close Writ of Right Close lies not for a Copy-holder 4 Rep. 21. Avowry for Rent by Lessee of a Copy-holder Lessee for years of a Manor distrains a Copy-holder for Rent he Replevins Lessee Avows Per Curiam Avowry may be made for the Rent of a Copy-holder in the Kings-Bench and there is difference between an Ejectione Firmae and this Case For the Ejectione Firmae is brought for the Copy-hold it self But this Avowry is for Rent due to the Lord which is a duty at the Common Law and therefore an Avowry may well be for it Cro. El. p. 524. Laughter and Humphry A Copy-holder in Fee by Licence made a Lease for 21 years by Indenture rendring Rent Covenant by Assignee of a Reversion wherein the Lessee Covenants for himself his Executors and Assigns That he will erect a c. The Lessor surrendred to the Use of the Plaintiff and his Heirs who was admitted accordingly and the Plaintiff as Assignee brings his Action of Covenant Whether the Assignee may maintain this Action by the Common Law or by the Statute 32 H. 8. Cap. 34. was the Question for the Defendant demurred upon the Declaration it was adjourned in Cro. Car. 24. Plat and Plummer But it seems by 1 Keb. 356. Baker and Berisford's Case That the Assignee is not within this Statute to have a Covenant Action of Debt doth not lye for Arrearages of Copy Rents for the Stat. of 32 H. 8. Action of Debt for Rent does not extend to them but to Rents out of Free Land Yelv. p. 135. Appleton and Doily And so Executors shall not have Debt for Arreages of such Rents due in the Life-time of the Testator The Lord of a Manor is and Fines No Remedy for Fines Rents c. after vendition for Admittances and Copy-hold Rents are Arrear and then he sells the Manor he is without Remedy both in Law and Equity He hath deprived himself of the Remedy by his own act viz. the vendition 1 Rolls Abr. 374. Serjeant Hitcham and Finch Copy-holder for Life becomes Lunatick A. Action of Trover to be brought in the Lunaticks name he being a Copy-holder sows the Land The Lord grants the custody of the Lunatick to B. A. takes the Corn to the Use of the Lunatick B. Brought Trover in his own name it s ill brought It ought to be brought in the Lunaticks name and not in the name of the Committee Noy p. 27. Cox and Dawson Covenant by Rent Custom is when a Copy-holder dies seized of Copy-hold Lands or Rent That his Wife shall have the one moiety and his Issues the other moiety A. B. so seized takes Mary to Wife and they have Issue John A. B. dies so that Mary is seized of the moiety for her Life and John of the other moiety in Fee and of the first moiety as his Reversion Mary and John her Son make a Lease to J. B. for twenty one years rendring fifty pounds Rent to Mary and fifty pounds to John and after the death of Mary one hundred pounds to John John marries Margaret they have Issue three Sons John dies so that a fourth part comes to his Wife and the other fourth part to his three Sons Rent is behind Margaret brought Debt on Covenant for the Rent Per Curiam it was well brought by her sole Joynder in Action without joyning Mary with her Tenant in Commonn shall joyn in Action so long as the privity of Contract remains but when the privity is determined as it is here they may sever and such Contract shall ensue the nature of the Land and also there is a vesting by Custom and express several Reservations 2 Siderfin p. 9. Baker and Berisford CAP. XXX Of Copy-holders being Impleaded and Impleadable in the Lords Court Vide supra Tit. Customs COpy-hold Lands are as the Demesns of the Manor and are the Lords Freehold and therefore are not impleadable but in the Lords Court Croke Jac. 559. Pymmock and Hilder One recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right A Precept cannot be made and awarded out of the Court to execute the said Recovery Posse Manerij and to put him who recovered into possession with the Posse Manerij for force in such cases is not justifiable but by command out of the Kings Courts 3 Leon. 99. A Woman recovered Dower of a Copy-hold within the Manor and 40 l. Damages 40 l. Damages recovered yet no Execution or remedy but by Petition and she brought Debt for the Damages in B.R. Per Cur. it lyes not because the Court Baron cannot hold Plea nor award Execution of 40 l. Damages though the Damages were there well assessed and because no Writ of Error or Faux Judgment lyes upon such a Recovery of a Copy-hold but only a Petition to the Lord of a Manor so that Copy-hold Plaints are not within the Jurisdiction of this Court of Kings-Bench Moor n. 559. Shaw and Tompson If an erroneous Judgment be given in a Copy-hold Court of a common Lord in an Action in nature of a Formedon a Bill may be exhibited in Chancery Faux Judgment how relieved in nature of a Faux Judgment to reverse this Pateshall's Case in Scaccario 1 Rolls Abr. 373. and Co. on Lit. p. 60. a. He cannot have the Kings Writ of false Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a