for the same Coppy-hold now is hee become a good Coppy-holder without any further Admission If a Coppy-holder surrendreth his Land to the use of I. S. for life the Remainder to the use of R. N. for life and the Lord granteth the same accordingly and admitteth I. S. it seemeth this is a good admission to R. N. that is in the Remainder A Coppy-holder in Fee dyeth seised his heire may make a surrender to the use of a stranger without admission quaere But if a Coppy-holder surrender to the use of I. S. this I. S. cannot surrender to the use of a stranger without being first admitted him selfe If a Coppy-holder Surrender all use of the joyntly and they are admitted if the one of them dyeth the surviver needeth not t◠bee admitted againe for the moytie But if a Coppy-holder having Issue two daughters and they are admitted and then the one of them dieth the other must needs be admitted for the other moyty for hee takes the same by discent L'heire dun Coppy-holder part prender profits avera accion de travers et Ferra Post fratris sufficicum deveant admittance 12. Eliz. 291. et part faire lesses per ans Denby et Bullock WHAT SHAL BE SAID a forfeiture of a COPPY-HOLD THE Tenant by Coppy standeth bound by his Tenure to the Lord that if hee doth any thing to the Lords dis-inheritance or in some cases if he doth transgresse the duty of a good Tenant he shall forfeit his Coppy-hold but because all offences are not equall so likewise there are degrees of punnishment for there is a difference betweene offences done wittingly and willingly and faults ignorantly and unwillingly committed And therfore some offences are forfeitures ipso facto some are onely forfeitures when they are presented and not before and some are onely fineable Forfeitures ipso facto are offences that lye in mis-fesans be apparent forfeitures when they are presented only are offences that lye in non fesans and is not apparent nor affirmatively to bee proved without presentment Offences Finable are offences of contempt and not of dis-inheritance As if a Coppy-holder will in the presence and sitting of the Court Baron say 〈…〉 extort and exact un-due 〈…〉 his Tenants or such 〈…〉 this is onely Fineable But 〈…〉 and there say being called forth to bee sworne of his homage that hee is none of the Lords Tenant this makes a Forfeyture of his Coppy-hold But if hee will there say that hee will shortly demise away that hee will bee no longer of any of the Lords Coppy-holders this is neither cause of Forfeyture not Fine If a Coppy-holder Sendente curia doe strike an other Coppy-holder or any other stranger this is onely Finable and maketh no Forfeyture If the Steward sheweth forth a Court Role to proove that I. S. is a Coppy-holder and this not withstanding hee will in the Court say that hee is a Free holder and sheweth forth a Free deed and claime thereby and teareth in peeces the Court Role and publisheth the free deed this a cause of Fine and Forfeyture But if the said Tenant will there upon some Colourable doubt and question which may arise whether hee bee a Free holder or a Coppy-holder say to the Steward because hee knowes not whether the rent that hee should pay bee Free rent or Coppy-hold rent he will pay it with protestation that the rent may be recorded as it shall fall out and with like protestation offer and do his service though in truth hee bee a Coppy-holder yet this deserveth neither Fine or Forfeyture If a Coppy-holder cannot pay his rent and will not doe his service this offence is on the Negative and maketh no forfeyture till it be presented Tenant per Coppie ne poet facere wast ne couper bois per vender mes pro reperacontantum 9 Hen 4. 12. 43. Ed. 3. 32. 80. But if a Coppy-holder doth Alien his Land by Free deed or will commit waste or demise his Coppy-hold contrary to the Custome or will sue a replevin against the Lord for a Distr lawfully taken for his Rent or service due or disclaime in the Land being summoned to the Lords Court or will there claime it as his free hold or will in any other Court untitle any other Lord unto it or bee attainted of treason or felonie or continue out-lawd or excommunicate during the Lords Court or refuseth to goe with his Lord or other commissionours for that purpose in the service of the prince to suppres Rebells riots or unlawfull assemblies All these offences be apparent mis-fesance and forfeiture ipso facto without any presentment But if a Coppy-holder being of the grand Inquest at the Assizes or Sessions shall indit his Lord of any manner of offence committed against the Prince or Lawes of this Realme or shall upon proces Compulsary give evidence against his Lord which is in any cause betweene his Lord and an other Common person or betweene the prince and his Lord without compulsary proces or shall make any bodily arest of his Lord by the commandment of the Shriefe or other lawfull authority or shall bring any Action or Suit against his Lord in any of the Queens Courts except a Replevin case aforesaid All these last recited be cause of neither Fines or forfeitures of any Coppy-hold Also a Coppy-holder not claiming his Coppy-hold after the death of his Ancestor within a yeare and a day at the Court if any bee it is a forfeiture for ever per. opin Catline Slowelle Case 372. ct c. il pesse dee bone custome in plusors Mannors If Coppyholders being on a Jury will not finde the waste committed or will not present things presentable this is a forfeituer of their Tenures if they be Coppy-holders by the opinion of Catlin Dier and Bracton 4. Eliz. Dier 211. pe 31. 6. et 7. Eliz. 233. b. 9. Hen. 6. 44. b. If a Coppy-holder will not be sworne to present such offences as are forfeitures this is a forfeiture of his estate so if he alien or make Coppy-hold free for tenne pound the Lord may enter for they are willfull acts for which the Lord may enter without presentment but for negligent offences as for not doing of services or not acceptance of a Coppy-hold after the death of his ancestor the Lord cannot seise without presentment of the homage And if an infant within the yeare after the death of his ancestor will not after the Court holden and proclamation made pray to bee admitted it is no forfeiture unlesse the Custome of the Mannour be that an infant ought to forfeit his estate by such negligence for it is but a claime at Common Law which bars not an infant which hath not discretion Betweene Hautrey and Buckshire and one of his Coppy-holders 12. Eliz. Rot 96. If thirteene Coppy-holders bee sworne in a base Court and twelve agree to give Verdict the thirteenth will not it is not a forfeiture for it is a good verdict
