that Copy-hold Land may well be parcel of the Demesns and the frank-Frank-tenements are resting in the Lord but indeed the customary Inheritance is in the Copy-holder and he shall plead That he is seized with this farther addition In Dominico suo ut de feodo secundum consuetudinem Manerij Services As for Services whether Corporeal Annual or Accidental they are Duties accrewing to the Lord by reason of his Seigniory And respecting Copy-holds I shall under their proper Titles hereafter speak of Herriots Forfeitures Amerciaments and Fines for not doing Suit and Service and the like It was ingeniously said by Doddridge in Herns and Strouds Case Latch 63. That no Case resembles a Manor more than a Rectory as a Manor is intire so is a Rectory and the Glebe Lands resemble the Demesns and the Tythes the Services If I let my Manor excepting the Demesns the Exception is void Winch p. 23. Description of a Manor The New Expositor of Law-Terms describes a Manor as a thing compounded of divers things as of an House Land Arable Pasture Meadow Wood Rent Advowson Court Baron and the like and this ought to be by long continuance of Time to the contrary whereof Man's Memory cannot occur So that a Manor consists of Demesns and Services Manor not made at this day and a Court Baron as Incident and this must be time out of Memory for a Manor cannot be made at this day because a Court Baron cannot now be made To a Manor a Court-Baron is incident and two Suitors at least and a Manor cannot be without a Court Baron and Suitors or Freeholders Two at the least for if all the Free-holds except one Escheat to the Lord or if he purchase all except one there his Manor is gone for that it cannot be a Manor without a Court Baron and a Court Baron cannot be holden but before Two Suitors at the least A Court Baron is incident to a Manor as a Court of Pye-powders to a Fair. By the Grant of a Manor cum pertinentijs the Court passeth and a Man cannot grant his Court but he may grant the Profits of his Court 1 Brownl 175. Browns Case Now though a Man cannot make a Manor at this day yet he may make Gifts in Tayl reserving a Tenure and Suit of Court Yet a Tenure may be created because though he may create a Tenure yet he may not create a Court and a Court cannot be but with a continuance time out of mind 35 H. 8. Broke Tenure 102. A Manor as I said before may not be made at this day neither by a common person The King cannot make a Manor or parcel of a Manor at this day nor by the King himself and the King cannot make a thing parcel of a Manor at this day as if he grants Lands to hold of him as of the Manor of Greenwich by a certain Rent this Rent is not parcel of the Manor Yet though a Seigniory or Appendancy cannot be made at this day yet if an Advowson be Appendant to a Manor Advowson appendant and the Lord grants part of the Manor with the Advowson to J. S. it is now Appendant to that part Cro. El. p. 39. Morris and Smith In truth Manors cannot at this day be created but by way of derivation as being derived out of an ancient Manor Manor by derivation or by act in Law as in the Case of Copartners Vide infra A Manor is entire A Manor is an entire thing and cannot be divided If the Lord will transfer over unto a Stranger the Services of all his Tenants and reserve unto himself the Demesns or if he will pass away the Demesns and reserve the Services Now in both Cases the Lord hath not a Manor really but nominally only and in reputation Manor in reputation and if I am disseised of a Manor and the disseisor sever the Demesns from the Services as it is 4 E. 4. I which have right ought to make my demand according to my right and not to take notice of his severance for to me it is a Manor still Manor in suspence If a Manor descendeth to Co-partners and they make partition and the entire Demesns are allotted to one and the entire Services to the other the Manor is now in suspence for neither hath a Manor but in name only but if part of the Demesns and part of the Services be allotted to each then they each of them have a real Manor 26 H. 4.8 6 Rep. 64. Sir Moyle Finch's Case To Explain this I shall cite a Case or two Joynt-tenants make partition of a Manor yet both keep but one Court If two Joynt-Tenants make partition this day of a Manor and each of them hath Demesns and Services yet each of them hath not a Manor nor can keep several Courts but must both keep one Court Croke El. p. 39. Morris's Case A. seized of a Manor whereof part of the Tenants were Freeholders and part Copy-holders had Issue two Daughters and dy'd the Daughters entred and made partition of the Demesns only but the Services of the Free-holders and Copy-holders remain'd in Common By the partition the Demesns are now become in gross and severed from the Manor and if partition be made of a Manor so as the Demesns be allotted to one Sister and the Services to another now the Manor is dissolved or rather suspended Manor suspended and revived yet if the other Sister dyes without Issue and her part descendeth to the other now it is become a Manor again 1 Leon. p. 204. Thetford's Case By this you see we read in our Books of two sorts of Manors 1. A real and perfect Manor such as is before described 2. A nominal Manor a Manor by reputation A Manor nominal as you may see by several Instances before Some call it a Manor in gross as Manor in gross a man may have the Right and Interest of a Court Baron with the Perquisites thereunto belonging but this is improperly called a Manor in a strict sense and another may have the Scite and every Foot of Land thereunto belonging And as to this I will only cite a Case which refers to practice 6 Rep. 64 65. Sir Moyle Finch's Case Reputation is sufficient to pass a thing in a Conveyance by the name of a Manor Manor in reputation will pass by the name of a Manor in a Conveyance not in a Fine which is not re vera a Manor yet it ought to be in truth and not reputation which ought to challenge and hold Priviledge of a Manor as to have a Court Baron c. But a Manor in reputation which is not in truth a Manor will not pass by the name of a Manor in a Fine or Common Recovery for they shall not be taken by intendment Croke Eliz. 524. Mallet's Case Of Customary Manors A customary Manor may be held by Copy and such customary
Per Cur. to take a Surrender and grant Land by Copy Act done by the Servant of a Deputy is not any judicial Act and the admitting of a Copy-holder is not any judicial Act for there need not be any Suitors there who are Judges and such a Court may be holden out of the Precincts of the Manor Per Cur. the Grant is good What Court may be held out of the Manor especially if the Lord of the Manor agree to it afterwards 1 Leon. 288. Lord Dacres's Case One is made Steward ad exequendum per se vel sufficien ' deputatum suum J. S. makes A. his Deputy hac vice to take a Surrender ad ulterius faciend c. it s a good deputation and though the authority was to take the Surrender absolute and he takes a Surrender upon a Condition yet its good by reason of these words Et ad ulterius faciend Cro. Eliz. p. 48. Burdets's Case The Kings Copy-holder is attainted of Felony whereby his Copy-hold Escheats the Steward may grant this over ex officio without any especial Grant yet it s his duty before he does it to inform the Lord Chancellor Treasurer and Barons 4 Rep. 30. Harris and Jay Surrender by a Deputy Steward not according to his Warrant Stewardship was granted to A. to execute the Office per se vel sufficien ' Deputat suum A. made a Deputation to M. ad capiend unam sursum redditionem of one J. W. and J. his Wife and to examine J. ea intentione that the said J. W. and J. might take back an Estate for their Lives the remainder over to J. B. in Fee M. took two several Surrenders from the Husband and Wife the remainder to J. B. in Fee upon condition to pay a certain Sum of mony c. Per Cur. The proceedings are well warranted by the Deputation aforesaid 1 Leon. p. 289. Burgess and Foster I can conceive this to be the same Case as the former and one will well help to explain the other If the Surrender and Re-grant is entred in the Roll of the Court dated to be holdâ—â— the second day of May and the Deputation bears date the third day of June after Per. Cur. This misentry of the date of the Court shall not prejudice the Party for this Entry is not matter of Record Vide ibid. The Kings Auditor and Surveyor for the County of N. appointed a Steward for one of the Manors illa vice The Kings Auditor and Surveyor cannot appoint a Steward hac vice He kept Court and granted Copy-hold c. their appointment is not good they have no authority to appoint Stewards the one being to take Accounts the other to survey Land and the Grant is void Things of necessity done by one who is but in a reputed Authority is good if they come in by presentment from the Jury or of necessity are good as the admittance of an Heir upon a presentment or admittance by a Surrender to an Use But acts voluntary Things of necessity by a reputed Steward good not acts voluntary as Grant of a Copy-hold is not good If the Steward diminish the ancient Rents and Services it s a void Copy If a Lord command a Steward that he shall not grant such Land by Copy Lord countermands a Steward if he grant it it is void Cro. El. 699. Harris and Jay 4 Rep. 38. mesme Case They ought to have Letters Patents of the Office of Steward Infant not to be Steward Infant is not capable of the Stewardship of a Manor March p. 41. Copy-holder moved the Court That the Steward might be ordered to bring in the Court Rolls to enable him to defend his Title but the Court denied it Stiles 128. Baron and Feme Copy-holder in right of his Wife surrender out of Court into the Hands of the Steward and she was examined by him and it was not proved that he was Steward by Patent Though it is not proved he is Steward by Patent c. yet Surrender out of Court into his Hands is good nor any special Custom to warrant it yet Per Cur. it was good Cro. Jac. p. 526. Smithson and Cage Declaration Pro Senescallo Cur. Maner ' impedit de Officio unde ei conces pro vita Rast Ent. 5.9 Co. 42. 1 Br. 192. Hern 232. CAP. XI What things way be granted by Copy Of Grants by the Lord legitimus Dominus pro tempore Disseisor Infant And in respect of the Lords person or Estate what shall be good or not Of Grants by the King Lord. VVho shall be said a Lord sufficient to grant Copies VVhat amounts to a Grant at what place to be granted Of Grants by the Copy-holder to the Lord. A Manor may be granted by Copy Câ— Lit. 58. b. i. e. a customary Manor and so a Manor may be parcel of another Manor Generally all Lands and Tenements with in the Manor and whatsoever concerneth Lands and Tenements may be granted by Copy as a Fair appendant to a Manor may be granted by Copy Co. Lit. 58 b. Underwoods without the Soyl may be granted by Copy to one and his Heirs and so may the Herbage or Vesture of Land The Lord granted to one and his Heirs subboscum in M. Wood annuatim succidend by four or five Acres at the least and then made a Lease of the Manor The Lessee cut Trees Copy-holder brought Trespass Lessee justifies with averment That he had left sufficient for the Copy-holder to cut down by four or five Acres yearly 1. Per Cur. Order of direction not of instruction Underwood may be granted by Copy if the Custom permit it 2. That the whole Wood passed and the words annuatm succidend is an Order only appointed for the cutting it and not to restrain the Grant More n. 480. Taylor and Hoe and Cro. El. 413. The Market of Crokeham in Sommersetshire is always demised by Copy 4 H. 6.21 cited in Hoe and Taylor 's Case More n. 480. and Cro. Eliz. 413. Hoe and Taylor The grant of Waste by Copy is void unless so granted time out of mind also were it good it would not bind the Successor in the Case of a Bishop 3 Keb. p. 124. Bishop of London and Rowe Tonsura Prati is grantable by Copy So Herbagia 1 Rolls Abr. 498. Of Grants by the Lord or voluntary Grants Copy-holder Copy-holds come to the Lord by Escheats Note or Forfeiture or Purchase What comes by Escheat or Forfeiture he may grant again H. 8. seized of a Manor in which are Copyholds Grants Copy-hold for Life generally It was a Quaere in March Rep. 206. Fulham's Case and not resolved whether this be a good Grant or not and Per Cur. The Grant is not void it never recites in any Grant of the King what is Copy-hold But the great Question was whether the Copy-hold was destroyed or not It was not there resolved but seems so But Downcliff and Minor's Case is
Deed of Purchase of all Commons appertaining to his said Messuage Per Cur. The Common which he had in the Copy-Estate was extinct because the Common appertained to the customary Estate which is determined and because now he claims from the Lord in whom the Common may not stand divided from the Land and Soil of the Wood but had there been special words in the Grant of the like Common as he had in the Common Before the Surrender it had been good as a new Grant of the Common More n. 915.866 Fort and Ward By what words in Grants Copy-holds shall pass or not What shall pass by the words All the Demesn Lands King Ed. 6. by Patent granted omnes terras Dominicales Manerij de W. It was adjudged That customary Lands held by Copy parcel of the same Manor shall not pass and yet they are in the Law parcel of the Demesns of the Manor but in the Case of a common Person they shall pass by those words 1 Rep. 46. in Alton Wood's Case But if a man grant all his Demesn Lands his Copy-hold Lands will not pass if he had other Demesns to satisfie the words of the Grant 2 Rolls Rep. 236. And if I grant all my Lands and Tenements in D. my Copy-hold Lands there pass not because they cannot pass by any such assurance Owen Upon a special Verdict King H. 8. seized in Fee of the Manor of D. granted by his Letters Patents to Richard Andrews and Peter Temple in Fee Inter alia omnia Messuagia terras tenementa redditus reversiones servitia hereditamenta sua in D. subscripta viz. totum illum annualem redditum quindecim solidorum alia ser vitia exâ—untia de terris W. K. ac totum illud Messuagium 6 vergatas terrae in D. in tenura J. D. Habend tenend omnia predicta Messuagia terras tenementa redditus reversione servitia hereditamenta in D. pred to the said Richard Andrews and Peter Temple and their Heirs The Question was whether this was a good Patent to convey the said Lands of the said W. R. being a Copy-holder pur vie Per Cur. It was a void Patent to convey the Lands of the Copy-holder to them for there is not any Land granted but the Rents and Services of W. R. which is intended Freehold and there being none such the Grant is meerly void Cro. Car. 21. Castle and Hobbs By Hobart if the King grant you his Demesns you shall not have his Copy-holds in Waste and Pretty's Case Winch p. 3. What things shall pass by Grant of another thing as Appurtenant or Incident or not If there be a Common appendant to a Copy-hold Tenement Appurtenant and the Lord makes a Feoffment of the Tenement with all Profits Commodities and Common to this Appurtenant Yet the Feoffee shall not have any Common for this was Appurtenant to the Copy-hold and not to the Freehold 2 Rolls Abr. 61. So if he Lease the Copy-hold Tenements for years with such words as before yet Lessee shall not have any Common for the reason aforesaid ibid. What passeth or not by the words cum pertinentijs There being a Copy-hold Messuage called Symonds whereto divers Copy-hold Lands were appertaining the said Messuage called Symonds cum pertinentiis being surrendred to the Lord and all his rights therein It was moved whether by that surrender the Copy-hold Land shall pass or only the said House with the Orchards Yards and Curtelage And Per Cur. The Copy-hold Land shall not pass by these words cum Pertinentiis and in this it is all one in case of a Copy-hold as a Freehold Cro. Jac· p. 526. Smithson and Cage By Feoffment of the Manor Copy-holds pass 3 Keb. 456. Copy-holder had Common of Estovers in the Lords Wood appurtenant to his Copy-hold and he purchased the Inheritance of the Copy-hold Common and had the words in his Deed of all Commons appertaining the Common is extinct had there been special words aliter More n. 915.866 Vide supra Cum Pertin Copy-holder hath Common in the Wastes of the Lord the Lord by Deed confirms to a Copy-holder Hab. to him and his Heirs with the Appurtenances the Common is extinct for he hath his Common in respect as he is customary Tenant 2 Brownl 210. Marsham and Hunter CAP. XIII Of Surrenders The nature of a Surrender General Rules and Diversities for the better Explication Of the Alienation of Copy-hold Estates in general and of selling Copy-holds by Commissioners of Bankrupts in particular Of Surrender in Court. By what words a Surrender will pass What amounts to a Surrender Of a Surrender out of Court Who may take a Surrender out of Court What Surrender out of Court is good or not Of Surrenders The Nature of a Surrender A Surrender is a giving up of the Land by the Tenant to the Lord according to the Custom to the use of him that is to have the Estate and is entred in this manner The form thus according to Mr. Littleton Ad hanc curiam venit A. de B. sursum reddidit in ead curia unum Messuagium c. in manus Domini ad usum C. de D. Haeredum suorum vel Haeredum de corpore suo exeuntium vel pro termino vitae suae c. Et super hoc venit paerdictus C. de D. cepit de Domino in ead Curia Messuagium praed c. Habend tenend sibi haeredibus suis vel sibi haeredibus de corpore suo exeuntibus vel sibi ad terminum vitae c. Ad voluntatem Domini secundum consuetudinem manerij faciendo reddendo inde redditus servitia consuetudines inde prius debita consueta c. Et dat Domino pro fine c. Et fecit fidelitatem c. Note The Surrender to the Lord is general without expressing any Estate for that he is but an Instrument to admit Cesty que use for no more passeth to the Lord but to serve the Limitation of the Use and Cesty que use when he is admitted shall be in by him that made the Surrender and not by the Lord. And therefore if Copyholder in Fee Surrender to the use of another for Life nothing more passeth from him but what shall serve the Estate limited to use 9 Rep. 107. Podger's Case A Surrender is in nature of a Deed Poll rather than of an Indenture and enures by way of limitation of use 1 Sanders 151. If a Copy-holder Tenant Surrender to the use of himself Habend to him and his Wife and the Heirs of their Bodies it seems this is void for it is in nature of a Grant at Common Law for she was not named in the Premisses 2 Rolls Abr. 67. Brooks's Case Vide infra A Surrender is to this purpose that the Lord should not be a Stranger to his Tenant A Surrender is but a Conveyance by matter of Fact and no higher and
