to have and to hold c. whose estate hee had and by another Tenant rendring the yearely Rents Customes and Services and also hee produced certaine Witnesses who proved the Land to bee Coppie by the space of 69. yeares The plaintiffe to destroy the Title of that evidence shewed certaine Rentals that they were Free Lands c. 9. et 10. Henry 7. and not Coppy and also another Rentall to that intent in 12. Henry 6. which prooved that those Lands were leassee for twenty yeares Per Cur. this evidence doth not disproove the Coppy-hold for it was not within the time of memory but if hee had shewed the Indenture of Leasse made within 50. yeares or 80. yeares so that a man might remember it then it had beene good although the Statute of limitation extends not unto it by the Justices such evidence as prooves it to be within time of memory is good Also by them if those Lands bee in the hands of the Lord by forfeiture Escheat or Surrender yet the Custome remaineth for he may demise them againe and the Custome shall bee revived but by some men if by Escheat it bee in the Lords hands the Custome is extinct 8. et 9. Eliz. Ibidem Addington Lord of Harlow in Essex would encrease the Fines of his Coppy-hold Tenants which were prooved to bee certaine And it was holden that hee could not increase them and it shall be a good prescription to say alwaies ready to pay such a summe and no more 18. 19. Eliz. 4. Eliz. It was mooved by Manwood Sergeant if a Coppy-holder in Fee in right of his Wife doe Surrender the wife being not examined by the Steward but by some of the Tenants the Custome permitting it the Husband dyes Whether the Wife shall sue by plaint in Nature of a Cui in vita or may enter And by him shee may enter because it is no discontinuance for that it is a surrender to the Lord who hath the reversion for if a Tenant in Tayle enfeoffe him in the reversion it is no discontinuance but if she had been examined she should have bin barred for ever And Dier if a Coppy-holder in Tayle surrender to the Lord to the use of a stranger the Issue may bring a plaint in Nature of a Formdone in discender and purge the discontinuance for it is within the statute De donis Conditionalibus Lit Fo. 16. Com 233. 15 Hen. 8 Br. tit Tenant per Copie 24. And by Manwood no negative prescription may prevaile against a statute And the Common Law is no other but an ancient usage throughout all the Realme and a prime Custome may encounter with it but not with a statute And by Dier if after the Surrender the Lord admit the Wife againe yet shee shall be in by her Husband in construction of the Law Coppy-hold of inheritance discends unto two sisters by two venters none of them making entry and before the Court and admission one of them dyes her heire shall have the moyty and not the other sister by Dier chiefe Justice in the Chancery Also if a Coppy-holder in Taile Surrender to another in Fee who is admitted this is a discontinuance and so the Husband of his Wifes Coppy-hold And hâ— said that a remitter shall be of a Copy-hold as it shal be of a Freehold and inheritance at the common Law 13. et 14. Eliz. In the Duchâ—â— it was in question whether a Coppy-hold may be entayled or not And by Wray chiefe Justice and Manwood chiefe Baron the Tayle was not Fee simple at the Common Law if it did not appeare by the Custome and that may bee prooved by the Court Roles or by some other proofe that there is a recovery by plaint of Formedon or the Lands had descended according to Land in Tayle as possessio fratris shall not be of it or that that the Daughter shall not inherit before the sonne which is unckle to the same Egerton was of counsell with this case which was betweene Sherington and an other 22. Eliz. Hanchet and Rosse concerning land of Dicot in Stepping Hackney a Coppy-holder of inheritance dies the Lord grants the wardship of the Land during the minority of the heire to the Wife being sole shee takes a Husband and dyes It was demanded whether the Husband should have it or not And it seemed not but if it had beene a thing in which he had intrest to his owne use that he should have it as a Lease for yeares the executor shall have it without admittance of the Lord so the Husband shall have a Lease for yeares made to his Wife without admission By all the Justices 17. Eliz. If a Coppy-holder in Fee take an estate in Tayle by Charter-hold or take a Lease for yeares by Indenture his Coppy-hold is confounded 7. et 8. Eliz. by Harpour and others a Lessee for yeares of a Mannour may make Coppyes if the Custome be so to a man and his heires secundum consuetudinem c. for if the Coppy-holder in Fee dye his heire is in by descent and ought to be admitted or els he shall compell the Lord to admit him for for it is of necessity But Coppies for life or yeeres it is otherwise for by the death of the Tenant there is not any that can compell the Lord to make him a new Copy if he will not but hee may retaine the Land in his owne hands and therefore the grants of such Coppyes as are expired made by a lessee for yeares are void 26. ELIZ. FIrst Land Demiseable by Coppy in the time of Richard the second is perfect Coppy-hold so if it bee demised by Coppy 15. or 16 yeares Secondly If the Lord purchase