THE RELATION BETWEENE THE LORD OF A MANNOR AND THE COPPY-HOLDER His TENANT Delivered in the Learned Readings of the late Excellent and Famous Lawyer CHAR. CALTHROPE of the Honorable Society of Lincolnes-Inne Esq Whereby it doth appeare for what causes a Coppy-holder may forfeite his Coppy-hold Estate and for what not and likewise what Lord can grant a Coppy and to whom Published for the good of the Lords of Mannors and their Tenants Non magis promaenibus quam pro servandis legibus liber Cives pugnare debent siquidem sine maenibus Respublica potest consistere sine Legibus non potest LONDON Printed for William Cooke and are to be sold at his shop neere Furnivals Inne gate in Holborne 1635. COPPY-HOLDS The first Lecture THE great injuries which are offered and small remedies which are used in cases of Coppy-holds which as it seemeth doe grow by the obscure knowledge what Law Custome judgeth in these matters of Coppy-hold moveth mee to shew some part of my Travailes in these poynts not thereby to animate Coppy-hold Tenants which would by too much advancing their Tenure pretend only to be Tenants by Custome and not Tenants at Will nor to encourage any Coppy-hold Lord which could by too much abasing these Tenures pretend to have such Coppy-holders onely Tenants at Will and not regard their customes but to proove unto you that as their Title and name sheweth they are Tenants at will and Tenants by Custome in their Land and they consist both of their Lords Will and Custome of the Mannour in their degrees And that this Will and Custome be contained within the Limits of Law and reason according to such rules as shall be hereafter declared First I will shew what a Coppy-hold is then whereof it doth consist and what estimation the same is of by the Antiquity of time and by the Lawes and Statutes of this Realme Master Littleton in his first booke of Teuures defineth a Tenant by Coppy of Court Role and to be where a man is seised of a Mannour in which is a Custome that hath been used time out of minde that certaine Tenants of the same Mannour have used to have certaine Lands and Tenements to hold to them and their heires in Fee Simple Fee Taile or for Life at the will of the Lord after the Custome of the Mannonr And that they have no other evidence but the Roles of the Court by which difinition and by certaine other observations of the Law it may bee gathered that a Coppy-hold doth consist of these sixe principall grounds or Circumstances viz. First there must be a Mannour for the maintenance of Coppy-hold Secondly a custome for the allowing of the same Thirdly there must be a Court holden for the proofe of the Coppy-holders Fourthly there must be a Lord to give the Coppy-hold Fiftly there must be a Tenant of Capacity to take the Tenement Lastly the thing to bee granted which must bee such as is grantable and may bee held of the Lord according to the Tenure But first before I speake of these Circumstances I will briefly declare unto you the Dignity and Estimation of Coppy-holders by the Antiquity and allowance of time and by the Lawes and Statutes of this Realme It appeareth by a certaine booke intituled De priscis anglor legibus Translated out of Saxon Tongue by Master Lambert of Lincolns Inne that Coppy-holds were long before the Conquest and then called by the name of Bookeland as you may see in the beginning of the Booke in the Treatise De rerum Verborum explicatione and by Master BRACTON an Ancient Writer of the Lawes of ENGLAND who in his Booke VVriteth divers presidents and Records of King Henry of allowance Copi-holders or Customary Tenants that do their due services the Lords might not expell them according to the opinion of the latter Judges in the time of Edward the 4. and Edward the third And it appeareth by Master Fitz-Herberts Abridgements they were preferred by a speciall writ for that purpose and the Lord thereby compelled to do right And in the time of Henry the fourth Tenants by the Virge which are the same in Nature as Copy-holders be were allowed by the name of Sokemaines in Franktenure as in the time of Henry 7. were allowed and of the King for defence of their estates So that in every Kings time Copy-holders have had their allowances according to their natures unto this time present wherein our Justices are of opinion as the said grave Sages have beene in times past Now I will further proceede in some perticuler use of these Tenures according to the Lawes and Statutes of this Realme And because I finde none that doth so much deface the estimation of Copy-holders as Master Fitz Herbert doth in his Writ Derecto Clauso I will begin with his words and judgement in the same and proceed to other Authorities Master Fitz-Herbert saith that this Terme Coppi-holders is but a new Terme newly found out that in old time they were called Tenants in Uilenage or base Tenure and this saith he doth appeare in the old Tenures for no Coppy-holders are there spoken of although there were at that time such Tenants But then saith they were called Tennats in Vilenage and saith as appeareth 44. Henry 4. If a false judgement be given against them in the Lords Court they shall have no remedy but sue to their Lord by petition because to hold by Coppy of Court Role which is as hee saith base Tenure is to hold in Villenage which said opinion of Fitz-Herbert have beene by divers wrested to make no diuersity betweene Tenure in Villenage and Tenure by Coppy of Court Role or base Tenure wherein whatsoever interpretation may be made Master Fitz Herberts meaning is very plaine and the Booke of the old Tenures is to be farre otherwise understood as also I suppose all other Authorities in our Law doe make and appoint difference betweene the Tenures And first touching the Booke of the old Tenures it is plaine that the Booke maketh a plaine distinction betweene Tenure in Villenage and Tenure in Fee Base which is understood this Tenure by Coppy-hold and calleth it a Fee although a base Fee and maketh diverse distinctions betweene them and sayth that the Tenants in Villenage must doe all such things as their Lord will command them But otherwise it is of the Tenants in Base Fee And this it seemeth the sayd Booke of olde Tenure to be by Mr. Fitzherbert mis-recited which I am the bolder to affirme saving the due reverence to his Learning because one Mr. Thornton of Lincolns Inne a man very learned in his late Reading there upon the Statute of Forger facts Speaking of Forging Court Roles did playnly affirme the Booke of the olde Tenures to be mistaken by Mr. Fitzherbert in this poynt And besides for the further credite of Coppy-holds we ought to consider the great Authority of Mr. Littleton who amongst the rest of his Tenures doth make a
