329. If a Copy-holder Lease for three years by the Custom and he leaseth for three years A Lease from three years to three years and so from three years to three years unto nine years this is a Forfeiture for this is a Lease for six years at least 1 Rolls Abr. 508. Luttrel and Weston T. Let Copy-hold Lands to W. by Articles of Agreement with promise and Covenant to hold for a year to halves at such a Rent according to the Custom of the Manor and so from year to year for five years the Question was If this be a Forfeiture And by the Justices in C. B. 19 Car. 2. in the Case of Lenthal and Wallop against Thomas A Covenant and not a Lease and so no Forfeiture It s no Lease A Covenant to hold to halves makes a Lease in no case A covenant and promise that J. S. shall have my Lands for five years may be a Lease where a Lease may be made especially where the words Covenant and Agreed is added but only by a favourable construction of Law which shall never work a Forfeiture 2 Keb. p. 267. Lease for years not warranted is no disseisin to the Lord. Note Lease for years by a Copy-hold though it be a Forfeiture yet it s not any disseisin to the Lord 8 Rep. 44. Noy 92. Therefore Infant Copy-holder in Fee leaseth for years sans Licence rendring Rent at full Age he accepts the Rent and after ousts the Lessee The Lessee brings Ejectment and Judgment for him Per Cur. this Lease may be affirmed by acceptance and agreed that such a Forfeiture doth not bind an Infant What Alienation shall be a Forfeiture and what not Surrender by a Tenant for Life to the Use of another in Fee is no Forfeiture Moor n. 983. Oldcot's Case If Tenant for Life of a Copy-hold suffer a Recovery as Tenant in Fee this is no Forfeiture of his Estate for the Free-hold is concerned and it is in a Court Baron where there is no Estoppel Mod. Rep. 199. Bird and Kick 200. If he make a Deed of feoffment and no Livery it s not a Forfeiture nothing passeth and so it s no alienation aliter of a Lease Quaere if the Feoffment be with Letter of Attorny Co. Lit. 59. Of Forfeitures by Waste If a Copy-holder erect a new House upon his Copy-hold without Licence Waste Erecting a new House this is not any Forfeiture for this is for the melioration of the Tenement 1 Rolls Abr. 507. Cecil and Cave A Mill. If he erect a Mill upon his Copy-hold it is a Forfeiture by Dodredge Lach. p. 123. in Grey's Case If a Copy-holder build an House upon his Copy-hold and after pulls it down again this is a Forfeiture 1 Bulst 50. Brook and Bear Where the Lord hath any other recompence the Law will not make any Forfeiture as Custom to amerce or fine for Hedges Inclosing Lit. Rep. 267. in Paston and Utbert's Case If a Copy-holder commits waste against the Custom of the Manor it is a Forfeiture 4 Rep. 27. Clifton's Case Voluntary waste is a Forfeiture of the Copy-hold by the Common Law Voluntary permissive but negligent waste not without a Custom Per Anderson and Walmsly Noy p. 51. in Farmer and Ward 's Case Vide infra Co. Lit. 63. a. If a Copy-holder suffer the House to decay and to be wasted this is a Forfeiture 1 Rolls Abr. 508. Rastal and Turnor Stranger commits Waste But if a Stranger commit waste upon the Copy-hold without the assent of the Copy-holder himself this is not any Forfeiture of the Estate of the Copy-holder 4 Rep. 27. Clifton's Case If a Copy-holder for Life cuts down Timber Trees the Lord may take them Under-Lessee cuts down Timber Trees If Under-Lessee for years of a Copy-holder cuts down Timber it shall not be a Forfeiture of the Copy-hold Estate Stiles p. 233. Cutting Timber Trees If a Copy-holder cut down great Trees viz. Elms to repair his Copy-hold House which is in decay and employ them accordingly this is not any Forfeiture because the Law allows this to him without any Custom to warrant it M. 38 39 El. B. R. East and Harding's Case So if he cut down two great Trees for that purpose and only employ one of them yet this is not any Forfeiture for a man cannot precisely know what is sufficient ibid. But if he lets them lye and suffers them to rot this is a Forfeiture If a Copy-holder for Life cuts down great Trees this is a Forfeiture and if a Custom for so doing is alledged it is unreasonable and not good Cro Car. 220. Rockey and Higgins If a Copy-holder fell Trees it s no Forfeiture because it may be for the reparation of the House but an act afterwards as selling them may cause