this shall ever binde the Feme and her heires and yet she is not sui juris but sub potestate viri because the Custome of the Manor is the chiefe basis upon which stands the whole fabricke of the Copyhold estate and therefore what Custome doth confirme to a Copyholder the Law will ever allow and never seeke to avoid it in respect of any such imperfection in the Grantors persons and the quantity of the Lords estate is no more respected than the qualitie of his person for if his interest be lawfull be his estate never so great or never so little 't is not materiall for be it in Fee or be it in tayle or dower or as Tenant by courtesie for life or for yeares as Guardian or as Tenant by Statute or as Tenant by Elegit or at will the least of these estates is a sufficient warrant to the Lord to Grant any Copyhold esheated unto him for as long time as the Custome doth allow the ancient Rents and Services being truely reserved and these Grants shall ever binde them that have the Inheritance or Franck-Tenement of the Manor as well as offices granted for life by the chiefe Justice of the Common Pleas whose office is but at will shall ever conclude the succeeding Justice The reason of the Law is this A Copyholder upon voluntary Grants made by Copy doth not derive his estate out of the Lords estate onely for then the Copy-holders estate should cease when the Lords interest determineth Nam cessante primitivo cessat derivativus but the life of the Copy-holders estate is the Custome of the Manor and therefore whatsoever befalleth the Lords interest in his Manor be it determined by the course of time by death by forfeiture or other meanes yet if the Lord were Legitimus Dominus pro tempore how small so ever his estate was that is enough for the same Custome that fixeth a Copyholder instantly in his land upon his admittance will likewise preserve and protect his interest to the end in such manner that though the Lords interest faileth yet his shall never fall to ground being upheld by such a proppe such a pillar unlesse perchance the Copy-holder offer violence to his Founder in breaking the Custome If the Lord granteth a Copyhold and after doth sever this Copy-holder from the Manor by granting the inheritance to a stranger though now one of the chiefe pillars of a Copyhold estate is wanting viz. to be parcell of the Manor yet because the Land at the time of the Copy-holders admittance had this necessary incident this severance being a matter ex post facto cannot amount to the destruction of the Copyhold espicially being the sole act of the Lord himselfe If a Manor be granted upon Condition and before the Condition is broken the Land is granted by Copy then the Manor become forfeited and the Feoffer entreth yet the Copyhold estate remaineth untouched because lawfully established by Custome and yet all meane estates and charges whatsover granted by the Feoffee at the Common Law were voidable upon the entry of the Feoffer for wee have a ground in Law that when an entry is made for breach of a Condition the party to all intents and purposes is in the same plight that he was in at the time of the making of the estate If a man seized of a Manor in Fee dieth seized having issue a daughter and his wife being privement inseâ—nt with a sonne and the daughter granteth Lands by Copy this Grant shall stand good against the sonne for the daughter was Legitimâ— Domina pro tempore So if the Feoffee of a Manor upon Condition to infeoffe a stranger the next day maketh a voluntary Grant by Copy this shall binde and yet his interest was to have but small continuance If a Manor be Granted with a feme in Francke marriage and there is a divorce had causa paercontractus so that now the interest of the Manor is now granted to the feme onely and by relation the marriage is void ab initio yet because the Baron was Legitimus Dominus pro tempore any Copyholders estates granted before the divorce remaine good So if a man espouseth a feme seignioresse under the age of consent and after she doth disagree though the marriage by relation was voide ab initio yet Copyholds granted before disagreement shall never be avoided causa qua supra If the Lord of a Manor committeth felonie or murder and proces of Outlawry be awarded against him after the Exigent hee granteth Copyhold estates according to the Custome and then is attainted these Grants are authenticall though by relation the Manor was forfeited from the time of the Exigent awarded So if the Lord had beene attainted by Verdict or Confession any Grant by Copy after the Felony or murder committed shall stand good notwithstanding the relation If the Lord of a Manor acknowledge a Statute and then granteth Lands by Copy and after the Manor is delivered to the Cognisee in extent the Grant cannot by this be impeached And if the Lord of a Manor taketh a wife and after maketh Copyhold estates according to the Custome and dieth though the feme hath this Manor assigned unto her for her Dower yet cannot shee avoide these Copyhold estates because the Copyholders are in by a title Paramount the title of the feme viz. by Custome But paradventure if the heire after the death of his Ancestor before the Assignment made unto the feme for her Dower had granted Lands by Copy the feme might avoide these Grants because instantly upon the death of the Baron her title received his perfection and nothing more was wanting to the confirmation of her interest but though the quantity of the Lords estate in the Manor be not respected yet the quantity of his estate in the Copyhold is regarded For if a Copyholder in Fee surrender to the use of the Lord for life the Remainder over to a stranger or reserveth the Reversion to himselfe if the Lord will Grant this by Copy in