Common of estovers in another Mannour notwithstanding that the other Tenants have not such a Custome and it was good by the advice of all the Justices WHERE THE TENANT may cut downe trees destroy houses by Custome and such like Customes c. FOurth Ed 6. Justice Dalisons Reports Sanders and divers Justices Tenant by Coppy of Court Role may prescribe to have Wood growing upon the Land Montague there is such a custome and so used in the Counties of Mid. Northland and other places Browne it hath beene heere agreed of late that Tenant by the Custome may prescribe to suffer their houses to fall and to destroy their houses so also here wherby this is a good Custome Montague I have heard a Fable that a Tenant by the Custome may digge in the one part of his house and burne the other part by the Custome But if you will agree that the Tenant by Custome shall have the Land against the Lords Will to him and his heires by the Custome why then may they not by the Custome cut downe Wood Sanders I agree to none of your cases Montague surely in the Chancery it will bee over-ruled against you without doubt and it is necessary that an Act of Parliament bee made upon it WHERE AND HOW Tenant by Coppy may make a Ioynture to his wife of the same Land A Stranger brings a writ of right against the husband and wife in the same Court where the Land is by plea and the husband and wife doe appeare and the demandant doth Count against them and the husband and wife doe defend and say that they have more right then the demander and offer to try it by Battell and the demander and Tenants doe Imparle at which day the demander appeares and the husband and wife make default whereby finall judgement is given against them and at the same Court the Recoverer Surrenders the same Land into the Lords hands to the use of the Husband and Wife and the heiros of their two bobodyes begotten and it was said that this assurance hath beene vsed 1. Ed. 6. Dalisons reports Pell et Hikden Trin. 36. Eliz. Rot 547. on the Kings bench Tenant in Tayle the remainder in Fee Tenant in Tayle Surrenders to the use of I. S. in Fee I. S. suffers a Recovery and vouches the Tenant in Tayle who vouches the common vouchee and by speciall Verdict it was found that there was never any recovery before in that manner and it is not yet adjudged Gawâ—y and Clinch that the recovery can not be a Barre for warranty can not be anexed to an estate at will also he shall not recover in value because of the estate at will Fenner and Popham chiefe Justice to the contrary and that warranty may be annexed to Coppy-hold Land though it bee an estate at will of the Lord but as it is an estate in Fee performing the services and duties the Law will account them Tenants in Fee Also recovery in value being but a fiction in Law le common vouchee shall bee accounted to have the Land in value of the Coppy-hold within the Mannour and the Vouchee 23. Hen. 8. Br. Recovery in value 27. that such a Recovery is used in ancient demeasne upon a writ of right and Voucher over and that of a Free-hold there yet enquire of such a Recovery upon a plaint there of Land of Base Tenure for that cannot bee warranted c. But in the Common Bench in trespasse brought by Comb against Pears and Turner Mich. 36. et 37. Eliz. Rot. 14. Bromeley Brittain Hall in Essex Tenant in Tayle of a Coppy-hold suffers a recovery with Voucher where no recovery was before the lesser enter by the Court that cannot be but he shall have a Formdone in discender for the recovery in Court Baron cannot availe because a warranty cannot bee anexed to an estate which is at the will of the Lord. Also there can bee no Recovery in value first because there can be no recovery in value of Lands out of the Mannour and the Coppy-land is at the Lords wil Secondly Coppy-hold Land is granted by Coppy only and if by the Recovery the Tenant may have it the course and Custome of the seignory would be destroyed which shall not bee Thirdly the Lord shall loose his fine and Fealty also for the Coppy is admissus est tenens c. et Dat. Duo de fine pro tali ingressu c. et fecit fidelitatem Fourthly et Fiftly Ph. et Mar. A Coppy-holder Surrenders to the use of his wife for Life the remainder to the right heires of the husband and Wife the Wife dyes the Husband survives The question is who shall hold the Land and it was said that if the Husband had no Issue by that Wife then his Heire shall have it CERTAINE COPPY-HOLD cases reported in a cer taine BOOKE BUt it was said there that if the Wife had Issue by another Hâ—sband it was there doubted But it was holden by the better opinion in Dier that the Husband and his heires shall have the Land yet if the Husband had first two sonnes the heires of the Husband and the heires of the Wife shall have the Land in Common after the decease of the Wife and for proofe thereof hee puts this case If land bee given for Life the remaynder to two men and their heires they cannot have one heire in the case if the Tenant for Life dye before them in remainder they shall bee Jâ—â—â—etennants and the Heire of the surviver shall have all But if none in remainder bee in life when the Tenant for life dyes then the heires of them in the remainder shall hold in common Thirty seventh Henry the eighth A Coppy-holder to the intent to make an assurance to his Wife suffers another to bring a Writ of right in the Coppy Court and they joyne the Battell and at the day the Husband and Wife make default and finall judgement was given and after the recoverer Surrenders the same Land into the Lords hands to the use of the Husband and Wife and their heires and a good assurance pur Cur. A Coppy-holder makes a Lease at Will to another who commits Waste which is a cause of Forfeiture the Lessor brings an Action upon the case against the Lessee By Walsh Weston and Dier the Lord may enter and have Trespasse against the Lessors his Tenant and therefore it is reason that hee shall bee recompenced But the Lord shall have a speciall Writ of Travers and not vi and armis because the entry was lawfull 8. et 9. Eliz. ibid. The Lord Dacres enters upon his Coppy-holder and leaseth it to a stranger for yeares the Lessee enters and was ejected by the Coppy-holder and hee brings a Writ of Electione firme The Coppy-holder pleads that the Lands are demiseable per Custome and so they were at issue and hee shewed in evidence a Coppy made 13. Henry the eighth by which a Tenant had surrendred the Lands
