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
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 Lord M. with divers Remainders over with a Proviso That the Donees non facerent aliquid in nocumentum vel ex heredat haeredum suorum vel c. sed tantum pro junctura vel pro termino vitae vel pro annis vel ad voluntatem secundum consuetudinem manerij reddend antiquum redditum The said Manor consisted of divers free Rents amounting to 7 l. 15 s. Copy-hold Tenements held for Lives the customary Rent of which was 3 l. and Waste and Herriots The free Rents or Copy-hold Rents or Herriots were never devised before for Life or Years or otherwise A post mortem viri by Fine grants and renders the moiety of the Manor for 300 years rendring Rent amounting to the Free and Copy-hold Rents and 8 d. more payable at two Feasts whereas the ancient Rents were payable at four Per Cur. the Lease was void the Copy-holds ought to have been granted by Copy and not by Fine and the reservation at two days where the Rent was payable at four days before made the Grant void for its ad nocumentum haered and there can be no apportionment in that case for Copy-holds for Lives are uncertain and Herriots accidental When two Ferms are joyned together the entire Rent which is reserved out of both of them is a new Rent and not the accustomable Rent 5 Rep. 5. Lord Mountjoy's Case By whom made Ecclesiastical person If a Bishop let Copy-hold Land for Life rendring the ancient Rent it s not good because the Successor cannot Distrain the Copy-holder for Rent but if it be of a Manor to which a Copy-hold belongs its good Lit. Rep. 305. in Sheers Case Dean and Chapter of Worcester Lord of a Manor in jure Ecclesiae of which Manor H. G. was a Copy-holder for Life of Lands under the Rent of 8 s. 8 d. per annum payable Quarterly and Herriotable at the death of the Tenant the Copy-holds were by the Custom grantable for three Lives they demise the said Lands to H. G. and his Assigns for the Lives of R. J. and M. and the survivor of them renduring 8 s. 4 d. per annum at two Feasts Question was if this Lease were good or might be avoided by the Successor Per the Statute 13 Eliz. Cap. 10. It was resolved 1. The Lease was good though it was made pur auter vies and that the Occupants shall be punishable for Waste 2. Customary Demises are within this Law Customary demises are not in the Statute 13 Fl. cap. 10. for this Estate granted by Copy was in judgment of Law an Estate at Will and without doubt Lands which have been accustomed to be demised at will by those which have the Inheritance of the Land rendring rent are Lands accustomably let to Farm within the said Act. 3. The said Act of 13 El. doth not avoid the Lease if the accustomed yearly Rent or more be reserved and for that an Herriot is not a thing Annual nor a thing depending on the Rent it sufficeth if the Annual Rent be reserved 6 Rep. 37. Dean and Chapter of Worcesters Case Cro. Jac. 76. Baugh and Heyns mesme Case As to Leases by Bishops of Manors consisting of Copy-hold Lands and Services of Free-Tenants and reserving the ancient Rent vide 3 Keb. 372. Mod. Rep. 203. Threadneedle and Lynham Infant Copy-holder in Fee leaseth for years Infant without Licence by parcel rendring Rent Lease affirmed by acceptance at full Age he accepts the Rent being admitted to the Copy-hold and after ousts his Lessee Lessee brought Ejectment Judgment for the Lessee Per Cur. this Lease for years is no Disseisin to the Lord though it may be a Forfeiture and this Lease is not void but voidable and may be affirmed by acceptance Noy p. 92. Ashfield's Case Lach. p. 199. Vide Rolls Rep. 256. By a Copy-holder or Heir before Admittance vide Admittance As to Rents reserved Lands at Common Law and Copy-hold Lands are leased by one Indenture Lease of Free-hold and Copy-hold the Rent issues out of both rendring Rent the whole Rent shall issue out of the Lands at Common Law and not out of the Copy-hold But if a man leaseth Land part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the entry of the Disseisee the Rent shall be apportionted Moor n. 144. Term. Pasch 5 El. But the Law is not so for in Collins and Harding's Case Moor n. 723. the Judges were divided in Opinion about this very point But in Rolls 2 Abr. p. 426. it is resolved That this Rent shall issue out of the Copy-hold Land as well as out of the other Land for a Rent may be reserved out of the Copy-hold Land and this is such a thing to which one may resort for a Distress Collins and Harding's Case And this Case is farther Reported by Rolls 1 Abr. p. 234. If a man Lease for years Freehold Land and also Copy-hold Land by Licence of the Lord reserving a Rent and after grants the Reversion of the Free Land to another and the Lessee Attorn the Rent shall be apportioned for this waits upon the Reversion Rent apportioned vide Collins and Harding's Case also Reported in Cro. El. p. 600 622. The Rent issueth out of both and is not like to a Lease of Lands and Goods for all the Rent is there issuing out of the Lands and it is now in the Hands of the Grantee as one entire Reversion Pleading and he shall declare accordingly and although they be several Reversions yet he shall declare upon the truth of the matter Copy-holder by Licence of the Lord demised the same by Indenture to the Plaintiff for twenty years under the Rent of 25 l. per annum the Copy-holder surrenders the Reversion of the one moiety of the same Copy-hold to the Use of one N. W. to which he was admitted and then the Reversion of the other moiety to W. who was admitted Per Cur. the Surrender by the name of a Reversion is good though the Lease is by Indenture and not by Surrender Rent apportioned which if it had been so it had been derived directly out of the customary Estate for still it is the Lease of the Copy-holder and not of the Lord. Quaere if the Copy-holder in this case should forfeit his Estate the Lease would stand good against the Lord being by Licence And Per Cur. the Rent is to be divided by moyeties according to the halves of the Reversion and in this case it was resolved there needed no Attornment upon the Surrender for the Admittance settles the Estate Attornment Hobart 177. Swinnerton and Miller It was said by Hale Chief Justice That a Lease for years of Lands that are Copy-hold Lease of Copy-hold without taking notice that it was Copy-hold particularly without taking notice that this was Copy-hold this is good for the Rent of the Copy-holder and after
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
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
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
and from E. F. Lord of the Manor of W. in the County of S. for the granting and letting to Farm the Tenements c. hereafter in and by these presents demised to the said C. D. according to the tenor and true meaning of these presents Hath demised leased and to farm let and by these presents doth demise lease and to farm let unto the said C. D. c. all c. To have and to hold the said c. with their and every of their Apputenances unto the said C. D. his Executors Administrators and Assigns from the c. for and during the term and unto the full end and term of c. from thenceforth next ensuing and fully to be compleat and ended Yielding and paying therefore yearly and every year during the said term unto the said A. B. his Heirs and Assigns the yearly Rent or Sum of 3 s. of c. at c. with clause of Distress c. and usual Covenants to repair c. And also the said C. D. for himself his Executors Administrators and Assigns and every of them doth covenant promise and grant to and with the said A. B. his Heirs Executors and Assigns That he the said C. D. his Executors nor Assigns nor any of them shall do or wittingly or willingly permit or suffer any act matter or thing whatsoever which may forfeit lose or impair the Estate or Interest of the said A. B. of in or to the said hereby demised Premisses or of in or to any part or parcel thereof or which may be otherwise hurtful or prejudicial to the said A. B. his Heirs or Assigns for or concerning the having holding or enjoying of the same or any part thereof And the said A. B. for himself his c. doth covenant and grant to and with the said C. D. his Executors and Assigns that he the said C. D. his Executors and Assigns under the payment of the said yearly Rent and performance of the Covenants and Agreements aforesaid which on his and their parts and behalfs are and ought to be performed shall and may quietly and peaceably have hold and enjoy all and singular the before-mentioned to be hereby demised Premisses and every part and parcel thereof during the term hereby demised without any interruption molestation or eviction of him the said A. B. his Heirs and Assigns or of any person or persons whatsoever now lawfully claiming or that shall or may hereafter lawfully claim any Estate Right Title or Interest of in or to the same or any part thereof by from or under him them or any of them And also that he the said A. B. his Heirs Executors and Assigns or some or one of them shall and will from time to time and at all times hereafter discharge or upon reasonable request save harmless and keep indemnified the said C. D. his Executors and Assigns of for and from all Quit-Rents payments Duties and Services to be had paid made or done for or out of the said hereby demised Premisses or any part thereof to the said E. F. Lord of the Manor aforesaid his Heirs and Assigns A Release of a Copy hold Estate To all Christian people to whom these presents shall come A. B. of c. and C. B. of c. Brother of the said A. B. send Greeting Whereas the said A. B. is or was seized for and during the term of his natural Life according to the Custom of the Manor of W. in the c. of and in one Copy-hold Messuage or Tenement with the Appurtenances in W. aforesaid being parcel of the said Manor late in the Tenure or Occupation of c. deceased and of and in several parcels of Land Meadow and Pasture to the same belonging or reputed part thereof And whereas the said C. B. hath a Copy-hold Estate for the term of his Life in the said Messuage and Premisses in Reversion after the death of the said A. B. as by the Court Rolls of the said Manor of W. more at large appeareth Now know ye therefore That the said A. B. and C. B. for and in pursuance of an Agreement heretofore made and concluded between the said A. B. E. F. Esq Lord of the said Manor of W. of and for the said Copy-hold Estate and for and in consideration of the Sum of c. of lawful mony of England by him the said E. F. in hand paid to the said A. B. and C. B. or one of them before the sealing and delivery hereof the receit whereof they do hereby acknowledge and for other good causes and considerations them hereunto moving have granted yeilded up surrendred remised released and quit claimed and by these presents they the said A. B. and C. B. do and either of them doth grant yield up surrender remise release and for ever quit claim unto the said E. F. and unto F. C. of c. and to their Heirs Executors and Administrators for ever which said E. F. and F. C. are or one of them now is Lord of the said Manor of W. and are or one of them now is in the actual possession of the said Premisses their said several and respective Copy-hold Estates in the said Messuage Lands and Premisses and in any part or parcel of the same and all their and either of their Estate as well Free-hold as Copy-hold Right Title Interest Possession Claim and Demand whatsoever either in Law or Equity or according to the Custom of the said Manor or otherwise howsoever And the said A. B. and C. B. do for themselves their Heirs Executors and Administrators covenant and grant to and with the said E. F. and F. C. their Heirs Executors and Administrators by these presents that they the said A. B. and C. B. shall and will from time to time and at all times hereafter upon request and at the Costs and Charges in the Law of the said E. F. and F. C. or either of them do and perfect or cause to be done and perfected all such lawful and reasonable acts and things in the Law for the surrendring barring and extinguishing of their or either of their Right and Estate as well Free-hold as Customary and all their or either of their Claim or Demand in or to the said Messuage or Tenement and Premisses or any of them as by them the said E. F. or either of them their or either Heirs or Assigns of the said Manor shall be reasonably advised and required In Witness c. Copy of a Court Roll or an Extract of a Surrender out of the Rolls of the Court. Ad curiam Baron F. R. Mil Baronet Dom manerij pred ibid tentur die Lune videlicet secundo die Junij Anno Domini millesimo sextentesimo nonagesimo Annoque Regni Domini 〈◊〉 Gulielmi Mariae Dei gratia Anglie Scotie Francie Hibernie Regis Regine fidei defensor c. primo coram S. C. Arm Senescallo ibid Irrotulatur sic Ad hanc curiam venit A.