Fee whatsoever estate the Lord hath in his Manor yet having but an estate for life in the Copyhold no larger estate shall passe then hee himselfe hath Quia nemo potest plus juris in alium transferre quam ipse habet and further observe that sometimes the Law respecteth the quantity of the Lords estate in the Manor for what Acts so ever are not confirmed by Custome but onely strengthned by the power authority and interest of the Lord have no longer continuance than the Lords estate continueth and therefore it is held that if a Tenant for life of a Manor granteth a licence to a Copyholder to alien and dieth the Licence is destroyed and the power of alienation ceaseth As for the quality of the Lords estate in the Manor that is much more now respected than either the qualitie of his estate or the qualitie of his person for if the Lord or he who soever it be that maketh a
voluntary Grant by Copy hath no lawfull interest in the Manor but onely an usurped title his Grant shall never so bind the right owner but that upon his entry hee may avoide them otherwise wee should make Custome an agent in a wrong which the Law will never suffer and yet if the Lord of a Manor by his Will in writing deviseth that his Executor shall Grant Copy hold estates Secundum consuetudinem Manerii for the payment of his debts c. and they make voluntary Grants accordingly these Grants are good notwithstanding the Executor hath no interest in the Manor nor is Dominus pro tempore If a Disseinor of a Manor dieth seized notwithstanding his heire come in by ordinary course of descent yet because the Tort commenced by his Ancestor is still inherent to his estate if any Copihold estate be granted by the heire it may be avoided by the Disseinor immediatly upon his recovery or upon his entry and so if the Disseinor infeoffe a stranger of the Manor notwithstanding the Feoffee come in by title yet no grant made by him of Copyhold-Land shall ever binde the Disseined no more than a Grant made by the Disseinor himselfe If Tenant in Tayle of a Manor discontinueth and dieth and after the discontinuance Granteth Copyhold estates the heire recovering in a Formidon in the Discender may avoid these Grants for though the Discontinue come in under a just title yet his interest being determined by the death of the Tenant in Tayle the continuance of the possession is a Tort to the heire and Acts done by Tort-scisors tending to the dis-inheritance of the right owners Custome will never so strengthen but they may be adnihilated So if a man seized of a Manor in right of his wife Alieneth this Manor and dieth any Grant made of Copyhold estates after his death may be avoided by the feme upon her entry or upon her recovery in a Gui in vita If a Manor be Granted pr. aut vie and Cestay que vie dyeth and the Grantee continueth still in the Manor and maketh Grants by Copy these shall not binde the Grantor of the Manor for immediately upon the death of Cestay que vie the Grantee was but a Tenant at sufferance and had no Manor of Lawfull interest for a Writ of Entry ad terminum qui preter sit lieth against him as against Deforceor And so if a Tenant for life of a Manor maketh a Lease for yeares of the same Manor and dieth Copyhold estates granted by the Lessee after the death of the Tenant for life are voideable by the first Lessor If a Lessee for yeares of a Manor granteth a Copyhold in Reversion and before the Reversion eschue the terme is expired the Grant is void and so I take the Law to be if the Lessee surrendreth his terme and then before his Lease should have ended in point of limitation the Reversion falleth yet the Grantee shall not have it If a Lease be made for yeares of a Manor the Lease to be voide upon the breach of a certaine Condition if the Condition be broken and afterwards the Lessee before the entry of the Lessor granteth estates by Copy these Grants shall never exclude the Lessor for presently upon the breach of the Condition the Lease is voyde but had the Manor beene granted for life in Tayle or in Fee I thinke Law would have fallen out otherwise for before entry the Franck-Tenement had not beene avoided and wheresoever a man may enter and avoide any estate of Franck-Tenement upon the breach of a Condition the Law adjudgeth nothing to be in him before entry and he may waive the advantage which hee might take by the breach of the Condition if he will and therefore notwithstanding the accruer of the title of the Grantor yet before this title be executed by entry the Grantee hath such a lawfull interest that what estate soever hee granteth by Copy in the interim shall stand good against the Grantor And so if an Infant infeoffe me of a Manor though hee may enter upon me at his pleasure yet Grants made by me by Copy before his entry shall never be defeated by any subsequent entry And the same Law is of Grants made by a Villayne purchaser of a Manor before the entry of the Lord or of Grants made after an alienation in Mortmayne before the Lord Paramount hath entred for a forfeiture If a Parson after Institution and before Induction a Manor being parcell of his Gleab Lands Grants Lands by Copy and after is inducted this admitting of the Copyholders is no binding act for though as to the spiritualties he be a compleate Parson presently upon the institution yet as to the temporalities he is not compleat before Induction So if a Parson be admitted instituted and inducted but doth not subscribe to the Articles according to the Statute of 13. Eliz. and granteth Lands by Copy as before This Grant shall not conclude the succeeding Incumbent because his Admission Institution and Induction were wholly voide in themselves but had the Parson beene deprived for crime or heresie or for being meere Laicus