of him in the Remainder and then the Land could not vest in the Grantee of the Lord. It was Resolved by the Justices That Tr. 36 Eliz. B. R. Deal and Higden's Case Moore 358. the Admittance of Tenant for life of a Copy-hold is the Admittance of him in the Remainder because he is to pay his Fine which is intire and no Fine is due to be paid by him in the Remainder to the Lord but otherwise it is of him in the Reversion M. 39 Eliz. B. R. Cro. 2. part Gippin and Bannye's Case A Copy-holder surrendred to the Use of one for life the Remainder to another in Fee Tenant for life was admitted He in the Remainder surrendred to the Use of J S which Surrender the Lord accepted of and admitted him and then the Tenant for life died It was holden in this Case That the Heir of J S should have the Land for that the Admittance of the Tenant for life was the Admittance of him in the Remainder and also because the Acceptance of the Lord was quasi an Admittance to him in the Remainder A Copy-holder in Fee surrendred to Tr. 2 Jac. B. R. Auncelme and Auncelme's Case Cro. 2. part the Use of his Wife for life the Remainder to his younger Son in Fee and died The Wife was admitted but the younger Son refused to be admitted during the life of his Mother but afterwards without other Admittance he surrendred to the Use of J S. It was Resolved That the Admittance of the Mother Tenant for life was the Admittance of the younger Son in the Remainder because they made but one Estate A Copy-holder had Issue 3 Sons B C Hil. 31 Eliz. B. R. Bullein and Graunt's Case Leon. 1 part 174◠and D and surrendred to the Use of his last Will and thereby devised the same to his Wife for life the Remainder to C and the Heirs of his body The Wife died after Admittance and the Lord granted the Copy-hold to D in Fee who surrendered to the Use of J S for life and after died without Issue B the eldest Son entred It was adjudged That his Entry was lawfull and that Admittance of him was not necessary for that if a Copy-holder surrendreth to the Use of one for life he in the Reversion or Remainder may enter without any new Admittance SECT VIII By what and whose Act either of the Law of the Copy-holder himself or of the Lord severally or all together the Copy-hold-land or Estate shall be gone determined or extinguished and where suspended onely HAving in the Sections before declared where a Surrender and Admittance thereupon either by the Lord or his Steward in Court or to them or into the hands of Tenants out of Court shall be good and where not Let us now look upon this Division and see in what case the Copy-hold or Copy-holder's Estate or Interest shall be said to be gone determined or extinguished and by what and whose Act it was or may be determined First It may be determined by the Act of the Lord himself 2. By the Act of the Copy-holder 3. By Acts of them both joyned together And lastly by the Act of the Law All which will evidently appear by the Judgments Resolutions and Precedents after ensuing Proofs The Lord by his Act cannot without Co. 2. part 17. in Lane'◠Case the concurrent Act of the Copy-holder himself determine the Estate and Interest which the Copy-holder hath in his Copy-hold And therefore the Severance of the Free-hold and Inheritance of the Land holden by Copy of Court-Roll being done by the Act of the Lord doth not determine the Copy-holder's Estate or extinguish the Copy-hold For although that the Estate of the Copy-holder be but an Estate at will viz. ad Co. 4. part 21. in Brown's Case voluntatem Domini secundùm Consuetudinem Manerii yet Custome hath so established the Estate of the Copy-holder that he is not removeable at the will of the Lord so long as he performs the Customes and Services If a Copy-holder will joyn with the Lord in a Deed of Feoffment of the Manor there by that Act of them both the Copy-hold is extinct as it was said by the Lord Anderson Chief Justice P. 24 Eliz. in Co. B. A Feme-sole was Lady of a Manor to Vid. Cro. 1. part 5 acc which were divers Copy-holders One of the Copy-holders did intermarry with the Seignioress of the Manor It was the opinion of the Justices That the Intermarriage was onely a Suspension of the Copy-hold and not an Extinguishment of it But afterwards they joyned in suffering a common Recovery of the Land and upon that their Act it was Resolved that the Copy-hold was extinguished Husband and Wife Copy-holders in H. 26 Eliz. in Co. B. Cro. 1. part Stockbridge's Case Fee to them and their Heirs The Husband for Money obtained an Estate of Free-hold to him and his Wife and the Heirs of their bodies It was Resolved in that Case That by the Acceptance of the new Estate the Copy-hold was determined If a Copy-holder doth surrender to M. 29 Eliz. in C. B. Godb. 101. him who hath a Lease for years of the Manor to the Use of the same Lessee by that Act of his the Copy-hold-estate is extinct The Lord of a Manor sold the Free-hold P. 30 Eliz. B. R. Leon. 1. part 102. Wakesield's Case of a Copy-hold unto another and so it was divided from the Manor and afterwards the Copy-holder did release to the Purchasor It was the opinion of the Justices That by this Release the Copy-hold was gone and extinct But in that Case it was said That if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor Nihil operatur by such Release A Copy-holder had common by Usage in the Wastes of the Lord as to his Messuage and Lands belonging The Copy-hold comes to the Lord who after grants the same to the Copy-holder cum pertinentiis In this Case it was holden That these words viz. cum pertinentiis could not create a new Common and the Common first holden was by Custome annexed to the Customary Estate and was absolutely extinguished If there be Lessee for life the Remainder M. 9 Jac. in C. B. adjudge acc for life of a Copy-hold and the first Tenant for life purchaseth the Free-hold of the Copy-hold and afterwards levieth a Fine thereof and five years pass It was adjudged That in that Case by the Fine levied the Copy-hold was not gone nor destroyed and that this Fine was not a Bar to him who was in Remainder in life of the Copy-hold There was Tenant for life of a Copy-hold P. 8 Jac. in Co. B. Moore and Rideval's Case The Lord granted the Reversion of the Copy-hold after the determination of the particular Estate to another for 20 years Afterwards the Copy-holder who was Tenant for life by Deed made a
the nature of a Copy-hold The other Case was this Land was M. 37 Eliz. in B. R. Eylett and Lane's Case Cro. 1. part demisable in Tail by Custome A Copy-holder demised the Land in Tail by Copy The Copy-holder suffered a Common Recovery in the Court of the Manor with Voucher and Warranty The Court at the first doubted of it because a Warranty could not be annexed to such an Estate in Tail But yet afterwards it was Resolved That the Recovery there was a Bar of the Tail And Note for a Conclusion of this Point That at this day by the Customes of several Manors Common Recoveries are had and suffered in the Courts of Lords of Manors for the docking and barring of Estate tails of Copy-holds And much inconvenience would ensue both if Copy-holds at this day might not by Custome be entailed and likewise if by Custome Common Recoveries had of Estate-tails with Voucher over in the Courts of Lords of Manors should not thereby be docked and barred SECT XIII What things are incident to a Copy-holder and what he may take of common right without the Grant or Licence of the Lord And what Acts upon the Land shall bind the Copy-holder what not IF a Copy-holder according to the Custome doth surrender into the hands of 2 Tenants to the Use of J S and his Heirs and afterwards the Copy-holder dieth before the Presentment be made of the Surrender by the Tenants and the Lord before the Presentment accepts of the Rent of J S generally but not as a Copy-holder the Heir of the Surrenderor may eâ—ter into and upon the Lands and receive the Profits thereof to his own use for that nothing vesteth in the Surrenderee before Admittance and the Inheritance of the Copy-hold is in the Heir quasi by Discent To have Common in the Wastes of Pasch 45 Eliz adjudge acc the Lord is not a thing incident to his Copy-hold but is by Prescription or Custome of the Manor If therefore a Copy-holder purchaseth the Inheritance of the Land the Interest of the Common being a thing intire is gone and determined But if the Copy-holder doth surrender part of his Copy-hold-lands to the Use of another who is admitted yet his whole Common is not thereby determined but he shall have Common still for the Lands not surrendred A Copy-holder may take House-bote 9 H. 4. â— Waste 59. Coke select Cases 68. Hedg-bote and Plough-bote upon his Copy-hold-lands of common right as a thing incident to the Grant if it be not restrained by a Custome that the Copy-holder shall not take it but by Assignment of the Lord or his Bailiff And if the Lord where the Tenant hath such Botes cuts down all the Woods and Under-woods which are standing and growing upon the Lands to prevent the Copy-holder of his Botes he may have an Action of Trespass against the Lord as it was Resolved in Heydon and Smith's Case Pasch 8 Jac. in Co. B. A Manor may be Copy-hold and holden M. 8 Jac. B. R. The King and Stafferton's Case Yelv. 190 191. of another Manor by Copy of Court-Roll and if such a Copy-hold-Manor be granted unto J S and his Heirs J S may hold a Copy-Court within his said Manor without a special Grant of it for that of common right a Court-Baron or a Copy-hold Court is incident to every Manor A Lord of a Manor grants a Copy-hold P. 26 Eliz. C. B. Chaw and Dover's Case Leon. 1. part 16. for