viz. Ad hanc Curiam venit A de B sursumreddidit in manus Domini c. unum Messuaglum c. ad usum C de D Haeredum suorum vel Haeredum de corpore suo exeunt Habendum sibi Haeredibus de corpore suo exeunt c. By which it appeareth to be the opinion of Mr. Littleton that an Estate may and might be of Copy-hold-lands And herewith agreeth the opinion of Mr. Plowden in his Commentaries in Morgan and Manxell's Case But note that the opinion of Mr. Littleton is That there must be a Custome of the Manor to enable such Estates of Copy-hold-lands It is said in Coke 3. part in Heydon's Case That where an Act of Parliament doth alter the Service Tenure or Interest of the Estate either in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenants there such an Act of Parliament doth not extend to Copy-holds And therefore the Statute of Westm 2. de Donis because it extendeth to the Alteration of the Service and Tenure of the Land and is prejudicial to the Lord of the Manor doth not extend to Copy-holds But in that Case it is agreed That by a special Custome Lands might be entailed for that it might be that upon the creation of the Manors Lands were given by Lords of Manors to hold by their Tenants by particular Services and for particular Uses viz. to some to them and their Heirs in Fee-simple to some others to hold to them and the Heirs of their bodies begotten and to some others for particular Estates as for life c. and such Estates having continued in their Issues time out of mind Custome hath now enabled such Estates to be of Copy-holds in tail and although they have and enjoy such their Estates be it either Fee-simple or Fee-tail yet it is but secundùm Consuetudinem Manerii and therefore and for these Reasons and causes although that Copy-hold be not or could not be entailed within the general words of the Statute de Donis c. yet by Custome time out of mind used they say that Copy-holds may be entailed 36 Eliz. in the King's Bench it was Adjudged That where the Custome of the Manor was that Lands might be granted unto any in Fee-simple in such case a Grant of Lands unto a man and the Heirs of his bodie was within the Custome For a Custome which extendeth to the greater will extend to the lesser Estate Tenant in tail of a Copy-hold surrendred M. 15 Jac. Lee and Brown's Case Poph. 128. the same into the hands of the Lord to the Use of J S c. In that Case 2 Questions did arise 1. If Copy-holds were within the Statute de Donis c. 2. Whether the Tail might be cut off by a Surrender The Court doubted of the first Point but the better opinion seemed to be That the Statute co-operating with the Custome they might be entailed A Copy-holder had Issue 3 Sons A H. 31 Eliz. B. R. Bullein and Graunâ—'s Case Leon. 1. part 174. B and C and surrendred his copy-hold-Copy-hold-lands to the Use of his last Will and thereby declared the same to be to the Use of his Wife for life the Remainder to B his second Son in tail and afterwards to A in Fee It was a Question in this Case if B had a Fee-simple conditional in the Lands or an estate-Estate-tail For if a conditional Fee then a Remainder over of it could not be limited It was the opinion of Wray Chief Justice That it was an estate-Estate-tail in B and not a Fee conditional and that Customary Lands might be granted in tail A Surrender of Copy-hold-lands was H. 34 Eliz. B. R. rot 29â—â— Stanton and Barney's Case made within the Manor of Stevenson to the Use of J S and the Heirs of his body and after Issue he surrendred the Lands unto another It was agreed by all the Justices That it was a Fee-simple conditional at the Common Law and after Issue that he might alien the Lands A Copy-holder in Fee of the Manor M. 36 Eliz. B. R. Gravenor and Brook's Case Poph. 34. of Fairchilds and Preachers 3 H. 8. surrendred his copy-hold-Copy-hold-lands to the Use of his eldest Daughter for life the Remainder to the eldest Son of the said Daughter and the Heirs-males of his body the Remainder to the right Heirs of A the Copy-holder in Fee In this Case it was said That an Estate in Tail could not be of copy-hold-Copy-hold-lands It was the opinion of Fenner and Popham That by Equity of the Statute de Donis an estate-Estate-tail might be of Copy-hold-lands though not otherwise Now on the other side That Copy-hold-lands cannot be entailed nor are within the Statute de Donis c. see these Cases and Resolutions following H. 35 Eliz. in Co. B. it was Resolved by all the Justices that Copy-holds were H. 35 Eliz. in Co. B. Pitts and Huckley's Case not within the Statute of Westm 2. de Donis For if they were within that Statute then the Lord should not enter nor take advantage of the Forfeiture of the Copy-hold for Felony the contrary of which was Resolved in Borneford and Sir John Packington's Case but the Donor and the Services should be done to the Donor and not to the Lord of the Manor which is against the nature of a Copy-hold-Tenure The Case was That a Copy-holder Tr. 18 Jac. in Co. B. Royden and Moulster's Case Cro. 3. part 32 33. Godb. 367. acc surrendred to the Use of one in Tail there being no Custome to warrant such Surrender In this Case the Question was whether a Copy-hold might be entailed within the Statute de Donis It was holden by all the Justices That it could not be entailed within the Statute and that for divers causes 1. Because it is not within the Letter of the Statute which speaks onely de Tenement is per Chartam datis and Copy-holds cannot pass by Deed but by Surrender onely as is agreed on all sides 2. Because they are not within the meaning of the Statute because that before 7 E. 4. 19. they were not of any account in Law being onely Estates at will of the Lord secundùm Consuetudinem Manerii 3. Because the said Statute de Donis provides onely against those who might make Disinherison by Fine or Recovery which a Copy-holder there could not doe or make because that then upon such Grants in Tail the Reversion should be left in themselves which could not be being to the prejudice of the Lord of the Manor And also 4. because it would be very mischievous because then there should be no means to dock or cut off such Entails common Recoveries and Fines not being then in use unless there were a special Custome to that purpose Having thus declared and made mention of the several Cases and Resolutions in this much-controverted Point Whether Copy-hold may be entailed within the said Statute de Donis
