groweth to perfection in this manner When a reasonable Act once done is found to be good and beneficial to the People and agreeable to their nature and disposition then do they use it and practise it again and again and so by often iteration and multiplication of the Act it becomes a Custom and being continued without interruption time out of mind it obtaineth the force of a Law So that Custom in the intendment of Law is such an Usage which hath obtained vim Legis and is revera a binding Law to such a particular place persons and things wherein it is concerned Davis's Preface to his Reports Custom then may be defined a reasonable Act iterated multiplied and continued by the People time out of mind Custom in some Cases alters the nature of Free-hold 5 Rep. 84. Pennyman's Case A fortiori of a Copy-hold Hetly p. 126 127. Turner and Hodges Consuetudo privat communem Legem Custom is a ground and need not be proved for the reason of every Custom cannot be shewed as it was said in Knightly and Spencer's Case But though Custom takes away Common Law yet Common Law corrects allows and disallows both Statute Law and Custom for if there be repugnancy in Statute or unreasonableness in Custom the Common Law disallows and rejects it as appears in Dr. Bonham's Case 8 Coke 27. Now Custom being the life and soul of Copy-hold Estates I shall in the next Chapter largely treat thereof in the full extent of it Maxims of Customs 1. A Custom shall in construction be taken strictly and shall not be extended beyond the words of it One intituled himself to a Copy-hold in this manner That within the Manor there is such a Custom that if one taketh to Wife any customary Tenant of the Manor in Fee and hath Issue by her if he over-live the said Wife he shall be Tenant by the Curtesie The Case was he married a Wife who at the time of the marriage had no Copy-hold but afterwards during the Coverture a Copy-hold descended to her It was held in Sir John Savages Case cited in Beal and Langly's Case 2 Leon p. 208. That no Tenancy by the Curtesie did accrew by the Custom which did not extend but where the Wife was a Copy-holder at the Marriage So a Custom was If a Copy-holder in Fee dyes having Issue Three Daughters the eldest shall have all The Case was A Purchaser of a Copy-hold dyes without Issue having many Sisters they shall be Câ—parceners for the Custom extends only to Daughters So Burrough English The middle Brother Purchaseth Lands and dyes sans Issue the eldest shall have it and not the youngest 2 Rolls Rep. 368. So a Custom which goes in bar or deprivation of an Estate shall be taken strictly Carter's Rep. 87 88. Yelv. p. 1. Baspool's Case Forfeiture of a Copy-hold for Life shall not forfeit the Remainder Custom was If any Copy-holder in Fee Surrender out of Court and the Cesty que use doth not come into Court to take his Copy-hold after three Proclamations then the Lord shall seize it as forfeited And if a Copy-holder in Fee surrender to the use of one for Life remainder over in Fee and Tenant for Life comes not in Court upon the Proclamations this shall not forfeit the remainder The Custom shall be taken strictly being in destruction of an Estate and it shall be intended only of a Tenant in Fee in possession and not in remainder 1 Rolls Abr. 568. Baspool and Long. And yet it shall not be taken literally always as in the common Case Custom to grant Lands in Fee-simple yet they may grant in Tayl for Life or Years but that stands upon this Rule Omne majus includit in se minus 2. Customs are to construed according to vulgar apprehension because Customs grow generally and are bred and brought up amongst the Lay-gents therefore they are called Vulgares Consuetudines and they shall be interpreted according to the most effectual operation of the Law Stiles 146. 3. Custom does not trench to things collateral to the Estate such as Entries for Conditions Copy-holder by Licence lets the Land for 60 years rendring Rent upon condition of re-entry Copy-holder surrenders to J. S. in Fee who demands the Rent which not being paid Enters His entry per Cur. is not good for Copy-hold Land is not within the Statute of Conditions nor the Surrender of such a Copy-hold such an Assignee as the Statute intends he being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but may plead his Estate immediately under the Lord Yelv. p. 222. Brasier and Beal 4. When a Custom warrants a greater Estate it warrants a less The Custom was That Copy-hold Lands may be granted to any person in Fee-simple A Grant to one and the Heirs of his Body is within this Custom So a Grant for Life or Years And a Fee-simple includes all 4 Rep. 23. The Custom is to grant for one two or three Lives A Grant to one durante viduitate is good 4 Rep. 29. Down and Hopkins Cro. El. p. 323. mesme Case 5. Custom of a Manor cannot extend out of a Manor therefore it ought to appear in Pleading That the Locus in quo c. est infra Manerium Hobart p. 286. Roberts and Young 6. Custom may enlarge a Grant farther than Common Law as Sibi suis So to one and his Heirs by Custom may be restrained to particular Heirs 2 Keb. 158.174 7. If a Custom hath a reasonable commencement it may be good And therefore a Custom for Copy-holders to have solam separalem pasturam may have a reasonable commencement by voluntary Agreement of the Lord with his Copy-holders to induce them to hold their customary Estates at Will and bestow their pains and labour in improvement Sanders 2. p. 326 327. Robins and Hoskins Vide Vaughan Rep. North and Coe good reasons for the contrary Opinion 8. What may be claimed by Prescription may be good by Custom and what may have commencement by Grant may be claimed by Prescription 2 Sanders 326. 9. A Custom never extendeth to a thing newly created If there be a Custom within a Manor That for every House or Cottage two shillings Fine shall be paid now if the Tenant make two Houses of one he shall pay no Fine for the new made House But alteration of Rooms alters not the case in Prescription 10. Custom is an entire thing and cannot be apportioned yet this Rule shall not bind-the King Vide supra 11. Consuetudo semel reprobata non potest amplius induci As Continuance makes the Custom so Discontinuance destroys it Custom What things are requisite to make a good Custom Four things are required to make a good Custom Antiquity Continuance Certainty Reason 1. Antiquity Every Custom had a beginning although the Memory of man doth not extend to it And this is one of the grand Pillars of Copy-hold Estates Therefore in
and so the Custom of Taunton-Dean That if a Copy-holder in Fee marries a Wife If the Wife survives she shall have the Fee if the Wife survives she shall have the Fee sic e converso agreed to be good Noy Rep. p. 2. There can be no Dower nor Tenancy by the Curtesie of the Copy-hold unless by special Custom 1 Anderson 292. Lease made before admittance A man may be Tenant by the Curtesie by Custom Though the Husband enter into the Land in the right of the Wife before admittance and the Wife dyes before admittance his Lease shall be good 1 Anderson 192. Ewer and Astwick It was admitted by the Court to be a good Custom That an Executor or Administrator shall have an year in the Land of the Copy-holder Custom that the Executor shall have an year in the Copy-hold against the Wife that claims her Free-Bench Noy p. 29. Remington and Cole If a Woman be Dowable of Copy-hold by Custom if the Husband after the marriage makes a Lease for years good by the Custom Tenant in Dower shall not avoid a Lease made by the Husband the Tenant in Dower shall not avoid it but it shall precede the Dower More n. 147. Holder and Fairly For he comes under the Custom as well as the Feme The Custom of a Manor was Quod quilibet tenens per Copiam poterit dimittere terras suas pur vie or in Fee or in Tayl Custom that the Wife Feme covert may Devise and that a Woman cooperta viro poterit devisare her Copy-hold Land to her Husband or to any other by the assent of her Husband Per Cur. The Custom is not unreasonable But because it was poterit devisare which is a word of justification and it should have been usi sunt devisare by way of excuse it was adjudged against the Plaintiff More n. 268. And so was one Welsh's Case in C. B. 41 El. 3 Leon. p. 81. Skipwith's Case The Custom was That Widows should enjoy during their Widow-hood Where the severance of the customary Tenants from the Manor shall not prejudice the Widow in her customary Estate The Lord Grants a customary Tenement of the Manor unto J. B. for Life by Copy and after conveys the whole Manor to W. who conveyed the Inheritance and Free-hold of B's Tenement for mony paid by B. to J. S. and others and their Heirs during the Life of J. B. the remainder to Ellen then Wife of J. B. the remainder to J. B. in Fee J. B. Grants his remainder in Fee to his Son and his Heirs The Son having Issue a Son dyed and then Ellen dyed J. B. marries Frances and dyes seized of his customary Estate Frances shall enter and enjoy her Widows Estate for it is clear That the customary Estate of J. B. remained as it was during his Life not extinct nor altered by the purchase of the Fee-simple which during his Life was in others not in him and then it follows by consequence That all customary Incidents to such a customary Estate remain whereof this is one which by Custom and Law grows of it self out of that Estate as a Descent should have done if J. B. had been a Copy-holder in Fee and the Freehold had been granted to another in Fee Hobart p. 181. Howard and Bartlet It is not in the power of the Lord to destroy Widows Estates By the severance Incidents to the Tenancy are not destroyed but Incidents to the Seigniory are The Law vests the Estate in a Woman that is to hold durante viduitate before admittance The Custom is That a Woman shall hold durante viduitate she shall make a Lease before admittance for in that case there is no Fine due to the Lord and the Law vests the Estate in her Noy 29. Remington and Cole Hobart 181. Vide Admittance The Lord Enfeoffs the Copy-holder this destroys Free-Bench A Custom of a Manor was found to be That if a Copy-holder in Fee dyes seized his Wife should hold it during her Life as Free-Bench the Lord Enfeoffs the Copy-holder who dyed seized Per Cur. she shall not hold her Free-Bench aliter if the Lord had enfeoffed a Stranger of that Land yet the Land remained Copy-hold and the Custom is not taken away Crok Jac. 126. Lashmer and Avery Damages recovered in Dower A Woman recovered Dower in the Lords Court and 40 l. because her Husband dyed seized and she brought Debt for the Damages in the Kings-Bench Per Cur. The Action lyes not because the Court-Baron could not hold Plea nor award Execution of 40 l. Damages although the Damages were there well assessed More n. 559. If a Feme Copy-holder holds the Land durante viduitate and then takes Husband the Lord shall have the Corn Oland's Case Vide Emblements The Widows customary Estate is due to her Divorce though there was a Divorce a mensa thoro Hobart p. 181. Howard and Bartlet Tenant of a Copy-hold for Life Whether the Widow attaint for Felony shall have her Estate of viduity in which the Custom was That the Wife should have her Widows Estate and the Husband was attaint of Felony and Executed The Question was whether she should have it Winch not without a special Custom Winch Rep. 27. Allen and Branch That the Wife shall not have her Dower The Wife to claim her Dower within a year and day except she claim it within a year and a day it s said to be a good Custom 3 Leon. p. 226. Pleadings Custom Quod Uxores habeant Tenementa custumaria durante viduitate sua Dyer 192. 3 Br. 403 476. Hern 73. Quod Uxores Tenen custumar in feodo habeant pro vita Tenementa unde viri obierunt seisita Et si viri dimiser tunc revers reddit Cok. Ent. 123. CAP. VII Custom as to Timber Woods and Vnder-Woods and what Prescription by a Copy-holder to cut Trees shall be good or not TEnant by Copy of Court Roll cannot by the Common Law take Trees for House-bote Hedge-bote and Cart-bote c. as Tenant for Life or Years may do who have an Estate certain but a Copy-holder by special Custom may do it Cro. El. p. 5. Lord Mountague against Sheppard Where a Custom was alledged to be That every Copy holder may cut down Trees at his pleasure this Custom is against Common Law Winch p. 1. If a Custom be That a Copy-holder may not cut down Trees it is good or not good with this difference If he be a Copy-holde of Inheritance such a Custom is good but if he be a Copy-holder for Life its noâ— good 1 Bulstr 150. Earl of Northumberlanâ— against Wheeler The Tenant prescribes to câ—â— and dispose all the Trees upon his Tenancy its an ill Prescription Aliter of a Copy-holde of Inheritance Noy p. 2. So it is adjudged it 1 Rolls Abr. 650. Glascock and Peche It s a good Custom Copy-holder in Fee
Manor after the Grant made hath stablish'd and fixed this firm to the Grantee So if the Copy-holders for Life used to have Common in the Lords Wastes or Woods and the Lord aliens the Wastes or Woods to another in Fee and after grants certain Copy-hold Lands or Houses for Lives such Grantees shall have Common of Pasture or Estovers notwithstanding the Severance for the Title of Copy-holder is paramount the Severance and the Custom unites the Common or Estovers which are but accessories and incidents so long as the House and Land being the principal is maintained by the Custom which customary Appurtenants are not pertaining to the Estate of the Lord for he is Owner of the Free-hold and Inheritance of the whole Manor but they are appertaining to the customary Estate of the Copy-holder after the Grant made 8 Rep. 63. Swain's Case Voluntary Grants made by Feoffee of Manor on Condition good Feoffee of a Manor upon Condition grants Land by Copy and afterwards the Manor becomes forfeited and the Feoffor entreth yet the Copy-hold Estate remains untouched so if Feoffee of a Manor on Condition to Enfeoff a Stranger and the next day makes a voluntary Grant by Copy this shall bind Coke Cop. Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio Nay though the Estate of the Lord in the Manor by Relation happen to be void ab initio yet if he grant by Copy during the continuance of his Interest it is good So Copy-holders Estates granted before a Divorce causa praecontractus shall be good So if a man espouseth the Lady of a Manor under the Age of consent and after she disagreeeth though the Marriage by relation was void ab initio yet Copy-holds granted before disagreement shall never be avoided So by Popham in Rowse's Case Owen 28. If a Manor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet such Copies of Surrenders are good Aliter where such Devisee makes new or voluntary Copies If the Lord of a Manor commits Felony or Murder and Process of Outlawry is awarded against him after the Exigent he granteth Copyhold Estates according to the Custom and then is Attainted these Grants are good though by relation the Manor was forfeited from the time of the Exigent awarded So if the Lord had been Attainted by Verdict or Confession If the Lord of a Manor acknowledgeth a Statute and then granteth Lands by Copy Grant after Stat. acknowledged and the Manor extended yet shall be good and after the Manor is delivered to the Conusee in Extent the Grant cannot by this be impeached Lease for years is made of a Manor and to be void upon breach of a Condition Condition is broken and Lessee before entry of the Lessor grants Estates by Copy these Grants shall never exclude the Lessor for upon breach of the Condition the Lease is void But in case of a Lease for Life or Grant in Tayl or Fee of the Manor on such Condition the granting Estates by Copy before Entry of the Lessor c. may be good for before his Title be executed by Entry the Tenant c. hath a lawful Interest to grant by Copy Coke Cop. p. 100 101. Sect. 34. But if a Parson before Induction grant Lands by Copy being parcel of a Manor which is Glebe Land this admitting binds not though he be afterwards Inducted Ibid. Tenant in Dower shall not avoid such Grant If the Lord of a Manor taketh a Wife and after that granteth Copy-hold Estates according to the Custom and dyeth and the Feme hath this Manor assigned to her in Dower yet she cannot avoid these Copy-hold Estates because the Copy-holders are in by a Title paramount to the Feme viz. by Custom Coke 8 Rep. 63. b. Swain's Case But if the Lords Heir make such assignment of Dower she may avoid them But in all these Cases before put observe these three Rules 1. These Grants must be according to the Custom of the Manor and Rents and Services customary must be reserved 2. Though it is not material what Estate or Interest the Lord hath Tenant at sufferance Grants c. shall not bind yet it must be an Estate or Interest and therefore Tenant Pur auer vie of a Manor is Cesty que vie dyes the Tenant continued possession of the Manor and held Courts and made voluntary Grants by Copy Per Cur. This shall not bind the Lord for he was but Tenant at sufferance who had not any Interest and so he was a Disseisor of the Manor More n. 369. Rouse and Artois 3. As to the Lords Grant of the Copy-hold Estate in respect of his Estate in the Copy-hold there the quantity of the Lords Estate is to be regarded for if a Copy-holder in Fee surrender to the use of the Lord for Life the remainder over to a Stranger or reserving the reversion to himself if the Lord will grant this by Copy in Fee whatsoever Estate the Lord hath in the Manor yet having but an Estate for Life in the Copy-hold no larger Estate shall pass than he himself hath Coke Cop. 96. What acts of the Lord in granting Copy-holds are not confirmed by Custom but only strengthned by the Power Interest and Authority of the Lord have no longer continuance than the Lords Estate continueth Therefore if a Tenant for Life of a Manor granteth a Licence to a Copy-holder to alien and dyeth the Licence is destroyed and the power of Alienation ceaseth Now as to the Quality of the Lords Estate he must be Legitimus Dominus he must have a lawful Estate in the Manor The Rule in Cokes 4 Rep. Clark and Pennyfeather's Case is universally true Grant by one that hath a tortious Title not Good If a Disseisor or Feoffee of a Disseisor or any other who had a tortious or defeazable Estate or Interest subject to the Action or Entry of another hold Court and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold such voluntary Grant shall not bind him that hath right when he hath re-continued the Manor by Action or Entry for to this intent the said Custom shall be understood of a Lord who hath a lawful Estate or Interest A Grant upon an usurped Title shall never bind the right Owner but that by Action or Entry he may avoid them for the Law will not support a Custom which shall work or tend to the disherison of the right owner If the Heir of a Disseisor who comes in by descent Grants any Copy-hold Estate it may be avoided by the Disseisee So of a Feoffee of a Disseisor who comes in by Title If Tenant in Tayl of a Manor discontinueth the Tayl and after the discontinuance granteth Copy-hold Estates and dyeth now the Discontinuee comes in under a just Title and shall enjoy against all the World during the
Estate Tayl Executed or rests in Contingency its Estate Tayl executed in the Wife but by the Reporter it seems it is not executed but rests in contingency the Case as to that is but this A man gives Lands to the Use of his Wife for Life for as to this the Estate of the Stranger is not material and after to the Use of the Heirs of the Body of the Husband and Wife begotten for had it been to the Use of the Wife for Life the Remainder to the Use of the Heirs of the Wife by the Husband begotten it had been no Question he which is to have this ought to be Heir of both their Bodies which cannot be before the death of both and then it may so happen that this Remainder shall never take effect for if the Wife dye who had the particular Estate during the Life of the Husband as it was here her Heir of her Body cannot take it because he is not Heir of the Body of the Husband also and then he not being capable of the determination of the particular Estate he shall never have it and where an Estate rests upon Contingency this may not be executed before the Contingency happen Per Cur. when the Wife and the Estranger are admitted in Fee this doth not alter the Estate but they shall be seized according to the Surrender And when Dixon surrenders his moiety to the Use of the Husband Severance of a Joynture this was a severance of the Joynture between him and the Woman and the Husband aliening the whole to the Defendant he had a moity for the Life of the Wife defeazable by the Wife and the other moiety for the Life of Dixon and after when the Wife dyes the Estate of Pannel is determined as to one moity and on this the Remainder ought then to have vested but the Plaintiff being Heir of the Body of the Wife begotten by the Husband Remainder destroyed because not vests on the determination of the particular Estate cannot take the Remainder which was limited to the Heirs of the Body of the Baron and Feme during the Life of the Husband because non est haeres viventius and he which takes this Remainder ought to be Heir of both their Bodies or otherwise he shall not take it at all and therefore the Remainder is destroyed as to this moiety As to the Admittance of him in Remainder Vide Admittance Note The possession of a Lessee for years is the possession of him in Remainder yea so as to make a possessio fratris Modern Rep. 102. Blackburn and Greaves Where the Heir shall be in by Descent or Purchase It is a common diversity in our Law where a Man surrenders to the Use of himself for Life and afterwards to another in Tayl the Remainder to the right Heir of him who surrendreth there his Heirs shall have it by descent otherwise where the Surrenderer hath not an Estate for Life or in Tayl there his Heir shall enter as a Purchaser To illustrate this by a Case or two A Copy-holder surrendred his Lands to the Use of a Stranger for Life and afterwards to the Use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the Use of a Stranger in Fee and dyed and Tenant for Life dyed the right Heir of the first Copy-holder entred Per Coke nothing remained in the Copy-holder upon the first Surrender but the Fee is reserved to his right Heirs for if he had not made any second Surrender the Heir should be in not by Descent but by Purchase 1 Leon. Allen and Palmer Heir A. seized in Fee of a Copy-hold surrenders this to the Use of his last Will and after by his last Will devised it to B. for Life and after his death to the Heir of his Body begotten for ever Per Cur. The word Heir being limited to the Body of B. is nomen collectivum and all one with the word Heirs and so B. had a Fee executed and his Heir shall have this by Descent and not by Purchase And it is not like to Archer's Case 1 Rep. Where the Devise is to B. for Life and after to his Heir Male and to the Heirs Males of such Heir Male for there the Inheritance is limited to the Heir Male of the Body of such Heir Male Stiles 249 271. 2 Rolls Abr. 253. Powsly and Lowdal Not a good Remainder within the Custom A Copy-hold which by Custom was demisable for three Lives was demised to one for Life the Remainder to such a Wife as he shall marry and to the first Son of his Wife Per Cur. These two Remainders are void but the Estate for his Life was good More n. 1922. Webster and Allen Vide supra Of a Surrender to the Use of one's last Will and how to be construed A man cannot devise Copy-hold Estate to transfer it by his last Will only but he must Surrender it in Manus Domini to the Use of his last Will and then he may devise it to whom he pleaseth but its apparent that nothing passeth by the Will but all by the Surrender and the Will is only a Declaration of the Uses of the Surrender 1 Bulst p. 200. Semain's Case But if a Copy-hold he devised without Surrender Decreed it cannot be executed in point of Interest but only by Decree in Chancery 2 Keb. 837. Harrison and Grosvener But a Custom that a Copy-holder shall Devise his Land is not good without Surrender p. 35 Eliz. E. R. Rot. 334. Wrot's Case A man seized of Copy-hold Lands devised a certain parcel of them to his Wife for Life A general Surrender restrained by the Will the Remainder to his Brother and his Heirs and afterwards in presence of three persons of the Court said to them I have made my Will and have appointed all things in my Will as I will have it and afterwards he said And here I Surrender all my Copy-hold Lands into your Hands accordingly Per Cur. The Surrender is restrained by the VVill and not all his Copy-hold Lands but only so much as are mentioned in the Will pass to the Wife 3 Leon. p. 18. Copy-holder in Fee surrenders into the Hands of a Tenant according to the Custom to the Use of a Will which he said he would make and leave in the Hands of his Partner Moss Moss dyes and after the Copyholder makes his Will and recites the Surrender it seems that the Devisee shall have the Lands for the words Words of Demonstration and not of restraint That he would leave in the Hands of Moss are words of demonstration and not of restraint and then it is a ground in our Law When an act is to be done with referrence to another thing which is impossible illegal or variant the act shall stand and the reference shall be void Lit. Rep. p. 23. Littleton against Eaton Let us see now when a man hath surrendred to the Use
Admittance it being entred thus Compertum est per homagium c. and not as its usual dat Domino de fine fecit fidelitatem admissus est inde tenens at the end of Popham p. 127 128. Rawlinson and Green Of Admittances upon Surrender The nature of it will be Explained by two or three Rules I. The surrender of a Copy-hold to J. S. hath no effect till J. S. be admitted Tenant Till admission the Tenant hath no Estate therefore if J. S. before he is admitted surrenders to J. B. who is admitted this avails nothing to J. B. for J. S. himself had nothing and so can pass nothing and the Admittance of his Grantee shall not be taken by implication as Admittance to himself for the Admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by it self and in such case the Right and Possession remains still in him who surrendered and descends to his Heir he to whom the Copy-hold is surrendred comes in as a Purchaser and his Copy is his Evidence by the Custom and till he is admitted he can be no customary Tenant and therefore can transfer no right to another Yelverton 145. Wilson and Weddel 1 Brownlow 143. Aliter in Case of Descent Vide infra The Admittance of a Copy-holder is compared to the Induction to a Benefice which gives Possession At the end of Popham p. 127 121. Rawlinson and Green That Case was Copy-holder surrendred his Copy-hold Estate to the Use of another which was presented at next Court and found by the Homage and he to whose Use the Surrender was made was there in Court accepted by the Steward and a Copy by him granted unto him afterwards he to whose Use this Surrender was made surrenders the same again to the Use of another which was presented and a Copy granted to him and he accepted as a Copy-hold Tenant but no Admittance Entred as Cepit de Dom. admissus est inde tenens c. Per Cur. He to whom the first Surrender was made had no Estate in him before Admittance and whether and how far he might transfer this Interest Curia dubitav and whether what was done to the second Surrendree is not an assent by the Lord to the first Surrenderer It was granted That if the Steward accepted a Fine as of a Copy-holder it amounted to an Admittance 3 Bulstr 237. mesme Case II. Surrenders of Copy-holds are not to be likened to Surrenders at Common Law for if a Copy-holder in Fee surrenders to the Use of another for Life nothing more passeth out of him than shall serve the Estate limited to the Use and he which made the Surrender shall not pay any Fine for re-Admittance to the Reversion for this continues always in him 9 Rep. 107. Margaret Podgers Case III. The Lord hath a bare customary power to admit secundum formam effectum sursum reddit Therefore if there be any variance between the Admittance and Surrender either in the Person or the Estate or in the Tenure its void c. The Lord doth only transfer an Estate according to the Surrender Where the Lords Admittance of a Copy-holder in other manner than agrees to the Surrender shall be good and how it shall be construed and enure Admittances as to Limitations alter not the Estate for he is in by force of the Surrender If J. surrender to the Use of J. S. and the Lord admits J. N. this Admittance is wholly void and yet the Lord may afterwards admit J. S. according to his Authority but had he admitted J. S. and J. N. joyntly then the Admittance had been void for the one and good for the other Co. Cop. 127. If a man surrender to the Use of J. S. and J. D. for their Lives the Remainder over to another and J. S. and J. D. are admitted in Fee yet this doth not alter their Estate but they shall be seised according to the Surrender 1 Rolls Rep. 317. Lane and Pannel Surrender is upon Condition the Presentment is absolute and the Admittance is absolute the Presentment was void But the Surrenderors Release to Cesty que use shall make his Estate good Vide supra 4 Rep. Keit and Quinton If the Lord after Surrender grants to Cesty que use and to Stranger all shall enure to Cesty que use or if he admit the Cesty que use upon a Condition the Condition is void for after Admittance he is in by him that made the Surrender So if a Copy-holder surrender to the use of another pur vie and the Lord admit him to hold to him and his Heirs yet Cesty que use had but an Estate for Life for he is in after Admittance by force of the Surrender 4 Rep. Westwick and Wier Note A Copy-hold Estate cannot be surrendred to another by an Attorny without Deed but one may be admitted to a Copy-hold Estate by Attorny without Deed Stiles Pract. Reg. 74. By whom Admittance upon Surrender may be made and shall bind By those that have defeasible Titles Admittances made by Disseisors Abators Intruders Tenant at sufferance or others who have defeizable Titles are good against them who have Right because these are lawful Acts and they were compellable to do the same Co. Lit. 58. b. If Disseisor of a Manor accept a Surrender of a Copy-hold of Inheritance to the Use of another and his Heirs and he admits Cesty que use accordingly this is good and shall bind the Disseisee p. 40 Eliz. B. R. Martin and Rieve 4 Rep. 24. If A. Copy-holder for Life surrender to the Disseisor of a Manor to the Use of another for the Life of A. and the Disseisor admits him accordingly this shall bind the Disseisee ibid. Martin's Case But without Admittance it shall not bind Surrender by Dom. pro tempore and his Estate determines before Admittance If the Lord pro tempore of a Copy-hold Manor be Lessee for Life or for Years Guardian or any who had particular Interest or Tenant at will of a Manor accept a Surrender and after before Admittance the Lessee for Life dyes or the Years Interest or Custody or the Will is determined although the next Lord comes in paramount the Lease for Life or for years the Custody or the particular Interest or Tenancy at Will yet he shall be compelled to make Admittance according to the Surrender 17 Jac. Lord Arundel's Case Co. Lit. 59. b. Trin. 1 Jac. Rot. 854. Shopland and Ridler By the Deputies Servant admitting no Judicial Act. The Deputy of a Steward commands H. his Servant to keep Court and grant Land and Admit Per Cur. it is good for the taking a Surrender granting Lands by Copy admitting a Copy-holder is not any judicial Act for there need not be any Suitors there who are Judges 1 Leon. 288. Lord Dacres's Case What amounts to an Admittance If a Copy-holder in Fee surrender to the Use of another
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