although he be declared by sentence to be uncapable of a Benefice and so his presentment voide ab initio yet because the Church was once full untill the sentence declaratory came for though the deprivation shall relate to some purposes yet because the Presentment is not in it selfe voide surely a relation shall never be so much favoured as to avoid a Copyhold estate in this kinde So much of Grants made by the Lords themselves In Grants made by Copyholders as the Law respecteth the quality of the Copyholders estate so doth it respect both the quality of his person and quantity of his estate The quality of person for whosoever is uncapable of disposing of Land at the Common Law cannot without speciall Custome passe away any Copyhold The quantity of his estate for no Copyholder can possibly passe away more than is in him and therefore if there be joynt Tenants of a Copy-hold one cannot aliene the whole But if there be two joynt Tenants of a Manor and a Copyholder escheateth one of them may grant this Copyhold and his Companion shall never avoide any part of it If a Copyholder for life the remainder over in Fee to a stranger surrendreth in Fee and the Lord admits accordingly yet an estate for life onely passeth So if the Lord of a Manor granteth a Copyhold for life where an estate in Fee is warrantable and the same Grantee surrenders in Fee to the use of a stranger and the Lord admits him secundum officium sursumredditionis I thinke no Fee passeth for though the Lords admittance may prima facie seeme to amount to a confirmation of the estate surrendred the Reversion resting in him to dispose of according to the Custome as where a Lessee for yeares at the Common Law maketh a Feoffment in Fee and maketh a Letter of Attorney to his Lessor to deliver
these Grants an estate tayle passeth in the first without the word heires in the second without the word body in the third without either If the King by his Steward granteth a Copyhold to a man and to his heires males or heires females no Fee-simple passeth because the Lord never intended to passe such an estate If a Copyhold be Granted to an Abbot and to his heires an estate for life onely passeth So if I Grant a Copyhold to a man in Fee-simple ac sanguini suo imperpetum or sibi assign suis impeâ—pectum yet the word heires wanting no greater estate than for life passeth The same Law is if a Copyhold be granted to a man and to his heires as long as I. S. shall live this is onely an estate per anter vie a rend limitted upon this estate is good But if a Copyhold be granted to a man and to his heires as long as such a tree shall grow in such a ground this is a good Fee and a render limitted upon it is void If a Copyhold be granted to I. S. and I. N. haeredibus they are joynt Tenants for life and no inheritance passeth unto either because of the uncertainty for want of this word suis but if a Copyhold be granted to I. S. onely haerend a good Fee-simple passeth without the word suis If a Copyhold be granted to a man haered bus an estate tayle doth not passe for want of the words de corpore And if a Copyhold be granted to a man liberis aut puer suis de corpore an estate taile doth not passe for want of this word heires for what estates soever are intayles since the Statute De donis Conditionalibus were Fee-simples Conditionall but this could be no Fee-simple conditionall before the Statute without the word heires and therefore no intayle since the Statute And for the same reason if a Copyhold be granted to a man and to the issues males of his bodie an estate for life onely passeth If a Copyhold be granted to a man without expressing any certaine estate by implication of Law an estate for life onely passeth and if I grant a Copyhold to three habendum successive they are joynt Tenants unlesse by speciall Custome the word successive make their estates severall Thus much touching the creation of Copyhold estates SEC L. THe discents of Copyhold of inheritance are guided and directed by the rules of the Common Law as well as the creation of Copyhold estates If a Copyholder in Fee-simple having issue a sonne and a daugher by one venter and a sonne by an other venter dieth and the sonne by the first venter entreth and dieth the Land shall discend to the daughter Quia-possessio fratris de feodo simplici facit sororem esse haeredem But if a Copyholder in tayle have issue a son and a daughter by one venter and a son by another venter dieth and the sonne by the first venter entreth and dieth the sonne of the second venter shall inherit If a man having issue a sonne and a daughter by one venter and a sonne by another venter the eldest sonne purchaseth a Copy-hold in Fee and dieth without issue the daughter shall have the Land not the yonger sonne because he is but of the halfe blood to the other If a man hath a Copyhold by discent from his mothers side if he die without issue the Land shall goe to the heires of the mothers side and shall rather escheate than goe to the heires of the fathers side but if I purchase a Copyhold and die without issue the Land shall goe to the heires of my Fathers side but if I have no heires of my fathers side it shall goe to the heires of my mothers side rather than escheate If there be Father Vnckle and Sonne and the sonne purchaseth a Copyhold in Fee and dieth without issue the Vncle shall inherit and not the Father because an inheritance may lineally discend but not ascend If there be three brothers and the middle brother purchaseth a Copyhold in Fee and dieth without issue the eldest shall inherit because the worthiest of blood If there be two Coparteners or two Tenants in Common of a Copyhold and one dieth having issue the issue shall inherit and not the other by the survivership