c. I shall not deliver any absolute opinion upon the same although I do much incline to the Affirmative part being chiefly led thereunto by the opinion of Mr. Littleton and by the Resolution in Manxell's Case and of my Lord Coke in Heydon's Case and a late Resolution in the said Point 42 Eliz. in Erish and Rives Case where it was adjudged in the Court of Common Pleas upon an Evidence given in a Case of copy-hold-Copy-hold-lands within the Manor of Istleworth-Sion in the County of Middlesex where it was Resolved That no estate-Estate-tail could be of a Copy-hold without a particular Custome to warrant the same but if there was such a particular Custome within the Manor to warrant such Estates then by the Custome co-operating with the Statute as before is expressed Copy-hold-lands might be well entailed within the said Statute Admitting then that by an especial Custome of the Manor Lands may be entailed the next matter to be considered of is By what and whose Acts the said Estate shall be either discontinued or barred and what shall amount to a Discontinuance or a Bar to the Issue in Tail of such Estate In 13 R. 2. sits Judgment 7. it is 13 R. 2. sits Judgment 7. said That the Heir who is inheritable to the copy-Copy-lands by Custome may recover the same by Plaint in the Court of the Lord in the nature of an Assise of Mort-dauncestor but he shall not have an 15 H. 8. Tenant by Copy 24. Assise of Novel Disscisin And 15 H. 8. Tenant by Copy 24. The Heir of a Copy-holder Tenant in Tail shall recover the Lands in a Formedon in the Discender The Custome of a Manor was That Plaints in the Court of the Lord of the Manor have used to be in real Actions A Recovery was by Plaint in the nature of a real Action against a Copy-holder being Tenant in Tail and a Recovery thereupon had It was holden in that Case That the said Recovery shall be a Discontinuance to take away the Entry of the Heir in Tail because such Plaints are warranted by the Custome and it is an Incident which the Law annexeth to the Custome That a Recovery shall be a Discontinuance But vide Tr. 36 Eliz. in B. R. in Deal and 36 Eliz. B. R. Deal and Rigden's Case Moore 358. Rigden's Case If it had been a Surrender in Court it had been no Discontinuance In 27 Eliz. in a Case concerning the M. 9 Car. in Co. B. Hill and Vpchurche's Case Brownloe 121. Manor of Northhall in the County of Essex That if Copy-hold-lands might be entailed within the Statute of Westm 2. then a Custome of a Surrender of it should be a Bar or a Discontinuance of such Estate for as the Estate might be created by Custome so it might be discontinued by a Surrender by Custome And Tr. 38 Eliz. Field and Eliot's Case A Surrender by Tenant in Tail of a Copy-holder in Fee makes a Discontinuance of it But yet notwithstanding those Authorities and Cases I do conceive that a Surrender is no Discontinuance of a Copy-hold-estate in Tail If a man be seised of a Copy-hold in H. 30 Eliz. B. R. Right and Footeman's Case Leon. 1. part 95. the right of his Wife or be Tenant in Tail of a Copy-hold and he doth surrender to the Use of another in Fee It was holden in that Case That the same doth not make any Discontinuance of the Estate of the Wife or of the Estate-tail but that the Wife or the Issue in Tail may respectively enter into and upon the Land And according to this it was adjudged in Gravenor and Brook's Case before mentioned in 36 Eliz. copy-hold-Copy-hold-lands were entailed and 37 Eliz. in C. B. Lane and Hilâ—'s Case the Copy-holder surrendred the said Lands to the Use of another man in Tail with divers Remainders over and then he died It was said in this Case That it was no Discontinuance of the Tail but the Issue in Tail notwithstanding the Surrender might enter But it was said in that Case That if it were a Discontinuance that in such case a Formedon in the Reverter did not lie by the Tenant in Tail because when a Copy-holder makes a Gift in Tail he hath no Reversion but a Possibility and the Lord shall avow upon the Donee for the Rents and Services and not upon the Donor In Trespass it was adjudged That a H. 1 Jac. Oldcatâ—'s Case Moore 753. Surrender by Tenant in Tail of a Copy-hold was not any Discontinuance of it no more then a Surrender by Tenant for life to another in Fee was a Forfeiture If an Enfant Tenant in Tail surrendreth H. 35 Eliz. Goales and Gran's Case adjudge acc his Copy-hold-lands to the Use of a Stranger who is admitted the Enfant may enter at his full age because it was not a Bar nor a Discontinuance It is not to be disputed or questioned whether a Common Recovery of Lands at the Common Law with Voucher over and Warranty be a Bar of Lands entailed It is universally received by all Learned in the Laws of the Realm to be a Bar of such an Estate and the Inheritances of a great many persons of Quality and others do depend upon such Common Recoveries had and suffered But then the Question hath been whether a Common Recovery had and suffered in the Court of the Lord of the Manor shall be a Bar of an Estate of Copy-hold-lands entailed and for that it will stand upon this difference Where the Custome of the Manor hath always been that such a Recovery there had shall be a Bar where not For without a special Custome I do conceive that by a Recovery had and suffered in the Court of the Lord of the Manor an Estate-tail of copy-hold-Copy-hold-lands cannot be barred But where such a Custome is or hath been out of mind used there I conceive that a common Recovery had and suffered in the Court of the Manor will bar an Estate in Tail of Copy-hold-lands I shall onely put you two Judgments and Resolutions to make good this difference although many others may be alledged Upon a special Verdict in an Action P. 37 Eliz. in B. R. Clun and Pease's Case Cro. 1. part of Trespass it was found That the Lands were Copy-hold demisable in Tail with the Remainder over in Tail That Tenant in Tail in possession suffered a Common Recovery with Voucher in the Court of the Manor of these Lands and afterwards died But there was not any Custome found for suffering Recovery of such Lands in the Court of the said Manor It was holden by the whole Court in that Case That the Recovery should not bind the Tail but upon a Recompence in value and in that case the Issue could not have Land in value Also the Lord should lose his Fine and the party to whose Use the Recovery was had should hold the Lands without Admittance or Grant from the Lord which is contrary to