the Coppihold of his Tenant money this is clearly a surrender and an extinguishment of the Coppy and it is not demiseable by Coppy after But if the Lord enter for forfeiture without presentment found that is demiseable by Coppy againe Thirdly If the Lord bring Trespas against a Coppy-holder who pleads that it is Free hold this is a Forfeiture and the Lord may enter Fourthly the Lord cannot seise because his Coppy-holder was sworne to give evidence against him for this is no forfeiture Fiftly if a Coppy-holder disseise his Lord of other Land that is not a forfeiture of the Coppy-hold Sixtly if a Coppy-holder dye without heire and the Lord enter by escheat this is demiseable by Coppy againe but if the Lord afterwards doe make a feoffment or suffer a recovery and after doe repurchase it it is not demiseable but if the Lord reverse the Judgement upon recovery by error attaint or deceit and hath restitution then it is demiseable by Coppy againe A disseisin doth not extinguish the Custome nor acts done by the disseisor Seventhly if a Coppy-holder suffer a recovery by prescript at common Law by collusion or make a Feofment or bargaine and sale and the Lord enters and makes a lease for yeares thereof the Land is not demiseable by Coppy againe Eighthly
taken contra to Master Brooke in nov â—se 426. But though a gift in Taile of a Coppy-holder be not conteined in the same Statute of William the Second Yet I thinke in such Mannour were time out of minde they have used to make gifts in Taile of Coppy-hold Lands there such gifts bee good at this day and they may make protestation in the nature of Avy writ as apeareth by Littleton WHAT SHALL BE SAID a good Surrender AS in the conveing of Free Lands there is required some ceremony and publick notice so is there in the assuring of Coppy-holds necessary some publicke Fact to bee done therein which is the Surrender In which ceremonie there is contained two effects the one what is surrenered and to whose use the other that it be done with the Lords good will and for that cause it is surrendered into his hands And although of the meanes a Mannour of this surrender there bee divers kinds as within some Mannors to Surrender by the hand of another Coppy-holder and in some other to surrender into the Stewards hands in some to the Bayliffes hands and some by giving a yard to the Steward in some by giving his hand or his glove which bee outward signes of his intent Yet in all these kindes the words of Surrender must not bee divers but one or to one effect and must bee either words of Surrender expressed or words of Surrender implyed and therefore if a Coppy-holder will bargaine and sell his Land to I. S. and this is found by the Homage and I. S. praieth to bee admittted Tenant yet the heire of the Coppy-holder shall avoide the Admission because of the insufficency of the Surrender taking by the words of Bargaine and Sale and not by words of Surrender opi Sur. Dier 8. Eliz. Lou ill dit relees ne vault avrer Come unsurrender If a Coppy-holder commeth into the Court and desireth his Lord to admit his sonne to bee Tenant in his fathers place this seemeth a good Surrender to the use of the sonne If a Coppy-holder will in the presence of other Coppy-holders of the same Mannour say that hee is content to Surrender his Coppy-hold Lands to the use of I. S. this is no good Surrender But if hee saith hee doth surrender into the hands of the Lord to the use of I. S. if the Lord will thereunto agree this is a good Surrender whether the Lord will or not If the Tenant will Resigne his Interest in the Court into the Lords hands therewithall for the Lord to doe his will this is a good Surrender if it be accepted If a Coppy-holder will say he will bee no longer the Lords Tenant though these words bee recorded yet this is no good Surrender If a Coppy-holper for life take a new Estate for life by Coppy this is a surrender of his first estate But if a Coppy-holder for life will take a Lease of the same by Indenture for life this is not a good Surrender of the Coppy-hold Quaere If a Coppy-holder commeth to the Lord and telleth him that for the preferment of his Sonne in marriage with such a mans daughter his will is to give his Land presently to his Sonne and desireth the Lord that he would be contented therewith this is no good Surrender But if he had said these words in the Lords Court and the same recorded or found by Homage as a Surrender and so presented then this had beene a good Surrender without any other words of Surrender THAT A COPPY-HOLDER must bee admitted Tenant and what shall bee said a good Admittance of a COPPY-HOLDER IF a Coppy-hold descend unto a married woman and her Husband take the profits thereof and suffer a Court day to passe without admittance of his Wife and then the Wife dyes the Husband shall not be Tenant by the curtesie but in the 12. Eliz. Dyer 291. 