but otherwise it is of two joynt Tenants Should I give way to my Penne and write of this Theame till I wanted matter to write on I should make a large Volume in dilating this one point therefore I will contract my selfe intreating you to supply by your private cogitations what I have either willingly or unwittingly passed over in silence onely take this caveat by the way Though all qualities necessarily incident to estates at the Common Law are likewise incident to Copyhold estates yet the Law is not so of collaterall qualities without speciall Custome Co. 4. fo 22. a. and therefore a Copyhold shall be no assets to the heire A discent of a Copyhold shall not toll an entry A surrender made by Tenant in tayle admit a Copyhold may be intayled or by a Baron of a Copyhold which he hath in right of his wife shall make no discontinuance because these are collaterall qualities and not necessarily incident Thus much of the severall estates of Copy-holds together with their severall qualities incident to their severall estates I come now in the first place to examine how Copyholders are to impleade and be impleaded SEC LI. A Copyholder cannot in any Action reall or that savoureth of the realty or hath a dependance upon the realty implead or be impleaded in any other Court but in the Lords Court for or concerning his Copy-hold but in actions that are meerely personall he may sue or be sued at the Common Law If a Copyholder be ousted of his Copyhold by a stranger he cannot implead him by the Kings Writ but by Plaint in the Lords Court and shall make protestation to prosecute the sute in the nature of an Assize of novell disseisin of an Assize of Mort D'ancestor of a Formedon in the Discender Reverser or Remainder or in the nature of any other Writ as his cause shall require and shall put in pleg de prosequend If a Copyholder be ousted by the Lord he cannot maintaine an Assize at the Common Law because he wanteth as Franck-Tenant but he may have an action of trespasse against him at the Common Law for it is against reason that the Lord should be Judge where he himselfe is a party If in a plaint in the Lords Court touching the tytle of a Copyholder the Lord giveth false judgement he cannot maintaine a Writ of false judgement for then he should be restored to a Francke-Tenant where he lost none No Copyholder of base Tenure in ancient Demesne can maintaine a Writ of droit close or a Writ of Monstravêrunt but Tenants of Francke-tenure in ancient demesne can A Copyholder that may cut downe Timber trees by Custome by
the Bailiffe of the Manor is to have the Wardship of the Copyhold heire being under the age of fourteene such a Guardian shall neither be admitted nor pay a Fine because he is but a partnor of the profits and that not in his owne right but in the right of him to whom he is Guardian If the Copyhold Lands of a Bankerupt be sold according to the Statute of the 13. Eliz. cap. 7. the Vendee shall be admitted and pay a Fine If a Villaine purchaseth a Copyhold the Lord of the Villaine may enter and seize it and the Lord of the Manor shall admit him and have a Fine If a Copyhold be granted upon Condition and the Condition be broken and the Granter entreth hee shall not be admitted neither pay a Fine because upon the breach of the Condition and the entry he is to all intents in Statu quo prius as if no grant at all had beene made If a Copyholder in Fee surrendreth for life reserving the Reversion and the Lessee for life dieth the Copyholder shall not be admitted to his Reversion neither shall he pay a fine because the Reversion was never out of him If a Copyholder be disseised and then entereth upon the Desseisor or recovereth by plaint in the nature of an Assize he shall not be admitted neither shall he pay a Fine for he continueth still Tenant by Copy notwithstanding the disseisin but where by a plaint a Copyhold is recovered upon the accruer of a new Tytle where he that recovereth was never admitted nor paid Fine there upon his recovery an admittance is requisite and a Fine is due as if a Copyholder dieth seised a stranger abateth and the heire recovereth by plaint in the nature of an Assize of Mort d'auncester upon this recovery hee shall be admitted and pay a Fine If I take a wife Copyhold in Fee though by this inter-marriage there accrueth a present interest to me yet because I am seised non jure proprio but jure alieno therefore I shall not be admitted neither shall I pay a Fine The same Law is Vid. Plowden com 4 18. b. if she be a Termor of a Copyhold for though the terme by the inter-marriage be so vested in me that I may dispose of it without controule yet because before disposer I am possessed of it but in the right of my wife therefore I shall neither be admitted nor pay a Fine If a Copyhold be surrendred for life the remainder to a stranger though the admittance of Tenant for life be sufficient to invest the estate in him in the Remainder yet upon the death of Tenant for life hee in the Remainder shall be admitted and pay a Fine So if a Copyhold be granted to three habend success vie whereby Custome successive is in force if any one dieth he that next succeedeth shall be admitted and pay a Fine If two Coparteners or Tenants in Common of a Copyhold be and the one dieth and the other hath all by discent hee shall be admitted and shall pay a Fine But if two joynt-Tenants be of a Copyhold one dieth the other shall have all by the survivorship without admittance or paying Fine because joynt-tenants to all intents and purposes are seised per my per tout If two severall Copyholders joyne in a Grant of their Copyhold by one Copy or if one Copyholder having severall Copy-holds granteth them by one Copy yet the Grantee shall pay severall Fines for