to have and to hold c. whose estate hee had and by another Tenant rendring the yearely Rents Customes and Services and also hee produced certaine Witnesses who proved the Land to bee Coppie by the space of 69. yeares The plaintiffe to destroy the Title of that evidence shewed certaine Rentals that they were Free Lands c. 9. et 10. Henry 7. and not Coppy and also another Rentall to that intent in 12. Henry 6. which prooved that those Lands were leassee for twenty yeares Per Cur. this evidence doth not disproove the Coppy-hold for it was not within the time of memory but if hee had shewed the Indenture of Leasse made within 50. yeares or 80. yeares so that a man might remember it then it had beene good although the Statute of limitation extends not unto it by the Justices such evidence as prooves it to be within time of memory is good Also by them if those Lands bee in the hands of the Lord by forfeiture Escheat or Surrender yet the Custome remaineth for he may demise them againe and the Custome shall bee revived but by some men if by Escheat it bee in the Lords hands the Custome is extinct 8. et 9. Eliz. Ibidem Addington Lord of Harlow in Essex would encrease the Fines of his Coppy-hold Tenants which were prooved to bee certaine And it was holden that hee could not increase them and it shall be a good prescription to say alwaies ready to pay such a summe and no more 18. 19. Eliz. 4. Eliz. It was mooved by Manwood Sergeant if a Coppy-holder in Fee in right of his Wife doe Surrender the wife being not examined by the Steward but by some of the Tenants the Custome permitting it the Husband dyes Whether the Wife shall sue by plaint in Nature of a Cui in vita or may enter And by him shee may enter because it is no discontinuance for that it is a surrender to the Lord who hath the reversion for if a Tenant in Tayle enfeoffe him in the reversion it is no discontinuance but if she had been examined she should have bin barred for ever And Dier if a Coppy-holder in Tayle surrender to the Lord to the use of a stranger the Issue may bring a plaint in Nature of a Formdone in discender and purge the discontinuance for it is within the statute De donis Conditionalibus Lit Fo. 16. Com 233. 15 Hen. 8 Br. tit Tenant per Copie 24. And by Manwood no negative prescription may prevaile against a statute And the Common Law is no other but an ancient usage throughout all the Realme and a prime Custome may encounter with it but not with a statute And by Dier if after the Surrender the Lord admit the Wife againe yet shee shall be in by her Husband in construction of the Law Coppy-hold of inheritance discends unto two sisters by two venters none of them making entry and before the Court and admission one of them dyes her heire shall have the moyty and not the other sister by Dier chiefe Justice in the Chancery Also if a Coppy-holder in Taile Surrender to another in Fee who is admitted this is a discontinuance and so the Husband of his Wifes Coppy-hold And hâ— said that a remitter shall be of a Copy-hold as it shal be of a Freehold and inheritance at the common Law 13. et 14. Eliz. In the Duchâ—â— it was in question whether a Coppy-hold may be entayled or not And by Wray chiefe Justice and Manwood chiefe Baron the Tayle was not Fee simple at the Common Law if it did not appeare by the Custome and that may bee prooved by the Court Roles or by some other proofe that there is a recovery by plaint of Formedon or the Lands had descended according to Land in Tayle as possessio fratris shall not be of it or that that the Daughter shall not inherit before the sonne which is unckle to the same Egerton was of counsell with this case which was betweene Sherington and an other 22. Eliz. Hanchet and Rosse concerning land of Dicot in Stepping Hackney a Coppy-holder of inheritance dies the Lord grants the wardship of the Land during the minority of the heire to the Wife being sole shee takes a Husband and dyes It was demanded whether the Husband should have it or not And it seemed not but if it had beene a thing in which he had intrest to his owne use that he should have it as a Lease for yeares the executor shall have it without admittance of the Lord so the Husband shall have a Lease for yeares made to his Wife without admission By all the Justices 17. Eliz. If a Coppy-holder in Fee take an estate in Tayle by Charter-hold or take a Lease for yeares by Indenture his Coppy-hold is confounded 7. et 8. Eliz. by Harpour and others a Lessee for yeares of a Mannour may make Coppyes if the Custome be so to a man and his heires secundum consuetudinem c. for if the Coppy-holder in Fee dye his heire is in by descent and ought to be admitted or els he shall compell the Lord to admit him for for it is of necessity But Coppies for life or yeeres it is otherwise for by the death of the Tenant there is not any that can compell the Lord to make him a new Copy if he will not but hee may retaine the Land in his owne hands and therefore the grants of such Coppyes as are expired made by a lessee for yeares are void 26. ELIZ. FIrst Land Demiseable by Coppy in the time of Richard the second is perfect Coppy-hold so if it bee demised by Coppy 15. or 16 yeares Secondly If the Lord purchase the Coppihold of his Tenant money this is clearly a surrender and an extinguishment of the Coppy and it is not demiseable by Coppy after But if the Lord enter for forfeiture without presentment found that is demiseable by Coppy againe Thirdly