a Forfeiture 9 Rep. 76. Ampuattion of Top-boughs A Copy-holder by the common Law may lop off under Boughs without especial Custom but the amputation of the Top-boughs will cause the putrefaction of the whole Tree and so that is Waste and a Forfeiture Cro. El. 361. Drawbridge and Cox Dodderidge put the Question in Cornwallis's Case 227. If Tenant permit waste and after repair may the Lord enter Per Hicham it was once a Forfeiture and so remains If the Lord grant to his Copy-holder the Trees growing upon the Land and which afterwards shall grow and that it shall be lawful for the Tenant to cut and carry them away The cutting down the Trees is no Forfeiture of his Copy-hold because he had dispensed with the Forfeiture by his Grant but he cannot cut the Trees that shall grow after for as to them the Grant is void Moor n. 234. As to waste about Trees Vide sub titulo Customs If there be no Custom to the contrary Waste waste either permissive or voluntary of a Copy-holder is a Forfeiture of his Copy-hold Co. Lit. 63. a. Vide supra The manuring of Land to Hop Ground was agreed to be a Forfeiture If the Copy-holder convert part of the Land into a Piscary it s a Forfeiture Lit. Rep. 267 268. in Paston and Utbert's Case Of Forfeiture by Attainder of the Tenant Custom of the Manor was if any Copy-holder within the Manor committed any Felony and this was presented by the Homage that the Lord may take and seize the Land A Copy-holder committed Felony and this was presented by the Homage and after the Copy-holder was Indicted and by Verdict Acquitted and the Lord entred Per Cur. It s a good Custom but they delivered no Opinion whether the Lords Entry in this case was lawful though it seems the Lord is concluded and he cannot enter to which purpose there is cited a pretty Case A man was Indicted as principal for the death of J. S. and another as accessary in receiving the principal after the principal was Outlawed and the accessary hang'd and the Lord seized the Land of the accessary as Escheat Afterwards came
in the possession in the right and Time Possession must be Longa continua pacifica Now observe a Title once gained by Custom or Prescription cannot be lost by interruption of the Possession for ten or twenty years but by interruption in the Right As if a man hath had a Rent or Common by Prescription unity of Possession of as high and perdurable Estate is an interruption in the Right Co. Lit. 114. b. And if a man hath Common by Prescription and takes a Lease of the Land for twenty years the Common is suspended for that time and after the years ended he may claim the Common again by Prescription 1. Personal Prescription and in that Inhabitants may Prescribe as for a Way or matter of Ease or Discharge Gateward's Case 2. Real Prescription and this is inherent to the Estate and this is where a man Prescribeth That he and all those whose Estate he hath c. Prescription as to the Estate of the Land and not to the Land it self 3. Local Prescription not as to Land but to the Estate and therefore the Custom was That the Copy-holder should have Common in the Waste of the Lord the Lord by Deed confirms to a Copy-holder to have to him and his Heirs with its Appurtenances The Question was whether his Copy-hold now being destroyed he shall have Common by the word Appurtenances Per Cur. the Common is extinct and not revived for this is a local Prescription not to the Land but only to the Estate and this proves well the words of the Prescription for the Copy-holder ought to Prescribe That every customary Tenant within the Manor c. So he hath his Common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land 2 Brownl 210. Marsham and Hunter Copy-holder for Life cannot Prescribe against his Lord but Copy-holder in Fee may Copy-holder for Life may not Prescribe against his Lord. Copy-holder in Fee may and how for he hath the Copy-hold in nature of Land of Inheritance Stiles 233. Cage and Dod. Per Cur. a Copy-holder may Prescribe by an usitatum est against his Lord but against a Stranger he must Prescibe in the name of the Lord More n. 647. 