they shall inure as severall Grants Co. 4 fo 27. b. But if two joynt-Tenants two Tenants in Common or Tenant for life and hee in the Remainder joyne in the Grant of a Copy-hold one Fine onely is due and it shall inure as one Grant onely so if a surrender be made and after a common Recovery is had by plaint in the nature of a Writ of entry in Le post for the better assurance one Fine onely shall be paid And thus much of Fines I come now in the next place to Forfeitures wherein I will chiefely rely upon these foure points 1. What Acts amount to a Forfeiture 2. What persons are able to forfeit 3. What persons are able to take benefit of a Forfeiture 4. What Acts amount to a confirmation of an estate forfeit SEC LVII OF Acts which amount to Forfeiture some are Forfeits eo instante that they are committed some are not Forfeits till presentment Offences which are apparant and notorious by which the Lord by common presumption cannot chuse but have notice are Forfeitures eo instante that they are committed as if by speciall Custome upon the discent of any Copyhold of Inheritance the heire is tyed upon three solemne Proclamations made at three severall Courts to come in and be admitted to his Copyhold if he faileth to come in this failer is a forfeiture Ipso facto So if a Copyholder be sufficiently warned to appeare and he faileth this is a forfeiture Ipso facto But if he be hindred by sicknesse or by over flowing of waters or if he be much in debt and feare to be arrested or if hee be a Bankerupt and keepeth his house then his default is no forfeiture If a Copyholder in the Court be called and summoned to be sworne of the homage and refuseth this is a forfeiture Ipso facto So if a Copyholder be sworne of the homage and then refuseth to present the Articles according to his Oath this is a forfeiture Ipso facto So if a Copyholder will sweare in Court that he is none of the Lords Copyholder this is a forfeiture Ipso facto But if a Copyholder in presence of the Court speaketh unreverent words of the Lord as that the Lord exacteth extorteth unreasonable Fines and undue-Services this is fineable only but no forfeiture and if he saith in Court that he will devise a meanes no longer to be the Lords Copyholder this is neither cause of fine not forfeiture for peradventure the meanes that hee intended was lawfull viz. by passing away his Copyhold Et ubi sensus verborum est multiplex verba semper sunt accipienda in meliori sensu If the Steward sheweth a Court roll to a Copyholder to prove that his Land is holden by Copy and that the Copyholder saith he is a Freeholder and sheweth a Deed pretending thereby to procure his Land to be Freehold and teareth in peeces the Court-Roll this is a forfeiture Ipso facto So if the Lord Co. 4. fo 27. b. upon the admittance of a Copyholder the Fine by the Custome of the Manor being certaine demandeth his Fine and the Copyholder denieth to pay it upon demand this is a forfeiture ipso facto So if a Copyholder will sue a Replevin against the Lord upon the Lords lawfull distresse for his Rent or Services this is a forfeiture Ipso facto But if the Copyholdder be in doubt whether it be due or not and therefore intreateth the Lord that the homage may inquire the truth this is no forfeiture
waste this is no forfeiture So if a Copyhold be surrendred to the use of I. S. and before admittance I. S. committeth waste this is no forfeiture for by the same reason that hee cannot grant before admittance hee cannot forfeit before admittance If two joynt Tenants be of a Copyhold and one committeth waste he forfeiteth his part onely for no man can forfeit more than he hath granted And therefore if there be Tenant for life with a remainder over of a Copyhold and the Copyholder for life purchaseth the Manor committeth waste or doth any Act which amounteth to the extinguishment or the forfeiture of a Copyhold yet the remainder is not hereby touched And so if a Copyholder be granted to three habend successivie whereby the Custome of the Manor this word Successivie taketh place the first Copyholder cannot prejudice the other two by any Act he can doe no more than if a Copyholder in Fee by Licence maketh a Lease for yeares by Deed or without Licence by Copy and either of these Lessees committeth waste the reversion is not hereby forfeited If I have two severall Copyholds by two severall Copies and I commit waste in one this is a forfeiture of this one onely and not of the other And so if I grant these severall Copyholds by one Copy yet they continue severall as they did before and the forfeiture of the one is not the forfeiture of the other The same Law is if two severall Copy-holds Escheated to the Lord and hee regranteth them againe by one Copy And thus have I shewed what persons are able to forfeit I will now in a word shew what persons are able to take benefit of a forfeiture SEC LX. REgularly it is true that none can take benefit of a forfeiture but he that is Lord of the Manor at the time of the forfeiture And therefore if a Copyholder maketh a Feoffment and then the Lord alieneth neither the Granter nor the Grantee can take benefit of this forfeiture for neither a right of entry nor a right of action can ever be transferred from one to another And therefore if a Freeholder alieneth in Mortmaine and then the Lord granteth away his Seigniory neither the one nor the other can ever take benefit of this forfeiture So if a Lessee for life committeth waste and then the Lessor granteth away the reversion this waste is made dispunishable But if Tenant for life be of a Manor with remainder over in Fee to a stranger If a Copyholder committeth waste and then Tenant for life of the Manor dieth before entry yet he in Remainder may enter for he had an