viz. Ad hanc Curiam venit A de B sursumreddidit in manus Domini c. unum Messuaglum c. ad usum C de D Haeredum suorum vel Haeredum de corpore suo exeunt Habendum sibi Haeredibus de corpore suo exeunt c. By which it appeareth to be the opinion of Mr. Littleton that an Estate may and might be of Copy-hold-lands And herewith agreeth the opinion of Mr. Plowden in his Commentaries in Morgan and Manxell's Case But note that the opinion of Mr. Littleton is That there must be a Custome of the Manor to enable such Estates of Copy-hold-lands It is said in Coke 3. part in Heydon's Case That where an Act of Parliament doth alter the Service Tenure or Interest of the Estate either in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenants there such an Act of Parliament doth not extend to Copy-holds And therefore the Statute of Westm 2. de Donis because it extendeth to the Alteration of the Service and Tenure of the Land and is prejudicial to the Lord of the Manor doth not extend to Copy-holds But in that Case it is agreed That by a special Custome Lands might be entailed for that it might be that upon the creation of the Manors Lands were given by Lords of Manors to hold by their Tenants by particular Services and for particular Uses viz. to some to them and their Heirs in Fee-simple to some others to hold to them and the Heirs of their bodies begotten and to some others for particular Estates as for life c. and such Estates having continued in their Issues time out of mind Custome hath now enabled such Estates to be of Copy-holds in tail and although they have and enjoy such their Estates be it either Fee-simple or Fee-tail yet it is but secundùm Consuetudinem Manerii and therefore and for these Reasons and causes although that Copy-hold be not or could not be entailed within the general words of the Statute de Donis c. yet by Custome time out of mind used they say that Copy-holds may be entailed 36 Eliz. in the King's Bench it was Adjudged That where the Custome of the Manor was that Lands might be granted unto any in Fee-simple in such case a Grant of Lands unto a man and the Heirs of his bodie was within the Custome For a Custome which extendeth to the greater will extend to the lesser Estate Tenant in tail of a Copy-hold surrendred M. 15 Jac. Lee and Brown's Case Poph. 128. the same into the hands of the Lord to the Use of J S c. In that Case 2 Questions did arise 1. If Copy-holds were within the Statute de Donis c. 2. Whether the Tail might be cut off by a Surrender The Court doubted of the first Point but the better opinion seemed to be That the Statute co-operating with the Custome they might be entailed A Copy-holder had Issue 3 Sons A H. 31 Eliz. B. R. Bullein and Graunâ—'s Case Leon. 1. part 174. B and C and surrendred his Copy-hold-lands to the Use of his last Will and thereby declared the same to be to the Use of his Wife for life the Remainder to B his second Son in tail and afterwards to A in Fee It was a Question in this Case if B had a Fee-simple conditional in the Lands or an estate-Estate-tail For if a conditional Fee then a Remainder over of it could not be limited It was the opinion of Wray Chief Justice That it was an Estate-tail in B and not a Fee conditional and that Customary Lands might be granted in tail A Surrender of Copy-hold-lands was H. 34 Eliz. B. R. rot 29â—â— Stanton and Barney's Case made within the Manor of Stevenson to the Use of J S and the Heirs of his body and after Issue he surrendred the Lands unto another It was agreed by all the Justices That it was a Fee-simple conditional at the Common Law and after Issue that he might alien the Lands A Copy-holder in Fee of the Manor M. 36 Eliz. B. R. Gravenor and Brook's Case Poph. 34. of Fairchilds and Preachers 3 H. 8. surrendred his Copy-hold-lands to the Use of his eldest Daughter for life the Remainder to the eldest Son of the said Daughter and the Heirs-males of his body the Remainder to the right Heirs of A the Copy-holder in Fee In this Case it was said That an Estate in Tail could not be of Copy-hold-lands It was the opinion of Fenner and Popham That by Equity of the Statute de Donis an Estate-tail might be of Copy-hold-lands though not otherwise Now on the other side That Copy-hold-lands cannot be entailed nor are within the Statute de Donis c. see these Cases and Resolutions following H. 35 Eliz. in Co. B. it was Resolved by all the Justices that Copy-holds were H. 35 Eliz. in Co. B. Pitts and Huckley's Case not within the Statute of Westm 2. de Donis For if they were within that Statute then the Lord should not enter nor take advantage of the Forfeiture of the Copy-hold for Felony the contrary of which was Resolved in Borneford and Sir John Packington's Case but the Donor and the Services should be done to the Donor and not to the Lord of the Manor which is against the nature of a Copy-hold-Tenure The Case was That a Copy-holder Tr. 18 Jac. in Co. B. Royden and Moulster's Case Cro. 3. part 32 33. Godb. 367. acc surrendred to the Use of one in Tail there being no Custome to warrant such Surrender In this Case the Question was whether a Copy-hold might be entailed within the Statute de Donis It was holden by all the Justices That it could not be entailed within the Statute and that for divers causes 1. Because it is not within the Letter of the Statute which speaks onely de Tenement is per Chartam datis and Copy-holds cannot pass by Deed but by Surrender onely as is agreed on all sides 2. Because they are not within the meaning of the Statute because that before 7 E. 4. 19. they were not of any account in Law being onely Estates at will of the Lord secundùm Consuetudinem Manerii 3. Because the said Statute de Donis provides onely against those who might make Disinherison by Fine or Recovery which a Copy-holder there could not doe or make because that then upon such Grants in Tail the Reversion should be left in themselves which could not be being to the prejudice of the Lord of the Manor And also 4. because it would be very mischievous because then there should be no means to dock or cut off such Entails common Recoveries and Fines not being then in use unless there were a special Custome to that purpose Having thus declared and made mention of the several Cases and Resolutions in this much-controverted Point Whether Copy-hold may be entailed within the said Statute de Donis
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 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
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
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
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