Seigniory as suppose he is only for Life and he licenseth for 21 years and dies it s determined 2 Brownl 40. Petty and Evans In Ejectment The Defendant pleaded a Surrender of a Copy-hold by the Hand of F. then Steward of the Manor Issue was joyned absque hoc that he was Steward Per tot Cur. it s no Issue Pleading a Surrender how for the Traverse ought to be general that he did not surrender for if he were not Steward the Surrender is void So of a Surrender pleaded into the Hands of the Tenants of the Manor Cro. El. p. 260. Wood and Butts Pleads Prescription to be discharged of Tythes Copy-holders of Inheritance who held of a Bishop as of his Manor may prescribe That the Bishop and his Predecessors seized of the said Manor for themselves their Tenants for Lives Years and Tenants by Copy of Court Roll of the said Manor time out of memory c. have been discharged from payment of Tythes for their Lands parcel of the said Manor for this is a good Prescription for their Tenements are parcel of the Demesns of the Manor and this may commence upon a real composition of all the Manor 1 Rolls Abr. 652. The Case was thus A Parson sues a Copy-holder in the Spiritual Court for Tythes arising upon the Copy-hold Land he brought his Prohibition and suggests that the Bishop of Winchester Lord of the Manor whereof his Copy-hold is parcel and his Predecessors c. time out of memory c. for them their Tenants and Farmers have been discharged of Tythes arising upon the Manor and shews that he had been Copy-holder of the said Manor time out of memory c. and prescribes in his Lord the Bishop of Winchester's Name the Spiritual Court would not allow this Plea but Per Cur. a Prohibition was granted although here be a Prescription upon a Prescription Prescription upon a Prescription one in the Copy-holder to make his Estate good the other in the Bishop to make his Discharge good yet it was allowed for all Copy-holds are derived out of the Manor and it shall be intended That this Prescription had its commencement at such time when all was in the Lords Hands and the one Prescription is not contrariant to the other although both were from time whereof c. Prescription in the Lord ought of necessity to precede the Prescription in the Estate of the Copy-hold and the discharge of Tythes in the Lord which may well be in this case because he is a Spiritual person trenches to the benefit of the Tenant who is a Copy-holder for by this means it may be presumed that the Lord had greater Fines and Rents Yelv. 2. Croucher and Fryar which case is more largely Reported by Cro. El. 784. Otherwise a Copy-holder which is a Temporal person cannot prescribe in non decimando Prohibition granted out of B. C. against the Ordinary of G. and one Branch the surmise was That the Land out of which the Tythes were demanded is Copy-hold parcel of a Manor of which a Prior was seized in Fee and was also Parson imparsonee Union by which Union the Tythes were extinct Per Cur. the surmise is not good and a Consultation was awarded it was no good Prescription to discharge the Tythes Moor Rep. n. 356. Branches Case A Prohibition prayed upon a surmise that the Dean and Chapter of C. seized of the Manor and Rectory of M. and one G. a customary Tenant prescribes That every Tenant of his Tenement hath used to pay 3 s. 4 d. to the Lord who is also a Parson in discharge of his Rent and a fourth part of the Tythe of B. Per Cur. it s no good Prescription for the Parson cannot libel for the Rent nor the Lord for the Tythe Uncertain and non constat what each should have and the Parson must have a satisfaction or else there can be no discharge 1 Keb. 886 906. Wilkinson and Richardson Traverses Traversing the day of the Grant In Ejectment The Defendant entitles himself by Copy granted 44 Eliz. The Plaintiff by Replication intitles himself by Grant 1 June 43 Eliz. The Defendant maintains his bar and traverseth absque hoc that the Queen 1 June 43 regni sui granted the Land by Copy modo forma prout c. This Replication is not good for the day and year of granting the Copy is not material but only whether it were granted before the Copy made to the Defendant therefore he ought to have traversed absque hoc That the Queen granted modo forma prout c. and this is matter of substance and not aided the traversing of the day where it ought not is matter of substance for thereby he makes it parcel of the Issue which ought not to be Cro. Jac. 202. Lane and Alexander 1 Brownl 140. mesme Case In Ejectment The Defendant pleads the Land is Copy-hold parcel of the Manor of S. whereof the King was and is seised who by his Steward granted the same such a day to him in Fee Habend c. by vertue whereof he was admitted entred and was seized and so justifies The Plaintiff replies That long before the King had any thing in the Manor Queen Elizabeth was seized in Fee in Jure Coronae who by her Steward at such a Court granted the Land in question by Copy to him in Fee Habend c. secundum consuet c. who was admitted and entred Confessing and avoyding Per Cur. the Replication is good and the Plaintiff need not Traverse the Grant alledged in the Bar by the Defendant for the Plaintiff hath confessed and avoided the Defendants Title by a former Copy granted by Queen Elizabeth and so need not traverse and as no man can have a Lease for years without assignment no more can a man have a Copy without a Grant made in Court Cro. Jac. p. 299. Rice and Harrison 1 Brownl p. 147. mesme Case The Plaintiffs Replication is good without any Traverse for how can the Defendant have this when as the Plaintiff had it before as by his Replication appears for that his Lease being first in time avoids the Defendants Lease being the latter and therefore the Defendant in this case ought to have rejoyned and so to have traversed the first Lease but by his Demurrer to the Replication he hath confessed the Lease under which the Plaintiff claims mesme Case 2 Bulstrode p. 1. 6 Rep. Helliar's Case A man pleads a descent of a Copy-hold in Fee the Defendant to take away the descent pleaded That the Ancestor did Surrender to the Use of another Traversing the dying seized absque hoc That the Copy-holder died seized Per Cur. the Traverse is ill because that he traversed that which needed not to be traversed for being Copy-hold and having pleaded a Surrender of it Difference between that and at Common Law the Party cannot have it again if not by Surrender But if a man plead
and how they differ What Customs for Harriots are good or not Where they shall be apportioned and by whose Acts. Who shall pay Harriot or not and the Pleadings CAP. XXVI What Statutes extend to Copy-hold Lands and within what Statutes Copy-hold Lands shall be contained by Construction of Law without express words and what not and therein how Copy-holds shall be barred by Fine and non-claim c. CAP. XXVII Of Embleaments Who shall have them the Lord or the Copy-holder CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not CAP. XXIX Of Actions and Suits What Actions may be brought by the Lord and what Actions may be brought by Copy-holders or their Executors against the Lord or against Strangers in respect to their Copy-hold Estates and Priviledges CAP. XXX Of Copy-holders being impleaded and impleadable in the Lords Court and a Faux Judgment in the Lords Court and how and where to be relieved CAP. XXXI Of Declarations of for and concerning Copy-hold Estates how to be brought and laid and Presidents in what Cases they have been brought CAP. XXXII Of Pleadings The general Rules of Pleading as to Copy-hold Estates The different Forms of Pleading Customs and Prescriptions Of Pleading in reference to Common belonging to Copy-hold and when to be pleaded by way of Custom or by way of Prescription The manner of Pleading when a Lease is to be answered which is set forth in the Avowry Where in pleading the Commencement of the Estate must be shewed and by whom granted or not And how a Licence must be pleaded by the Lessee Prescription of Copy-holder to be discharged of Tythes how to be pleaded Of Traverses when how and where to be taken Forms of Pleading of Surrenders Admittances Estates in Fee Tayl for Lives or Years Pleadings of Presentments and Grants Presidents of bars by Commons Woods Ways Inclosures Forfeitures and all other Pleadings necessary for the Copy-holder to set forth his Title or defend it CAP. XXXIV Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not What shall be tryed by the Jury and what by the Court Rolls Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be tryed Venue CAP. XXXIV Of Special Verdicts Imperfect Custom not well found Failure of Prescription How the Custom must be found by the Jury Presidents of special Verdicts CAP. XXXV How and in what Cases Copy-holders have been relieved in Chancery Presidents of Conveyances respecting Copy-hold Estates and Presidents of Surrenders Grants Admittances Presentments Lex Custumaria OR A TREATISE OF Copy-hold ESTATES c. CAP. I. Of the Original and Nature of a Manor and of what it consists Of a Manor Real and by Reputation Of a Customary Manor Of Grants and Leases of Manors with respect to this Subject of Copy-holds and what shall be said Parcel of a Manor or what shall be said a Severance FOR the right understanding of the Law as to Copy-hold Estates it 's necessary to premise something of the Nature and Notion of a Manor upon which they depend as the Materia though Custom is the Form thereof And I shall say no more of Manors than what shall have a direct influence upon the Explication of the nature of Copy-hold Original of Manors As for the Original of Manors Take this brief Account out of Perkins 670. Horns Mirror Lib. 1. Cap. de Roy Alfred Fulbeck f. 18. Lambert verbo Thaine Bacon's Elements of the Law 41 42 c. The ancient Kings of this Realm who had all the Lands of England in Demesn that is in their own Hands or totally at their own disposal did grant a certain compass or circuit of Ground upon some great Personages with liberty to parcel out the Lands to other inferior Tenants reserving such Duties and Services as they thought fit with power to keep Courts where they might redress Misdemeanors within such their Precincts and decide Controversies of meum and tuum within their Jurisdictions these Lords and Noblemen performing such Services and paying and yielding such Rents as the said Kings by their Grants reserved These Grantees were called Barons and were such as came to Parliament and from thence it keeps the name of Court Baron to this day though in process of time by the Grants of such Barons these Lands and Manors came into the Hands of meaner Men by Purchase c. as it is at this day And according to this our Custom all Lands holden in Fee throughout France are divided into Feifs and Arrear-Feifs into Feifs or Knights Fees and Mesne Fees whereof the former are such as were granted by the King the second such as the Kings Feudatories do again grant to others Now by Justice Winch in his Argument in the Case of Rowles and Mason 2 Brownlow 195. Manors are divided into three sorts of Tenures 1. The first holds by Knight Service and this is for defence of the Lord. 2. The second holds by Socage and this is to Plow and Manure the Demesns of the Lord c. since turn'd into Rent 3. The third holds by base Tenure and these are at the will of the Lord and these were to do Services and some had greater Priviledges than others to encourage them to perform their Services as it is in Ireland at this day Out of these by length of time and Custom sprang up the Race of Copy-holders For the Name or Etymology of the word Manor Etymology some fancy it to be Manerium quasi Manurium from manuring the Ground and then it takes its Name either from the Lords Demesns which the Tenants are bound to Manure or from the Lands remaining in the Tenants hands and others with more probability think it to be derived from the French word Mesner to govern or guide because the Lord hath the government of the Tenants within his Jurisdiction But that I may come to the thing intended and to leave the flourishes of guess and fancy It is a Maxim common in our Books Of what a Manor consists Demesns what That a Manor consists of Demesns and Services As for the word Demesns Dominicum or Domainium it is taken it two senses It is most properly taken for those Lands which remain in the Kings hands and so all Subjects are excluded from being seized in Dominico and we have little of that now but ancient Demesn Lands which are such as were in the hands of King Edward the Confessor But in a sense less proper Demesn Lands may be said to be in the hands of an inferior Lord or Tenant and as my Lord Coke on Littleton f. observes the form of Pleading shews this difference for an inferior Lord or Tenant never pleads That he is seized in Dominico absolutely but qualified with this addition in dominico suo ut de feodo Pleading and the word Fee or Feif implies that his Estate is not absolute but depending on some superior Lord. So
4. Rep. 29. Bunting and Lepingwel 5. Copy-hold ought to be dimissa dimissibilis as it is in Murrels Case 4 Rep. vide infra Tit. Custom Yet this Rule is not Infallible For if a Copy-hold Land be in the hand of a Subject who is after preferred to Dignity Royal the Copy-hold is extinct for it is below the Majesty of a King to perform servile Services and yet after his Decease the next who hath right shall be admitted and the Tenure shall be revived in him 2 Siderfin 82. CAP. III. Priviledges of Copy-hold Estates 1. Priviledges of the Lord. 2. Of the Tenant 3. Priviledges of Infants Copy-holders 4. Of Copy-holds in respect of the Kings Prerogative and Priviledge BEfore I come to Treat farther of Copy-holds I thought it might not be amiss to set down the Priviledges of Copy-holders and Lords and Prerogative of the King that so the Student being well setled in these they need not be mentioned or explicated hereafter though they may lye here and there scattered in the following Cases Priviledges of the Lord. The Lord may upon Seizure of a Copy-hold maintain an Ejectment till the Heir come to be admitted 1 Keb. 287. Pateson and Danges The King shall not have the custody of the Land that the Ideot holds by Copy The Lord to have the custody of an Ideot for this is no more than an Estate at Will at Common Law and if the King should have the custody of the Land he would much prejudice the Lord. Yet alienation made of it by the Ideot after Office found shall be avoided Coke 4 Rep. 126. Beverly's Case Copy-hold Lands granted to three for the Lives of two if the Tenants pur auter vie dye Living cesty que vie the Lord shall have it for there shall no be Occupancy 1 Rolls Abridg. 