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
right or in some others a sufficient ability or capacity to prescribe Touching the first it is to be understood that hee which will prescribe must have a certaine and indefeazable estate and not otherwise As if a Tenant at Will or at Sufferance after hee hath occupied the Land for ten yeares will prescribe to have the same for ten yeares this is not good But a Tenant at Will after the Custome although he came in at the first by the Lords will yet doing and paying that which hee ought hee may prescribe to hold the Land whether the Lord will or no And although a Coppy-holder may prescribe in this forme against his Lord yet against an Estranger for a common or such like kind of profit hee cannot prescribe bâ—t in the right of the Lord neyther yet can a Tenant for life or for yeares prescribe in the right of their owne Estate onely because it lacketh continuance to make a custome or prescription except in some cases of necessity the Lord of a Mannour or of a Patronage for yeares or life may grant a Coppy in perpetuity or presentation for a longer time then the estate of the Grantor doth continue and this is admitted causa necessitatis and not Iure prescriptionis To the second Capacity must be in himselfe that doth prescribe which Ability and Capacity must consist in the person of him that doth prescribe For as prescription may be sometimes in respect of estate Mannour Lands or Offices so may prescription sometimes be in respect of person which person is not to be understood of a private person but of a body Politicke not that many persons may prescribe except the same be incorporate and to prescribe in respect of their incorporate Capacity and not in respect of their private Capacity As if the Inhabitants of Dale will prescribe to have Common in the Soyle of S. this is no good prescription for that they be not Incorporate they must prescribe that H. Lord of the Mannour of Dale for him and his Tenans within the said Mannour have used to have Common within the sai Soyle so is it for Coppy-holds for they must prescribe in the name of their Lord in such a case If a man prescribe that hee and his Ancestors have had such an Annuity this is not good But if a Bishop doe prescribe that hee and his predecessors have had such an annuity this is good The pleading of Prescription must bee used in forme of Law as other matters that be pleadable and forme must be used likewise in pleading of Coppy-holds and other Customary Titles for avoyding of confusion and discord as well as in other cases of the Common Law the forme of pleading prescription doth differ as the quality of the thing whereof prescription is made and somtimes doth differ as the persons doe differ which make the prescription As if a Coppy-holder makes his Title to his Land by prescription he must plead that the same Land is and hath bene time out of minde Demised and Demiseable by the Coppy of Court Role according to the custome of the Mannour wherof it is holden If two men as yonger brethren will make their Title to Land in Gavell-kinde they must say that the same Land is of the Tenure and Nature of Gavell-kinde which time out of minde have bin parted and partable between Heires males So if the yongest Sonne maketh his Title to Land in Borough English he must plead that time out of minde the Custome of the said Mannour hath bin that when or at what time soever a Coppy holder dyeth Seised of any Coppy-hold Lands in the same Mannour having divers Sonnes that the same hath used Iure Hereditario to descend unto the youngest Sonne c. And as the forme doth differ in the things wherof the Prescription is commonly made so doth it differ as the Persons do differ which prescribe as a private person shall prescribe in him and his Ancestors whose estate he hath An Incorporate person in him and his Predecessors A Lord of a Mannour in him and them which were Lord of that Mannour A Sheriffe in him and those which have beene Sheriffes of the same County A Steward of a Mannour in him and those which have beene Stewards there A Free holder in him and them which have beene Stewards to the said Lord. A Coppy-holder shall Prescribe against an Estranger that the Lord of the Mannour for him and his Tennants at will have used the like c. WHAT NECESSITY A Court Baron is of whereof it doth Consist how it is defined and what shall bee said a sufficient Court Role to make a Coppy-hold EVery Mauour hath a Court Baron incident to it of common right and common necessity and this Court Baron consisteth of foure speciall parts viz. The Lord the Steward the Tennants and the Bayliffe A Court Baron is defined to bee an assemblie of these partes together within the