interest in the Manor at the time of the forfeiture committed though hee could not enter by reason of the State in Tenant for life which being determined his entry is now accrued unto him for the forfeiture committed in the life of Tenant for life And sometimes he that is neither Lord of the Manor at the time of the forfeiture committed nor ever after shall take benefite of a forfeiture As if a Lord of a Manor granteth a Copyhold in Fee and then granteth the Franck-Tenement or the inheritance of this Copy-hold to a stranger the Grantee though no Lord of the Manor nor able to keepe any Court Co. 4. fo 24. shall take benefite of forfeitures made by the Copyholder as if the Copyholder do make a Feoffment Lease waste deny the Rent c. Thus have I shewed what persons are able to take benefit of a forfeiture I will now in one word shew what Acts amount to a confirmation of an estate forfeited SEC LXI IF the Lord doth any thing whereby hee doth acknowledge him his Tenant after forfeiture this acknowledgement amounteth to a Confirmation as if he distreyneth upon the ground for Rent due after forfeiture or if he admitteth after the forfeiture or the like these are estoppells to the Lord so that he can never enter so the Lord have notice of such forfeitures before any such act which may amount to a confirmation be done yet some make this difference that these forfeitures onely which destroy not the Copyhold are onely conformable by subsequent acknowledgement and not those forfeitures which tend to the destructions of a Copyhold as if the Copyholder maketh a Feoffment by this the Copyholder is destroyed and therefore no subsequent acknowledgement of the Lord will ever salve this sore And this shall suffice for forfeitures I come now in the last place to shew what Acts amount to the extinguishment of a Copy-hold SEC LXII VVHeresoever a Copyhold is become not demisable by Copy either by the Act of the Lord by the Act of the Law or by the Act of the Copyholder himselfe it is extinguished for ever By the Act of the Lord as if a Copyholder Escheateth and the Lord granteth away any estate by Deede this is an extinguishment Co. 4. fo 31. So if hee maketh a Feoffment upon Condition and then entereth for breach of the Condition yet the Copyhold is extinguished because once not demisable But if the Lord keepeth the Copyhold-Lands for never so many yeares or granteth at will this destroyes not the Copyhold because it continueth ever demisable by Copy By the Act of the Law as if the Copyhold escheated be extended upon a Statute or Recognizance acknowledged by the Lord or if the feme of the Lord hath this Land assigned unto her for her Dower although these impediments be by the Act of the Law yet because they are lawfull the Land can never after be granted by Copy By the Act of the Copyholder himselfe as if he accepteth a Lease for yeares at the Common Law either mediate or immediate from the Lord of the Copyhold this is an absolute extinguishment But if he accepteth a Lease for yeares of the Manor the Copyholder by this hath not continuance but this is no extinguishment because the Land continueth still grantable by Copy If a Copyholder with Licence make a Lease for yeares to a stranger or without Licence maketh a Lease for yeares to the Lord the Copyhold is not hereby extinguished and yet it is not demisable by Copy So if a Copyholder intermarrieth with a feme Seignioresse this is a suspension onely of the Copyhold no extinguishment So if the interruption be torcious as the Lord be disseised and this disseisor dieth seised or if the Land be recovered by false verdict or erronious judgement and after the Land is recontinued it is not extinguished but may be granted arere by Copy for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur And so I conclude with Copyholders wishing that these may ever be a perfect union betwixt them and their Lords that they may have a feeling of each others wrongs and injuries that their so little Common-wealth having all his members knit together in compleate order may flourish to the end FINIS
he useth to hold a little rod in his hand which he delivereth to the Steward or Bayliffe according to the Custome of the Manor to deliver it over to the party to whose use the Surrender was made in the name of Seisin and from thence they are called Tenants by the Verge In some Manors in stead of a wand a straw is used and in other Manors a glove is used Et consuetudo loci semper est observanda A Surrender where by a subsequent Admittance the grant is to receive his perfection and confirmation is rather a manifesting of the Grantors intention than of passing away any interest in the possession for till Admittance the Lord taketh notice of the Grantor as Tenant and he shall receive the profits of the Land to his owne use and shall discharge all Services due to the Lord but yet the interest is in him but secundum quid and not absolutely for he cannot passe away the Land to any other or make it subject to any other incumbrance than it was subject to at the time of the surrender neither in the Grantee is any manner of interest invested before admittance for if hee enter he is a trespasser and punishable in trespasse and if he surrender to the use of another this surrender is meerely void and by no matter ex post facto can be confirmed for though the first surrender be executed before the second so that at the time of the admittance of him to whose use the second surrender was made his surrenderer hath a sufficient interest as absolute owner yet because at the time of the surrender he had but a possibility of an interrest therefore the subsequent admittance cannot make this act good which was void ab initio but though the Grantee hath but a