511. Ven and Howel's Case No Occupancy The Lord shall have the custody and not the Prochein Amy. The Copy-holder is surdus mutus the Lord shall have the Custody and not the Prochein Amy for otherwise he should be prejudiced in his Rents and Services Cro. Jac. 105. Evers and Skinner The Lord is Chancellor in his own Court to dispose of the Estate when the Tenant leaves it uncertain Vide infra sub Tit. Customs in reference to Estates sparsim per tout If a Copy-holder surrender to the use of one and the Lord refuseth to admit him no Action of the Case lyeth against him so if such Copy-holder prays the Lord to hold a Court and he refuseth Where a Surrender is to be made to a Tenant of the Manor if he will not take such Surrender yet no Action of the Case lyes against him 1 Rolls Abr. 108. In what capacity the Lord stands in reference to the Copy-holder's Estate He is an Instrument of Conveyance upon Surrenders and a Conveyer himself upon voluntary Grants He is Chancellor in his own Court and may proceed by Bill vide infra Of the Priviledges of Copy-holders In this Chapter I shall sum up some general Priviledges of Copy-holders which lye scattered in the several Customs hereafter treated of A Copy-holder may make a Lease for a year without Licence of the Lord vide Lease Lease Copy-holders of a Manor may have Solam separalem pasturam in the Soyl of the Lord Sola separalis pastura and exclude him 2 Sanders 326 327 328. If a man be obliged in a Statute Staple Stat. Staple Elegit his Copy-hold Land is not extendible but aliter upon a Statute of Bankrupts vide Tit. Grant It s not extendible upon Elegit If a Copy-holder Lease for years by Licence of the Lord this is not extendible in the Hands of the Lessee Rolls Abr. 888. Picto's Case Copy-holder of Inheritance may dig for Mines in his Land So the Parson in his Glebe as it seems Siderfin p. 152. The Lord of Rutland against Gee per Hobart and Warburton Copy-holder may dig for Marle without any danger of Forfeiture Digging for Marle but he ought to lay the said Marle upon the same Copy-hold Land Winch p. 8. A Custom is that the Lord of a Manor may dig for Coals and open Mines in the Land of his Copy-holder Coals It was made a doubt in Goodrick and Gascoin's Case if Lessee of the Manor may have this liberty and whether such liberty can pass by Grant of the Manor without special words Latch p. 189. A Copy-holder may hedge and enclose but not where it was never enclosed before Winch p. 8. Note a difference between Priviledges which are annexed to the Seigniory and Priviledges annexed to the Tenancy The first the Lord may destroy but not the last Therefore If Tenant at Will be Out-lawed his Estate is determined Outlawry but a Copy-hold is not forfeited or determined by Outlawry Lit. Rep. 234. cited to be adjudged in 44 Eliz. Yet vide 1 Leon. p. 99. Where a Copy-holder is Outlawed the King shall have the Profits of his Copy-hold Lands and the Lord hath not any remedy for the Rent If the King grants a Manor in which are Copy-holders in Fee-farm Fee-Farm Rent the Lands or Goods of the Copy-holders are not liable to the Fee-farm Rent although the Free-hold is for the Copy-holders are elder than the Rent being by Prescription So Rent by Prescription If the King had a Rent by Prescription out of the Manor in which there are Copy-holders if the King had not used to Levy this upon the Copy-holds it seems he cannot charge them forasmuch as they are in by Prescription also M. 12 Jac. B. 2 Rolls Abr. 157. Assets Copy-hold Inheritance shall not be Assets to charge the Heir Popham 188. Copy-holder makes a Lease for years by Licence and dyes this shall not be Assets in the Hands of his Executors Popham 188. Copy-holder shall have Ayd of the Lord where the right of the Seigniory comes in question upon the Issue taken Ayd 21 H. 6.37 But where he hath Ayd of a Bishop and after the King hath the Temporalties he shall not have Ayd of the King for so the Plaintiff may be perpetually delay'd 21 H. 6.37.39 Priviledge of Infants Copy-holders Or Resolutions concerning Infants in respect of Fines Admittances barring Estates and being bound by Customs or not Custom of a Manor is That if a Copy-hold descends to any man that Proclamation shall be made at three several Courts that he shall come in to be admitted Infant not comprehended within the Custom of coming in after three Proclamations and if he come not in it shall be a forfeiture to the Lord yet an Infant shall not be comprehended within this Custom for he by intendment of Law is not at discretion to make his Claim 8 Rep. 100. Letchford's Case It seems to be a Rule in Law An Infant cannot be protected by the Law by his non-age in any Case but where his Right which he had while an Infant and descended
to him might have been barr'd and interrupted by non-claim so in case of forfeiture the reason of the Rule is because the Law conceives he will have that knowledge to preserve his right when he is of full Age Carter's Rep. 86. in Smith and Painton's Case It was holden in Rumny and Eve's Case Not bound during his Minority to pray Admittance 1 Leon. p. 100 Pl. 128. If a Copy-holder dyeth his Heir within Age he is not bound to come into any Court during his non-age to pray admittance or to tender his Fine An Infant who surrenders his Copy-hold Land within Age may enter at his full Age Infant Surrenders he may enter at full Age. without being put to any Suit for it A Case cited in Popham 39. in Bullock and Dibler's Case Infant Copy-holder in Fee makes a Lease for years without Licence Infant shall not forfeit by making a Lease without Licence Acceptance at full Age makes it good to Lessee rendring Rent at full Age he accepts the Rent and after outs the Lessee Lessee brings Ejectment and Judgment for Lessee Per Cur. this Lease may be affirmed by acceptance and such a Forfeiture shall not bind an Infant 8 Rep. 44. Noy 92. Of Copy-holds and Copy-holders in respect of the King and his Prerogative Per Stat. 2 Ed. 6. Cap. 8. Copy-holders shall enjoy their Estates where the King is intituled by Office though they be not found by Inquisition The Statute of Chantries gives no Copy-hold Land to the King 1 Ed. 6.14 The Estates of the Kings Copy-holders confirmed by Decree in the Exchequer or Dutchy-Chamber shall be good according to the same Decree Stat. 7 Jac. Cap. 21. A Popish Recusant shall forfeit all his Copy-hold Land 35 Eliz. Cap. 2. Whether the King shall have the Copy-hold granted in Trust for an Alien It was a Question in Car. 1. between the King and Holland whether the King shall have a Copy-hold which is granted to one in Trust for an Alien The better Opinion seems to be that he shall Styles Rep. p. 20.37 75. Vide this Case Reported in Rolls 1. Abr. 194. Tit. Alien If an Alien Amy Purchase Copy-hold in Fee in the Name of J. S. in Trust for himself and his Heirs It was a great Question and much Argued whether the King shall have the Trust of this Copy-hold but no Opinion given as to this Point But the Trust being traversed and found for the King yet Judgment was given against the King because by the Inquisition by which this Trust and matter was found J. S. who was the person trusted and who had the Estate in Fee in the Law in him Where the King hath no possion by force of the Inquisition was put out of possession of it by the Inquisition where the Alien had but the Trust and no possession and therefore admitting that the Trust should have been given to the King yet the King may not have the possession by force of this but ought to have sued to have the Trust executed in a Court of Equity The King is seized of a Manor in Fee in which is a Copy-hold demisable at Will according to the Custom of the Manor The King demised this Copy-hold to J. G. for Life King need not recite in his Grant that it is Copy-hold by Letters Patents J. G. dyes The great Question was if it be destroyed or the King may grant it again by Copy Per Cur. 1. The King need not recite in the Grant that it is Copy-hold 24 H. 8.21 2. Copy-holder for Life dyes the King may regrant That after the Estate for Life determined the King may grant this House and Land again by Copy of Court Roll It is otherwise in the Case of a common person The Rule That a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind a Common person The Kings Gifts shall be taken favourably and not extended to two intents where there is no necessity for it Kings Grants favourably construed as there is not here and we are not here to intend a collateral intent and so the Copy-hold is not destroyed for the Law takes care to preserve the Inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copy-hold viz. to have Common Stiles p. 266. Cremer and Burnet If a Bishop Tenant in Tayl for Life or Years le ts a Copy-hold yet this shall not bind the Successor Issue in Tayl or him in Reversion to grant this by Copy again neither shall it bind an Infant Lord of Manor and the Estates and Possessions of the King are in like manner under the protection of the Law And if this Copy-hold should be extinguished Extinguishment perhaps a common Appendant or Appurtenant would be lost 2 Rolls Abr. p. 197. mesme Case If the King grants a Manor in which are Copy-holders in Fee-farm the Lands or Goods of the Copy-holder are not lyable to the Fee-farm Rent although the Freehold is Fee-Farm Rent because the Copy-holders are elder than the Rent being by Prescription 2 Rolls Abridgment p. 157. Loss of Issues If the Lord of a Manor lose Issues being summoned upon a Jury Process shall issue out of the Exchequer to levy them upon the Lands of the Copy-holders Lessees for Life or Years for the loss of Issues lyes upon the Land as an inherent Servitude by the Law in whose Hands soever it comes 1 Rolls Abr. 157. Surrender to the King without other matter of Record A Surrender of a Copy-hold to the King Lord of a Manor was in Lee and Boothby's Case 1 Keb. 720. adjudged good without other matter of Record All the Demesn Lands The King grants all his Demesn Lands in W. his Copy-hold Lands shall not pass Aliter in a common person 1 Rep. 46. Alton Wood's Case CAP. IV. The Nature of Custom in general Maxims of Customs What things are requisite to make a good Custom Time out of Memory Explained What shall be said to be an Interruption of Custom or not The reasonableness of Customs how to be judged of Several particular Customs Ratione Loci Of Customs enabling and disabling Of Customs and Prescriptions their difference and the different manner of Pleading them The several sorts of Prescription and how Prescription to be made and when and when not and by whom And when a Custom shall be said to be pursued or not Custom The Nature of Custom in general A Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record But being only matter of Fact and consisting in Use and Practice it can be recorded and registred no where but in the Memory of the People For a Custom taketh beginning and
severance of the Copyhold from the Manor the Copy-hold is not destroyed but it is not parcel of the Manor now if one would alien this he cannot do it by Surrender for it s not parcel of the Manor neither can the Feoffee make Admittance for he is not Dominus but if such Copy-holder will alien there is no way but to have a Decree against him and his Heirs in Chancery and so to bind his person but by it the Interest of the Land is not bound 4 Rep. 24 25. By the Statute of 13 El. Cap. 7. Copy-hold Lands are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record as other the Bankrupts Land but by the same Statute it is provided That all Persons to whom any such Sale shall be made shall before such time as they shall enter and take the Profit of the same agree and compound with the Lord of the Manor of whom the same shall be holden for such Fines or Incomes as heretofore hath been usual and accustomed to be yielded or paid therefore and upon every such Composition the Lord for the time being at the next Court to be holden at and for the said Manor shall not only grant to such Vendee upon request the same Copy or customary Lands or Tenements by Copy of Court Roll of the said Manors for such Estate or Interest as to them shall be sold and reserving the ancient Rents Customs and Services but also in the same Court admit them Tenants of the same Copy or customary Lands as other Copy-holders of the same Manor have been wont to be admitted as also to receive their Fealty accordingly Note Copy-hold Lands are within all the Statutes of Bankrupt Cro. Car. 550. Crisp and Plat. Title to a Copy-hold cannot be made by the Commissioners without Surrender or Admittance 1 Keb. 24. How and to what purpose such Estate Vests before Admittance Cro. Car. 569. In Parker and Bleke's Case it is adjudged That by Bargain and Sale made by the Commissioners of Bankrupts the Estate of the Copy-holder is vested in the Bargainee before Admittance though he may not enter and take the Profits till Admittance The Bargain and Sale binds the Copy-holder and bars his Estate and he is no Copy-holder after the Bargain and Sale enrolled And where the Bargainee is admitted by the Lord it shall have relation to the Bargain and Sale And where the Custom was That the Wife of a Copy-holder dying Tenant shall have a Life Estate it was adjudged the Copy-holder dying after the Bargain and Sale his Wife shall be barr'd of her Widows Estate A Bankrupt purchaseth a Copy-hold and the Tenant Surrenders into two Tenants Hands to the use of the Bankrupt and now he will not be admitted This may be sold by the Commissioners and the Vendee may pay the Admittance Of Surrender Now I shall treat of Surrenders then of Presentment and Admittance for that they make up but one Copy-hold Title First of Surrenders We have seen in the last Chapter how that in some Cases Copy-hold Lands may pass without Surrender Now In some few Cases a Surrender is sufficient without Admittance or Presentment Where Surrenders is sufficient without Admittance as if the Copy-holder Surrender to the Lords use there needs no Admittance And In some Cases Admittance will do without a Surrender Where Admittance is sufficient without a Surrender as if the Lord make a voluntary Grant of the Copy-hold in his hands no Surrender is needful but Admittance only But regularly Estates of Copy-hold must pass by Surrender and Admittance and if the Surrender be out of Court there must be a Presentment Of a Surrender in Court By what words a Surrender will pass It cannot well pass by any other word then sursum reddidit Surrender if it pass in the Court by the words Give Grant Bargain Sell this will not so pass it but the Heirs of the Copy-holder shall avoid it It is vocabulum artis as Warrantizare and some other Law words are What will amount to a Surrender in Court or not By Hobart in Hutton Rep. p. 81. What Words If a Copy-holder comes into Court and saith That he is weary of his Copy-hold and requests the Lord to take it that is a Surrender And by some if he come into the Court and desire the Lord to admit his Son into the Copy-hold this is a good Surrender to the use of the Son But if a Copy-holder comes into Court and saith He renounceth his Copy this is not any Surrender and if the Copy-holder say in the presence of any other Copy-holders He is content to Surrender to the use of J. S. This is not a good Surrender Any words in the Court that declare his intention of surrendring into the Lords Hands is good 3 Rep. 80. in Belfield's Case What Acts. It was agreed between the Lord of a Manor and J. S. That in Consideration of 5 l. paid to the Lord J. S. should enjoy the customary Lands for his Life and also of Alice his Wife durante viduitate and that J. S. should have election whether the said Lands should be assured to him and his Wife by Copy or by Bill c. and he chose by Bill which was made accordingly Per Cur. Here is a good Surrender of the said Lands and that for Life only 1 Leon. p. 191. Collman and Sir H. Portman's Case Cannot be surrendred but by actual Surrender If a Copy-holder in Fee takes the same Lands of the Lord by other Copy for Life this is not any Surrender or Determination of his Copy-hold Inheritance for a Copy-hold may not be surrendred but by actual Surrender in Court and not by a Surrender in Law 1 Rolls Abr. 501. Shepard and Adams But in 3 Bulst p. 80. Belfield and Adams its Reported thus Copy-holder in Fee comes into the Lord's Court and there takes a new Estate of his Copy-hold from the Lord to himself for his Life after to his Wife for Life and after to his Son for Life this was admitted a Surrender and so was the other Case in 1 Roll 501. In whom the Reversion after a particular Estate remains Postea 13 Jac. But the Reversion is in the Surrenderor no disposition having been made of it So in this Case this is not a giving up his Estate of Inheritance but only it shall enure by way of Surrender to the use of himself for Life after to the use of his Wife for Life and after to the use of his Son for Life But if a Copy-holder of Inheritance takes a Lease by Indenture for years by this his Copy-hold Estate is gone and this is a Surrender of his Inheritance in the other Case the Inheritance remains in him and is thus Reported by Rolls If a Copy-holder in Fee comes into Court Copy-holder by accepting of an Estate is not Estopt from claiming another Estate and accepts by Copy an