said Mannour to take Councell care and enquire of causes concerning the same Mannour to see justice duely executed the acts and ordinances there done to bee recorded in the Roles of the same Court which Roles are the evidence of all ordinances dutyes customes and conveyances the Lord and Tennants of the said Mannour and are to bee entred by the Steward or an Officer indifferent betweene the Lord and his Tennants and the same Roles to remaine with the Lord thereby to know his Tennants his Rents and his Fines his Customes and his services And the particular grant of every Coppy-hold to bee coppyed out of the Roles the coppyes thereof to bee delivered to every particular Tennant neither can they make any other Title to their said Tennements but by their said Coppy If the Lord of the Mannour having Coppy-hold Lands Surrendred into his hands will in the presence of his Tennants out of the Court grant the same to an other and the Steward entreth the same into the Court Booke and maketh thereof a Coppy to the grantee and the Lord dye before the next Court this is no good Coppy to hold the Land But if the same Surrender and grant bee presented at the next Court in the life of the Lord and the grantee admitted Tenant and a Coppy made to him this is good Coppy If the Lord of a Mannour having ancient Coppy-hold in his hands will by a deed of Feofment or by a Fine grant this Land to one to hold at the will of the Lord according to the Custome yet this cannot make a good Coppy-hold If the Lord in open Court doth grant a Coppy-hold Land and the Steward maketh no entry thereof in the Court Roles this is not good though it bee never so publicke done nor no Collaterall proofe can make it good But if the Tenant have no Coppy made unto him out of the Role or if hee loose his Coppy yet the Roles is still a sufficient tytle for his Coppy-hold if the Roles bee also lost yet it seemeth that by proofe hee can
taken contra to Master Brooke in nov â—se 426. But though a gift in Taile of a Coppy-holder be not conteined in the same Statute of William the Second Yet I thinke in such Mannour were time out of minde they have used to make gifts in Taile of Coppy-hold Lands there such gifts bee good at this day and they may make protestation in the nature of Avy writ as apeareth by Littleton WHAT SHALL BE SAID a good Surrender AS in the conveing of Free Lands there is required some ceremony and publick notice so is there in the assuring of Coppy-holds necessary some publicke Fact to bee done therein which is the Surrender In which ceremonie there is contained two effects the one what is surrenered and to whose use the other that it be done with the Lords good will and for that cause it is surrendered into his hands And although of the meanes a Mannour of this surrender there bee divers kinds as within some Mannors to Surrender by the hand of another Coppy-holder and in some other to surrender into the Stewards hands in some to the Bayliffes hands and some by giving a yard to the Steward in some by giving his hand or his glove which bee outward signes of his intent Yet in all these kindes the words of Surrender must not bee divers but one or to one effect and must bee either words of Surrender expressed or words of Surrender implyed and therefore if a Coppy-holder will bargaine and sell his Land to I. S. and this is found by the Homage and I. S. praieth to bee admittted Tenant yet the heire of the Coppy-holder shall avoide the Admission because of the insufficency of the Surrender taking by the words of Bargaine and Sale and not by words of Surrender opi Sur. Dier 8. Eliz. Lou ill dit relees ne vault avrer Come unsurrender If a Coppy-holder commeth into the Court and desireth his Lord to admit his sonne to bee Tenant in his fathers place this seemeth a good Surrender to the use of the sonne If a Coppy-holder will in the presence of other Coppy-holders of the same Mannour say that hee is content to Surrender his Coppy-hold Lands to the use of I. S. this is no good Surrender But if hee saith hee doth surrender into the hands of the Lord to the use of I. S. if the Lord will thereunto agree this is a good Surrender whether the Lord will or not If the Tenant will Resigne his Interest in the Court into the Lords hands therewithall for the Lord to doe his will this is a good Surrender if it be accepted If a Coppy-holder will say he will bee no longer the Lords Tenant though these words bee recorded yet this is no good Surrender If a Coppy-holper for life take a new Estate for life by Coppy this is a surrender of his first estate But if a Coppy-holder for life will take a Lease of the same by Indenture for life this is not a good Surrender of the Coppy-hold Quaere If a