and that the Son should not be admitted Tenant during the life of his Mother and farther the Custome was That if any Copy-holder committed Felony and it were presented by the Homage that the Lord might seize the Copy-hold as forfeit The Copy-holder died his Wife was admitted to her Free-Bench The Son committed Felony the Wife died The Question was if the Lord might seize the Copy-hold as forfeit It was objected He could not for that the Son was not Tenant at the time of the Forfeiture committed and so the Lord could not then seize and the Custome should be taken strictly But notwithstanding it was Resolved That the Lord should have the Land as forfeit and that the Son was a Copy-holder within the Intent of the Custome If Husband and Wife be Joynt-Copy-holders of the purchace of the Husband during the Coverture the Husband is attainted of Felony and dieth It is no Forfeiture of any part of the Copy-hold But if the Purchace be made before the Coverture then it is a Forfeiture of the moyety The King being Lord of a Manor a M. 5 Jac. in Scaceario Godb. 269. Copy-holder within the Manor made a Lease of his Copy-hold for 3 Lives and the surviving Tenant for life continued the possession of the Lands for 40 years Though the making of such a Lease for 3 Lives was in Law a Forfeiture of the Copy-hold yet because it did not appear upon the Endorsement of the Deed that Livery was made it was holden That the King could not take advantage of the Forfeiture If a Copy-holder doth bargain and sell his Copy-hold-lands by Deed indented and enrolled it was Resolved The same was no cause of Forfeiture of the Copy-hold of which the Lord can take advantage because the Copy-hold did not pass by the Deed and so it was said it was adjudged in London's Case So if a Copy-holder for life surrendreth to the Use of another in Fee and 35 Eliz. Bullock's Case besides that makes Livery of the Land this is no Forfeiture of his Copy-hold because the Estate passeth by the Surrender and not by the Livery If a Copy-holder for life cuts down Timber-trees it is a Forfeiture of his Copy-hold and so it was adjudged in Belfield and Adams Case But if a Copyholder makes a Lease for years and the Lessee cuts down Timber-trees or commits other Waste upon the Copy-hold-lands the Lord cannot enter upon the Land for a Forfeiture but in such case the Lord is put to his Action upon the Case against the Wrong-doer SECT XI Where the Act of the Lord and what Act of his shall dispense with a Forfeiture made by his Copy-holder where and what not Proofs A Copy-holder commits Waste and after Pasc 5 Jac. Cro. 2. part Mantlie and Willington's Case the Waste done the Lord accepts of the Rent from the hands of the Copy-holder Quere if it shall bar him to enter for the Forfeiture It is a Quere not Resolved If Lands be demisable to two by Copy P. 5 Eliz. Moore 49. for life successivè and the Custome of the Manor is that they may not cut Trees if the first of them cutteth down Trees it is a Forfeiture both of the Estate of the present Tenant for life and of the Estate of the other in Remainder over If a Copy-holder levies a Fine makes a Feoffment or suffers a common Recovery which destroys the Estate in such case no Acceptance of the Rent or Act done by the Lord shall be available to make the Estate again good But where the Custome of the Manor onely is broken as if the Copy-holder makes a Lease of his Copy-hold-lands for more years then one year or denies to pay his Rent or denies to be sworn of the Homage or commits Waste there his Estate may be afterwards confirmed and there and in such case the Acceptance of the Rent by the Lord will amount to a Confirmation of the first Estate In some cases where an Estate of a Copy-holder is forfeited by Law yet by Custome and the Act of the Lord in his Court of the Manor the Forfeiture may be mitigated and the Land shall not be utterly forfeited or destroyed As where the Custome is That for Waste Copy-hold shall be forfeited a Custome for to amerce the Tenant for the Waste done and to distrain for the Amercement will be a good Custome to mitigate the Forfeiture of the Copy-hold The Custome of the Manor where Copy-hold-tenements 17 Car. in B. R. Thorne and Tyler's Case were demisable for lives was That if any such Copy-holder suffered his Messuage to be ruined for want of Repairing or by committing of Waste if the same was presented by the Homage the Lord used to distrain the Cattel as well of the Copy-holder himself as of his Under-tenant levant and couchant upon the Lands for the said Amercement It was objected That the Custome was not good for that it was an unreasonable Custome that the Under-tenant should be punished for the offence of the Copy-holder for the Under-tenant is a Stranger to the Custome and Customes should be taken strictly But it was Resolved that the Custome was good For by the Law the suffering of the Copy-hold Messuage to fall to ruine or to be wasted was a Forfeiture of the Copy-hold and the Custome did abridge and mitigate the Forfeiture and the Under-tenant for a year was a Tenant to the Lord and distrainable for the Rents and Services and the Charge lies upon the Land and not upon the person and therefore it was Adjudged That the Custome was good and the Amercement lawfull and the Distress of the Cattel of the Under-tenant levant upon the Land was lawfull all of them being by the Act of the Lord in his Court and by the Custome of the Manor in mitigation of the Forfeiture of the Land and so for the good of the Copy-holder SECT XII Whether copy-hold-Copy-hold-lands be within the Statute of Westm 2. and may be entailed or not and where and by what Acts the Issues in tail may be barred and what shall be a Discontinuance of the Estate what not WHether copy-hold-Copy-hold-lands are within the Statute of West 2. cap. 1. de Donis c. or may be entailed hath been much controverted and many Judgments and Resolutions have been on both sides and it seemeth to be a Point not fully agreed upon at this day I shall therefore make some little mention what hath been said on either side and leave it to the judgement of others And first for the Affirmative part That Copy-holds are within the said Statute and may be entailed I shall begin with Mr. Littleton himself Tenant by Copy of Court-Roll is saith he where there is a Custome in a Manor time out of mind used that certain Tenants within the said Manor have used to have Lands and Tenements to them and their Heirs in Fee-simple or in fee-Fee-tail and in that Chapter he particularly sets forth the manner of Grants of such Estates