292. it seemeth that the contrary should be the better opinion An entry before admittance is no forfeiture without an especiall custome pleaded but the heire may make a forfeiture for non payment of the Rent as the Custome was there pleaded before admittance If a Coppy-hold be Surrendred unto the use of a stranger upon condition and the condition be broken the party that made the Surrender may reenter and bee a Coppy-holder to all Intents without any new admission for he did depart with the Land but upon a condition Also if a Surrender of a Coppy-hold bee made to the use of a stranger for Life and the Lord makes a grant thereof to the same stranger in Fee this shall not binde the heire of the Tenant but that hee may enter after the death of the grantee for hee tooke the Land by the Surrender and not by the grant made by the Lord for the Lord is but an instrument for the conveyance of the Land for if I make a Surrender unto the Lord ea Intentione that hee shall grant over unto such a man if the Lord will not grant the same I may then reenter but the stranger hath no meanes to enforce the Lord to grant the same over unto him but hee may maintaine Trespas against the the Lord if hee doth suffer mee to reenter and this is the opinion at this day The Lord of a Mannour hath that prerogative in his Coppy-holders that no stranger can bee his Tenant thereof without his speciall assent and admission and for that cause a Coppy-holder shall not bee lyable to any executions of Statutes or recognizances neither shall be Cassets in debt or Formidon neither are conteyned in any the Statutes afore named for if it were then should the Lord be forced to have a Coppy-holder whether hee would or no which is against the nature of a Coppyhold And therefore a stranger can never enter though a Surrender made to his use bee accepted except hee bee admitted Tenant but otherwise of the heire for hee may eater and take the profits before the Admittance after the death of his father Admittance may be three manner of waies an expresse admission by the words entred into the Court Role viz. unde admissus est Tenens or by acceptance or implication as if the Lordwill accept the rent by the hands of a stranger third by admitting one Copy-holder in some cases the Lord shall admit another by implication to some purposes and to these three may bee added a fourth which is by the entry of the Sonne after the death of his Father and the Tenant in Dower after the death of her Husband which is Lawfull without admission till the next Court and then they must pray to bee admitted c. If a Coppy-holder doe surrender his Land to the use of I. S. and the Lord doth grant the same to I. S. accordingly and thereupon hee enters yet hee is no good Coppy-holder till hee bee admitted But if I. S. appeareth at the Lords Court and passeth on the Lords homage or the Lord accepts his Rent or his Fine
divided Chapter thereof differing from his Tenement in Villenage shewing there the Suites and Plaints of Coppy-holders saying that they haue an Estate of Inheritance according to the Custome And delivereth his owne opinion that if a Coppy-holder doing his Services bee compelled by the Lord he shall haue an Action of Transgression And sayth that Danby and Brian 21. Ed. 4. were of the same Minde according to which is Bracton and the sayd Presidents of Hen. 3. and the Writ vsed in Tempore R. 2. besides many other reasons at the Common-Law c. prooving that by use and circumstance things may alter and change their originall nature As for example the service of Socage Tenure was at the beginning as Mr. Littleton sayth to Till the Lords Land c. And yet now by consent of the Lord and by continuance of time are turned into money and other Services in lieu thereof Even so may be sayd of Coppy-holds as long as the Tenants themselves be free though their Tenure were at beginning never so bound and base yet by course of time they may gayne more liberty and freedome and grow to more estimation and account An other reason and Rule there is at the Common-Law to this intent that some things there were which in the beginning were but voluntary and yet in the end by continuance became Compulsary as appeareth 27 Ass praescript Bract. That a man that did at the first of his owne meere benevolence repayre a high way or a Bridge by often using was afterwards compelled volens nolens Even so it may be sayd of the Coppy-holders who at the first held but at the free will of the Lord yet now by usage and continuall granting time out of minde they haue gotten an estate after the Custome that doing their Services and behaving themselues well they cannot by Law or Reason be put from them Thus much for the allowance of Coppy-holders by the Common-Law now let us consider the Reputation of them by the Statutes and Parliament Law It appeareth by the Statute of 1. Rich. 3. 4. 19. Hen. 7. 23. That a Coppy-holder that may dispend twenty sixe shillings eight pence by the yeare shall be Empanelled on a Iury as hee that may dispend twenty shillings by the yeare of Free Lands And by the Statute of the 2. Ed. 6. cap. 8. the Interest of Coppy-holders are Reserved being found by Office after the Death of the Kings Tenants as well as other Estates at the Common-Law and so doth the Statute of Monasteries 31. Hen. 8. cap. 13. 1. Edw. 6. cap. 14. preserue Coppy-holds from dissolving And it will seeme that Coppy-holders are for the Common-wealth and therefore to bee maintayned for that some haue beene erected and established by Parliament which were not de visible by Coppy before as appeareth by the Statutes 32 Hen. 8. 