Coppy-holder commeth to the Lord and telleth him that for the preferment of his Sonne in marriage with such a mans daughter his will is to give his Land presently to his Sonne and desireth the Lord that he would be contented therewith this is no good Surrender But if he had said these words in the Lords Court and the same recorded or found by Homage as a Surrender and so presented then this had beene a good Surrender without any other words of Surrender THAT A COPPY-HOLDER must bee admitted Tenant and what shall bee said a good Admittance of a COPPY-HOLDER IF a Coppy-hold descend unto a married woman and her Husband take the profits thereof and suffer a Court day to passe without admittance of his Wife and then the Wife dyes the Husband shall not be Tenant by the curtesie but in the 12. Eliz. Dyer 291. 292. it seemeth that the contrary should be the better opinion An entry before admittance is no forfeiture without an especiall custome pleaded but the heire may make a forfeiture for non payment of the Rent as the Custome was there pleaded before admittance If a Coppy-hold be Surrendred unto the use of a stranger upon condition and the condition be broken the party that made the Surrender may reenter and bee a Coppy-holder to all Intents without any new admission for he did depart with the Land but upon a condition Also if a Surrender of a Coppy-hold bee made to the use of a stranger for Life and the Lord makes a grant thereof to the same stranger in Fee this shall not binde the heire of the Tenant but that hee may enter after the death of the grantee for hee tooke the Land by the Surrender and not by the grant made by the Lord for the Lord is but an instrument for the conveyance of the Land for if I make a Surrender unto the Lord ea Intentione that hee shall grant over unto such a man if the Lord will not grant the same I may then reenter but the stranger hath no meanes to enforce the Lord to grant the same over unto him but hee may maintaine Trespas against the the Lord if hee doth suffer mee to reenter and this is the opinion at this day The Lord of a Mannour hath that prerogative in his Coppy-holders that no stranger can bee his Tenant thereof without his speciall assent and admission and for that cause a Coppy-holder shall not bee lyable to any executions of Statutes or recognizances neither shall be Cassets in debt or Formidon neither are conteyned in any the Statutes afore named for if it were then should the Lord be forced to have a Coppy-holder whether hee would or no which is against the nature of a Coppyhold And therefore a stranger can never enter though a Surrender made to his use bee accepted except hee bee admitted Tenant but otherwise of the heire for hee may eater and take the profits before the Admittance after the death of his father Admittance may be three manner of waies an expresse admission by the words entred into the Court Role viz. unde admissus est Tenens or by acceptance or implication as if the Lordwill accept the rent by the hands of a stranger third by admitting one Copy-holder in some cases the Lord shall admit another by implication to some purposes and to these three may bee added a fourth which is by the entry of the Sonne after the death of his Father and the Tenant in Dower after the death of her Husband which is Lawfull without admission till the next Court and then they must pray to bee admitted c. If a Coppy-holder doe surrender his Land to the use of I. S. and the Lord doth grant the same to I. S. accordingly and thereupon hee enters yet hee is no good Coppy-holder till hee bee admitted But if I. S. appeareth at the Lords Court and passeth on the Lords homage or the Lord accepts his Rent or his Fine
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
if a Coppy-holder surrender his Land to the intent that a stranger shall have the Rent out of it by Coppy it is no good Coppy-hold Rent Ninthly if there bee two joyn-tenants in Common of a Mannour and a Coppy-holder surrenders to the use of one this is not Coppy-hold Land Tenthly if the Husband and Wife bee joynt-coppy-holders of the purchase of the husband during Coverture and the Husband is attainted of Felony and dyeth this is not a Forfeiture of any part of the Coppy-hold but if the purchase was made before the coverture then it is a Forfeiture of the moyty Eleventh If two Coppy-holders exchange by licence and after the part of the one is recovered by an elder title he may enter in the Land which the other hath in exchange Twelvth If two Coperceners Coppy-holders make partition and the one is impleaded and doth loose by just title and the recoverer enters into the Land shee cannot enter upon her sister because she did not pray in aide for the