possibility upon the surrender yet this is such a possibility as is accompanied with a certainty for the Grantee cannot possibly be deluded or defrauded of the effect of his surrender and the fruits of his Grantee for if the Lord refuse to admit him he is compelable to do it by a Sub paena in the Chancery and the Grantors hands are ever bound from the disposing of the Land any other way and his mouth ever stopped from revoaking or countermanding his surrender But peradventure if a Copyholder languishing in extremity surrendreth out of Court to the use of his Cosin in consideration of consanguinitie or to the use of his sonne in consideration of naturall love and affection and after recovereth his health before presentment this surrender is revocable or countermandable but if it be granted upon valuable consideration as for the discharge of debts or for a summe of money paid though it be made out of Court yet it is as binding as any surrender whatsoever made in Court And thus much for a Surrender a word of a Presentment SEC XL. THe Presentment by the generall Customes of Manors is to be made at the next Court day immediately after the surrender but by speciall Custome in some places it will serve at the second or third Court And it is to be made by the same persons that tooke the surrender and in all points materiall according to the true tenure of the surrender And therefore if the surrender be conditionall and the Presentment be absolute both the Surrender Presentment and Admittance thereupon are wholly void But if the Conditionall surrender be presented and the Steward in entring of it omitteth the Condition yet upon sufficient proofe made in Court the surrender shall not be avoided but the Roll amended and this shall be no conclusion to the partie to plead or give in evidence the truth of the matter If I surrender out of Court and die before Presentment if Presentment be made after my death according to the Custome Co. 4. fo 39. b. this is sufficient so if hee to whose use the surrender is made dieth before Presentment yet upon Presentment made after his death according to the Custome his heire shall be admitted and so if I surrender out of Court to the use of one for life the Rendrour and the Lessee for life dieth before Presentment yet upon Presentment made he in the remainder shall be admitted And so if I surrender to two joyntly and one dieth before Presentment the other shall be admitted to the whole The same Law is if those into whose hands the surrender is made dye before Presentment upon sufficient proofe in Court that such a surrender was made the Lord shall be compelled to admit accordingly and if the Steward the Bailiffe or the Tenants into whose hands the surrender is made refuse to present upon a Petition or a Bill exhibited in the Lords Court the party grieved shall finde remedy But if the Lord will not doe him right he may both sue the Lord and them that took the surrender in the Chancery and shall there finde reliefe Thus much of Presentments A word of Admittance SEC XLI ADmittances are threefold 1. An Admittance upon a voluntary Grant 2. An Admittance upon Surrender 3. An Admittance upon a Discent Involuntary Admittances the Lord is an instrument for though it is in his power to keepe the Land in his owne hands or to dispose of it at his pleasure and to that intent may be reputed as absolute owner yet because in disposing of it he is bound to observe the Custome precisely in every point and can neither in Estate nor Tenure bring in any alteration in this respect the Law accounts him Customes instrument If the Custome doth warrant an estate onely Durante viduitate and the Lord admits for Life this shall not bind his heire or successor because Custome hath not sufficiently confirm'd it So if the Lord faile in reserving verum antiquum redditum as if he reserveth ten shillings where the usuall rent Customably reserved is twenty shillings this may be a meanes to avoide the admittance and the Law is very strict in this point of reservation for though the ancient accustomable rent be reserved according to the quantity yet if the quality of the rent be altered the heire may avoid this Grant for if the ancient rent from time to time hath been twenty shillings in Gold and the Lord reserveth it in Silver this variance of the qualitie of the rent is in force to destroy the Grant so if the ancient rent hath beene accustomably paid at foure Feasts in the yeare and the Lord reserveth it at two Feasts So if two Copyholds Escheate to the Lord the one of which hath beene usually demised for twentie shillings rent th' other for ten shillings rent and he granteth them both by one Copy for one rent of thirty shillings this is not good and so if a Copyhold of three acres Escheates which hath beene ever granted for three shillings rent and the Lord granteth one Acre and reserveth pro rata one shilling rent verus antiquus reddit is not reserved but if a Copyhold of sixe