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
the Son to the Plow So the Custom that the Wife shall have the whole for her free Bench is against the Maxim of Common Law for Dower These Customs might have a reasonable beginning where they are not prejudicial to the Common-wealth nor to the present Interest of any particular person yet a Custom may be prejudicial to the Interest of a particular person and reasonable also where it is for the benefit of the Common-wealth in general as to make Bulwarks upon another mans Land in time of War c. But Custom which is contrary to the publick Good or injurious to a Multitude and beneficial only to some particular Person such Custom is repugnant to the Law of Reason and void ab initio and no Prescription can make it good therefore the Custom of a Manor was That no Commoner should put in his Beasts till the Lord had put in his and it was adjudged void 2 H. 4.24 For if the Lord would never put in his Beast the Commoners should lose their Common As to Customs being reasonable or unreasonable vide several more instances in the Argument of Rolls and Mason's Case 2 Brownl 86 88. Customs may be reasonable ratione loci Custom is Several particular Customs in several places where Copy-holder had Issue only Daughters the eldest shall have this for Life and after her death it shall go to the next Heir Male of the Father to him and his Heirs and if no such Heir then it shall Escheat to the Lord. Copy-holder dyes Borderers on Scotland his Wife hath it durante viduitate leaving two Daughters and during this time the eldest dyes The Question was if the second Daughter or the Lord by Escheat had the better Title Per Cur. 1. The Custom is good and the Estate which the Daughter had is an excrescent Estate and not properly a descent 2. She that was eldest at the time of the death of the Mother shall have it and not only Primogenita filia Siderfin p. 267. Newton and Shafto This Custom was good ratione loci for such Manor is bordering on Scotland where were frequent Invasions And Feme sole Merchant is good ratione loci Feme Sole Merchant London The Custom of the Isle of Man That one shall be hanged for stealing a Capon Isle Man but not for stealing an Ox is good In the Manor of Bemister in Dorset Bemister is this Custom That a Copy-holder ought to nominate his Successor otherwise the Land shall Escheat and it has been allowed to be a good Custom So the Manor of Taunton Taunton Dean That the Wife of the Copy-holder shall have the Inheritance of her Husband Siderfin p. 267. id Case The Custom of Millan in Norfolk is Millan in Norfolk If any Copy-holder will sell his Land and agree upon the Price at the next Court the next of his Blood and if he refuse any other of his Blood may have the Land And such like Custom there is at Ham in Middlesex Ham in Middlesex The next Clivener which is he that dwelleth next to him shall have the refusal giving as much as another will and he which inhabits on the East the first and then the South c. 2 Brownl 177. As for the other Rules of the validities of Customs as that they ought to be on good Considerations and beneficial to the Prescriber as Calthrop and Cokes Copyholder treat of they may be referred to the forgoing Rules Now you see there are three supporters of a Copy-hold Custom 1. Time and that must be out of the memory of Man so that Copy-hold cannot begin at this day 2. That the Tenements be parcel of the Manor or within the Manor 3. That it hath been demised and demisible by Copy of Court Roll Demised and demisible how understood for it need not be demised time out of mind by Copy of Court Roll but if it be demisible it is sufficient For Example If a Copy-hold Tenement Escheat to the Lord and the Lord keeps it in his hands many years during this time it is not demised but demisible for the Lord hath power to demise it again Coke Lit. 58. b. Customs of Manors are Disabling Enabling Disabling is That the Tenant by a particular Custom shall not be allowed to do that which he might by the general Custom of Manors As a man may sell Land to whom he will by the general Custom of Manors yet in some Manors by special Custom he must make an offer to the next of Blood Vide supra Customs ratione loci Enabling is where the Tenant by a particular Custom shall be enabled to do that from which he is restrained by the general Custom of Manors By the general Custom of Manors the granting of Copy-hold Land for more than one year without Licence is a Forfeiture yet in some Manors they may do it and it shall not be a Forfeiture Coke Copy-hold 79. Sect. 33. You will find Prescription mentioned in the ensuing Cases therefore it will be of good use a little to open the nature of Custom and Prescription and to shew how and wherein they agree and wherein they differ and also the difference as to Pleadings Custom Prescription and Usage are of great Affinity yet they differ thus Custom is where by continuance of time a Right is obtained concerning divers persons in Common Prescription is where by continuance of time one particular person obtaineth Right against another either a Person or Body Politick Usage is by continuance of time and an efficient cause of both Limitation is where a Right may be obtained by reason of Non-claim by the space of a certain number of years Calthrops Reading 1. Prescription is made in the Person and so the Pleading is That he and all his Ancestors c. Or he and all those whose Estate he hath time out of mind used to have Common of Pasture in such a place c. being the Land of some other c. as pertaining to the said Manor Custom is a Copy-holder of the Manor of D. doth plead That within the same Manor there is and hath been such a Custom timeout of mind used that all the Copy-holders of the said Manor have and used to have Common c. Coke Lit. 113. b. So Custom lyes upon the Land As infra manerium talis habetur consuetudo c. 8 Rep. Swain's Case And such Custom binds the Land as Gavel-kind Borough English c. Prescription ought to have a Lawful beginning not so of Custom So is Coke 6 Rep. Gateward's Case Prescription is alledged in the Person and a Custom ought always to be alledged upon the Land for every Prescription by common intendment ought to have a lawful beginning but it is otherwise of a Custom for this ought to be reasonable and Ex certa rationabili causa usitata but it need not to have an intendment of a lawful commencement as Custom to have Land devisable
may cut Trees and sell them by Custom That Copy-holder in Fee may cut Trees and sell them at his pleasure aliter 〈◊〉 a Copy-holder for Life Rook and Higgins's Case Ibid. Queen Eliz. Seized of the Manor of H. i◠Fee demiseth the same to J. W. except Omnibus boscis subboscis arboribus maremiis c Habend for twenty one years He 35 Eliz. Assigns his Interest to J. P. and others Queen Eliz. dyes King James grants to F. S. and W. reversionem praed ac premissa sic ut prefertur except to them and their Heirs the Lessees Attorn afterwards F. and W. by Deed release to S. and his Heirs And at a Court held by the Lessees their Steward grants by Copy to W. B. Def. certain of these Copy-hold Lands on which Oaks and Ashes grew for term of Life secundum consuetudinem Manerij and that there is such a Custom That every Copy-holder Tenant for Life used to take all Trees growing upon his Copy-hold to be employed for Fuel Bounds Fences Grantee by voluntary Grant shall have Trees though they are severed by an Exception The doubt was in as much as the said Lessees hold the Court by virtue of the said Lease of the Manor out of which Lease the said Trees were excepted if the Tenant may shroud them c. Per Cur. 1. Notwithstanding the Severance by the Exception and notwithstanding the Tenant comes in by Voluntary Grant for Life yet such Grantee shall have the Estovers for the Estate of the Copy-hold is not derived out of the Lord And so though the Waste be aliened in Fee by the Lord and so severed who is but an Instrument and though the Grant be new yet the Title to the Copy-hold is ancient 2. When the Copy-holders for Life have used to have Common or Waste or Estovers or any other Profit apprender and afterwards the Lord alien the Waste Woods c. in Fee and after grant certain Copy-hold Houses and Lands for Lives such Grantees shall have Estovers c. notwithstanding the Severance for the Title of Copy-hold is paramount the Severance 8 Rep. Swain's Case 63 64. 2 Brownl 231. mesme Case Vide infra What 's included by Timber Trees If a Copy-holder by the Custom cut down Timber-Trees for reparations he shall have the Trees Lop Top and Bark and though he cannot repair with the Tops and Bark yet he may sell them towards defraying the charge in repairing 3 Bulstr 281. Sandford and Stephens Where Copy-holder by Custom may not Fell and Sell Trees but take the Shrouds of the Trees for Fuel if the Copy-holder by force of the Custom shrouds the Trees and the Lord takes the Body of the Trees Copy-holder may bring Action of the Case against him Goswell's Case cited in Ford and Hoskins Case Rolls Rep. 196. To cut Timber for repairs to what that extends The Custom is for Copy-holders of Inheritance to cut Timber for Repairs he nor his Lessee cannot employ Trees fell'd with the Wind to any such use in regard that hereby his special property ceaseth much less can Lessee or Copy-holder for Life by any such Custom take Trees 1 Keb. 690. Custom for the Copy-holder to cut down all the Trees Copy-holder for Life by the Custom hath power to name a Successor such Copy-holder may cut and sell all the Trees growing upon the Copy-hold A bare Tenant for Life cannot be warranted by Custom to do such an act Powel and Peacock's Case yet here he had a greater Estate than for Life for he hath power to make another Estate for Life 2 Brownl p. 192. Rolls and Mason In this Case which was well argued by the Judges in 2 Brownl 195. There were two Customs 1. That a Copy-holder for Life may name his Successor 2. That such Copy-holder may cut down all the Trees growing upon the Copy-hold Lands The first Custom was adjudged good and reasonable and the second was adjudged void Copy-holder may justifie cutting Boughs for House-bote Hedge-bote Cart-bote c. To sell Trees 2 Brownl p. 329. Heydon and Smith But Tenant by Copy of Court Roll cannot make Waste nor cut Trees to sell but for his benefit in repairing his House If a Copy-holder for Life cuts down Timber Trees the Lord may take them If under Lessee for years of a Copy-holder cuts down Timber it shall not be a forfeiture of the Copy-hold Estate Stiles p. 233. A Copy-holder may prescribe to have the Toppings of Trees for Fire-bote and Hedge-bote Uncertain Pleading but the Prescription was to cut ramos aliquarum arborum which is uncertain if omnium arborum it had been well Noy p. 14. Cross and Abbot Presidents of Customs as to cutting Wood and Trees Quod tenentes custumarii mes habuer communiam estoveriorum in solo alterius solvendum annuatim 2d Dyer 363. Quod tenentes custumar in feodo succidant arbores ad libitum Cok. Entr. 284. Ub. 130. Simile 1. Br. 252. Quod tenentes custumarii amputent pollingers 13 Rep. 67. Quod tenen custumar repararent sepes in t terras custumar boscum per lignum capiend in bosco 1 Leon. 313. Quod tenentes custumarii usi fuer amputare arbores pro sepiment focali succidere arbores pro reparatione domorum per assigna ' Hern 226. CAP. VIII Customs as to Commons and where Severance shall not prejudice And Pleadings in such case THE Custom is that Copy-holders for Life have used to have Common in Waste or Estovers in Wood or any other profit appendant in parcel of the Manor after the Lord aliens the Waste Woods c. in Fee and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Estovers Common c. notwithstanding the Severance Severance by the Lord shall not prejudice the Common of Estovers for the title of Copy-hold is pararamount the Severance 8 Rep. 63 64. Swain's Case 2 Brownl 231. mesme But after such Severance the Copy-holder when he would intitle himself to Common or Estovers he shall not plead generally Quod infra manerium tali◠habetur Pleading c. consuetudo for after the Severance the Waste or the Woods are not within the Manor but absolutely divided from it but he shall plead That until such a time viz. before the severance talis habetur a toto tempore c. consuetudo c. and then shew the Severance mesme Case Where Copy-hold is extinct the Common is lost though the word cum pertin be in the Grant Common which was first gained by Custom and annexed to the customary Estate is lost when the Copy-hold is extinct and infranchised for Common is not in its own nature incident to a Copy-hold Estate but a collateral interest gained by usage therefore Copy-holder of a Messuage and two Acres of Land for Life had Common in the Lords Waste the Lord grants and confirms the said Copy-hold Messuage and Lands cum pertinentiis to him and