If the Lord bring Trespas against a Coppy-holder who pleads that it is Free hold this is a Forfeiture and the Lord may enter Fourthly the Lord cannot seise because his Coppy-holder was sworne to give evidence against him for this is no forfeiture Fiftly if a Coppy-holder disseise his Lord of other Land that is not a forfeiture of the Coppy-hold Sixtly if a Coppy-holder dye without heire and the Lord enter by escheat this is demiseable by Coppy againe but if the Lord afterwards doe make a feoffment or suffer a recovery and after doe repurchase it it is not demiseable but if the Lord reverse the Judgement upon recovery by error attaint or deceit and hath restitution then it is demiseable by Coppy againe A disseisin doth not extinguish the Custome nor acts done by the disseisor Seventhly if a Coppy-holder suffer a recovery by prescript at common Law by collusion or make a Feofment or bargaine and sale and the Lord enters and makes a lease for yeares thereof the Land is not demiseable by Coppy againe Eighthly
divided Chapter thereof differing from his Tenement in Villenage shewing there the Suites and Plaints of Coppy-holders saying that they haue an Estate of Inheritance according to the Custome And delivereth his owne opinion that if a Coppy-holder doing his Services bee compelled by the Lord he shall haue an Action of Transgression And sayth that Danby and Brian 21. Ed. 4. were of the same Minde according to which is Bracton and the sayd Presidents of Hen. 3. and the Writ vsed in Tempore R. 2. besides many other reasons at the Common-Law c. prooving that by use and circumstance things may alter and change their originall nature As for example the service of Socage Tenure was at the beginning as Mr. Littleton sayth to Till the Lords Land c. And yet now by consent of the Lord and by continuance of time are turned into money and other Services in lieu thereof Even so may be sayd of Coppy-holds as long as the Tenants themselves be free though their Tenure were at beginning never so bound and base yet by course of time they may gayne more liberty and freedome and grow to more estimation and account An other reason and Rule there is at the Common-Law to this intent that some things there were which in the beginning were but voluntary and yet in the end by continuance became Compulsary as appeareth 27 Ass praescript Bract. That a man that did at the first of his owne meere benevolence repayre a high way or a Bridge by often using was afterwards compelled volens nolens Even so it may be sayd of the Coppy-holders who at the first held but at the free will of the Lord yet now by usage and continuall granting time out of minde they haue gotten an estate after the Custome that doing their Services and behaving themselues well they cannot by Law or Reason be put from them Thus much for the allowance of Coppy-holders by the Common-Law now let us consider the Reputation of them by the Statutes and Parliament Law It appeareth by the Statute of 1. Rich. 3. 4. 19. Hen. 7. 23. That a Coppy-holder that may dispend twenty sixe shillings eight pence by the yeare shall be Empanelled on a Iury as hee that may dispend twenty shillings by the yeare of Free Lands And by the Statute of the 2. Ed. 6. cap. 8. the Interest of Coppy-holders are Reserved being found by Office after the Death of the Kings Tenants as well as other Estates at the Common-Law and so doth the Statute of Monasteries 31. Hen. 8. cap. 13. 1. Edw. 6. cap. 14. preserue Coppy-holds from dissolving And it will seeme that Coppy-holders are for the Common-wealth and therefore to bee maintayned for that some haue beene erected and established by Parliament which were not de visible by Coppy before as appeareth by the Statutes 32 Hen. 8. 2. 2. Ed. 32. What shall be sayd a Mannour and a Mannour as will mayntaine a Coppy-hold A Mannour consisteth in two parts viz. Demeasnes and Services and neyther of these two parts hath the name of a Mannour without the other for as a Messuage or Lands cannot be called Demeasnes without Tenements thereunto belonging to pay Rents and do Services but doth still beare the name of Messuage or Lands So on the other part though a Man have Tenements to pay him Rents and doe him Services and no Messuage or Lands whereupon to keepe his Court and to receiue his Rents and Services this cannot be called a Mannour but onely a Signiory in grosse Fitz. na brev s 3. 8. Demeanes are so called for that the Lord himselfe occupieth and manureth them In son maine Demeasne But all Lands that have been in the Lords owne hands bee not called Demeanes for all Free-holds and Coppy-holds were in his owne hands at the beginning But Demeanes is that which is now and time our of Minde have beene in the Lords hands or occupation of his Bay liffe or Servants And that also which auncient Coppy-hold may be to some purpose called Demeasnes because in every Surrender in Manus Domini and every grant extra manus Domini the Lord hath a medling with it and may thereupon keepe his Court and for the most part cut downe Timber and such like And that it is also called Demeasnes which now is in the Lords hands by any new Escheate or Forfeiture And also the Lands which are in the hands of the Coppy-holders is such a Demeasne as with other Services will make a Mannour though the Lord hath none other demeanes there in his owne hands nor in the hands of his Bayliffe or servants Services as with a Demeasne shal make a Mannour to maintaine Coppy-holds is where a man holdeth Lands or Tenements freely to suite to the Court of the Lord of the Mannour within the sayd Fee But yet euery kind of Service will not make a Mannour for Services are of two kinds viz. That is by Tenure and by covenant Service by Tenure is also of two sorts as if a man at this day giveth his Land in tayle or leaseth it for Life or Yeares saving the Reversion here is a Service of Fealty incident to this Tenure betweene the Doner or the Lessor and the Donee or the Lessee And yet though this be a Service by Tenure yet is it no such Service as will make a Mannour For if a man at this Day be seised of twenty Acres of Land and Enfeffeth nineteene severall persons of nineteene of these Acres saving the twentieth to himselfe and reserveth of every of his Fcofees suite of the Court and other Services to be done to this Court to be held on the twentieth Acre though the Feofments be by Deed indented or in tayle or of Lives yet all is voyde and avayleth not to make a Mannour But it maketh onely a Tenure in grosse for a Tenure may by divers meanes be created at this Day but a Mannour by no way by a Common person Plow Com. 2. 