said Statutes shall be construed most beneficially for Creditors i. e. suum cuique tribuere There are divers other Statutes and Acts of Parliament which extend to Copy-hold-lands viz. 1. The Statute of 5 Eliz. cap. 13 14. of Forgery 2. The Statutes of 5 R. 2. of Departure out of the Realm and 14 Eliz. of Fugitives 3. The Statute of 32 H. 8. cap. 9. of Buying of Pretensed Titles All which Statutes extend to Copy-hold-lands of which I might shew many Cases and Resolutions of the Justices in their several Courts But because the same would make this Section to be long and tedious and my Intention was to use much brevity in this Addition and Amplification of what in the former part of this Treatise hath been written concerning Copy-hold and Customary Estates I shall here put an End to the Work FINIS The Contents of the several Sections SECTION I. WHat a Surrender of Copy-hold or Customary Estate is to whom and in what manner and place it is to be done and who shall be said such a Tenant of a Copy-hold as may make such a Surrender Page 1 Sect. II. Whether a Copy-hold may be said to be surrendred by any Act Words or Agreement made betwixt the Lord and the Copy-holder or by the Copy-holder with a Stranger made in the Court in the Presence of the Lord or his Steward 5 Sect. III. Of Surrenders out of Court and where Surrenders to the Steward Deputy-steward or into the hands of Tenants of the Manor out of Court shall be good where not 9 Sect. IV. Where although Surrenders are made to the Lord or to Tenants out of Court by Custome yet nothing passeth out of the Copy-holder before Admittance And what shall be a good Admittance in such case what not 17 Sect. V. Where some things and what things may be done by the Copy-holder or his Heir before Admittance 21 Sect. VI. Where the Lord is but an Instrument to convey the Copy-hold by Admittance onely and that the Surrenderee is in by the Copy-holder and not by the Lord. 23 Sect. VII Where the Admittance of the particular Tenant shall be the Admittance of him in the Remainder 27 Sect. VIII By what and whose Act either of the Law of the Copy-holder himself or of the Lord severally or all together the Copy-land or Estate shall be gone determined or extinguished and where suspended onely 30 Sect. IX Of Forfeitures of Copy-holds and Copy-hold-estates and what Acts or things done by the Copy-holder shall amount unto or be adjudged a Forfeiture of the Copy-holder's Estate what not 36 Sect. X. Where deniall or refusall to pay his Rent Fine or to doe his other Customes and Services shall be a Forfeiture of his Copy-hold and Copy-hold-estate and where not 39 Sect. XI Where the Act of the Lord and what Act of his shall dispense with a Forfeiture made by his Copy-holder where and what not 48 Sect. XII Whether copy-hold-Copy-hold-lands be within the Statute of Westm 2. and may be entailed or not and where and by what Acts the Issues in tail may be barred and what shall be a Discontinuance of the Estate what not 51 Sect. XIII What things are incident to a Copy-holder and what he may take of common right without the Grant or Licence of the Lord And what Acts upon the Land shall bind the Copy-holder what not 64 Sect. XIV Where the Lord of the Manor shall be Chancellour in his own Court to determine the Differences which arise betwixt Copy-holders 69 Sect. XV. Of Surrenders upon Conditions and where such Surrenders shall be good where not 70 Sect. XVI Where Custome which warrants the Lord or his Copy-holder to grant greater Estates warrants the Grants of lesser Estates 76 Sect. XVII Who shall be said such a Lord of a Manor as may grant Copy-hold-estates and how long such Estates shall continue and what persons shall be capable of Copy-hold-estates what not and what may be granted by Copy 79 Sect. XVIII What Acts or things are inseparable and must be done by the Copy-holder himself and what acts and where may be done by his Attorney 83 Sect. XIX What Customes within Copy-hold-Manors shall be said to be good and reasonable Customes and what not 88 Sect. XX. Where and in what case a Copy-holder or his Lessee upon an Ouster may have and maintain against the Ejector an Ejectione firme and where and in what not 97 Sect. XXI What Statutes and Acts of Parliament do extend to Copy-holds and Copy-hold-estates what not 99 FINIS
Custome yet because the said Surrender into the hands of Tenants was but an Inchoation of the Case to whose Use the Surrender was made which had no farther perfection or prosecution but became void by the performance of the Condition the first of the two last Surrenders presented viz. the Surrender to the Use of J D and his Heirs stood good and the last Surrender to the Use of J N and his Heirs took no effect A Copy-holder in Fee made a Letter Coke 9. part Comb's Case of Attorney to two Tenants of the Manor to surrender his Copy-hold out of Court unto the Use of J S and his Heirs They surrendred the same accordingly and at the next Court brought in the Surrender into Court but no Custome was found to warrant such a Surrender Notwithstanding in that Case it was Resolved 1. That it was a good Surrender because he might doe it de communi jure without alledging any Custome 2. When the Tenants shewed the same in Court and the Authority which was given to make the