â— Lives and afterwards takes a Wife The 3 Lives end 〈◊〉 determine The Lord enters into the Manor and keeps the Copy-hold-lands in his hands for a time and then grants the Lands over again by Copy and dieth The Wife of the Lord enters and clums Dower in it In this Case it was Resolved That the Copy-holder should hold the Lands discharged of the Dower because the Copy-holder comes and is in the Lands by the Custome which is paramount to the title of Dower A Copy-holder is feised of Lands at P. 5 Eliz. by Dyer Vâ—de Moore 50. Common Law and also of Lands holden by Copy of Court-Roll and he by Indenture without Licence of the Lord makes one Lease of both Lands rendring Rent It was said by Dyer That in such case the whole Rent is issuing out of the Lands at Common Law because the Lease as to the Copy-hold-lands was utterly void If the Lord grants to his Copy-holder P. 12 Eliz. in B. R. Moore 94. the Trees growing upon the Lands and which shall after grow with liberty to cut them down and carry them away he may justifie the cutting of the Trees which are growing and it shall not be a Forfeiture of his Copy-hold because the Lord hath by his Grant dispensed with it But he cannot cut down the Trees which shall there after grow as it was said by Plowden and Popham If a Copy-holder binds himself in a Pasc 12 Eliz. in B. R. adjudge acc Statute his Copy-hold-lands shall not be extended upon the said Statute because the Copy-holder in the eye of the Law hath an Estate but ad voluntatem Domini secundùm Consuetudinem Manerii But if a man be Tenant for life or years of a Manor and a Copy-hold comes to his hands by Forfeiture or other determination and he binds himself in a Statute although the Copy-hold be after granted yet it may be extended upon the Statute because the Copy-hold was annexed to the Free-hold and joyned with it in the hands of the Lord when the Statute was acknowledged and entred into The Custome of a Manor was That a Copy-holder might cut and lop Trees M. 5 Jac. Swayn and Beckett's Case Moore 812. for Hedg-bote and other necessaries The Queen made a Lease of the Manor to J S with Exception of Trees King James granted the Reversion to J D in Fee The Assignees of the Term granted a Copy-hold to other for 3 Lives Habendum to them successivé The Copy-holder cut Trees It was Resolved That the Copy-holder was in by the Custome paramount the Exception although he took his Estate after the Exception and therefore might justifie the cutting of the Trees for the Hedg-bâ—â—e and other necessaries The Husband seised in Fee of Copy-hold-lands 35 Eliz. Co. 4. part Bullock and Dibles's Case in the right of his Wife surrendred the same to another who was admitted and afterwards the Husband died It was Adjudged that in this case the Wife might enter and she should not be put to her Cui in vita If there be Lessee for life the Remainder M. 9 Jac. in Co. B. adiudge acc for life of a Copy-hold and the first Tenant for life doth purchase the Freehold of the Copy-hold and levies a Fine thereof and 5 years pass it was Adjudged That this Fine should bar him in the Remainder of his Copy-hold SECT XIV Where the Lord of the Manor shall be Chancellour in his own Court to determine the
entred in the name of the Daughters who disagreed to it It was Resolved That it was a Condition but not broken without demand of their Summs at their full ages and when they disagreed to the Entry the Entry of the youngest Brother was not lawfull A Copy-holder surrendred his Lands M. 13 Jac. B. R. Simpson and Sothern's Case Cro. 2. part into the hands of the Lord Habendum after his death to the Use of an Enfant en ventre sa Mier Resolved that a Surrender to an Enfant en ventre sa Mier was not good as an immediate Surrender for that it cannot begin at a day to come And whereas a Remainder was thereupon limited over it was holden to be void because it was to begin upon a Condition precedent Vid. the Condition which was never performed and therefore the Surrender into the hands of the Lord was void because he takes it but as an Instrument to convey it over SECT XVI Where Custome which warrants the Lord or his Copy-holder to grant greater Estates warrants the Grants of lesser Estates Proofs THE Custome of a Manor is That 36 Eliz. Co. 4. part Gravenor and Tedd's Case a Copy-hold-estate may be granted in Fee-simple In that Case it was adjudged That an Estate thereof granted to one and the Heirs of his body is good and within the Custome for Ubi licet quod est majus non debet quod est minus non licere The Custome of a Manor is That 39 Eliz. in B. R. Downs and Hopkins Case Copy-hold-estates may be granted for life or lives In such case a Grant is made to a Woman durante Viduitate suâ And it was adjudged good and within the Custome for that every Grant for life is durante Viduitate but every Grant durante Viduitate is not for life The Custome of a Manor out of mind H. 34 Eliz. B. R. Stanton and Barney's Case used was To grant certain Lands parcell of the said Manor in Fee-simple and never any Grant was made to any and the Heirs of his body for life or for years The Lord of the Manor did make a Grant by Copy to one for life the Remainder over to another and the Heirs of his body It was adjudged That the Grant and the Remainder over was good for the Lord having an Authority by Custome and an Interest withall might grant any lesser Estate but otherwise it is where one hath but a bare Authority In Trespass the Issue was if the Lord P. 29 Eliz. C. B. Kempe and Carter's Case Leon. 1. part 56. of the Manor granted the Lands per Copiam Rotulorum Curiae Manerii secundùm Consuetudinem Manerii praedict It was given in Evidence that the Lord of late at his Court granted the Lands per Copiam Curiae where it was never granted by Copy before In that case the Jury are bound to find quòd Dominus non concessit as it was holden by the Court. For although de facto Dominus concessit per Copiam Rotulorum Curiae yet non concessit secundùm Consuetudinem Manerii praedict But in that Case it was holden If Customary Lands had been grantable in Fee if the same Land escheat to the Lord and he grant the same to another for life it is a good Grant and warranted by the Custome for the Custome which enables him to grant in Fee shall enable him to grant for life If a Copy-hold-estate fall into the M. 15 16 Eliz. in Co. B. adjudge acc hands of the Lord by Escheat Forfeiture or the like and the Lord make a Lease thereof for years or life by Deed or without Deed or if he make a Feoffment of it upon Condition or if the Copy-hold so escheated c. be extended upon a Statute or a Recognizance or the same Land be assigned to the Wife of the Lord in Dower In all these cases the Land can never be granted again by Copy because after such Disposition thereof it was not demiseable But if the Interruptions were not lawfull but tortious as if the Lord be disseised or if the Land be recovered against the Lord by a false Verdict or by an erroneous Judgment yet after the Land is re-continued and the Interruption which was wrongfull removed the Land is grantable again by the Lord by Copy SECT XVII Who shall be said such a Lord of a Manor as may grant Copy-hold-estates and how long such Estates shall continue and what persons shall be capable of Copy-hold-estates what not and what may be granted by Copy EVery one who hath a lawfull Estate Coke 1. part Instit 58. or Interest in the Manor be it Fee Fee-tail Dower Tenantry by the curtesie of England Tenantry for life or years Guardian Tenant by Statute-Merchant or Elegit are sufficient Lords and persons to grant Copy-hold-estates to others And in some special case Estates in Copy-hold-lands may be granted by such a one who hath no Estate or Interest in the Manor Proofs A Guardian in Socage held a Copy-Court Tr. 1 Jac. B. R. Soapland and Ridler's Case Owen 115. in his own name and granted Copies in Reversion Adjudged he was Dominus pro tempore and had an Interest in the Lands for he might make a Lease thereof in his own name and therefore he might both grant Copies and also admit Copy-holders to Estates before granted But the Bailiff of a Manor hath no Interest in the Manor and therefore he cannot grant Copies of the Land holden of the Manor The Custome of a Manor was That P. 41 Eliz. B. R. Ga◠and Kay's Case Cro. 1. part Dominus pro tempore might make a Demise for 2 or 3 Lives in Possession or Reversion A Woman Tenant in Dower for life of the Manor granted a Copy-hold to J S and 2 others for their Lives Habendum post mortem of A B and died A B died It was holden by the Court in this Case That the Grant was good in Reversion although it was not executed in the life of the Tenant in Dower And Vide That the Lord of a Manor for life or any other particular Estate having Interest in the Manor might grant Copies in Reversion of Lands which are holden by Copy of Court-Roll although the Grants were not executed in the life of the Grantors as it was adjudged in Sir H. 14 Eliz. the Earl of Oxford's Case Moore 95. Peter Carew's Case Quere for Hil. 14 Eliz. in the Earl of Oxford's Case in Moore 95. it is not good unless it come in Possession during the life of the Grantor Note It was holden by the Justices P. 15 Car. C. B. Godb. 6. acc P. 15 Jac. in Co. B. That there ought to be a Custome to enable the Lord of the Manor to make a Grant of a Copy-hold in Reversion Generally Things which lie not in Tenure as Advowsons in grosse Commons in grosse or the like incorporate Inheritances out of which a Rent cannot be