693. A Mannour must be by Prescription and the Services by Continuance time out of minde But although a man at this Day cannot make a Mannour yet hee may in some sort enlarge a Mannour by adding more Services unto it 9. Ass A man seised of a Mannour did give parcell of the same to hold of him by Suite to his Mill within the same Mannour for this Service the Lord may distrayne and it is their held to be accounted parcell of the Mannour In like manner a man may by reserving upon a gift Intayle or Lease for Life Services ingrosse increase the Services of an ancient Mannour Signior grant le Demeasnes Services del son Mannour de Norkelsey c. extend en auter Towne per le melior opinion des Iustices de Common Banck le grantee c. keepe a Court there and so a Mannour to be created at this Day What shall be sayd a Mannour or a Tenure in his proper nature or Common-Law and what in respect of Usage or
Custome to maintaine Coppy-holders It is to bee noted that although a Mannour of his proper ought to consist of demeanes and services yet in some cases that may bee a Manour and maintaine Coppy-holders and a Court Baron by usage and custome which otherwise by Common Law is no Manour nor cannot so be called c. A man seized of a Manour whereunto bee divers free Tenants divers Coppy-holders and divers speciall Customary Tenants and the Customary Tenants do hold to give atendance on the Free holders at the Lords Court All the Free Tenants dye saving one the Lord doth bargain and sell the Manour to an Estranger This is now in respect of the Free Tenements a Tenure and no Manour in respect of the Coppy-holders both a Manour and Tenure and in respect of the Customary Tenements neither Manour nor Tenure If divers do hold Lands to dine with the Lord every Sunday in the yeare this maketh neither good Tenure nor Manour But if they hold to wait on the Lord every Sunday at dinner and to dine with him this maketh a good service but no good Tenure If divers doe hold Lands by Coppy of the Mannour of D. and so have done time out of minde and by the like time there hath beene no Free holders to the said Mannour Although this be no Mannour in his proper nature yet by usage it is a good Mannour to maintaine Coppy-holds A man seised of a Mannour which time out of minde hath beene called by the name of the Manour of S. and doth demise the same by the name of the Mannour of S. this is good If a man seised of a Mannour whereto be six Free holders and six Villaines Regardants The sixe Free holders dye having Issue sixe daughters the Villaines enterrary with them yet the same is a Mannour and the villaines thereto regardant If a man seised of a Mannour whereto hee hath Leet and wrecke of the sea by prescription all the Tenancyes Escheate yet the Leete and the wrecke still remaine and it is a Mannour to that purpose If divers doe hold Lands by prescription to finde the Lords mans meat and hounds meat when hee commeth to hunt the Fox in the said Lands this maketh a good Tenure but no good Mannour If divers do hold Lands to doe suit and service at the Lords Court This is most properly such service as maketh a Mannour but if it be to doe suit and service at the Lords Couri when it pleaseth themselves this is neither Mannour nor Tenure If divers doe hold Lands to repaire a High way within a mile compasse without the bounds of the Lord of the Mannour this makes a good Tenure but no Mannour But to repayre or mend the wayes within the Precinct of the Mannour is good to enlarge the Mannour If divers doe hold Lands to pray for the prosperous Estate of the Lord and his Heires this maketh a Tenure but no good Mannour If divers doe hold Lands of the Lord to wayte upon him at twenty dayes warning twenty miles distant from the Mannour this maketh a good Service but no good Tenure But if it be to wayte upon the Lord within the sayd Mannour by certayne space this maketh both a good Tenure and a good Mannour If divers holde Lands to beate or kill the Lords Tenants that shall doe Trespasse on the Lords Demeasnes this is neyther good Tenure nor good Mannour But if it be to beate and kill the Kings enemies that shall doe so this maketh both a good Tenure and a good Mannour If Divers hold Lands by Prescription to do Service to the Lord to his Court of the sayd Mannour twenty miles distant at a place certaine This is both a good Tenure and a good Mannour But if it be to do Service to his Court at another Mannour this without Prescription cannot be severance from the first Mannour If Divers doe hold to come to the Lords Court and there to doe nothing this maketh neither good Tenure nor good Mannour But to come to the Court though not to be of the Homage yet to offer Amersements or make Certificates or any other Service to the Lord this maketh a good Tenure and a Mannour If any do hold Lands to do Divine Service before the Lord and his Tenants in the Court-house before the beginning of every Court this maketh both a good Tenure and a good Mannour What shall be sayd a good Custome to be able to maintaine Coppy-holds A Custome to make a Coppy-hold must be of necessity in the same Mannour where the sayd Coppy-holds are so granted viz. That the same Lands are and time out of minde haue beene onely Demised and Demisable by Coppy of Court Role for otherwise the Lord cannot grant it by Coppy because hee cannot beginne a Custome at this Day But if it have beene by like time granted by Coppy though sithence it came to the Lords hands yet if the Lord never Demise the same by Free Deede nor otherwise but by Coppy then he may well grant agayne the same by Coppy for it is neyther the person of the Lord nor the occupation of the Land that eyther maketh or marreth the Coppy-hold But onely the usage and manner of Demising the same for the prescription of a Coppy-holder consisteth neither in the Land nor in the Occupier but onely in the Usage of the Demising THE DIVISION OF CVSTOMES viz. Customes Prescriptions Vsage and Limitation THese foure though they be in some confounded