Reversion expectant upon an Estate for Life In all Writs where a man conveys by discent there shall not be mention of any but those who had seisin And in all Actions and Writs where a man conveys by descent there shall not be mention of any but of those who took the Estate and had seisin and not from others who never had seisin the Law esteeming them as if there had been never any such persons and by consequence he may claim here as youngest Son by the custom as Heir in Burrough-English as if Charles had never been because he hath it in course of descent and this is true at Common Law but Jones and Croke held that William had the better Title for Charles being youngest Son at the time of the death of his Father that makes him Heir in Burrough-English by the Custom and when it rests in the youngest Son as Heir by the Custom the Inheritance is fixed in him and he only who is in esse at the time of his Fathers death shall have as by Custom this seems to be the better Opinion Crok Car. 410. Reeve and Malster Who may be said to be customary Tenants A Wife that hath her Widows Estate according to the Custom of the Manor is a good customary Tenant So Tenant per the Curtesie per the Custom In Gloucestershire there is in a Manor a Custom That Executors shall have the Profits for a year In some sense they are good customary Tenants Under-Tenant in what respect Custom was That for Waste to be amerced and to distrain for such amerciament the Beast of the under-Tenant as well as the Tenant is liable The under-Tenant is a customary Tenant to this purpose and no Stranger Transit terra cum onere he enjoys the Priviledge of a customary Tenant and he shall undergo the Charges March Rep. 161. Thorn and Tyler Note There is difference between customary Lands and Copy-hold Lands Freehold as well as Copy may be customary Lands as ancient Demesn may pass by Surrender in some Manors and by Copy and ancient Demesn may pass by Feoffment as Surrender Vide Peryman's Case Rep. Court The Nature of a Court Baron and who may keep Courts or not A Manor cannot be without a Court Baron Vide supra it is inseperably incident to a Manor without any Grant from the King to keep the same and this is not drawn from the Crown but is to be held de necessitate 1 Bulstr 6. The King and Stafferton The Court Baron must be holden within the Manor Where to be held for if it be holden without the Manor it is void unless a Lord being seized of two or three Manors hath usually time out of mind kept at one of his Manors Courts for for all the said Manors then by Custom such Courts are sufficient in Law albeit they are not holden within the several Manors Co. Lit. 58. a. There may be a customary Manor held by Copy and such a customary Lord may keep Courts and grant Copies 11 Rep. Nevil's Case Cro. Jac. 260. contra Now there are two sorts of Court Baron Two sorts of Court Baron one at Common Law incident to every Manor and is of Freeholders and the Freeholders are Judges There is also a customary Court consisting of customary Tenants for without them it cannot be and this Court may be holden without any Free Tenants or other Suitors except Copy-holders and of this Court the Lord or his Steward is Judge Co. Lit. 58. And when the Court Baron is of this double nature the Court Rolls contain matters appertaining to both Honour what An Honour consists of many Manors yet all the Courts for the Manors are distinguished and have several Copy-holders and though there is for all the Manors but one Court yet are they quasi several and distinct Courts One Court kept for many Manors and so it was usually in the time of the Abbots they kept but one Court for many Manors Cro. Car. 361. Seagood and Hone. When the Lord of a Manor having many ancient Copy-holds in a Vill grants the Inheritance of all his Copy-holds to another Customary Court how made and may be held the Grantee may hold Court for the customary Tenants and accept of Surrenders and make Admittances and Grants for although this is not a Manor in Law because there want Freeholders yet there may be holden a Court for Copy-holders and the Lord or Steward is Judge And as the other being a Court Baron may be called the Freeholders Court this may be called the Copy-holders Court so if all the Freehold do Escheat or if the Lord release the Tenure and Services of all his Free Tenants yet the Lord may hold a customary Court for his Copy-hold Tenants So if the Lord demise all his Lands granted by Copy to another for a thousand years such Lessee may hold Court for the Copy-holders 4 Rep. 26 Melwich's Case and Sir Christopher Hatton's Case cited in Neal and Jackson's Case 27. These number of Copy-holds may support a Custom but a single Copy-hold cannot hold a Court. Tenant at Will of a Copy-hold Manor may grant Copyhold Estates but cannot keep Courts Guardian in Socage keeps Courts in his own name and grants Copies its good and shall bind the Heir Vide Tit. Grants Cro. Jac. 55 98. Shopland and Rider The Lord himself may Grant or make Admittance out of the Manor at what place he pleaseth but so cannot the Steward 4 Rep. 26. Melwich's Case 27 Clifton and Mollineux Court may be held out of the Manor by Custom but by Custom the Court may be held out of the Manor and Grants and Admittances there made be good as divers Abbots Priors c. have kept one Court for many Manors Steward Every Steward of Courts is either by Deed or without Deed for a man may be retained a Steward to keep his Court Baron and Leet without Deed and that retainer shall continue till he be discharged Co. Lit. 61. b. 4 Rep. 30. And such Steward may take Surrender of customary Tenants out of the Court 4 Rep. 30. Holcroft's Case In all real Actions which concern Lands the Suitors are the Judges but in personal Actions under the Sum of forty shillings the Steward is the Judge Steward without Deed may take Surrenders out of Court but the Custom must warrant it Note Difference between a Steward of a Manor and the Steward of a Court. A difference between Steward of a Manor and the Steward of Courts Steward of a Manor may take Surrenders in any place 1 Leon. p. 227. Case 307. Blagrave and Wood. Steward appoints his Deputy to keep a Court ad tradendum Copy-hold Land to W. for Life Deputy the Deputy commands H. his Servant to keep Court and grant the said Land and the Custom found did not extend farther than the Deputy though a Deputy cannot transfer his Authority over being an office of Trust yet
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
enter upon the Land before Admittance he may take the Profits punish any Trespass done upon the Land 4 Rep. 21. Brown's Case and 23 Fitch and Huckly He may before Admittance surrender to whose Use he pleaseth paying the Lord his Fine The Lord may avow upon him before Admittance for arrears of Rents or other Services If Baron and Feme Copy-holders to them and to the Heirs of the Husband are and the Husband dyes the Heir of the Husband may surrender his Reversion into the hands of two Tenants of the Manor out of Court before any Admittance during the Life of the Wife and this is a good Surrender for the Reversion was cast upon him before any Admittance Calchin's Case 1 Rolls Abr. 499. Possessio Fratris before Admittance There shall be a possessio fratris before Admittance for if a Copy-holder in Fee have Issue a Son and a Daughter by one Venter and a Son by another Venter What makes a Possession or not for that purpose and his Son by the first Venter enter into the Land and dyeth before Admittance the Daughter shall Inherit as Heir to her Brother and not the Son by the second Venter as Heir to his Father And sometimes the Possession of a Termor without any actual Entry or Claim made by the Heir will make a possessio fratris as if the Copy-holder by Licence of the Lord maketh a Lease for years and dyeth and the Son of the first Venter dyeth before the expiration of the Term being neither admitted nor having made any actual Entry or Claim yet this Possession of the Lessee is sufficient and the Reversion shall descend to the Daughter of the first Venter and not to the Son of the second Venter but if the Lease had determined the Son living by the first Venter and afterwards he had dyed before any actual Entry made the Law would have fallen out otherwise because there was a time when he might have lawfully entred The same Law was as to the possession of a Guardian Heir before Admittance is not a compleat Tenant to all purposes But yet the Heir before Admittance is not a compleat Tenant to all intents and purposes for before that he cannot be sworn of the Homage and he cannot maintain a Pleint in the nature of an Assise in the Lords Court till he is admitted Co. Cop. As there may be possessio fratris c. before the Heirs Admittance so there may be a Tenant by the Curtesie Dyer f. 292. before Admittance of the Feme More n. 425. By Hales in the Case of Blackburn and Greaves Modern Rep. 120. If a Surrender be to the Use of A. for Life the Remainder to his eldest Son c. or to the Use of A. and his Heirs and then A. dyes the Estate is in the Son without Admittance whether he takes by Purchase or Descent One seized of a Copy-hold Tenement in right of his Wife in his Demesn as of Fee surrenders this Copy-hold Tenement without his Wife to the Use of a Stranger in Fee who was admitted by the Lord accordingly Husband dyes and Wife dyes the Heir of the Wife without Admittance enters on the Stranger and made a Lease and good Popham 39. Bullock and Dibler This is no such discontinuance against the Heir as to put the Heir to a Plaint in the nature of a cui in vita it s no more than a Grant which passeth no more than his own Estate and the Heir may intermeddle with the Possession before Admittance Upon a Custom to surrender to two Copy-holders out of Court Surrender to the Heir as a Copy-hold Tenant is good before Admittance Heir may enter and have Trespass before Admittance a Surrender to the Heir of a Copy-holder before Admittance is good 1 Keb. 25. Munifas and Baker Copy-holder dyes the Lord admits a Stranger the Heir may enter and upon re-entry maintain a Trespass without Admittance Noy p. 172. Simpson and Gillion He shall have Trespass and this before his Admittance upon Descent 2 H. 4.12 Pl. 49. 