his Plea shall be good and it shall be found against the Lord because he is particeps criminis to the Admittance because it shall be intended that the Lord would not suffer the Steward to admit him to the Copy-hold A Copy-hold was seized by the Lord Tr. 3 Jac. B. R. Joyner and Lamberâ—'s Case Cro. 2. part 36. of the Manor and he granted it to another in Fee who died and his Heir was admitted then the first Copy-holder died and his Heir entred and surrendred unto a Stranger in Fee It was Resolved in that Case That the Entry of the Heir was lawfull though he was not admitted to the Copy-hold-estate and the Discent of the Land to the Heir of the Grantee of the Lord should not bind him And farther it was Resolved in that Case That the Heir of the Copy-holder being in the Land his Surrender of the Land unto a Stranger was good before his Admittance SECT VI. Where the Lord is but an Instrument to convey the Copy-hold by Admittance onely and that the Surrenderee is in by the Copy-holder and not by the Lord. ALthough generally as before is said Vide Plow Com. 421. in Hare and Bickley's Case a Copy-holder cannot enter and have Seisin of the Land without the Admittance of the Lord no more then a Parson or Prebend can have Seism or be full Incumbent till the Arch-deacon hath inducted him or the Dean and Chapter enstalled him yet the Lord is but an Instrument used for the settling of the Copy-holder in his Copy-hold and to transfer the Land secundum formam effectum Sursumredditionis and the Estate Right and Interest in the Copy-hold doth not pass as from the Lord but upon the Admittance made by the Lord the Copy-holder is in by him who made the Surrender and by the Custome and seised of the Copy-hold secundùm Consuetudinem Manerii c. Proofs The Lord of a Manor demised Copy-hold M. 40 Eliz. B. R. Pay and Brown's Case Cro. 1. part of Inheritance to A upon Condition that he should pay to B 20 s. yearly during his Minority and 100 l. at his full age A paid not the 20 s. but surrendred the Land to the Use of P and his Heirs The Lord admits him B attains his full age and the 100 l. is not paid The Lord enters for the Condition broken and grants the Land by Copy to B. P enters upon him It was holden in this Case That his Entrie was lawfull for that he to whose Use the Surrender was made comes in by him who surrendred and not by the Lord. A Copy-holder in Fee surrendred his Lands into the hands of the Lord by the Tr. 15 Jac. B. R. Brook's Case Poph. 125. hands of Tenants according to the Custome without expressing to whose Use it should be At the next Court he was admitted Habendum to him and his Wife in tail It was objected That no Use being expressed the Surrender was void and the Admittance not good to pass an Estate to the Wife not being named in the Premisses but in the Habendum onely It was Resolved 1. The Surrender was good for it shall be intended that the Surrender generally made was to such Use as was specified in the Admittance and the Lord was onely as an Instrument put in trust to convey the Estate and make such Admittance as he who surrendred would have him to make 2. That the Wife should take by the Admittance though she was not named in the Premisses but in the Habendum onely If a Copy-holder surrendreth his Lands 33 Eliz. Co. 4. part Westwick's Case to the Use of J S the Lord hath but a Customary power to make the Admittance secundùm effectum formam Sursumredditionis And if in such case the Lord grants the Land to J S and a Stranger all shall enure to J S and nothing to the Stranger And if the Copy-holder doth surrender his Lands without a Condition if the Lord doth admit the Tenant upon a Condition the Condition is void for that after the Admittance the Surrenderee is in by him who made the Surrender and not by the Lord. A Copy-holder surrenders to the Use 28 Eliz. Co. 4. part Bunting's Case of another the Lord admits him to hold to him and his Heirs yet he shall have but an Estate for life for that after the Admittance he is in by him who made the Surrender and not by the Lord. The Custome of the Manor was That Coke 8. part in Swayne's Case a Copy-holder for life might take Timber to repair The King made a Lease of the Manor excepting Woods and Underwoods and Trees The Lessee for years of the Manor grants a Copy-hold upon which were Timber-trees to another for life who cuts Timber to repair It was Resolved That in this Case notwithstanding the Severance and Exception the Grantee should have the Trees for that the Estate of the Copy-holder who comes in by a voluntary Grant is in by the Custome and the Lord is but an Instrument to make the Grant When a Copy-holder surrenders to the Co. 4. part in Tavernor's Case Use of another and the Lord admits him now he who is admitted is in by him who makes the Surrender For in a Plaint in the nature of a Writ of Entry in the Per he shall be supposed to be in the Per by him who made the Surrender because the Lord is but an Instrument to make the Admittance and he who is admitted shall not be subject to any Charges or Incumbrances of the Lord for the Lord hath but a Customary power to make the Admittance secundùm effectum sursumredditionis as before is said A Copy-holder surrenders to the Use M. 37 Eliz. Cro. 1. part Berry and Green's Case of J S the Lord refuseth to admit him he cannot enter unless there be an especial Custome to warrant it but if there be then he may enter SECT VII Where the Admittance of the particular Tenant shall be the Admittance of him in the Remainder Proofs A Copy-holder in Fee by Licence made a Lease for years the Lessee enters M. 24 Eliz. Co. 4. part Browne's Case the Copy-holder having Issue a Son and a Daughter by one Woman and a Son by another died the eldest Son died before Admittance In this Case it was Resolved amongst other things That the Admittance of Tenant for life is the Admittance of him in the Remainder but not to bar the Lord of his Fine which he ought to have by the Custome The Father a Copy-holder in Fee P. 36 Eliz. B. R. Coke 4. part Fitch and Huckley's Case made a Surrender to the Use of himself for life and after to the Use of his Son for life and after to the Use of his last Will. The Father was admitted and died The Lord pretending a Forfeiture entred and granted the Copy-hold to a Stranger Resolved That the Admittance of the Tenant for life was the Admittance
Lease for life of his Copy-hold and made Livery which was a Forfeiture of his Copy-hold-estate It was the opinion of the Justices in that Case That this Act of the Tenant for life was not a Determination or an Extinguishment of the Copy-hold For although it was a Determination of the particular Estate of the Copy-holder and that he in the Remainder might enter yet the Land remained Copy-hold as it was before The Custome of a Manor is That if 3 Jac. in B. R. Lashmor and Averiâ—'s Case Cro. 2. part a Copy-holder in Fee dieth seiâ—ed his Wife shall hold the Land during her life as Free-Bench The Lord enfeoffeth the Copy-holder of the Land It was adjudged That she should not hold the Land for her life as Free-Bench but it was gone by the Purchase Contrary if the Lord had infeoffed a Stranger of the Land C purchased a Copy-hold from A Vid. 30 H. 8. Dyer acc Lord of the Manor to him and his Wife and their Child for their lives Afterwards A by Indenture granted the Freehold to B for life rendring Rent and made Livery And afterwards A levied a Fine sur Conusans de droit c. to C of the same Lands who afterwards accepted of the Rent from B. It was holden in that Case That by the Acceptance of the Rent from B the Copy-hold of C was destroyed and determined Note If a Copy-holder takes a Lease M. 15 16 Eliz. in Co. B. for years of his Copy-hold-lands the Copy-hold is determined and so it is if the Lord leaseth a Copy-hold for years which is escheated the Copy-hold is determined But if a Copy-holder purchaseth the Manor the Copy-hold is not determined but suspended because there is no Interruption but it is able to be granted again because by the Custome it sufficeth that it hath been demised and demisable SECT IX Of Forfeitures of Copy-holds and Copy-hold-estates and what Acts or things done by the Copy-holder shall amount unto or be adjudged a Forfeiture of the Copy-holder's Estate what not THE general Grounds of Forfeitures of Copy-holds or of their Estates are declared in the former part of this Treatise unto which I shall refer you That which I shall now say is but by way of Amplification of those Grounds with some Judgments and Authorities in several Cases upon sundry differences All Forfeitures may be reduced unto these Heads Either voluntary Acts done to the prejudice of the Lord or negligent or wilfull refusall to doe and pay his Duties and Services to the Lord which by the Laws and Customes of the Manor he ought to doe and perform Proofs A Copy-holder makes a Lease either Coke 4. part Murrel's Case for life or years of his Copy-hold-lands which is not warranted by the Custome of the Manor now although such Lease shall be a good Lease as betwixt the Copy-holder and his Lessee and he shall not avoid his own Lease yet as unto the Lord it is a Forfeiture of the Copy-hold and of his Estate and the Lord shall take advantage of such Forfeiture and may enter upon the Lands leased So if a Copy-holder makes a Lease of H. 37 Eliz. East and Harding's Case his Copy-hold for 3 years by word to begin at Michaelmas or at a day to come although it is a good Lease as betwixt the parties to it yet it is a Forfeiture of the Copy-hold to the Lord and so it was holden Hil. 37 Eliz. in East and Harding's Case A Copy-holder of a Manor made a P. 10 Jac. in Co. B. the Lady Mountague's Case Cro. 2. part acc Lease of his Free-hold-lands for 10 years and to avoid a Forfeiture made a