together and indeede are of great Affinity yet there be divers differences in their severall natures betweene them Custome is where by continuance of time a Right is obtayned concerning divers persons in common Prescription is where by continuance of time one particular person obtayneth Right against an other Vsage is by continuance of time the efficient cause of them both Limitation is where a right may be obtained by reason of a non claime by the space of a certaine number of yeares differing in the Accoumpt of time from custome and prescription But what measure of time shall make a Custome divers have differed in opinion some judging the same to bee according to the Computation of yeares from the time of K. Ed. 1. untill the Statute of M. 1. which appointeth the limitation in a writ of right The accompt of which time unto the said Statute from the said K. time is 76. yeares others have thought a hundred years maketh a prescription because in old time an hundred yeares was accompted a Fee simple But the true measure thereof according to Master Littletons Rule is where a Custome or Usage or other things have beene used so long as mans memory cannot remember the contrary That is when such matter is pleaded that no man then in life hath not heard any thing nor know any proofe to the contrary And by this it appeareth that Customes and prescriptions resteth onely in the memory of man limitation consisteth onely of a certaine time which hath a
make this good If Ordinances or by Lawes bee newly made and Recorded in the Roles of the Court if the Court Roles bee lost the by Lawes be set at liberty yet if there be any ancient customes or priviledges by Prescriptions not entred in the Roles c. though the Roles be lost yet they remaine good WHO SHALL BE SAID such a Lord of a Mannour as hath power to grant a Coppy-hold A Lord to grant or allow a Coppy-hold must be such a one as by Littletons definition is seised of a Mannour so that he must be in possession at the time of the grant for although hee have good right and title yet if he be not in possession of the Mannour it will not serve and on the other side if hee bee in possession of the Mannour though hee have neither right nor title thereunto yet in many cases the grant and allowance of such a Coppy is good as Donus de facto sed non deiure And in some cases a Coppy-hold shall be adjudged good according to the largenesse of the state of the Lord that granted the same and in some cases shall continue good for a longer time then the estate of granter was at the time of the grant But that is to be understood in case of necessity otherwise it will not be allowed If a man seised of a Mannour in which are divers Coppy-holds demisable for lives is deseased and the desessor granteth a Coppy-hold being voide for three lives this is not good to binde the Desseased otherwise it is of a Coppy-hold of Inheritance because it is necessary to admit the next heire If a man have a Title to enter into a Mannour for a condition broken and he granteth a Coppy-hold of the same Manour being void at a Court Baron this is a good grant for the keeping of the Court amounteth to an entre in the mannour A man seised of a Mannour for life whereunto bee Coppy-hold Inheritance belonging and one Coppy-holder Surrendereth to the use of a stranger in Fee the Lord may grant this in Fee and this Grant shall binde him in the reversion but the Coppy-holds being demisable for lives it is otherwise for then hee cannot upon Surrender grant the same longer then the life of the Grantor But if the Lord of a Mannour for yeares or during the minority of a Ward of which the Coppy-holds are demisable for three lives successively and not servingly in this case if the Coppyholder dyeth the Lord may grant the same being voide for three lives at his pleasure and this shall binde him in the Reversion or the heire at his full age WHO SHALL BE SAID such a Tenant as may be a COPPY-HOLDER ALthough there seemeth some shew of difference betweene Coppy-holders and Customary Tenants yet differ not they so much in nature as in name for although some bee called Coppy-holders some Customary some Tenants by the Virg some base Tenants some bound Tenants and some by one name and some by another yet doe they all agree in substance and kinde of Tenure though differ in some ceremonies and kinde of serving and therefore the name is not the matter but the Tenure Hee shall bee said a person sufficient to be a Coppy-holder who is of himselfe able or by an other to doe the service of a Coppy-holder as an infant may be a Coppy-holder for his Gardein and prochein any may doe the service so may a feme Covert and her husband shall doe the service But a lunaticke or Ideot cannot bee a Coppy-holder because they cannot doe the service themselves nor depute any other and the Lord shall retaine the Coppy-hold of an Ideot and not the Queene A Bond-man or aliene borne may bee a Coppy-holder and the King or Lord cannot seise the same But a man cannot bee a Coppy-holder unto a Mannour whereof hee himselfe is Lord although hee bee but Dominus pro termino annorum or in Iureuxoris WHAT SHALL BE SAID such Lands or other things as demisable by Coppy and may be holden by Coppy IT may bee said of Coppy-hold Lands as is afore said of the Tenants they may differ in name but not in nature As some called Coppy-hold Lands some customary Lands some bound Lands some base Lands some ancient Lands some demeasne Lands some encrease Lands some Mollendes some waste Lands some warke Lands some loose Lands and some Vierge Lands And although Coppy-hold Lands be specially so called because it is holden by Copdy of Court Role Customary Lands because of some speciall Custome Bond Lands because of the bond Tenure Base Lands because of Base Tenure ancient Lands because of the old demise demeasne Lands because of its new demise and late being the Lords owne Mannour Increased Lands because it is late purchased and laid to the Mannour Mollands because it is holden by easie rents or no rents at all waste Land because it hath beene lately approved out of the waste of the Mannour Worke Lands such as hath common appendant belonging to it Lose Land because it is holden by uncertainty Rents and Verge Land because it is holden by the Veirge Yet al the said lands are holden in one