the Surrender and the devise only cannot transfer for such customary Estate 3. After the severance the Copy-holder shall pay his Rent to the Feoffee and other Services which are due without Admittance as Harriot c. But not Fine or Suit of Court After severance Forfeitures continue But such Forfeitures as were Forfeitures before the Severance as Feoffment Lease Waste are Forfeitures after 4 Rep. 24 25. In Lee and Boothby's Case Cro. Car. 521. The Question was If a Copy-holder in Fee surrender to the Lord of the Manor his Copy-hold Estate and the Lord makes a Lease for years of the Manor and of the said Copy-hold by the name of his Tenement called H. whether it was a determination of his Copy-hold Per Curiam it is not because when he lets the Manor it is included as parcel of the Manor the Manor being demised includes the Copy-hold as parcel of the Manor and the naming of the Copy-hold is surplusage But if he though he had been but Dominus pro tempore or for half a year though by parol had made a Lease for years of the Copy-hold by it self that had destroyed the Copy-hold for it was then during that time severed from the Manor and so could never after be demised by Copy Lease for years of a particular Copy-hold by name together with the Manor by the King hath not so extinguished that the Copy-hold though by the surrender of it it is parcel of the Manor in the King but that after such Lease the Patentee of the Reversion may regrant it as Copy-hold 1 Keb. 720. Act of the Lord with consent of the Tenant where it destroys it or not But the act of the Lord with consent and acceptance of the Tenant will destroy the Copy-hold otherwise it shall not prejudice the Copy-holder But in some sense the Copy-holder may assent and yet not be prejudiced as in Howard and Bartlet's Case Hob. 181. The Custom was Copy hold Estate may remain to some purpose notwithstanding the severance from the Freehold if Copy-holders for Life dye seized their Wives shall have this during their Widowhood and A. being Copy-holder for Life the Lord conveys the Freehold and Inheritance of the Copy-hold of A. by the procurement of A. to J. S. a Stranger and his Heirs during the Life of A. Remainder to B. the Wife of A. for Life Remainder to A. and after A. grants the Remainder to W. his Son after this B. the Wife of A. dyes and A. marries C. and dyes seized now though here appears the Copy-holders privity and consent in that he takes the Remainder in Fee and grants it over to his Son that it should be destroyed and though this Copy-hold Estate was destroyed before her marriage yet the viduity of C. is not extinguished for the Freehold being in J. S. during the Life of A. the Estate of A. was not so extinct but the Custom shall continue quoad her The Copy-hold Estate here remains notwithstanding the severance from the Free-hold and though the Remainder was in him and he granted it over yet he lived and dyed a Copy-holder Hobart p. 181. Howard and Bartlet 1 Rolls Abr. 510. Cro. Jac. 573. the same Case by the name of Waldee and Bartlet Copy-holder in Tayl accepts a Feoffment from the Lord it destroys not the Copy-hold so as to conclude his Issue Carters Rep. 6 7. 2. By the act of the Copy-holder If a Copy-holder accept a Lease for years of his Copy-hold Acceptance of a Lease by this his Copy-hold is destroyed whether it be immediately from the Lord or mediately as was Lane's Case 2 Rep. 16. b. The King seized of a Manor in Fee grants Copy-hold Lands parcel of this Manor to another in Fee by Copy of Court Roll according to the Custom of the Manor And after the King by his Letters Patents under the Exchequer Seal makes a Lease for 21 years to another of these Lands the Lessee grants his Term to the Copy-holder afterwards Queen Elizabeth reciting the Lease for 21 years grants the Reversion in Fee the 21 years expire and the Patentee of the Reversion enters upon the Copy-holder his Entry adjudged good for Per Cur. by the acceptance of the Term by the Copy-holder the Copy-hold Estate was determined as well as if the Copy-holder had immediately accepted a Lease for years of his Copy-hold The reason of the Extinguishment the reason is the same in both Cases A Copy-hold Interest and an Estate for years of one and the same Land may not stand together in one and the same person at one time without confounding the lesser and if one of them ought to be determined it ought to be the Copy-hold Estate Also they are of divers natures and so cannot stand together in the same person the Estate at the Common-Law cannot drown it being the more worthy than the customary Estate and the customary must Vide mesme Case in Anderson 1 Rep. 191. and 1 Leon. 170. So it was resolved in Hide and Newport's Case A Copy-holder in Fee took a Lease for years of the Manor the Copy-hold is extinct for ever and not only during the Lease Moor Rep. n. 330. Acceptance to hold the Land by Bill and not by Copy Copy-holder accepts to hold his Land by Bill under the Lords Hand and not by Copy this determines the Copy-hold 1 Anderson 199. Colman and Bedil If a Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed 4 Rep. 21. French's Case But such Lessee may re-grant the Copy-hold to whom he will for the Land was always demised and demisable If the Lord make a Lease for Life to the Copy-holder by parol this shall confound the Copy-hold if Livery be made otherwise not Latch 213. If there be a Lease for years of the Manor and one of the Copy-holders doth purchase the Reversion in Fee by this the Copy-hold is destroyed and the Lessee of the Manor shall oust the Copy-holder and hold the Land for the time Calth p. 97. By the Tenants Release to the Lord. By the Copy-holders Release to the Lord. If a Copy-holder releaseth to his Lord that extinguisheth his Copy-hold although it be contrary to the nature of a Release to give possession Hutton p. 81. Or to a Purchasor The Lord sells the Freehold interest of a Copy-holder of Inheritance unto another so as it is divided from the Manor and afterwards the Copy-holder releaseth to the Purchaser by it the Copy-hold Interest is extinct but if the Lord be disseised and the Copy-holder releaseth to the Disseisor Nihil operatur 1 Leon. 102. Wakeford's Case Cro. Eliz. 21. For if a Copy-holder is ousted and so the Lord is disseised and the Copy-holder releaseth all his right to the disseisor and dyes his Heir Enters and brings an Action of Trespass against the disseisor who pleads his Frank-tenement Per Cur. the Release is void the disseisor not being admitted
re-grant it to him again If a Copy-hold Escheat to the Lord Escheat and he alien the Manor by Fine Feoffment c. his Alienee may re-grant this Land by Copy for it was always demised or demisable but if it be a particular Copy-hold Estate otherwise as was said in the beginning of this Case 4 Rep. 31. Frenches Case If a Copy-holder sue Execution of a Statute against the Lord of a Manor Not destroyed by execution of the Manor at the Copy-holders Suit and had the Manor in Execution and after the Debt is levied the Interest of the Copy-hold remains Per Manwood Heydon's Case Savills Rep. A Copy-holder in Fee marries a Woman Suspended Seignioress of the Manor and after they suffer a Common Recovery which was to the Use of themselves for Life Remainder over by some the Copy-hold is extinct for by the Recovery the Husband had gained an Estate of Freehold But Per Cur. by the inter-marriage it was only suspended Cro. El. p. 7. Anonymus If a Copy-holder accept of a Lease for years of the Manor or marry the Lords Wife by this the Copy-hold is not extinct but suspended If a Copy-hold be granted to three for Lives Suspended and the first of them take an Estate by Deed with livery from the Lord by this the Copy-hold for that Life is suspended Dyer 30. 4 Rep. 31. No prejudice to the Wife or to him in reversion Baron seized of a Manor in right of his Feme let Copy-hold Land parcel thereof for years by Indenture and dyed this doth not destroy the Custom as to the Wife but that after the death of her Husband she may demise by Copy as before So If Tenant pur vie of a Manor let a Copy-hold parcel of the Manor for years and dyes it shall not destroy the Custom as to him in Reversion Cro. El. P. 38 Eliz. Conesby and Rusketh for being Tenant pur vie he may not do wrong by destroying of Customs King H. 8. grants Lands being parcel of Copy-hold of a Manor without reciting this to be Copy-hold to Sir J. G. pur vie Sir J. G. morust Queen Mary grants the Manor to Susan Tenny in Fee who let the Manor for years to Lee. Lee before his years expired grants the Land in question to R. L. in Fee according to the Custom of the Manor Lee's years expire R. L. let to Field at will and the Defendant enters as Heir to Tenny Judgment pro Quer. Suspension and not Destruction of a Custom Kings Prerogative The Grant of the King is but a suspension and no destruction of the Custom And though the Maxim is It ought to be demised and demisable c. yet this holds not in the case of the King 2 Siderfin p. 142. Vide contra 1 Rolls Abr. 498. Downcliff and Minors Vide sub Tit. Grants by the Lord. As to the escheating of Copy-holds after escheating it cannot properly be called a Copy-hold Escheat except it be because there is power in him to re-grant it as Copy-hold Were it by Custom that the Wife shall be endowed of the intierty or moiety and such customary Copy-hold Lands Escheat and the Husband dyes The Wife not to be endowed after Escheat his Wife shall not be endowed of the intierty or moiety because the Custom as to her is extinct 2 Siderfin 19. A Copy-hold Escheated may be demised notwithstanding the Lords Continuance of it in his Hands above 20 years 2 Keb. 213. Pemble and Stern Note If the Copy-holder of a Manor hath had time out of memory Copy-hold extinct but not a Way over the Copy-hold Land a Way over the Land of another Copy-holder and he purchaseth the Inheritance of his Copy-hold by which the Copy-hold is extinct yet by this the Way is not extinct 1 Rolls Abr. 933. Empson and Williamson CAP. XXIV How and where Copy-holder shall hold his Lands charged or not by the Lord or Copy-holders as Dowers Rent-charges Statutes And how and where they shall be avoided THE Lord of a Manor in which were Copy-holders for Lives takes a Wife Dower of the Lords Wife and after a Copy-holder dyes the Lord after Coverture grants the Lands again according to the Custom of the Manor for Lives and dyes the Lords Widow shall not avoid these Grants in a Writ of Dower yet the Custom which is the Life of the Grant was long before 4 Rep. 24. If Feoffee of a Manor upon Condition make voluntary Grants of Copy-hold Estates according to Custom and after the Condition is broken By Feoffee a Manor upon condition and Feoffee re-enters yet the Grants by Copy shall stand Earl of Arundel's Case cited in Co. 4 Rep. 24. Copy-holder by voluntary grant not subject to the Lords Charges The Copy-holder which comes in by voluntary Grant shall not be subject to the Charges or Incumbrances of the Lord before the Grant 8 Rep. 63. Swain's Case Lord of a Manor where the Custom was of Land demisable for one two or three Lives that he that was first named in the Copy should enjoy it only for his Life and so the second The Remainder preserves the Estate from Charges c. grants it to J. P. and E. and M. his Daughters for their Lives if the Lord had charged the Inheritance of the Copy-hold J. P. shall not hold it charged during his Life for the mean Estates in Remainder preserve the Estate of J. P. by Copy from the Incumbrances of the Lord 9 Rep. 107. Margaret Podger's Case Rent charge Earl of W. seized of Manor by Copy grants a Rent-charge to Sir W. Cordel for the term of his Life and conveys the Manor to Sir W. Clifton in Tayl the Rent is behind Sir W. Cordrel dyes the Manor descends to Sir John Clifton who grants a Copy-hold to H. The Executors of Sir W. Cordel distrain for the Rent Per Cur. the Copy-holder shall hold the Land charged 2 Leon. p. 152. and 109. Cordel and Clifton But it hath been adjudged That the Wife of the Lord shall not be endowed against the Copy-holder for the Title of Dower is not consummated before the death of the Husband so as the Title of Copy-holder is compleated before the Title of Dower and in this Case the Seisin and possession continues in Sir John Clifton who claims only by Sir William Clifton who was the Tenant in Demesn who ought to pay the Rent Lord and Copy-holder for Life be the Lord grants a Rent-charge out of the Manor Rent charge by the Lord upon the Manor whereof the Copy-hold is parcel the Copy-holder surrenders to the Use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dyeth so that his Estate is determined and the Lord granteth to a Stranger de novo to hold the said Land by Copy this new Tenant shall hold the Land charged 1 Leon. p. 4. Lord of a Manor where Lands were
Custom may be alledged within the Manor and applied but to a single Copy-hold Per Cur. such Custom as well for the form as the matter is good for a Copy-holder cannot prescribe in his own name for the exility of his Estate Precribe for Common in one Copy-holder but he ought to prescribe in the Lords name when he claims Common c. out of the Land of a Stranger but if he claim such profit in the Manor he must lay it by way of Custom for then he cannot prescribe in the Lords Name for the Lord cannot prescribe to have Common in his own Soil and one Copy-holder may have such Common c. It may have a lawful commencement and all the other Copyholds may be extinct 4 Rep. 31 32. Foyston's Case vide for Prescription devant In Trespass the Defendant justifies as Copy-holder for Common he saith these are customary Lands but doth not say ad voluntatem Dom. which is uncertain whether Tenant-right Lands or Burrough-English or Free-hold Judgment Pro Quer. 3 Keb. 368. Walker and Wilson Customs must be pursued in Pleadings A man cannot plead a Prescription against a Prescription A Prescription not to be pleaded against Prescription but he ought to answer the Prescription alledged in the Count when two Customs repugne Cro. Car. 432. Spooner and Day 's Case Carter's Rep. 88. Custom alledged to be That if any Copy-holder seised of customary Lands of the said Copy-hold die seized thereof having many Sons that the youngest shall Inherit and the Defendant in Replevin makes his Title That a customary Estate was granted to the Father and Mother and the Heirs of the Father and the Mother survived This Estate is not within the Letter of the Custom Per Walmsly and cited Sir John Savage's Case Quod vide supra sub Tit. Custom 2 Leon. 208. Beal and Langly A particular Tenant at Will may not prescribe in his sole Tenancy Prescription by a particular Tenant at Will but when the Prescription and the Custom runs half through the Manor he may well lay it by Custom Kelloway 76 77. Tropnel's Case Tenant may plead a Custom to enjoy without interruption of the Lord. Copy-holder may plead a Custom That every Tenant after he hath paid the Lord his Fine may enjoy his Lands and Tenements granted by Copy during their Estates Terms or Interests without interruption or expulsion of the Lord for the time being they performing their Services and doing nothing that may Forfeit Kelloway 76 77. Ann Tropnel's Case Vide supra When the Copy-holder claims any thing by Prescription in the Soil of another in Pleading he ought to prescribe in the name of the Lord but if he claim any thing in the Soil of the Lord When it must be pleaded by way of Custom and when by way of Prescription within the Manor then he shall plead the Custom of the Manor for there he cannot plead in the name of the Lord in as much as the Lord cannot prescribe in his own Soil Foyston's Case and 4 Rep. 31. Cooper's Case 6 Rep. 60. Gateward's Case Rule There is nothing more common than for the Lord to prescribe for his Tenants by Copy in another mans Land whereas if it be in his own it shall ever be laid per Custom Hob. p. 28 61. Of Pleading a Custom for Common by Prescription Defendant pleads in Trespass That there are divers Freehold Tenements time out of mind in the said Manor c. and that there were and are infra eand villan divers customary Tenements parcel of the said Manor grantable ad voluntatem Dom. by Copy That all the Tenants of the Free Tenements time out of mind Habuerunt usi fuerunt and all the Tenants of the customary Tenements per consuetudinem ejusdem manerij in eodem manerio a toto tempore supra dict usitat approbat habuerunt habere consueverunt solam separalem pasturam c. for all their Cattel Hogs Sheep and Steers excepted Levant and Couchant upon their respective Messuages and Tenements every year for all times of the year except c. as belonging and appertaining to their several Tenements and that at the time of the Trespass the Defendant put in his own Cattel Levant and Couchant upon this said Messuage prout ei bene licuit c. Exceptions to this Pleading were 1. That he was seised de Antiquo Messuagio and of no Land is not proper for in common intention Cattel cannot be said to be Levant upon a Messuage only 2. He saith he put in his own Levant and Couchant but avers not as he ought That none of them were Porci Oves or Steers 3. The Plea doth not set forth the Custom of the Manor but implicitely That the Freehold and customary Tenants have had and enjoyed Per Consuetudinem Manerij solam separalem Pasturam for all their Cattel which is a double Plea both of the Custom of the Manor and of the claim by reason of the Custom which ought to be several and the Court shall judge and not the Jury whether the claim be according to the Custom alledged the Custom may be different from the Claim Per Consuetudinem Manerij if particularly alledged Vaughan's Rep. 253. North and Cole In Replevin Defendant makes Conuzance as Bayliff to c. Damage Fesant In bar of this Cognizance the Plaintiff pleads That H. Earl of H. was seized of the Manor of A. whereof one Messuage c. is parcel and demisable by Copy and that within the said Manor there is this Custom That every customary Tenant of the said Messuage c. have used to have Pasture c. in the said place called Land-Mead The Form how to apply the Custom of a Manor to a particular Messuage in pleading and so derives his Title by Grant by Copy the Issue was upon the Traverse Absque hoc quod infra manerium praed talis habetur consuetudo quod quilibet tenens custumarius c. have used to have Common c. prout c. Here is no Custom alledged because it did not appear in Pleading That the place where the taking was supposed to be was within the said Manor and no Custom of the Manor can extend out of the Manor but he ought to prescribe in the Manor Note he ought to have pleaded That the place in which c. was parcel of the Manor and then the Plea had been good Hob. p. 286. 1 Brownl 172. Roberts and Young Plaintiff in Replevin rejoyns by Custom of all the Copyholders of Blackacre in the Manor of D. used to have Common in A. to which the Avowant demurred because he should have prescribed in the Lords name A. being out of the Manor but the truth being that A. was anciently parcel and lately severed by the Lord this destroys not the Common Per Cur. But the Copy-holder ought to prescribe specially That Talis consuetudo suit till such a day Special Prescription