Surrender all which they had done was Resolved to be good and legally done SECT IV. Where although Surrenders are made to the Lord or to Tenants out of Court by Custome yet nothing passeth out of the Copy-holder before Admittance And what shall be a good Admittance in such case what not ADmittance is the life and perfection of the Copy-holder's Estate and before Admittance the Tenant is not a perfect Copy-holder Proofs The Custome of a Manor was That a M. 23 Car. B. R. Baker and Denham's Case Copy-holder might surrender his Copy-hold out of Court to the Use of another the party to whose Use it was to be admitted at the next Court Such a Surrender was made but before the next Court Cestuy que use died and so was not admitted It was Resolved in this Case That he was not a Copy-holder within the Custome for by the Surrender before Admittance the Surrenderee hath no possesson and the Heir is in by Discent and holds by the Copy of his Ancestor and so the Cestuy que use is not a perfect nor compleat Copy-holder And it may be compared to the Case where a man makes a Feoffment in Fee of Lands and makes Livery within the View it is no perfect Livery till he doth enter into the Lands but the Feoffor may punish a Trespass there done in the interim for it is but inchoatum untill he enter And so it is in case of a Copy-holder the Surrender is but quasi inchoatum as before till he be admitted to the Copy-hold Vid. Froswell's Case before In 26 Eliz. the Question was Whether 26 Eliz. Galloway's Case vouched in Bulstr 3. part â—17 the Copy-holder might have an Action upon the Case against the Lord for not holding his Court and not admitting of him to whom a Surrender was made according to the Custome of the Manor It was Resolved in that Case That the Copy-holder himself might have the Action But in that Case it was Resolved That he to whom the Surrender was made untill Admittance by force of the Surrender had nothing it was onely an Act begun and not perfected and therefore in such case he could not maintain the Action of the Lord for not admitting of him A Surrender of a Copy-hold is like to the Induction into a Benefice before Induction there is no Possession so before Admittance there is no Possession A Copy-holder according to the Custome M. 12 Jac Robinson and Green's Case Bridgman 82 83. Bulstr 3. part 238. acc did surrender out of Court into the hands of Tenants to the Use of J S and his Heirs which Surrender was delivered into the Court by the said Tenants and there presented which was accepted of by the Steward of the Manor and an Entry made thereof in the Court-Roll and a Copy of the Surrender was delivered unto J S and in the Copy it was viz. Compertum est per Homagium that the Surrender was to J S and his Heirs It was the opinion of the Court in this Case That none of these colourable things did imply a perfect Admittance to the Copy-hold For 1. The Acceptance of the Presentment by the Steward from the Homage was no more then what he was bounden to doe as being Judge of the Court. 2. The Entry of it in the Roll was but an Office of Duty being but an Evidence for the Lord as also for him to whose Use the Surrender was and so was the delivery of the Copy to J S the Cestuy que use But none of these things did imply the Consent or Will of the Lord that the Cestuy â—ue use should be admitted or have the Lands according to the Surrender and all these things together do not imply any Admittance for all of them may be done though no Admittance be in the case Note It was Resolved in the Court of M. 6 Jac. in B. R. Wilson and Weddall's Case â—â—lv 144. King's Bench That if a Surrender be of a Copy-hold to J S it is of no effect untill he be admitted Tenant and if before Admittance J S doth surrender the Land unto another a Stranger who is admitted yet nothing passeth to the Stranger by this Admittance of the Stranger SECT V. Where some things and what things may be done by the Copy-holder or his Heir before Admittance Proofs 1. THE Heir of a Copy-holder may Co. 4. part Clark and Penyfather's Case enter and have an Action of Trespass before Admittance 2. A Possessio Fratris or Sororis may be of a Copy-hold before Admittance 3. A Discent shall not bind the Heir of a Copy-holder 4. He may surrender unto a Stranger before Admittance A Copy-holder in Fee had Issue two Vid. 12 Eliz. Dyer 291. Daughters by divers Women and died seised the Daughters entred and took the Profits many years and before Admittance the eldest Daughter died without Issue and afterwards the youngest Daughter was admitted to the whole Land as sole Heir to the Father In this Case it was holden That the possession of the eldest Daughter though before Admittance should make her Sister though of the half bloud inheritable to the Land If a Copy-holder in Fee by Licence 24 Eliz. in Co. B. Coke 4. part 23. Brown's Case acc maketh a Lease for years and the Lessee entreth the Copy-holder having a Son and a Daughter by one Woman and a Son by another the Land shall discend to the Daughter of the whole bloud although that the Son died and was not admitted to the Copy-hold as Heir to his Father And that that should be Possessio Fratris of a Copy-hold before Admittance If a Copy-holder doth surrender to a 40 Eliz. in B. R. Arnold and George's Case Yelv. 16. acc Stranger and the Steward will not admit him and the Stranger enters and holds the Land if the Lord bring Trespass against him before Admittance he may plead Not guilty and