general kinde that is by Custome and Continuance of Time and their diversity of their names doth not alter the Nature of their Tenure It seemeth by Littleton that onely Lands and Tenements are demisable by Coppy And therefore if the Lord of a Mannour will grant the rent charge or the office of Stewardship or Baylewicke of his Mannour by Coppy or a common in grosse by Coppy these bee not good grants because they tye not in Tenure and also because the Custome doth not extend unto them but common appendent to a Tennant of Coppy-hold Lands may bee demised with the Tenant by Coppy Demeane Lands which within time of memory have beene occupied by the Lâ—rd himselfe or his Farmour is not good to â—e granted by Coppy because of the newneâ— of the grant yet by continuance of time it may be good Coppy-hold when the memory of the contrary is worne away as hath beene said before Neither can the Lord that granted such a Coppy put out his Coppy-holder during his life that granted the same because hee should not bee received to disable his owne grant If a Coppy-holder doe Surrender his coppy-hold into the Lords hands meerely to the use of the Lord I doubt whether the Lord may grant this againe by Coppy as hee may where it comes unto him by forfeiture or by escheat because it is made percell in demeasne by his owne acceptance and not by the Act of the Law quaere Note that neither the Statute of West 2. de bonis Conditionalibus nor any other Statute that hath not Coppy holds named in it doth extend to Coppy-hold Lands as the Statute Staple 27. Ed. 3. nor the Statute of Heresie 2. Hen. 5. nor the Statute of Will 32. Henry the eight nor the Statute of Limitation made the same yeare as is how
during his terme 8. Eliz. adjudged A Coppy-holder purchaseth the Mannour to him and another in fee the companion may occupy the Coppy-hold joyntlyp resently 14. Eliz. Nota it was agreed in the common Bench. 21. Eliz. that the Bay liffe of a hundred or of a base Court may take goods upon levari facias to give execution to the plaintife as well as the Sheriffe yet they agreed that divers Bookes are against it 4. Hen. 6. 22. Two Joint Copy-holders in Fee make a partition that is good and no forfeiture nor alienation 12. Eliz. agreed in duchie chamber If a Coppy-holder surrender and then the Lord doth acknowledge a statute marchant and after the Lord grants it by Coppy the Coppy-hold is liable for at the time of the knowledgment it was annexed to the free hold but if a Coppy-holder acknowledge a statute that is not liable If a man enter with force upon a Coppyholder he shall not have forceable entrey nor indictment but the Lord shall have it and upon restitution to the Lord the Coppy-holder shall enter The Lord grants to a Coppy-holder his trees growing or that shall be growing upon the Land he may fell trees now growing and no forfeiture by reason of the dispensation but he cannot cut the trees which shall grow in time to come If the disseisor of a Mannour make Coppyes for life and the disseisee enter he shall defeat them but of Coppy-holds in fee before disseisin and a new â—â—â—nt of them upon Surrender in time of disseisin it is otherwise per Plowden Popham in Case Ramsey vers Arthurs 29. Eliz. A Coppy-holder may prescribe to have common in the Lords Land If a Coppy-holder surrender to the use of another and the Lord grant it to cesty que use making no mention of the surrender yet it is good per Plowden in Batlands case If there be a Mannour consisting of demeasnes Free hold and Customary Tenements if the Lord grant certaine of the Coppy-holds in Fee the grantee may keepe Court and do homage and the Coppy-holders by their othes may make presentments of their Customes or of the death of any Tenant and the grantee may make in Court a new estate by Coppy as if it should bee a perfect Mannour mes the stile shall not be Curia Manerij but Curia halimoti id est Convocatio tenentium for when they are assembled they may enforme the Lord of their Customes and duties It was otherwise adjudged in the Com bench 29 Eliz. between Dodington and Chaffin for parcell of the Mannour of M. It was adjudged in the common Bench 29. Eliz. that where Sir Peter Carew bein solely seised of the Mannour of M. in the County of Devonshire for Life granted a Coppie in reversion according to the Custome of the Mannour and dyed before the praticular Coppy-holder this is a good Coppy in reversion against the Lord in whose hands soever the Signory should come FINIS Errata FOl. 4. line 8. for preferred reade preserved l. 14. for and read Ayde in the beginning of the l. for as read and. Fol. 6. l. 23. for compelied read expell d l. 24. for transgression re trespasse f 7. l. 17. for Bract re Brooke f 8 l 6. re shall be accounted as able to be l. 16. for Coppyholders re Coppyhold l. 19. for divisable re demisable l. 27. for Tenements re Tenants f. 9. l. 2. for Tenements re Tenants l. 23. leave our it f. 15. l. 19. for offer re affeere f. 17. l. 9. re a particular right f. 18. l. 9. for M. 1. re Westm 1 f. 20. l. 9. for eiusmodi re talem last li. for clausa re causa f. 21. l. 4. for accident re incident f. 23 l. 4. for commonly is lands re commonly is in lands l. 23. for custome Haryots re custome of Harryots l. 24. for of common Aestovers re common of Aestovers f. 25. l. 4. for deceased re disseised l. 13. for is uncertaine re is so uncertaine f. 28. l. 7. for both to discusse re both be to discusse f. 29. l. 3. for transgresse re trespasse in divers places l. 13. for or services re doing services l. 15. for prescribe re to prescribe Statutes and Parliament Lawes In the case of Mounson on Aston By the Report of Denham of LincolnsInne The division of Customes 1 2 3 4 5. 42. Henry 4. Avowry 66 14. Hen. 4. Behon â—om Little plaâ—â— 21. 2 et Yaxley 5. H. 7 19. B2 R. 3. 16 13. Hen. 7. 16. D. St. 47. 2. Ed. 4. 17. Infant Itin Covert Lunatte Nemy 13. Eliz. Dier 301 By Sâ—rgeant Walâ—â—â—â—ly 12. Eliz. 291 292. 30. Hen. 8 Dicr 42. 16. there In Trespas by Hagger against Felston Mis-fesans Non-fesans Fineable In Monsâ—â—r 〈…〉 in Court Baron may defeat an entayle B Regis 2. Coment 21. Adjudged in the Common Bench that a recovery cannot binde an entaile A Coppy-holder brings an action upon the case against lessee for wast and good The Lord cannot increase a fine which is certaine