Lease of his Copy-hold-lands for one year but covenanted with his Lessee that he should enjoy the Copy-hold-lands de anno in annum during the 10 years It was the opinion of the Justices in this Case That because this Demise of the Copy-holder was but for one year and so warranted both by Law and Custome and it was but onely a Covenant on the part of the Lessee that he should hold it for a longer time that this was no Forfeiture although the Lord pretended the same to be a Forfeiture The Lord licensed his Copy-holder to M. 27 Eliz. in Co. B. by Anderson Moore 184. make a Lease of his Copy-hold-lands for 21 years to begin at Michaelmas following The Copy-holder by Indenture made a Lease accordingly but afterwards before Michaelmas he made another Lease by Indenture to another person to begin at Michaelmas following It was the opinion of the Lord Anderson Chief Justice Mich. 27 Eliz. in Co. B. That the making of this second Lease being without the Licence of the Lord was a Forfeiture of his Copy-hold A Copy-holder for life hath Licence M. 15 Jac. in B. R. Worlidge and Banburie's Case Cro. 2. part of the Lord to make a Lease for 3 years if he so long live and he makes a Lease for 3 years without such Limitation It was holden to be no Forfeiture of his Estate in the Copy-hold because the Law makes such a Limitation to the Estate which he makes that it shall continue but during his life But if he had been a Copy-holder in Fee it had been a Forfeiture of his Estate to have made such an absolute Lease because he had done more then he was licensed to doe by the Law And so it was adjudged in Hall and Arrowsmith's Case which see in Popham's Reports 185. If a Copy-holder without Licence of M. 8 Jac. in B R. Ward 's Case the Lord doth erect a new House upon his Copy-hold-lands some opinion hath been That the same is a Forfeiture of his Estate But I doubt much of that Case because the Act done is for the benefit and advantage of the Lord and not to his Prejudice Quere of it SECT X. Where deniall or refusall to pay his Rent Fine or to doe his other Customes and Services shall be a Forfeiture of his Copy-hold and Copy-hold-estate and where not Proofs A Copy-holder in Fee was seised of H. 33 Eliz. Crispe and Fryer's Case in Moore Land rendring Rent at Michaelmas and our Lady-day The Lord at the last instant of the day of payment demanded the Rent upon the Land and the Copy-holder was not there nor any for him to pay it It was a Question if his Non-payment of the Rent was a Forfeiture of his Copy-hold or not And the better opinion of the Court seemed to be That it was a Forfeiture because the Copy-holder was to take peremptory notice of the day of payment of his Rent and his not being there seemed to imply that it was a voluntary Denial or Refusal at the least of doing the same But Quere of it for it was Resolved in another Case Tr. 21 Jac. in C. B. That Tr. 21 Jac. in Co. B. not payment of Rent or of the Fine upon Admittance to his Copy-hold was no Forfeiture of his
Differences which arise betwixt Copy-holders A Copy-holder doth surrender his Copy-hold-lands H. 25 Eliz. in B. R. Leon 1. part 2. to A to hold the Lands till he hath levied the summe of 100 l. upon trust that afterwards he shall surrender to the Use of B A levies the money and being required to make the surrender to B he refuseth to doe it whereupon B exhibits his Bill to the Lord in the Court of the Manor The Lord there makes a Decree that A make the Surrender to B which he again refuseth to doe and thereupon the Lord seizeth the Lands and afterwards admits B to the same It was the opinion of the whole Court in this Case That both the Seizure of the Lord and his Admittance of B were lawfull because the Lord in such Cases of Equity to execute Trusts is Chancellour in his own Court If a false Judgment be given in a Vid. 14 H. 4. 34. Court-Baron by the Steward against a Copy-holder the Copy-holder in such case shall not have either a Writ of Errour or a Writ of False Judgment but he may sue in the Court of the Lord by Bill to be relieved against such Judgment and the Lord as Chancellour may give him Relief therein and shall restore the Land to the party upon the false Judgment given by the Steward and Restitution made to the Copy-holder SECT XV. Of Surrenders upon Conditions and where such Surrenders shall be good where not Proofs A Copy-holder in Fee surrendred out P. 31 Eliz. Co. 4. part Kite and Queinton's Case of Court his Copy-hold-lands to the Use of another and his Heirs upon Condition At the next Court the Surrender was presented but in the Presentment the Condition was omitted He to whose Use the Surrender was made being dead the Lord admitted his Heir It was Resolved in this Case That the Presentment of the Surrender was void because it was not made in such manner as the Surrender was made But if the Conditional Surrender had been presented it had beed good although it was not entred into the Court-Roll A Copy-holder surrendred his Copy-hold Tr. 2 Jac. B. R. Cro. 2. part Hall Shardbrook's Case upon Condition and afterwards by Deed he released the Condition Resolved it was good without a Surrender for that a Condition or a Right cannot properly be said to be determined by a Surrender but it may be by a Release The Case was Grandfather Father M. 15 E. 3. 13. and Son The Grandfather died The Father assigned Dower to the Grandmother being his Mother who surrendred it back to the Father paying 10 l. per annum The Father died his Wife brought Dower against the Son and recovered because the Father had the Fee and Freehold conjoyned in the life of the Grandmother by the Surrender It was Resolved in this Case That when the Wife of the Father doth recover Dower she shall pay to the Grandmother so much Rent as doth belong to her proportion in Dower And in this Case it was holden That although the Estate of a man be Conditional and defeasible upon a bad Title yet the Wife shall not be ousted of her Dower untill the Conditional or defeasible Title be defeated And where Husband and Wife are Tenants for life and surrender to him in the Reversion the Wife of him in the Reversion shall be endowed and yet the Surrender is but Conditional for if the Wife of the Tenant for life overliveth her Husband the Surrender is defeasible à fortiori in case where it is not defeasible as in this Case And it was said in case of a Surrender of Copy-hold-land where it was Conditional the Wife is dowable of it if the Condition do not determine the Estate in the life-time of the Husband But a Feme is not dowable of Copy-hold but by Custome of the Manor H. 27 Eliz. Cro. 3. part 68. Bright and Hubbard's Case A Copy-holder devised his Lands to his Wife for life and that she should sell the Lands for the payment of his Debts and surrendred to the Use of his Will The Copy-holder died His Wife surrendred the Land upon Condition to pay 12 l. It was Adjudged It was a good Surrender upon the Condition and that it was a good Sale made by her The Father Copy-holder in Fee surrendred Tr. 33 Eliz. Cro. 1. part Symonds and Lawnâ—'s Case his Copy-hold-lands to the Use of his Son in Fee upon Condition to perform Covenants in an Indenture The Son after Admittance surrendred to J S upon Condition that if the Son pay 10 l. the Surrender to be void The Son neither pays the 10 l. nor performs the Covenants in the Indenture The Father enters Resolved That by the Entry of the Father both the Surrenders were avoided and there the Son might well enter after the death of his Father and the Surrender made by him to J S. If a Copy-holder doth surrender his 33 Eliz. Co. 4. part Westwick's Case Lands to the Use of J S and his Heirs absolutely and the Lord admits the Tenant upon Condition it is void for that after Admittance the Tenant is in by him who made the Surrender not by the Lord. The Custome was That a Copy-holder might out of Court surrender to the Tr. 28 Eliz. in B. R. Cro. 1. part 〈◊〉 dett's Case Use of a Stranger in Fee The Lord of the Manor made J his Steward ad exequendum per se or his sufficient Deputy who made A his Deputy pro hac vice to take a Surrender of Husband and Wife the Remainder in Fee The Deputation was farther viz. Et ulteriùs faciendum quantum in me est A took a Surrender of the Husband and Wife upon Condition which Condition was afterwards peformed and executed Resolved in this Case That although the authority to take the Surrender was absolute and to be without a Condition yet when A took it upon a Condition to be performed it was a good Surrender made to him by reason of the words in the Deputation Et ulteriùs faciendum c. A Woman Copy-holder durante Viduitate P. 39 Eliz. B. R. Oland and Barwick's Case Cro. 1. part acc sowed the Land and before Severance of the Corn she took Husband Resolved That although the Estate of the Wife was incertain and determined by the Limitation and not by any Condition either in Fact or in Law that the Lord should have the Corn sowed upon the Lands A Copy-holder in Fee of Lands discendable in Borough-English had 3 Sons H. 2 Jac. B. R. Cro. 2. part Curâ—ies and Wolverston's Case and surrendred to the Use of his Will and thereby devised his Lands to his middle Son in Fee upon Condition to pay to his 4 Daughters to every of them 20 l. at their full age The eldest Son had Issue 2 Daughters and died The middle Son is admitted and doth not pay the Daughters their Summs at their full ages The youngest Son