of Fines the Plaintiff shewed divers Court Rolls of Admittances upon Surrenders and that the Fines taken by the Lord were not certain but sometimes one sometimes another Per Curiam To prove a Custom for uncertainty of Fines and not to be certain two years Rent there ought to be shewed Court Rolls Fines upon Discent and Purchase and that in Cases of Descents and that upon such Admittances they used to pay two years Rent the proof ought to be in case of Descents for in case of a Surrender or Purchase the Lord may take what Fine he will But such Fines are no proof to prove the taking uncertain Fines by the Custom but the same ought to be in cases of Descents Of Fines reasonable Excessive Fines how to be determined But where the Fines are uncertain yet the Lord cannot exact excessive Fines and if the Copy-holder deny to pay it it shall be determined by the Opinion of the Judges before whom the matter depends Hubbard and Hamon's Case cited 1 Brownl 186.4 Rep. 27. mesme Case Co. Lit. 59 60. To this purpose is Denny and Lemon's Case Hobart p. 135. Copy-holder brought Trespass against his Lord. Defendant pleads he had admitted the Copy-holder and had assessed a Fine of twenty Nobles and had appointed him to pay it to his Bayliff at his House within the Manor three Months after and alledged he had not paid it The Plaintiff demurs Whether in pleading the reasonableness of the Fine must be averred for that the Lord had not averred the Fine was reasonable But Per Cur. the Lord is not bound to aver it but it must come on the Copy-holders side to shew the circumstances of the Case to make it appear to the Court to be unreasonable and so to put it upon the Judgment of the Court for the Fine in Law is arbitrary and is due to the Lord of common Right and it is only in point of excuse to the Tenant if it be unreasonable and the Court shall judge the unreasonableness of it The Copy-holder if he be Defendant may plead not Guilty and then it shall come in Evidence whether the Fine were reasonable or not and so is the Opinion of my Lord Coke Comment upon Lit. Sect. 74. The reasonableness saith he shall be discussed by the Justices upon the true circumstances of the case appearing unto them and if the Court where the Cause dependeth adjudgeth the Fine exacted unreasonable then is not the Copy-holder compellable to pay it for all excessiveness is abhorred in the Law It was argued in Wheeler and Honor's Case That all Fines are reasonable unless the contrary appear 1 Keb. 154. What Customs are good as to payment of Fines Of Fines due by the Copy-holder to the Lord some be by change or alteration of the Lord and some by change or alteration of the Tenant If the Fine be due by the alteration of the Lord such alteration must be by act of God Fines due by the alteration of the Lord. for if the Lord do alledge a Custom within his Manor to have a Fine of every one of his Copy-holders at the alteration or change of the Lord of the Manor be it by alienation demise death or otherwise this Custom is against the Law as to the change of the Lord by the act of the Party for by that means the Copy-holders should be oppressed by the multitudes of Fines by the Lords own act but when the change groweth by the act of God there the Custom is good By the act of God as by the death of the Lord Co. Lit. 59. b. Due by the alteration of the Tenant But it is a good Custom that the Copy-holder had used to pay a Fine upon every alteration of the Tenant either by the act of God or by the act of the Party Co. Lit. 59. b. Armstrong's Case The Fine is to be assessed by the Lord. The Fine by whom to be assessed But in some places the Custom is That the succeeding Copy-holder shall compound with the Lord for his Fine and if he cannot compound then the Homage of the Manor shall assess the Fine as was the Case of Ford and Hoskins Cro. Jac. 368. Custom not to pay a Fine till full Age. The Custom is not to pay a Fine till one come to Age it s a good Custom 3 Keb. 90. agreed to in Champian and Atkinson's Case Fines as to Admittances to Reversions or Remainders Copy-holder in Fee surrenders to the Use of another for Life when Lessee dyes he shall not pay a Fine for his Admittance to the Reversion for this continues always in him 2 Rep. 107. Margaret Podger's Case If Copy-holder in Fee surrender to the Use of one for Life the Remainder to another for Life the Remainder to another in Fee there is but one Fine due for the particular Estate and the Remainders are but one Estate 1 Rolls Abr. 505. What refusal to pay a Fine shall be a Forfeiture or not If the Fine be uncertain Notice to be given if the Fines be uncertain notice must be given before there be a Forfeiture aliter if the Fine be certain but yet Denny and Lemon's Case is good Law Time and place must be ascertained and refusal must be proved 1 Keb. 154. 4 Rep. 27 28. The Lord assesseth a Fine of 12 l. to be paid by a Copy-holder Tendring the Fine certain though not the Fine assess'd is no forfeiture and appoints it to be paid at his Capital Messuage of the Manor three Months after and the Copy-holder pretending the Fine to be certain viz. two years Quit-Rent offered at the day of assessing the Fine according to the Rent for two years but at the day appointed for the payment thereof cometh not thither to excuse his non-payment nor makes any other refusal Per Cur. this is in Law a forfeiture of his Copy-hold but if he had come at the day assigned him for the payment and had then tendred the two years Quit-Rent being the Fine certain though not the Fine assessed it had been no forfeiture Cro. Jac. p. 617. Gardner and Norman It is adjudged in the Case of Dalton and Hammond More n. 851. If the Fine be certain the Tenant is to bring it with him to the Court and pay it before Admittance and if he be not ready to pay it it s a Forfeiture aliter of the refusal to pay an excessive Fine Where a Copy-holder hath divers several Lands For every several Tenure several Fines severally holden by several Services by Copy there the Lord may assess and demand Fines severally for every parcel which is so severally held for the Tenant may refuse to pay a Fine for the one and so forfeit this and yet pay the Fines for the others and for every several Tenure the Lord ought to demand and assess a several Fine as in Tavernor and Cromwel's Case 4 Rep. 28. Hobart and Hamond's Case How the
the Surrender and the devise only cannot transfer for such customary Estate 3. After the severance the Copy-holder shall pay his Rent to the Feoffee and other Services which are due without Admittance as Harriot c. But not Fine or Suit of Court After severance Forfeitures continue But such Forfeitures as were Forfeitures before the Severance as Feoffment Lease Waste are Forfeitures after 4 Rep. 24 25. In Lee and Boothby's Case Cro. Car. 521. The Question was If a Copy-holder in Fee surrender to the Lord of the Manor his Copy-hold Estate and the Lord makes a Lease for years of the Manor and of the said Copy-hold by the name of his Tenement called H. whether it was a determination of his Copy-hold Per Curiam it is not because when he lets the Manor it is included as parcel of the Manor the Manor being demised includes the Copy-hold as parcel of the Manor and the naming of the Copy-hold is surplusage But if he though he had been but Dominus pro tempore or for half a year though by parol had made a Lease for years of the Copy-hold by it self that had destroyed the Copy-hold for it was then during that time severed from the Manor and so could never after be demised by Copy Lease for years of a particular Copy-hold by name together with the Manor by the King hath not so extinguished that the Copy-hold though by the surrender of it it is parcel of the Manor in the King but that after such Lease the Patentee of the Reversion may regrant it as Copy-hold 1 Keb. 720. Act of the Lord with consent of the Tenant where it destroys it or not But the act of the Lord with consent and acceptance of the Tenant will destroy the Copy-hold otherwise it shall not prejudice the Copy-holder But in some sense the Copy-holder may assent and yet not be prejudiced as in Howard and Bartlet's Case Hob. 181. The Custom was Copy hold Estate may remain to some purpose notwithstanding the severance from the Freehold if Copy-holders for Life dye seized their Wives shall have this during their Widowhood and A. being Copy-holder for Life the Lord conveys the Freehold and Inheritance of the Copy-hold of A. by the procurement of A. to J. S. a Stranger and his Heirs during the Life of A. Remainder to B. the Wife of A. for Life Remainder to A. and after A. grants the Remainder to W. his Son after this B. the Wife of A. dyes and A. marries C. and dyes seized now though here appears the Copy-holders privity and consent in that he takes the Remainder in Fee and grants it over to his Son that it should be destroyed and though this Copy-hold Estate was destroyed before her marriage yet the viduity of C. is not extinguished for the Freehold being in J. S. during the Life of A. the Estate of A. was not so extinct but the Custom shall continue quoad her The Copy-hold Estate here remains notwithstanding the severance from the Free-hold and though the Remainder was in him and he granted it over yet he lived and dyed a Copy-holder Hobart p. 181. Howard and Bartlet 1 Rolls Abr. 510. Cro. Jac. 573. the same Case by the name of Waldee and Bartlet Copy-holder in Tayl accepts a Feoffment from the Lord it destroys not the Copy-hold so as to conclude his Issue Carters Rep. 6 7. 2. By the act of the Copy-holder If a Copy-holder accept a Lease for years of his Copy-hold Acceptance of a Lease by this his Copy-hold is destroyed whether it be immediately from the Lord or mediately as was Lane's Case 2 Rep. 16. b. The King seized of a Manor in Fee grants Copy-hold Lands parcel of this Manor to another in Fee by Copy of Court Roll according to the Custom of the Manor And after the King by his Letters Patents under the Exchequer Seal makes a Lease for 21 years to another of these Lands the Lessee grants his Term to the Copy-holder afterwards Queen Elizabeth reciting the Lease for 21 years grants the Reversion in Fee the 21 years expire and the Patentee of the Reversion enters upon the Copy-holder his Entry adjudged good for Per Cur. by the acceptance of the Term by the Copy-holder the Copy-hold Estate was determined as well as if the Copy-holder had immediately accepted a Lease for years of his Copy-hold The reason of the Extinguishment the reason is the same in both Cases A Copy-hold Interest and an Estate for years of one and the same Land may not stand together in one and the same person at one time without confounding the lesser and if one of them ought to be determined it ought to be the Copy-hold Estate Also they are of divers natures and so cannot stand together in the same person the Estate at the Common-Law cannot drown it being the more worthy than the customary Estate and the customary must Vide mesme Case in Anderson 1 Rep. 191. and 1 Leon. 170. So it was resolved in Hide and Newport's Case A Copy-holder in Fee took a Lease for years of the Manor the Copy-hold is extinct for ever and not only during the Lease Moor Rep. n. 330. Acceptance to hold the Land by Bill and not by Copy Copy-holder accepts to hold his Land by Bill under the Lords Hand and not by Copy this determines the Copy-hold 1 Anderson 199. Colman and Bedil If a Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed 4 Rep. 21. French's Case But such Lessee may re-grant the Copy-hold to whom he will for the Land was always demised and demisable If the Lord make a Lease for Life to the Copy-holder by parol this shall confound the Copy-hold if Livery be made otherwise not Latch 213. If there be a Lease for years of the Manor and one of the Copy-holders doth purchase the Reversion in Fee by this the Copy-hold is destroyed and the Lessee of the Manor shall oust the Copy-holder and hold the Land for the time Calth p. 97. By the Tenants Release to the Lord. By the Copy-holders Release to the Lord. If a Copy-holder releaseth to his Lord that extinguisheth his Copy-hold although it be contrary to the nature of a Release to give possession Hutton p. 81. Or to a Purchasor The Lord sells the Freehold interest of a Copy-holder of Inheritance unto another so as it is divided from the Manor and afterwards the Copy-holder releaseth to the Purchaser by it the Copy-hold Interest is extinct but if the Lord be disseised and the Copy-holder releaseth to the Disseisor Nihil operatur 1 Leon. 102. Wakeford's Case Cro. Eliz. 21. For if a Copy-holder is ousted and so the Lord is disseised and the Copy-holder releaseth all his right to the disseisor and dyes his Heir Enters and brings an Action of Trespass against the disseisor who pleads his Frank-tenement Per Cur. the Release is void the disseisor not being admitted
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
surrendred all the three Lives and though it was not a Copy-hold in Fee yet it was decreed That the Agreement should be performed and that the Defendant do Surrender to the Plaintiffs Use and an Injunction for quiet enjoyment A Woman Copy-holder for Life took an Husband and the Reversion of the said Copy-hold was granted to three viz. A. B. C. cum acciderit by Surrender or Forfeiture for their Lives successive according to the Custom The Husband doth Surrender to the Use of A. for Life to whom the Lord doth grant a Copy accordingly A. and B. dye and the Opinion of the Court was That C. hath no right to be admitted by the Law nor in Conscience for that after the death of the Husband the Wife may enter and have a Plaint in nature of a Cui in vita contradicere non potest and during the Husbands Life the Lord may have it in the nature of an Occupancy But the Case did proceed farther viz. That the Husband and Wife were willing to release all the Right of the Wife to the surviving Reversioner The Lord Decreed to hold a Court. and the Lord would not receive it nor hold a Court But it was decreed That the Lord should hold his Court and accept their Conveyance or else avoid the Possession thereof Dyer 246. a. Copy-hold Estate in some cases not to be passed but by Decree Where the Lord grants the Reversion of the Copy-holds the Tenant cannot Surrender there being no Dominus servitiorum as the Custom will warrant and he cannot pass his Estate any way but by a Decree in Chancery and this will bind the person only 4 Rep. p. 25. in Murrel's Case vide supra Fines and Rents arrear not relieved after Sale of the Manor Copy-hold Tenant in Fee surrenders to the Use of one for Life Remainder to B. in Fee Tenant for Life dies and B. pays no Fine for his Admittance but after dies and this descends to his Son and after his Son surrenders to the Use of J. S. in Fee and no Fine paid for it and also the Rents for divers years are behind and after the Lord grants the Manor in Fee to J. B. and after sues in a Court of Equity for the Fines and Rents due before the Sale of the Manor and alledgeth in his Bill That the Copy-holder had Free Land intermixed with the Copy-hold Land so that he could not know where to Distrain for it yet he shall not be relieved in Equity for this for it is against a Maxim in Law for as much as by his own Act he had destroyed his Remedy P. 10 Car. B. R. Serjeant Hicham Plaintiff and Finch and Block Defendants and a Prohibition was granted to the Court of Requests where the Suit was Gold versus Dore Martis 23. Oct. 2 Jac. The Plaintiff delivered to the Defendant an 100 l. to buy a Copy-hold in the Defendants Name but to the Plaintiffs Use because there were differences between the Lord of the Manor and the Plaintiff so as the Plaintiff had no hopes to prevail for himself and when the Copy-hold should be obtained then the Trust was That the Defendant should Surrender the same to the Use of the Plaintiff The Defendant accordingly bought the Copy-hold Trustee refusing to surrender according to his Trust not relieved and took it in his own name and his Childrens but afterwards would not surrender it to the Use of the Plaintiff notwithstanding the same was bought with the Plaintiffs mony for this the Plaintiff Exhibited his Bill in Chancery and this appearing to be the true state of the Case my Lord would not relieve the Plaintiff because he said he would never ground a Decree upon a Lye a Falsity it appearing to him that this packing was used to thrust a Tenant upon the Lord whom he liked not and so dismist the Cause Tracy versus Noel M. 2 Jac. Copy-holder in Fee takes a Lease the Manor is sold Copy-holder not relieved though the Purchaser had notice A Copy-holder of Inheritance took a Lease for years of his Copy-hold from the Lord of the Manor the Lord sold his Manor to J. S. who had notice of this Copy-hold of Inheritance yet would not this Court relieve the Copy-holder his Lease being ended for by Law his Copy-hold Estate is determined Robes Purchased the Inheritance of a Copy-hold in the Name of B. and another in Trust B. surrendred his moiety to the Use of his own Son and the other died seized The Son of B. and the Heir of the other for mony sold the Copy-hold to C. for 50 l. being of the value of 80 l. Robes sued the Son of B. and the Heir of the other and C. in Chancery for the 80 l. It was decreed That A. should recover this 50 l. only from B. and the Heir of the other No Recompence for the over-value of an Estate because no Fraud and C. should be discharged of it and hold it in peace But if notice had been proved in C. Robes shall have the Land and no recompence for the over-value was given against the Vendors because no Fraud Moor Rep. n. 745. Kobes Bent and Cock's Case Copy-hold devised without Surrender executed by Decree in Chancery A Copy-hold devised without Surrender it cannot be executed in point of Interest but only by Decree in Chancery by a Concessum in 2 Keb. 837. Harrison's Case A Copy-hold granted out of a Manor confirmed Court Rolls produced A Copy-hold granted at a Court kept out of the Manor confirmed against the Lord who made it Tothil 107. Mark contra Suliard In Corbet and Peshal's Case 12 Jac. it was Ordered That Court Rolls should be brought and shewed to Councel to shew which is Copy-hold and which is Free-hold Composition Decreed Sterling's Case a Composition formerly made between Lords and Tenants Decreed to bind a Purchasor or an Heir 9 Car. Bill in Chancery to reverse a Faux Judgment in the Lords Court If an erroneous Judgment be given in a Copy-hold Court of a common Lord in a Formedon a Bill may be exhibited in Chancery in nature of a Faux Judgment to reverse it Pateshull's Case in Scaccario 1 Rolls Abridgment 373. Admission by Letter of Attorny Copy-holder ought not to be admitted to a Copy-hold Estate by Letter of Attorny for he ought to do Fealty at the time of his Admittance which must be done in person 21 Car. 2. Flyer and Hedgingham Fines certain or not having been tryed at Law no farther Relief here Smith contra Sallet 24 Car. 2. Fines of Copy-holders whether certain or arbitrary it having been tryed at Law and in two Tryals Verdict for Fines certain This Court would not relieve the Plaintiff other than for the preservation of Witnesses and so dismist the Plaintiffs Bill it being to have an Issue directed to try whether certain or not Morgan versus Scudamore 29 Car. 2. The Lord limitted to a
B. unus custum tenen Manerij pred in propria persona sua sursum reddidit in manus Domini per manus Senescalli sui pred secundum consuetud Manerij pred unum messuagÌ„ sive tenementum decem acras pasture cum pertin in A. pred infra Manerium pred ad opus usum C. D. hered assignatur suorum imperpetuum Cui Dominus per senescallu pd concessit inde seisinam per virgÌ„ Habend sibi heredibus suis Tenend de Domino per virgam ad voluntatem Domini secundum consuetudinem manerij pd per redditus servitia inde prius debitur de jure consuetur Et dat Domino de fine pro ingressu suo inde habend quadragintur solid fecit fidelitatem admissus est tenens Another form according to Littleton Ad hanc curiam venit A. de B. sursum reddidit in ead curia unum messuagium c. in manus Domini ad usum C. de D. heredum suorum vel hered de corpore suo exeuntium vel ê“ termino vite c. Et super hoc venit predictus C. de D. cepit de Domino in ead curia messuagÌ„ pdictur c. Habendum tenendum sibi heredibus suis vel sibi hered de corpore suo exeuntibus vel sibi ad terminum vite c. Ad voluntatem Domini secundum consuetud manerij faciendo reddendo inde redditus servitia consuetudines inde prius debita consueta c. Et dat Domino ê“ fine c. Et fecit Domino fidelitatem c. Ad hanc curiam H. H. filius here 's W. H. defunct ' sursum reddidit in manus Dom Manerij pdictur per Senescallum pdictur totum c. ad usum pdictur H. ê“ termino vite sue post ejus decessum ad usum W. H. heredibus suiÌ„s per se e corpore Mariae tunc Vxoris sue legitime procreatur sive procreand Et ê“ defectu talis exitus ad usum rectorum heredum c. Et superinde ad istam eandem curiam vener pdictur H. H. W. H. in propriis personis suis et petunt se inde admitti tenentes unde Dominus pdictur per Seescalluu suu pdictur secundum consuetudinem Manerij pdictur concessit eisdem H. H. W. H. ead tenementa cum pertinentiis Habend tenend ead tenementa cum pertinentiis eid H. pro durante vita sua naturali Et post ejus decessum eid W. heredibus suis per se e corpore Mariae tunc Vxoris suis legitime procreatur sive procreand ê“ defectu talis exitus rectis c. imperpetuum secundum consuetud Manerij pÌ„dictur redditur Herriot sectur curie consuetur servitia inde prius debitur de jure consuetur sic iidem H. W. admissi sunt inde tenentes dedere Domino de fine ê“ tali ingressu suo sic inde habend quatuor libras fecerunt Domino fidelitatem Datur sub Sigillo Senescalli pdictur die Anno supradicto Per me S. E. Senescal Surrender of Copy-hold Lands for Life the Remainder in Fee taken by the Steward out of Court Ad hant Curiam Testatum est per A. H. Seneschallum Cuâ—ie pdictur quod primo die Maij Anno Regni dicti Dom Regis nunc tricesimo A. B. geu jacens in extremis sursum reddidit in manus Domini per manus dicti Senescall extra curiam in presentia E. F. G. H. J. K. secundum consetudinem manerij pdictur unum c. infra maner pdictur vocatur Nocks Farm ad opus usum E. Vxoris ejusdem E. remanere inde S. T. U. W. filiis natu minoribus pdictur A. B. hered suis proviso tamen semper sub hac conditione qd si contingat aliqm pdictor S. V. obire sine heredibus de corpore suo exeun quod tunc ipse qui supervixerit habebit gaudebit pdictur c. Et cetera premissa ê‘dicta cum pertin sibi heredibus suis imperpetuum suê‘ hoc venit hic in cur pdictur E. in propria persona sua petit se admitti ad c. Et cetera premissa pdictur cum pertin cui Dominus per Senescallum suum concessit inde per virgam seisinam habend sibi in forma pdictur ad voluntatem Domini secundum consuetud manerij pdictur Et dat Domino de fine ê“ ingressu suo inde habend vigintur solid fecit fidelitatem admissus est inde tenens A Surrender out of Court of a Reversion to the use of a Man and his Wife and the Heirs of the Body of the Husband the Remainder to the Heirs of the Body of the Wife the Remainder to the Husband of the present Tenant for Life in Tayl the Remainder to the present Tenant for Life in Tayl the Remainder to another in Fee with the Lords acknowledgment of a satisfaction of a Fine the Surrenderor surrendreth all his Right c. to the Husband and Wife the present Tenant for Life to the Uses aforesaid Ad hanc curiam Testatum est per predictur T. P. Senescallum ibid quod c. die c. Anno c. T. J. venit coram prefato Senescallo in propria persona sua sursum reddidit in manus Domini per manus dicti Seneschalli extra cur in presentia L. D. C. K. J. T. secundum consuetud manerij pdictur reversionem unius Messuagij sive Tenementi sexdecim acras prati c. ac reversionem duorum Cottagiorum c. cum pertin in c. infra manerium pdictur Ad opus usum D. T. K. Vxor ejus heredibus de corpore pdictur D. legitime procreatur cum post mortem cujusdam A. modo Vxor H. J. acciderint Et pro defectu talis exitus de corpore pdictur D. T. legitime procreatur remanere inde prefatur K. Vxori prefatur D. et heredibus de corpore ejusdem K. legitime procreatur pro defectu talis exitus remanere inde prefatur H. J. hered de corpore suo Legitime procreatur pro defectu talis exitus remanere inde prefato A. Vxori pdictur J. H. heredibus de corpore ejusdem A. Legitime procreatur pro defectu talis exitus remanere inde V. S. heredibus suis imperpetuu Quibus quidem D. T. K. Vxor ejus Dominus per Senescallu suum pdictur Dom ad hanc curiam concessit inde per virgam seisinam Habend Tenend pdictur Messuagium Cotta- cetera premissa pdictur cum pertin in reversione secundum consuetud Manerii pdicti cum post mortem pdictur A. Vxoris pdictur H. J. acciderint prefatur D. K. Vxori ejus heredibus de corpore pdictur D. Legitime procretur pro defectu talis exitus remanere inde prefato K. Vxori prefatur D. heredibus de
concessis al 2. pro vitis in reversione Co. Entr. 184. Paying Fine and renewing Leases The Custom was That the Land was demiseable for twenty one years paying the treble value of the Rent and if he dyed within the Term that the Term should be to his Heir paying a Fine certain of one years Rent and if he Assigned the Term the Assignee should have it paying for a Fine one years value of the Rent and he who had it might by the Custom renew it for twenty one years paying three years value and this was admitted to be a good Custom by the Court Croke Jac. p. 671. Page's Case To assign one to take the Profits of a Copy-holder Infant The Custom was The Lord of a Manor might assign one to take the Profits of a Copy-hold descended to an Infant during his non-Age to the use of the Assignee without rendring an account it was held to be a good Custom as a Rent granted to one and his Heirs to cease during the non-Age of every Heir and admitting the Custom were void yet an Action of Account lyes not Prochein Amy. for the Defendant hath not entred and taken the Profits as Prochein Amy in which case although he was not Prochien Amy he is chargable as Prochein Amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the Right of the Heir 1 Leon. p. 266. Case 357. Anonymus The Custom was The Lord to dispose the Estate when the Tenant leaves it in incertainty That if any one surrender to the use of another without expressing any Estate that the Lord may grant it in Fee to him to whose use the surrender was made it s a good Custom for he is a Chancellor in his own Court to dispose thereof when the Tenant leaves it uncertain Crok El. 392. Brown and Foster Custom in the Manor of Sedgly in Com. Staff was Lease to be void if Copy-holder dye within the year If a Copy-holder make a Lease without Licence of the Lord for one year and dyes within the term it shall be void against the Heir Per Cur. it s a good Custom for then the Lord may know his Tenant and the Tenant may have the Estate and pay his Fine It s void by the act of God but had the Custom been That if a Copy-holder within the year surrender his Copy-hold that the Lease shall be void this is an unreasonable Custom Lit. Rep. 233. Hutton 126 127. Turner and Hodges Custom To Lease without Licence That five Copy-holders without License they being seized in Fee may make any Lease for one year or many years and when they dye the term shall cease and the Heir may enter it s a good Custom Hutton p. 101. Custom To hold after the term ended That a Lessee for years may hold the Land for half an year after the term ended it s no good Custom More n. 27. Not to alien without Licence Custom That a Copy-holder shall not alien without Licence is good for it may have a lawful commencement by agreement To Lease without Licence A Custom That on payment of a years Rent the Lord should Licence to let for 99 years and if he refused the Tenant might do it without Licence adjudged a good and reasonable Custom Grove and Bridges cited in Porphyry and Legingham's Case 2 Keb. 344. For Lessee pur vie to let for another mans Life A Custom That Lessee for Life may let for another man's Life is no good Custom but the Lord may by Custom Lease the same for Life and forty years after More n. 27. To commit a forfeiture and so to bar the Intayl A Custom for a Copy-holder tenant in tayl to make a Lease for years without Licence to commit a Forfeiture on purpose to bar the Intayl and to transfer the Lands over to any other person is a good Custom and is but in the nature of a Surrender or Common Recovery 2 Saunders 422. Grantham and Coples And the Lord in such cases may not admit any other but him to whom it is appointed by the Tenant making such Forfeiture and when such Cesty que use is admitted he shall avoid all mean acts or dispositions made by the Lord as well as upon a Surrender and this though he was not admitted in the life of the Tenant so forfeiting Vide infra Tit. Intayling Copy-holders In respect of Discents The Manor of Wadhurst in Com. Sussex consisted of two sorts of Copy-hold viz. Sookland and Bondland and by several Customs in several Manors as if a man be first admitted to Sookland and afterwards to Bondland and dyes seized of both his Heir shall inherit both but if he be first admitted to Bondland and afterwards to Sookland and of them dye seized his youngest Son shall Inherit 1 Leon. p. 36. Kemp and Carter A. Seized of Copy-hold in Fee Copy-hold Burrough English in the nature of Burrough-English surrenders this into the Hands of the Lord ea intentione That he shall re-grant this to him and his Wife and to the Heirs of himself and the Lord re-grants this accordingly And there is a Custom That if any person seised in Fee of such customary Lands and dyes so seized that the Land shall descend filio juniori c. And A. having Issue three Sons and ten years after his death the youngest Son dyes in the Life of his Mother without Issue Per Jones and Crook The elder Brother shall have this as Heir to the youngest and not the middle Brother Custom not to extend to Collateral Descents for the Custom may not extend to a collateral Descent viz. to direct the Descent amongst the Brothers for this is out of the Custom and the Custom was once satisfied by Descent to the youngest and there is an end of the Custom and where Custom fails Common Law shall guide the Descent Where Custom fails Common Law guides the Descent And by this special Custom he which is youngest Son at the death of the Father shall have the Land and not he which comes to be youngest afterwards but Bramston and Berkly contra 1 Rolls Abr. 624. Reeve and Malster Vide Maxims of Copy-holds supra CAP. VI. Customs of a Manor as to Wives and Widows of Copy-holders What are good and what not As also of Tenancy per le Curtesie And where the Severance of the customary Tenants from the Manor shall not prejudice CUstom of Manors That Husbands shall be Tenant per le Curtesie and the Pleading More 171. Custom of a Manor is That the Wife shall have it during her Life and on Evidence it appears the Custom was she should have it durante viduitate this Evidence doth not maintain the Custom because it is a less Estate Cok. 4. Rep. 30. That the Wife of a Copy-holder for Life may hold it durante viduitate was agreed to be a good Custom
Inheritances at the Common Law have unless it be by Custom for though they are Estates of Inheritance according to the Custom yet they are not Estates of Inheritance simpliciter that is to have all collateral Qualities as Estates in Fee-simple have but only such which Custom hath setled and allowed 4 Rep. 22. Brown's Case And accordingly my Lord Hobart in Cox and Darsen's Case p. 215. c. saith The collateral Incidents of Estates as Dower Tenancy by the Curtesie Wardship c. are not without special Custom And therefore Copy-hold Inheritance shall not be Assets to charge the Heir in an Action of Debt upon Bond made by his Father Copy-hold Lands not Assets in the Heir tho' he has therein bound his Heirs neither shall the Wife of such customary Estate be indowed nor the Husband be Tenant by the Curtesie neither shall the descent of any such Estate toll the Entry of him that had customary Right c. But to explain this in these before-mentioned Qualities and others I shall Illustrate it by several Cases and Resolutions Dower The Wife shall have Dower of a Copy-hold by special Custom otherwise not and when she is to be endowed of a Copy-hold by the Custom then she shall have all the incidents to Dower as to recover Damages for the Profits from the death of her Husband by the Statute of Merton C. 1. De viduis 4 Rep. 30. Shaw and Tompson Tenant by the Curtesie and that without admittance of the Wife The Custom of a Manor was That if any man had a Wife who was a Copy-holder in Fee of the Manor and had Issue by her that he should be Tenant by the Curtesie of the Land A. a Copy-holder was seized and had Issue a Daughter who was married to J. S. who had Issue A. dyed his Wife entred the Wife dyed before admittance The Question was if by the Entry of the Husband without admittance of the Wife he should be Tenant by the Curtesie Per Cur. he shall the delay of the admittance of the Wife shall not prejudice the Husband being a third person More n. 425. Ever and Aston but if a Woman Copy-holder in Fee takes Husband who had Issue and the Wife dyes there the Husband shall not be Tenant by the Curtesie without special Custom 4 Rep. 22. Ryers Case Descent tolls not an Entry Discontinuance The Descent of a Copy-hold doth not toll an Entry 4 Rep. 22 23. Bullock and Dibly and 3 Rep. 9. You may see there where the Entry shall be congeable by the Issue after a Surrender or Lease by Licence of the Lord made by the Ancestor and shall not be a Discontinuance The Lord seized a Copy-hold without cause and grants it to another in Fee Grantee dyes seized and his Heir is admitted The first Copy-holder dyes his Heir enters and Surrenders to the use of a Stranger Per Cur. 1. Descent of a Copy-hold shall not take away the Entry of another Copy-holder who hath right 2. The Entry of the Heir without admission is lawful and being in his Surrender is good Cro. Jac. 36. Joyner and Lambert If one seized of Copy-hold Land in the Right of his Wife Surrender this to the use of another in Fee who is admitted accordingly the Husband dyes this is no discontinuance to the Wife nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to her sur cui in vita If Copy-holder for Life Surrender to the use of another in Fee this is no Forfeiture Surrender by Copy-holder for Life to one in Fee is no forfeiture for this passeth by Surrender to the Lord and not by Livery And Copy-hold Estates shall not have such qualities as Estates at Common Law have without special Custom 4 Rep. 4. Clun and Pearse and therefore where by Custom of the Manor But recovery by Pleint in a real Action shall be a discontinuance Pleints have been made in the Court of the Manor in the nature of real Actions That if a Recovery be in a Pleint in the nature of a real Action against a Tenant Copy-holder in Tayl it s adjudged that this shall be a discontinuance and shall take away the Entry of the Heir in Tayl for these Pleints in the nature of real Actions are warranted by the Custom this is an incident which the Law annexeth to the said Custom and such recovery shall be a discontinuance 4 Rep. 23. Deal and Rigden Having finished the Learning of Customs in order to the understanding of Copy-hold Estates it will be convenient to say something of the customary Tenant and of the Court and the Steward which shall be attempted briefly in the next Chapter CAP. X. The several sorts of Coph-holders and who shall be said to be customary Tenants Of Copy-hold Burrough-English Of the Court Two sorts of Courts Baron Of the Copy-holders Court. Who may keep Courts and to what purposes and where Of the Steward his Office and power of Deputation what he may do ex officio or not WE read of three kinds of Copy-holders in our Book I. Terra Nativa These were called Bond-Lands also because they held in Villenage II. Custumary And this was held by Free-Tenants III. Mensales As also Dominica because by this the Table of the Lord is maintained Some Copy-hold Land is called Poadland and some Molland a molli redditu where some small Rent was reserved There were two other manner of Copy-holds Old Aster and new Aster Aster signifies a Chimney those Copy-hold Lands which had had usually for a long time an House on them they called Old Aster Lands but those which of late had an House built on them they called New Asters And in old Records the Bastard Eigne did plead That he was Filius Askarius as much as to say Born in the House 2 Rolls Rep. 235. M. 20 Jac. B. R. Smith and Reynard Some Copy-hold Land is in the nature of Burrough-English Cro. Jac. 56. Curtis's Case Copy-hold Burrough-English And so shall descend to the youngest Son Some Copy-hold is of the nature of Burrough-English as well for the Brother as the Son Cro. Jac. 101. Whitton and Williams Between a Copy-hold in Burrough-English and a Freehold in Burrough-English there is not any difference as to descents Cro. Car. 411. Baron and Feme Copy holders for Life of Copy-hold of the nature of Burrough-English Reversion to the Husband in Fee he had Issue three Sons William George and Charles The Father dyed seized of this Reversion which descended to Charles Charles dies without Issue the Wife dyes Question was whether William Brother and Heir of Charles or George should have it Berkly and Bramston were for George because there being a Reversion expectant upon Estate for Life George shall take his Title from his Father and take by descent from him who had seisin of the Free-hold and not make mention of him who had the