in Case of severance and that after the Lord granted over c. as on change of a Corporation in Lutterell's Case 1 Keeble 652. Davy and Watts The Case was The King was seized of a Manor Common appendant where there were divers Copy-holders for Life and was also seized of 8 Acres of Land in another Manor in which the Copy-holders have used time out of mind c. to have Common and after the King grants the Manor to one and the 8 Acres to another and a Copy-holder puts in his Beasts into the 8 Acres And in Trespass brought against him by the Patentee of the 8 Acres he prescribes That the Lord of the Manor and all those whose Estates he hath in the Manor have used time out of mind c. for them selves and their Copy-holders to have Common in the said Acres of Land And he farther pleads That he was Copy-holder for Life by Grant after the said unity of possession in the King and so demanded Judgment si actio Against which the unity of possession was pleaded The Defendant demurs Per Cur. as this Prescription was pleaded the Common was extinct but by special pleading he might have been helped and save his Common for this was Common appendant 2 Brownl 47. Vide James and Read Tirringhams Case 4 Rep. 38. Custom was alledged Sola separalis pastura That all the customary Tenements Habuerunt habuere consuever separalem pasturam c. it was excepted to this Plea That the Copy-holders have not shewed what Estate they have in their customary Tenements And 2dly It s not alledged that they have solam pasturam for their Beasts Levant and Couchant Per Cur. it s not material for be their Estates what they will in Fee or Life or Years Custom hath annexed this sole feeding as a profit apprender to their Estates and this they claim by the Custom of the Manor and not by Prescription As to the other Exception True it is if one claim only Common appurtenant to his Land he ought to say for his Beasts Levant and Couchant for in such case he claims but part of the Herbage and the residue the Lord is to have and therefore if he put in any Beasts that are not Levant and Couchant he doth a wrong to his Lord and the Lord shall have Trespass But here the Commoners claim all the Herbage and so exclude the Lord totally and so it s no mischief to the Lord 2 Sanders 326 327. Hoskins and Robins Estovers If a Copy-holder for Life had used to have Common in the Waste of the Lord or certain Estovers in his Wood and the Lord alien the Waste and the Wood to a Stranger and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Common and Estovers in the Lands and Woods which were aliened notwithstanding the Severance But after such severance the Copy-holder shall not plead generally Quod infra manerium praed talis habetur consuetudo for after such severance the Waste or Wood is not parcel of the Manor but he may plead That before and until such time of the severance Talis habebatur a toto tempore c. consuetudo c. and then shew the severance as in Murrel's Case where the Lord severs the Freehold and Inheritance from the Copy-hold Co. 8 Rep. Swain's Case Where a Copy-holder prescribes for Estovers in the Soil of another and he saith That all Copy-holders Ejusdem tenementi usi sunt c. where he ought to have said Ejusdem manerij c. This Prescription was adjudged void 21 Ed. 4.36 b. 63. b. Prescription Pro ligno combustibili is good 2 Brownl 330. Trees A Prescription for a Copy-holder to cut Boughs of Trees is well laid by way of a Custom 2 Brownl 329. The manner of Pleading when a Lease is to be answered which is set forth in the Avowry In Replevin B. avowed for Damage feasant and sets forth That the Lady J. was seized of such a Manor whereof the place where c. and leased the same to the Defendant for years c. The Plaintiff saith That long time before King H. 8. was seized of the said Manor and that the place where c. is parcel of the said Manor demised and demisable by Copy c. and that the said King by such an one his Steward demised and granted the said parcel unto the Ancestor of the Plaintiff whose Heir he is by Copy in Fee and upon this there was a Demurrer because by that bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in bar to the Avowry ought to have concluded And so he was seized by the Custom until the Avowant pretextu of the said Term for years entred And so it was adjudged 1 Leon. p. 81. Herring and Badcock In Ejectment the Defendant pleads Ejectment That the Lessor of the Plaintiff was Copy-holder in Fee of that Land parcel of the Manor of H. which is in the Queens possession by reason of a Ward and that the Lessor surrendred to the Use of the Defendant in Fee who was admitted and that afterwards the Lessor entred upon him and expelled him and let to the Plaintiff prout in the Declaration and the Defendant re-entred as he lawfully might Lease as at Common Law and plead Lease of Copy-hold Land Custom or Licence must specially be shewed The Plaintiff dedemurs Per Cur. the Plea is naught for there is no confession and avoydance of the Lease let by the Plaintiff for the Action is brought as of a Lease of Land at Common Law and this proves that the Land was Copy-hold Land and a Copy-holder cannot make a Lease for years unless by Custom or by Licence of the Lord which ought specially to be shewed Cro. El. 728. Kensey and Richardson In Ejectione Firmae brought by the Lessee of a Copy-holder Lessee pleading a Licence how it is sufficient that the Count be general without any mention of the Licence and if the Defendant plead not Guilty then the Plaintiff ought to shew the Licence in Evidence but if the Defendant plead specially then the Plaintiff ought to plead the Licence certainly in his Replication and the time and place when it was made And if the Plaintiff replies 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 place and time when it was made it s not good Per tot Cur. For the Licence is traversable for if the Copy-holder without Licence make a Lease for years the Lessee which enters by colour of that is a disseisor and a disseisor cannot maintain an Ejectione Firmae and the Defendant cannot plead That the Plaintiff by Licence did not demise for this is a negative pregnant also it ought to appear what Estate the Lord had for he cannot Lease for a longer time than he had in the
At the Court Baron of the Honour of Hampton J. S. and J. D. Tenants of the Honour of Hampton do present An Honour That J. R. did Surrender into the Hands of two Tenants of the Honour Per Jones This being a Court of the Honour and into the Hands of the Tenants of the Honour it s not good but by the other three Justices its good enough For Toddington being in the Margent it shall be said a distinct Court by it self For an Honour consisteth of many Manors yet all the Courts for the Manors are distinguished and have several Copyholders Cro. Car. 366. Seagood and Hone. Special Verdict was That Copy-holder of Inheritance bargained and sold his Copy-hold Land c. to the Lessee of the Manor and this was by Indenture and the Indenture was to this effect Verdict found not according to the Indenture That he bargained and sold all his Lands and Tenements as well Copy-holds as other Lands bought of John Culpepper in such a Town but it is not found by the Verdict nor averred by the Party That the Land was bought of John Culpepper and so ill Winch Rep. p. 67. Hasset and Hanson Custom not well found A Copy-holder of Inheritance made a Letter of Attorny to two Joyntly and severally to Surrender his Copy-hold Lands in Fee to certain Uses after his death but the Verdict doth not find that the two Attornies were custumary Tenants nor doth it appear that they were customary Tenants at the time of the Admittance and the primier possession will make a disseisin by the Defendant if the Custom be not well found It is not found that the two Attornies were customary Tenants but it was objected here is so much found as shall make it to be presumed that they were Tenants of the Manor for it is found that the party is admitted secundum consuetud Manerij which cannot be a good Admittance if they were not Tenants But Rolls answered to be admitted secundum consuetudinem goes to the Admittance not to the Letter of Attorny the Custom is not good neither is it found that the Land is demisable at the will of the Lord c. and so it may be free Land and the Custom reaches it not Stiles p. 311. Wallis and Bucknal The Plaintiff entitles himself to have Common of Pasture c. to his Copy-hold and the Custom was traversed it was found he ought to have the same Common but that every Copy-holder used to pay time out of mind c. pro ead communia unam gallinam quinque ova annuatim upon this Verdict the Plaintiff shall have Judgment Failure of Custom found this is not a common sub modo for the Ter-Tenant had remedy for the Hen and Eggs by distress and it is not parcel of the Issue but had the Jury found that the Plaintiff shall have Common paying so many Hens and Eggs the Issue had been against him and it had been parcel of the Custom it s not Modus Communiae but collateral recompence One prescribes to carry Water out of the River the Jury find he ought to have this paying 6 d. yearly Failure of Prsecription found Per Cur. he hath failed of his Prescription for he had prescribed absolutely and the Jury found it conditionally or sub modo and the Ter-Tenant in this Case hath no remedy but by disturbance 5 Rep. 68. Gray's Case If the Issue be whether Jury must find directly and not argumentatively where a Copy-hold is granted to three for the Lives of two he who dies seized c. ought to pay an Harriot Custom and the Jury find there never was a Grant of such Estate within the said Manor This is not well found for this is but an argument that no Harriot ought to be paid but they ought to have found it directly M. 15 Jac. B. R. Ven and Howel If the Issue be whether by the Custom of the Manor a Copy-hold may be granted to three for the Life of two and they find that by the Custom it may be granted for three Lives this is not well found because it is only by Argument because if a greater Estate may be granted a lesser may be So if the Issue be whether a Copy-hold may be granted in Tail and they find it may be granted in Fee mesme Case What shall be intended by the Juries finding if c. then for the Plaintiff Special Verdict upon a Patent from King H. 8. which Patent was adjudged void to pass the Estate the Jury find if it were a good Patent then for the Defendant if otherwise they find for the Plaintiff It is intended there is a sufficient Title found for the Plaintiff unless by this Patent it be defeated If Jury be satisfied the Plaintiff hath Title the Court ought not to doubt thereof so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title the Court ought not to doubt thereof and so is Goodal's Case 5 Rep. 97. Cro. Car. 21. Castle and Hobbs Custom was pleaded by the Defendant That if a Copy-holder in Fee hath a Wife at the time of his death and two Sons or more that the Wife shall have her Free-Bench during her Life and that if the eldest Son dye living the Wife though he hath Issue his Issue shall not have it Custom must be found in the manner that he pleads it but the second Son The Jury found the Custom that the youngest Son should have it unless the eldest Son was admitted thereto as to the Reversion or made a Fine for it with the Lord in his Life-time Per Cur. The Custom is not found in that manner that he pleaded it therefore it is found against him that pleaded it for he pleaded a general Custom without exception and the Custom found is with an exception and special as the Case is in Dyer 192. Where a Custom was pleaded That a Feme should have it and it was found she should have it Verdict not aptly concluded durante viduitate but in this Case there was not any Verdict upon this Issue for they concluded their Verdict Si c. they found the Defendant guilty if otherwise not guilty and so there is not any conclusion of the point in Issue Per Cur. a gross fault and a Venire Facias de novo was awarded Cro. El. 415. Boraston and Hay In Trespass the Plaintiff in his Replication makes Title That this Land is parcel of the Manor of D. and demisable c. by Copy in Fee in Tail for Life or years c. and the Land was let to him by Copy in Fee Substance found the Prescription was traversed and found that it was demisable c. in Fee but never in Tail and that it was granted to the Plaintiff in Fee this was found for the Plaintiff for the Allegation That the Land was demisable in Fee or in Tail
two years full value for a Fine The Lord was limitted to a two years value for a Fine though the Fines were Arbitrary and the Custom was to renew but every 99 years but the Copy-holders decreed to renew their Estates within one year after the Term. Barker contra Hill 33 Car. 2. Heir Decreed to surrender upon a Contract with the Ancestor Surrender by Infant of five years old Upon a Contract for Copy-hold Estate and Purchase-mony paid the bargainor dies before Surrender his Heir decreed to Surrender Nayler contra Strode The Surrender of a Copy-hold Estate by an Infant of 5 years old allowed by this Court Precedents in Chancery A Bill for the quieting the possession of a Copy-holder where the Copies and Court Rolls are lost and to have Witnesses examined Conveyancers Light 258. A Bill for entring and detaining Copy-hold Lands by reason of the detaining the Writings thereof Wests Presidents Edit 1647. PRESIDENTS c. 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 THIS Indenture Tripartite made c. between M. F. of c. Widow late Wife and Relict of E. F. late of c. Gentleman deceased on the first Party and T. S. of c. Gentleman on the second Party and E. L. of c. Gentleman T. B. of c. J. B. of c. Gentleman on the third Part. Whereas the said M. is now possessed in a personal Estate of Mony Debts owing by Bond and Securities and otherwise above the value of 300 l. and of Goods Chattels and Utensils of Houshold Stuff according to the Inventory or Note of particulars hereof hereunto annexed expressed And whereas the said T. S. is now seized in possession of a Copy-hold Estate of Lands and Tenements for term of his Life lying and being in S. within the Manor of W. in the said County of c. of the yearly value of 40 l. or thereabouts by vertue of a Copy of Court-Roll and Grant of the said Copy-hold Premisses by R. B. then Serjeant at Law at a Court of the said Manor of him the said R. B. holden the _____ day _____ in the year _____ as by the said Copy under the Hand and Seal of him the said R. B. and subscribed by S. F. his then Steward appeareth unto which Copy-hold Premisses there is a dead year belonging according to the Custom of the said Manor after the death of the Tenant thereof dying seized in possession disposable by such Tenant in his Life-time or else to be enjoyed by his Executors or Administrators And whereas also by the Custom of the said Manor the Wife of such Tenant if she survive him is to hold and enjoy the said Copy-hold Estate during the time of her Widowhood keeping her self chast And whereas a Marriage is intended to be had and solemnised between the said T. S. and the said M. F. It is agreed between all the said Parties to these presents and the said T. S. for himself his Heirs Executors and Administratrators doth Covenant Promise and Grant to and with the said E. L. T. B. J. B. and J. P. and to and with every of their Executors and Administrators That he the said T. S. shall not and will not surrender yield up or make void the said Copy-hold Estate whereby she the said M. may be defeated of her Widows Estate in the same Copy-hold Premisses after the death of him the said T. S. if the said Marriage take effect and in case she shall him survive And also the said T. B. doth hereby Grant to the said E. L. T. B. J. B. and J. P. and the survivor of them the dead year of the said Copy-hold Premisses to hold to them and the survivor of them immediately from and after the death of him the said T. S. in Trust for her the said M. in case the said Marriage take effect and she survive him the said T. S. And the said T. S. doth also Covenant Grant and agree to and with the said E. L. T. B. J. B. and J. P. and to and with every of them their and every of their Executors and Administrators That he the said T. S. his Executors Administrators and Assigns shall not intermeddle with claim That he will intermeddle with no more of the Wives Estate then 300 l. take or dispose of any other the aforesaid Estate Personal Mony Goods or Chattels of the said M. saving only the sum of 300 l. in mony and no more but that the said T. S. shall be contented and satisfied with the aforesaid sum of 300 l. in mony and no no more as a full Marriage Portion to him with the said M. if the said Marriage shall take effect That she may dispose of it by Will c. And that the said M. shall have full power by her last Will or otherwise to dispose of all or any the rest of her Estate to any other person or persons other than the said T. S. without any contradiction of him the said T. S. to hinder or let the same And the said M. F. by and with the consent of the said T. S. as well in consideration of c. to her paid by the said E. D. T. B. J. B. and J. B. or one of them as also to preserve the Interest and Property of all and singular the Goods Chattels and Implements of Houshold now of her the said M. in the Schedule or Note of particulars thereof hereunto annexed specified so that he the said T. S. may not have any power or disposal of them She the said M. hath given granted bargained and sold and doth hereby give grant bargain sell and deliver unto the said E. L. T. D. J. B. and J. P. their Executors Administrators or Assigns all and singular the said Goods Chattels and Implements of Houshold To have and to hold to them their Executors Administrators and Assigns for ever And the said T. S. for himself his Heirs Executors and Administrators doth Covenant Promise and Grant to and with the said E. L. J. B. T. B. and J. P. and to and with every of them their Executors and Administrators That whereas she the said M. hath divers sums of Mony owing unto her upon Bonds Specialties and otherwise above the sum of 300 l. That for recovery of the said Debts if need require he the said T. S. shall permit and suffer the Trustees aforesaid The Husband to permit Trustees to make use of his name to sue for his Wives Debt or any Attorny or