the nature of a Copy-hold The other Case was this Land was M. 37 Eliz. in B. R. Eylett and Lane's Case Cro. 1. part demisable in Tail by Custome A Copy-holder demised the Land in Tail by Copy The Copy-holder suffered a Common Recovery in the Court of the Manor with Voucher and Warranty The Court at the first doubted of it because a Warranty could not be annexed to such an Estate in Tail But yet afterwards it was Resolved That the Recovery there was a Bar of the Tail And Note for a Conclusion of this Point That at this day by the Customes of several Manors Common Recoveries are had and suffered in the Courts of Lords of Manors for the docking and barring of Estate tails of Copy-holds And much inconvenience would ensue both if Copy-holds at this day might not by Custome be entailed and likewise if by Custome Common Recoveries had of Estate-tails with Voucher over in the Courts of Lords of Manors should not thereby be docked and barred SECT XIII What things are incident to a Copy-holder and what he may take of common right without the Grant or Licence of the Lord And what Acts upon the Land shall bind the Copy-holder what not IF a Copy-holder according to the Custome doth surrender into the hands of 2 Tenants to the Use of J S and his Heirs and afterwards the Copy-holder dieth before the Presentment be made of the Surrender by the Tenants and the Lord before the Presentment accepts of the Rent of J S generally but not as a Copy-holder the Heir of the Surrenderor may eâ—ter into and upon the Lands and receive the Profits thereof to his own use for that nothing vesteth in the Surrenderee before Admittance and the Inheritance of the Copy-hold is in the Heir quasi by Discent To have Common in the Wastes of Pasch 45 Eliz adjudge acc the Lord is not a thing incident to his Copy-hold but is by Prescription or Custome of the Manor If therefore a Copy-holder purchaseth the Inheritance of the Land the Interest of the Common being a thing intire is gone and determined But if the Copy-holder doth surrender part of his Copy-hold-lands to the Use of another who is admitted yet his whole Common is not thereby determined but he shall have Common still for the Lands not surrendred A Copy-holder may take House-bote 9 H. 4. â— Waste 59. Coke select Cases 68. Hedg-bote and Plough-bote upon his Copy-hold-lands of common right as a thing incident to the Grant if it be not restrained by a Custome that the Copy-holder shall not take it but by Assignment of the Lord or his Bailiff And if the Lord where the Tenant hath such Botes cuts down all the Woods and Under-woods which are standing and growing upon the Lands to prevent the Copy-holder of his Botes he may have an Action of Trespass against the Lord as it was Resolved in Heydon and Smith's Case Pasch 8 Jac. in Co. B. A Manor may be Copy-hold and holden M. 8 Jac. B. R. The King and Stafferton's Case Yelv. 190 191. of another Manor by Copy of Court-Roll and if such a Copy-hold-Manor be granted unto J S and his Heirs J S may hold a Copy-Court within his said Manor without a special Grant of it for that of common right a Court-Baron or a Copy-hold Court is incident to every Manor A Lord of a Manor grants a Copy-hold P. 26 Eliz. C. B. Chaw and Dover's Case Leon. 1. part 16. for â— Lives and afterwards takes a Wife The 3 Lives end 〈◊〉 determine The Lord enters into the Manor and keeps the Copy-hold-lands in his hands for a time and then grants the Lands over again by Copy and dieth The Wife of the Lord enters and clums Dower in it In this Case it was Resolved That the Copy-holder should hold the Lands discharged of the Dower because the Copy-holder comes and is in the Lands by the Custome which is paramount to the title of Dower A Copy-holder is feised of Lands at P. 5 Eliz. by Dyer Vâ—de Moore 50. Common Law and also of Lands holden by Copy of Court-Roll and he by Indenture without Licence of the Lord makes one Lease of both Lands rendring Rent It was said by Dyer That in such case the whole Rent is issuing out of the Lands at Common Law because the Lease as to the Copy-hold-lands was utterly void If the Lord grants to his Copy-holder P. 12 Eliz. in B. R. Moore 94. the Trees growing upon the Lands and which shall after grow with liberty to cut them down and carry them away he may justifie the cutting of the Trees which are growing and it shall not be a Forfeiture of his Copy-hold because the Lord hath by his Grant dispensed with it But he cannot cut down the Trees which shall there after grow as it was said by Plowden and Popham If a Copy-holder binds himself in a Pasc 12 Eliz. in B. R. adjudge acc Statute his Copy-hold-lands shall not be extended upon the said Statute because the Copy-holder in the eye of the Law hath an Estate but ad voluntatem Domini secundùm Consuetudinem Manerii But if a man be Tenant for life or years of a Manor and a Copy-hold comes to his hands by Forfeiture or other determination and he binds himself in a Statute although the Copy-hold be after granted yet it may be extended upon the Statute because the Copy-hold was annexed to the Free-hold and joyned with it in the hands of the Lord when the Statute was acknowledged and entred into The Custome of a Manor was That a Copy-holder might cut and lop Trees M. 5 Jac. Swayn and Beckett's Case Moore 812. for Hedg-bote and other necessaries The Queen made a Lease of the Manor to J S with Exception of Trees King James granted the Reversion to J D in Fee The Assignees of the Term granted a Copy-hold to other for 3 Lives Habendum to them successivé The Copy-holder cut Trees It was Resolved That the Copy-holder was in by the Custome paramount the Exception although he took his Estate after the Exception and therefore might justifie the cutting of the Trees for the Hedg-bâ—â—e and other necessaries The Husband seised in Fee of Copy-hold-lands 35 Eliz. Co. 4. part Bullock and Dibles's Case in the right of his Wife surrendred the same to another who was admitted and afterwards the Husband died It was Adjudged that in this case the Wife might enter and she should not be put to her Cui in vita If there be Lessee for life the Remainder M. 9 Jac. in Co. B. adiudge acc for life of a Copy-hold and the first Tenant for life doth purchase the Freehold of the Copy-hold and levies a Fine thereof and 5 years pass it was Adjudged That this Fine should bar him in the Remainder of his Copy-hold SECT XIV Where the Lord of the Manor shall be Chancellour in his own Court to determine the