Per Cur. to take a Surrender and grant Land by Copy Act done by the Servant of a Deputy is not any judicial Act and the admitting of a Copy-holder is not any judicial Act for there need not be any Suitors there who are Judges and such a Court may be holden out of the Precincts of the Manor Per Cur. the Grant is good What Court may be held out of the Manor especially if the Lord of the Manor agree to it afterwards 1 Leon. 288. Lord Dacres's Case One is made Steward ad exequendum per se vel sufficien ' deputatum suum J. S. makes A. his Deputy hac vice to take a Surrender ad ulterius faciend c. it s a good deputation and though the authority was to take the Surrender absolute and he takes a Surrender upon a Condition yet its good by reason of these words Et ad ulterius faciend Cro. Eliz. p. 48. Burdets's Case The Kings Copy-holder is attainted of Felony whereby his Copy-hold Escheats the Steward may grant this over ex officio without any especial Grant yet it s his duty before he does it to inform the Lord Chancellor Treasurer and Barons 4 Rep. 30. Harris and Jay Surrender by a Deputy Steward not according to his Warrant Stewardship was granted to A. to execute the Office per se vel sufficien ' Deputat suum A. made a Deputation to M. ad capiend unam sursum redditionem of one J. W. and J. his Wife and to examine J. ea intentione that the said J. W. and J. might take back an Estate for their Lives the remainder over to J. B. in Fee M. took two several Surrenders from the Husband and Wife the remainder to J. B. in Fee upon condition to pay a certain Sum of mony c. Per Cur. The proceedings are well warranted by the Deputation aforesaid 1 Leon. p. 289. Burgess and Foster I can conceive this to be the same Case as the former and one will well help to explain the other If the Surrender and Re-grant is entred in the Roll of the Court dated to be holdâ—â— the second day of May and the Deputation bears date the third day of June after Per. Cur. This misentry of the date of the Court shall not prejudice the Party for this Entry is not matter of Record Vide ibid. The Kings Auditor and Surveyor for the County of N. appointed a Steward for one of the Manors illa vice The Kings Auditor and Surveyor cannot appoint a Steward hac vice He kept Court and granted Copy-hold c. their appointment is not good they have no authority to appoint Stewards the one being to take Accounts the other to survey Land and the Grant is void Things of necessity done by one who is but in a reputed Authority is good if they come in by presentment from the Jury or of necessity are good as the admittance of an Heir upon a presentment or admittance by a Surrender to an Use But acts voluntary Things of necessity by a reputed Steward good not acts voluntary as Grant of a Copy-hold is not good If the Steward diminish the ancient Rents and Services it s a void Copy If a Lord command a Steward that he shall not grant such Land by Copy Lord countermands a Steward if he grant it it is void Cro. El. 699. Harris and Jay 4 Rep. 38. mesme Case They ought to have Letters Patents of the Office of Steward Infant not to be Steward Infant is not capable of the Stewardship of a Manor March p. 41. Copy-holder moved the Court That the Steward might be ordered to bring in the Court Rolls to enable him to defend his Title but the Court denied it Stiles 128. Baron and Feme Copy-holder in right of his Wife surrender out of Court into the Hands of the Steward and she was examined by him and it was not proved that he was Steward by Patent Though it is not proved he is Steward by Patent c. yet Surrender out of Court into his Hands is good nor any special Custom to warrant it yet Per Cur. it was good Cro. Jac. p. 526. Smithson and Cage Declaration Pro Senescallo Cur. Maner ' impedit de Officio unde ei conces pro vita Rast Ent. 5.9 Co. 42. 1 Br. 192. Hern 232. CAP. XI What things way be granted by Copy Of Grants by the Lord legitimus Dominus pro tempore Disseisor Infant And in respect of the Lords person or Estate what shall be good or not Of Grants by the King Lord. VVho shall be said a Lord sufficient to grant Copies VVhat amounts to a Grant at what place to be granted Of Grants by the Copy-holder to the Lord. A Manor may be granted by Copy Câ— Lit. 58. b. i. e. a customary Manor and so a Manor may be parcel of another Manor Generally all Lands and Tenements with in the Manor and whatsoever concerneth Lands and Tenements may be granted by Copy as a Fair appendant to a Manor may be granted by Copy Co. Lit. 58 b. Underwoods without the Soyl may be granted by Copy to one and his Heirs and so may the Herbage or Vesture of Land The Lord granted to one and his Heirs subboscum in M. Wood annuatim succidend by four or five Acres at the least and then made a Lease of the Manor The Lessee cut Trees Copy-holder brought Trespass Lessee justifies with averment That he had left sufficient for the Copy-holder to cut down by four or five Acres yearly 1. Per Cur. Order of direction not of instruction Underwood may be granted by Copy if the Custom permit it 2. That the whole Wood passed and the words annuatm succidend is an Order only appointed for the cutting it and not to restrain the Grant More n. 480. Taylor and Hoe and Cro. El. 413. The Market of Crokeham in Sommersetshire is always demised by Copy 4 H. 6.21 cited in Hoe and Taylor 's Case More n. 480. and Cro. Eliz. 413. Hoe and Taylor The grant of Waste by Copy is void unless so granted time out of mind also were it good it would not bind the Successor in the Case of a Bishop 3 Keb. p. 124. Bishop of London and Rowe Tonsura Prati is grantable by Copy So Herbagia 1 Rolls Abr. 498. Of Grants by the Lord or voluntary Grants Copy-holder Copy-holds come to the Lord by Escheats Note or Forfeiture or Purchase What comes by Escheat or Forfeiture he may grant again H. 8. seized of a Manor in which are Copyholds Grants Copy-hold for Life generally It was a Quaere in March Rep. 206. Fulham's Case and not resolved whether this be a good Grant or not and Per Cur. The Grant is not void it never recites in any Grant of the King what is Copy-hold But the great Question was whether the Copy-hold was destroyed or not It was not there resolved but seems so But Downcliff and Minor's Case is
therefore where Surrenderer is Infant and dyes his Heir shall enter Cro. El. 90. Knights's Case It must be an actual Surrender in Court and not a Surrender in Law If a Copy-holder in Fee take the same Land 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 sursum reddens this into the hands of the Lord and not by Surrender in Law 1 Rolls Abr. 501. Shepard and Adams In grant of a Reversion Attornment why not needful Attornment is not necessary for a Copy-holder because there is no time when the Termor should Attorn for before the Surrender he cannot Attorn and after the Surrender and Admittance it is too late The Copy-hold Estate is like an Estate raised by Uses or Devise in which an Attornment is not necessary 1 Brownl 179. Swinnerton and Miller The Surrender and Admittance are in the nature of an Inrolment and so amount to an Attornment or at least supply the want of it 1 Leon. 297. General Rules and Maxims 1. Implication is not good in a Surrender though it be in a Will A Surrender of Copy-hold Land was to the Use of the second Son for Life after the Death of the Tenant and his Heirs it was adjudged not good 1 Brownl Rep. 127. Allen and Nash Noy 152. 2. In Copy-hold Cases a Surrender to the Use c. This is no Use properly but an Explication shewing how the Land shall go 1 Brownl 127. 3. It is the general Custom of the Realm That every Copy-holder may Surrender in Court and need not to alledge any Custom therefore so if out of Court he Surrender to the Lord himself he need not in Pleading alledge any Custom but if he Surrender out of Court into the Hands of the Lord by the Hands of two or three Copy-holders or by the Hands of the Bayliff c. or by the Hands of any other these Customs are particular and therefore he must plead them Co. Lit. 59. a. The Estate of Cesty que use shall ensue the Limitation in the Surrender and not in the Admittance of the Lord Co. Lit. 659. b. If two Joynt-Tenants be of Copy-hold Lands in Fee and the one out of Court according to the Custom surrender his part to the Lords Hands to the use of his Will and by his Will deviseth his part to a Stranger in Fee and dyes and at next Court the Surrender is presented by the Surrender and Presentment the Joynture is severed and the Devisee ought to be admitted to the moiety of the Lands for now by relation the state of the Land was bound by the Surrender and the Lord cannot grant a larger Estate than is exprest by the limitation of the Use 1 Rolâ— Rep. 438. In Grant of a Reversion Attornment is not necessary for a Copy-holder Vide supra 5. Copy-hold may not be surrendred but by actual Surrender in Court and not by a Surrender in Law Vide infra 6. A Copy-holder cannot Surrender an Estate to another and leave a particular Estate in himself no more than a Freeholder Vide apres Before I come directly to treat of Surrenders one of the most useful pieces of Learning as to Copy-hold Estates I shall premise some general Considerations as to the Alienation of Copy-hold Estates or of a Transferring of Copy-hold Interest from one to another and more particularly of the Selling and Aliening of the Copy-hold Lands of a Bankrupt the knowledge whereof is very necessary and not very common The Assurance of Copy-hold Land from one man to another who is not Lord must be made by Copy of Court Roll according to the Custom and this must be by Surrender and for the perfecting thereof must be Presentment and Admittance generally For If I would have my Estate pass according to my Will I cannot devise this Copy-hold by Will but must surrender it to the use of my last Will and in my Will I must declare my intention But for the manner of doing it and the operation in Law Vide postea sub Titulo Surrender to the Use of a mans last Will. And If I would Exchange Copy-hold Land with another I cannot do it by Deed of Exchange but we may Surrender it each to other and the Lord shall admit us accordingly But Copy-hold Estates in some Cases may pass and be transferred from one to another without Surrender and that by Release Copy-hold in some Cases may pass otherwise than by Surrender But then we must observe this difference between a Release that enures by way of extinguishment or by way of an enlargement of an Estate By Release sometimes a Copy-hold may be transferred when it enures by way of extinguishment As by Release and so may serve to drown a Copy-hold Right As for the purpose A man is admitted upon a void Presentment and where the Presentment and Admittance is not according to the Surrender as where the Presentment is absolute and the Surrender conditional and so void It was resolved that the Admmittee had a customary Estate by Possession and is in by Title and is capable of a Release from him who had the right and here is a customary Estate upon which the Release may well be grounded besides the Lord is not prejudiced he being satisfied his Fine upon the Admittance So if I am ousted of a Copy-hold and the Lord admit the Disseisor according to the Custom a Release made by me will extinguish my right But if one be disseised of a Copy-hold Estate a Release by the Disseisee to the Disseisor is void for this is a prejudice to the Lord in losing his Admittance Fine if it should be good and there is no customary Right upon which a Release should enure there never having been Admittance as was in the other Case So is Mortimer's Case Hetly p. 150. But a man cannot pass a Copy-hold Estate by way of Lease and Release because this Release enures by way of enlargement of Estate and to transfer an Interest but this must be by a Lease for a Year which is warranted c. and by Surrender of the Reversion into the hands of the Lord and he to grant it over to the Lessee One Joynt-Tenant releaseth to his Companion One Joynt-Copy holder released to his Companion and it was resolved in the Case of Wase and Pretty Winch Rep. p. 3. 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 In some Cases Copy-holds cannot pass by Surrender Release Admittance or otherwise As for the purpose 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 demiseth it to M. which was surrendred at next Court now by the
Estate to himself for Life remainder to his Wife for Life remainder for the Life of his Son The Question was whether this shall Estop him from claiming another Estate and so to lose the Inheritance And Per Cur. he shall not be estopped it s but as a Surrender and the Reversion in Fee continues in his own person 1 Rolls Rep. 265. Southcot and Adams 1 Rolls Abr. 171 172. mesme Case Of a Surrender out of Court A Surrender into the hands of two Tenants they are but as Instruments and therefore in an Arbitrament if it s awarded that one Party shall Surrender into the hands of two Tenants of the Manor who shall present this c. this is a good Award although it is to be made to Strangers who are not compellable because they are to be used as Instruments M. 13 Jac. B. R. Pooley and Coot A Surrender out of Court if it be duly done is as binding as that that is done in Court Who may take a Surrender out of Court A Copy-holder may Surrender into the hands of the Lord himself out of Court The Lord himself without a particular Custom to warrant it and in Pleading he need not to alledge any Custom Co. Lit. 59. a. b. By the hands of two Tenants Copy-holder may Surrender out of Court into the hands of the Lord by the hands of two or three Copy-holders or by the hands of the Bayliff or Reeve c. or by the hands of any other but this cannot be without particular Customs and therefore he must plead these Customs Co. Lit. 59. a. By Steward The Steward of a Manor may take a Surrender of a Copy-hold out of the Manor M. 13 Jac. B. R. Housey and Wild. And the Lord or his Steward may grant Copies out of Court as well as in Court Cro. El. 103. But in such Case how it must be presented Vide sub Titulo Presentment infra By special Steward appointed by the Lord to go to the Surrenderor If he who ought to Surrender cannot come in Court to Surrender in person the Lord of the Manor may appoint a special Steward to go to the Prison and take the Surrender 1 Leon. p. 36. So if a Copy-holder be in extremis the Custom was to Surrender into one Tenants hands A Surrender to one Tenants hands and presented to be done to another yet good in the presence of credible Witnesses a Surrender was made accordingly but presented to be done to another Tenant yet being proved to be done to a Tenant of the Manor it was holden by Wadham Windham Justice to be good May's Case Norfolk Summer Assises 1663. What Surrender out of Court is good or not A Surrender by Letter of Attorny to two customary Tenants out of Court is good for as a Copy-holder may Surrender in Court de communi jure by the common Custom of the Realm and at Common Law so he may do it by Attorny as a thing incident at Common Law and the reason is founded upon a dive rsity If a man had a naked Authority coupled with a confidence as Executors have to sell Land they cannot do it by Attorny When one may do a thing by Attorny and when not but if a man hath absolute Authority as Owner of the Land which a Copy-holder hath having a customary Estate of Inheritance he may do it by Attorny and so this need not be pleaded as as a Custom And though a man have an Authority joyned with an Interest yet if the Authority be warranted by special Custom only it cannot be executed by Attorny As if there be a special Custom That a Copy-holder for Life may make Estate for twenty years to continue after his death this Estate cannot be made by Attorny so for an Infant to Surrendr at the years of discretion Co. Cop. 105. But in Chapman's Case Hill 28. El. B. R. Where the Custom of a Manor was That the Copy-holder out of Court may Surrender into the hands of the Lord of the Manor by the hands of two customary Tenants in such Case the Copy-holder by his Attorny may not Surrender into the hands of the Lord by the hands of two Copy-hold Tenants for without special Custom to warrant it it s not good Authority to be pursued strictly But such Attornies ought to pursue the manner and form of the Surrender in all points according to the Custom as the Copy-holder himself ought to have done as if by the Custom it ought to be done by the Rod or any other thing c. The form of a Letter of Attorny was in this manner That the Copy-holder doth Constitute W. T. and E. A. two Copy-hold Tenants of the Manor of c. his lawful Attornies to Surrender vice nomine suo to the Lord of the Manor ten Acres c. to the use of J. N. and his Heirs and after at a Court held in the Manor 8 July Anno c. The said Attornies tunc tenentes Dom. per Copiam Rot. Cur. in ead Curia ostenderunt script praed geren dat praed 12 die Novemb. c. Et iidem W. E. authoritate eis per praed literam per Attornatum dat in plena curia sursum reddiderunt in manus Dom. praed c. Acras c. ad opus usum c. Now the Attorny must do the Act in the name of him who gives the Authority as it is in Brownl 94. The Letter of Attorny must say for him and in his name yet the Entry aforesaid is good for it is W. E. sursum redderunt authoritate eis dat What Entry as to the form of a Letter of Attorny is good which is as much as if they had said We as Attornies of c. Surrender I as Attorny of J. S. do Surrender or by Authority of this Letter of Attorny I Surrender it is all one 9 Rep. 76. Combe's Case Not to be done without Deed but admittance by Attorny may be without Deed. Lessee for years cannot Surrender by Attorny and how he may A Copy-hold Estate cannot be surrendred to another by an Attorny without Deed but one may be admitted to a Copy-hold Estate by Attorny without Deed Stiles Pract. Reg. 74. Lessee for years cannot Surrender by Attorny but he may make a Deed purporting a Surrender and a Letter of Attorny to another to deliver it 1 Leon. p. 36. Copy-holder of Inheritance makes a Letter of Attorny to two joyntly and severally to Surrender his Copy-hold Lands to certain uses according to the Custom of the Manor after his death Quaere if this be a good Custom Stiles Rep. p. 291 311. Wallis and Bucknal and p. 243. Roby and Twelves Litera Attornatus ad sursum reddend tenementa custumaria sursum redditio admissio Co. Ent. 575 676. Pled quod tenentes custumarij possunt sursum reddere Tenementa tam extra Curiam in presentia 2 vel 3 tenentium quam
tribus assignatis suis by his death the Estate in the Copy-hold is determined Yelverton p. 16. Arnold's Case Though we have observed Surrender passeth not by implication That the passing of Estates of Copy-hold is much resembled to Devises yet an Use shall not pass in a Surrender by implication and therefore in Seagood and Hone's Case Cro. Car. 366. A Copy-hold is surrendred to the use of F. K. and J. R. Son of the said F. and of the longest liver of them both and for want of Issue of J. the Son of his Body lawfully begotten the Lands to remain to the youngest Son of M. S. Per Cur. J. had but an Estate for Life and being an Estate for Life limited by express limitation it shall not be a greater Estate by implication Of Surrender to a Use upon Use Surrender by A. to the Use of B. and his Heirs to the use of such person as A. should name by his Will Per Twisden in Leaper and Wroth's Case it is ill no Use can be raised upon an Use although it being Copy-hold it is not executed by the Statute But H. nominated by the last Will of A. had surrendred to B. the Court conceived no doubt in that Case 1 Keb. 627. Contingent Remainder Surrender is to the Use of one in Fee upon Condition to pay 100 l. to a Stranger and if he failed it should be to the Use of a Stranger in Fee The Question was whether that should be a good Limitation to the Stranger being a Fee upon a Fee Beaumont conceived it to be well enough being as an Use limited on a Feoffment but it was found specially Cro. El. 361. Paulter and Cornhil vide infra To the Use of ones Wife Is good though he which is admitted is in by him who makes the Surrender yet a man may Surrender to the Use of his Wife because the Husband doth not do this immediately to the Wife but by two means 1. By Surrender of the Husband to the Lord to the Use of the Wife And 2. By Admittance of the Lord to the Wife according to the Surrender 4 Rep. 29. Bunting and Lepingwel Where a Surrender is void for the uncertainty Averment A Copy-hold was granted to a Father and to his Son and Heirs who at the time of the Grant had but one Son it was adjudged a good Limitation to that Son Cro. Jac. 374. Cobb and Betterson But in Winkmore's Case cited there where a Copy was granted to S. the Father and to his Son and he doth not demonstrate which of his Sons shall have it it was adjudged to be a void Grant for the uncertainty he having many Sons at that time But that which is wholly uncertain no subsequent manifestation of my intention can help it as a Surrender to the Use of my Cosin or my Friend or to the Use of J. S. or J. N. Surrender to the Use of a Person not in esse And in this point Limitations of Estates are not directed according to the Rules of Law In this Estates are not directed according to Law For at Common Law if the Grantee immediate and be not in rerum natura and able to take by vertue of the Grant its void presently But though at the time of the Surrender the Grantee is not in esse or not capable of a Surrender yet if he be in esse and capable at the time of Admittance that is sufficient as a Surrender to him that shall be Heir to J. S. or to the Use of the next Child of J. S. or to the next Wife of J. S. though at the time of the Surrender J. S. had no Child Heir or Wife yet if he afterwards hath his Heir Wife or Child may come into Court and compel the Lord to admit according to the Surrender the reason of this Construction seems to be the Surrender is a thing executory and is executed by the subsequent Admittance and nothing vests in the Grantee before Admittance and therefore if at the time of the Admittance he be capable to take it s enough Co. Copy Put the Case at Common Law J. S. bargains and Sells to the Use of the next Son of J. D. and he hath no Son then but after he hath a Son before the Deed is enrolled yet this shall not be good and yet it s as an executory Grant i. e. not perfected till enrollment and nothing passeth till enrollment or vesteth in the Bargainee till then no more than by Surrender I will put this Case A Surrender is to the Use of A. B. for Life and after to the next Child that J. S. shall have A. B. forfeits his Estate J. S. having no Child at that time but afterwards he hath a Child shall this Child compel the Lord to admit him Q. for such a Remainder at Common Law would be destroyed But a Surrender to the Use of the right Heirs of J. S. he being alive is void because it cannot take effect according to the intent of the Grantor which is to be executed presently To one in 〈◊〉 mere Surrender Habend after his death to the Use of his Child then in ventre sa mere his or her Heirs and Assigns and if it dye before full Age or Marriage then to the Use of another in Fee Copy-holder dyes Infant was born but dyes before Age or Marriage this is not good he cannot make such a conditional Surrender to operate in futuro But whether the Surrender to an Infant in ventre sa mere be good hath been much much questioned Cro. Jac. 376. 1 Rolls Rep. 109 131. 2 Rolls Abr. 415 416. 2 Bulstr 274 275. Simson and Sothern Some are for it and some against it I conceive it is allowed to be good as well as a Devise to an Infant in ventre entre sa mere Surrender to the Use of J. S. for Life remainder to the Use of an Infant in ventre sa mere is good Of a Surrender to take effect in futuro A Surrender of a Copy-hold in Fee a tempore mortis is void 1 Sanders 151. Or a Surrender at a day to come is void Copy-holder in Fee Surrenders out of Court into the hands of two Tenants in Writing as follows Memorandum Such a day and year A. S. the Copy-holder Surrenders the Land c. to the Use of B. and C. c. This Surrender not to stand and be of force till after the decease of A. S. Per Cur. If this Memorandum should be good then this had been a Surrender at a day to come and consequently void and therefore the Surrender being perfect before by the first part of the Instrument this Memorandum shall not make it void but the Memorandum shall be void 2 Rolls Abr. 61. Seagood and Hone. And the Reason is given in Simpson and Southern's Case Cro. Jac. p. 376. A Copy-holder cannot Surrender an Estate to another and leave a particular Estate himself no more than a Free-holder for so
the Surrenderer should have a particular Estate in him without a Donor or Lessor which by the Rule of Law cannot be March Rep. 177. Bambridge and Whitton therefore Noy p. 152. is not Law Vid. 1 Roll Rep. 135. CAP. XV. Constructions of Surrenders as to Limitations of Remainders and Reversions Of Contingent Remainders Where the Heir shall be in by Descent or Purchase Of a Surrender to the Vse of ones last Will and how to be Construed Surrender upon Condition or Contingency Of Surrender before Admittance Surrender by whom to whom by Feme Covert Countermand of a Surrender What Remedy to force a Trustee to Surender Construction of Surrenders as to Reversion Remainder Limitation What shall be good to pass by the Name of a Reversion or not Surrender by the name of a Reversion COpy-holder by Licence of the Lord demised the Copy-hold to the Plaintiff for twenty years by Indenture rendring Rent the same Copy-holder surrendred the Reversion of the one moity to A. and of the other to B. and they were admitted Per Cur. The Surrender by the name of a Reversion was good in this Case though the Lease was not made by Surrender which had then been directly derived out of the customary Estate but by Indenture for it is still the Lease of the Copy-holder and not of the Lord and the Rent will be divided by moities Husband seized of Copy-hold Land in the right of his Wife who had the Fee surrendred the Copy-hold Land by the name of a Reversion after the death of the Husband and Wife the Surrender is void for by that pretence there shall be a particular Estate left in the Wife and also in the Husband One cannot leave a particular Estate in himself whereas the Husband had nothing before which cannot be And when one is seized in Fee he cannot by any matter in Fact give away the Inheritance after his death and so leave a particular Estate in himself Peradventure by matter of Record he may Cro. Eliz. p. 29. Clamp's Case Copy-holder in Fee by Licence of the Lord 15 Feb. 4 Jac. makes a Lease for sixty years rendring Rent and the Lease was to commence at Michaelmass next ensuing Lessee enters and was possessed Postea scil 8. May the Copy-holder surrenders the Reversion to divers Uses the Grantee of the Reversion distrains for Rent this Grant of the Reversion seems not to be good the Surrender being made the 8th of May which was before the inception of the Lease perhaps if no day had been named it had been good Lit. Rep. 17 18. Surrender of a Reversion bears date before the inception of the Lease Mary Selby and Beck and Drewet's Case there cited A Feme Copy-holder in Fee comes into Court and offers to Surrender to J. S. in Fee but she desires to retain to her self an Estate for Life the Steward enters that she surrenders the Reversion of her Copy-hold to J. S. after her her death it s naught Vide Attornment supra Limitations in Remainder and Construction thereon and of Contingent Remainder Tenant for Life and he in Remainder of a Copy-hold he in Remainder surrenders his Remainder to the Use of Tenant for Life and after his decease to the Use of himself and his Wife the Estate limited to the Tenant for Life is void but the Estate limited to Baron and Feme is good by way of present Estate and not of Remainder 1 Sanders Rep. 150 151 152. So in Siderfin Remainder over good by way of Grant and doth not depend upon a particular void Estate p. 360. Copy-holder in Remainder surrenders to a Copy-holder for Life Remainder over this Remainder over is good by way of grant in the Estate limited to the Tenant for Life because he had an Estate in it for his Life before and therefore it was argued That the Remainder limited after this particular Estate which is void in its creation are void also But Per Cur. the intent was that Husband and Wife shall have the Land joynly for their Lives in possession after the death of Tenant for Life as by mediate Settlement A Surrender is rather in nature of a Deed Poll than of an Indenture and enures by way of limitation of Use ut res magis valeat Wade and Bath Fee upon a Fee upon a Contingency A Fee may be limited upon a Fee upon a collateral Contingent in Copy-hold Estates As if a man surrender a Copy-hold in Fee to the Use of J. S. and his Heirs who is an Infant and if J. S. dyes before the age of twenty one years or marriage then he surrenders this to the use of J. D. in Fee This is a good Remainder to D. upon the Contingent 2 Rolls 791. Simpson and Southwood It s made a Quaere in Stiles in the Argument of Pausley's Case If by the destruction of a particular Copy-hold a Contingent Remainder be destroyed Rolls conceived not because it doth not depend upon the particular Estate but ought to expect till the Remainder happen Stiles 251. and there is one in esse to take the particular Estate But it seems the Law to be contrary and that if the particular Estate be destroyed the Contingent Remainder is gone As to this A Surrender is to the Use of a Feme Covert the Remainder to the right Heirs of the Body of the Husband and Wife he in the Remainder shall not take till the Husband dyes for he which is to have this ought to be Heir of the Body of both 2 Rolls Abr. 415. Lane and Pannel A like Case as this is also Reported 3 Leon. p. 4. Copy-holder is surrendred to the Use of the Wife for Life the Remainder to the Use of the right Heirs of the Husband and Wife the Husband entred in the right of his Wife Per Cur. The Remainder is executed for a moiety presently in the Wife and the Husband was seised of that in the Right of his Wife and the Wife dying first her Heir shall have it but if the Husband had dyed first his Heir should have had one moiety But the Case of Lane and Pannel wherein was good Law and nicely argued is better Reported in 1 Rolls Rep. 238 317 438. The Case was this Lane was seized of a Copy-hold in Fee and having a Wife surrenders it to the Use of Dixon and the Wife for their Lives and after to the Use of the Heirs of the Body of the Husband and Wife and the Wife and Dixon are admitted to them and their Heirs and after Dixon surrenders his moiety to the Husband and Wife and their Heirs upon which they were admitted and afterwards they Surrender it to the Use of one Davis in Fee who was admitted then the Wife dyes having Issue and after the Husband dyes the Heir brings an Action of Trespass it s not maintainable The great Question was whether the Wife had an Estate Tayl executed vested in her Per Coke Whether