4 Rep. 23. b. Cro. El. 349. Berry and Green When the Heir shall be in by Purchase and not by descent If a Copy-holder of Inheritance surrender this to the Use of another and his Heirs and he to whom the Surrender is made dyes before Admittance and after the Lord admits his Heir he shall be in by Purchase and not by Descent for he is in by the Lord for nothing was in his Father by the Surrender before Admittance 1 Rolls Abr. 827. More 's Case Where there needs no Admittance In the Cases of the Heir per Descent Vide supra When one comes in as of an old Estate A. surrenders Copy-hold into the hands of the Lord and the Lord de novo re-grants the same to A. for Life and afterwards to J. his Wife during the non-age of the Son and Heir of A. and after to the Son and Heir in Tayl. A. dyes the Child being 5 years old Now the Wife is to have the said Lands for 16 years by force of the said Surrender and Admittance The Wife took another Husband and dyed Per Cur. The Husband shall have the Land during the non-age of the Infant and that without any Admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee 3 Leon. p. 9. Dedicot's Case If a Copy-holder be for years and maketh his Executors Executors and dyeth the Executors shall have the Term without any Admittance Sed Quaere for Weston in this point was against Dyer and Brown Joynt-Tenants Release One Joynt-Copy-holder released to his Companion and it was resolved That the Release was good without Surrender or Admittance for the first Admittance is of them and every of them and the ability to Release was from the first Conveyance and Admittance Winch p. 3. Wase and Pretty In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant before Admittance and to what purposes not and what Leases made by them shall be good Upon Surrender nothing is vested in the Grantee before Admittance Vide supra The Copy-holder upon Surrender if the Lord refuse to admit him He who makes the Surrender continues in possession till Admittance cannot enter without Admittance nor have an Action unless there be a special Custom to warrant it for he who makes the Surrender continues in possession till Admittance and not the Lord or Cesty que use and he shall have Trespass against any that enters Cro. El. 349. Berry and Green If by the Custom of the Manor the Copy-hold ought to descend to the youngest Son and the Copy-holder in Fee surrender this to the Use of himself and his Heirs and dyes before any Admittance upon the Surrender and the youngest Son first enters the eldest may not justifie his entrance upon him before Admittance 1 Rolls Abr. 502. If a Copy-holder surrendreth to the Use
Rep. 25 26. Where by the Custom Plaints have been made in the Court of the Manor in the nature of real Actions if such a Recovery be against Tenant in Tayl Copy-holder this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for they are warranted by Custom and it is an incident that the Law amounteth to the said Custom that such Recovery shall make a Discontinuance 4 Rep. 23. Deal and Rigden Discontinuance If a man seized of Copy-hold Land in right of his Wife surrender it to the Use of another in Fee who is admitted and the Husband dyes this is not any Discontinuance to the Wife nor to her Heirs but that she may enter and shall not be put to a cui in vita nor her Heir to a sur cui in vita 4 Rep. 23. Bullock and Dibler Yet Walmsly in Collins and Cranks Case Cro. Jac. 105. held it was a Discontinuance Quaere his Reason Surrender by Tenant Copy-holder in Tayl If Surrender make a Discontinuance makes not any Discontinuance except a special Custom be and then its a bar Vide prius and Cro. El. p. 148. Bulle's Case But in Cro. El. 717. Erishes Case That such a Surrender is a Discontinuance to put the Issue to his Action this being as strong as a Livery by Tenant in Tayl and the Alienee is in by the Tenant in Tayl though he comes in by Grant of the Lord 1 Leon. p. 95. Case 124. Knight and Footman there holden That the surrender of Copy-holder in Tayl to the Use of another in Fee doth not make any Discontinuance but the Issue in Tayl may enter and the Serjeants Case there cited to be so One under age surrenders and dyes having Issue A. A. may enter and shall not be put to his dum fuit infra aetatem 1 Leon. 95. Knights Case But it is setled That a Surrender makes not a Discontinuance Vide infra pres a pres A farther Discourse of what shall amount to a Discontinuance or not Vide hic Cap. supra If a Copy-holder in Tayl admitting it be an Entayl surrender to the Lord to make his Will and he re-grants this to the Copy holder this is not any Discontinuance although a Surrender to the Use of an Estranger should be admitted to be a Discontinuance for a surrender to the Lord may not make any Discontinuance forasmuch as he had the Reversion agreed upon Evidence at the Bar in Lee and Brown's Case Mich. 14 Jac. B. R. So a Surrender of a Copy-hold Entailed to certain Uses c. is no Discontinuance though the Court there said it had been a great Question but by a special Custom such surrender may be a Discontinuance Discontinuance to the Wife If the Husband seized of Copy-hold in the right of his Wife surrender this to the Use of another in Fee who is admitted accordingly Husband dyes this is not any Discontinuance to the Wife 4 Rep. 23. Bullock and Dibler's Case nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to a sur cui in vita A Discontinuance may be of a Copy-hold Entayl admitting it to be a Tayl as by a Recovery in a real Action in the Lords Court 4 Rep. 23 Deal's Case Quaere if it be not more properly a Bar for the time than a Discontinuance 1 Rolls Abr. 634. Morris's Case 44 Eliz. B. R. In Chard and Wyat's Case More n. 877. The Court were divided in Opinion whether a Surrender was a Discontinuance The Case was this A Copy-holder in Fee surrendred to the Use of his Will and having a Daughter born and his Wife with Child he devised by Will part of his Land to his Son or Daughter with which his Wife went haeredibus suis legitime procreat and the residue he devised to his Daughter born to have to her and the Fruit of her Body and if she dye without Fruit of her Body the same shall remain to the Child in the Mothers Belly and if both dye without Fruit then J. S. should sell the Land and willed the one Sister to be Heir to the other The Wife of the Devisor entred and was admitted and had a Daughter which afterward dyed the Mother took Husband and they surrendred Resolved 1st That this was a Fee Tayl in the Daughter 2ly That one in ventre sa mere could not take an Estate in possession by Purchase but in this Case she may take in Remainder But whether it were a Discontinuance the Court was divided but they all agreed a Copyhold may be Entayled by Custom and barr'd by Recovery by special Custom and yet in Moor n. 1087. afterwards it was adjudged a Surrender by a Tenant in Tayl of a Copy-hold was not a Discontinuance but by what is said before the Law is setled as to this point But to cite no more in this point where by Custom of the Manor Pleints have been made in the nature of real Actions That if a Recovery be in a Pleint in nature of a real Action against a Tenant Copy-holder in Tayl it s adjudged that this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for these Pleints are warranted by the Custom this is an incident which the Law annexeth to the said Custom 4 Rep. 23. Deal and Rigden CAP. XX. Of Leases of Copy-hold Estates Leases by the Lord and Rent reserved and his Remedy by Avowry And of Leases made by Copy-holders What is a Forfeiture or not When a Licence to make a Lease shall be said to be persued or not Commencement of a Lease Leases by whom made Bishop Tenant in Tayl. Infant Of Rents reserved What things are demisable by Copy Of Leases of Copy-hold Land Vide Title Customs as to Leases and Limitations of Estates supra Of Leases of Copy-hold Land made by the Lord Tenants 1. By the Lord and his Avowries and remedy for the Rent Lease of the Freehold of a Copy-hold THE Lord leaseth the Freehold of a Copy-hold to J. S. this is good betwixt J. S. and the Lord But the Lord cannot reserve the Rent upon such a Lease 1 Keb. 15. Gerrard's Case Custom A Custom That on payment of ten years Rent the Lord should Licence to let for 99 Years and if he refused the Tenant might do it without Licence was adjudged good and reasonable Grow and Bridges cited in 2 Keb. 344. Porphyry and Legingham If a man be seized of a Manor wherein are divers Copy-holders admittable for Life or for years Lord lets for Life he may Lease by Copy in Reversion to commence after the death of the first Copy-holder and he leaseth the Manor to another for term of Life the Lessor may make a Demise by Copy in Reversion to commence after the death of the first Copy-holder and that is good enough but the Custom of some Manors is to the contrary and that is
yet if he that hath the pure right to the Copy-hold Release to the wrong doer before the Lord enters that is good for until the Lord enter he is Tenant in fait 4 Rep. 15. I Brownl 149. in Odingsal and Jackson's Case Quaere Acceptance Copy-holder sold Timber off the Land Lord enters Copy-holder dyes Lord seises a Beast the Heir brought Trespass the Plaintiff justified the seizure for an Harriot Per Cur. in Ejectment this being the Defendants Evidence Justification for Harriot Service or Seisin of Ancestor is an acceptance of Heir as Tenant and purgeth the Forfeiture contra on Acceptance Justication or Avowry for Harriot Custom but now there being an actual Entry in the Life-time of the Ancestor by the Lord for the Forfeiture no acceptance after will purge it 3 Keb. 641. Pascal and Wood. Repairs of waste If a Tenant permit Waste and after repair yet it seems this doth not purge the Forfeiture Lach. 227. But Moor n. 508. is contra If a Copy-holder cut down Trees without a Custom it is a Forfeiture unless it be for Reparation Note The Repairing with Timber though after five years cut and after Action brought is a dispensation of the Forfeiture Affirmance or confirmation by the Lord Feoffment or Lease of the Freehold If a Copy-holder makes a Lease for years which is a Forfeiture at common Law and afterwards the Lord makes a Feoffment or a Lease for years of the Freehold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Lessee of the Copy-holder shall continue his Estate and so is in nature of an affirmance or a confirmation of the Lease Owen p. 63. Pen and Merival So the difference is when the Lord enters or not and also whether the Forfeiture be committed before the Lords feoffment c. or after Whether Forfeiteres in the time of the Ancestors of the Lord shall descend to the Heir Copy-holder doth waste the Lord dyes Where the Heir shall not take advantage of a Forfeiture the waste is presented in the Court and the Lords Heir enters the better Opinion is he cannot enter Per Dodderidge Actions ancestrel shall descend to the Heir but not Forfeitures which is in the Will of the Lord to take advantage or not Palmers Rep. 416. Cornwallis and Hammond 18 Eliz. in Harpers Rep. cited by Lach. p. 227. in Cornwallis's Case The Case was Lord and two Co-partners Copy-holders the one makes a Feoffment and the Lord makes a Lease of the Manor the Lessee shall not take advantage of this Forfeiture because he is not privy to the Title but if the Lessor dyes it was agreed the Heir should take advantage of it Ideo Quaere It s a mischievous Case if the Lord should be suffered to rake up old Forfeitures a long time past and yet on the other side there is no reason that the Lords should be abridged of their Rights And it s adjudged 2 Siderfin p. 8. Chamberlain and Drake's Case That the succeeding Lord shall not take advantage of waste made in the time of the preceeding Lord. Upon Entry for a Forfeiture who shall have the Emblements Upon Entry