entred in the name of the Daughters who disagreed to it It was Resolved That it was a Condition but not broken without demand of their Summs at their full ages and when they disagreed to the Entry the Entry of the youngest Brother was not lawfull A Copy-holder surrendred his Lands M. 13 Jac. B. R. Simpson and Sothern's Case Cro. 2. part into the hands of the Lord Habendum after his death to the Use of an Enfant en ventre sa Mier Resolved that a Surrender to an Enfant en ventre sa Mier was not good as an immediate Surrender for that it cannot begin at a day to come And whereas a Remainder was thereupon limited over it was holden to be void because it was to begin upon a Condition precedent Vid. the Condition which was never performed and therefore the Surrender into the hands of the Lord was void because he takes it but as an Instrument to convey it over SECT XVI Where Custome which warrants the Lord or his Copy-holder to grant greater Estates warrants the Grants of lesser Estates Proofs THE Custome of a Manor is That 36 Eliz. Co. 4. part Gravenor and Tedd's Case a Copy-hold-estate may be granted in Fee-simple In that Case it was adjudged That an Estate thereof granted to one and the Heirs of his body is good and within the Custome for Ubi licet quod est majus non debet quod est minus non licere The Custome of a Manor is That 39 Eliz. in B. R. Downs and Hopkins Case Copy-hold-estates may be granted for life or lives In such case a Grant is made to a Woman durante Viduitate suâ And it was adjudged good and within the Custome for that every Grant for life is durante Viduitate but every Grant durante Viduitate is not for life The Custome of a Manor out of mind H. 34 Eliz. B. R. Stanton and Barney's Case used was To grant certain Lands parcell of the said Manor in Fee-simple and never any Grant was made to any and the Heirs of his body for life or for years The Lord of the Manor did make a Grant by Copy to one for life the Remainder over to another and the Heirs of his body It was adjudged That the Grant and the Remainder over was good for the Lord having an Authority by Custome and an Interest withall might grant any lesser Estate but otherwise it is where one hath but a bare Authority In Trespass the Issue was if the Lord P. 29 Eliz. C. B. Kempe and Carter's Case Leon. 1. part 56. of the Manor granted the Lands per Copiam Rotulorum Curiae Manerii secundùm Consuetudinem Manerii praedict It was given in Evidence that the Lord of late at his Court granted the Lands per Copiam Curiae where it was never granted by Copy before In that case the Jury are bound to find quòd Dominus non concessit as it was holden by the Court. For although de facto Dominus concessit per Copiam Rotulorum Curiae yet non concessit secundùm Consuetudinem Manerii praedict But in that Case it was holden If Customary Lands had been grantable in Fee if the same Land escheat to the Lord and he grant the same to another for life it is a good Grant and warranted by the Custome for the Custome which enables him to grant in Fee shall enable him to grant for life If a Copy-hold-estate fall into the M. 15 16 Eliz. in Co. B. adjudge acc hands of the Lord by Escheat Forfeiture or the like and the Lord make a Lease thereof for years or life by Deed or without Deed or if he make a Feoffment of it upon Condition or if the Copy-hold so escheated c. be extended upon a Statute or a Recognizance or the same Land be assigned to the Wife of the Lord in Dower In all these cases the Land can never be granted again by Copy because after such Disposition thereof it was not demiseable But if the Interruptions were not lawfull but tortious as if the Lord be disseised or if the Land be recovered against the Lord by a false Verdict or by an erroneous Judgment yet after the Land is re-continued and the Interruption which was wrongfull removed the Land is grantable again by the Lord by Copy SECT XVII Who shall be said such a Lord of a Manor as may grant Copy-hold-estates and how long such Estates shall continue and what persons shall be capable of Copy-hold-estates what not and what may be granted by Copy EVery one who hath a lawfull Estate Coke 1. part Instit 58. or Interest in the Manor be it Fee Fee-tail Dower Tenantry by the curtesie of England Tenantry for life or years Guardian Tenant by Statute-Merchant or Elegit are sufficient Lords and persons to grant Copy-hold-estates to others And in some special case Estates in Copy-hold-lands may be granted by such a one who hath no Estate or Interest in the Manor Proofs A Guardian in Socage held a Copy-Court Tr. 1 Jac. B. R. Soapland and Ridler's Case Owen 115. in his own name and granted Copies in Reversion Adjudged he was Dominus pro tempore and had an Interest in the Lands for he might make a Lease thereof in his own name and therefore he might both grant Copies and also admit Copy-holders to Estates before granted But the Bailiff of a Manor hath no Interest in the Manor and therefore he cannot grant Copies of the Land holden of the Manor The Custome of a Manor was That P. 41 Eliz. B. R. Ga◠and Kay's Case Cro. 1. part Dominus pro tempore might make a Demise for 2 or 3 Lives in Possession or Reversion A Woman Tenant in Dower for life of the Manor granted a Copy-hold to J S and 2 others for their Lives Habendum post mortem of A B and died A B died It was holden by the Court in this Case That the Grant was good in Reversion although it was not executed in the life of the Tenant in Dower And Vide That the Lord of a Manor for life or any other particular Estate having Interest in the Manor might grant Copies in Reversion of Lands which are holden by Copy of Court-Roll although the Grants were not executed in the life of the Grantors as it was adjudged in Sir H. 14 Eliz. the Earl of Oxford's Case Moore 95. Peter Carew's Case Quere for Hil. 14 Eliz. in the Earl of Oxford's Case in Moore 95. it is not good unless it come in Possession during the life of the Grantor Note It was holden by the Justices P. 15 Car. C. B. Godb. 6. acc P. 15 Jac. in Co. B. That there ought to be a Custome to enable the Lord of the Manor to make a Grant of a Copy-hold in Reversion Generally Things which lie not in Tenure as Advowsons in grosse Commons in grosse or the like incorporate Inheritances out of which a Rent cannot be