rate A feme Covert Joynt Coppy-holder with another in Fee may surrender her moyty to the use of her Husband and it is good Thirteenth the Kings Steward without ny patent of his Office seiseth divers Coppy-holds and afterwards the Lord Treasurer and those of the Exchequer doe lease the same Land for yeares and thereupon it was moved whether Coppies made by the Steward without patent were good and the Lord Dier thought they were good Copyes but in the Exchequer the Barons were of another opinion Fourteenth a man seised of a Mannour to which Coppy-holders for yeares and others are belonging hee deviseth by testament the same Mannour to a ceraine person for payment of his debts during which time divers Coppyes expire and the devisees grant new Coppyes and afterwards during the terme the devisees grant in reversion and a particular Tenant surrenders in Court to the use of the grantee and after the wife of the devisor recovers in Dower part of the Mannour and hath execution of those Coppy-holds assigned by the Sheriffe for her Dower And it was mooved whether the Wife shall avoid those Coppyes made by the devisees And Browne Justice was of opinion that no to which Weston agreed for they said that those are ordinary things and which must bee done of necessity by force of the Custome and not any deede or new charge created by the devisees who are but officers to execute the Custome which of necessity must bee done for they cannot bee made by any others who have the possession of the Mannour for it hath beene adjudged that such Coppyes and ordinary things as presentment to a Church made by a disseisor or by a Lessee for Life or Yeares shall stand good and shall not bee avoided by reason of the necessity but other charges created by the Heire after the death of the Huband as a Lease for yeares Rent charge in which there is no such necssity the Tenant in dowre shall discharge them and although the Wife shall bee adjudged in by her husband yet shee shall not have those things which chance before assignment of her dower If a wardship fall or an avoidance of a Church or a villaine regardant hath purchased and the heire enters or presents these things the heire shall have and not the Tenant in Dowre and it may be that the wife will never sue for her dower or peradventure she shall have other Mannours assigned her for the same And as to the reason that it is not a thing of necessity to grant Coppies in reversion yet they were of opinion that because the Custome doth allow it it is Custome ley and therefore it may bee put in execution for the Custome is annexed unto the Land and not unto the interest of the Lord. But Wray said that of estates that are to Coppyholders and their heires according to the Custome of the Mannour if such a Coppy-holder dye without heire the Custome is determined If such a Lessor for life or yeares of the same Mannour grant new Coppyes they are not good and so there is a diversity A man cannot devise that his friends shall make Coppyes or hold Courts for none shall make Coppye but he that is Lord of the Mannour and hath an interest The Lord of the Mannour shall have the government of the Coppy-hold during the infancy of his Tenant Executors shall have a Lease for yeares of Coppy-hold Land without any new admittance The Husband of a Wife that is Coppy-holder for yeares shall not bee newly admitted after the death of the Wife nor bee tenant by the courtesie Where inheritance of a Coppy-hold descends the heire may enter without admittance but it was a doubt whether he should have an action of Traverse against a stranger before admittance for before admittance he is not properly Tenant if such an heire will not come to the next Court the Lord may make proces against him A Coppy-holder shall have Traverse against his Lord paying his Services and customes If erronious judgement be given against a Coppy-holder in the Lords Court the Lord in his Court may reverse it for it is not amendable in any other place or Court If the Lesse of a Coppy-hold commit waste and the Lord seiseth for forfeiture the Coppy-holder shall not have an action of waste against his Lessee as if Tenant for life make a Lease for yeares which Lessee maketh waste and the Lessor recovers the Tenant for Life shall not have an action of the Case but is without remedy for it was his folly that hee would not have a Collatterall covenant of the Lessee that he should doe no waste A Coppy-hold is not forfeit for heresie by the last of 2. Hen. 5. A Coppy-holder is not Ter-tenant but is Tenant at the Lords will and a Coppi-hold is not bound by the statute of Wills nor of Tines nor of Limitations A Coppy-hold shall not be extended by a statute Marchant or Staple The Husband