Acres which hath ever beene demised for sixe shillings rent Escheateth to two Coparteners and one granteth three Acres reserving thre shillings pro rata this is a perfect reserving In Admittances upon surrender the Lord to no intent is reputed as owner but wholly as an instrument and the party admitted shall be subject to no other charges or incombrances of the Lord for he claimes his estate under the party that made the surrender and in the plaint in the nature of a Writ of entry in the per it shall be supposed in the per by him not by the Lord and as in admittances upon surrenders so in admittances upon descents the Lord is used as a meere instrument Co. 4. fo 27. b. and no manner of interest passeth out of him and therefore neither in the one nor in the other is any respect had unto the quality of his estate in the Manor for whether hee hath it by right or by wrong it is not materiall these admittances shall never be called in question for the Lords Title Co. 1 fo 140. b. because they are judiciall acts which every Lord is enjoyned to execute Besides in admittances upon Surrenders the Lord being accounted nothing but a necessary instrument it followeth that he hath a bare Customary power to admit secundum formam effectum sursum reddendi therefore if there be any variance betweene the admittance and the surr either in the person in the estate or in the tenure or in any other collaterall points the Lord doth onely transferre an estate according to the surr and his authority if it can take such effect As if I Surrender to the use of I.S. and the Lord admits I.N. this admittance is wholly voide and notwithstanding this admittance the Lord may afterwards admit I. S. according to the effect of his authoritie but had he admitted I. S. and I.N. joyntly then the admittance had beene void for the one and good for the other like the Case of a Devise where a Devise of a terme is made to I. S. and the Executors agree that I. S. and I.N. shall have this terme Co. 4 fo 28 this consent is voide to I.N. for after the consent of the Executors I. N. is in by the Devise Yet some are of opinion that if I surr to the use of I. S. in Fee and the Lord admits I. S. together with his eldest sonne and heire apparent that this is an estate by Estoppell to I.S. and that he shall onely claime joyntly with his sonne because hee might have refused an admittance in this manner but I can hardly be brought to thinke that this admittance giving a present interest in theson who by surrender was to have no interest till the death of his father should be any such estopell If I surr to the use of I.S. for life and the Lord admits him in Fee an estate for life onely passeth Co. 4. fo 29. So if I surr without mentioning any certaine estate because by implication of the Law estate for life onely passeth though the Lord admit in Fee no more doth passe than the implication of Law will warrant If I surr with the reservation of a rent and the Lord admits not reserving any rent or reserving a lesse rent than I reserved upon the Surrender this admittance is wholly void but if the Lord reserveth a greater rent then is the reservation void only for the surplusage and the admittance so far currant as it agreeth with my surrender If I surrender upon Condition and the Lord omits the Condition the admittance is wholly void but if my surrender be absolute Co. 4. fo 25. and the Lords admittance be conditionall the Condition is void but the admittance in all points else is good The reasons of these diversities are these where an Authority is given to any one to execute any act and he executeth it contrary to the effect of his authority this is utterly voyd but if hee executeth his authority and withall goeth beyond the limits of his warrant this is voyd for that part onely wherein he exceedeth his authority These admittances upon Surrender differ from admittances upon Discents in this that in admittances upon surrender nothing is vested in the Grantee before admittance no more then in the Voluntary admittances but in admittances upon Discents the heire is Tenant by Copy immediately upon the death of his Ancestor not to all intents and purposes for peradventure he cannot be sworne of the homage before neither can hee maintaine a plaint in the nature of an Assize in the Lords Court before because till then he is not compleate Tenant to the Lord no further forth then the Lord pleaseth to allow him for his Tenant And therefore if there bee Grandfather Father and Sonne and the Grandfather is admitted and dyeth and the Father entreth and dyeth before admittance the Sonne shall have a plaint in the nature of a writ of Ayell and not an Assize of Mort d'auncestor so that to all intents and purposes the Heire till admittance is not compleat Tenant yet to most intents especially as to strangers the Law taketh notice of him Co. 4. fo 23. as of a perfect Tenant of the Land instantly upon the death of his Auncestor for he may enter into the Land before admittance take the profits punish any trespasse done upon the ground Surrender into the hands of the Lord to whose use he pleaseth satisfying the Lord his fine due upon the Discent and by estoppell hee may prejudice himselfe of his inheritance for if an Estrange come and surrender to the use of him and his Wife before admittance hee shall ever claime joyntly with his Wife and never be taken as sole Tenant and the Lord may avow upon him before admittance for any arrearages of Rent or other Services and last of all Co. 4. fo 22. b. upon an actuall possession there shall be possessio fratris before admittance for if a Copyholder in Fee have issue a Sonne and a Daughter by one Venter and a Sonne by another venter and dyeth seised and his Sonne by the first Venter entereth into the Land and dyeth before admittance the Daughter shall inherit as Heire to her brother and not the Sonne by the second Venter as Heire to his Father and many times the possession of a Guardian or a Tearmer without an actuall entry or any claime made by the Heire will make a possessio fratris As if a Copyholder in Fee having issue a Sonne or a Daughter by one venter and a Sonne by another Venter by Licence of the Lord maketh a Lease for yeares and dyeth and the Sonne of the first Venter dyeth before the expiration of the Terme being neither admitted nor having made any actuall entry or any claime Yet this possession of the Lessee is sufficient and the Reversion shall discend to the daughter of the first Venter and not to the sonne of the second Venter But if the