Attornies by their appointment in the Name or Names of them the said T. S. and M. in case the same Marriage take effect to commence Suit against sue and prosecute all and every the person or persons as occasion shall require for all every of any the said monies that are now owing to the said M. And that he the said T. S. shall justifie all and every such Actions and Suits That he shall not release the Action and shall not Release or discharge the same or any Judgment or Judgments or Execution thereupon to be had without the consent of the said Trustees but shall suffer the said Trustees to receive the same monies and every Sum thereof That what is received shall be at her disposal and all and other the Sum and Sums above the Sum of 300 l. and to preserve and dispose of the same according to the Trust in them reposed by the aforeseid M. And that the said M. shall have full power of the disposal thereof to any person or persons other than the said T. S. without any contradiction of him the said T. S. or any threats or uncivil carriage to deter her thereunto That neither of the Estates be charged with the others Debts due before Marriage And it is farther agreed by and between the said T. S. and M. F. That neither of them nor their Estates shall be charged with the Debts or Engagements of either of the other of them due or payable before the date of these presents And to that end the said T. S. doth covenant promise and grant to and with the said Trustees before named and to and with every of them That he will pay and discharge all his own particular Debts or which he is bound for or stands chargable to pay to any person or persons out of his own particular Estate without having or craving any of the now personal Estate of her the said M. other than the aforesaid 300 l. before mentioned If there appear any Debts on her part Trustees to pay them out of her personal Estate in their Hands And also the said M. F. doth hereby agree That in case the said T. S. after the said intended Marriage shall take effect and be solemnized shall be questioned or molested for any the proper Debts of her the said M. contracted or owing by her before the solemnization of the said intended Marriage or for any Legacy or Legacies which she is any ways chargable to pay to any person or person That the Trustees shall have power and authority hereby to pay and discharge the said Debts and Legacies which she the said M. is so chargable to pay and that out of any her now proper Estate other than the aforesaid 300 l. and in so doing the Trustees shall be discharged of any other account thereof unto the said M. or to the said T. S. after the solemnization of the said intended Marriage And the said Trustees and every of them do hereby declare That they will perform the Trust in them reposed by these presents according to the true intent and meaning thereof And do hereby Covenant every one of them one with the other respectively not to act or do any thing touching the Premisses without the consent of them all In Witness whereof to the first part of these presents remaining with the said T. S. the said M. F. and the said Trustees have put their Hands and Seals to the second part of these Indentures remaining with the said Trustees the said M. F. and T. S. have put their Hands and Seals to the third part of these Indentures remaining with the said M. F. the said T. S. and the said Trustees have put their Hands and Seals the day and year first above written Covenant to Surrender Copy-hold Land after a Bargain and Sale of Free-hold And whereas the said I. W. holdeth to him and his Heirs by Copy of Court Roll at the Will of the Lord according to the Custom of the Manor of S. aforesaid the said Parcel of Land in S. aforesaid before excepted It is Covenanted and agreed by and between the said Parties to these presents and the said I. W. for himself his Heirs Executors and Administrators for the Considerations aforesaid doth Covenant to and with the said H. A. RG and I. A. their Heirs and Assigns by these presents That he the said I. W. shall and will before the Feast of St. John Baptist now next ensuing surrender according to the Custom of the said Manor the said Parcels of customary Lands before excepted unto the use and behoof of the said H. A. R. G. and I. A. and their Heirs for ever and procure them to be admitted unto the same accordingly To hold according to the Custom of the said Manor freed and discharged of all Forferfeitures Charges and Incumbrances done or suffered by him the said J. W. or F. W. his Father or either of them In Witness c. Covenant that he is rightfully seized of Copy-hold Land And the said A. B. for the Considerations aforesaid doth for himself his Heirs Executors Administrators and Assigns and for every of them covenant promise and grant to and with the said I. G. his Heirs and Assigns by these presents that he the said A. B. now at the sealing and delivery of this c. is solely lawfully and rightfully seized of and in all and singular the said Copy-hold Lands and Premisses herein before mentioned to be granted with their c. Appurtenances of a good Estate in Fee-simple according to the Custom of the Manor of which the same Premisses are holden If the Copy-holds belong to two Manors then thus of a good Estate in Fee-simple according to the Custom of the several Manors of which the said Premisses are respectively holden Covenant to Surrender Copy-hold Lands And also that he the said A. B. or his Heirs shall and will at the next Court-Baron to be held for the Manor of W. in the said County c. or at any other time or times upon the request of the said I. G. his Heirs or Assigns but at the proper Costs and Charges of the said A. B. or his Heirs surrender into the Hands of the Lord of the Manor or to the Steward thereof or otherwise according to the Custom of the said Manor to the use of the said I.G. his Heirs and Assigns all those Lands Tenements and Hereditaments herein after mentioned which he the said A. B. doth hold of the said Manor aforesaid by Copy of Court Roll according to the Custom of the said Manor viz. one piece of Land called c. And all other the Copy-hold or customary Lands of the said A. B. held of the said Manor of W. And the said A. B. for himself c. doth farther Covenant c. to and with the said I. G. his Heirs and Assigns c. that he the said A. B. his Heirs Executors or Administrators shall and will pay the Fines
c. as by the particular appraisment sent to the said Commissioners it may appear the value whereof in the total amounts to the sum of c. Now this Indenture witnesseth That the said Commissioners parties to these presents by force and vertue of the said Commission and of the several Acts of Parliament therein mentioned and evpressed for and with the consent and at the request of the Creditors of the said E. F. that have sued forth and prosecuted the said Commission against the said E. F. for and in consideration of the sum of c. unto the said Commissioners by the said C. D. c. to the use benefit and behoof as well of themselves as also of all other the Creditors of the said E. F. that have sued forth and joyned and that shall hereafter in due time joyn in the prosecution of the said Commission according to the Statutes in that behalf made and provided well and truly contented and paid have by force and virtue of the said Commission as much as in them the said Commissioners lyeth and they lawfully may granted bargained and sold and by these presents do as much as in them lyeth and they lawfully may grant bargain and sell unto the said C. D. c. all the aforesaid Copy-hold or customary Messuage c. now in the occupation of c. holden by Copy of Court Roll of the aforesaid Manor of W. together with all Woods Under-woods Commons Pastures c. and Appurtenances whatsoever unto all and every the said Copy-hold or other customary Premisses thereby granted and every part and parcel thereof belonging or in any wise appertaining and all the Estate Right Title Interest Use Possession Reversion and Reversions Remainder and Remainders Claim and Demand whatsoever of the said E. F. of in and to all and singular the Premisses hereby granted and every part and parcel thereof To have and to hold all the said Copy-hold or customary Messuage or Tenement c. with their and every of their Appurtenances to their proper use and behoof for ever according to the Custom of the said Manor of L. Yeilding paying performing and doing unto the said Lord of the aforesaid Manor of whom the Copy-hold or customary Premisses hereby granted are holden all and every the Fines Rents Duties and Services of right used and accustomed to be yeilded paid performed and done for the same c. In Witness c. A Surrender in Trust and the Trust declared Trustees Covenant not to commit c. any thing that may amount to a Forfeiture Whereas the said A. B. hath with his own proper Monies bought and purchased of C. D. of c. Lord of the Manor of Belton in the County of c. amongst other Lands and Tenements in certain Articles indented and made between the said C. D. of the one part and the said A. B. of the other part and bearing date the c. the customary Messuage Lands Tenements and Hereditaments hereafter mentioned that is to say c.. And whereas also the said E. F. G. H. and I. K. customary Tenants of the said Manor of and in the customary Messuage Lands and Premisses did by Surrender bearing date c. according to the Custom of the said Manor surrender into the Hands of the said C. D. Lord of the Manor aforesaid all and singular the customary Messuage Lands Tenements and Hereditaments before mentioned to the use and behoof of them the said I. S. and P. S. their Heirs and Assigns to the intent and purpose that the said C. D. or other the Lord or Lords of the said Manor of c. or the Steward or Stewards of the said Manor for the time being at the next Court to be holden for the said Manor should admit or cause to be admitted them the said I. S. and P. S. Tenants of and to all and singular the said c. as by the said Surrender relation being thereto had may more at large appear Now this Indenture farther Witnesseth That the said I. S. and P. S. for the avoiding and clearing all doubts questions and ambiguities which may hereafter arise or grow touching or concerning the said Surrender taken in their Names as aforesaid do and either of them doth by these presents voluntarily and spontaneously acknowledge express and declare That the said Surrender so had and taken as aforesaid was had taken passed and done by the special direction and appointment of the said A. B. in trust to and for the only use benefit and behoof of him the said A. B. his Heirs and Assigns for ever and to and for none other use intent or purpose whatsoever And farther the said J. S. and P. S. do for themselves their Heirs and Assigns freely and absolutely disclaim any other Estate Right Title Interest Claim or Demand of in to or out of the said customary Messuage Lands and Tenements and Premisses or any part thereof but such only as they have by virtue of the Surrender aforesaid in and upon the Trust aforesaid And the said I. S. and P. S. for themselves their Heirs Executors and Assigns do covenant and grant to and with the said A. B. his Heirs Executors and Assigns that they the said I.S. and P. S. their Heirs or Assigns shall not and will not at any time or times hereafter act do permit or willingly or wittingly suffer any act matter or thing whatsoever that may amount to or cause a Forfeiture of the said Premisses or any part thereof or whereby the said Premisses or any part thereof may be destroyed extinguished impeached or incumbred In Witness c. An Infranchisement of Copy-hold Lands made by a Lord of a Manor to his Copy-holder This Indenture made c. Between A. B. of c. Esquire and E. B. of c. Gentleman Son and Heir apparent of the said A. B. Lord of the Manor of H. in the County of Norfolk of the one part and T. P. of c. R. S. of c. and T. P. of c. of the other part Witnesseth That the said A. B. and E. B. as well for and in consideration of the sum of c. of lawful mony to them the said A. B. and E. B. or one of them in hand paid by the said T. P. R. S. and T. P. at and before the ensealing and delivery of these presents the receipt whereof they the said A. B. and E. B. do by these presents acknowledge and thereof and of every part and parcel thereof do acquit exonerate and discharge the said T. P. R. S. and T. P. and every of them their and every of their Heirs Executors and Administrators for ever by these presents as also for divers other good Causes and Considerations them and either of them hereunto especially moving Have granted bargained sold enfeoffed delivered aliened and confirmed and by these presents do grant bargain sell enfeoff deliver alien and confirm unto the said T. P. R. S. and T. P. their Heirs
and Assigns all those Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments whatsoever situate lying and being in K. and S. or any other Town in the said County of Norfolk which are Copy-hold or customary Lands holden of the Manor of H. within the said County of Norfolk and which the said T. P. holdeth by Copy of Court-Roll of the Manor aforesaid or of right ought to hold as Copy-hold or of some customary Tenure of the said Manor of H. or of the Lord or Lords thereof or of any other Manor or Lordship now or late of the said A. B. and E. B. or either of them and the Free-hold of all and singular the said Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments whatsoever with the Appurtenances and also all the Freehold of the Inheritance of all those Copy-hold and customary Messuages Cottages Lands Tenements and Hereditaments whatsoever which were surrendred lately by J. G. unto the use of the said T. P. and his Heirs and also all such Rents and Arrearages of Rents Services Suits and other Demands whatsoever which now or at any time heretofore have been due or payable or that shall or ought to be hereafter due payable or done for all or any of the said Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments whatsoever all which said Messuages Cottages Lands Tenements Pastures Feedings and Hereditaments with the Appurtenances were late in the occupation of c. and the Reversion and Reversions Remainder and Remainders of all and singular the Premisses all Rents and Reservations reserved or payable by or upon any Demises Leases or Grants heretofore made or granted of the said Premisses or any part or parcel thereof To have and to hold all and singular the said Messuages Cottages Lands Pastures Feedings and Hereditaments and all and singular the above-mentioned or intended to be hereby granted and bargained Premisses with their and every of their Appurtenances unto the said T. P. R. S. and T. P. their Heirs and Assigns to the only proper and absolute use and behoof of them the said T. P. R. S. and T. P. their Heirs and Assigns for ever and the said A. B. and E. B. for themselves and every of them their and either of their Heirs Executors and Administrators and every of them do covenant and grant to and with the said T. P. R. S. and T. P. their Heirs Executors and Assigns and every of them by these presents in manner and form following That is to say that they the said A. B. and E. B. or one of them are or is at the time of the sealing and delivery of these presents lawfully joyntly or solely seized in their or one of their Demesns as of Fee of and in the said Manor of H. and of and in all and singular the said bargained Premisses and every part and parcel thereof with the Appurtenances of a good perfect and absolute Estate of Inheritance in Fee-simple without c. and unto the use of them or one of their Heirs and Assigns without any manner of Condition power of Revocation Limitation of Use or Uses Trust or other matter or thing whatsoever to alter change charge incumber impeach determine or make void the same And that they the said A. B. and E. B. or one of them have or hath at the time of the sealing and delivery of these presents and at the time of the execution of the first Estate hereby to be made and granted shall have full Power good Right and lawful Authority to Grant Bargain and Sell all and every the said Messuages Cottages Lands Tenements Pastures Feedings Hereditaments and Premisses before-mentioned to be hereby granted bargained and sold with their and every of their Appurtenances unto the said T. P. R. S. and T. P. their Heirs and Assigns in manner and form