for the reason aforesaid Having thus shewed what will be a good Surrender of Copy-hold or Customary Lands by an actual Surrender in the Court of the Lord of the Manor I shall now consider SECT II. Whether a Copy-hold may be said to be surrendred by any Act Words or Agreement made betwixt the Lord and the Copy-holder or by the Copy-holder with a Stranger made in the Court in the Presence of the Lord or his Steward I Do conceive generally that no Act or Words of the Copy-holder can Vid. Leon. 1. part 172. Penruddock and Newman's Case pass his Copy-hold in such a manner as that the same shall be accompted to amount to a good Surrender of the same But yet it rests upon a Difference Proofs If a Copy-holder bargains and sells his Copy-hold by Deed of Bargain and Sale enrolled though it be to the Lord of the Manor himself it is void and shall not amount to a Surrender If Tenant for life of Lands at the Common Law agrees with his Lessor or him in the Reversion that he shall have his Interest in the Land for the Rent of 20 s. per annum this Agreement will not amount to a Surrender of his Land by the Common Law A fortiori If a Copy-holder or other Customary Tenant shall say to his Lord or other person in the Court of the Manor I agree to surrender my Lands these words will not be a present or an express Surrender nor will they amount to so much as a Relinquishing of his Estate for in truth it is not any thing in present but an Act to be done in futuro Like unto the Case put by Wray Tr. 31 Eliz. in B. R. Sweeper and Randall's Case Leon. 1 part 178. Chief Justice A seised of the Manor of D demiseth the same Manor at will that it is no Lease No more in the other Case shall it be a Surrender or a Relinquishing of his Copy-hold or Copy-hold-estate But yet notwithstanding it will be agreed that in some cases an express and particular Agreement made by a Copy-holder with the Lord of the Manor for or concerning his Copy-hold-lands will amount to a Surrender of the same The Case was That the Lord of a Manor pretending that a Copy-holder had forfeited his Copy-hold-lands entred M. 32 Eliz. in Ceâ— B. Collam and Sir Hugh Portman's Case Leon. 1 part 191. into a Communication with the Copy-holder concerning the same Upon the Communication thereof had betwixt them it was agreed that the Copy-holder should pay unto the Lord the summe of 10 l which he paid accordingly and that in consideration thereof the Copy-holder should have Election whether he would have the Land assured unto him by Copy or by Bill for the life of him and his Wife or durante viduit ate of the Wife who made his Election to have the Land by Bill It was the opinion of the Justices in that Case That this Agreement was a good Surrender of the Lands and a good Estate thereupon vested in the Wife for her life A Copy-holder in Fee came into the M. 13 Jat B. R. Betfield and Adams Case Court of the Lord of the Manor and took a new Estate of his Copy-hold-lands from the Lord to himself for life and afterwards to his Wife for life and after to his Son for life It was a Question whether this Act of the Copy-holder was the giving up and the relinquishing of his Estate of Inheritance in his Copy-hold and did amount to a Surrender of his old Estate therein It was agreed in this Case That if a Copy-holder Vid. 29 Eliz. Co. 2. part Lanc's Case of Inheritance takes a Lease by Indenture for years of the Lord of his Copy-hold that by that Act of his his Inheritance in his Copy-hold is gone and determined But it seemed to be the better opinion of the Court That although that this taking of a new Estate shall imply a Surrender and be accounted as to some purpose to amount to a Surrender yet in the judgment of Law it shall be but as a Surrender to his Use for life and after to his Wife and Son for their several lives and that still the Inheritance of the Copy-hold remains in him But Quere this Case For that H. 36 Eliz. in Co. B. Rot. 2640. in Adams and Shepheard's Case it seemeth to be adjudged to the contrary A Copy-holder said to his Lord that Vid. Colman and Bedilâ—'s Case Anderson's Reports 199. acc he would not hold his Land longer by Copy but by a Bill under the Lord's hand for his life who made him such a Bill which the Copy-holder accepted of It was agreed by the Justices in that Case That thereby his Copy-hold was determined SECT III. Of Surrenders out of Court and where Surrenders to the Steward Deputy-steward or into the hands of Tenants of the Manor out of Court shall be good where not BY the general Custome of the Realm a Copy-holder may surrender his Lands in the Court of the Lord of the Manor or out of Court to the Lord by the hands of Tenants of the Manor But a Surrender out of Court to the Lord or by the hands of Tenants of the Manor or of the Bailiff or Reeve is not good without a special Custome The Lord hath such an absolute Interest in his Manor that he may hold a Court within his Manor at what time he pleaseth But he is not compellable by his Copy-holder to hold or call a Court to accept of a Surrender But if he doth accept of such a Surrender of his Copy-holder out of Court the same is good whether it be to his own Use or to the Use of other persons And as the Lord may himself accept of a Surrender out of Court so likewise may the Lord himself grant new Copies of the Lands out of Court and such Grants shall be good But the Lord himself cannot hold his own Court for any of the purposes aforesaid But the Lord himself may give authority unto others to take Surrenders to the Use of others out of Court and so may his Steward or Under-steward give Conditions to others to take the like Surrenders out of Court to others Uses which Conditions shall be in the nature of a Dedimus potestatem And so it was Resolved in a Case out of Ireland referred to the Judges of England to certifie their opinions therein where the Case was The Steward of the Court of a Manor in Ireland being in England sent a Writ in the nature of a Dedimus potestatem to one who was in Ireland to take a Surrender there of Copy-hold-lands and the opinion of the Judges here to whom the Case was referred to advise and certifie their opinions was That such a Surrender taken by Dedimus was good enough But note that in such case it must be intended that such giving power to take a Surrender if it be to be done it must be alledged to be done
Custome yet because the said Surrender into the hands of Tenants was but an Inchoation of the Case to whose Use the Surrender was made which had no farther perfection or prosecution but became void by the performance of the Condition the first of the two last Surrenders presented viz. the Surrender to the Use of J D and his Heirs stood good and the last Surrender to the Use of J N and his Heirs took no effect A Copy-holder in Fee made a Letter Coke 9. part Comb's Case of Attorney to two Tenants of the Manor to surrender his Copy-hold out of Court unto the Use of J S and his Heirs They surrendred the same accordingly and at the next Court brought in the Surrender into Court but no Custome was found to warrant such a Surrender Notwithstanding in that Case it was Resolved 1. That it was a good Surrender because he might doe it de communi jure without alledging any Custome 2. When the Tenants shewed the same in Court and the Authority which was given to make the Surrender all which they had done was Resolved to be good and legally done SECT IV. Where although Surrenders are made to the Lord or to Tenants out of Court by Custome yet nothing passeth out of the Copy-holder before Admittance And what shall be a good Admittance in such case what not ADmittance is the life and perfection of the Copy-holder's Estate and before Admittance the Tenant is not a perfect Copy-holder Proofs The Custome of a Manor was That a M. 23 Car. B. R. Baker and Denham's Case Copy-holder might surrender his Copy-hold out of Court to the Use of another the party to whose Use it was to be admitted at the next Court Such a Surrender was made but before the next Court Cestuy que use died and so was not admitted It was Resolved in this Case That he was not a Copy-holder within the Custome for by the Surrender before Admittance the Surrenderee hath no possesson and the Heir is in by Discent and holds by the Copy of his Ancestor and so the Cestuy que use is not a perfect nor compleat Copy-holder And it may be compared to the Case where a man makes a Feoffment in Fee of Lands and makes Livery within the View it is no perfect Livery till he doth enter into the Lands but the Feoffor may punish a Trespass there done in the interim for it is but inchoatum untill he enter And so it is in case of a Copy-holder the Surrender is but quasi inchoatum as before till he be admitted to the Copy-hold Vid. Froswell's Case before In 26 Eliz. the Question was Whether 26 Eliz. Galloway's Case vouched in Bulstr 3. part â—17 the Copy-holder might have an Action upon the Case against the Lord for not holding his Court and not admitting of him to whom a Surrender was made according to the Custome of the Manor It was Resolved in that Case That the Copy-holder himself might have the Action But in that Case it was Resolved That he to whom the Surrender was made untill Admittance by force of the Surrender had nothing it was onely an Act begun and not perfected and therefore in such case he could not maintain the Action of the Lord for not admitting of him A Surrender of a Copy-hold is like to the Induction into a Benefice before Induction there is no Possession so before Admittance there is no Possession A Copy-holder according to the Custome M. 12 Jac Robinson and Green's Case Bridgman 82 83. Bulstr 3. part 238. acc did surrender out of Court into the hands of Tenants to the Use of J S and his Heirs which Surrender was delivered into the Court by the said Tenants and there presented which was accepted of by the Steward of the Manor and an Entry made thereof in the Court-Roll and a Copy of the Surrender was delivered unto J S and in the Copy it was viz. Compertum est per Homagium that the Surrender was to J S and his Heirs It was the opinion of the Court in this Case That none of these colourable things did imply a perfect Admittance to the Copy-hold For 1. The Acceptance of the Presentment by the Steward from the Homage was no more then what he was bounden to doe as being Judge of the Court. 