2. 2. Ed. 32. What shall be sayd a Mannour and a Mannour as will mayntaine a Coppy-hold A Mannour consisteth in two parts viz. Demeasnes and Services and neyther of these two parts hath the name of a Mannour without the other for as a Messuage or Lands cannot be called Demeasnes without Tenements thereunto belonging to pay Rents and do Services but doth still beare the name of Messuage or Lands So on the other part though a Man have Tenements to pay him Rents and doe him Services and no Messuage or Lands whereupon to keepe his Court and to receiue his Rents and Services this cannot be called a Mannour but onely a Signiory in grosse Fitz. na brev s 3. 8. Demeanes are so called for that the Lord himselfe occupieth and manureth them In son maine Demeasne But all Lands that have been in the Lords owne hands bee not called Demeanes for all Free-holds and Coppy-holds were in his owne hands at the beginning But Demeanes is that which is now and time our of Minde have beene in the Lords hands or occupation of his Bay liffe or Servants And that also which auncient Coppy-hold may be to some purpose called Demeasnes because in every Surrender in Manus Domini and every grant extra manus Domini the Lord hath a medling with it and may thereupon keepe his Court and for the most part cut downe Timber and such like And that it is also called Demeasnes which now is in the Lords hands by any new Escheate or Forfeiture And also the Lands which are in the hands of the Coppy-holders is such a Demeasne as with other Services will make a Mannour though the Lord hath none other demeanes there in his owne hands nor in the hands of his Bayliffe or servants Services as with a Demeasne shal make a Mannour to maintaine Coppy-holds is where a man holdeth Lands or Tenements freely to suite to the Court of the Lord of the Mannour within the sayd Fee But yet euery kind of Service will not make a Mannour for Services are of two kinds viz. That is by Tenure and by covenant Service by Tenure is also of two sorts as if a man at this day giveth his Land in tayle or leaseth it for Life or Yeares saving the Reversion here is a Service of Fealty incident to this Tenure betweene the Doner or the Lessor and the Donee or the Lessee And yet though this be a Service by Tenure yet is it no such Service as will make a Mannour For if a man at this Day be seised of twenty Acres of Land and Enfeffeth nineteene severall persons of nineteene of these Acres saving the twentieth to himselfe and reserveth of every of his Fcofees suite of the Court and other Services to be done to this Court to be held on the twentieth Acre though the Feofments be by Deed indented or in tayle or of Lives yet all is voyde and avayleth not to make a Mannour But it maketh onely a Tenure in grosse for a Tenure may by divers meanes be created at this Day but a Mannour by no way by a Common person Plow Com. 2. 693. A Mannour must be by Prescription and the Services by Continuance time out of minde But although a man at this Day cannot make a Mannour yet hee may in some sort enlarge a Mannour by adding more Services unto it 9. Ass A man seised of a Mannour did give parcell of the same to hold of him by Suite to his Mill within the same Mannour for this Service the Lord may distrayne and it is their held to be accounted parcell of the Mannour In like manner a man may by reserving upon a gift Intayle or Lease for Life Services ingrosse increase the Services of an ancient Mannour Signior grant le Demeasnes Services del son Mannour de Norkelsey c. extend en auter Towne per le melior opinion des Iustices de Common Banck le grantee c. keepe a Court there and so a Mannour to be created at this Day What shall be sayd a Mannour or a Tenure in his proper nature or Common-Law and what in respect of Usage or
Prescriptions must be according to Common right that is to prescribe that is to have such things as is their right and reasonto have and not by Custome of Prescription to claim things by way of extortion or thereby to exact Fines of other things of his Tenant without good cause or consideration If the Lord will prescribe to have of every of his Coppy-holders for every Court that shall bee kept upon the Mannour a certaine sum of money this is no prescription according to common right because he ought for Justice sake to doe it gratis And so it is if the Shriefe will prescribe to have a certaine Fee for keeping his Turne this is not a good prescription But if the Lord will prescribe to have a certaine Fee of his Tennants for any extraordinary Court purchased onely for the benefit of one Tennant as for one Tennant to take his Coppy-hold or such like this is a good prescription according to the common right If the Lord will have of any of his Tenants that shall commit a pound Breach a hundred shillings for a Fine this is good Prescription but to challenge of every stranger that shall commit a Pound Breach a hundred shillings this is no good prescription If the Lord will Prescribe that every of his Coppyholders within his Mannour that shall marry his Daughter without licence shall pay a Fine to the Lord this is no good Prescription according to common right THAT A CVSTOME