of his last Will how the Estate stands in the Surrenderer Copy-holder surrenders to the Use of himself for Life and after to the Use of R. his Son for Life and after to the Use of his last Will. R. dyes the Father afterwards surrenders it to the Use of J. S. in Fee and dyes without making any Will It s a good Surrender for a Copy-holder may surrender parcel of the Estate and the residue shall be in himself and the Fee Simple of the Copy-hold being limited to the Use of his Will remains in the Copy-holder and not in the Lord Cro. El. 441. Co. 4 Rep. 23. Finch and Hockly and that the Fee lyes not in the Lord is Bullen and Grants Case 1 Leon. p. 174. When one surrenders to the Use of his last Will and thereby deviseth Copy-hold Lands to his middle Son and the Heirs of his Body who dyes without Issue and the Lord grants it to the youngest the eldest Son may enter and Admittance is not necessary Copy-hold devised to pay Debis J. S. seized in Fee of Copy-hold Lands devised it to his Wife for Life and that she should sell the Reversion for the payment of his Debts and after in Court did Surrender the Lands to the Use of his Wife for Life according to the Will and Deed she may sell the Land he surrendered and referred to the Will and she surrendred upon Condition to pay 12. l. this was held to be a good Sale according to the Will Cro. El. 68. Bright and Hubbard If there be two Joynt-Tenants By Joynt-Tenants and the one Surrenders into the Hands of two Tenants to the Use of his last Will and makes a Will of the Land and dyes the Surrender is afterwards presented Per Cur. It s a severance of the Joynture and shall bind the Survivor for being presented it shall relate to the first time of the Surrender Cro. Jac. 800. Porter's Case 1 Brownl Rep. 127. Allen and Nash Pleadings Quod tenens custumar in feodo possit devisare in feodo pro termino vitae vel annorum Coke Ent. 124. Surrender upon Condition or Contingency Copy-holder may Surrender to the Use of another on Condition if the Copy-holder pay to the Surrendree c. ad Domum suam Mansionalem c. that then the Surrender shall be void 5 Rep. 114. Wade's Case A Copy-holder may Surrender to the Use of another reserving Rent Condition Re entry for non-payment of Rent with Condition of re-entry for non-payment and for default of payment he may re-enter 4 H. 6.11.21 H. 6.37 A Copy-holder surrenders upon Condition and afterwards by his Deed releaseth the Condition its good without surrender for properly a Right or Condition cannot be given or determined by Surrender but by Release Cro. Jac. 36. Hull and Shardbrook 4 Rep. Kite and Quinton Surrender to the Use of one in Fee upon Condition to pay 100 l. to a Stranger it was a Question if the tender of 100 l. to a Stranger and he refusing the Condition is saved By Beaumont it is saved aliter in Case of an Obligation where he takes upon him to do it Cro. El. p. 361. Paulter's Case K. L. Father of the Defendant Copyholder in Fee surrendred to the Use of the Defendant in Fee upon Condition he should perform the Covenants in such an Indenture the Defendant was admitted and after surrenders the Land to the Use of the Plaintiff in Fee upon Condition if the Defendant paid 10 l. the Surrender to be void The Defendant neither paid the 10 l. nor performed the Covenant in the Indentures The Father enters and dyes seized and it descends to the Defendant Additional Surrenders defeated by Entry and he enters upon whom the Plaintiff enters The Question was if this Entry were lawful and adjudged it was not for by the Entry of the Father both the Surrenders are defeated So the Defendant may confess and avoid what was done to the Plaintiff Judgment pro Defendente Cro. Eliz. 239. Simonds and Lawnd Trin. 33. Eliz. One cannot pass a Copy-hold Estate to begin at a day to come no not upon a Contingency A Copy-holder saith he surrenders his Copy-hold Estate and if his Child which shall be Born dyes before his Age of 21 years that then his Brother shall have it it s not good This Case falls upon a Rule in Law That one cannot pass a Copy-hold Estate to begin from a day to come nor yet upon a Contingency no more than a Free-hold at Common Law 2 Bulstr 274. Simpson and Southern If a Copy-holder surrenders his Copy-hold of Inheritance into the hands of the Lord Use vests presently the Condition to take effect in futuro to the Use of J. S. paying of an 100 l. to his Executors within such a time after his death he to whose Use this Surrender is made takes by force of this presently Per Dodridge 2 Bulst p. 275. idem Case Surrender upon Condition or Contingency Copy-holder may surrender to the Use of another on condition if the Copy-holder pay 250 l. ad domum suam mansionalem c. that then the Surrender shall be void 5 Rep. 114. Wade's Case A Copy-holder may surrender to the Use of another reserving Rent Condition of re-entry for non-payment of Rent with condition of re-entry for non-payment and for default of payment he may re-enter 4 H. 6.11.21 H. 6.37 A Copy-holder surrenders upon condition and afterwards by his Deed releaseth the condition its good without surrender for properly a right or condition cannot be given or determined by Surrender but by Release Cro. Jac. 36. Hull and Sharebrook 4 Rep. Kite and Quinton Surrender to the Use of one in Fee upon condition to pay 100 l. to a Stranger it was a Question if the tender of the 100 l. to the Stranger and he refusing the condition is saved By Beaumont it is saved aliter in Case of an Obligation where he takes upon him to do it Cro. El. p. 361. Poulter's Case The Form of a Surrender of Copy-hold Land upon Condition Vide Conveyancers Light p. 827. Vide infra Presidents Of Surrender before Admittance whether it shall be good or not Purchaser hath nothing before Admittance neither can he Surrender A Surrender to J. S. J. S. Surrenders to a Stranger who is Admitted The Stranger takes nothing for J. S. had no Estate before Admittance and the right and possession still remains in him who surrendred and this shall descend to his Heir But the diversity is an Heir to whom a Copy-hold descends or comes in remainder he may surrender before Admittance because he is in by course of Law for he Custom which makes him Heir to the Estate casts the Possession upon him from his Ancestors But a Stranger to whom the Copy-hold is surrendred had nothing before Admittance because he is a Purchaser and the Copy made to him upon his Admittance is his Evidence by the Custom and before
this he is not a customary Tenant and so he can transfer nothing to another Yelv. p. 144 145. Wilson and Weddel Cro. Jac. p. 36. Joyner's Case The Heir may surrender the Reversion before Admittance Copy-holders Baron and Feme to them and the Heirs of the Husband Husband dyes the Heir may surrender his Reversion into the hands of two Tenants out of Court if the Custom be so before any Admittance and during the Life of the VVife and its a good Surrender for the Reversion was cast upon him by the Surrender before any Admittance 1 Rolls Abr. 499. Calchin and Calchin Surrender by whom By Infant An Infant who Surrendred his Copy-hold Land within Age may enter at his full Age without being put to any Suit for it Popham p. 39. Infant within Age surrenders to the Use of another it s not good in Chancery Mich. 9 Jac. Hughs and Carpenter Baron seized of Copy-hold in right of his Feme in Fee surrenders without his Wife By Husband of the Wives Land to the Use of J. S. in Fee who was Admitted Baron dyes VVife dyes the Heir of the VVife enters and makes a Lease and good this was not any discontinuance against the VVife to put the Heir to his Plaint in nature of a sur cui in vita That Action is given where Recovery by default is against the Baron and Feme Popham 39. Bullock and Dibler Copy-holder pur vie Surrenders to the Use of another By Copyholder for Life there can be no possibility of having it again if he survive for the Surrenderer is meerly in by the Lord and not by the Copy-holder but if a Copy-holder in Fee surrender to the Use of another for Life who is admitted he is in quasi by the Copy-holder and by his death the Copy-holder shall have it again Cro. Car. 204 King and Lord. Tenant for Life of a Copy-hold where the Remainder is over may surrender to the Lord 9 Rep. 107. Podger's Case A Feme Covert and J. S. are Tenants for Life of a Copy-hold By Joynt-Tenants and J. S. surrenders his moiety to the Husband of the VVife this is a severance of the Joynture so that he is Tenant in Common with his VVife 2 Rolls Abr. 88. Lane and Pannel Two Joynt-Tenants of a Copy-hold and the one surrenders his moiety into the Hands of the Lord to the Use of his last VVill and thereby deviseth it to another this is a good Devise because by the Surrender the Joynture was severed between them Co. Lit. 59. b. So if there are two Joynt-Tenants in Fee of a Copy-hold and the one Surrenders his part out of Court into the Hands of the Lord to the Use of his last VVill and by his last VVill afterwards deviseth it to the Use of a Stranger in Fee and after at next Court the Surrender is presented by the Surrender and Presentment the Joynture was severed and the Devisee ought to be Admitted to the moiety of the Land for now by relation the State of the Land was bound by the Surrender Co. Lit. 59 b. Constable's Case cited there Where a Copy-hold granted by a Disseisor c. shall be good and stand in force against the Disseisee and where not By Disseisor c. Tenant for Life Remainder for Life of a Copy-hold the Remainder man for Life enters upon Tenant for Life in possession and makes a Surrender nothing at all passeth hereby for by his Entry he is a Disseisor and hath no customary Estate in him whereof to make a Surrender Mod. Rep. 199. Bird and Keck Of the lawful Lord who can make Grants and admit upon Surrenders This diversity was unanimously agreed If Disseisor or Feoffee of a Disseisor or any other who has a tortious or defeasible Estate or Interest subject to the Action or Entry of another hold Court and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold such voluntary Grant shall not bind him that had right when he shall re-continue the Manor by Action or Entry for to this intent the said Custom shall be intended of a Lord which had a lawful Estate or Interest but if such Lord who had a tortious or defeasible Estate admit any upon Surrender made to the Use of another or give Admittance to the Heir upon a Descent such Admittance shall be good and within the Custom for such acts are lawful and quodammodo judiciales and which he may be compelled to do in a Court of Equity 4 Rep. 23. b. Clark and Penyfeather So every one who had a lawful Estate or Interest in a Manor Dom. pro Tempore both in Fee or Tayl or Dower or by the Curtesie or for Life or Years or as Guardian or Tenant by the Statute or Elegit or at Will Otherwise of Tenant at Sufferance For if there be Tenant pur auter vie of a Manor and Cesty que vie dyes and the Tenant continue in the Manor and hold Courts and makes voluntary Grants by Copy this shall not bind the Lessor aliter of Admittance upon Surrender or upon Descent 4 Rep. 24. Rous and Archer's Case such Grants shall not be avoided by disability of the person or defect of Interest or exility of the Estate of the Lords as at VVill sur condition c. 8 Rep. 63. Swain's Case Or whether it were granted by non compos mentis Infant Bishop Parson non sanae memoriae c. it is not material in Surrenders Vide supra in Tit. Lords Grants If a Copy-hold Escheat or come into their Hands during their time they may re-grant it reddendum the ancient Rents Customs and Services and this shall bind the Lord who had the Inheritance or Free-hold 4 Rep. ibid. So such Grant by Baron and Feme shall bind the VVife notwithstanding the Coverture So a Grant by a non compos mentis a Bishop Infant and so Feme Covert non sanae memorie Infants Successors of Bishops Parsons Prebends are bound by the said Custom it being that the Tenements sunt dimiss dimissib per Dom. Manerij pro tempore existen c. ibid. vide supra By a Feme Covert A Tenant out of Court cannot take a Surrender of a Feme Covert for that she is secretly to be examined by the Steward Tothil p. 108. unless by special Custom Sola secreta examinat The Surrender of a Feme Covert being so le examined shall bind her but whether such a Surrenderer upon her examination made before two Tenants of the Manor such Surrenders before them being used to be made be good was the Question in the Case of Erish and Rives Mich. 41 El. B. C. and Per Cur. by special Custom to warrant it it may be good By Infant Vide supra By the Husband of the Wives Land Quid operatur Feme Tenant for Life of a Copy-hold the Reversion being granted over to B. for Life Remainder to C. for Life cum acciderit post
mortem sursum redditionem vel forisfacturam of the Feme and after the Husband Surrenders to the Use of B. for Life and so he is Admitted Tenant and after dyes In this Case C. shall not have this because his Estate is not to commence till after the Death Surrender or Forfeiture of the Feme and the Feme here is in Life and had not made any Surrender or Forfeiture and the Wife had right in this in the nature of a plaint de cui in vita But the Lord in this Case may retain it in his own proper hands or disposition Occupant during the Life of the Husband quasi an Occupant Dyer 9 El. 264. Sect. 38. Surrender to whom To the Wife By the Husband to the Use of the Wife is good vide supra and 4 Rep. 29. Bunting's Case for it is done by Surrender to the Lord and Admittance To the Steward A Surrender made to the Steward to the Use of the Steward is good for the Entry is quod sursum reddidit in manus Domini and the Steward is but the Lords Servant and the surrender is to the Lord and not to him Cro. El. p. 717. Erish and Rives So Infant Vide supra Of Countermand of a Surrender Where the Surrender of a Copy-hold may be Countermanded by the Party himself and what collateral Act without the assent and privity of the Party shall be a countermand and where and what not Grant by Baron and Feme shall bind the Feme notwithstanding the Coverture so Grant by non compos mentis Infant Vide supra Vide supra Where and what Grants by Lords of Manors shall be good or defeasible in respect of the Estate they had therein Surrender is not Countermanded by the death of Surrenderor before Presentment 4 Rep. 29 Bunting's Case VVhere the Customs are not pursued the surrenders are void Vide sparsim and 5 Rep. 84. Peryman's Case Surrender by Steward or Deputy Steward and of persuing their Warrants vide Steward supra What remedy to force a Trustee to Surrender A Copy-holder doth surrender to the Use of one A. in Trust In the Lord's Court. that he shall hold the Land until he hath levied certain Monies and that afterwards he shall surrender to the Use of B. The Monies are levied A. is required to make surrender to the Use of B. he refuseth B. exhibits a Bill to the Lord of the Manor against A. who upon hearing of the Cause Decrees against A. That he shall Surrender he refuseth Now the Lord may seize and admit B. to the Copy-hold for he in such case is Chancellor in his own Court Per totam Curiam 1 Leon. 2. Or relief may be had in Chancery CAP. XVI Of Presentment How and when to be made How to be pursuant to the Surrender What the Law is if Surrenderor or Cesty que use or the customary Tenants into whose Hands the Surrender was made dye before Presentment or Admittance VVhere two Surrenders are and the second Surrender is presented first Presentment No good Surrender till presented IF the Surrender be made out of Court into the Hands of the Lord himself which the general Custom will warrant or into the Hands of the Bayliff or of two Tenants of the Manor which is warrantable only by special Custom there must be a true Presentment of the Surrender in Court by the same Persons into whose Hands the Surrender was made and the Admittance of the Lord must be according to the effect and tenor of both the Surrender and Presentment It is not an effectual Surrender till it be presented in Court And therefore in an Action on the Case on Assumpsit in Consideration that the Plaintiff would surrender to the Defendant and his Heirs a Copyhold according to the Custom of the Manor Defendant assumed to pay 500 l. and for breach of this promise the Plaintiff brings the Action and had a Verdict but Judgment was arrested because the Consideration on the Plaintiffs part was not performed for the Consideration was That he should surrender the Copy-hold to the Defendant and his Heirs and he hath alledged the surrender to be into the Hands of a Copy-hold Tenant of the Manor to Use of the Defendant which is no surrender untill it be presented at the next Court and so it is uncertain whether it shall take effect or not Stiles p. 256. Shaan and Shaan The Presentment by the general Custom of Manors is to be made at the next Court day When to be be made immediately after the surrender but by special Custom at the second or third day afterwards and by Rolls in Jay's Case Stiles 275. there is no certain time but as the Custom is so that it be within the Life of the Tenant it is to be made by the same persons that took the Surrender and in points material according to the true tenor of the Surrender But if the Surrender be conditional Presentment must pursue the Surrender and the Presentment absolute the Surrender Presentment and Admittance are void except the Steward in the entry of it omits the Condition and upon sufficient proof made in Court of that the Surrender shall not be avoided but the Roll amended and this shall be no conclusion to the Party to plead or give in Evidence the truth of the matter 4 Rep. 25. Kite and Quinton But in May's Case Norf. Summer Assises 1663. The Custom of a Manor was for a Copy-holder in extremis to surrender into one Tenants Hands in the presence of credible Witnesses and a Surrender was made accordingly but presented to be done to another Tenant yet being proved to be done to a Tenant of the Manor It was holden by Wadham Windham Justice to be good Of Presentment where the Surrenderor or Surrendree Cesty que use or customary Tenants dye before Presentment or Admittance Surrenderor dyes If one Surrender out of Court and dye before Presentment if Presentment be made after his death this is good 4 Rep. 29. Bunting's Case Cesty que use dyes If Cesty que use he to whose Use the Surrender is made dyeth before Presentment yet upon Presentment made after his death his Heir shall be admitted Stiles p. 145. Barker and Denhan Surrenderor and Cesty que use both dye If one Surrender out of Court to the Use of one for Life the Surrenderor and the Lessee for Life both dye before the Presentment yet upon Presentment made he in Remainder shall be Admitted Surrendree dyes Surrendree dyes before Admittance his Heir may be Admitted and if it be Burrough-English the youngest Son 2 Siderfin 38 61. The Tenants into whose hands the Surrender was made dye If the Tenant into whose Hands the Surrender was made dye before Presentment yet upon sufficient proof made in Court That such a Surrender was made the Lord shall be compelled to admit Co. Lit. 62. Nothing passeth till presentment But nothing passeth till Presentment
of one for Life who is admitted and dyeth He in Reversion he in the Reversion may enter without a new Admittance and therefore H. B. being seized of Copy-hold Land in Fee and having Issue three Sons G. H. and J. he surrenders it to the Use of his last Will and thereby devised it to his Wife for Life the Remainder to H. and the Heirs of his Body the Wife dyed after Admittance Henry dyes without Issue G. may enter and Admittance for him is not necessary 1 Leon. p. 174. Bullen and Grant If customary Lands do descend to the youngest Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected He shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves Feme to her Free-Bench the Freehold of the Copy-hold being granted over The Custom of Free Bench was durante viduitate si tam diu casta vixerit the Wife after the death of her Husband comes into Court and challenged her Right of Free Bench and prayed to be admitted and the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring an Action by reason the Woman was not admitted was the Question for it was agreed no Fine was due to the Lord. Per Cur. If the Freehold of the Copy-hold be granted over and the Husband dyes Admittance in Law there cannot be Admittance in that Case and yet she may enter And in this case she hath done all she could for Admittance and it is an Admittance in Law to an Estate created by Custom and by act of God and Law Continual Claim amounts to an Entry Hutton p. 18. Jordan and Stone In this Case after the death of the Husband the Law casts the Estate upon the Wife before Admittance and she may make a Lease for years as any other Copy-Holder may mesme Case 1 Rolls Abr. 592. Steward will not admit Cesty que use He enters and takes the Profits Lord brings Ejectment the Defendant shall plead not Guilty If a Copy-holder Surrender to a Stranger and the Steward will not admit him and the Stranger enters and occupies the Land if the Lord Lease to a Stranger to try the Title he to whom the Surrender was made although he be not admitted may well plead not Guilty and it shall be found for him against the Lord. In the Case of Arnold and George Yelv. p. 16. agreed by the four Judges Yet Quaere for how can the Stranger make a Title to the Profits without Admittance But perhaps the reason was That the Lord seemed to be particeps criminis for it may be intended he would not suffer the Steward to admit the Defendant She who hath a Widows Estate shall make a Lease before Admittance for the Law vested the Estate in her and there is no Fine due to the Lord Noy p. _____ Remington and Cole Husband enters into the Lands in right of the Wife before Admittance Entry of the Husband in Right of the Wife and Lease by him before Admittance and the Wife dyes before Admittance yet his Lease shall be good 1 Anderson 192. Ewer and Astwick in More n. 425. mesme Case If by the Entry of the Husband without Admittance of the Wife he should be Tenant by the Curtesie and resolved he shall In what Cases the Lord shall be compelled to make Admittances and how and in what not If the Lord of the Manor for the time being be Lessee for Life or Years Guardian or any that hath any particular Interest or Tenant at Will of a Manor all which are accounted in Law Domini pro tempore do take a Surrender into his hands and before Admittance the Lessee for Life dieth or the Years Interest or Custody do end or determine or the Will is determined though the Lord cometh in above the Lease for Life or years or other the particular Tenancies yet shall he be compelled to make Admittances according to the Surrender Co. Lit. 59. b. Earl of Arundel's Case Action on Case by the Surrenderor but not by Cesty que use It was resolved in Gallaway's Case 26 El. The Party that made the Surrender may have Action on the Case against the Lord for not holding his Court and admitting him to whose Use the Surrender was made but Cesty que use cannot Chancery Chancery will compel the Lord to admit a Tenant Tothil p. 65. Custom was That a Copy-holder for Life should name his Successor for Life and to compound with the Lord if he cannot compound then the Homage to assess the Fine he tenders it the Lord refuseth to admit Action on the Case lies not against the Lord and he that is nominated hath not any Interest therein but he may compel him in Chancery Cro. Jac. 368. He that hath no Interest as a Nominee shall have no Action sur Case Ford and Hoskins 1 Rolls Rep. 125 195. ibid. 2 Bulstr 236. mesme Case The Nominee hath neither jus in re nor jus ad rem he hath a nomination only which is matter meerly in Equity he hath neither damnum nor injuriam here because he hath no Interest Littera Attornatu ad sursum reddend tenmenta Custumaria sursum redditio admissio Co. Ent. 576. CAP. XVIII Of Fines Fines certain Vncertain Vpon Descent and Purchase Of Fine Excessive What Customs are good as to payment of Fines Of Fines as to Admittances to Reversions or Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine Fines FInes due to the Lord upon Admittance are not to be paid till Admittance either upon a Surrender or Descent for Admittance is the cause of the Fine and the Parties being Admitted intitles the Lord to the Fine 4 Rep. 28. Sand's Case and Bacon's Case Though sometimes they are certain and by some Customs uncertain yet they ought to be reasonable Of Fines certain It was the Opinion of Richardson Chief Justice There is scarce a Copy-holder in England but the Fines are uncertain for saith he If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine this makes the Fine uncertain the ordinary course to search it is by Bill in Chancery Lit. Rep. 252. It was but his private Opinion for Fines are certain in great numbers of Manors And I suppose he means as to Evidence for in the Case of Allen and Abraham 2 Bulst 32. there is diversity between proof in case of Descents and Purchase The Case was this Upon not Guilty in Ejectment the matter upon the issue was about the Custom of a Copy-hold Manor whether the Copy-holders upon their Admittances have used to pay Fines uncertain at the will of the Lord or certain i. e. the value of two years Rent To prove the Fines uncertain Evidence to prove uncertainty
the Lease spent the Inheritance takes place and severs the Copy-hold from being granted by Copy after during the Lease but when that is spent it is well again Sir George Sand's Case cited in 3 Keb. p. 91. in Cholmly and Cooper's Case A. being a Copy-holder by Licence of the Lord leased his Copy-hold to Smith for years rendring Rent and afterwards by Deed granted the Rent to another Habend during the term c. to which grant the Lessee did Attorn and paid the Rent to the Grantee Per Gaudy the Grant is good but now it is but a Rent-seek Rent-seek the Grantee cannot have an Action of Debt for it for he is not party nor privy to the Contract nor hath the Reversion 1 Leon. 315. Austin and Smith Copy-holder makes a Lease for years How a Lease not warranted is good not according to the Custom of the Manor yet this Lease is good so as the Lessee may maintain an Ejectione firmae for between the Lessor and Lessee and all others except the Lord of the Manor the Lease is good Owen 17. Downingham's Case Of Leases made by those in Remainder or Reversion Tenant for Life By one in remainder by Parol the Remainder in Fee of a Copy-hold he in the Remainder makes a Lease by Parol Tenant for Life and he in Remainder joyn in a Surrender to the Use of him in the Remainder in Fee This is a good Lease and shall take effect in the life of Tenant for Life and it shall be good against him in Remainder for the Estate of Tenant for Life is extinct and cannot hinder the Lease to have operation like as he in Remainder grants a Rent-charge and after the Tenant pur vie surrenders the Rent shall commence presently Cro. El. p. 160. Dove and Williot A Lease for Life made in Reversion A Lease for Life may be made in Reversion of a Copy-holder according to Custom but whether such a Lease be void if made by Dean and Chapter per the Statute of 37 H. 8. which extends to all Colledges c. Quaere 1 Rolls Rep. 202. Long and Baker As to Remedy for Rents by Entry or Action Vide infra titulo What Statutes extends to Copy-hold Lands and sub titulo Actions and Suits What things are demisable by Copy Underwoods may be demised by Copy to one and his Heirs for this Underwood is a thing of Inheritance for after every cutting down they will grow again from the Stubbs Cro. El. 413. Hoe's Case Tythes may be demisable by Copy of Court Roll according to the Custom of the Manor for they may be parcel of a Manor as well as a Rent-charge Com. p. 43 Eliz. Sands and Drury Tonsura prati may be demisable by Copy of Court Roll according to the Custom of the Manor by Prescription per Gaudy Vide pluis supra Pleadings Custome quod tenens custumarius in feodo possit dimittere terras pro aliquo termino annorum sine Licentia Domini Cro. Entr. 123. Simile non excedens 21 annos Hern 81. CAP. XXI Of Licence What Licence shall be good By whom made shall bind or not Licence taken for a Confirmation When and where a Licence is to be pleaded specially and when and where not QUaere if Lessee for years may grant Licence to a Copy-holder to fell Timber To fell Timber The extent by Lessee how far good or not But though it be good against himself yet it is void against the Lessor because the Licence is derived out of the Interest and so can be of no greater extent than it and the Assignee of the Lessee may take advantage of it 1 Keb. 26. Muniface and Baker And by Twisden Where a Copy-holder hath Licence to fell though it were repealed by the Grant of the Lord of his Interest before the felling yet this is no Forfeiture though the Licence be determined by it ibid. Licence to make Leases Vide supra Leases The Lord Licenced his Copy-holder to make a Lease of his Copy-hold for 21 years Concurrent Lease to begin at Michaelmas following and he made a Lease accordingly by Indenture and also before Michaelmas by Deed made another Lease to another for 21 years to begin also at Michaelmas following Per Anderson The making of the second Lease was a Forfeiture the Licence is satisfied by the first Lease and so the second Lease is without Warrant and consequently a Forfeiture Lease void in Interest and good by Estoppel The second Lease is void in Interest and good by Estoppel If a Copy-holder make a Lease contrary to the Custom it is a forfeiture before the Entry of the Lessee Moor Case 329. Once a Licence to make a Lease and always If the Copy-holder make a Lease for years by Licence of the Lord the Lessee may assign this over or make an under-Lease without any new Licence for the Interest of the Lord was discharged by the first Licence 1 Rolls Rep. 509. Johnson and Smart What Licence shall be good and by whom by a Lord at will A Lord at Will of a Copy-hold Manor connot give Licence to a Copy-hold Tenant to make a Lease for years although that he may grant a Copy-hold for Life according to the Custom 1 Rolls Abr. 511. Petty and Debbans By Lord for Life Licence determinable If a Lord for Life of a Copy-hold Manor give Licence to a Tenant to make a Lease for years this Lease shall not continue longer than the Life of the Lord ibid. 2 Brownl p. 40. mesme Case Licence to make a Lease upon condition void Aliter upon a Limitation The Lord licenceth a Tenant to make a Lease upon Condition the Condition is void for the Lord giveth nothing by the Licence but doth only dispense with the forfeiture A Licence gives not a Right but only executes it but a Limitation to such a Licence is good as a Licence to let for two years he cannot Lease for three years Owen p. 73. Haddon and Arrowsmith If a Copy-holder makes a Lease for years by Licence of the Lord Copy-holder leaseth for years and dyes sans Heir if determined Licence taken for a confirfmation and dyes without Heir the year not expired Some say the Lord may enter for the Estate out of which this Lease was derived is detemined Yelv. contra This Licence shall be taken as a confirmation of the Lord and the Lease shall be good against him Popham 188. Pleadings When and Where a Licence is to be pleaded specially and when and where not In Ejectione Firmae brought by the Lessee of a Copy-holder it is sufficient that the Count be general without mentioning of the Licence 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 in this Case the