2. The Entry of it in the Roll was but an Office of Duty being but an Evidence for the Lord as also for him to whose Use the Surrender was and so was the delivery of the Copy to J S the Cestuy que use But none of these things did imply the Consent or Will of the Lord that the Cestuy â—ue use should be admitted or have the Lands according to the Surrender and all these things together do not imply any Admittance for all of them may be done though no Admittance be in the case Note It was Resolved in the Court of M. 6 Jac. in B. R. Wilson and Weddall's Case â—â—lv 144. King's Bench That if a Surrender be of a Copy-hold to J S it is of no effect untill he be admitted Tenant and if before Admittance J S doth surrender the Land unto another a Stranger who is admitted yet nothing passeth to the Stranger by this Admittance of the Stranger SECT V. Where some things and what things may be done by the Copy-holder or his Heir before Admittance Proofs 1. THE Heir of a Copy-holder may Co. 4. part Clark and Penyfather's Case enter and have an Action of Trespass before Admittance 2. A Possessio Fratris or Sororis may be of a Copy-hold before Admittance 3. A Discent shall not bind the Heir of a Copy-holder 4. He may surrender unto a Stranger before Admittance A Copy-holder in Fee had Issue two Vid. 12 Eliz. Dyer 291. Daughters by divers Women and died seised the Daughters entred and took the Profits many years and before Admittance the eldest Daughter died without Issue and afterwards the youngest Daughter was admitted to the whole Land as sole Heir to the Father In this Case it was holden That the possession of the eldest Daughter though before Admittance should make her Sister though of the half bloud inheritable to the Land If a Copy-holder in Fee by Licence 24 Eliz. in Co. B. Coke 4. part 23. Brown's Case acc maketh a Lease for years and the Lessee entreth the Copy-holder having a Son and a Daughter by one Woman and a Son by another the Land shall discend to the Daughter of the whole bloud although that the Son died and was not admitted to the Copy-hold as Heir to his Father And that that should be Possessio Fratris of a Copy-hold before Admittance If a Copy-holder doth surrender to a 40 Eliz. in B. R. Arnold and George's Case Yelv. 16. acc Stranger and the Steward will not admit him and the Stranger enters and holds the Land if the Lord bring Trespass against him before Admittance he may plead Not guilty and
and that the Son should not be admitted Tenant during the life of his Mother and farther the Custome was That if any Copy-holder committed Felony and it were presented by the Homage that the Lord might seize the Copy-hold as forfeit The Copy-holder died his Wife was admitted to her Free-Bench The Son committed Felony the Wife died The Question was if the Lord might seize the Copy-hold as forfeit It was objected He could not for that the Son was not Tenant at the time of the Forfeiture committed and so the Lord could not then seize and the Custome should be taken strictly But notwithstanding it was Resolved That the Lord should have the Land as forfeit and that the Son was a Copy-holder within the Intent of the Custome If Husband and Wife be Joynt-Copy-holders of the purchace of the Husband during the Coverture the Husband is attainted of Felony and dieth It is no Forfeiture of any part of the Copy-hold But if the Purchace be made before the Coverture then it is a Forfeiture of the moyety The King being Lord of a Manor a M. 5 Jac. in Scaceario Godb. 269. Copy-holder within the Manor made a Lease of his Copy-hold for 3 Lives and the surviving Tenant for life continued the possession of the Lands for 40 years Though the making of such a Lease for 3 Lives was in Law a Forfeiture of the Copy-hold yet because it did not appear upon the Endorsement of the Deed that Livery was made it was holden That the King could not take advantage of the Forfeiture If a Copy-holder doth bargain and sell his Copy-hold-lands by Deed indented and enrolled it was Resolved The same was no cause of Forfeiture of the Copy-hold of which the Lord can take advantage because the Copy-hold did not pass by the Deed and so it was said it was adjudged in London's Case So if a Copy-holder for life surrendreth to the Use of another in Fee and 35 Eliz. Bullock's Case besides that makes Livery of the Land this is no Forfeiture of his Copy-hold because the Estate passeth by the Surrender and not by the Livery If a Copy-holder for life cuts down Timber-trees it is a Forfeiture of his Copy-hold and so it was adjudged in Belfield and Adams Case But if a Copyholder makes a Lease for years and the Lessee cuts down Timber-trees or commits other Waste upon the Copy-hold-lands the Lord cannot enter upon the Land for a Forfeiture but in such case the Lord is put to his Action upon the Case against the Wrong-doer SECT XI Where the Act of the Lord and what Act of his shall dispense with a Forfeiture made by his Copy-holder where and what not Proofs A Copy-holder commits Waste and after Pasc 5 Jac. Cro. 2. part Mantlie and Willington's Case the Waste done the Lord accepts of the Rent from the hands of the Copy-holder Quere if it shall bar him to enter for the Forfeiture It is a Quere not Resolved If Lands be demisable to two by Copy P. 5 Eliz. Moore 49. for life successivè and the Custome of the Manor is that they may not cut Trees if the first of them cutteth down Trees it is a Forfeiture both of the Estate of the present Tenant for life and of the Estate of the other in Remainder over If a Copy-holder levies a Fine makes a Feoffment or suffers a common Recovery which destroys the Estate in such case no Acceptance of the Rent or Act done by the Lord shall be available to make the Estate again good But where the Custome of the Manor onely is broken as if the Copy-holder makes a Lease of his Copy-hold-lands for more years then one year or denies to pay his Rent or denies to be sworn of the Homage or commits Waste there his Estate may be afterwards confirmed and there and in such case the Acceptance of the Rent by the Lord will amount to a Confirmation of the first Estate In some cases where an Estate of a Copy-holder is forfeited by Law yet by Custome and the Act of the Lord in his Court of the Manor the Forfeiture may be mitigated and the Land shall not be utterly forfeited or destroyed As where the Custome is That for Waste Copy-hold shall be forfeited a Custome for to amerce the Tenant for the Waste done and to distrain for the Amercement will be a good Custome to mitigate the Forfeiture of the Copy-hold The Custome of the Manor where Copy-hold-tenements 17 Car. in B. R. Thorne and Tyler's Case were demisable for lives was That if any such Copy-holder suffered his Messuage to be ruined for want of Repairing or by committing of Waste if the same was presented by the Homage the Lord used to distrain the Cattel as well of the Copy-holder himself as of his under-Under-tenant levant and couchant upon the Lands for the said Amercement It was objected That the Custome was not good for that it was an unreasonable Custome that the Under-tenant should be punished for the offence of the Copy-holder for the Under-tenant is a Stranger to the Custome and Customes should be taken strictly But it was Resolved that the Custome was good For by the Law the suffering of the Copy-hold Messuage to fall to ruine or to be wasted was a Forfeiture of the Copy-hold and the Custome did abridge and mitigate the Forfeiture and the Under-tenant for a year was a Tenant to the Lord and distrainable for the Rents and Services and the Charge lies upon the Land and not upon the person and therefore it was Adjudged That the Custome was good and the Amercement lawfull and the Distress of the Cattel of the Under-tenant levant upon the Land was lawfull all of them being by the Act of the Lord in his Court and by the Custome of the Manor in mitigation of the Forfeiture of the Land and so for the good of the Copy-holder SECT XII Whether Copy-hold-lands be within the Statute of Westm 2. and may be entailed or not and where and by what Acts the Issues in tail may be barred and what shall be a Discontinuance of the Estate what not WHether Copy-hold-lands are within the Statute of West 2. cap. 1. de Donis c. or may be entailed hath been much controverted and many Judgments and Resolutions have been on both sides and it seemeth to be a Point not fully agreed upon at this day I shall therefore make some little mention what hath been said on either side and leave it to the judgement of others And first for the Affirmative part That Copy-holds are within the said Statute and may be entailed I shall begin with Mr. Littleton himself Tenant by Copy of Court-Roll is saith he where there is a Custome in a Manor time out of mind used that certain Tenants within the said Manor have used to have Lands and Tenements to them and their Heirs in Fee-simple or in Fee-tail and in that Chapter he particularly sets forth the manner of Grants of such Estates