by the Lord for a Forfeiture he shall have the Emblements then growing as if a Feme Copy-holder durante viduitate sows the Land and before severance takes a Husband the Lord shall have the Emblements for her own act is the cause of the determination of the Estate If such Woman let for years and the Lessee sows the Land and after the Widow takes Husband the Lessee shall not have the Emblements for although his Estate is determined by the act of a Stranger yet as to the first Lessor he shall not be in better case than his Lessor was 5 Rep. Oland's Case Vide Emblements The Lords Remedy for a Forfeiture For Forfeitures presented by the homage the Lord may distrain or seize 1 Keb. 287. Pateson and Danges By Entry the Lord shall have the Emblements CAP. XXIII Of extinguishment of Copy-holds How they are destroyed by the act of the Lord or of the Copy-holder VVhere and how a Right to a Copy-hold shall be Estopped or Extinguished by Acceptance or Release VVhere a Copy-hold shall be suspended and where it may be regranted Where and by what acts a Copy-hold shall grow extinct and destroyed for ever and where not and to what purposes and to what not By the act of the Lord Copy-holder BY the act of the Lord. And here observe two Rules By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed for though the Copy-hold must be parcel of the Manor yet severance made by the Lord shall not destroy the Estate of the Copy-holder Custom has so fixt and established his Estate In all cases where the Copy-hold is gone by the Grant of the Reversion it is not so gone but that the Tenant shall hold his Estate still and subject to Forfeiture as before To Illustrate this I shall cite two or three Cases That the Lords act shall not prejudice the Copy-holders Estate If the Lord makes a Lease for an hundred years the Lands are not so severed from the Manor as that the Copy-hold is extinct and the customary Interest is not determined but the Lord himself hath destroyed the Custom as to the Services for the Services reserved upon the Copy Copy-hold extinct as to Services but remains as to the Customary Estate and the advantage of waste and other Forfeitures are extinct But by Anderson the Rents and Services remain and waste shall be a Forfeiture though such waste cannot be found by an ordinary Presentment and that the Lord shall have the Rents and Services and not the Lessee quod mirum saith the Reporter against his own Lease 2 Leon. 208. Beal and Langley But this point is well setled in Murrel and Smith's Case 4 Rep. 25. though the Reversion of the Copy-hold be granted and so severed from the Manor yet the Copy-holder shall hold his Estate and subject to Forfeiture as before and shall perform the same Services suit of Court excepted as before and the Custom incident to the Land as Burrough English Gavel-kind continue still but Fine upon Alienations and Suit of Court and Admittances are gone The Lord Grants an ancient Copy-hold to S. in Fee and after he grants the Inheritance of that Copy-hold to a Stranger in Fee S. makes his Will and deviseth it to M. in Fee which was surrendred at next Court Per Cur. 1. Copy-hold though severed from the Manor not destroyed by the Lords act By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed being the Lords act 2. The Surrender after the Severance of the said Copy-hold was void and so was the Will for the Lands were not parcel of the Manor at the time of
Copy-holder It hath been a Question when a Copy-holder bargains and sells his Copy-hold to the Lord of a Manor in Lease for years whether the Copyhold Estate was extinguished But in Hutton p. 81. it is agreed that this Copy-hold is not extinguished but that the Lord who is Lessee for years is Dominus pro tempore and may grant it by Copy de novo The Lord of a Manor demised Copy-hold Lands to three Sisters Habend to them for their Lives successive the eldest Sister married one C. after which the Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after making the said Indenture but four days after the Lease made she agreed to it in pais and then married a Husband Agreement to an Indenture by one in Remainder for Life and they claim the Land The point is if by Agreement of the second Sister her Right to the Copy-hold were extinct The Interest of the eldest Sister is gone by her acceptance of the Estate by Indenture now if the second Sister may come and claim her customary Interest Per Cur. it s no extinguishment in the second Sister and yet Judgment was against her for Per Gaudy none can take advantage of the eldest Sister's Estate being determined the Lord against his Lease cannot enter or claim and the second Sister cannot enter during the Life of the eldest Sister for her Remainder takes effect in possession after the death of her said Sister 1 Leon. p. 73. Curtis and Cottell's Case 28 Eliz. Trin. B. R. By acceptance of a new Estate of Free-hold Baron and Feme Copy-holders to them and their Heirs the Baron in consideration of mony paid by him to the Lord obtaineth an Estate of the Freehold to him and his Wife and to the Heirs of their Bodies Baron dieth having Issue the Feme enters and suffers a Recovery and his Heir enters Per Statute 11 H. 7. Per Cur. the Entry is lawful for the Copy-hold by the Acceptance of the new Estate was extinguished Cro. El. 24. Stockbridge's Case Where and how Right to a Copy-hold shall be Extinguished by Release A man makes a Surrender of his Copy-hold Land to J. S. which is not good and after J. S. is admitted he which made the Surrender releaseth to him being in possession and after enters upon him The Question was if his Entry be congeable and if by the Release by Deed the customary Right of the Copy-holder was extinct And Per Cur. it is extinct by the Release for he to whom the Release was made was Copy-holder in possession and admitted to the Tenements and therefore the Release of a customary right may enure to him and the Lord hath no prejudice for he hath received his Fine for Admittance and he to whom the Release is made is in by Title viz. by Admittance of the Lord and so this Release enures by way of extinguishment And there is great difference between transferring of an Estate and an extinguishment of a Right Diversity between the transferring of an Estate and the extinguishment of a Right But if a Copy-holder be ousted per Tort there his Release to the disseisor or other wrong doer does not transfer his Right or Bar him 1. Because there is no customary Estate upon which a Release of any customary Right may enure and then 2. It would be a prejudice to the Lord who would lose his Fines and Services Co. 4 Rep. 25. b. Kite and Queinton In Replevin bar to the Conisance That K.D. was seized of the Manor of R. in Fee and that the Tenements in which c. were customary held of the said Manor and that at such a Court a Copy was granted to the Plaintiff whereby he entred and put in his Beasts The Defendant protesting the Premisses were not customary for Plea saith That before the Plaintiffs Title J. Abbot of the Monastery of B. was seized of the Manor of R. c. and one R. T. being seized of the customary Lands in which c. in Fee at the will of the Lord the said R. surrendred to the Abbot who was possessed and occupied the said Premisses for divers years and afterwards demised the said Manor for 40 years to W. M. and then surrendred the entire Manor and Abbathy to H. 8. who granted the entire Manor to the Duke of Norfolk in Fee and he with the assent of the Termor made a Feoffment to Drury of the Manor to whom the Termor surrendred his Lease Drury dyes and it descends to his Heir who granted the Land in which c. again by Copy to Tillot for his Life who entred and put in his Beasts Demurrer The Question was if the Custom is destroyed or if Drury the Defendant may avoid his Grant by Copy Note The custumary Land was never severed from the Manor but granted with the Manor as part of it and was demisable by Copy by all the Lords of the Manor and so it remained till the 15th of Eliz. when the Defendant granted the Copy to the Plaintiff Winch Ent. 991 992. Where a Copy-hold shall be perpetually extinct or where it shall after become a Copy-hold by regrant Forfeit Escheat If a Copy-hold Estate be forfeit or escheat to the Lord or otherwise come into the Hands of the Lord if the Lord make a Lease for years or for Life or other Estate by Deed or without Deed this Land shall never after be granted again by Copy for the Custom is destroyed for that during such Estates the Land was not demised nor demisable by Copy of Court Roll So if the Lord make a Feoffment and enter for the Condition broken it shall never be granted again by Copy But if the Lord keep it in his Hands a long time or let this at will then he may re-grant it Lach p. 213. 1 Rolls Abr. 498. Downcliff and Minors So if the interruption be tortious as if the Lord be disseised and the disseisor dye seized or the Land be recovered against the Lord by false Verdict or erroneous Judgment yet after the Land recovered or the judgment reversed this is grantable again by Copy Legal Interruptions But if the Land so Forfeited or Escheated before any new Grant be extended upon a Statute or Recognizance acknowledged by the Lord or the Lords Wife hath this assigned to her in a Writ of Dower though these are impediments by acts in Law yet the interruptions are lawful and the Lands may never again be granted by Copy 4 Rep. 31. Frenches Case If Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed but such Lessee may re-grant the Copy-hold again to whom he will for the Land was always demised or demisable If a Copy-hold be surrendred to the Lessor of a Manor or be Forfeited to him he his Executors or Assigns may well
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
Rent one of the Cesty que vies dies The Question was whether the Harriot belongs to the Bishop or to W. Per Cur. 1. The Rent issues out of the intire Manor 2. That the Harriot reserved shall go with the Reversion Winch p. 46 57. Bishop of Gloucester against Wood. Pleadings What shall be a good Avowry or Conizance for an Harriot in Replevin or a good Justification in Trespass or not and how to be pleaded If the Lord avow generally for an Harriot without shewing what the Harriot should be whether Beast or other thing its sufficient Hobart p. 176. Shaw and Taylor Exception to an Avowry was for that in it he sets forth That if any Tenant dye seized the Lord is to have an Harriot and shews not of what Estate he should dye seized for in one case it may be an Harriot Custom may be due in another case an Harriot Service But Per Curiam it shews he took them nomine Heriotorum which is good enough 1 Bulstr 101. Sylliard's Case Defendant saith That all the Tenants for Term of Life c. after their deaths have used to pay to him an Harriot the Avowry is insufficient That Tenants should pay after their deaths its repugnant But if he had said That he and all those whose Estate he hath c. have had an Harriot it had been good this is Harriot Custom for Harriot Service is of Tenants in Fee 21 H. 7.13 15. 