commits a Forfeiture he in the Remainder shall not enter but the Lord because the Remainder is to commence in possession after the death of the Lessee by the Custom Where the Lord shall take advantage before Presentment or not Presentment where material or not Presentment is not of necessity but for the Lords better Instruction of the Title and he may if he will take advantage of the Forfeiture before Presentment Cro. El. p. 499. in East and Harding's Case And therefore the distinction of Coke's Copy-holder is frivolous except the Custom is so though as for those Offences which by common presumption the Lord himself cannot have notice without notice given are usually presented as if a Copy-holder commit Felony or Treason or be Outlawed or excommunicate a Presentment seems necessary that the Lord may have the profits of his Copy-hold Land So if a Copy-holder alien by Deed or do a thing notorious as cutting down and selling of Trees of the Copy-hold Land by the Tenant it s not material whether it be presented by the homage or not 3 Keb. 641. Pascal and Wood's Case The presentment is to give notice to the Lord and not to intitle him and he may take notice if he will Lach. p. 227. Where and in what Cases the Forfeiture of one Copy-hold is the Forfeiture of another and where and in what Cases not as to Estate or persons Divers Copy-holds were granted by one Copy and several Habendums and several Reddendums for every of them What Forfeiture of part shall be of the whole or not and they all began at one time and were to end at one time the Copy-holder commits waste in one of the Copy-holds The Question was Whether that should be a Forfeiture of them all Per Cur. they are as several Grants and several Copies and the Forfeiture of the one is not the Forfeiture of the other Cro. El. p. 353. Tavernor and Cromwel 24 Rep. 14. mesme Case It s not material if the Copy-hold be in one or several Copies but if the Tenure be one or several If a Copy-holder make a Feoffment of one Acre of Land parcel of his Copy-hold all the Copy-hold is not forfeited by this but only this Acre p. 41. El. B. R. Fuller and Terry But if a Copy-holder cuts down a Tree which grows upon one Acre of Land parcel of his Copy-hold this is a Forfeiture of all his Copy-hold for that the Trees are to be employed in Buildings and Reparation of the Houses and Copy-hold and therefore by the making of waste all the Copy-hold is empaired So 3 Keb. 641. Pascal and Wood. If divers Copy-holds Escheat to the Lord and he re-grants them to another Tenendum per Antiqua Servitia c. they shall be severally held as they were before the Escheat 4 Rep. 27. And the Fines shall be several as Hubart and Hamond's Case 4 Rep. 28. and consequently the Forfeitures Tenant for Life Where the Forfeiture of one person shall be the Forfeiture of another persons Estate and where not Remainder in Fee of a Copy-hold Tenant for Life commits a Forfeiture by waste and the Lord enters this shall not bind him in Remainder Trin. 39 El. B. R Rastal and Turner But the Lord shall hold it during the Life of Tenant for Life So Custom is upon Surrender made to one and his Heirs if three Proclamations pass and he doth not come in to be Admitted that the Estate shall be forfeit Remainder not forfeit by the act of Tenant for Life Surrender is made to A. for Life the Remainder to B. in Fee A. comes not in this shall not forfeit the Remainder Yel p. 1. Baspool and Lond. For the Estates of A. and B. are divided Estates and the Custom shall be intended of an entire Fee-simple given to one person and the Custom being to bar an Estate shall be taken strictly It is made a Quaery in that Case of Yelverton If such a Surrender be made to A. and B. and their Heirs and A. comes within the time of the Proclamations and B. not if A. shall have all or that a moiety shall be forfeit I conceive a moiety shall be forfeit to the Lord as being Joynt-Tenants But Quaere farther of Co-partners in such case who are but one Heir Cro. El. 879. mesme Case Lessee forfeits his own Estate and not the Estate of his Copy-holder If a Copy-holder let for years by Licence of the Lord and after the Lessee makes a Feoffment this shall forfeit only his Estate and not the Estate of the Copy-holder 1 Rolls Abr. 509. White and Hunt If a Woman Copy-holder takes Husband and the Husband makes a Lease for years although the Lord enters for the Forfeiture yet after the death of the Husband this is no Forfeiture to the Wife but that she may well enter Where the Wife shall suffer for the Forfeiture of her Husband or not for this act was a wrong to the Wife as well as to the Lord and where it is a wrong to the Wife there is no reason it should be a Forfeiture 1 Rolls Abr. 509. Cro. Car. 7. Savern and Smith's Case But if the Husband seized of a Copy-hold in right of the Wife do waste this Forfeiture shall bind the Wife after the death of the Husband for this act was not any wrong to the Wife but lawful as to her and only a wrong to the Lord 4 Rep. 27. Note the difference Copy-hold is demised to two for Life successive Cutting of Trees by Tenant pur vit is a Forfeiture of the Remainder for Life where the Custom is they may not cut Trees the first Tenant cuts it s a Forfeiture of him in Remainder as well as of his own Estate if a Stranger cuts Trees or another who occupies at their sufferance this is a Forfeiture of the Copy-hold Moor 149. but Quaery of the last What is a dispensation of a Forfeiture or what acceptance or act shall purge a Forfeiture or not The admittance of an Heir of a Copy-holder by a Dominus pro tempore Admittance is a dispensation with a precedent Forfeiture 1 Keb. 26. Muniface and Baker Admission by the Lord dispenseth with a former Forfeiture Tothil 107. Clerk and Wentworth Aliter had the Lord seized an Herriot And yet if the Father commits a Ferfeiture and dyeth and the Son is admitted as Heir by descent this purgeth not the Forfeiture because the Father dying seized of no Estate the Son cannot be admitted to any Tothil p. 107. If the Tenant be amerced Amerciament the amerciament dispenseth with the Forfeiture though the amerciament be not estreated or levied 1 Leon. 104. Sir John Braunches's Case If a man comes into a Copy-hold tortiously Disseisor is admitted by the Lord and he makes a Lease not warranted a Release from the Disseisee purgeth and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture
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
the Goods in such Case it is good because it is as a Pledge 2 Leon. p. 725. Parker's Case Where Harriot shall be apportionable or not By the Act of the Lord. Tenant Lord and Tenant by Fealty and Harriot Service and the Lord purchaseth part of the Land the Harriot Service is extinct because it is intire valuable Aliter of Harriot Custom for if the Custom of a Manor be That upon the death of every Tenant of the Manor that dyes seized of any Land holden of the said Manor the Lord shall have an Harriot although the Lord purchase parcel of the Tenancy yet the Lord shall have an Harriot by the Custom of the Manor for the residue for he remains Tenant to the Lord and the Custom extends to every Tenant Co. Lit. 149. b. 6. Rep. 1.2 Bruerton's Case 8 Rep. 105. Talbot's Case 106. Feme by Custom is to have a moiety by Survivor and if Harriot be to be paid for the whole if it be part surrendred both shall pay Harriots 1 Keb. 356. Muniface and Baker Act of the Tenant If Tenant alien parcel of the Tenancy entire Services as Homage Fealty Harriot c. shall be multiplied Solida a singulis praestantur If my Tenant who holds of me by an Harriot aliens parcel of his Land to another each of them is chargable to me with an Harriot because it is entire and though the Tenant purchase the Land back again I shall have of him for every portion an Harriot 6 Rep. 1. Bruerton's Case 8 Rep. 105. Talbot's Case 34 Edw. 3.1 Copy-hold was held by Rent and Harriot upon Alienation and Surrender Copy-holder aliens parts of his Copyhold to one and part to another and retains part in his Hands and surrenders to the Use of the Alienees Per Cur. the Lord shall have an Harriot upon every alienation in case of a Copy-holder as well as a Tenant at Common Law If they should not be multiplied it would be in the power of the Tenant to defraud the Lord by Alienation of parcels and in this case the Alienor pays the Harriot because he continues Tenant and upon every Alienation after by the Alienees they shall pay it Palmer's Rep. 342. Sir Francis Snag against Fox 1 Keb. 357. If a Copy-holder being sick in his Bed doth surrender into the Hands of two Tenants c. to the Use of his eldest Son in Fee and dyeth before the Surrender is presented in Court the Lord must have an Harriot If Surrender had been presented in Court and Admission before the Father's death Aliter If an Harriot is due to the Lord upon every descent only and a Surrender is made by a Copy-holder unto the Use of his Heirs in full Court and to his Heirs and the eldest Son is admitted Tenant accordingly and the Father dyeth the Lord shall have no Harriot Who shall pay an Harriot and when or not Where many Purchase Land joyntly an Harriot shall not be paid till after the death of the Survivor 8 Rep. 105. If by Custom a Copy-holder dyes seized he shall pay an Harriot to the Lord and after the Copy-holder is disseised and dyes during the disseisin yet he shall pay an Harriot within this Custom for he was Tenant in right notwithstanding this disseisin 2 Rolls Abr. 72. Norris's Case Lease is made to A. for 99 years if B. C. and D. or any of them so long shall live to commence after the determination of a former Lease rendring Rent after the commencement of the term ac etiam post mortem B. C. D. respective for an Harriot 3 l. B. dyes before determination of the first term and Lessor brings det for 3 l. for an Harriot Per Cur. no Harriot is due because coupled with a Rent and no Rent is due during the interesse termini but both begin together Siderfin p. 437. Hangon and Carve Lease is made for 99 years if I. and S. live so long to commence after the determination of a former Lease to Sibel if Sibel lived so long reddendo 40 s. per annum and 3 l. in the name of an Harriot post mortem of each Cesty que vie Per Cur. the Harriot ought not to be paid till the Lease come in possession which is not till Sibel dye at which time the second Lease takes effect and this shall follow the nature of the Rent being in company with such Rents and Services as are to be only done when the Lease comes in possession and the Lease to Lessee for 99 years is but a future Interest where the Lessor hath no Reversion nor the Lessee any term and reddendo is a reservation and therefore cannot take effect till there is a Reversion but Keeling contra this being a sum in gross and here is an express agreement to pay after the death of either of the Parties and agreements may reach payments as well on contingency as where the Party hath Interest 1 Keb. 677. Lemal against Cara. Who shall have an Harriot A. is Copy-holder for Life of Lands Harriotable by the Custom if he dye seized and the Lord grants the Freehold of the Copy-hold to B. for 99 years if A. the Copy-holder so long live the Remainder to A. for 1000 years and afterwards A. assigns over his Lease of 1000 years to C. and afterwards A. makes F. his Executor and dyes seized Per. Cur. C. the Assignee of 1000 years shall not have an Harriot because at the time of the death of A. when the Harriot became due he was not Lord but had only a future Interest and if any Harriot be to be paid the Executor of A. or the Lord in Fee shall have it P. 15 Jac. B. R. Norris and Norris 2 Rolls Abr. 72. This Case in March p. 23. is Reported thus The Lord granted the Seigniory for 99 years if the Tenant should so long live and after he made a Lease for 4000 years Tenant for Life is disseized or more properly ousted and dyed Two points resolved 1. An Harriot was to be paid notwithstanding the Tenant did not dye seized because he had the Estate in right and might have entred 2. He in the remainder for years should not have it their reason was because the Tenant for Life was not the Tenant of him who had the future Interest of 4000 years but of him who had the Interest for 99 years but the Court was not agreed that the Grantee for 99 years should have the Harriot the reason of the doubt was because that eo instante the Tenant died eodem instante the Estate of the Grantee for 99 years determined A Bishop is seized of the Manor of D. and he lets twenty Acres of it to A. and B. during the iives of their three Children rendring 21 s. Rent per Annum and also paying and delivering to the Bishop and his Successors two of the best Beasts upon the death of every Cesty que vie The Bishop after lets all the Manor to W. rendring the ancient
a descent of Inheritance at Common Law there the Defendant may plead a Feoffment made by the Ancestor absque hoc that he died seized because he may have an Estate by disseisin after the Feoffment Traverse of the descent and not of the dying seized is not good March p. 21. Anonymus Copy-hold Land was granted by the Lord of a Manor 10 May 3 Car. to the Wife of Tho. Kett and in the Replication the Defendant justifies as Bayliff to Tho. Kett the Plaintiff confesseth the Land is Copy-hold Land but that the Lord granted it 1 Jac. to N. S. in Fee who had two Daughters the Wife of the Plaintiff and the Wife of Tho. Kett and died seized and that the Lands descended to them upon which it was demurred By Berkley the Grant of the whole ought to be traversed Coparceners or confessed and avoided for the first Grant shews that the Defendant was in of all and the descent to the Wife is but for a moity Dyer 171. pl. 8. Per Cur. upon the whole matter disclosed Quaere if a Coparcener cannot distrain upon the Land of another Matter of Form damage fesant and the matter of form in the pleading ought not to be regarded by the Judges upon Statute 23 El. Cap. 5. Judgment was pro Quer. Hutton said The descent which was pleaded makes the second Grant void but by Richardson Though it be avoided yet it is not confessed Hetly p. 114. Port and Yates In Replevin the Defendant avows for damage fesant by reason of a Copy granted to him of the place where c. by the Lord of the Manor Cooper Bishop of Winchester The Plaintiff saith That before Cooper Horn was Bishop by whose death the Temporalties came into the Queens Hands and this Copy-hold during the time that the Temporalties were in the Queens Hands Escheated and the Queen granted it to the Plaintiff in Fee by force whereof he put in his Beasts If there is not confessing and avoiding there must be a Traverse and traverseth the Grant by Cooper Per. Cur. this Traverse is good and ought to be for there is not any confessing and avoiding because he doth not confess the Seisin and grant by Copy but if he had confessed That the Bishop had entred and granted it by Copy Where needs no Travers then there needed not any Traverse So where one justifies by Lease from J. S. the Plaintiff saith That J. S. enfeoffed himself it is not good without a Traverse Cro. El. p. 754. Covert's Case In Ejectment Ancient Demesn pleaded Replication That they are Copy-hold and Traverse The Defendant pleaded that the Lands were ancient Demesn and pleadable by a Writ of Right Close c. The Plaintiff shews That they were Copy-hold Lands and parcel of the Manor and entitles himself by Lease under the Copy-holder and traverseth That they were impleadable by a Writ of Right Close the Traverse is well enough taken Cro. Jac. 559. Pimmock and Helder The Avowant hath Election to Traverse any part of the Plea which goes to the end of the Action or justifies the Action Traverse the consequence In Ejectment the Defendant pleaded That the Lands were ancient Demesn and pleadable by a Writ of Right Close c. the Plaintiff shews they were Copy-hold Lands parcel of the Manor and intitles himself by Lease under the Copy-holder and traverseth that they are impleadable by a Writ of Right Close Demurrer because this Traverse that they were impleadable is but the consequence of ancient Demesn and therefore not traversable but Per Curiam that the Traverse is well enough taken Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom If the Plaintiff in his Rejoynder confesseth a particular Custom he ought to Traverse the general Custom alledged by the Defendant as in Replication the Defendant alledgeth a general Custom Quod quaelibet femina cooperta viro joyning with her Husband in a Surrender of Copy-hold Lands and being privately examined by the Steward that this by the Custom is a good Surrender the Plaintiff replies That there is a Custom in the Manor quod quaelibet c. who is of full Age may Surrender but the Wife who surrendred here was of full Age and doth not traverse the other Custom And Per Curiam it was ill Lit. Rep. 174. Anonymus Presidents and Forms of Pleading as to Copy-hold Estates The Form of Pleading that a Messuage is parcel of a Manor dimissibil dimiss per Copiam 1 Sanders 146. Wade and Batch That the Lands are Copy-hold Lands c. 2 Sanders 321. Pleading of a Surrender made in the Court of the Lord of the Manor to the Use of J. W. in Fee and of the Grant of the Lord to the said J. W. accordingly 1 Sanders 146. Pleading of the Surrender of a Remainder of a Copy-hold Estate to one for Life to another for Life to another in Fee and admission of them accordingly 1 Sanders 147. Pleading the Admittance of two Tenants in the Remainder for Life the Remainder in Fee 1 Sanders 147. Wade and Batch The Form of Pleading Copy-hold in Fee-simple in Tail for term of Life or Years In Fee-simple Hern p. 80. Co. Entr. 10. 647. Estate 3 Br. 463. Hern 227.607 In feod simplici Tail Life or Years Ra. Ent. 627. Co. Ent. 206. U. B. 128 157. Co. Ent. 657 123. Hern 679. Ad terminum vite vel vitarum Hern 653. Ad terminum 2 vitarum successive Hern 72. Ad terminum 1 2 vel 3 vitarum successive Hern 83 123. Simile in possessione Hern 711. Ad terminum vite vel vitarum tam in possessione quam in Reversione Co. Ent. 373 672. Ad terminum 1 vel 2 vitarum in possessione 1 vite in Reversione Hern 724. Ad Terminum 1 vite in possessione 1 vel 2 vitarum in Reversione Hern 254. Ad terminum 1 2 vel 3 vitarum in possessione vel 2 vitarum in reversione unius vite in possessione Coke Ent. p. 184 3 Br. 745. Pleading Surrender Surrender in Cur ad usum in feod Ra. Entr. 627. Co. Entr. 206. 3 Br. 465. Extra Curiam in manus 2 Tenentur ad usum in feod Co. Entr. 575 645. Usi Extra Curiam ad usum W. pur vie Remainder al Baron Feme Heires de Feme Co. Entr. 207. In manus Dom Co. Entr. 575. Per Tenant pur vie de moiety al use des Fitz Hern 255. Per 2 Tenants pur vie al intent de regrant Hern 656. Per Feme Covert secretur examinatur Co. Entr. 576. 3 Br. 465. Per Attorn secundum consuetudinem Manerij Co. Entr. 657. Per literam Attoruatur Co. Entr. 576. Presentment per l' homage de surrender extra Curiam Co. Entr. 206. Simile per tenentur jacen in extremis Co. Ent. 206. Admissio secundum sursum redditionem Co. Entr. 207 575 bis 577 645 657. Admissio heredis super
per Copie Co. Ent. 180. per Title Surrender Admittance Fine Repl Bar per Title al custumarie terres al J. Feme de H. in Fee descent al Def. Repl H. J. ad talem curiam ead J. existen sola examinatur per seneseal surrender al use de quer Rej. maintenance de discent travers quod J. fuit sola examinatur 3 Brownl 270. TrnsÌ„ Bar quod J. seisitus de terris custumar surrender al use de S. qui fuit admit descent Def. replie qd I. surrender sur condicon de payment Et quod obtulit denar quos def recusavit Rej. non obtulit denar Co. Ent. 657. Repl Bar quod D. seisitus de maner grants custumar terres al Def. pur vie Replic S. prius seisitus de Maner grant al Plaintiff pur vie Rej. Plaintiff surrender al use del J. c. Surrej maintenance del Avowry Traverse le surrend Hern 653. 753. Vide. Surrender Descent Avowre que W. Roy seise de Manor grant in Fée al M. qui surrend al use de Def. ReplÌ„ W. prius seisitus de manerio grant al J. de quo descend al P. qui surrend al use de M. pur vie qui demise al querenti Rej. W. devant grant al J. grant al B. de quo descend al M. qui surrend al Def. Et Traverse grant al J. Co. Ent. 575. TrnsÌ„ Bar quod E. seisitus de Manor pur vie grant al Def. in Fée ReplÌ„ H. seisitus de rever de Manor puis mort de E. grant terres al quer Traverse grant al Def. Co. Ent. 660. TrnsÌ„ Bar quod Abbas seise de Manor grant custumar terres al J. H. in Fée H. surrend al use de R. qui fuit admitur de luy descend al Def. Replic quod Terres descendebant juniori filio per consuetur manerij Abbot granted al dit R. contra consuetur qui mor seise Abbas restituend grant al quer junior filio traverse que Abbas granted al J. H. Rast Ent. 627. TrnÌ„s Bar quod dominus manerij ob certas causas seisivit terras custumarias unde E. fuit seisitus pur vie grant al M. in Fóe. E. Release M. Surrend al use de Def. qui fuit admissus ReplÌ„ E. mor seisie discent querentur Traverse le Release 3 Browl. 463. TrnsÌ„ Bar quod T. seisitus de Manor grant per Copie al Def. pur vie ReplÌ„ Abbot prius seisitus grant al R. pur vie puis grant le Revereon al Plaintiff pur vie Rej. Abbot devant grant in reversion demise Manor pur ans al J. le Roy seise per surrend del Abbot grant Manor al dit T. Surrej Maintenance de grant in Reversion per Copie Traverse demise de Manor Co. Entr. 662. TransÌ„ Bar ê‘ frank-tenement ReplÌ„ que terre fuit customar fuit grant per Copie pur vies Et per Custome Feme Plaintiff est seise pÌ„ son free Bench 3 Brownl 474. TrnsÌ„ Bar ê‘ frank-tenement Replic R. seisitus de Manor grant ê‘ Copie en Fée al J. qui surrender al use de Plaintiff qui est admit Rej. ê‘ consuetud maner Dominus habere debet finem pro admissione Et quer forisfecit terÌ„as ê‘ finem insolutur SurÌ„ej finis non fuit rationabilis Demur inde Co. Ent. 657. Quod J. seisitus de maner unde terÌ„e custumar discend fun filio ê‘ consuetur concessit terÌ„as viro Vx. herÌ„d viri Vxor suê‘ vixit reversio discend fratri de eo dese juniori filio Hern 679. Bar in Repl quod T. W. was seized of the Manor of H. unde locus in quo est parcel custumar terÌ„es in Fee Custom of the Manor was for every Tenant to hold successive as they are named in the Copy W. grants to Iohn Podger and E. and M. his Daughters for their Lives Iohn enters and was seized for Life he dyes and E. enters and was seized for Life she afterwards marries the Plaintiff by which he was seized in right of his Wife and put in his Beasts until c. and avers the Life of the Wife Repl Def. protestando the place in Question is not parcel of the Manor of H. c. pro placito he confesseth the seisin of W. of the said Manor unde c. and that there was such a Custom as the Plaintiff hath alledged and that W. granted to Podger and his Daughter for Lives and shews the entry and seisin of the Father But farther saith That W. by Indenture Enrolled bargained and sold the place in Question to Iohn Podger in Fee and the Act of 27 H. 8. De uses proclamatur upon a Fine according to the 4 H. 7. and the Fine levied to the Use of Iohn Podger in Fee he dyes and the Premisses descend to Marmaduke his Son who levies another Fine of the Premisses to the Use of him and M. his Wife and the Heirs of the Husband The Husband dies his Wife survives and enters into the Premisses and after the Plaintiff enters and puts in Beasts c. upon whose possession the Wife re-enters and the Defendant takes the Beasts of the Plaintiff E. did not claim within five years and that the Plaintiff and his Wife were barred Upon Demurrer general to the Replication and Rejoinder the Judgment of the Court was That the Fine was not a bar Winch Ent. p. 926 ad 929. Vide the Argument of this Case 9 Rep. Margaret Podgers Case Avowry ê‘ Lessée pÌ„ ans del Evesque pÌ„ Damage Fezant averre le vie del Evesque Bar que le lieu est parcel d'un Mannor demisable ê‘ Copie intitle luy mesme ê‘ Copie grante ê‘ pdecessor del Evesque Defend maintaine son Avowry Traverse le Prescription del Copy-hold placita Gen Spec 579. Bar to the Conisance in Replevin That the 10 Acres are Copy-hold parcel of the Manor of W. And King H. 8 seized of this Manor grants by Copy the said 10 Acres to R. D. he dies and a descent to Grace and Alice his Daughters and Co-heirs Grace dies a descent to S. E. her Son who demiseth his part for a year Kepe the Defendant protestur that the 10 Acres are not Copy-hold and that King H. 8. had not granted to R. pro plto That King H. 8. was seized of those 10 Acres in Fee in jur corone and died seized and descent to King Edw. 6. who grants them to K. F. and W. F. in Fee R. releaseth to W. W. dyes sole seized descent to W. his Son and Heir W. the Son dies without Issue descent to K. Father of W. in the Conisance Fine with Proclamation to the Use of R. F. Father of the said W. in the Conisance named seisin in Fee R. dies descent to W. named in the Conisance who entred and was seized in Fee and because the Beasts were Damage fesant he maintains his Conisance Demurs
corpore ejusdem K. Legitime procreatur pro defectu talis exitus remanere inde prefatur H. J. heredibus de corpore suo Legitime procreatur pro defectu talis exitus remanere inde prefatur A. Vxori pdictur H. J. heredibus de corpore ejusdem A. Legitime procreatur pro defectu talis exitus remanere inde pfatur V. S. heredibus suis imperpetuum ad voluntatem Domini secundum consuetudinem Manerii pdictur ê‘ redditur servitia inde prius debitur de jure consuetur Et pdictur D. K. Vx. ejus dant Domino de fine pro tali statu suo inde habend centum solid admissi sunt inde tenentes modo forma predictur c predictur Dominus concessit se satisfactur de predicto fine inde habend ê“ Messuagio Cottagiis ceteris premissis predictur cum pertin de predictur D. K. Vxore ejus cum predictur Messuagiu Cottagia cetera premissa pdictur cum pertin post mortem predictur A. Vxoris predictur J. H. ad manus sua devenerint Et postea ad hanc curiam venit predictur F. J. in propria ê‘sona sua hic in plena curia sursum reddidit in manus Domini tota jus titulu clameu interesse sua in omnibus predic Messuagio Cottagiis ceteris premissis cum pertin ad usus predictur ulteris remisit relaxavit omnino ê“ se heredibus suis quietur clamavit prefatur H. J. A. Vxori ejus totum jus titulum clameum interesse demaund sua que ipse Tâ—â— unquam habuit in predictur Messuagio Cottagiis ceteris premissis predictur cum ê‘tin habend tenend omnia singula pdictur Messuagium Cottagia cetera premissa pdictur cum ê‘tin pfatur H. J. Vxori ejus ê“ termino vite pdictur A. post decessum ejusdem A. remanere omniu pdictur terraru tenementor cum ê‘tin pfatur D. T. K. Vxori ejus heredibus de corpore pdictur D. Legitime procreatur ê“ defectu talis exitus remanere inde pfatur K. Vxori pdictur D. heredebus de corpore ejusdem K. Legitime procreatur ê“ defectu talis exitus remanere inde pfatur H. J. heredibus de corpore pdictur H. J. Legitime procreatur pro defectu talis exitus remanere inde pfatur A. Vxor ê‘dictur H. J. heredibus de corpore ejusdem A. Legitime procreatur ê“ defectu talis exitus remanere inde pdfatur V. S. heredibus suis imperpetuu ad voluntatem Domini secundu consuetud manerii pdictur c. After abatement and intrusion the Lord seizeth the Lands and grants them to the Abator for term of Life Remainder to the next Heir of the Disseisee and in Tayl Remainder in Fee Compertu est ê‘ homagiu ibid quod quidam O. B. Miles defunctur tenuit de Domino hujus Manerii die quo obiit sibi heredibus suis ad voluntatem Domini secundum consuetudinem Manerii pdictur unum MessuagÌ„ c. cum ê‘tin in A. pdictur infra Maner pdictur quod pdictur O. obiit de tali statu suo inde seisitur ê‘ sex annos â—am ultimo elapsos amplius quod quida H. R. in jure Vxoris sue quonda uxoris L. B. Arm filii pdictur O. B. immediate post decessu pdictur O. B. in pdictur MessuagÌ„ c. cetera premissa pdicta cum ê‘tin abatavit intravit intrusit super possession DnÌ„i Manerii pdictur in exheredetation dicti Dom Manerii pdictur successor suor contra consuetud Manerii sui pdictur a tempore cujus contrarii meomria hominu non existit in eod Manerio usitatur approbatur exitus ê“ficua inde a tempore mortis pdictur O. B. ad suu propriu usu hucusque habuit percepit nor capiend pdictur MessuagÌ„ c. cetera pmissa pdictur cum ê‘tin extra manus Dom Manerii predictur nec fecit inde DnÌ„o fine ê“ eisdem secundum consuetud Manerii sui pdictur sic pdictur H. R. tenuit occupavit pdictur MessuagÌ„ per pdictur sex annos ultur elapsos amplius contra consuetud Manerii pdictur Ideo pceptu est ballivo Manerii pdictur seisire in manus Domini pdictur MessuagÌ„ c. cetera premissa pdictur cum ê‘tin quousque c. Et Dominus modo habens inde seisinam ad humilem petitionem pdictur H. R. ex gratia sua speciali ad hanc curiam concessit extra manus suas pdictur MessuagÌ„ c. pfatur R. H. A. Vxori ejus ad terminum vite ipsius A. liberata est eis seisina ê‘ virgam Habend tenend pdictur MessuagÌ„ c. pfatur R. A. ad terminum vite ipsius A. ad voluntatem Domini secundum consuetud Manerii pdictur post decessum ipsius A. remanere inde quibusdam D. T. K. Vxori ejus consanguin proxime heredibus pdictur O. B. videlicet filie pdictur L. B. filij O. B. heredibus de corpore pdictur D. T. Legitime pdictur procreatur pro defectu talis exitus remanere inde pfatur K. c. with Remainder over in Fee to V. S. tenend de Domino per virgam ad voluntatem Domini secundum consuetudinem Manerii pdictur per redditur servitia inde prius debitur de jure consuetur Et tam pdictur H. R. A. Vxor ejus quam pdictur D. T. K. Vxor ejus dant Domino de fine ê“ tali ingressu suo inde habend de in premissis 5 libras fecer Dom fidelitatem admissi sunt inde tenentes modo forma pdictis c. Surrender out of Court to several Uses upon a Marriage Settlement Compertum est per Homagium ibid quod A. B. qui tenuit ut supra unu MessuagÌ„ sive Tenementum vocatur c. in A. infra Manerium pdictur citra ultur Curia extra Curia sursu reddidit in manus DnÌ„i per manus H. K. J. W. duor custum tenen Manerii pdictur secund consuetud Manerij illius pdictur Messuagiu seu Tenementu cetera premissa pdictur cum ê‘tin ad opus usu pdictur A. B. Hered Assign suor usque ad solempnization cujusda intensi marritagÌ„ permissione Divina cito habitur solempnizatur inter quenda C. D. filium heredem apparen pdictur A. B. ex una parte quandam A. D. de A. pdictur Spinster ex altera parte ab immediate post solempnization ejusd MaritagÌ„ tunc ad opus usu pdictur A. B. pro durante termino vite sue naturalis ab immediate post ejus decessum tunc ad opus usum S. Vxoris ejus pro durante termino vite sue naturalis ab immediate post decessus Anglice deceases ipsorum A. B. S. Vxoris ejus decessum eor superviventis tunc