Custodie of his Body It was the opinion of the Justices That the Action did not lie But it was agreed in that Case That an Ejectione firme lieth upon a Demise of Copy-hold-lands by Lease for years by the Copy-holder himself but not upon a Demise by the Lord of the Copy-hold Note It was Resolved by the Justices Coke 4. part 26. in Melwichâ—'s Case M. 8 Jac. in Câ— B. Craneford and Freshwater's Case acc That the Lessee of a Copy-holder for a year may maintain an Ejectione firme for inasmuch as his Term is warranted by the Law by force of the general Custome of the Realm it is but reason that H. 39 Eliz. Cro. 1. part Goodwin and Langhurst's Case acc if he be ejected he should have an Ejectione firme for it is a speedy Course for a Copy-holder to gain the possession of the Land against a Stranger being no more then what right requires to be yielded him for the Recovery of his Estate SECT XXI What Statutes and Acts of Parliament do extend to Copy-holds and Copy-hold-estates what not SOme things concerning this Division being spoken of in the former part of this Treatise and some particular Statutes there being mentioned within which Copy-holds are included and in what not I shall refer the Reader thereunto adding onely a few Cases upon some particular Acts not therein mentioned with the Authorities and Resolutions of the Justices therein And as concerning within what Statutes Copy-holds are I shall take and relie upon the general Rule Coke 3. part Heydon's Case which is put in Sir Edward Coke's 3. part of his Reports in Heydon's Case viz. When a Statute or Act of Parliament doth alter the Service Tenure Interest of the Estate or other thing in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenant there the general words of such Statute or Act of Parliament do not extend to Copy-holds or Copy-hold-estates But when the Statute or Act of Parliament is generally made for the good of the Commonweal and no prejudice can come thereby by alteration of any Service Tenure or Interest or Custome used within the Manor there Copy-holds and Copy-hold-estates are within the purview of such Statutes or Acts. Proofs It was Resolved by all the Justices 6 Jac. in Co. B. Coke Select Cases 27 28. That no Tenure shall pay for a reasonable Aid to make the eldest Son Knight or to marry the eldest Daughter but Tenure by Knight's-Service or Tenure in Littl. 16. sect 36. Socage Now Littleton saith that all Tenures are either Knight's-Service or Socage And the Statute of Westm 1. cap. 36. of reasonable Aid extends onely to such Tenures The Question then is Whether a Copy-hold-Tenure be within that Statute I shall not determine the Question for that I do not find it moved in any Book of the Common Law But although I humbly conceive Copy-holds be within the general words of Mr. Littleton all Tenures in Socage yet that the said Statute of Westm 1. cap. 36. doth not extend to Copy-holds Quere of it The Statute of Westm 2. de Donis conditionalibus Statute Westm 2. de Donis I conceive doth not extend to Copy-holds within the general words thereof The words of the Statute are of Gifts per Chartam datis and Copy-holds do not pass by Deeds but by Surrenders But yet it is conceived that although they be not within the general Words of the Statute yet they are within the Equity of the said Statute if there be a Custome to warrant such Estates The Case was A Copy-holder in Fee H. 37 Eliz. in Co. B. Church and Wyatt's Case Moore 637. surrendred his Copy-hold-lands to the Life of his Will and having a Daughter born and his Wife with Child he devised part of his said Lands to his Son or Daughter which his Wife went with Haeredibus suis legitimè procreatis and the residue thereof he devised to his Daughter born to have to her and the fruit of her body One Point in this Case was What Estate the Daughter born had in the said copy-hold-Copy-hold-lands if in Tail or not It was said It was a Fee-tail in the Daughter born But it was much doubted if it was an Estate within the said Statute de Donis c. But in that Case it was agreed That Copy-hold might be entailed by Custome co-operating with the said Statute and if not within the words yet within the Equity of the said Statute The Statute of Praerogativa Regis cap. Stat. Praerogat Regis cap. 9 10. Co. 8. part 170. in Towerson's Case Co. 4. part 127. in Beverly's Case 9 and 10. gives the Lands of Idiots natural to the King he finding them convenient Maintenance out of the Profits thereof But if the Idiot hath Copy-hold-lands discended unto him the King shall not have the Wardship of those Lands therewith out of the Profits thereof to maintain the Idiot because the same would be prejudicial to the Lord of the Manor of whom the Lands are holden by Copy But yet all Alienations made by an Idiot of his Copy-hold-lands after Office found shall be avoided by the King Copy-hold-lands are not within the Stat. West 2. cap. 20. Statute of Westm 2. cap. 20. of Executions For if a Judgment be had in a Court of Record against a Copy-holder for Debt and Dammages although the Plaintiff may have Execution by Fieri facias against his Goods or a Capias against his Body yet he cannot have Execution of the moyetie of his Copy-hold-lands by Elegit for that Copy-hold-lands are not within that Statute And so it is if a Statute-Merchant or Staple be acknowledged by a Copy-holder for the payment of Money at a day certain which is not payed his Copy-hold-lands are not extendable for the same And the reason of these Cases is because no person can come to Copy-holds but by Admittance of the Lord and the Lord should thereby lose his Fine which is due upon Admittance if the party might have the Lands upon Extent delivered unto him If Tenant by the Curtesie or Lessee Pasc 12 Eliz in Co. B. Moore 94. for years be of a Manor and Copy-holds were in his hands by Forfeiture or other determination and he bindeth himself in a Statute and afterwards he deviseth the Copy-hold again the Copy-hold shall be liable to the Statute But if a Copy-holder bindeth himself in a Statute-Merchant or Staple his Copy-hold-lands shall not be extended upon the said Statute because therein he hath but an Estate at will Copy-hold-lands are not within the Statute Stat. 31 H. 8. cap. 13. of 31 H. 8. cap. 13. of Monasteries The Guardians of the Colledge of Otlery Lords of a Manor granted M. 25 26 Eliz. in the Exchequer Leon. 1. part 4. Lands for 3 Lives by Copy according to the Custome of the Manor afterwards in 30 H. 8. they leased the Lands to J S rendring