and Wife being seised of a Mannour to them and the heires of the Husband hee grants a Rent charge out of it and dyes the Coppy-holder surrenders the Wife makes another Coppie and dyes the grantee shall distraine upon the Coppy-hold If the Lord of a Mannour hath a great waste and grants a rent charge out of the same and the Coppy-holders have Common in the waste and they put in their Cattell the grantee shall distraine them if they cannot make prescription If a Coppy-holder surrender to the use of another and the Lord will not admit him nor make a grant unto him the surrender is void If there be two Joynt Coppy-holders and the one commits a forfeiture he shall forfeit but the Moyty Lessee for yeares ofa Coppy-hold shall have an eiectione firme by Plowden and others If there be a Lease for yeares of a Mannour and one Coppy-holder purchase the reversion in fee this is a destruction of the Coppy-hold and the Lessee of the Mannour may put him out and occupy
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
certain beginning and of certaine ending and is not directed by mans memory wherein is ment limitation of time and not limitation of estates If Lands have been demised by Coppy by the space of 60. yeares and yet there be some alive that remembreth the same occupied by Indenture this is not a good Coppy-hold And if Lands have beene demised by Coppy but 40 yeares and there is none alive that can remember the same to bee otherwise demised This is a good Coppy-hold for the number of yeares makes not the matter but the memory of man And it is not 60. 80. or 100 yeares that maketh a Coppyhold or a custome though it makes a limitation But such certaine number of yeares makes onely a likely-hood or presumption of a prescription that is that it commonly happeneth not that any mans memory alive can remember alone such a number of yeares But if any chance to be alive that remembreth the contrary then such prescription must give place to such proofe Custome hath certaine speciall vertues in it selfe which for the more estimation thereof I will shortly shew according to certaine precepts and principals allowed by al Lawes both by the Law of God the Law of of Nature and the Law of Nations and by the private Law of every Countrey as by the Law of GOD it is said Si quis videtur contentiosus esse nos eiusmode Consuetudinē non habemus nec ecclesia Dei which proveth that the Scripture and the Church of God do atribute some what to good customes though not to evill And by the Law of Nature Consuetudo est altera natura And by the Law of Nations Consuetudo est optima legum interpres And by the Lawes of this Realme Princes at their Coronation are sworne as well to keepe the custome of this Land as the Lawes of this Land which Law doth attribute so much to custome that sometimes it is admitted to derogate from the Custome Law for Consuetudo bona de clausausitata et approbata privat Communem Legem WHEREOF CVSTOME doth Consist CUstome although it doth chiefly consist of continuance of time and usage yet it doth further require seven other necessary properties accident for the maintenance of a good Custome Which are these FIrst it must be reasonable as it appeareth 2. Ed. 4. 24. SEcondly it must be certaine as appeareth 3. Ed. 3. 13. Ed. 3. 4. Dum fuit infra aetatem 3. 14. Ed. 3. 4. 14. H. 4. THirdly it must bee according to Common right 42. Ed. 3. 4. FOurthly it must bee on good consideration 5. Hen. 7. 9. 42. Ed. 3. FIftly it must bee compulsary 42. Ed. 3. Avow 66. SIxtly it must be without prejudice to the King 3. Hen. 6. Custome Fits Hen. 2. 22. Ed. 3. Prescription 40. SEventhly it must bee to his profit that claimeth the same 31. Ed. 3. Prescription 40. et 28. Usage is the efficient cause both of Custome and Prescription for without usage there can bee neither Custome or Prescription for even as the minde is to man so is usage to Custome And as you see there bee divers varietyes of mindes in men so are there many varieties of Customes as you see varieties of Countries and yet all men perfect and all Customes perfect some say that have their mindes affected according to the Constitution of their bodies And so have Countries their Customes according to the Constitution of the place as in Kent and in North Wales because those Countries have beene most subject to forraigne invasions that euery man there may bee of power for resistance The inheritance for the most part descend in gavell kind viz. to every brother alike and in other middle parts of the Realme for whom government Least equalty is best The inheritance wholy descendeth to the eldest brother And in Borough English which is in divers Boroughs because their substance commonly is Lands and in such