The nature and effect of a Presentment 139 Two Surrender and the second Surrender is first presented 140 What will make a possessio fratris so as to inherit a Copy-hold Priviledges of Copy-hold 18 19 20 R. Popish Recusant shall forfeit all his Copy-hold Land within 25 El. c. 10. 253 Copy-hold Rents apportioned 188 Action of Debt lyes not for Arrears of Rent within the Statute 32 H. 8. 250 One Lease of Freehold and Copy-hold the Rent issues out of both 187 Avowry for Rent by Lessee of a Copy-holder 262 S. Steward 75 Deputy acts done by him or his Servant shall be good so by a reputed Steward 76 77 Infant cannot be a Steward 77 Surrender 95 The nature of a Surrender ib. Where and in what respects Estates may pass otherwise than by Surrender 99 The Lord not compellable to make a Surrender 49 Where Surrender is sufficient without Admittance 102 Where Admittance is sufficient without Surrender 102 103 Of Surrenderss out of Court who may take them and what are good or not 105 In whom the Reversion after a particular Estate remains 104 Surrender by Attorny and form of the Entry 107 108 What shall pass and by what words in a Surrender 109 Construction of a Surrender where no use is limitted 110 Surrender passeth no Estate by Implicacition Where an Use is limitted in a Surrender how far the construction shall be according to the Rule of the Common Law 113 Surrender to an Use upon an Use ibid. Surrender to the Use of ones Wife 13 125 Where a Surrender is void for uncertainty 113 Surrender to the Use of a person not in esse 115 to the Use of one in ventre sa mere 116 Of a Surrender to take effect in futuro ibid. Construction of Surrenders and limitations in Remainder or Reversion 118 119 If a Surrender makes a discontinuance 217 Surrender to the Use of a Mans last Will and how to be construed 124 Surrenders upon condition or contingency 120 221 122 129 Where a Surrender before Admittance shall be good and where not 130 Surrender by Husband of the Wifes Land Surrender by Joynt-Tenants 127 131 Surrender by a Feme Covert 133 Surrender of the Wives Land 134 Surrender to the Steward to the Use of the Steward is good ibid. Countermand of a Surrender 135 What remedy to force a Trustee to surrender 135 Surrender not good till presented 136 Heir decreed to Surrender on Contract with the Ancestor 327 Relief in equity as to Surrender 323 Defendant decreed to Surrender according to Agreement ibid. hold shall not be extended 237 If the Copy-holder bind himself in a Statute the Copy Within what Statutes of Parliament Copy-hold Lands are contained and within what not 247 c. Services not to be performed by Attorny T. How Copy-holds are Entayl'd and how dockt and barred 165 166 c. How the Statute VV. 2. creates an Estate Tayl 166 167 In what cases Trespass may be brought by the Copy-holder against his Lord 257 Trespass by a Copy-holder for Beasts depasturing on the Common 260 Tryal The time of the Surrender or of the Courts being held to be tryed by the Jury and not by the Court-Rolls 307 When Issue is taken upon a Surrender where to be tryed 310 Traversing the day of the Grant Traversing the dying seized of the Copy-hold 246 205 Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom 228 V. Copy-hold not determined or forfeited by Utlawry Special Verdict 311 Custom not well found 312 Failer of Prescription 313 Jury must find directly and not argumentatively ib. Custom must be found in the manner that he pleads it 314 Verdict aided 318 Statute 27 H. 8. of Uses extends not to Copy-hold 252 Venue 310 VV. Surrender to the Use ef a Man's last Will 115 Copy-hold devised without Surrender executed by decree in Chancery 326 Customs as to Woods Underwoods 58 What Copy-holders may cut Trees and in what cases and to what purposes Custom to sell Trees 58 Copy-hold Lands are not within the Words of the Statute 34 H. 8.5 of Wills Quaere If within the Equity 253 A TABLE OF THE Precedents A Settlement before Marriage of a Copy-hold Estate where according to the Custom of the Manor there is a dead Year after the death of every Tenant grantable by the Tenant in his Life-time and his Widow enjoys the Estate durante castitate if he surrender or alien it not in his Life-time with permission That the Goods of the Wife shall remain at her disposal and that her Husbands name may be made use of to sue for her Debts but the Monies to be secured by the Trustees to her use 329 Covenant to Surrender Copy-hold Land after bargain and sale of Free-hold 334 Covenant that he is rightfully seized of Copy-hold Land 335 A Covenant to surrender Copy-hold Lands ibid. A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time 337 A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts 339 A Surrender in Trust and the Trust declared Trustees covenant not to commit c. any thing that may amount to a Forfeiture 342 An Infranchisement of Copy-hold Lands made by a Lord of a Manor to his Copy-holder 344 A Lease of Copy-hold Land with the Lords Licence 348 A Release of Copy-hold Estate 350 Precedents of Copies of Court Rolls Presentments Surrenders Admittances Releases Proclamations for not coming in c. A Surrender 253 A Surrender of Copy-hold Lands for Life the Remainder in Fee taken by the Steward out of Court 355 A Surrender out of Court of a Reversion to the use of a Man and his Wife and the Heirs of the Body of the Husband the Remainder to the Heirs of the Body of the Wife the Remainder to the Husband of the present Tenant for Life in Tayl the Remainder to the present Tenant for Life in Tayl the Remainder to another in Fee with the Lords acknowledgment of satisfaction of a Fine The Surrendror surrenders all his Right c. to the Husband and Wife the present Tenant for Life to the Uses aforesaid 356 After abatement and intrusion the Lord seiseth the Lands and grants them to the Abator for term of Life the Remainder to the next Heir of the Disseisee in Tayl remainder in Fee 358 Surrender out of Court to several Uses upon a Marriage Settlement 360 Presentment of a Surrender made in Court with the Admittance of the Tenant next Heir 361 The finding the death of a Tenant and of the Lands and Heir with the Admission of the Tenant and a Presentment made in Court between the Heir and his Mother touching her Dower and the Mothers Release of her Dower 362 Presentment of the Copy-hold Customs of a Manor 376 367 Surrender by Baron and Feme 369 Surrender to the Use of ones last Will 370 Grant of the wardship of a Tenant ibid. Surrender of right Title and Interest
to him might have been barr'd and interrupted by non-claim so in case of forfeiture the reason of the Rule is because the Law conceives he will have that knowledge to preserve his right when he is of full Age Carter's Rep. 86. in Smith and Painton's Case It was holden in Rumny and Eve's Case Not bound during his Minority to pray Admittance 1 Leon. p. 100 Pl. 128. If a Copy-holder dyeth his Heir within Age he is not bound to come into any Court during his non-age to pray admittance or to tender his Fine An Infant who surrenders his Copy-hold Land within Age may enter at his full Age Infant Surrenders he may enter at full Age. without being put to any Suit for it A Case cited in Popham 39. in Bullock and Dibler's Case Infant Copy-holder in Fee makes a Lease for years without Licence Infant shall not forfeit by making a Lease without Licence Acceptance at full Age makes it good to Lessee rendring Rent at full Age he accepts the Rent and after outs the Lessee Lessee brings Ejectment and Judgment for Lessee Per Cur. this Lease may be affirmed by acceptance and such a Forfeiture shall not bind an Infant 8 Rep. 44. Noy 92. Of Copy-holds and Copy-holders in respect of the King and his Prerogative Per Stat. 2 Ed. 6. Cap. 8. Copy-holders shall enjoy their Estates where the King is intituled by Office though they be not found by Inquisition The Statute of Chantries gives no Copy-hold Land to the King 1 Ed. 6.14 The Estates of the Kings Copy-holders confirmed by Decree in the Exchequer or Dutchy-Chamber shall be good according to the same Decree Stat. 7 Jac. Cap. 21. A Popish Recusant shall forfeit all his Copy-hold Land 35 Eliz. Cap. 2. Whether the King shall have the Copy-hold granted in Trust for an Alien It was a Question in Car. 1. between the King and Holland whether the King shall have a Copy-hold which is granted to one in Trust for an Alien The better Opinion seems to be that he shall Styles Rep. p. 20.37 75. Vide this Case Reported in Rolls 1. Abr. 194. Tit. Alien If an Alien Amy Purchase Copy-hold in Fee in the Name of J. S. in Trust for himself and his Heirs It was a great Question and much Argued whether the King shall have the Trust of this Copy-hold but no Opinion given as to this Point But the Trust being traversed and found for the King yet Judgment was given against the King because by the Inquisition by which this Trust and matter was found J. S. who was the person trusted and who had the Estate in Fee in the Law in him Where the King hath no possion by force of the Inquisition was put out of possession of it by the Inquisition where the Alien had but the Trust and no possession and therefore admitting that the Trust should have been given to the King yet the King may not have the possession by force of this but ought to have sued to have the Trust executed in a Court of Equity The King is seized of a Manor in Fee in which is a Copy-hold demisable at Will according to the Custom of the Manor The King demised this Copy-hold to J. G. for Life King need not recite in his Grant that it is Copy-hold by Letters Patents J. G. dyes The great Question was if it be destroyed or the King may grant it again by Copy Per Cur. 1. The King need not recite in the Grant that it is Copy-hold 24 H. 8.21 2. Copy-holder for Life dyes the King may regrant That after the Estate for Life determined the King may grant this House and Land again by Copy of Court Roll It is otherwise in the Case of a common person The Rule That a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind a Common person The Kings Gifts shall be taken favourably and not extended to two intents where there is no necessity for it Kings Grants favourably construed as there is not here and we are not here to intend a collateral intent and so the Copy-hold is not destroyed for the Law takes care to preserve the Inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copy-hold viz. to have Common Stiles p. 266. Cremer and Burnet If a Bishop Tenant in Tayl for Life or Years le ts a Copy-hold yet this shall not bind the Successor Issue in Tayl or him in Reversion to grant this by Copy again neither shall it bind an Infant Lord of Manor and the Estates and Possessions of the King are in like manner under the protection of the Law And if this Copy-hold should be extinguished Extinguishment perhaps a common Appendant or Appurtenant would be lost 2 Rolls Abr. p. 197. mesme Case If the King grants a Manor in which are Copy-holders in Fee-farm the Lands or Goods of the Copy-holder are not lyable to the Fee-farm Rent although the Freehold is Fee-Farm Rent because the Copy-holders are elder than the Rent being by Prescription 2 Rolls Abridgment p. 157. Loss of Issues If the Lord of a Manor lose Issues being summoned upon a Jury Process shall issue out of the Exchequer to levy them upon the Lands of the Copy-holders Lessees for Life or Years for the loss of Issues lyes upon the Land as an inherent Servitude by the Law in whose Hands soever it comes 1 Rolls Abr. 157. Surrender to the King without other matter of Record A Surrender of a Copy-hold to the King Lord of a Manor was in Lee and Boothby's Case 1 Keb. 720. adjudged good without other matter of Record All the Demesn Lands The King grants all his Demesn Lands in W. his Copy-hold Lands shall not pass Aliter in a common person 1 Rep. 46. Alton Wood's Case CAP. IV. The Nature of Custom in general Maxims of Customs What things are requisite to make a good Custom Time out of Memory Explained What shall be said to be an Interruption of Custom or not The reasonableness of Customs how to be judged of Several particular Customs Ratione Loci Of Customs enabling and disabling Of Customs and Prescriptions their difference and the different manner of Pleading them The several sorts of Prescription and how Prescription to be made and when and when not and by whom And when a Custom shall be said to be pursued or not Custom The Nature of Custom in general A Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record But being only matter of Fact and consisting in Use and Practice it can be recorded and registred no where but in the Memory of the People For a Custom taketh beginning and
in the possession in the right and Time Possession must be Longa continua pacifica Now observe a Title once gained by Custom or Prescription cannot be lost by interruption of the Possession for ten or twenty years but by interruption in the Right As if a man hath had a Rent or Common by Prescription unity of Possession of as high and perdurable Estate is an interruption in the Right Co. Lit. 114. b. And if a man hath Common by Prescription and takes a Lease of the Land for twenty years the Common is suspended for that time and after the years ended he may claim the Common again by Prescription 1. Personal Prescription and in that Inhabitants may Prescribe as for a Way or matter of Ease or Discharge Gateward's Case 2. Real Prescription and this is inherent to the Estate and this is where a man Prescribeth That he and all those whose Estate he hath c. Prescription as to the Estate of the Land and not to the Land it self 3. Local Prescription not as to Land but to the Estate and therefore the Custom was That the Copy-holder should have Common in the Waste of the Lord the Lord by Deed confirms to a Copy-holder to have to him and his Heirs with its Appurtenances The Question was whether his Copy-hold now being destroyed he shall have Common by the word Appurtenances Per Cur. the Common is extinct and not revived for this is a local Prescription not to the Land but only to the Estate and this proves well the words of the Prescription for the Copy-holder ought to Prescribe That every customary Tenant within the Manor c. So he hath his Common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land 2 Brownl 210. Marsham and Hunter Copy-holder for Life cannot Prescribe against his Lord but Copy-holder in Fee may Copy-holder for Life may not Prescribe against his Lord. Copy-holder in Fee may and how for he hath the Copy-hold in nature of Land of Inheritance Stiles 233. Cage and Dod. Per Cur. a Copy-holder may Prescribe by an usitatum est against his Lord but against a Stranger he must Prescibe in the name of the Lord More n. 647. 6. Rep. 60. Copy-holder of Inheritance may Prescribe in the name of the Lord to be discharged of Tythes Noy p. 132. Copy-holders may not Prescribe against their own Lord omnino nor against any other but only in the name of their Lord and the manner of laying it is by a Custom when they claim any thing or profit out of the Lords Soyl vide Sanders 324 5 6. Hoskin and Roberts What shall be said a pursuance of a Custom or not If the Custom be That the Lord may Demises Copy-hold in Fee he may Demise them for Life Years or in Tayl for these Estates are included in a Fee which is greater 1 Roll. Abr. Staunton and Barns Cok. Lit. 52. Vide supra Maxims and Customs 4 Rep. 23. The Case of the Manor of Allesly in Warwickshire Solummodo how expounded If the Custom be That the Lord may solummodo Demise his Copy-hold Land in Fee yet the Lord may Demise this for Life or Years or in Tayl though there was never any such Estate made before for the word solummodo is not to be taken so strictly to restrain the Lord of this liberty which the Law gives upon the general Custom but that he had used solummodo to grant in Fee which doth not take away the liberty which the Law gives 1 Rolls Abr. 511. mesme Case Custom is to Grant for one two or three Lives a Grant to one durante viduitate is within the Custom for the Estate granted was less than the Custom warranted The Custom was That the Wife shall have the Land for term of her Life The Evidence was That the Custom was that she shall have it durante viduitate Per Cur. This Evidence doth not maintain the Custom 4 Rep. 30. Downe and Hopkin's Case A Grant to three for the Lives of two is within the Custom of three Lives If the Custom be That Copyholds may be granted for three Lives a Copy may be granted to three for the Lives of two within this Custom For it is no inconvenience to the Lord although it be pur auter vie for there shall be no occupancy of it but the Lord shall have it if the Tenants pur auter vie dye living cesty que vies and this is not a greater Estate than three Lives but lesser Rolls Abr. 511. Ven and Howel But to one for Life Remainder to another for Life c. is not good A Copy-holder where the Custom was to Demise for three Lives demised to one for Life the remainder to such an one as he should marry and the first Son of his Body resolved that both the remainders were void but the Estate for his own Life is good More n. 922. Webster and Allen. Custom is when any Tenant sells his Tenement three Proclamations shall be made the next Court day and if any of the Blood of the Vendor will give as much mony as the Vendor will he shall have it A Tenant in consideration of one hundred pounds in Mony and that the Vendee being his Physician had cured him sold it to him and the next of Blood at next Court offers a hundred pound yet he shall not have it for it was given partly for the other consideration and the Custom shall be for mony only 1 Rolls Abr. 568. So if he had sold it in consideration of a Lease for years and 1 d. ibid. CAP. V. Of particular Customs either enabling or disabling in respect of the Lord of the Tenant and of the Estate Limited or Leased and in respect of Discents WHAT particular Customs have been adjudged good or what not either enabling or disabling Customs Vide supra of Customs ratione loci And they may be considered in three respects Of the Lord. Of the Tenant Of the Estate 1. In respect of the Lord and his Priviledge The Wife of the Lord shall not be endowed against a Copy-holder for the title of Dower is not consummate before the death of her Husband Dower so as the title of the Copy-holder is paramount and compleated before the title of Dower Leon. 152. Waste The succeeding Lord shall not take advantage of Waste done in the time of the preceeding Lord 2 Siderfin p. 9. Chamberlain and Drake Vide infra Common A Custom That none shall put his Cattel into the Common before the Lord puts in his is not good Vide supra the Rules of Customs 1 Bulstr Earl of Northumberland vers Wheeler 21 Ed. 4. 28 b. Fine A Custom that a Copy-holder shall upon the change of every Lord pay a Fine is void Vide the Rules of Customs For the Lord may change his Manor every day Had it been that
Life of Tenant in Tayl yet his Interest being determined by the death of Tenant in Tayl Grants made by whom shall be avoided the continuance of the Possession is a Tort to the Heir and upon his rcovery in a Formedon in the Descender he shall avoid these Grants So in cases of alienee of a Manor whereof a man was seized in jure Uxoris making Grants may be avoided after his death by the Feme So Lessee for years of Tenant for Life of a Manor So by a Tenant at sufferance as Tenant pur auter vie who continues in after the death of Cesty que vie Vide supra Rous and Artois Case 4 Rep. 24. mesme Case By Lessee of a Manor Lessee for years of a Manor grants a Copy-hold in Reversion and before the Reversion happen the Term is expired the Grant is void So if such Lessee surrenders his Term and then before his Lease should have ended in point of Limitation the Reversion falleth yet the Grantee shall not have it Infant One that hath in present a Lawful Estate or Interest in a Manor defeasable upon breach of Condition Enters he may make Grant by Copy before such Entry and it shall be good If Infant infeoff me of a Manor though he may enter upon me at his pleasure yet Grants made before his Entry shall not be avoided by any subsequent Entry vide supra Guardian in Socage may hold Courts and grant Copies not the Bayliff of a Manor A Guardian in Socage may hold Courts in his own name and may grant Copies for he is Dominus pro tempore and hath interest in the Land but a Bayliff of a Manor hath no interest therefore he cannot make Grants and Copies but the Guardian hath interest Provisione Legis but so as to be accountable for Fines Owen p. 115. Shopland and Radlen Grants of Copies in Reversion The Lord of a Manor for Life or a particular Tenant having interest in the Manor might grant Copies in Reversion although they were not executed in the Life of the Grantor More n. 292. Sir Peter Carew's Case 236. contra So a Tenant in Dower of a Manor may grant Copy-hold parcel of that which she hath assigned in Dower in Reversion Habend post mortem A. P. though it was doubted in the Earl of Arundel's Case and the reason is the Custom For it is said in Gay's Case Cro. El. p. 661. There is a Custom alledged That Dominus pro tempore may demise for one two or three Lives Copy-hold not to be granted by parcels in Possession or Reversion But one who hath a particular Estate in a Manor cannot grant a Copy-hold by parcel or demise part and retain the residue himself If a Feme be indowed of several Copy-hold Tenements she cannot grant part of them by Copy in possession or Reversion per Popham ibid. Vide mesme Case 1 Rolls Abr. 499. In some special Case an Estate may be granted by Copy Where a Grant may be good by one who is not Dominus pro tempore by one that is not Dominus pro tempore nor that hath any thing in the Manor as if the Lord of a Manor by his Will in writing deviseth That his Executors shall grant the customary Tenements of the Manor according to the Custom of the Manor for the payment of his Debts and dyeth the Executor though he hath nothing in the Manor may make Grants according to the Custom of the Manor Co. Lit. 58. b. At what place the Lord may Grant The Lord of a Copy-hold Manor may himself grant a Copy-hold at any place out of the Manor 4 Rep. 26. b. Melwich's Case What amounts to a Grant The admittance of the Lord amounts to a Grant to him who had a Title Aliter if it is to him who was in by wrong as by disseisin 4 Rep. 22. Winch Rep. 67. Hasset and Hanson Grant by the Copy-holder to the Lord. Though a Copy-holder may not convey his Copy-hold to a Stranger without Surrender and Admittance yet he may grant his Estate out of Court to the Lord of the Manor by Bargain and Sale for the Custom is not between the Lord and his Tenant but between themselves only Winch Rep. p. 57. Hasset and Hanson A Copy-holders Release to the Lord is a good Release 1 Keb. 808. CAP. XII Exposition of Grants By what words in Grants Copy-hold shall pass or not What things shall pass by Grant of another thing as Appurtenant or Incident A Copy-holder of a Manor which had Common by Prescription in sixty Acres parcel of the Demesns of the Manor Escheated and the Lord by Deed granted it to another in Tayl Per nomina c. communiarum quarumcunque dicto Messuagio sive tenemento spectan sive in aliquo modo pertinen vel cum eodem Messuagio dimisso usitat Though the ancient Common is determined by unity of possession in the Lord upon Escheat yet revived by a new Grant and by what words The Question was whether by these words the Grantee shall have Common in those sixty Acres Per Cur. The Donee in Tayl shall have such Common as the Copy-holder had But the ancient Common which was by Prescription is determined by unity of possession in the Lord but the Grant enures as a new Grant of the same Common As a Grant to Islington of the like Liberties which London hath is a new Grant of the like Liberties Cro. Eliz. p. 794. M. 42 Eliz. B. R. Worledge and Kingswel If the Lord of a Manor be seized of a Copy-hold Estate and grants this to another Nothing passeth to one named in the Hab. that is not named in the Premisses Hab. to him and his Wife and to the Heirs of their Bodies the Wife shall take nothing by this Grant because she was not mentioned in the Premisses and here is not any Surrender precedent to direct the Grant Where a Grant shall be expounded as a Grant at Common Law but it passeth only by the Grant and so it ought to be expounded as a Conveyance at Common Law So if a Copy-hold Tenant Surrender to the Use of himself Habend to him and his Wife and to the Heirs of their Bodies it seems that this is void for it is in nature of a Grant at Common Law 2 Rolls Abr. 67. Brooks and Brooks But in Surrender aliter Vide infra Tit. Surrender Copy-holder in Fee Surrenders to the Lord ad intentionem That the Lord shall grant this again to him for Life the remainder to his Wife until his Son shall come at full Age and after to his Son the Copy-holder dyes and after the Lord executes it to the Woman Per Cur. This Interest to the Wife is a Term Dyer 251 259. By cum pertin what passeth Copy-holder had Common of Estovers in the Lords Woods appurtenant to his Copy-hold and he purchased the Free-hold of Inheritance in the Copy-hold and had words in his
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
in curia manus Senel Ra. Ent. 645. Simil. per 1 vel 2 Tenentes ut Attornatus Co. Ent. 657. CAP. XIV What shall pass and by what words in a Surrender Of Attornment The Construction and Exposition of a Surrender Where no Vse or Estate is immediately limited in whole or in part And where an Vse is limited how far the Construction shall go according to the Rules of the Common Law or not Of Surrender to Vse upon Vse To the Vse of one's Wife Where a Surrender is void for the uncertainty Of a Surrender to the Vse of a person not in esse And of a Surrender to take effect in futuro What shall pass and by what words in a Surrender B. Covenants to assure all his Copy-hold Lands to A. after he Surrenders out of Court according to Custom diverse parcels by particular Names the Surrender is enrolled accordingly with this Conclusion By the name of all his Copy-hold Lands there yet no more shall pass than what was named in the Surrender Dyer 8 El 251. Harvy Justice said he knew it to be adjudged That a Surrender cum pertinentijs will pass Land Hetly p. 2. And that a Surrender of a Messuage and three Acres would pass more Acres if divers Copies successive have been so I suppose he means if the words cum pertinentijs be in What Ceremony c. is requisite or not to make good a Surrender Attornment A Copy-holder with Licence leased for Years rendring Rent and afterwards surrendred the Reversion with the Rent to the use of a Stranger who is admitted Here needs no Attornment either to settle the Reversion or create a privity for the Surrender and Admittance are in the nature of an Inrollment and amount to an Attornment or at least supply the want of it 1 Leon. 297. But there must be an Admittance by the Lord but in such case there shall be no Entry for Condition broken without Attornment Hobart 177. Swinnerton and Miller 1 Rolls Abr. 235. mesme Case Vide sparsim de Attornment The Construction and Operation of Surrenders Where no Use or Estate is immediately limited in whole or part Surrender to the Lord without expressing what use If a Surrender be made to the Lord in general without expressing to what use it shall be taken to the Lords use Kitch 81. And therefore in Bunting's Case cited in Brown and Foster's Case A Custom was That if any surrendred to the use of another without expressing any Estate that the Lord may grant it to him to whose use the Surrender was made It was adjudged a good Custom and the Lord shall ascertain the Estate A Copy-holder sold his Copy-hold Estate but shews not what Estate Or what Estate but surrendred it the use of the Bargainee and the Lord granted it in Fee to the Bargainee and it was adjudged good Cro. El. 392. Copy-holder in Fee surrendred his Lands into the hands of the Lord without saying to whose use the Surrender should be and at the next Court the said Copy-holder was admitted Habend to him and his Wife in Tayl And then admittance is to uses this subsequent act explains a Surrender remainder to his right Heirs Per Cur. The subsequent Act shall explain the Surrender and when the Copy-holder accepted a new Admittance the Law intends the Surrender was made to such an use as is specified in the Admittance Quando ab est provisio partis adest provisio Legis Popham p. 125 126. Brook's Case Cro. Jac. 434. mesme Case Copy-holder Surrenders to the use of M. and R. without limitation of any Estate they shall only have it for their Lives and in such case A Surrender to one for Life without limiting the Fee the Fee is in the Surrenderor if the Lord make Admittance and deliver Seisin to M. and R. and the Heirs of R. this was only an Admittance to them for term of their Lives the Reversion over to R. who made the Surrender for the Lord is but an Instrument and when he hath made Admittance according to the effect of the Surrender nothing remains in him but the Reversion is in the Surrenderer 4 Rep. 29. Bunting and Lepingwel But it is otherwise in the case of a Copy-holder for Life as if a Copy-holder for Life Surrender to the use of J. S. for Life and J. S. dyes this shall not revert to the first Copy-holder for Life Mich. 7. Car. 1. Diversity King and Loder's Case And therefore in Dyer 9 Eliz. f. 264. The Husband seized in the right of his Wife Reversion to B. Reversion to C. for their Lives the Husband surrrenders to the use of B. for his Life to whom the Lord grants it for his Life and is admitted and after dyes the Husband shall not have it again during his Wives Life for he had dismist himself of it Lord as Occupant and C. shall not have it during the Wives Life but the Lord as Occupant Where an Use is limited how far the Construction shall be according to the Rules of Common Law or not Some lay it down for a Rule That the same Construction which the Law makes upon words in a Deed it will make upon a Copy is not always true though regularly it is so As if Copy-hold be granted to a Corporation where no Estate is named it s a Fee-simple So if Surrender to one and his Heirs and he reciting this Surrender doth Surrender it to my use in the same manner as I surrendred it to him this is a Fee-simple So if I Surrender to J. S. as large an Estate as he hath in the Manor of Dale he hath a Fee-simple in that Manor Co. Cop. 132. The Wife shall take by the Admittance tho not named in the Premisses in the Surrender But a person may take by the Hab. in the Admittance who was not named in the Premisses as to Copy-hold therefore in Brook's Case above cited Copy-holder Surrenders his Lands without saying to whose use and at the next Court the said Copy-holder was Admitted Habend to him and to his Wife in Tayl the Remainder over Per Cur. the Wife shall take by this Admittance though she was not named in the Premisses But this Case of a Copy-hold is like to the Case of a Will or to the Case of a Frank-Marriage in which it is sufficient to pass an Estate albeit the Parties be only named in the Habendum aliter where the Surrender is to Uses and she is not named in the Premisses And the like Rule is laid down in Bunting and Lepingwel's Case 4 Rep. 29. As well Estates as Descents to be directed by the Rules of Law That as well Estates as Descents shall be directed by the Rules of Law as necessary consequents upon the Custom unless there be a special Custom to the contrary as a Surrender sibi suis by the Custom may make an Estate of Inheritance but a Surrender to one
Cesty que use surrenders to another and after at another Court he to whose Use the Surrender was surrenders the Land to the Use of another this shall enure as an Admittance upon the first Surrender and after a Surrender for by the acceptance of the Surrender he is admitted Tenant Acceptance of a Surrender 1 Rolls Abr. 505. Calchin's Case 3 Bulst 230. mesme Case If a Copy-holder surrender to the Use of another Acceptance of Rent and after the Lord having knowledge of this accepts the Rent of Cesty que use out of Court this is an Admittance in Law Rolls 1 Abr. 505. Freswel and Welch If the two Tenants into whose Hands the Surrender was pay the Rent to the Lord yet his acceptance shall not amount to an Admittance but if he had alledged the payment of the Rent and acceptance of it by the Lord as of his Copy-holder this would have amounted to a good Admittance of him 3 Bulstr 215. mesme Case Any act to imply the consent of the Lord to the Surrender What acts or words by the Lord amount to an Admittance it shall be a good Admittance the Presentment by the Homage doth not make an Admittance the acceptance by the Steward of the Presentment is no Admittance Bridgman Rep. 82. Robinson and Groves Copy-holder surrenders his Estate to the Use of J. S. who again surrenders the same to the Use of J. N. this is good vide supra Or in such case if the Lord meet J. N. and saith to him Such a Surrender is made to your Use to which I agree or am content this saying amounts to a good Admittance 3 Bulstr 230. Elken's Case 215 216. If the Steward accept a Fine as of a Copy-holder it amounts to an Admittance granted in Rawlinson and Green's Case 3 Bulstr 237. In what Cases the Admittance of one shall be the Admittance of another If a Copy-holder surrender to the Use of one for Life the Remainder to another the Admittance of Tenant for Life is Admittance for him in Remainder also for that they are but one Estate and but one Fine is due for both 4 Rep. 22 23. Fither's Case Aliter of him in Reversion More n. 488. Dell and Higden He in Remainder after a Tenant for Life who was admitted surrenders to the Use of a Stranger in the Life-time of Tenant pur vie and good Cro. Jac. 31. Auncelm's Case But such Admittance of Tenant for Life shall not prejudice the Lord of his Fee due by the Custom 4 Rep. Brown's Case 22 23. Foxton and Colston But in Hippin and Bunner's Case Popham thought only one Fine to be due upon such surrender which the Tenant for Life shall pay before his Admittance except there be especial Custom that two Fines shall be due Cro. Eliz. 504. The Admittance of Tenant for Life or Years shall be an Admission of all in Remainder Per Hales and there is no inconvenience in it for Fines are to be paid by the particular Remainder except a Fine be assessed for the whole Estate and then there is an end of the Business The Estate is bound by the Surrender and shall go to them in Remainder Mod. Rep. and 3 Keb. 29. Blackburn and Greves A Copy-holder Surrenders to the Use of several Persons for years successive the Remainder in Fee to J. S. an Admittance of a particular Tenant is an Admittance of all the Remainders to all purposes but only the Lords Fine and the Possession of Lessee for years is the Possession of him in Remainder ibid so as to make a Possessio Fratris and the Sister of the whole Blood shall have it before a Brother of the second Venter Admittance by Attorny The Lord may refuse to admit by Attorny him to whose Use a Surrender was made for that he ought to do Fealty which he cannot do by Attorny 9 Rep. 76. Comb's Case Yet if the Lord will admit him by Attorny its good ibid. A Copy-holder surrendred to the Use of his last Will and devised the Lands to his youngest Son in Fee The youngest Son being in Prison makes a Letter of Attorny to one to be admitted to the Land in the Lords Court in his room and also after Admittance to surrender the same to the Use of B. and his Heirs to whom he had sold it for the payment of his Debts by two Judges it s not a good Surrender Admittance of an Heir is good by Prochein Amy By Prochein Amy. for by such Admittance he is to do corporal Service which cannot be done but in person and yet it hath been adjudged good the Heir consenting but otherwise 2 Siderfin 37 61 Blunt and Clark 4 Rep. Brown and Clerk's Case The Case was Copy-holder surrenders to the Use of J. S. and his Heirs Proviso That if the Copy-holder pay eight hundred pounds at such a day the Surrender shall be void J. S. dyes before the day not being admitted and his Heir beyond Sea A Neighbour comes and is admitted in the name of the Heir the Heir comes back and brings Ejectment Per Cur. It s a good Admittance for a Consent subsequent is as strong as an Authority precedent in this Case and the Heir affirms his Admission And if a Surrender Per Glyn be to the Use of J. S. and J. N. is admitted and J. S. consents it s a good Admittance Admittance where to be made The Lord of the Manor may make Admittance out of the Manor also Co. Lit. 61. b. The Steward of the Manor may admit upon a Surrender out of Court as well as in Court 4 Rep. 26 27. Freswel and Welch Admittances upon Descent The diversity between Admittance upon Surrender and Admittance upon Descent lyes In Admittance upon Surrender nothing is vested in the Grantee before Admittance no more than in voluntary Grants but in Admittance upon Descents the Heir is Tenant by Copy immediately upon the death of his Ancestor The time of Admittance There is thirty years between the death of the Father Excuse and the Heirs not being admitted who made a Lease Per Cur. this is supina negligentia and shall disable his Person to make any Demise but the Lessor at the time of the death of his Ancestor was two years of age and that after his full age no Court had been holden for a long time and that at the first Court lately he prayed to be admitted and the Steward refused him And Per Cur. this is a good excuse 1 Leon. 100. Rumny and Eves If a Copy-holder dyeth When the Heir must pray to be admitted his Heir within age he is not bound to come at any Court during his non-age to pray Admission or to tender his Fine also if the death of the Ancestor is not Presented nor Proclamations made he is not at any mischief although he be of full Age ibid. What things the Heir way do or not before Admittance Upon the death of the Ancestor he may