must be upon a good Consideration and what shall bee said such a Custome and what not COnsideration is a great effect in all Lawes and Customes and hath as great an an operation as any one thing belonging to the Law for in most causes it onely guideth and directeth Rights properties uses and estates sometimes according to the limitation and sometimes contrary to the limitation as well in cases of Custome as in cases of common Law for consideration is the beginning of all Custome the ground of all uses the reason of all rights and the cause of all duties For without Consideration no Custome can have continuance nothing is wrought by any conveyance no interest transferred no right remooved no propertie changed nor duty accrewed As if the Lord of a Mannour will prescribe that whosoever passeth the Kings high way which lyeth through his Mannour shall pay to the Lord of the Mannour twelve-pence for his passage This prescription is not upon good Consideration But if hee prescribe to have a penny of every one that passeth over such a Bridge which the Lord of the Mannour doth use to repaire this is good prescription upon good consideration If the Lord will prescribe to have a Fine at the Marriage of his Copy-hold Tenants in which the Custome doth not admit the husband to bee Tenant by curtesie nor the Wife to be Tenant in Dowre or have her Widdowes estate the prescription of such a Fine is not good But in such Mannour where the Custome doth admit such particular estates there a prescription for a Fine at the Marriage of his Coppy-holders is upon good consideration If a Coppy-hold surrender his Land to the use of I. S. so long as I S. shall serve him in such an Office if I S. refuse to serve his estate doth cease If a Coppy-holder doth surrender his Land to the use of a stranger in consideration that the same stranger shall marry his daughter before such a day if the marriage succeeds not the stranger takes nothing by the Surrenderer But if the Surrender bee in consideration that the stranger shall pay such summe of money at such a day though the money bee not payed yet the Surrenderer standeth good If the Coppy-holder in consideration of twentie pounds to bee payd by I. S. doth make a Surrender of his Lands to N. R. this Surrender is to the use of I. S. because of the Consideration expressed in the Coppy and not to the use of N. R. But if in the Coppy the use be expressed to N. R. and no consideration mentioned the use expressed shall stand against any consideration to be averred THAT A CVSTOME MVST be compulsary and what shall be said such a Custome and what not CUstome or Law must be Compulsary and not at the liberty of a man whether he will performe it or not for then it were of no force for all Customes and Lawes have their effect in two poynts That is in bidding that which is just and in forbidding the contrary So that Lawes and Customes are refrainers of liberties and do demaund execution of Justice not that every man should have or doe what they would but that which by Justice they ought whereunto by duty of Law and Custome hee is compellable for otherwise it were Voluntary in him which were to the infringing of the Law and good order As the Poets Oderunt peccare boni virtutis amore Oderunt peccare mali formidine poenae If the Lord will prescribe that every of his Tenants shall give him ten shillings a moneth to beare charges in time of Warre this is no good Prescription But to prescribe that they ought to pay ten shillings a moneth c. this is good For payment is compulsary but gift is Voluntary If a Coppy-holder doe Surrender his Land to the use of S. so that the sayd I. S. do pay him twenty pounds at such a day If I. S. please to pay the same this is an absolute Surrender and not conditionall because the compulsary But many Customes there are which at the beginning were Voluntary and now by continuance are growne Compulsary According to the Civill Law Quae initio fuerunt voluntatis ex post fact fuerint necessitatis which also agreeth with the Common-Law in many cases as I have partly touched before THAT A CVSTOME MVST be without preiudice to the King and by what prescription the King shall be bound and what not THE King hath that Prerogative over his Subjects that hee is not tyed to time as a common person is for though a common person may loose his right by non claime within a certaine time the Kings right is still to be preserued for Nullum tempus occurrit Regi Yet in speciall cases where the King is not Intituled agaynst such prescription by matter of Record there such Customes shall bind the King As for example if a Coppy-holder prescribeth that he holdeth of the King by Coppy this is good and by fine certaine and not arbitrable to have Waife and Strayes and Wrecke but not Cattalla feloni fugitorum and vtlagatorum without Charters The Kings Advowson shall never fall into lapse for not presenting within sixe moneths THAT A CVSTOME OVGHT to consist of perdurablenesse of Estate and of an able capacity TO those former parts whereupon I have declared a good Custome to consist may be added to eyther parts viz. That he which will claime by Custome must have a sufficient and perdurable estate to prescribe and also in his owne