aforesaid and according to the effect of these presents And also that all and every the said afore-mentioned to be hereby granted and bargained Messuages Cottages Lands Tenements Pastures Feedings Hereditaments and Premisses and every part and parcel thereof now are and at all times hereafter shall and may be remain and continue unto the said T. P. R. S. and T. P. their Heirs and Assigns and every or any of them free and clear and freely and clearly acquitted exonerated and discharged or otherwise upon reasonable request well and sufficiently saved and kept harmless and indemnified by the said A. B. and E. B. their Heirs Executors or Administrators or some or one of them of and from all and all manner of former and other Gifts Grants Bargains Sales Estates Wills Entails Alienations Joyntures Right and Title of Dower Statutes Merchant and of the Staple Judgments Executions Rents arrearages of Rents Mortgages and of and from all other Charges Titles Claims and Incumbrances whatsoever And farther the said A. B. and E. B. for themselves their Heirs Executors Administrators and Assigns and for every of them do covenant and grant to and with the said T. P. R. S. and T. P. their Heirs Executors and Administrators and every of them by these presents That they the said A. B. and E. B. and either of them their and either of their Heirs and Assigns lawfully having claiming or pretending to have or which hereafter shall or may lawfully claim or pretend to have any Estate Right Title Interest Claim or Demand of in or to the said bargained Premisses or of in or to any part or parcel thereof by from or under them the said A. B. and E. B. or either of them their or either of their Heirs and Assigns shall and will from time to time and at all times hereafter at the reasonable request costs and charges in the Law of the said T. P. R. S. and T. P. their Heirs and Assigns make do acknowledge or cause to be made done executed acknowledged and suffered all and every such farther act and acts thing and things devise and devises assurances and conveyances in the Law whatsoever of the said Premisses as by the said T. P. R. S. and T. P. their Heirs or Assigns their or any of their Councel Learned in the Law shall be reasonably advised or required be it by Fine or Feoffment Deed or Deeds Inrolled or not Inrolled Recovery or Recoveries with single double or more Voucher or Vouchers or by any other lawful ways or means whatsoever for the better assurance and sure making of the said bargained Premisses and every part and parcel thereof with their and every of their Appurtenances unto the said T. P. R. S. and T. P. their Heirs and Assigns for ever c. A Letter of Attorny to deliver seisin A Lease of Copy-hold Land with the Lords Licence recited This Indenture c. Between A. B. of c. of the one part and C. D. of c. of the other part Witnesseth That the said A. B. by virtue of a Licence before the sealing and delivery of these presents by him procured and obtained of
else non-payment is not a Forfeiture 198 Surrender by a Copy-holder for Life to one in Fee is no Forfeiture What is a present Forfeiture without presentment 199 Heir beyond Sea shall not forfeit for not coming in upon Proclamation in Court 202 Wilful Forfeitures not relieved in Chancery 320 Where the Wife shall suffer for the Forfeiture of her Husband or not 211 Forfeiture as to cutting of Trees by Tenant for Life 207 208 Where Admittance is a Dispensation of a Forfeiture 217 Where Amerciament is a Dispensation of a Forfeiture ibid. Forfeiture purged by Release ibid. Where and what Acceptance is a Dispensation of a Forfeiture and where and what not 218 Where the Heir shall not take advantage of a Forfeiture in the Life of the Ancestor 219 The Lords Remedy for a Forfeiture 220 Bill in Chancery to reverse a Faux Judgment given in the Lords Court 326 What alienations shall be a Forfeiture 206 Forfeiture in Waste 207 By Rescous 216 By Inclosure 210 After a Copy-hold is dismembred from the Manor of what Forfeitures the Feoffee or Grantee shall take advantage 212 Where the Forfeiture of one Copyholder is the Forfeiture of another where Forfeiture of part shall be of the whole 214 215 G. By the Kings Grant of all his Demesn Lands Copy-hold shall not pass aliter in the case of another What things may be granted by Copy 78 Of voluntary Grants by the Lord 79 80 Disability of the Lords person no hindrance of the Grant 80 What Estate the Lord must have to enable him to make Grants 81 82 Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio 84 Grants by Tenant at sufferance or one that has a tortious Title not good 86 87 Copy-hold not to be granted by parcels 89 What amounts to a Grant 90 How Grants of a Copy-hold to be expounded 90 91 92 What shall pass in a Grant by the words cum pertinentiis 92 94 By what words in Grants Copy-holds shall pass or not 92 93 H. Honour what 311 Where the Heir shall be in by discent or Purchase 123 Heir before Admittance is not a compleat Tenant to all purposes Hariot Service and Hariot Custom the difference 237 238 What Custom for Hariots shall be good or not 239 Where and how Hariots shall be apportioned or not 240 Who shall pay an Hariot and when and when not Who shall have an Hariot 241 Pleading as to Hariot vide Tit. Pleading What shall be a good Avowry in conuzance for an Harriot in Replevin or a good justification in Trespass or not and how to be pleaded 244 I. Infant not bound by many Customs 21 If Infant Surrender he may enter at full Age 21 Infant may make a Lease without Licence and not forfeit 21 Surrender by Infant at five years old Custom to assign one to take the profits of a Copy-hold Infant Interruption in the Possession and in the Right 32 42 Faux Jugdment given in the Lords Court where relievable Copy-hold Lands are not within the Statute 11 H. 7. cap. 20. Of Joyntresses 254 The Lord to have the custody of an Ideot 17 K. Kings Grants favourably construed 32 King need not recite in his Grant that it is Copy-hold 23 Surrender to the King without other matter of Record where good 24 L. Lease 108 181 Custom to Lease without Licence may be good 51 52 Lease made before Admittance in what case good 54 What Leases made by a Copy-holder for years are a Forfeiture or not 203 When a Lease shall begin in point of eomputation and not in point of Interest 184 Lease of Copy-holds made by Tenant in Tayl ibid. Lease of Copy-holds made by Ecclesiastical Persons 186 Lease affirmed by acceptance 187 Lease of Free-hold and Copy-hold the Rent issues out of beth 187 In what respect a Lease not warranted by Licence or Custom is yet good in Law 189 Lease void in Interest and good by way of Estoppel 192 What shall be said a Covenant and no Lease and so shall not be a Forfeiture 206 Lease for years not warranted is no disseisin to the Lord 182 Licence Once a Licence to make a Lease and always a Licence What Licence and by whom granted shall be good or not 191 Licence taken as a confirmation 193 Licence pleaded vide Pleadings Copy-hold not within the Statute of Limitations 251 M. Manor the Original and Nature of it 6 Customary Manor what 7 What shall be said parcel of a Manor and what shall be said a severance 2 Manor not to be created at this day 4 A Manor in reputation 5 A Manor in gross 7 How the Lord may create a customary Manor 8 Severance of Copy-hold from the Manor what it operates What shall be said time out of memory 30 Copy-hold is within the Statute 32 H. 2. cap. 9. of Maintenance Manor by reputation how it will pass 7 How Copy-hold may be severed from the Manor and how not 11 N. Notice There must be notice of the Alteration of the Use and Estate or else there can be no Forfeiture for denial of Rent 197 No notice need where a Fine is certain aliter where it is uncertain 191 P. Priviledges of the Lord 17 Priviledges of the Copy-holder 17 18 Difference between Priviledges annexed to the Seigniory and Priviledges annexed to the Tenancy 19 Pleading vide Traverse Uncertainy in Pleading vide sparsim Pleading by an usitatum fuit where good or not 64 How a Copy-holder shall plead in making Title to a Copy-hold 271 272 Whether in Pleading the reasonableness of the Fine must be avered When and where a Licence is to be pleaded specially and when and where not 193 Grant of Copy-hold Land in Reversion must be pleaded as a Grant in Reversion and not as a Grant in possession nor by a per nomen 271 The Manor of a Copy-holders pleading Custom or Prescription 275 How a Prescription must be made by a particular Tenant at will ibid. The manner of a Copy-holders pleading Custom or Prescription for Common 32 Special Prescription to be pleaded in case of severance of the Copy-hold Tenement from the Lord 278 The manner of pleading when a Lease is to be answered which is set forth in the Avowry 280 Where the Action is brought as of a Lease at Common Law and one pleads a Lease of Copy-hold Land 281 Custom or Licence must be shewed specially ibid. How Lessee is to plead a Licence ib. How a Surrender is to be pleaded Pleading of Prescription by a Copy-holder to be discharged of Tythes 282 The Forms of pleading a Surrender vide Surrender 290 Grant 291 Common 292 Trees ibid. Way 296 Forfeiture 297 Pleading Custom or Prescription 273 Bar that the Lands are customary Lands 299 Pleading as to Harriots 242 Presentment 136 When to be made 137 If Surrendror or Cesty que use or customary Tenants dye before Presentment yet Presentment and Admittance may be afterward 138
pleading we say such Lands or Tenements are demised and demisable A tempore cujus contrarij memoria hominum non existit And yet this Rule fails in the Kings Case vide supra It was said by Rolls Chief Justice in Pilkington and Bagshaw's Case Stiles 450. That a Custom cannot be urged for a thing that had its beginning since the time of Richard 1. if a Record can be shewed to the contrary But what measure of time shall make a Custom many differ Some judge it from the time of Henry 1. to the Stat. of Merton Cap. 8. which appointeth the Limitation in a Writ of Right and others say otherwise And by the Statute W. 1. the Limitation was from the time of R. 1. and these are Limitations as to Writs but this is since altered by 32 H. 8. What shall be said time out of memory which is reduced to sixty years next before the Teste of the Writ But the true measure is Littleton's Rule Where a Custom hath been used so long that man's Memory cannot remember the contrary that is when such a thing is pleaded that no man then living hath heard or known any proof to the contrary for if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the memory of any man living yet it is within the memory of man and therefore regularly a man cannot prescribe or alledge a Custom against a Statute for that is the highest Record but affirmative Acts do not take away a Custom If Land hath been demised by Copy for fifty years and yet some alive remember the same occupied by Indenture this is not a good Copy hold And if Land hath been demised by 40 years by Copy and none alive can remember the same to be otherwise demised this is a good Copy But sixty or eighty or an hundred years may make a good Limitation Calthrop's Reading Coke Lit. 114 115. 2. Continuance Custom ought to have continuance without interruption time out of memory for if it be discontinued time out memory the Custom is gone As if a Copy-hold be let by the Lord for life or for years according to the course of the Common Law it shall never be demised as Copy-hold according to the Custom afterwards Consuetudo semel reprobata non potest amplius induci and as Continuance makes the Custom so discontinuance destroys it The Continuance for fifty years is enough to fasten customary Conditions upon the Land against the Lord And per Cur. Though the original Commencement and the customary Interest did commence 10 H. 8. from which time sixty years passed yet the seizure for a Forfeiture in the mean time interrupted utterly the Continuance from the time which might by the Law have perfected the customary Interest What shall be said an interruption of a customary Estate or not Within the time of forty seven years a customary Interest cannot be Attached upon the Land 3 Leon. 107. Tavernor and Cromwel If the Lord of a Manor is seized of an ancient Copy-hold for Forfeiture or by Escheat and let the same at Will without Copy for divers years this is not any interruption of the customary nature of the Land but that he may grant it again by Copy Ibid. Interruption If customary Land hath been of ancient time grantable in Fee and now of late times for the space of forty years the Lord hath granted the same for Life only yet he may if he please resort to his ancient Custom and grant it in Fee 1 Leon. p. 56. Kemp and Carter Customary Land within a Manor hath been grantable in Fee and it Escheats the Lord may grant the same to another for Life for the Custom which enables him to grant in Fee shall enable him to grant for Life and after the death of Tenant pur vie the Lord may grant the same again in Fee for the grant for Life was not any interruption of the Custom 1 Leon. 56. id Case 3. Certainty Custom ought to be certain for incerta pro nullis habentur 13 Ed. 3. Fitzh dum fuit infra aetatem 3. A Writ of Dum fuit infra aetatem was brought against an Infant the Tenant pleads a Custom That when the Infant is within such an Age as that he may count twelve Pence or measure an Ell of Cloth that then his Feoffment shall be good this Custom is adjudged void for the incertainty Why an uncertain Custom shall be void Now the Reasons why an uncertain Custom shall be void are 1. Because an uncertain thing may not be continued time out of memory 2. A man cannot prescribe in a thing which may not at the beginning be well granted and an uncertain thing cannot well commence by Grant And if Tenants of a Manor prescribe that they ought not to pay for a Fine to renew their Copy-hold Estates more than the Rent of two years but ought to pay the Rent for two years or less this is not a good Prescription for the uncertainty for sometimes they are to pay two years Rent and sometimes less 2 Rolls Abridg. 264 265. Green and Berry 4. Reason Custom must be reasonable therefore it must not be against common Right or purely against the Law of the Land as is Littleton's Case The Lord prescibes That there hath been a Custom within his Manor that every Tenant who marries his Daughter without Licence of the Lord shall make Fine c. This Prescription is void it is against the freedom of a Freeman who is not bound thereto by particular Tenure Alit if it be upon a special Reservation of Gift of Lands or Tenure in Villanage Lit. Sect. 209. So in Sect. 212. To prescribe that the Lord of the Manor hath used to distrain Cattel Damage feasant and to retain the Distress till Fine were made to him for the Damages at his will This Prescription is void for it s against reason a man should be Judge in his own Cause If the Lord will prescribe to have of every Copy-holder belonging to his Manor for every Court he keepeth a certain Sum of Mony this is a void Prescription because it is not according to common Right for he ought to do it gratis for Justice sake But if the Lord Prescribe to have a certain Fee of his Tenants for keeping an extraordinary Court which is purchased only for the benefit of some particular Tenants to take up their Copy-holds and such like this is a good Prescription and according to common Right Coke Cop. 81. But now to distinguish what Customs are unreasonable and what not observe these differences Every Custom is not unreasonable which is contrary to a particular Rule or Maxim of the positive Law For its a Rule Consuetudo ex certa causa rationabili privat communem Legem As the Customs of Gavel-kind and Burrough English are against the Maxim of descent of Inheritance and the Maxim of Escheat as in Kent the Father to the Bough and