Statute by Equity work to make it an Estate Tayl also of this nature of the Land Popham's Rep. 33. Gravenor and Brooks so Bullen and Grant's Case A Copy-holder Surrendred to the Use of J. for Life the Remainder to H. and the Heirs of his Body it was a Question if this Estate limitted to H. was an Estate Tayl or a Fee-simple conditional for if it were a Fee-simple conditional then there cannot be an other Estate over but yet in Case of a Devise an Estate may depend upon a Fee-simple precedent but not as a Will but as an executory Devise Per Wray it is an Estate Tayl. Coke then said They who would prove the Custom to Entayl Copy-hold Lands within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies but they ought to shew that Surrenders made by such persons have been avoided by such matter But by Wray that is not so for customary Lands may be granted in Tayl and yet no Surrenders have been made within time of memory 1 Leon. p. 174. Bullen and Grant Cro. El. 148. mesme Case Heyden's Case in 3 Rep. 8. is clear That neither Statute without the Custom nor the Custom without the Statute but both co-operating may create Tayl. And as for Custom if the Custom be to grant Lands in Fee-simple this without question may be granted to one and the Heirs of his Body by Copy for omne majus includit minus My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case First says he a Copy-hold may be Entayled not Entayled as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold which is a kind of base Estate and which might be grantable to one and the Heirs of his Body according to the Custom and if he dyed without Issue it might be aliened again and that a Copy-holder could not bar his Issue unless by a Recovery such an Estate might be by Custom I hold saith he That the Evidence may fall out to be such that we may take it for granted that Lands granted by Copy to one and the Heirs of his Body the Remainder over may be a good Remainder and the Reversion may continue in the Copy-holder the Donor may have a good Reversion and all this without the help of W. 2. That which confirms me is the constant practice of most Copyholds to have Estates over As for the reason of it if we shall give in Evidence for the purpose a Surrender in H. 7ths time wherein Lands are limited to one and the Heirs of his Body the Remainder over this is an Evidence that it was so in H. 7ths time and we have reason to think so it was past time of memory of Man And as your Evidence is for Custom so may your Case be to make an immemorial Custom Then all the Question is whether it will bear it or not In this Case of a Copy-hold being an Estate at will you may have it at will according to the nature of the Custom it is not against the Analogy and Reason of the Law and it may bear it the Evidence may be such If in H. 7th or E. the 4ths time it appears so it is a good warrant for matter of Evidence for a Jury to find That there were such Copy-hold Estates with limitation over Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body the Remainder over or to grant the Land by the name of a Reversion for here is no alteration of Common Law Estates The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate Proofs of an Estate Tayl. neither a Remainder nor a Reversion but the Act prohibiting Alienations Quo minus ad exitum illorum quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad donatorem si exitus ejus deficiat revertatur by operation of Law it comes to a Remainder or Reversion if by Custom such Estates may remain or revert so may Copy-holds by Custom because they are Tenants at will Now as by that construction W. 2. did make a Remainder or a Reversion so the Custom of prohibiting Alienations by Copy may make Reversions or Remainders of Copy-hold Estates If the Reader hath a mind to see other Cases about the Entayling of Copy-holds though they are all reduced to what is before cited he may peruse 2 Brownl 42 76. Keymer and Poel 121. Hill and Upchurch 1 Rolls Rep. 48. Warn and Sawyer Cro. El. 717. Erish and Rives c. 2 Brownl 121. The Law about Entayling of Copy-holds is setled and agreed by the Judges B. R. 17 Car. 2. Newton and Shaftoe's Case That it is by Custom and not by the Statute so agreed M. 18. Car. Pilkington and Stanhop's Case queux vide apres Of docking or barring Copy-hold Estates being barred by Fine or Recovery or otherwise It is agreed by all the Judges 1 Rolls Rep. 48. Warn and Sawyer's Case That if an Estate Tayl may be of a Copy-hold by Custom that by Custom it may be dock'd and destroyed See More n. 877. A Copy-hold may be Entayled by Custom and barred by a Recovery by special Custom and it was agreed that a Surrender may bar the Issue by special Custom Chard and Wyat so Lee and Brown M. 15 Jac. B. R. And it was agreed to be a strong proof of the Custom that they to whose Use such Surrenders had been made had enjoyed the Land against the Issue in Tayl 1 Rolls Abr. 506. mesme Case The Custom of the Manor of Wakefield was That they may Entayl their Copy-hold Lands and the Custom of the Manor to bar the Entayls and the Remainders there is That the Tenant in Tayl shall commit a Forfeiture as by making a Lease without Licenc c. and then for the Lord to make three Proclamations and to seize the Copyhold and then to grant this to the Copy-holder and his Heirs allowed to be a good Custom Also this Custom there was good That if Tenant in Tayl make a Surrender to a Purchaser and his Heirs of his Copy-hold and such Purchasor intending to bar the Entayl and the Remainders commits a Forfeiture upon which there is a seizure by the Lord and three Proclamations c. and so for him to grant these were adjuged good Customs though the Tenant in Tayl nor his Issue are privy See as to this last Custom in a Tryal at Bar in Ejectment Siderfin p. 314. Lessee of Pilkington contra Stanhop So in Ejectment in Grantham and Coplies Case 2 Sanders 422. And it was faâ—ther adjudged If such Forfeiture be presented in the Copy-hold Court and the Land seized in Manus Domini the Lord may not
prays to be admitted to them then a publick Proclamation shall be made in full Court That the Heir shall come to the Court to claim and be admitted and so at two other ensuing Courts the like Proclamation Custom if the Heir come not and pray to be admitted after three Proclamations he shall forfeit but not if he be beyond Sea and if the Heir come not then the Lord to seize them as forfeited Per Cur. this Custom and non-claim shall not foreclose the Heir which was beyond Sea at the time of the Proclamations made for by intendment of Law he cannot have notice c. But if the Heir had been within the Realm at the time of the first Proclamation and after goes beyond Seas the Proclamations shall bind him though he be beyond Sea at the time of the other Proclamations made for he shall not defeat the Lord by his own Act 8 Rep. Sir Rich. Lechford's Case Cro. Jac. p. 226. Underhil and Kelsey he cannot return when he will and the Law doth not compel one to impossibilites though Coke then Puisny Justice in that Case of Underhil was of another Opinion and he might by Letter of Attorny pray to be admitted and Cro. Jac. 101. Whitton and Williams The Proclamations to be proved viva voce Proclamations whereby the Lord claims Forfeiture ought to be proved viva voce and not only by the Court Rolls The Proclamation was That J. S. come in and be admitted to the Lands descended unto him which the certainty of the Lands being before declared How to be made as to the certainty of the Lands is sufficient unless the Custom be contrary and not like a demand of Rent which being generally of so much is ill especially the Custom of the Manor being to demand it generally and not to specifie the Lands 1 Keb. 287. Lord Salisbury's Case Homage forfeit for refusing to make a presentment If a Jury or Homage of the Manor after Oath taken to present the Articles of the Court refuse to make a presentment according to their Oath If they are Copy-holders this is a Forfeiture of their Estate Dyer 4 El. 211. As to Misfeazance what acts made or done by a Copy-holder shall be a Forfeiture Note Every act that makes a Forfeiture ought to be 1st To the disherison of the Lord 2ly A voluntary act against the Custom therefore a Trespass on the Demesns of the Lord is no Forfeiture As to making Leases not warranted For the Lord of a Manor to avoid a Lease for a Forfeiture by making a Lease contrary to the Custom There must be certain proof of such a Lease there ought to be direct proof made of a Lease certain with beginning and ending certain so to make any other act or thing a Forfeiture this must certainly appear to the Court and the Oath of a Stranger in the Lords Court to the Homagers That a Copy-holder had made a Lease for ten years that so the Homagers may find and present the Forfeiture shall not be of force especially the Copy-holder continuing in possession and dying seized of his Copy-hold Estate and this never came in question till after his death 1 Bulstr 189. Hamlen's Case Copy-holder for Life makes a Lease for a year A Lease made for years excepting two days in each year c. is a Fraud and shall be a â—orfeituâ—e and afterwards makes a Lease to the same party for another year to commence one day after the first year and another Lease for another year to commence at a day after the second year and after surrenders his Copy-hold to the Lord the Lord enters and makes a Lease to the Plaintiff in the Ejectment Per Cur. 1. Although the general Custom of the Realm allows a Copy-holder to make a Lease for one year this ought to be in present and he cannot make one for another year in reversion 2. The Lease in reversion was a Forfeiture and when the Surrender was made to the Lord this Lease was void against him and his Interest discharged without presentment and seizure for the Forfeiture for which his Entry was lawful and Judgment pro Quer. Jones 249. Mathews and Weston 1 Bulstr 215. mesme Case Rolls Abr. 510. mesme Case This Case is thus Reported by Rolls If a Copy-holder for Life agrees to make three several Leases by Indenture the one to commence after the other there being two days between the end of the first and the commencement of the seccond and so between the second and the third and after he executes them at one time this is a Forfeiture for this is apparent Fraud and a greater Estate than for one year passeth presently Rolls Abr. 508. Mathews and Weston If a Copy-holder makes a Lease for one year and covenants that after the end of this year he shall have the same for another year and so in this manner de anno in annum during the space of ten years this is no such Lease as shall make a Forfeiture of his Copy-hold Estate because he hath no lawful Lease but for one year only 1 Bulstr 187 190. Hamlen's Case 6 Rep. 35. b. Plowd 237. b. Cro. Jac. 301. the Lady Mountagues Case A Copy-holder makes a Lease for an year excepting the last day of the year and so from year to year excepting the last day of every year as long as he lived The Question was if this were such a Lease as would cause a Forfeiture for it was not a Lease for an entire year neither is it a Lease for two years together Per Cur. it is a Forfeiture It s a certain Lease for years excepting two days which is a Lease in effect for more than one year Cro. Jac. p. 308. Lutterel and Weston A Lease for three years by Parol is a Forfeiture whether the Lessee enter or not Lease Parol and this for the unlawful Contract made to the disherison of the Lord and a Lease to commence at a day to come is a Forfeiture Lease to commence at a day to come because it is not avoidable by any of the Parties Moor n. 508. East and Harding and so in Harding and Turpin's Case Hetly p. 122. If a Copy-holder make a Lease for years to commence at Michaelmas next it s a Forfeiture presently and so Cro. El. Jackman's Case 351. A Lease for years of Copy-hold Land by Indenture or Parol is a Forfeiture unless there be an express Custom to warrant it So Cro. El. East and Harding's Case The Lord licenceth a Copy-holder to make a Lease of his Copy-hold for 21 years to begin at Michaelmas following and he made a Lease accordingly by Indenture and also before Michaelmas by Deed made another Lease for 21 years to begin at Michaelmas following By concurrent Lease Per Anderson the making of the second Lease was a Forfeiture the Licence is satisfied by the first Lease and so the second Lease is without warrant Moor n.
the principal and reversed the Outlawry and was found Not Guilty and the Heir of him which was hang'd entred upon the Lord adjudged inasmuch as there cannot be an accessary unless there be a principal that the Entry of the Heir was lawful 2 Brownl 217. Gittins and Cooper So it s a good Custom in 1 Leon. p. 1. Burnford and Packington Copy-holder for Life was arraigned for Felony and convicted and prayed his Clergy whereupon the Plaintiff as Lord entred for the Forfeiture without alledging any special Custom or Attainder Q. 2 Keb. 451 456. Jury and Pawlet Of other acts which are Forfeitures If a Copy-holder forgeth a Customary containing divers false Customs and pretending them to be true Customs Quaere if this be a Forfeiture 3 Leon. 107 108. Tavernor and Cromwel By Inclosure Custom is That the Lord hath a Field-course for five hundred Ewes over the Lands of the Copy-holder from Michaelmas till Lady-day in all the Lands of the Copy-holders not inclosed the Custom was too That if they did Inclose he might Fine them Per Cur. Inclosure is no Forfeiture Paston and Utbert 5 Car. 1. Hutton p. 102. Lit. Rep. 246. mesme Case Rescous Rescous by a Copy-holder is a Forfeiture Replevin by a Copy-holder If a Copy-holder bring a Replevin it is a Forfeiture 1 Rolls Rep. 48. in the case of Warn and Sawyer Outlawry A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by it and yet the King shall have the Profits Inclosure Bare Inclosure is not Forfeiture of a Copy-hold Hetly p. 7 8. The manuring of Land to Hop Ground was agreed to be a Forfeiture If Doal Marks are about a Copy-hold and the Copy-holder makes such Ditches that he defaceth the Doal Marks this may be a Forfeiture for in time it may prove to the disheritance and loss of the Copy-hold What Acts of the Husband shall forfeit the Wives Land or not Feme Copy-holder of Inheritance takes Husband Husband makes a Lease for years Lease of a Copy-hold shall not bind the Wives Estate of Inheritance the Lord enters for a Forfeiture Husband dies the Feme dies the Heir of the Wife enters and his entry was adjudged lawful Palmer's Rep. 387. Savern and Smith 35 El. Sandley's Case 2 Rolls 344. mesme Case Denial of Rent by the Husband shall be a Forfeiture against the Wife and so shall waste Denyal of Rent by the Husband Quaere if waste be not a Forfeiture by the Statute of Gloucester which extends to Copy-holds but not collateral acts as cutting Trees c. By Doddridge waste at Common Law by the Husband shall bind the Wife but not a Feoffment and he took this difference Diversity where the Copyhold came to the Woman after Coverture his Forfeiture shall not bind her for then it cannot be said it was her folly to take an Husband that would forfeit c. Palmer's Rep. 387. Savern and Smith If a Feme Copy-holder pur vie Waste committed by Husband takes Husband who commits waste this shall bind the Wife and the difference is as to this and the Husbands making a Lease In waste the Forfeiture goes to the Inheritance of the waste which continues for ever but in Savern and Smith's Case this Forfeiture determines with the Lease But if a stranger commits waste without the assent of the Husband By Estranger this is no Forfeiture 4 Rep. 27. Clifton and Molineux Vide pluis infra A Feme Copy-holder takes an Husband who lets the Land for more years than the Custom doth warrant it is Quaere whether this shall bind the Wife as a condition in Law Per Wray If the Husband deny to pay the Rent or to do Suit of Court these are present Forfeitures which shall bind the Wife for they are things that the Lord must of necessity have but Quaere of the Lease saith the Book Cro. El. 149. Hedd and Challener But it hath been resolved ut supra in Savern's Case Who shall take advantage or enter for a Forfeiture and of what Forfeitures or not After a Copy-hold is dismembred from the Manor yet of what Forfeitures the Grantee or Feoffee shall take advantage It was a Question in East and Harding's Case If the dismembring of the Inheritance of the Copy-hold Land by the Feoffment of the Manor had disabled from taking the advantage of the Forfeiture It was ruled with this difference that all Forfeitures which accrew by reason of any matters of the Court are discharged but not Forfeitures at Common Law as Waste or Leases made to the disherison of the Lord but the Feoffee of them made in his time shall enter and take advantage thereof Moor n. 508. Lessee for years Dom. pro tempore Lessee for years of a Manor shall take advantage of a Forfeiture committed by a Copy-holder for he is Dominus pro tempore East and Harding's Case So Tr. 10. Jac. B. C. Rowls and Mason Lessee for years shall take advantage of a Forfeiture by waste after his Lease made and before the commencement of his Term Moor n. 508. If the Lord of a Manor in which are Copy-holders Tenants of the Manor and the Lord grant to a Stranger the Free-hold of a Copy-hold in Fee although by this his Tenement is divided from the Manor and not demisable per Copy again yet the Grantee of the Free-hold shall take advantage of a Forfeiture committed after by the Copy-holder for he ought to pay his Rent to the Grantee So in this case if the Grantee of the Frank-Tenement make a Lease for years of the Frank-Tenement this Lessee for years shall take advantage of a Forfeiture committed after by the Copy-holder for that he is Dominus pro tempore 1 Rolls Abr. 509. East and Harding Cro. El. 499. mesme Case For Copy-holder as to the Forfeiture of his Estate remains in all degrees as before the severance thereof from the Manor If a Copy-holder makes a Lease for years Where Lessee or Feoffee shall take advantage which is a Forfeiture at Common Law and afterwards the Lord make a Feoffment or a Lease for years of the Free-hold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Copy-holder shall continue his Estate and so is in nature of an affirmance or confirmation of the Lease Owen p. 63. Pen and Merival But If the Lord of a Copy-holder for Life Where he shall Lease the Copy-hold for years to commence after the end forfeiture or determination of the Tenant for Life and after the Tenant for Life commits a Forfeiture by making a Feoffment if the Lord will not enter for the Forfeiture yet the Lessee for years may 8 Rolls Abr. 858. Mere and Ridealt He in Remainder Copy-holder for Life the Remainder for Life
dedemisable for one two or three Lives in which Manor was a Custom that the Lord for the time being might grant Copy-hold Estates for Life in Reversion the Lord granted such Lands for Life by Copy in possession took a Wife and granted the same Copy-hold to a Stranger in Reversion for Life and dyed the Copy-holder in possession dyed this Land inter alia is assigned to the Wife for her Dower Dower the Copy-holder shall hold the Land discharged of the Dower 1 Leon. p. 16. Cham and Dover's Case In Cham and Dover's Case is cited the Case of Slowman who being Lord of a Manor ut supra by his Will devised That his Executors should grant Estates by Copy and dyed having a Wife the Executors make Estates accordingly Dower the Wife in case of Dower shall avoid them Dyer 344. and 1 Leon. p. 16. Lord of such a Manor is bound by Recognizance Recognizance afterwards a Copy-holder for Life dyeth the Lord granteth his Copy-hold de novo the new Grantee shall hold the Land discharged of the Recognizance for the Copy-holder is in by the Custom which was paramount 1 Leon. p. 16. Granted upon an Escheat shall avoid Charges The Lord of a Copy-hold Manor where Copy-holders are for Life grants a Rent-charge out of all the Manor one Copy-hold Escheats the Lord grants that again by Copy the Grantee shall not hold it charged because he comes in above the Grant viz. by the Custom the same Law of Statutes Recognizances Dower and Dyer 270. is deemed for Law in Swain's Case Copyholders Beasts distrainable or not for a Rent charge If one is seized of Rent-charge by Prescription issuing out of the Manor of D. yet it seems he may not distrain the Beasts of the Copy-holders of the Manor unless they have been used to be distrained for that they are in by Prescription also and so as high as the owner of the Rent but it is clear That if the owner of the Rent had this by Grant or otherwise and not by Prescription that the Copy-holders Beasts cannot be distrained for this 1 Rolls Abr. 669 670. Cannon and Turner But by Coke Chief Justice If a Copy-holder be of 20 Acres and the Lord grants Rent out of those 20 Acres in the Tenure or occupation of the said Copy-holder and names him there if this Copy-hold Escheat and be granted again the Copy-holder shall hold it charged for this is now charged by express words Brownl 208. Sammer and Force Tenant by the Curtesie for Life or years of a Manor a Copy-hold comes to his Hands by Forfeiture or Determination and then he was bound in a Statute Statute by the Lord. and afterwards demised the Land again Per Cur. this Copy-hold shall be lyable to the Statute because it was once annexed to the Free-hold of the Lord and bound in his Hands But if a Copy-holder bind himself in a Statute Statute by the Copy holder Diversity it shall not be extended for he had not but an Estate at will and this diversity was agreed in Moor n. 233. Anonymus Lord of a Manor being summoned upon a Jury lose Issues Process for Loss of Issues Process shall issue out of the Exchequer to levy them upon the Lands of the Copyholders and Lessees for Life and years parcel of the Manor for the loss of Issues lies upon the Land as an inherent Servitude by the Law into whose Hands soever it comes and this is the common practice of the Exchequer CAP. XXV Of Harriots The Nature of Harriot Service and Harriot Custom and of their Differences What Custom for Harriots are good or not Where they shall be apportioned and by whose acts Who shall pay Harriot or not And the Pleadings Of Harriots HArriots being one of the ancient Services now most esteemed and kept up and many Copy-holds being Harriotable I shall Treat of Harriots chiefly intending Harriot Customs and so far of Harriot Services as to render the whole Intelligible The Normans upon parcelling out their Lands to inferior Tenants invented this Service and termed it Harriot Service and afterwards upon Infranchisement of their Villains Harriot Customs were given to the Lords for a future continued gratulation and so originally they were de gratia but now they are de jure It is the best Beast or other thing that the Tenant hath at the time of his death and this shall be paid before a Mortuary but the Lord if he will may seize the worst and that seizure gives him property Hob. p. 60.16 H. 7.5 Co. Lit. 185. b. Harriots may be by Tenure Custom or Reservation Plowd Com. Redsole and Mantel There are two sorts of Harriots Harriot Service Custom And the nature of them both will be best explained by these diversities Harriot Service is generally exprest in a mans Grant or Deed by which it is reserved and is in these words or to this effect ac etiam per servitium reddendi post mortem cujuslibet tenentis deceden seisit optimum animal c. 1 Anderson 298 299. Odiam and Smith But Harriot Custom is only due by Custom time out of mind and may be paid after the death of Tenant for Life Terms del Ley. Harriot Service is extinct by Purchase of parcel but not Harriot Custom Co. Lit. 149. b. It hath been made a question in our Books whether the Lord may seize for Harriot Service but it is agreed he must seize for Harriot Custom Plowd 96. a. In the Case of Woodland against Mantel it is said the Lord may seize for Harriot Service but Anderson 1. p. 298 299. in Odiham and Smith's Case saith he ought to distrain and not to seize so is Serjeant Benlows p. 18 39. But the Law is setled in Cro. Car. 260. Mayor versus Brandwood and that it is at the Lords election either to seize it or distrain it if he can find it though the pleading seem to justifie it for in Replevin if one justifie for Harriot Custom it s no Plea for the Plaintiff to say that the place where is hors de son Fee for that he claims this Harriot as his proper Gopds and may seize it wherever he finds it Bendl. p. 18 39. For the Lord may seize for an Harriot Custom in the High-way 2 Inst 132. What Custom for Harriots shall be good or not Custom was That if the best Beast be esloigned then the Lord had used to seize and take the best Beast of any other being Levant and Couchant upon the Land it s a void and unreasonable Custom So if it be the Goods of any Inhabitant or Dweller Dye 199. b. Paxton's Case Benl p. 39. bis Co. Ent. 666. The Custom of having an Harriot whether the man had Goods or not is a void Custom Carter's Rep. p. 86. A Custom That the Lord shall seize the Beasts of a Stranger for an Harriot it is not good because it alters the property but a Custom That he shall distrain
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
Lease had been in possession and the Lessee had never entred he had been barred 1 Brownl 181. This Fine shall not be a bar to the Copy-hold Estate in Remainder for Life for it is not turned to a right the Estate is given by Custom and is to have his beginning after the death of the first Tenant and if the first Tenant commit Forfeiture he in Remainder cannot enter and by Coke notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for Life remains in esse 2 Br. 153. mesme Case Custom that the Lord shall seize Copy-hold after three Proclamations and non-Claim by the Heir shall not bind the Heir that is beyond the Sea 8 Rep. Sir Richard Lechford's Case Statute 37 H. 8. Of Dissolutions 37 H. 8. Of Monasteries extends not to Copy-holds A Copy-holders Estate is not within the Statute of Monasteries and Chanteries to be avoided by any of the Statutes So by Statute 1 Ed. 6. Cap. 14. it is expresly provided That upon the dissolution of Abbies and Monasteries Copy-holds should continue as they did before the Statutes and should fall into the Kings Hands A Copy-holder dissolved by the Statute of Edw. 6. did between the Statute of 37 H. 8. and 1 Edw. 6. grant a Copy-hold Estate in Reversion but the Statute 37 H. 8. extends not to them 3 Bulstr p. 15. Long and Baker Vide 1 Leon. p. 4. mesme Case 31 H. 8. Eccles Leases Of making Leases of Copy-hold Lands belonging to Religious Houses for years after Leases for Lives or Years in being is within that Statute 8 Rep. 7. Heydon's Case 32 H. 8. Of Conditions Entries Assignee Copy-hold is not within the Statute of Entries for Conditions broken Surrendree of Reversion shall not enter for a Condition broken it s not within the Statute of Conditions Hob. p. 177 178. Swinnerton and Miller Copy-hold is not within the Statute of 32 H 8. Entries for Conditions Copy-holder by Licence makes a Lease for 60 Acres rendring Rent and condition of Re-entry Copy-holder Surrenders to J. S. and he demands Rent and enters for Non-payment J. S. is not such an Assignee as the Statute intends and Custom doth not trench to such collateral things such Assignee being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but he may plead his Estate immediately under the Lord Yel 222. Brasier's Case But Assignee of a Copy-hold is within the Statute to have Action of Covenant 1 Keb. 356. Arrears of Rent Baker's Case Quaere if of Debt Cro. Car. 21. Platt and Plummer Executors brought Action for Arrears of Rent of Copy-hold of which Manor the Testator died seized Per Cur. Action doth not lye for Arrears of Copy-hold Rents but only of Rents of Free Land and Statute 32 H. 8. extends not to them Yelv. 135. Appleton and Doiley 1 Brownl 102. Tenant in Tayl of a Manor wherein Copy-holds are demisable for Life c. for a certain Rent Copy-holder for Life dyes and the Lord demiseth it for 21 years 38 H. 8. Rents of Leases in Tayl. rendring the ancient Rent c. it s good within the Statute 38 H. 8. for its not any prejudice to the Issue as to the Rent Noy p. 106. The Lord Norris's Case Vide infra hoc capite If the Lord of a Copy-holder for Life demisable by 10 s. Rent leaseth it by Indenture to the Copy-holder and two others for their Lives rendring 10 s. Rent by which it is within the Statute of 32 H. 8. and is not material though the Harriot be lost because it is meerly casual Noy p. 110. Banks and Brown Vide Montjoy's Case 5 Rep. Et supra Copy-hold is within the Statute 32 H. 8. 9. 32 H. 8. Cap. 9. Of maintenance Of Maintenance for the Word is Any Right or Title 4 Rep. 26. a. Vide infra hoc capite Copy-hold is grantable for three Lives 13 El. Cap. 10. Dean and Chapter of London grant this to H. G. for the Lives of J. R. and M. reserving the ancient Rent but no Harriot the Rent was payable at four Quarters and by this Lease its payable half yearly yet this is not void by the Statute 13 El. Cap. 10. For the Occupant shall be punish'd for Waste and the Harriot is not annual nor depends on the Rent and as to the Rent it s the accustomed yearly Rent but in Mountjoy's 5 Rep. yearly was wanting 6 Rep. 37 Dean and Chapter of Worcesters Case Copy-holds are within all the Statutes of Bankrupts by express words vide supra Statutes of Bankrupts 1 El. and Jac. A Copy-hold is not within the Statute of Limitations Debt for the Fine of a Copy-holder is not within the Statute of Limitations 2 Keb. 536. Statute of Limitations Hodsden and Harris Vide. It is laid down for a Rule in Rowden and Malster's Case Cro. Car. 44. When an Act of Parliament altereth the Service Custom Tenure and Interest of the Land Rules when Acts of Parliament extend to Copy-holds or not or other thing in prejudice of the Lord or Tenant there the general words of such an Act shall not extend to Copy-holds Therefore W. 2. Cap. 20. Elegit Statute W. 2. Cap. 20. which gives Elegit extends not to Copy-hold Lands because it would be prejudicial to the Lord and a breach of the Custom that any stranger should have Interest there without admittance and allowance of the Lord. 27 H. 8.10 Stat. of Uses Statute 27 H. 8.10 of Uses toucheth not Copy-holds because the transmutation of Possession by the sole Operation of the Statute without allowance of the Lord would be to the Lords prejudice 31 H. 8. and 32 H. 8. Of Partition The Statute 31 H. 8. Cap. 1. and 32 H. 8. Cap. 2. whereby Joynt-tenants and Tenants in common are compellable to make Prohibition extend not to Copy-holds And the 32 H. 8. Cap. 28. Leases by Tenant in Tayl or by Husband of the Wives Land Statute 32 H. 8. Cap. 28. Which confirms Leases for 21 years made by Tenants in Tayl or by the Husband and Wife of the Wives Land touch not Copy-holds for that Statute warrants only such Leases of Lands which are grantable by Deed such are not Copy-hold Lands though by the Lords Licence they may be granted by Indenture yet in their own nature they are only demisable by Copy So Statute 32 H. 8. Cap. 34. And for the same reason which gives an Entry to the Grantee of a Reversion upon the breach of a condition by the particular Tenant toucheth not Copy-hold In all Statutes made for the good of the Common-wealth and wherein no prejudice accrues to the Lord or Tenants by reason of the alteration of any Interest Service Tenure or Custom of the Manor there the general words of such acts of Parliament do extend to Copy-hold Lands as Statute of Merton Cap. 1.