6. Rep. 60. Copy-holder of Inheritance may Prescribe in the name of the Lord to be discharged of Tythes Noy p. 132. Copy-holders may not Prescribe against their own Lord omnino nor against any other but only in the name of their Lord and the manner of laying it is by a Custom when they claim any thing or profit out of the Lords Soyl vide Sanders 324 5 6. Hoskin and Roberts What shall be said a pursuance of a Custom or not If the Custom be That the Lord may Demises Copy-hold in Fee he may Demise them for Life Years or in Tayl for these Estates are included in a Fee which is greater 1 Roll. Abr. Staunton and Barns Cok. Lit. 52. Vide supra Maxims and Customs 4 Rep. 23. The Case of the Manor of Allesly in Warwickshire Solummodo how expounded If the Custom be That the Lord may solummodo Demise his Copy-hold Land in Fee yet the Lord may Demise this for Life or Years or in Tayl though there was never any such Estate made before for the word solummodo is not to be taken so strictly to restrain the Lord of this liberty which the Law gives upon the general Custom but that he had used solummodo to grant in Fee which doth not take away the liberty which the Law gives 1 Rolls Abr. 511. mesme Case Custom is to Grant for one two or three Lives a Grant to one durante viduitate is within the Custom for the Estate granted was less than the Custom warranted The Custom was That the Wife shall have the Land for term of her Life The Evidence was That the Custom was that she shall have it durante viduitate Per Cur. This Evidence doth not maintain the Custom 4 Rep. 30. Downe and Hopkin's Case A Grant to three for the Lives of two is within the Custom of three Lives If the Custom be That Copyholds may be granted for three Lives a Copy may be granted to three for the Lives of two within this Custom For it is no inconvenience to the Lord although it be pur auter vie for there shall be no occupancy of it but the Lord shall have it if the Tenants pur auter vie dye living cesty que vies and this is not a greater Estate than three Lives but lesser Rolls Abr. 511. Ven and Howel But to one for Life Remainder to another for Life c. is not good A Copy-holder where the Custom was to Demise for three Lives demised to one for Life the remainder to such an one as he should marry and the first Son of his Body resolved that both the remainders were void but the Estate for his own Life is good More n. 922. Webster and Allen. Custom is when any Tenant sells his Tenement three Proclamations shall be made the next Court day and if any of the Blood of the Vendor will give as much mony as the Vendor will he shall have it A Tenant in consideration of one hundred pounds in Mony and that the Vendee being his Physician had cured him sold it to him and the next of Blood at next Court offers a hundred pound yet he shall not have it for it was given partly for the other consideration and the Custom shall be for mony only 1 Rolls Abr. 568. So if he had sold it in consideration of a Lease for years and 1 d. ibid. CAP. V. Of particular Customs either enabling or disabling in respect of the Lord of the Tenant and of the Estate Limited or Leased and in respect of Discents WHAT particular Customs have been adjudged good or what not either enabling or disabling Customs Vide supra of Customs ratione loci And they may be considered in three respects Of the Lord. Of the Tenant Of the Estate 1. In respect of the Lord and his Priviledge The Wife of the Lord shall not be endowed against a Copy-holder for the title of Dower is not consummate before the death of her Husband Dower so as the title of the Copy-holder is paramount and compleated before the title of Dower Leon. 152. Waste The succeeding Lord shall not take advantage of Waste done in the time of the preceeding Lord 2 Siderfin p. 9. Chamberlain and Drake Vide infra Common A Custom That none shall put his Cattel into the Common before the Lord puts in his is not good Vide supra the Rules of Customs 1 Bulstr Earl of Northumberland vers Wheeler 21 Ed. 4. 28 b. Fine A Custom that a Copy-holder shall upon the change of every Lord pay a Fine is void Vide the Rules of Customs For the Lord may change his Manor every day Had it been that