Townes Lands may bee the better preserved then goods therefore their youngest sonnes shal onely have their Lands and as it is in those great parts of the Realme so it is in divers private parts and Mannours and divers private and special customes As some Mannours have Coppy-hold of inheritance some for life or liues in some Manour the Copy-holders surender in one manner and in some in an other sort In some the Fine is Arbitrable And in some Certaine et sic in similibus The usage of every Custome doth not rest to be yearely daily or continually used but as the equality and the nature of the thing whereof the Custome is doth require as Custome Harryots when they fall of Shacts and Foldage in their season of Common Estovers in their time and for Coppy-holders whose Fines are certaine yet at one time to pay a greater Fine then at an other and all these are good Customes though they cannot bee used at all times for Customes may bee sometimes used sometimes not used sometimes altered and sometimes not and therefore in Custome you may see there is user non user Abuser and interuser User is when according to time and occasion a Custome is used Non user is when for want of time and occasionor through negligence or forgetfulnesse a Custome is not used Abuser is that which user doth nourish a Custome and non abuser tolerate a Custome so doth abuser destroy a Custome and yet in some cases a Custome may bee sometimes used in one sort and sometimes in an other And yet a good Custome if there bee good considerations of the exchanging thereof all times and this I call enteruser If there be a Coppy-hold of an Ancient demeasne and this Land is forfeited to the Lord by waste and thereupon a seisure awarded thereof and yet the Lord doth suffer the Tennant still to occupy it by the space of 20. yeares without receiving any rent for the same and after grants the said Land to the Tennant by Coppy This grant is good and a good User of the Coppy hold But if after the said seasure awarded an Estranger had entred and Disseised him of his Land and made a Feofment in Fee thereof And after the Lord re-entreth and grants the same againe by Coppy unto the first Tenant this grant is not good by reason of the User of this Land If the Lord have used at the admission of his Coppy-hold Tenants sometime to take for a Fine two-pence or sometimes fourepence for an Acre somtimes twelve pence an Acre this User is so uncertaine that it maketh the Fine arbitrable at the Lords will If the Lord of a Mannour have used time out of minde to admit his Coppy-hold Tenants without Fine this usage shall binde the Lord as well as a Fine certaine If the Lord have used to have certaine work-dayes of his Tenants and that hath not been used by the space of twenty yeares last past yet that Non-user is no discharge to the Tenants so that there be any in life that can remember the
same If the Tenants have used when they sow their Lands to pay the Lord Rent-corne and when it lyeth in Pasture to pay their Rents in Money this is a good Inter-user If the Tenants have used to pay to their Lord every fourth yeare a double Rent and every sixt yeare an halfe Rent this is a good Inter-user If the Tenants have used to have Common of Pasture in their Lords Woods for their Horse-Cattle and they put in their Neate-Cattle and destroy the Woods this is an abuser But yet it is but Fineable and no Forfeiture of the Common which they might have rightfully used No more then if they have Common for a certaine number of Beasts in the Lords Soyle and they will exceed the number this abuse by their Surcharging is onely fineable and no Forfeiture If a man have a Market to be used one Day in a Weeke the Non-user thereof is not forfeiture And if a man have a Market to be used on the Fryday and hee keepeth the same Fryday and Munday the Mis-user of the Munday is no forfeiture of the Fryday If a Man have a faire to be used two day and he keepes it three dayes this abuser is a Forfeiture If a man have a Faire for one Day and hee will keepe it two dayes and that is presented in the Exchequer If the party being called by Processe do clayme both dayes by Patent upon sight whereof it appeares he ought to have but one day by his Patent and the other by Prescription though the Prescription be found against him and that Day lost yet he shall enjoy the other Day If a Man prescribe to have a Faire yearely upon Bartholmew day and if the same doc fall out on the Sunday then to keepe the same the next Day following this is a good Prescription If the King doe grant to the Citizens of Norwich the Franchises and Liberties that London hath and the Franchises and Liberties that Southampton hath If the Citizens of Norwich doe abuse one