c. I shall not deliver any absolute opinion upon the same although I do much incline to the Affirmative part being chiefly led thereunto by the opinion of Mr. Littleton and by the Resolution in Manxell's Case and of my Lord Coke in Heydon's Case and a late Resolution in the said Point 42 Eliz. in Erish and Rives Case where it was adjudged in the Court of Common Pleas upon an Evidence given in a Case of Copy-hold-lands within the Manor of Istleworth-Sion in the County of Middlesex where it was Resolved That no Estate-tail could be of a Copy-hold without a particular Custome to warrant the same but if there was such a particular Custome within the Manor to warrant such Estates then by the Custome co-operating with the Statute as before is expressed Copy-hold-lands might be well entailed within the said Statute Admitting then that by an especial Custome of the Manor Lands may be entailed the next matter to be considered of is By what and whose Acts the said Estate shall be either discontinued or barred and what shall amount to a Discontinuance or a Bar to the Issue in Tail of such Estate In 13 R. 2. sits Judgment 7. it is 13 R. 2. sits Judgment 7. said That the Heir who is inheritable to the Copy-lands by Custome may recover the same by Plaint in the Court of the Lord in the nature of an Assise of Mort-dauncestor but he shall not have an 15 H. 8. Tenant by Copy 24. Assise of Novel Disscisin And 15 H. 8. Tenant by Copy 24. The Heir of a Copy-holder Tenant in Tail shall recover the Lands in a Formedon in the Discender The Custome of a Manor was That Plaints in the Court of the Lord of the Manor have used to be in real Actions A Recovery was by Plaint in the nature of a real Action against a Copy-holder being Tenant in Tail and a Recovery thereupon had It was holden in that Case That the said Recovery shall be a Discontinuance to take away the Entry of the Heir in Tail because such Plaints are warranted by the Custome and it is an Incident which the Law annexeth to the Custome That a Recovery shall be a Discontinuance But vide Tr. 36 Eliz. in B. R. in Deal and 36 Eliz. B. R. Deal and Rigden's Case Moore 358. Rigden's Case If it had been a Surrender in Court it had been no Discontinuance In 27 Eliz. in a Case concerning the M. 9 Car. in Co. B. Hill and Vpchurche's Case Brownloe 121. Manor of Northhall in the County of Essex That if Copy-hold-lands might be entailed within the Statute of Westm 2. then a Custome of a Surrender of it should be a Bar or a Discontinuance of such Estate for as the Estate might be created by Custome so it might be discontinued by a Surrender by Custome And Tr. 38 Eliz. Field and Eliot's Case A Surrender by Tenant in Tail of a Copy-holder in Fee makes a Discontinuance of it But yet notwithstanding those Authorities and Cases I do conceive that a Surrender is no Discontinuance of a Copy-hold-estate in Tail If a man be seised of a Copy-hold in H. 30 Eliz. B. R. Right and Footeman's Case Leon. 1. part 95. the right of his Wife or be Tenant in Tail of a Copy-hold and he doth surrender to the Use of another in Fee It was holden in that Case That the same doth not make any Discontinuance of the Estate of the Wife or of the Estate-tail but that the Wife or the Issue in Tail may respectively enter into and upon the Land And according to this it was adjudged in Gravenor and Brook's Case before mentioned in 36 Eliz. Copy-hold-lands were entailed and 37 Eliz. in C. B. Lane and Hilâ—'s Case the Copy-holder surrendred the said Lands to the Use of another man in Tail with divers Remainders over and then he died It was said in this Case That it was no Discontinuance of the Tail but the Issue in Tail notwithstanding the Surrender might enter But it was said in that Case That if it were a Discontinuance that in such case a Formedon in the Reverter did not lie by the Tenant in Tail because when a Copy-holder makes a Gift in Tail he hath no Reversion but a Possibility and the Lord shall avow upon the Donee for the Rents and Services and not upon the Donor In Trespass it was adjudged That a H. 1 Jac. Oldcatâ—'s Case Moore 753. Surrender by Tenant in Tail of a Copy-hold was not any Discontinuance of it no more then a Surrender by Tenant for life to another in Fee was a Forfeiture If an Enfant Tenant in Tail surrendreth H. 35 Eliz. Goales and Gran's Case adjudge acc his Copy-hold-lands to the Use of a Stranger who is admitted the Enfant may enter at his full age because it was not a Bar nor a Discontinuance It is not to be disputed or questioned whether a Common Recovery of Lands at the Common Law with Voucher over and Warranty be a Bar of Lands entailed It is universally received by all Learned in the Laws of the Realm to be a Bar of such an Estate and the Inheritances of a great many persons of Quality and others do depend upon such Common Recoveries had and suffered But then the Question hath been whether a Common Recovery had and suffered in the Court of the Lord of the Manor shall be a Bar of an Estate of Copy-hold-lands entailed and for that it will stand upon this difference Where the Custome of the Manor hath always been that such a Recovery there had shall be a Bar where not For without a special Custome I do conceive that by a Recovery had and suffered in the Court of the Lord of the Manor an Estate-tail of Copy-hold-lands cannot be barred But where such a Custome is or hath been out of mind used there I conceive that a common Recovery had and suffered in the Court of the Manor will bar an Estate in Tail of Copy-hold-lands I shall onely put you two Judgments and Resolutions to make good this difference although many others may be alledged Upon a special Verdict in an Action P. 37 Eliz. in B. R. Clun and Pease's Case Cro. 1. part of Trespass it was found That the Lands were Copy-hold demisable in Tail with the Remainder over in Tail That Tenant in Tail in possession suffered a Common Recovery with Voucher in the Court of the Manor of these Lands and afterwards died But there was not any Custome found for suffering Recovery of such Lands in the Court of the said Manor It was holden by the whole Court in that Case That the Recovery should not bind the Tail but upon a Recompence in value and in that case the Issue could not have Land in value Also the Lord should lose his Fine and the party to whose Use the Recovery was had should hold the Lands without Admittance or Grant from the Lord which is contrary to
Custodie of his Body It was the opinion of the Justices That the Action did not lie But it was agreed in that Case That an Ejectione firme lieth upon a Demise of Copy-hold-lands by Lease for years by the Copy-holder himself but not upon a Demise by the Lord of the Copy-hold Note It was Resolved by the Justices Coke 4. part 26. in Melwichâ—'s Case M. 8 Jac. in Câ— B. Craneford and Freshwater's Case acc That the Lessee of a Copy-holder for a year may maintain an Ejectione firme for inasmuch as his Term is warranted by the Law by force of the general Custome of the Realm it is but reason that H. 39 Eliz. Cro. 1. part Goodwin and Langhurst's Case acc if he be ejected he should have an Ejectione firme for it is a speedy Course for a Copy-holder to gain the possession of the Land against a Stranger being no more then what right requires to be yielded him for the Recovery of his Estate SECT XXI What Statutes and Acts of Parliament do extend to Copy-holds and Copy-hold-estates what not SOme things concerning this Division being spoken of in the former part of this Treatise and some particular Statutes there being mentioned within which Copy-holds are included and in what not I shall refer the Reader thereunto adding onely a few Cases upon some particular Acts not therein mentioned with the Authorities and Resolutions of the Justices therein And as concerning within what Statutes Copy-holds are I shall take and relie upon the general Rule Coke 3. part Heydon's Case which is put in Sir Edward Coke's 3. part of his Reports in Heydon's Case viz. When a Statute or Act of Parliament doth alter the Service Tenure Interest of the Estate or other thing in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenant there the general words of such Statute or Act of Parliament do not extend to Copy-holds or Copy-hold-estates But when the Statute or Act of Parliament is generally made for the good of the Commonweal and no prejudice can come thereby by alteration of any Service Tenure or Interest or Custome used within the Manor there Copy-holds and Copy-hold-estates are within the purview of such Statutes or Acts. Proofs It was Resolved by all the Justices 6 Jac. in Co. B. Coke Select Cases 27 28. That no Tenure shall pay for a reasonable Aid to make the eldest Son Knight or to marry the eldest Daughter but Tenure by Knight's-Service or Tenure in Littl. 