per quod quer ' communiam suam predict pro averiis suis c. in tam amplo beneficiali modo prout antea habuit c. habere non potuit This is a good Declaration though the Commoner cannot have any Damage for the taking and carrying away the Turffs yet the coming on the Land with Horse and Carts is a prejudice to the Common and the per quod the Common is impaired is the cause of Action and the carrying away a means to impair it 1 Rolls Abr. 89. Terry and Goodier and good tho' Damages were entire Action shall be brought in a Copy-holder Lunaticks name for though the custody of the Land was granted to one by the Lord yet no Interest was gained by this commitment and the Lord hath not power over the Lunaticks Lands without a Custom Hobart p. 215 216. Cox and Darson Trespass Quare clausum fregit Copy-holder of Under-Wood without the Soil shall have Trespass Quare clausum fregit Moor n. 480. Account for Profits Account lies not for an Heir Copy-holder for the Profits of his Copy-hold Lands taken during his non-Age where the Defendant hath not entred and taken the Profits as Prochein Amy but claims by Custom and Grant of the Lord to the Use of the Assignee which Custom is good 1 Leon. p. 226. n. 356. Anonymus Faux Judgment Writ of faux Judgment lies not for a Copy-holder Vide supra Writ of Right Close Writ of Right Close lies not for a Copy-holder 4 Rep. 21. Avowry for Rent by Lessee of a Copy-holder Lessee for years of a Manor distrains a Copy-holder for Rent he Replevins Lessee Avows Per Curiam Avowry may be made for the Rent of a Copy-holder in the Kings-Bench and there is difference between an Ejectione Firmae and this Case For the Ejectione Firmae is brought for the Copy-hold it self But this Avowry is for Rent due to the Lord which is a duty at the Common Law and therefore an Avowry may well be for it Cro. El. p. 524. Laughter and Humphry A Copy-holder in Fee by Licence made a Lease for 21 years by Indenture rendring Rent Covenant by Assignee of a Reversion wherein the Lessee Covenants for himself his Executors and Assigns That he will erect a c. The Lessor surrendred to the Use of the Plaintiff and his Heirs who was admitted accordingly and the Plaintiff as Assignee brings his Action of Covenant Whether the Assignee may maintain this Action by the Common Law or by the Statute 32 H. 8. Cap. 34. was the Question for the Defendant demurred upon the Declaration it was adjourned in Cro. Car. 24. Plat and Plummer But it seems by 1 Keb. 356. Baker and Berisford's Case That the Assignee is not within this Statute to have a Covenant Action of Debt doth not lye for Arrearages of Copy Rents for the Stat. of 32 H. 8. Action of Debt for Rent does not extend to them but to Rents out of Free Land Yelv. p. 135. Appleton and Doily And so Executors shall not have Debt for Arreages of such Rents due in the Life-time of the Testator The Lord of a Manor is and Fines No Remedy for Fines Rents c. after vendition for Admittances and Copy-hold Rents are Arrear and then he sells the Manor he is without Remedy both in Law and Equity He hath deprived himself of the Remedy by his own act viz. the vendition 1 Rolls Abr. 374. Serjeant Hitcham and Finch Copy-holder for Life becomes Lunatick A. Action of Trover to be brought in the Lunaticks name he being a Copy-holder sows the Land The Lord grants the custody of the Lunatick to B. A. takes the Corn to the Use of the Lunatick B. Brought Trover in his own name it s ill brought It ought to be brought in the Lunaticks name and not in the name of the Committee Noy p. 27. Cox and Dawson Covenant by Rent Custom is when a Copy-holder dies seized of Copy-hold Lands or Rent That his Wife shall have the one moiety and his Issues the other moiety A. B. so seized takes Mary to Wife and they have Issue John A. B. dies so that Mary is seized of the moiety for her Life and John of the other moiety in Fee and of the first moiety as his Reversion Mary and John her Son make a Lease to J. B. for twenty one years rendring fifty pounds Rent to Mary and fifty pounds to John and after the death of Mary one hundred pounds to John John marries Margaret they have Issue three Sons John dies so that a fourth part comes to his Wife and the other fourth part to his three Sons Rent is behind Margaret brought Debt on Covenant for the Rent Per Curiam it was well brought by her sole Joynder in Action without joyning Mary with her Tenant in Commonn shall joyn in Action so long as the privity of Contract remains but when the privity is determined as it is here they may sever and such Contract shall ensue the nature of the Land and also there is a vesting by Custom and express several Reservations 2 Siderfin p. 9. Baker and Berisford CAP. XXX Of Copy-holders being Impleaded and Impleadable in the Lords Court Vide supra Tit. Customs COpy-hold Lands are as the Demesns of the Manor and are the Lords Freehold and therefore are not impleadable but in the Lords Court Croke Jac. 559. Pymmock and Hilder One recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right A Precept cannot be made and awarded out of the Court to execute the said Recovery Posse Manerij and to put him who recovered into possession with the Posse Manerij for force in such cases is not justifiable but by command out of the Kings Courts 3 Leon. 99. A Woman recovered Dower of a Copy-hold within the Manor and 40 l. Damages 40 l. Damages recovered yet no Execution or remedy but by Petition and she brought Debt for the Damages in B.R. Per Cur. it lyes not because the Court Baron cannot hold Plea nor award Execution of 40 l. Damages though the Damages were there well assessed and because no Writ of Error or Faux Judgment lyes upon such a Recovery of a Copy-hold but only a Petition to the Lord of a Manor so that Copy-hold Plaints are not within the Jurisdiction of this Court of Kings-Bench Moor n. 559. Shaw and Tompson If an erroneous Judgment be given in a Copy-hold Court of a common Lord in an Action in nature of a Formedon a Bill may be exhibited in Chancery Faux Judgment how relieved in nature of a Faux Judgment to reverse this Pateshall's Case in Scaccario 1 Rolls Abr. 373. and Co. on Lit. p. 60. a. He cannot have the Kings Writ of false Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a
alledge this as a Grant How a Copy-holder shall plead in making Title to a Copy-hold and this the Law allows for avoiding an inconvenience which will otherwise happen for if the Copy-holder in Pleading shall be put to shew the full Grant either it was before the time of memory and then it is not pleadable or within time of memory and then the Custom fails Admittance pleaded as a Grant and for this cause the Law hath allowed the Copy-holder in Pleading to alledge any Admittance upon a Descent or upon a Surrender as a Grant and yet he may if he will alledge the Admittance of his Ancestor as a Grant and shew the Descent to himself and that he entred and good without any Admittance of him but the Heir cannot plead That his Father was seized in Fee at the Will of the Lord by Copy of Court Roll of such a Manor according to the Custom of the Manor and that he died seized and that it descended to him for in truth such an Interest is but a particular Interest at Will in judgment of Law although it is descendible by the Custom for he is Tenant at Will of the Lord according to the Custom of the Manor 4 Rep. 22. Brown's Case If one Surrender to the intent that the Lord shall grant it to another and he admitts him it was adjuded good yet he ought to plead it as a Grant Lit. Rep. 175. Tenant in Dower may Grant a Copy-hold in Reversion which shall be good Grant of Copy-hold Land in Reversion must be pleaded as a Grant in Reversion and not as a Grant in possession nor by a per nomen though not executed in the Life of Tenant in Dower But then it must be pleaded as a Grant in Reversion and not as a Grant in Possession therefore in Gray's Case Cro. El. p. 661 662. It was there pleaded That he granted Tenementa praedicta per nomen of a Messuage which A. P. held for Life and Per Cur. it s an uncurable Fault for it is not alledged that he granted the Tenement in Reversion and the per nomen will not help Averment del ' vâ—e Tenant by curtesie of Copy-hold brings Ejectment or Action it must appear that he is in Life or else he cannot have Judgment 1 Anderson p. 292. Ewer and Astwick Where in Pleading the Commencement of the. Estate must be shewn or by whom granted or not In matter of Conveyance to a Title need not shew the Conveyance Replevin the Plaintiff in bar to the Avowry shews that the Land was Copy-hold Land grantable in possession or reversion for Life or in Fee and that the Lord granted the Reversion to him after the death of W. who was Tenant pur vie and shews the death of W. whereby he entred And demurred because he did not shew the beginning of W. his Estate nor by whom W. had the Estate granted him Per. Cur. this is no cause of Demurrer because it is not the Plaintiffs Title but matter of Conveyance thereunto Cro. Jac. 52. Lodge and Fry Admittance of the last Heir to be shewed instead of an ancient Grant If one pleads Seisin of a Copy-holder in Fee and claims under him he ought to shew of whose Grant as he ought to shew of any other particular Estate but perhaps that is so ancient that it cannot be shewn who was the first Grantee yet it was held sufficient to shew the Admittance of the last Heir which is in nature of a Grant and may be pleaded by way of Grant Cro. Jac. 103. Pyster and Hembling In Trespass the Defendant justifies he confesseth the Close to be Copy-hold Land but pleads That long time before it was parcel of the Manor of c. and that long before the supposed Trespass one Pole and M. his Wife was Lord of the Manor in right of his Wife for Life remainder to Stephen in Tayl and he made a Lease of this Land to the Defendant it s an ill Plea because the Defendant hath not shewed as he ought how Pole and his Wife came to this Estate for Life the remainder over they ought to shew how this particular Estate hath its commencement they claiming a derivative Estate from Pole and his Wife for years 3 Bulstr 281. Sandford and Stephens None may entitle himself to any Copy-hold but he ought to shew a Grant thereof In Trespass the Plaintiff in his Rejoynder intitles himself because the place where is customary Land parcel of such a Manor whereof J. S. is seized in Fee and demisable by Copy at Will in Fee and that J. N. was seized in Fee by Copy c. and dyed seized so as it descended to two Daughters as Heirs of J. N. and that at such a Court Dominus concessit eis extra manus suas c. Habend tenend Tenementa praedicta to the said Daughters and their Heirs whereby they were seized in Fee and afterwards demised to the Plaintiff for years The Plaintiff hath not made a good Title and he shewing such an one was seized in Fee without shewing the Grant thereof Per Cur. it s not good Cro. Car. 190. Shepherd's Case yet it was but default of form and Issue for the Plaintiff being found it is a Jeofail Pleading Custom or Prescription A Copy-holder in Pleading need not alledge a Custom to make a Surrender for that is the Custom of all England A Copy-holder need not alledge a Custom to make a Lease for a year It must be pleaded that he used to do it It is not sufficient to alledge a Custom that one might do such an Act but that he used to do it as to alledge dimissibile and dimissum therefore in Brown and Foster's Case the Defendant avows in Replevin for Damage feasant the Plaintiff makes Title as Copy-holder and shews that within the Manor of A. time whereof c. Talis habebatur habetur consuetudo c. That any Copy-holder may surrender into the Hands of two Customary Tenants c. this is not well pleaded for it is pleaded by Usage and Custom but he doth not plead that ever it was put in ure in that manner which ought to be alledged as in Sir William Hatton's Case where it was pleaded Quod Talis habebatur consuetudo within a Manor Quod licebit Seneschallâ— to impose a Fine c. But in the principal Case the not naming the Steward made the Avowry ill and then Per Cur. the Avowry being ill although the bar to the Avowry were ill Not naming the Steward in the Avowry ill yet he cannot have return Cro. p. 37. El. 392. Brown and Foster Copy-holder pleads Quod infra Manerium praed talis habetur nec non a toto tempore cujus contrarij memoria hominum non existit habebatur consuetudo videl quod quilibet tenens custumar ' praedict tenementa c. hath used to have Common in such a place parcel of the Manor Question was if the
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
quod certum numerum Customar liberorum Tenentium nominare placebit ad adjudicand certum numerum Catallorum Ovium c. que dehinc super Communiam pdictur depascentur conservabuntur quodque cuncta hujusmodi catalla cum quodam Communi signo signentur Surrender by Baron and Feme Nunc de rebus ad Cur Baron spectan Ad hanc Curiam vener T. W. gen Custom Tenens hujus Manerii P. Vx ' ejus ipse P. pdictur existens prius sola secreta examinatur ê‘ Senesc pd prout mos est sursu redd in manus Dominorum per manus Senesc pd ê‘ virgam secundum consuetud Manerii pdictur totur illu Customar MessuagÌ„ sive Tenementur communiter vocatur sive cognitur ê‘ nomen de c. cum Curtilagio omnibus aliis ptinen ad inde spectan sive pertin scituatur jacen existen in C. pdictur Ad opus usum W. S. de c. pdictur pistoris hered Assignatur suorum imperpetuum Qui quidem W. psen hic in Cur petit se admitti ad pmissa pdicta cui DnÌ„i ê‘ Senescallum suum pdictur concesser inde seisinam ê‘ virgam Habend sibi heredibus suis Tenend de Dominis ê‘ virgam in villenagio ad voluntatem Dominorum secundum consuetud Manerij pdictur ê‘ redditur servic consuetur inde prius debitur de jure consuetur Et dat Dominis jure fecit fidelitatem Et admissus est inde tenens Finis xvj l. Redd c. Surrender ad usum ultimae voluntatis W. ad usum ult voluntat Ad hanc Curiam ven T. R. Gen Customar Tenens hujus Manerii in plena Curia sursum redd in manus Dominorum per manus Seneschalli sui pdictur ê‘ virgam secundum consuetud Manerii pdictur totur illud Customar ClausÌ„ sive parcella prati communiter vocatur sive cognitur per nomen de c. jacen existen in C. predictur continen per Estimationem sexdecim Acr sive plus sive minus ad opus usum talis persone sive personar pro tali statu sive statibus qual ê‘dictur T. R. ê‘ ultima voluntatem sua aut ê‘ aliquod aliud scriptur sub manu sigillo suis limitabit declarabit sive appunctuabit Grant of Wardship of a Tenant Custod S. Commiss H. Cum ad Cur Baron hic tentam die Mercurij scilÌ„t vicesimo nono die Februarii nunc ultimo preterito Custod tam Corporis quam Tenementorum S. M. Infantis Custom Tenen hujus Manerii concess fuit I. M. Ballivo Manerii pdictur durante Minori etate sua c. Modo ad hanc Cur Domin Manerii pdictur receperunt custod Warde sue pdictur extra manus Balli pdictur in plena Cur concesser custodiam tam corporis quam Tentur pdictur S. M. W. H. de c. durante minori etate dicte S. inveniend c. Reddend c. Surrender of Right Title and Interest to two by moieties Ad hanc Cur ven C. N. A. N. Uxor ad N. C. Vxor ejus Et pdictur A. eristen prius sola secretur examinata per Senescallum pdictur ê“ut mos est sursum reddider in manus Dominorum Manerii pdictur per manus Senescalli sui pdictur per virgam secund consuetud Manerii pdictur totur jus pdictur C. A. Statur Titul Clam Interesse demand sua que unquam habuer vel eorum alter habuit habent seu quovismodo in futuro habere poterint de in uno Clauso terre continen ê‘ estimationem novem Acr jacen prope c. Copia Facta cum omnibus suis pertinentiis ad opus usum I. N. Iun E. N. sororis pÌ„dictur I modo Vxor I. C. de Villa S. A. in Com H. pistor Qui quidem I. E. sunt in plena possessione seisina Clausi pdictur hered dic I. E. imperpetuum Tenend unam medietatem Clausi pdictur pdictur I. N. heredibus suis tenend alteram medietatem Clausi pdictur cum pertin pdictur E. D. heredibus suis Qui quidem I. E. presen hic in Cur petur se admitti ad premissa pdictur quibus Domini per Senescallum suu ê‘dictur concesser inde seisinam per virgam habend ipsis hered suis in forma pdictur Tenend de Dominis per virgam ad voluntatur Dominorum secundum consuetud Manerii pdictur per redditur servic consuetur inde prius debitur de jure consuetur Et dant Dominis de fine Et pdâ—ctur I. N. fecit fidelitatem suam sed fidelitas dictur E. respectuatur c. Et admissi sunt inde Tenentes Admittance of a next Heir Cum ad Curiam Baron hic tentam xxix die Feb. ultur preterito compertur fuit ê‘ HomagÌ„ quod W. M. Sen Arm citra tunc ultur Curiam ante Curia illam obiit seisitur de diversis terris tenementis Custom tentur de Manerio pdictur Et quod E. M. fuit neptis prox ' here 's Domini W. M. sen Cumque etiam ad Cur Baron hic tenta vicesimo tertio die martii silitur nunc ultur preteritur comptur fuit per homagÌ„ quod pdictur E. M. citra tunc ultur Curiam ante Curiam ill de terris customar predictur inter all obiit seisita Et quod M. Vxor I. K. de c. gen Amita pdictur E. filia unica pdictur W. M. fuit prox ' here 's dicte defuncte Modo ad hanc Curiam ven pdicta M. Et petit se Admitti ad totur illud Customarium Messuagium sive Tenementm in L. pdictur communiter vocatur sive cognitur per nomen de c. cum Areis Gardinis pertinentiis adinde spectantibus ac etiam ad totos illos separales Compos vel Clausa pasture prati vocatur le c. continen insimul per estimationem triginta Acr sive plus sive minus Que discendebant eid M. per mortem dicte E. cui Domini ê‘ Senescallum suum pdictur concesser inde seisinam ê‘ virgam Habend sibi heredibus suis Tenend de Dominis per virgam ad voluntatem Dominorum secundum consuetudinem Manerii predictur per redditur servic consuetud inde prius debitur de jure consuetur dat Dominis de fine admissa est inde tenens sed fidelitas respectuatur c. A Surrender by one in extremis by the hands of two customary Tenants to the Use of his last Will which is recited To one for Life the Remainder over Tenant for Life surrenders to him in Remainder on condition in the Will contained Ad hanc Curiam HomagÌ„ pdictur super Sacramentum suum pdictur psentant quod nono die Iunii nunc ultimo preterito I. C. unus customar Tenen Manerii pdictur jacen in extremis infra Parochiam de c. infra Maner pÌ„dictur extra Curiam sursum redd in manus
to two by Moieties 371 Admittance of a next Heir 372 A surrender by one in extremis by the Hands of two customary Tenants to the Use of his last Will which is recited to one for Life the Remainder over Tenant for Life surrenders to him in Remainder on condition in the Will 373 Licence to demise for Years not exceeding 31 375 Presentment that the customary Tenant died seised and that the Heir came not to take up the Land and Proclamation made ibid. Presentment that the mony mentioned in a Surrender was not paid at the time ideo proclamatio prima ibid. A Fine respiteed at last Court taxed at the next 376 Presentment That a Surrender precedent was chargable with the payment of 100 l. to M. when he should attain the Age of 21 years or day of Marriage which should first happen and with a like Sum to A. payable in the same manner M. upon receit of the 100 l. releaseth and the Surrendree secures the payment of the other 100 l. to A. by Lease 376 Presentment That several Copy-hold Lands were infranchised by the Lord 377 Surrender on condition 378 Surrender to the use of a youngest Son conditional for payment of mony at several days 379 A Surrender and Release in consideration of 400 l. 380 Surrender to the Use of ones last Will to which a Codicil is annexed and which is presented by the Jury and admittance to Tenant for Life 381 Second Proclamation for not coming in and taking up the said Estate 382 Acknowledgment by the Lord that the Copy-hold is infranchised 383 Admittance by the Gardian ibid. 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Copy-holders Fines Forfeitures Surrenders Admittances Trusts c. and what is proper to be brought and examined in that Court Alteration of a Custom by consent of Lord and Tenants allowed in Chancery Custom altered and decreed accordingly Dyer contra Dyer 10 July 44 El. If any particular Copy-holders complain in Chancery of the grievousness of a Fine Outragious Fines as to particular Copy-holders relieved but not upon a Petition by all the Copy-holders where the Fine is arbitrable at the will of the Lord if such Fine be outragious my Lord will mitigate it and lessen it according to the time But if the whole company of Copy-holders do exhibit a Bill praying a mitigation of their unreasonable Fines where they are arbitrable at the will of the Lord in this Case my Lord will reject the Bill for said he I can make no Act of Parliament for them 24 Nov. 44 Eliz. The Defendant being Lord of a Manor had 150 l. as a Fine upon the Plaintiffs admission to the Lands in question The Court of Chancery directed to an Issue whether the 150 l. were a reasonable Fine or not and the Defendant got a Verdict and the Damages were given by the Jury being to the Value This Court declared Reasonableness of a Fine how to be determined and properly recovered That the Fine was proper to be recovered at Law and that the reasonableness or unreasonableness of a Fine to be paid by a Copy-holder is a question of Law and not to be determined by a Jury Hill contra Jacobs 3 Jac. 2. f. 2. One improved years value decreed to be a moderate Fine In the case of Popham and Lancastar 12 Car. 1. The Court seeing there hath been a variation of the Fines and not certain decreed That one improved years value is a moderate Fine between Lord and Tenant so was Middleton and Jackson's Case 5 Car. 1. Forfeitures wilful not relieved In the Case of Ackland Pope and my Lady Wentworth the Lord Chancellor said he would not relieve any Copy-holder who through wilful Forfeiture hath given cause of seizure to the Lord for he said The Lord had as good a right to a seizure for a Forfeiture as a Copy-holder to his Copy-hold Estate but a wilful Forfeiture he would not relieve but for negligence he might Copyholder conceals the Land of the Lord. If a Copy-holder conceal the Land of the Copy-hold to the disherison of the Lord and say to the Lord Lay out of my Land and I will pay you your Rent for it My Lord Chancellor Elsemere said He is worthy to return to his ancient villainous Tenure again Commons for Copy-holders Commons for Copy-holders and Terminors to be relieved in Chancery Tothil 108. Colcot and Lee. A Copy-holder can have no assise of Common against his Lord Copy-holder can have no Assise against his Lord but relievable in Equity Copy-holder to sue at Law sans forfeiture but is to be relieved in Equity The Tenants of Petsworth and the Earl of Northumberlands Case Tothil 108. The Court will compel the Lord to admit a Tenant Copy-holder to sue at Law without any forfeiture of his Copy-hold Tothil 65. Tenant by Copy shall not have Assise against his Lord because he hath a Frank-tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. A Suit was to compel a Lord to Grant a Licence to let a Copy-hold Licence Forfeiture to be examined before a Licence be decreed but because the Defendant said in his Answer That the Copy-hold was forfeited the Court would not enforce him to grant a Licence till the forfeiture was examined Tothil 107 108. A Court of Equity shall compel a Lord to admit a Copy-holder Admittances for before Admittance he cannot have an Action upon Surrender and he hath no remedy at Common Law Hetly Rep. p. 2. A Bill in Chancery to admit a Copy-holder against Lord and Steward Plaintiff admitted to try a Title upon a Mortgage and this was only to try a Title to enable a Mortgagee to try a Custom That if mony be paid after the day so it be before Entry of the Surrender made by Mortgagee that its a sufficient Redemptition and also where the Wife Inheretrix dies sans Issue the Husband shall have the Fee at Taunton Dean Per Cur. the Plaintiff shall be admitted though the Steward need not have been made one of the Defendants 2 Keb. 357. Towel versus Cornish * Chancery will design the Bounds of a Copy-hold but not whether parcel or not parcel If a Copy-holder removes or defaceth the bounds of a Copy-hold it is proper for such a Court to design them but parcel or not parcel of a Copy-hold belongs to the Common Law to try Hetly p. 2. Blackhal and Thursby Possession after 43 years Lyford contra Coward 35 Car. 2. Richard Lyford Senior the Plaintiffs Father being seized in Fee of Freehold and Copy-hold Lands and having had Issue Richard Thomas and John now Plaintiff by Will gave the Plaintiff all his Copy-hold Lands and to his Heirs Males and for default of such Issue to his Heirs general and made a Surrender to the Use of his Will That the Surrender was presented and the Plaintiff admited Tenant and hath ever since been of the Homage and enjoyed the Copy-hold Lands That Richard the Son died 1637. leaving only one Daughter the Defendant Mary That the Court Rolls are lost and the Defendant insists That he in right of his Wife the Defendant Mary as Heir at Law to the said Richard Lyford Senior is entitled to the Premises there being no such Surrender or Admittance to be found and that no such Will was made or any thing that will make out the Defendants Title The Court declared they would see Presidents but then declared That after 43 years possession they thought it hard that the Plaintiff should be evicted and Ordered That the Defendant should admit of a Surrender and Admittance upon payment of Costs and bring an Ejectment and the Plaintiff not to insist on his possession to hinder the Tryal The Court Decreed to the Plaintiff and his Heirs to enjoy the Land according to the said Will and Custom of the Manor Relief as to Surrenders Purchases Agreements Trusts Rolls lost and Rents Arrear It is Decreed in the Case of Greenwood cont Hare 18 Car. 2. That where one was a Copy-holder for the Lives of himself and his two Sons and he paid the Fine Defendant decreed to surrender according to an Agreement and afterwards covenanted and agreed with the Plaintiffs Father to Surrender his Title and Interest in the Premisses to the Plaintiffs Father and his Heirs Copy-holder dies before any Surrender The Plaintiffs Father dyes he Exhibits his Bill to have the Premisses surrendred according to the Agreement the Purchase-mony having been paid by the Plaintiffs Father The Court considering That by the Custom the Defendants Father could have