of these Liberties that London hath this is a forfeiture of all those Liberties that London hath and of no other But if the King doth Incorporate a Towne and giue them by the same Pattent Speciall Franchises and Liberties the abuser of the one of these is a forfeiture of them all THAT EVERY CVSTOME must be reasonable and what shall be sayd A reasonable Custome EVery good Custome is grounded upon good Reason and that shal bee sayd in Reason a good Custome that in reason is a good Law for Law and Custome be of that affinity as both doth allow like reason and both doth forbid like inconveniences And the finall effect of both to Discusse and to discerne every mans true right and to give to every man that which is his owne For although Custome in some cases differ from Law and doth admit execution of some Acts without some ceremonies and circumstances as be required by the Law yet the end and effect of Custome is to maintayne the like reason that Law doth and to avoyde the like inconveniences And therefore if a Lord will Prescribe to have such a Custome within his Mannour that if the Beasts of any of his Tenants do him any Transgresse upon any of his Demeasnes and there be taken damagefezant that then hee may detayne them untill the owner shall satisfie him for his harmes as himselfe shall require This is no reasonable Custome that he should be his owne Judge But to Prescribe that if any of the Coppy-holders Beasts transgresse c. That the same be presented at his Court that there should be a forfeiture of his Coppy-hold this may be called a reasonable Custome If Tenants of a Mannour will Prescribe to hold without paying any Rents or Services for their Coppy-holds this is no good Custome But Prescribe to hold by Fealty for all manner of Services is good and reasonable If the Lord will Prescribe never to hold a Court but when it pleaseth himselfe this is not good But to Prescribe never to hold a Court for the Speciall good of any one Tenant except the same Tenant will pay him a fine for the same is good and allowable THAT EVERY CVSTOME ought to be certaine and what shal be sayd a Custome certayne THere is nothing more required in all Lawes and Customes then certainty for incertainty in all cases maketh confusion and therefore Law and Custome doth also agree in this poynt that without some kinde of certainty neyther Law nor Custome can be good for in divers cases where one thing may be taken to divers intents and the circumstances of the case such as to which intent the thing was done cannot be certainly judged there the same thing so doubtfully done shall to all purposes be judged voyde And incertainty of Customes and customary causes grows chiefly three manner of wayes That is to say sometimes of incertainty of the Persons Sometime the incertainty of the things and sometimes the incertainty of the cause and in some of these cases though there be at the first a Semblance of incertainety yet by Circumstances and Contingents the incertainties may be turned into Certainties As if the Lord of the Mannour will prescribe that whensoever any of his Coppy-holders dye without Heires that one other of the Coppy-holders of the same Mannour shall Till the Land for the yeare following and therefore this is no good Custome because the intent neyther is nor can be certaine which of the Tenants shall performe this Service But if the Custome be that if a Coppy-holder dye without Heire that then the eldest Tenant of that name of the sayd Mannour shall have this Land this is a good Custome and contayneth in it selfe sufficient certainty If a Coppy-holder doe Surrender two Acres of Land into the Lords hand the one to the use of I. S. and the other to the use of I. N. and doth not name in certainty who shal have the one Acre and who shall have the other the limitation of this use is voyd for this incertainty If a Coppy-hold be Surrendred to the use of I. S. and his Heires untill hee shall marry A. G. and after the sayd marriage then to the use of them two in taile speciall if after they doe marry then is the Surrender to them in taile and till then to him in Fee If the Lord will prescribe to have of his Coppy-holders in the time of peace two-pence an Acre of Rent and in the time of Warre foure pence an Acre of Rent this is good Prescription because there is a good consideration of the cause of this incertainety But to pay unto the Lord two-pence an Acre Rent when hee will and fourepence an Acre Rent when hee will this is no good Prescription because there is neyther good reason nor consideration heereof nor can it ever be reduced into any certainety THAT CVSTOME MVST bee according to Common right And what shall be said such a Custome and what not CUstomes and