8 H. 7.10 Avowry by Harriot Service he need not shew what was the Beast he demanded nor the kind or price thereof Cro. Car. 260. Mayor and Brandwood Bar to the Avowry nulla habuit Animalia Quaere Hobart 176. Avowry for three Oxon Separatim pro separalibus Harriot ' Cust tunc 3 Br. 313 333. Prescription for Harriot sur Alienation 8 H. 7.10 Avowry for Harriot Custom hors son Fee is no Plea Vide supra Bend. p. 18. for Harriot Service hors son Fee is a good Plea Up. B. 110. Plowd 96. a. Avowry and Distress for Harriot Service bar by Harriot Custom Plowd 94. Woodland and Mantel Bar for Harriot reserved upon a Demise Tomps f. 257. Custom Pleaded Quod Dominus habeat Harriot Custumar post mortem cujusllibet tenentis Co. Entr. 39.3 Brownl 313 403. Simile si fuerint elongat tunc optimum animal levan cuban super terras Co. Ent. 666. Dier 199. Moor 16. Traverse Traverse tenure by Services alledged Co. Lit. 598 599. Traverse le seisin Quod Pater non fuit seisitus Coke Ent. 613. Plowd 94 95. Traverse le tenure protestando quod non fuit seisitus pro placito dicit quod non tenet c. 3 Brownl 329 349 313. Traverse del Custome 3 Brownl 313. Justification in Trespass Bar. quod Defend Dom. manerij habuit Harriot custom de omnibus tenentibus alienan sine Licentia Ra. Ent. 650. Up. B. 182. Bar by Harriot Custom Post mortem tenentis Co. Ent. 39. The like after the death of Tenant pur vie 3 Brownl 402. Repl. quoad 1 mes hors son fee quoad 2 Mes non est talis consuetudo Up. B. 222. Harriot pleaded in Bar al Trespass 1 Brown 383. 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 HOW the Statute De donis extends to Copy-hold Lands or not Vide sub Tit. West 2. c. De donis Of Copy-holds Intayled It is expresly provided 1 R. 3. c. 4. Of Juries That a Copy-holder having Copy-hold Land to the yearly value of 26 s. 6 d. above all Charges may be impannelled upon a Jury as well as he that hath 20 s. Free-hold But now this is altered by latter Statutes Copy-hold Lands are within the words and intention of the Statute 4 Hen. 7.24 4 H. 7. c. â—4 Of Fines and non-Claim of Fines with Proclamations and five years non-claim and shall be barred as a Lessee for years and his Lessor shall be barred so the Copy-holder and his Lord Covin But if a Copy-holder by assent and covin to bar the Lord of his Inheritance makes a Feoffment and levies a Fine with Proclamations such Fine shall not bar the Lord no more than it shall the Lessor if it be levied by Lessee for the reason in Fermor's Case 3 Rep. f. 77. If a Copy-holder for Life or in Fee be ousted and the Lord be disseised Disseisin and the Disseisor levy a Fine with Proclamations and five years pass as well the Lord as the Copy-holder is barred and the Lord shall not in such case have five years after the death of Tenant pur vie for the Lord may presently have remedy by Action viz. Assise c. and recover the Land and the Lord may without consent or commandment precedent or assent subsequent enter in the name of the Tenant by Copy and his own Right to save their particular Interests as his own Freehold and Inheritance for the Lord is no Stranger but is privy in Estate But not if a Stranger who hath no Right enter c. 9 Rep. 105 106. Margaret Podgers Case The Case was A Copy-hold is granted to A. B. and C. for their Lives suecessive the Lord by Deed Inrolled bargains the Copy-hold to A. in Fee and levies a Fine to him with Proclamations A. dies seized this discends to M. his Son and Heir who levies a Fine to Uses Fine when it shall bar or not after ten years B. enters the Fine is no bar for no Fine or Warranty shall bar any Estate in Possession Reversion or Remainder which is not devested and put to a Right and the Lords Bargain and Sale doth not devest the Estates of them in Remainder for the Lord doth that which he may do by Law and A. was in by force of the Statute of 27 H. 8. And an Act of Parliament shall do no wrong Bicknal and Tucker's Case Trin. 9 Jac. Rot. 3648. was Whether a Fine with five years will bind the Copy-holder in Remainder There was a Copy-hold granted to three for Lives to have and to hold successively the first accepts a Bargain and Sale of the Freehold Whether a Fine and non-Claim shall bar a Copy-holder in Remainder by the Lord of the Manor and then he levied a Fine with Proclamations and five years pass Whether he in Remainder is barred or not Those whose Estates are turned to Rights either present or future are meant by the Statute to be barred If a Copy-holder for years be put out of Possession and a Fine levied and no entry by him he is barred by the Statute By the Bargain and Sale he in Remainder is not put out of Possession If a man makes a Lease to begin at Easter next and before Easter a Fine is levied and five years pass this Fine will not bar because at the levying of the Fine he could not enter for then his his Right was future If the
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
Seigniory as suppose he is only for Life and he licenseth for 21 years and dies it s determined 2 Brownl 40. Petty and Evans In Ejectment The Defendant pleaded a Surrender of a Copy-hold by the Hand of F. then Steward of the Manor Issue was joyned absque hoc that he was Steward Per tot Cur. it s no Issue Pleading a Surrender how for the Traverse ought to be general that he did not surrender for if he were not Steward the Surrender is void So of a Surrender pleaded into the Hands of the Tenants of the Manor Cro. El. p. 260. Wood and Butts Pleads Prescription to be discharged of Tythes Copy-holders of Inheritance who held of a Bishop as of his Manor may prescribe That the Bishop and his Predecessors seized of the said Manor for themselves their Tenants for Lives Years and Tenants by Copy of Court Roll of the said Manor time out of memory c. have been discharged from payment of Tythes for their Lands parcel of the said Manor for this is a good Prescription for their Tenements are parcel of the Demesns of the Manor and this may commence upon a real composition of all the Manor 1 Rolls Abr. 652. The Case was thus A Parson sues a Copy-holder in the Spiritual Court for Tythes arising upon the Copy-hold Land he brought his Prohibition and suggests that the Bishop of Winchester Lord of the Manor whereof his Copy-hold is parcel and his Predecessors c. time out of memory c. for them their Tenants and Farmers have been discharged of Tythes arising upon the Manor and shews that he had been Copy-holder of the said Manor time out of memory c. and prescribes in his Lord the Bishop of Winchester's Name the Spiritual Court would not allow this Plea but Per Cur. a Prohibition was granted although here be a Prescription upon a Prescription Prescription upon a Prescription one in the Copy-holder to make his Estate good the other in the Bishop to make his Discharge good yet it was allowed for all Copy-holds are derived out of the Manor and it shall be intended That this Prescription had its commencement at such time when all was in the Lords Hands and the one Prescription is not contrariant to the other although both were from time whereof c. Prescription in the Lord ought of necessity to precede the Prescription in the Estate of the Copy-hold and the discharge of Tythes in the Lord which may well be in this case because he is a Spiritual person trenches to the benefit of the Tenant who is a Copy-holder for by this means it may be presumed that the Lord had greater Fines and Rents Yelv. 2. Croucher and Fryar which case is more largely Reported by Cro. El. 784. Otherwise a Copy-holder which is a Temporal person cannot prescribe in non decimando Prohibition granted out of B. C. against the Ordinary of G. and one Branch the surmise was That the Land out of which the Tythes were demanded is Copy-hold parcel of a Manor of which a Prior was seized in Fee and was also Parson imparsonee Union by which Union the Tythes were extinct Per Cur. the surmise is not good and a Consultation was awarded it was no good Prescription to discharge the Tythes Moor Rep. n. 356. Branches Case A Prohibition prayed upon a surmise that the Dean and Chapter of C. seized of the Manor and Rectory of M. and one G. a customary Tenant prescribes That every Tenant of his Tenement hath used to pay 3 s. 4 d. to the Lord who is also a Parson in discharge of his Rent and a fourth part of the Tythe of B. Per Cur. it s no good Prescription for the Parson cannot libel for the Rent nor the Lord for the Tythe Uncertain and non constat what each should have and the Parson must have a satisfaction or else there can be no discharge 1 Keb. 886 906. Wilkinson and Richardson Traverses Traversing the day of the Grant In Ejectment The Defendant entitles himself by Copy granted 44 Eliz. The Plaintiff by Replication intitles himself by Grant 1 June 43 Eliz. The Defendant maintains his bar and traverseth absque hoc that the Queen 1 June 43 regni sui granted the Land by Copy modo forma prout c. This Replication is not good for the day and year of granting the Copy is not material but only whether it were granted before the Copy made to the Defendant therefore he ought to have traversed absque hoc That the Queen granted modo forma prout c. and this is matter of substance and not aided the traversing of the day where it ought not is matter of substance for thereby he makes it parcel of the Issue which ought not to be Cro. Jac. 202. Lane and Alexander 1 Brownl 140. mesme Case In Ejectment The Defendant pleads the Land is Copy-hold parcel of the Manor of S. whereof the King was and is seised who by his Steward granted the same such a day to him in Fee Habend c. by vertue whereof he was admitted entred and was seized and so justifies The Plaintiff replies That long before the King had any thing in the Manor Queen Elizabeth was seized in Fee in Jure Coronae who by her Steward at such a Court granted the Land in question by Copy to him in Fee Habend c. secundum consuet c. who was admitted and entred Confessing and avoyding Per Cur. the Replication is good and the Plaintiff need not Traverse the Grant alledged in the Bar by the Defendant for the Plaintiff hath confessed and avoided the Defendants Title by a former Copy granted by Queen Elizabeth and so need not traverse and as no man can have a Lease for years without assignment no more can a man have a Copy without a Grant made in Court Cro. Jac. p. 299. Rice and Harrison 1 Brownl p. 147. mesme Case The Plaintiffs Replication is good without any Traverse for how can the Defendant have this when as the Plaintiff had it before as by his Replication appears for that his Lease being first in time avoids the Defendants Lease being the latter and therefore the Defendant in this case ought to have rejoyned and so to have traversed the first Lease but by his Demurrer to the Replication he hath confessed the Lease under which the Plaintiff claims mesme Case 2 Bulstrode p. 1. 6 Rep. Helliar's Case A man pleads a descent of a Copy-hold in Fee the Defendant to take away the descent pleaded That the Ancestor did Surrender to the Use of another Traversing the dying seized absque hoc That the Copy-holder died seized Per Cur. the Traverse is ill because that he traversed that which needed not to be traversed for being Copy-hold and having pleaded a Surrender of it Difference between that and at Common Law the Party cannot have it again if not by Surrender But if a man plead