his Heirs The Question was whether he should have Common still Per tot Cur. he should not Custom hath annexed the Common to his customary Estate which being determined and destroyed by his own act in making it a Freehold the Common is also destroyed and cannot continue without special words and the general words cum pertinentiis will not help Yelv. p. 190. Cro. Jac. 253. Marsham and Hunter's Case Noy 136. mesme Case This is a local Prescription not to the Land but to the Estate and this proves well the words of the Prescription for the Copy-holder ought to Prescribe That every customary Tenant within the Manor c. so he hath his Common in respect that he is a customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land So was the Case of Forth and Ward where a Copy holder had used to take Estovers to repair his Hedges and the Lord granted to him the Freehold of the Copy-hold by the words of Grant unto him all the Lands Tenements and Hereditaments thereunto appertaining and thereto used and occupied It was resolved he should not have Common in the Land of the Lord 2 Brownl 209. Marsham and Hunter More n. 866. Forth and Ward the words cum pertinent do not create a Common A Copy-holder claims Common in another man's Land and the Lord Enfeoffs the Copy-holder of his Copy-hold Land he hath now lost his Common But if a Copy-holder hath Common in the Lords Wastes and the Lord Enfeoffs him of the Copy-hold with all his Commons the Common is not gone 1 Brownl 173. Lee and Edwards And all Pastures and Common whatsoever to the said Messuage or Tenement belonging or used or demised with the same and it his intent that a like Common shall be granted 2 Anderson 168. Wolredg's Case Abbot of F. was was seized of a Manor and there was a Prescription for Common in the Waste of the Manor as belonging to every Ancient Tenement King H. 8. granted the Manor to Sir J. G. which came to Sir T. G. who was Plaintiff in Trespass The Defendant justifies by an usitatum fuit That it had been there used time out mind that every Tenant for years of an Ancient Tenement and Close within the said Manor used to have Common of Turbary on the Waste of the said Manor and that the Tenement and Close he now hath is an Ancient Tenement and was granted to him with all Common appurtenant to the said Messuage and Close accepted or reputed as part parcel or member of the same And the Question upon a special Verdict was when the Lord of a Manor is seized of a Waste and a Tenant of an ancient Tenement prescribes to have Common in the Waste of the Lord afterwards the Tenement is severed from the Manor and granted for a Term to the Defendant with all Common appurtenant to the said Messuage and Close whether this Common that was before belonging to this Ancient Tenement shall pass to the Grantee Per Cur. This Prescription as it is here laid with an usitatum fuit Pleading by an usitatum fuit annexed to the Estate of a Termor is not good is not good It was agreed That if a Copy-holder doth purchase the Inheritance of his Copy-hold and afterwards grants this with all Commons belonging to the same The Common that was before used with the Copy-hold shall pass to the Grantee but the Pleading here is not good The beginning of this Common was by Grant and by permission of the Lord and this for the advancement of his Tenant and not by Prescription and no remedy he hath for this but only in Equity Per Williams a Termor may prescribe but not in his own name but in the name of his Lord That he hath had for himself and his Farmers c Had it been laid here with all Commons Profits used occupied and enjoyed with the Tenement by the Farmers this with an averment had been good but not as it is here the Grant is here with the usitatum fuit now here the usitatum est is annexed to the Estate of the Termor which is not good 1 Bulstr 17 18. 7 Jac. Grimes and Peacock 2 Brownl 222. mesme Case Lessee for years cannot alledge an Usage for every usitatum ought to go in one self same current not interrupted as in the Case of a Copy-hold but it might pass by apt words It was pleaded That all the Inhabitants in such an ancient Messuage ratione commorantiae Pleading Common ratione commorantie have used to have Common of Pasture in loco in quo c. 't is ill for in this word Inhabitants is included he which hath no Interest but Habitation only and he that hath no Interest cannot have Common 6 Rep. Gateward's Case My Lord Hobart's Reason is good Common is an Interest which must inhere in somebody and cannot be pleaded by way of Custom for the Inhabitants that are not permanent to prescribe Tenants in Fee must prescribe for Common c. in their own name and others that have Interest as for Life Years by Elegit at Will c. in the name of the Lord Gateward's Case 6 Rep. It was a Question in Roberts and Hoskin's Case Modern Rep. 74. and 2 Keb. 757. Sanders p. 324. Sola separalis pastura excluding the Lord is a good Custom Vaughan 251. North and Coe Whether a Custom for the customary Tenants to have solam separalem pasturam excluding the Lord were a good Custom Per Cur. it is notwithstanding this Prescription for the sole Pasture yet the Soil is the Lords and he hath Mines Trees c. And my Lord Coke is express in the point a man cannot Prescribe for sole Common but for sole Pasture he may As for the manner of pleading it Vide the Books cited Customs as to devising by last Will and Testament Vide infra Surrender to the use of 〈◊〉 mans last Will. CAP. IX Of custumary Incidents or collateral Qualities Of Copy-hold Estates and how to 〈◊〉 governed With the Illustration of seven particular Cases YOU may observe what has been beforâ— treated about the nature of Copy-hold Estates that amongst the rest of the Consâ—derations in that Chapter where the Copy-hold Estate is inheritable and the Land discendible That in such Case the Law shall direcâ— the descent according to the Rules and Maâ—ims of the Common Law as incidents to everâ— Estate descendible as it was in the Case of Uses When they had gained the reputation of Inheritances descendible the Common Law directed the descent of them and that there should be a possessio fratris of them as well as of other Inheritances So it is in Copy-hold Inheritances possessio fratris facit sororem esse haeredem Vide prius sub titulo Maxims But now such customary Inheritances shall not have by the Law any other collateral Qualities which do not concern descents of Inheritance which other
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
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
Tnant at Will and the Freehold being in another But he may have a Petition to the Lord in the nature of a Faux Judgment and therein assign Errors and have Remedy according to Law 4 Rep. 21. Brown's Case Fenner said he had seen a Record 36 H. 8. where the Lord by Petition to him had for certain Errors in the Proceedings reversed such Judgment given in his own Court Now real Pleints are in the Lords Court are in this Form A. de B. queritur versus C. de D. de placito terrae videlicet de uno Messuagio quadraginta Acris terrae c. cum pertin fecit protestationem sequi querelam istam in natura Brevis Domini Regis Assisae mortis Antecessoris ad communem Legem vel Brevis Domini Regis Assisae novae disseisinae ad communem Legem aut in natura Brevis de forma donationis in discendere ad communem Legem and so in the nature of any other Writ c. plegii de prosequendo F. G. c. CAP. XXXI Declaration of for and concerning Copy-hold Lands and Presidents IN Ejectione Firmae it was doubted by the Court whether the Plaintiff in his Declaration ought to set forth the Custom of the Manor That the Copy-holder may Lease c. and then to shew that the Lease is warranted by the Custom Whether in Ejectment the Plaintiff need to shew that the Lease was warranted by the Custom in 1 Anderson Rep. Ewer and Astwick But it is fully resolved and agreed in Rumney and Eves's Case 1 Leon p. 100. That the Plaintiff ought not to shew that the Lease is warranted by the Custom but that shall come of the other side This was Pasch 30 El. B. R. But in Hill 38 El. Cro. p. 469. Wells and Partridge it was doubted because otherwise being a general Court it shall be intended of a Lease at Common Law which a Copy-holder cannot make as if the Heir in Burrough English brings a Mordancestor he ought to shew the Custom in his Count and declare according thereunto This was the Opinion of Anderson in the Case and in Moor n. 927. Gregory and Harrison It is said to be resolved an Ejectione Firmae doth not lye of a Copy-hold if the Plaintiff doth not declare the Custom Lease and Ejectment but the Practice now is otherwise Upon Agreement Whereas W. was seized of Copy-hold Lands That he should surrender the same to the Use of Elkin and that he was to give him for the same 560 l. and if he sold the same over the Plaintiff to have the moiety of what he sold over and above It is said in the Declaration Declaration must be That he is seized in Dom. suam ut de feodo secundum c. and also may shew that they are customary Lands he was seized in Dominico ut de feodo secundum consuetudinem manerij and he doth not shew the same was customary Land Per Cur. he ought to shew it but he need not shew that he was admitted 3 Bulstr 230. Elkins and Wastel Declaration sur Assumpsit to make a Surrender of Copy-hold Land Placita gen spec p. 16. Declaration in Case for a Copy-holder for cutting down Trees upon his customary Tenements Brownl 252. Def. seisitus de terris custumar vendidit querentur statum suum inde ac omnia bona asâ—umpsit causare statum fieri quer in terris deliberare bona Rast Ent. 7. Nar pro tenen customar versus Dom Maner qui succidit arbores suê‘ Tenementa custumar per quod quer non habet suffeciens forale sepimentur maremium ê‘ro reparatione secundum consuetud Manerij Hern 216 or 226. 1 Brown 252. Pro ten custumar versus un Tanner de Tanpiâ—s erect propre rivulum decurren ad Messuagium querentis per quod aqua corrumpitur Hern 254. Ad exheredand quer de Tenementis custumar impediend ipsum de Administratione bonor ei committend Co. Entr. 29. Pro ten custumar molendini versus occupationem tenementorum quâ— per consuetur debeâ— molare grana ad dict' molend Hern 83. Narrat in Action sur Case per Copyhold que fuit le Tenant pur 3 vies successive des terres d'un Manor deins quel fuit un Custome habere successive c. un auter Custome que prima persona in copiis rotulorum ejusdem Manerij nominata poet surrender in manus Dom al son proper use al use des deux auters nominand Le Def. in consideratione quod le Plaintiff pro 12 d. in manibus 50 quarter de brasis illi deliberand assumpsit sursum reddere ad usu ipsius duor alior ex nominatione Def. procurare cur assumpsit promisit apparere apud Curiam accipere statum ad usum ipsius 2 aliorum deliberare les 50 quartur brasii pred Winch. Ent. 65. Narratur per Copyhold qui fuit Tenant pur 3 vies successive des terres tenus d'un Manor deins quel fuit un Custome habere successive c. un auter Custome que prima persona in Copiis rotulorum ejudem manerij nominat poec surrender in manus Dom al son proper use al use deux auters per ipsum nominand Le Def. in consideratione que pro 12 d. in manibus 50 quarters de Malt a luy deliberand ad assume a Surrender al use de luy mesme 2 auters nominatione Def. procurare curiam assumpsit promisit d'appearer al Court d'accepter del Estate a luy les deux auters pur deliver les 50 quarters de Melt venditur Winch Entr. p. 65. Chambers and Turner Cond del obligÌ„ a Surrender un Copyhold Estate al use delâ—quer al proche in Court Bar quod Def. al Court tenus tiel jour surrendroit accordant al effect del condicon Winch. Entr. 241 222. demur general al bar Eldre Ll'uelling CAP. XXXII Of Pleadings The general Rules of Pleading as to Copy-hold Estates Of Pleading Customs and Prescriptions and the different Forms Pleading in reference to Common and when to be pleaded by way of Custom or by way of Prescription The manner of Pleading when a Lease is to be answered which is set forth in the Avowry Where in Pleading the Commencement of the Estate must be shewn and by whom granted or not How a Licence must be pleaded by the Lessee Prescription for Copy-holders to be discharged of Tythes How to be pleaded Of Traverses when and where to be taken Forms of Pleading of Surrenders Admittances Forms of Pleading Estates in Fee Tayl for Lives or Years Pleading of Presentments Grants Pleadings in respect of Commons Trees Ways Inclosures Forfeiture and all other Pleadings necessary for the Copy-holder to set forth his Title or to defend it Pleadings General Rules of Pleading as to Copy-hold Estates EVery Admittance of an Heir upon a Descent amounts in Law to a Grant and after Admittance the Heir may in Pleading
due for Admittances of the said I. G. or his Heirs into the said Copy-hold Lands unto the Lords of the said Manors respectively And that he the said A. B. and his Heirs from time to time and at all times hereafter within the space of seven years next ensuing the date hereof c. at and upon the reasonable Request and proper Costs and Charges in the Law of the said I. G. his Heirs or Assigns shall and will make and do all and every such farther and other lawful and reasonable acts and things for the farther better and more perfect assuring and conveying all and singular the said Copy-hold Lands and Tenements and all other the Copy-hold Lands of the said A. B. in the County of S. to or to the Use of the said I. G. his Heirs or Assigns or by his or their Councel learned in the Law shall be reasonably devised or advised and required And that at the time of such Surrender or Surrenders or other Assurance or Assurances to be made of the same Copy-hold Lands and Premisses all and singular the said Copy-hold Lands and Premisses so to be surrendred or otherwise conveyed as aforesaid shall be free and clear and freely and clearly and absolutely acquitted freed and discharged of and from all former Surrenders and Forfeitures and other Incumbrances whatsoever had made done or wittingly and willingly suffered by him the said A. B. or by any other person and persons whatsoever one Lease made by the Licence of the Lord of the Manor aforesaid to K. F. c. of c. of one Copy-hold Messuage c. excepted A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time This Indenture made c. between Sir T. D. of P. c. of the one part and I. H. of c. of the other part Witneseth That whereas the said Sir T. D. hath now lately surrendred into the Hands of the Lord or Lords of the Manor of W. in the said County of S. by the Rod according to the Custom of the said Manor by the Hands and acceptanc of R. C. and E. M. two of the customary Tenants of the said Manor all that Messuage c. To the Use of the said I. H. his Heirs and Assigns to hold according to the Custom of the said Manor with a proviso and upon condition That if the said Sir T. D. his c. shall and do well and truly pay or cause to be paid c. at c. then the said Surrender to be void and of none effect as by a Note or Memorandum of the said Surrender taken out of the Court the day of the date hereof relation c. more plainly appeareth Now the said Sir T. D. doth for himself his Heirs Executors and Administrators Covenant c. to and with the said I. H. his Executors and Administrators by these presents to pay the Mony at the day and place and in manner and form in the said Proviso or Condition of the said Surrender before recited limited and appointed for the payment thereof And farther also That the said Sir T. D. at the time of the making of the said Surrender before recited had a good Estate of Inheritance in Fee-simple according to the Custom of the said Manor of W. of and in all and singular the said Messuages c. before mentioned to be surrendred and had good right and lawful and absolute power and authority in himself to surrender the same and every part thereof unto the said I. H. and his Heirs in manner and form aforesaid and that the same are free from all former Surrenders and Incumbranses whatsoever In default of payment I. H. and his Heirs to enjoy the Premisses for ever After default in payment Sir T. D. covenants for farther Assurance be it by Fine or Recovery according to the Custom of the said Manor Surrender Release or Confirmation or all or any of the said wayes or means in the Law whatsoever as by the said I. H. his Heirs or Assigns or his or their Councel learned in the Law shall be reasonably devised advised or required Till default of payment I. H. to permit and suffer Sir T. D. to enjoy c. A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts This Indenture c. Between A. B. c. the Commissioners of the one part and C. D. c. Assignees of the other part Whereas the King and Queens Majesties Commission under the Great Seal of England grounded upon the several Statutes made concerning Bankrupts bearing date at Westminster the day of c. last past hath been awarded against E. F. of c. and directed to the said Commissioners thereby giving full power and authority unto the said Commissioners four or three of them whereof the said A. B. and P. B. to be one to execute the same as by the said Commission more at large appeareth And whereas the Commissioners parties to these presents or the major part of them or the major part of the Commissioners by the said Commission authorized having begun to put the said Commission in Execution upon due examination of Witnesses and other good proof and upon Oath before them taken do find That the said E. D. hath for the space of six years last past or thereabouts used and exercised the Trade and profession of a c. in buying and selling of c. at his House and Shop in S. aforesaid and sought and endeavoured to get his living by buying and selling And that the said E. F. so seeking and endeavouring to get his living by buying and selling during the time of his said Trading did become justly and truly indebted and still doth owe and stand indebted unto the above-named C. D. and other his Creditors in the sum of c. and being so indebted he the said E. F. did in the judgment of the said Commissioners parties to these presents become Bankrupt to all intents and purposes within the compass true intent and meaning of several Statutes made concerning Bankrupts or within some or one of them before the date and suing forth the said Commission And whereas also the said Commissioners parties to these presents or the major part of the Commissioners by the said Commission authorized having also found out and discovered that he the said E. F. at the time and since he became Bankrupt was and stood seized to him and his Heirs according to the Custom of the Manor of L. in the County of L. of and in c. All which Copy-hold or customary Premisses the greater part of the above-named Commissioners by the said Commission authorized have caused to be viewed and rented and the same to be appraised to the best value they can or may and accordingly the same have been viewed rented and appraised by R. S. and T. V. men of sufficient skill and ability for the doing thereof in manner and form following that is to say