16. sect 36. Socage Now Littleton saith that all Tenures are either Knight's-Service or Socage And the Statute of Westm 1. cap. 36. of reasonable Aid extends onely to such Tenures The Question then is Whether a Copy-hold-Tenure be within that Statute I shall not determine the Question for that I do not find it moved in any Book of the Common Law But although I humbly conceive Copy-holds be within the general words of Mr. Littleton all Tenures in Socage yet that the said Statute of Westm 1. cap. 36. doth not extend to Copy-holds Quere of it The Statute of Westm 2. de Donis conditionalibus Statute Westm 2. de Donis I conceive doth not extend to Copy-holds within the general words thereof The words of the Statute are of Gifts per Chartam datis and Copy-holds do not pass by Deeds but by Surrenders But yet it is conceived that although they be not within the general Words of the Statute yet they are within the Equity of the said Statute if there be a Custome to warrant such Estates The Case was A Copy-holder in Fee H. 37 Eliz. in Co. B. Church and Wyatt's Case Moore 637. surrendred his Copy-hold-lands to the Life of his Will and having a Daughter born and his Wife with Child he devised part of his said Lands to his Son or Daughter which his Wife went with Haeredibus suis legitimè procreatis and the residue thereof he devised to his Daughter born to have to her and the fruit of her body One Point in this Case was What Estate the Daughter born had in the said Copy-hold-lands if in Tail or not It was said It was a Fee-tail in the Daughter born But it was much doubted if it was an Estate within the said Statute de Donis c. But in that Case it was agreed That Copy-hold might be entailed by Custome co-operating with the said Statute and if not within the words yet within the Equity of the said Statute The Statute of Praerogativa Regis cap. Stat. Praerogat Regis cap. 9 10. Co. 8. part 170. in Towerson's Case Co. 4. part 127. in Beverly's Case 9 and 10. gives the Lands of Idiots natural to the King he finding them convenient Maintenance out of the Profits thereof But if the Idiot hath Copy-hold-lands discended unto him the King shall not have the Wardship of those Lands therewith out of the Profits thereof to maintain the Idiot because the same would be prejudicial to the Lord of the Manor of whom the Lands are holden by Copy But yet all Alienations made by an Idiot of his Copy-hold-lands after Office found shall be avoided by the King Copy-hold-lands are not within the Stat. West 2. cap. 20. Statute of Westm 2. cap. 20. of Executions For if a Judgment be had in a Court of Record against a Copy-holder for Debt and Dammages although the Plaintiff may have Execution by Fieri facias against his Goods or a Capias against his Body yet he cannot have Execution of the moyetie of his Copy-hold-lands by Elegit for that Copy-hold-lands are not within that Statute And so it is if a Statute-Merchant or Staple be acknowledged by a Copy-holder for the payment of Money at a day certain which is not payed his Copy-hold-lands are not extendable for the same And the reason of these Cases is because no person can come to Copy-holds but by Admittance of the Lord and the Lord should thereby lose his Fine which is due upon Admittance if the party might have the Lands upon Extent delivered unto him If Tenant by the Curtesie or Lessee Pasc 12 Eliz in Co. B. Moore 94. for years be of a Manor and Copy-holds were in his hands by Forfeiture or other determination and he bindeth himself in a Statute and afterwards he deviseth the Copy-hold again the Copy-hold shall be liable to the Statute But if a Copy-holder bindeth himself in a Statute-Merchant or Staple his Copy-hold-lands shall not be extended upon the said Statute because therein he hath but an Estate at will Copy-hold-lands are not within the Statute Stat. 31 H. 8. cap. 13. of 31 H. 8. cap. 13. of Monasteries The Guardians of the Colledge of Otlery Lords of a Manor granted M. 25 26 Eliz. in the Exchequer Leon. 1. part 4. Lands for 3 Lives by Copy according to the Custome of the Manor afterwards in 30 H. 8. they leased the Lands to J S rendring
the accustomed Rent and afterwards surrendred their Colledge to King Hen. 8. And if the Lease being within one year of the Surrender was within the Statute or not was the Question The Case is not adjudg'd but a Quere made of it But in that Case it was adjudged That if there be Lord of a Copy-holder for life and the Lord grants a Rent-charge out of his Manor of which the Copy-hold is parcell and then the Copy-holder doth surrender to the Use of another who is admitted he shall not hold the Lands charged but if he dieth so as his Estate is determined and the Lord grants the Land to another de novo to hold by Copy the new Tenant shall hold the Land charged Copy-hold-lands not within the Statute of 32 H. 8. of Rents The Lord of a Manor of which Tr. 27 Eliz. in B. R. Rot. 1201. Sands and Hempstrie's Case Leon. 2. part 109. there were Copy-holds granted a Rent-charge for life and afterwards made a Feoffment of the Manor to J S and his Heirs who granted a Copy-hold for life J S died and the Rent was behind and the Grantee of the Rent distrained for the Arrerages It was Resolved in that Case That the possession of the Copy-holder was not chargeable to the Distress for that the Copy-holder was not in by him who immediately ought to pay the Rent but in the possession of the Land by the Custome But Quere Hil. 18 Eliz. in Co. B. the Earl of Westmorland's Case Leon. 3. part 59. that Case and vide Hill 18 Eliz. in Co. B. the Earl of Westmorland's Case For there the Case was That the Demesnes of a Manor were usually let for lives by Copy and the Lord granted a Rent-charge to J D pro Consilio impendendo for life and afterwards conveyed the Manor to J N in Tail The Rent was behind and the Grantee of the Rent died and the Executors of the Grantee distrained for the Arrerages And there it was adjudged That the Copy-holder should hold the Lands charged Copy-hold-lands not within the Statute of 32 H. 8. of Conditions A Copy-holder by Licence made a Lease by Indenture for 21 years rendring Rent The Lessee covenanted to lay upon the Lands yearly 40 Loads of Dung Afterwards the Copy-holder surrendred his Lands unto another in Fee M. 20 Jac. in C. B. Plott and Plomer's Case Cro. 1. part 17. who was admitted The Point was If he was such an Assignee as might have Covenant within the Statute of 32 H. 8. Quere for the Case was not Resolved A Copy-holder by Licence of the Lord Tr. 10 Jac. in B. R. Brasier and Beale's Case Yelv. 223. made a Lease for 60 years if he so long lived rendring Rent upon Condition to re-enter The Copy-holder surrendred to the Lessor of the Plaintiff in Fee who demanded the Rent which was not payed It was Resolved in this Case That the Entry of the Lessor was not lawfull for that Copy-hold-lands were not within the Statute of Conditions nor the Lessor such an Assignee as the Statute intended For the Assignee of a Copy-holder being in onely by Custome is not privy to the Lease made by the first Copy-holder nor in by him but may plead his Estate immediately under the Lord. Note That in no case where the King claims a share in the Forfeiture of the Lands as in the Statute of 2 H. 5. which speaks of Lands forfeited for Heresie viz. that the King shall have Annum diem vastum as he hath for Lands forfeited for Felony Copy-hold-lands are not within the general words of such Statute for that in such case if the Copy-holder committeth Felony the Copy-hold is presently forfeited to the Lord of the Manor and therefore out of the words of that Statute and other the like Statutes The Statute of 12 Eliz. cap. 8. which speaks of Inquisitions or Offices found by Escheators doth not extend to Copy-hold-lands for although the same are not found within the Inquisitions or Offices yet the King shall not be entitled to any of the said Copy-hold-lands but all such Copy-holders shall and may hold and enjoy their Estates and Interests in their said Copy-hold-lands as formerly they might have done and the Interest of the Copy-hold is preserved by the said Statute though it be not found by Office after the death of the King's Tenant The Statute of 13 Eliz. cap. 4. of Vid. 30 Eliz. in Scaccario Leon. 1. part 98. Auditors and Registers of the Queen doth not extend to Copy-holds for that it should be a great prejudice Then for the second part of this Division Proofs Copy-hold-lands are within the Statute of 4 H. 7. of Fines If I levy a Fine of my Copy-hold-lands Vid. 30 Eliz. Leon. 99. acc and 5 years pass not onely the Lord is thereby barred as to the Free-hold of it and the Inheritance but I who am the Copy-holder am also barred as to my Possession For the intent of the Vid. Coke 5. part Sattyn's Case Statute was to take away all Controversies litibus finem imponere and Contention may as well arise and be about Copy-hold-lands as for Free-hold-lands at the Common Law Copy-hold-lands are within the Statute of 29 Eliz. and other Statutes of Recusancy A Recusant being convict for not paying Tr. 30 Eliz. in Scaccario Saliard and Everâ—t's Case Leon. 1. part 97. of 20 l. a month forfeited by the said Statute a Commission issued out of the Eâ—chequer to enquire and seize all his Goods Lands Tenements and Hereditaments liable to such Seizure Upon the Return of the Commission it appeared That some of the Lands returned were Copy-hold-lands It was a Question if they were within the Statute It was the opinion of the Court That they were within the Equity of the Statute for the words of the Statute are Lands Tenements and Hereditaments which are forcible words and the intention of the Statute was That the Queen should have all the Goods and the Recusant by the words of the Statute was onely to have the third part of his Lands which is all that the Law gives him And if Copy-hold-lands should not be within the Statute if a Recusant who had great Possessions onely of Copy-hold-lands should go unpunished it was contrary to the meaning of the Makers of the Act. Copy-holds are within the Statutes of 13 Eliz. and 1 Jacobi It was Resolved by all the Justices Tr. 15 Jac. in B. R. Crisâ— and Prat's Case Noth 34 35 and 36. That Copy-hold is within the Statutes of 13 Eliz. and 1 Jacobi because it is no prejudice to the Lord for that there ought to be a Composition with the Lord and the Vendee of the Lands and although the Sale is and ought to be by Indenture yet the Vendee ought to be admitted by the Lord. 2. The words of the Statute of 13 Eliz. expresly are That the Commissioners shall dispose of Lands as well Copy as Free and the