descensu Cro. Entr. 575 657. Dom concessit querenti terras custumar que ei descend restituend eum ad jus ubi terre fuer prius concesse alij qui obiit Ra. Ent. 628. Dominus ob certas causas seiseivit terras custom concessit eas in feod al W. cui Vir et Vxor propretarij unde relaxaverunt jus 3 Br. 464. Dominus ex traditione propria grant al un pur vie per Copie 1 Coke 117. Grants Grant per Copie in Fee Rast Entr. 627. Limitation dea Estate Co. Ent. 9 10 123 274 645 611 657. 3 Br. 97 464. Hern 81 226 707. Simile al Baron Feme Ra. Entr. 627. Simile al Baron Feme Heires del Feme Cro. Encr. 575. Al un pur vie ove several Remainders in Tayl in defectu exitus quod terre venderentur deuar inde provenien disponerentur juxta Testamentum Co. Ent. 207. Al un pur vie Co. Ent. 576 662. Al 2 pur vies Co. Ent. 273. Hern 73. Al 3 pur vies successive Hern 83 711. Al un pur vie en Reversion Hern 255. Grant al un pur vie in Reversion apres mort de Tenant pur vie per primer grant Hern 724. Simile al 2 pur vies in Reversion Co. Ent. 114. bis 662. Per Senescallum Regis ratione Temporal Episcopatus in manu Regis duran vacac Co. Entr. 645. Grant reddend faciend redditus consuetudines servitia consueta Co. Ent. 662. Terres grant per nosmes Co. Entr. 662. Hern 254 255. Pleading a Manor held by another Manor 11 Rep. p. 17. Sir Henry Nevil's Case Cur tentur coram Deptur Senescallo Co. Entr. 570. Forms of Pleadings of Lords and Copy-holders in reference to Common Per Dom Manerij habere communiam pro tenentibus Custumariis Hern 117 124. Rex Seisitus de Manerio habuit communiam Pasture in bosco pro se liberis tenentur custumar manerij pro omnibus averijs ê‘ totur Annum Co. Entr. 656. Rector Ecclesie seisitus de Manerio Rectorie habuit communiam pro se tenen custumar MessuagÌ„ Terrarum in loco in quo c. pro omnibus magnis averiis per totur Annum Co. Entr. 574. Vn seisitus de Manerio habuit communiam pro se tenen suis in terris tentur de manerio quando non seminantur Co. Entr. 118 Quer seisitus de manerio habuit communiam pastur pro tenen custumariis MessuagÌ„ Terrarum in 10 Acres Pasture pro omnibus averiis per totur Annum Co. Entr. 9. 9 Co. 112. Hern 117. Domini separalium Maneriorum habuer communiam pasture pro tenen custumariis causa vicinagij Co. Entr. 10. vetur intur 191. de injur propr traverse prescriptur Prior seisitus de manerio habuit communiam pro se tenementis suis ad voluntatem in terra post blada asportata usque reseminationem quando facet frisca per totur annum Et in prato post foenu asportur usque Purit ' Rast Entr. 622. 1 Brownl 66. TransÌ„ bar ' per prescription de communia in clauso parcel Manerij Repl protestando quod clausum non est parcel Manerij pro placito de injur propria travers prescription 3 Browl. 418. Iustificatur in TransÌ„ pro common per Custome infra Manerium pro defectu sufficien fensur Def. existen Lessee pÌ„ ans d'un Widdw que tenuit terras per Custome quamdiu casta innupta viveret Tomps 331. Trans Iustificatur pro common prescribe in in Dom Manerij Tomps 371 379 392 418. Pled que customarij Tenants debent habere solam separalem pasturam cum liberis tenentibus pro omnibus averiis barbits except Levant Couchant 1 Sanders 347. 2 Sanders 321. Pled que custumary Tenants usi sunt habere separalem pasturam come appurtenant Tenementis suis 2 Sanders 351. Per Lessee del Copyholder de Turbis fossis in communia pasture Hern 80. Simile pro Hern 116. Bar in ReplegÌ„ That he is Copyholder of another Manor of Copy-hold called P. and prescribes for Common in loco quo c. omni tempore Anni pro omnibus averiis communicalibus Levant Couchant sur le Cohy-hold appell P. que posuit averia sua utendo communia Repl per Traverse que barbits la fuer Levant Couchant c. Demur special the Traverse not being good Winch Entr. p. 970. By four Judges the Traverse was good it s an essential part of the Plea and the Avowant hath election to Traverse any part of the Plea which goes to the end of the Action or Justification Pled Custome aver common in loco in quo c. Repl de son Tort Demesne traverse que les avers fuer Levant Couchant sur le Copy-hold Tempore quo c. Rej. issue sur le Traverse Winch. 1068. ad 1071. Def. in Trespas plead severally pro defâ—â— sufficien ' fensur monstre lour Title al Copy-hold Estates Tomps 410. Iustificatur pÌ„ Common per Custome per un Copyholder Toms 410. Custome pleaded quod tenen custumarii habeant communiam pasture per totur Annum in terris parcel Manerij Hern 81. Simile in terris non allegatur fore parcel Manerij Hern 708. Simile pro averiis vocatur Horse-Beasts Neat-Beasts Levant c. per totum Annum Coke Etr. 10. Simile pro bobus levan a festo ad festum in pastura 3 Br. 61. Simile in 7 acris terre post blada messa asportatur ex eisdem resid camporum usque AnnunciacÌ„ nisi interim seminatur 3 Br. 96. De Arboribus Bar to the Avowry That Sir R. D. was seized of the Manor of R. Vnde c. locus in quo contains 14 Acres and are customary Lands held of the said Manor Sir Robert granted this by Copy to T. who dyed and the Premisses descended to T. his Son c. who demised for a year to the Plaintiff Replication The Defendant confesseth the seisin of Sir Robert but said the 20 Acres of Land and 30 Acres of Meadow of which the 4 Acres are parcel are custumary Lands of the said Manor which Lands Sir Robert granted by Copy to T. T. the Father T. the Father forfeits his Copy-hold Land for Waste and Sir Robert enters for the Forfeiture c. Rejoynder the Plaintiff confesseth the matter in the Replication to the seisin of T. T. the Father And farther the Plaintiff shews the Custom of the Manor was for every Copy-holder d'amputer decapiter tam touts arbores que devant ustoient estre amputes decapitates quam touts juveniles arbores n'esteant pluis que 12 Inches square al stubb The Trees supposed to be decapitated by the Father were decapitable by the Custom c. Demur Winch Ent. 1022. c Drury's Case Bar al cognizance Dean Cap. West seisitur de Manor de T. a quel certain custumary Tenants appertain c. S. H. fermor del Dean
Cap. Senesc del Manor al Court tenus 28 March grants al Plaintiff in Fee secundum consuetudinem le lieu in Question parcel del Manor Custom del Manor fuit pro chesun Tenant aver common en le lieu in Question per que le Plaintiff mit sa vache pur user sa common jesque c. Repl. per confession vel grant des custumarie Terres al Plaintiff mes ouster il replie que D. Cap. 7 May 8 Jac. demised al H. H. le dit Manor pur vies del A. sa feme H. son fitz J. sa file que un auter Close de Pasture nosme L. estreant custumarij terres 28 March 18 Jac. fuer grant per H. al Green in Fee Green 10 June fist Waste per succision de Timber Ash in le man 21 April 15 Jac. le Plaintiff ove auters del Homage fuit jure d'enquirer des choses enquirables deins le Manor le Plaintiff refuse a presenter le Waste pur que il forfeitur son Copy-hold le Seignior 12 July 15 Jac. enter le Def. come Bayliff a luy distreine pur damage fesant Rej. Quod protestand que Senescal ne done luy un charge de presenter le Waste que il nemy refuse a presenter ceo pro placito dic qd D. Cap. demise al H. prout devant que il grant al Green en Fee monstre Custome del Manor que chesun Ten poet crop lop arbores crescents sur leur customary Terres except Fruit Trees traverse le succision del Ash in le man la. Demur genÌ„al al Rejoynder Winch Entr. 931. al 934. Adjudged pro Quer sur gross default in Pleading the Forfeiture is alledged to be in May and the Court was holden in April before which was impossible Vide mesme Case Winch Rep. p. 63. Webb and Barlow Vide Winch Ent. 125. al 129. Custom that every Tenant had used to take Woods and Underwoods 2 Brown 350 251. 1 Brown 273 274. De Aquae cursu Prescriptur per seperales Dominos Manerii de aqua pro tenen custumariis Hern 255. De Chimin Way Pro domino Manerii habere viam c. ê‘ tenen custumariis trans diversa clausa c. Hern 72 711. 1 Brown 368. Prescription to have an Horse and Foot-way appertaining to a customary Messuage and Close over the Close newly assigned and the Lord of the Manor grants to Tenant for Life by Copy Defendant justifies as Servant to Tenant for Life for to use the way Replication de son Tort Demesn with a Traverse of the Prescription Rejoinder by maintainance of the Prescription and Issue upon this Winch 1093. Lock and Troublefield Bar in Trespass That every Copy-holder had an Horse and a Foot-way c. 2 Brown 248 249. De Inclosures Facere sepes fensuras clausi versus venellam ne averia tenen custumar ibidem evadant pasturam Hern p. 708. De Forisfacturis TrnsÌ„ Bar quod P. seisitus de maner grant custumar terres all Def. pur vie Repl Def. forisfecit terras per non residence per custom Rejoynd Def. fuit residens apud manerium non extra V. B. 157. TrnsÌ„ Bar per Franktenement Repl Terres sunt custumar grant al Def. in Fee Rejoynd quer forisfecit terras per succissonem arborum Sur maintenance de Replic Demur inde Co. Ent. 277 280. Similis Bar Replic Rej. quod quer forisfecit terras per decasum horrei Surrej Dominus expulsit quer dimisit aliis Horreum cecidit Quer reintravit Et travers quod quer fecit voluntarium vastum permittend horreu cadere Co. Entr. 280. Similes Bar Repl Rej. quer forisfecit terras per sectam Curie infactam Surrej Dominus expulit quer dimisit alij Cur tentur quer reintravit Et postea Curia tentur ad quam quer fecit defaltur Demur inde Co. Entr. 289. Des terres devises pur Cond broken Heir enter 1 Rep. 21. In Replevin the Defendant makes conizance as Bayliff to Sir Robert Chichester by Damage fesant Bar to the Conisance Sir Iohn Chichester Father to the said Sir Robert seized of the Manor of D. unde locus in quo est parcel and customary Lands in Fee granted by Copy to Geo. Allen in Reversion for Life Tenant in possession dyes Geo. Allen enters and the Manor descended to Sir Robert Geo. Allen espoused the Plaintiff and dyes The Custom of the Manor was That the Wife of every customary Tenant pur vie dying in possession shall have her Widows Estate by which her Husband being dead the Plaintiff enters and was seized for Life and put in her Beasts till the Defendant took them c. Replication the Defendant confesseth the bar as far as the entry of the Husband of the Plaintiff and the descent of the Manor to Sir R. But saith the Plaintiffs Husband such a day committed Felony by stealing a Mare and was Executed for this for which the Lord entred as forfeited Demur general and Joynder Winch Ent. 968. to to 970. Allen and Branch By Winch the Woman shall not have her Widows Estate without special Custom as in Gavelkind The Father to the Bough the Son to the Plough Similes Bar RepiÌ„ Rejoynd maintenance de franktenement traverse le grant per Copie Co. Entr. 280. Similes Bar Repl. Rej. quod quer forisfecit terras per Forgery del Roll de Customes Surrej Quer alij tenentes agreaverunt ponere consuetud manerij in scriptur traverse Forgery Co. Entr. 280. Forisfacttur pleaded pur fine insolutur Surrej quod finis non fuit rationabilis Demur ind Co. Entr. 645 647. Forfeiture de terme per tenant pur ans demise pur vie Plo. 188. Simile by Fine levied Co. Entr. 691. 1 Rep. 71. Hern 25. De terme pur felo de se Plo. 254. Rast Entr. 609. De Estate de tenant pur vie per alienation in Fee Ra. Ent. 65 208 398 647. 1 Rep. 107. Vet. Intr. 30 121. Per Recovery per fraud en Formedon Ra. Ent. 643. 1 Rep. 82. Bars per franktenement Repl. quod terre sunt cust bars que sunt customary terres c. TrnsÌ„ Bar quod C. seisitus de maner grant customar terres al D. de quo descend al Def. Repl quod maner descend quer qui fuit seisitus quousque transÌ„ travers quod terres sunt customar V.B. 153. Dower Dower Bar quod terres sunt Copy-hold grant per copie issint non-tenure Repl. Tenens est Tenens ut de libero tenemento Ra Ent. 231. Repl Bar quod F. seisitus in see prist al baron Def. qui est Tenant per le Curtesie Repl terres sunt customarie travers quod F. fuit seisitus in Fee Hern 681. TrnsÌ„ Bar quod terre sunt Liberum Tenementur Def. Rej. quod terre sunt custumar fuer dimiss quer per copiam Repl. per maintenance de frank-tenement traverse grant
and Judgment pro Quer for that the Replication doth not confess or avoid nor deny the bar to the Avowry Winch Entur p 997 998 999. Foster and Woodcock Eject Bar que W. seisitus de Manor grants custumar terÌ„es in Reversion al Def. auters pur vies Repl que W. demised ceo Manor al C. R. determinable pur vie del M. ilsÌ„ assigne al M. qui grant Reversion de terÌ„es al H. pur vie Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise c. Surrej ê‘ maintenance de Replic Traverse le disseisin Demur inde Co. Ent. 184. Replev Quod Reg. Eliz. seisita de manerio unde c. concessit terÌ„as custumar R. M. Vxori ejus hered Vxoris qui sursum reddider ad usum Def. Bar quod W. prius seisitus de maner concessit terras al J. de quo descend al P. qut sursum reddidit al A. qui sursum reddidit al M. pur vie qui dimisit quer Repl quod W. ante concession al J. concessit terÌ„as al B. de quo discend al M. qui sursum reddidit Def. travers grant al J. issue inde Co. Ent. 575. Quod J. seisitus de maner unde c. concessit Def. pro vita in Reversion terÌ„as custumar dimissibil pro 2 vitis tam in Possessione quam in Reversione Hern 724. TrnsÌ„ quod C. seisitus de manerio concessit terÌ„as customar in feod al B. de quo descend Def. Repl C. fuit sisitus de manerio unde c. quod discend quer traverse quod terÌ„e sunt custum U. B. 153. TrnsÌ„ Def. justif sub tenentur custum monstroit le Estate de Copyhold durante viduitate Tomps 395. TrnÌ„s novel assignmtur Def. dicit quod pmissa tempore c. parcel custmaria dimissibilia ê‘ cop cuicunque ê‘sone ill capere volent in Talliatur seu pro vita Et quod F. G. pd fuit seisitus ad cur tentur 26 Martij dimisit cuidam W. in feodo qui dimisit Def. pro Anno virtute cujus c. done Colour Repl quod pmissa sunt liberum tenementum quer sic manutenet narÌ„ationem traverse que pmisse fuer parcel manerij de L. Rej. exitus sur traverse Keb. 465 467. In Repl Copyhold in Reversion ê‘ copiam tenentur in possessione advocat captionem pur Damage fesant custom del Manor granter Estates en possession ou reversion Hern 777. CAP. XXXIII Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not Presumptive Evidence Where Copy of a Lease is good Evidence What shall be tryed by the Jury and what by the Court-Rolls Substance found in special Verdict Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be Tryed Venue What shall be a good Evidence to prove the Custom or not THE Custom of a Manor was laid to be That if a Copy-holder hath two Sons and a Wife and dyes and the eldest Son hath Issue and dies in the Life of the Wife that the younger Son shall have the Land the Issue being upon the Custom the Jury found the Custom to be That the younger Son shall have the Land unless the eldest was admitted in his Life and paid the Lords Fine Per Curiam the Verdict is not sufficient to prove the Issue Moor n. 566. In Replevin If the Defendant justifies the taking as Damage fesant The Plaintiff in bar pleads by reason of a Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties were at Issue and it is found that part of the Beasts were Levant and Couchant Part found for the whole and part not this is found for the Defendant for the Issue is upon the whole and the contrary to it is found Trin. 17 Jac. B. Sloper and Allen. The Issue was in Kemp and Carters Case 1 Leon Case 70. p. 55. If the Lord of the Manor granted the Lands in question Per copiam rotulorum curiae Manerij praed secundum consuetud Manerij praed It was given in Evidence That within the said Manor were divers custumary Lands and that the Lord now of late at the Court of the said Manor granted the Land per Copiam Rotulorum curiae where it was never granted by Copy before Per Cur. the Jury are bound to find Dominus non concessit for notwithstanding de facto Dominus concessit per Copiam Rotulorum curiae Non concessit yet non concessit secundum consuetudinem manerij predict for the said Land was not custumary nor had the Custom taken hold of it Several Customs within several limits ought to be specially shewed It was shewed then That within the said Manor some customary Lands are demisable for Life only and some in Fee By Anderson Chief Justice He who will give in Evidence these several Customs ought to shew the several Limits wherein the several Customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for Lives only and the Lands in the other in Fee and he ought not to shew the several Customs promiscue valere through the whole Manor In an Action brought The Defendant alledgeth a Custom of a Copy-hold to be demised in Fee Tayl or for Life and made Title by a demise in Fee to himself The Plaintiff traversed the Custom and the Custom was found to be Substance found to demise in Fee or for Life but not in Tayl Per Cur. the Issue was found for the Defendant because the substance was found for him and the Tayl was but inducement Moor n. 490. Dorley and Wood. Wadsworth's Case before Judge Crawley at York Assises was upon an Intail of a Copy-hold within the Manor of W. and several antient Intails shewed in Evidence in Edward III. time and remainders limited over upon such Intails and Plaints in nature of Formedons brought there for such Remainders and Recoveries thereupon and several Issues after had taken their Admittances as of Fee simple Land as Heirs in Fee and for this cause Purchasers look at the Copies Presumptive Evidence and seeing Fee-simple in Admittances are secure the Estate is so and apply their Assurances accordingly the Jury found for the Plaintiff against this Intail and it shall be presumed the Intail hath been cut off some way when many Admittances have been in Fee simple The Custom of a Manor is Less Estate than the Custom That the Wife shall have it during her Life and on Evidence it appears that she shall have it durante viduitate this Evidence doth not maintain the Custom 4 Rep. 30. If the Parties be at Issue upon the time of the Surrender made or the Court holden The time of the Surrender or of the
c. is but a Conveyance to his Title and for that it was found that it was demisable in Fee and that it was demised unto him in Fee this is the substance of his Title and so sufficient Cro. Eliz. p. 431. Doyle and Wood. In Eject Fir. If the Jury find a special Verdict That J. S. was seized of the Manor of D. in his Demesn as of Fee in which Manor was a Copy-holder of the place where c. and commits Waste by cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters in the Manor in the place where c. for the said Forfeiture and was of this seized in his Demesn as of Fee and concludes si super totam materiam c. This is not a good Verdict because it is not found that J. S. died seized of the Manor and that this descends to the Lessor Seisin and descent as Cousin and Heir as his Cousin and Heir for it may be that J. S. aliened the Land and that the Father of the Lessor or the Lessor himself re-purchased this and that he was also Cousin and Heir to J. S. and although it be in a Verdict it shall not be intended that the Fee continued in J. S. at the time of his death and that he died thereof seized without finding it 2 Rolls Abr. 699. Cornwallis and Hammond Part found the Issue upon the whole not good In Replevin The Defendant justifies by reason of Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties are at issue and it is found that part of the Beasts were Levant and Couchant and part not this is found for the Defendant for the whole for the issue was upon the whole and the contrary is found 2 Rolls Abr. 707. Sloper and Allen. Presidents in Special Verdicts Quod Tenementa sunt custumaria dimissibilia per Copiam dimissio per Dominum ex traditione propria 1 Rep. 117. Chudleigh 's Case Sursum redditio admissio in feodo Co. Entr. 207. Simile in Tallio communis recuperatio inde Co. Entr. 206. Tenementa concessa per copiam la A. B. super vixit Co. Ent. 273. Consuetudo infra manerium de devisatione devisatio in haec verba Co. Ent. 124. Littera Attornat ' ad sursum reddend ' tenementa custumaria sursum redditio admissio superinde Coke Entr. 576 577. Et si sit sufficiens in Lege Manerium Tenementa ab antiquo discendebant 2 percenariis qui fecer ' partitionem de terris dominicalibus ac Tenementa Custumaria servitia remanser ' in communi Coke Entr. 711. Officium Seneschalli manerij execut ' per deput ' contentio inter 2 Seneschallos de Cur. Baron Tenend 9 Rep. 45. In Ejectment Jury find that the Lands are demisable by Lives in possession or reversion and that the Widow in possession held the Lands so long as she remained sole and chaste and that M. C. Widow was seized for Life durante viduitate the Lord grants the Reversion of the said Lands by Copy to R. C. the Son of M. for Life to commence after the death forfeiture or surrender of M. M. surrenders one moiety of the Premisses to R. The Lord dies discent of the Manor to C. S. his Cousin and Heir R. Tenant for Life of one moiety and M. Tenant in Free-Bench of the other moiety the Lord by Indenture demiseth to the Lessor of the Plaintiff for 99 years if he and J. and B. his Sons shall so long live to commence after the death and determination of the Estates of the said M. and R. and of the viduity of such person as shall be his Wife at the time of his death M. surrenders her moiety to R. R. dies seized of both moieties P. C. the Defendant his Wife is admitted she commits Fornication and had a Bastard Jury find the entry of the Lessor If the Lease shall commence before P. dies was the Question Winch Ent. 455. Jury found that the Messuage and Lands tempore quo c. tempore hors memory were custumary part of the Manor of B. a Prebend of S. demisable by Copy of Court Roll for one two or three Lives and that by the Custom of the Manor every Tenant for Life sole seized of any customary Estate for Life in possession may nominate one to succeed him to be Tenant to the Lord for Life and that the party nominated used to require his Admittance and pay such Fines as were taxed by the Homage Another Custom was That every customary Tenant sole seized in possession may cut Timber Trees c. and that Mason the Defendant being Copy-holder for Life 1 May 40 Eliz. named R. P. to be his succeeding Tenant They also find that Robert P. being Prebendary of the said Prebend and seized in Fee of the said Manor 20 March 40 Eliz. demised by Indenture the Manor of B. to Peter Hoskins for three Lives and by the said Indenture Bargains and Sells to him all the Timber Trees c. by which Indenture is a Letter of Attorny to make Livery and they find the Indorsement on the Indenture to this effect Midd. That J. B. one of the Attornies entred into part and made Livery Midd. That J. G. the other Attorny entred into part and made Livery The Livery made in the House of the Lord was Endorsed but it is not mentioned to be part of the Manor The Jury find the entry of Peter Hoskins and seisin for three Lives according to the Lease which aids the other Imperfections Verdict aided 1 Jan. 43 Eliz. Peter Hoskins demiseth to J. Hoskins Masons Tenement and Lands for 99 years March 3 Jac. Mason continuing customary Tenant for Life after his nomination aforesaid cut down 20 Trees off his Copy-hold upon which J. Hoskins 6 Jac. entred upon the Land and demised to the Plaintiff who enters upon Mason who re-enters and if his re-entry be lawful they find for Mason After non-suit one of the Defendants was dead this suggestion must be entred on the Roll. and if not lawful they find for the Defendant Winch Ent. 440. Rowls and Mason In Ejectment to try the Custom of E. of Copies for three Lives the Plaintiff was non-suit and one of the Defendants being dead Hales Chief Justice advised to enter a Suggestion on the Roll That one was dead or else the Judgment for the Defendant on the non-suit will be erroneous as to all 2 Keb. 832. Hawthorn versus Bawden CAP. XXXV Copy-holders relieved in Chancery or what things in respect of Copy-hold Estates are relievable in Chancery or not NOW I conceive it will not be impertinent but rather a thing well approved of to cite some Cases Resolutions and Decrees wherein Copy-holders have been relieved and what remedy the Chancellor will give in respect of Lords