Deed of Purchase of all Commons appertaining to his said Messuage Per Cur. The Common which he had in the Copy-Estate was extinct because the Common appertained to the customary Estate which is determined and because now he claims from the Lord in whom the Common may not stand divided from the Land and Soil of the Wood but had there been special words in the Grant of the like Common as he had in the Common Before the Surrender it had been good as a new Grant of the Common More n. 915.866 Fort and Ward By what words in Grants Copy-holds shall pass or not What shall pass by the words All the Demesn Lands King Ed. 6. by Patent granted omnes terras Dominicales Manerij de W. It was adjudged That customary Lands held by Copy parcel of the same Manor shall not pass and yet they are in the Law parcel of the Demesns of the Manor but in the Case of a common Person they shall pass by those words 1 Rep. 46. in Alton Wood's Case But if a man grant all his Demesn Lands his Copy-hold Lands will not pass if he had other Demesns to satisfie the words of the Grant 2 Rolls Rep. 236. And if I grant all my Lands and Tenements in D. my Copy-hold Lands there pass not because they cannot pass by any such assurance Owen Upon a special Verdict King H. 8. seized in Fee of the Manor of D. granted by his Letters Patents to Richard Andrews and Peter Temple in Fee Inter alia omnia Messuagia terras tenementa redditus reversiones servitia hereditamenta sua in D. subscripta viz. totum illum annualem redditum quindecim solidorum alia ser vitia exâ—untia de terris W. K. ac totum illud Messuagium 6 vergatas terrae in D. in tenura J. D. Habend tenend omnia predicta Messuagia terras tenementa redditus reversione servitia hereditamenta in D. pred to the said Richard Andrews and Peter Temple and their Heirs The Question was whether this was a good Patent to convey the said Lands of the said W. R. being a Copy-holder pur vie Per Cur. It was a void Patent to convey the Lands of the Copy-holder to them for there is not any Land granted but the Rents and Services of W. R. which is intended Freehold and there being none such the Grant is meerly void Cro. Car. 21. Castle and Hobbs By Hobart if the King grant you his Demesns you shall not have his Copy-holds in Waste and Pretty's Case Winch p. 3. What things shall pass by Grant of another thing as Appurtenant or Incident or not If there be a Common appendant to a Copy-hold Tenement Appurtenant and the Lord makes a Feoffment of the Tenement with all Profits Commodities and Common to this Appurtenant Yet the Feoffee shall not have any Common for this was Appurtenant to the Copy-hold and not to the Freehold 2 Rolls Abr. 61. So if he Lease the Copy-hold Tenements for years with such words as before yet Lessee shall not have any Common for the reason aforesaid ibid. What passeth or not by the words cum pertinentijs There being a Copy-hold Messuage called Symonds whereto divers Copy-hold Lands were appertaining the said Messuage called Symonds cum pertinentiis being surrendred to the Lord and all his rights therein It was moved whether by that surrender the Copy-hold Land shall pass or only the said House with the Orchards Yards and Curtelage And Per Cur. The Copy-hold Land shall not pass by these words cum Pertinentiis and in this it is all one in case of a Copy-hold as a Freehold Cro. Jac· p. 526. Smithson and Cage By Feoffment of the Manor Copy-holds pass 3 Keb. 456. Copy-holder had Common of Estovers in the Lords Wood appurtenant to his Copy-hold and he purchased the Inheritance of the Copy-hold Common and had the words in his Deed of all Commons appertaining the Common is extinct had there been special words aliter More n. 915.866 Vide supra Cum Pertin Copy-holder hath Common in the Wastes of the Lord the Lord by Deed confirms to a Copy-holder Hab. to him and his Heirs with the Appurtenances the Common is extinct for he hath his Common in respect as he is customary Tenant 2 Brownl 210. Marsham and Hunter CAP. XIII Of Surrenders The nature of a Surrender General Rules and Diversities for the better Explication Of the Alienation of Copy-hold Estates in general and of selling Copy-holds by Commissioners of Bankrupts in particular Of Surrender in Court. By what words a Surrender will pass What amounts to a Surrender Of a Surrender out of Court Who may take a Surrender out of Court What Surrender out of Court is good or not Of Surrenders The Nature of a Surrender A Surrender is a giving up of the Land by the Tenant to the Lord according to the Custom to the use of him that is to have the Estate and is entred in this manner The form thus according to Mr. Littleton Ad hanc curiam venit A. de B. sursum reddidit in ead curia unum Messuagium c. in manus Domini ad usum C. de D. Haeredum suorum vel Haeredum de corpore suo exeuntium vel pro termino vitae suae c. Et super hoc venit paerdictus C. de D. cepit de Domino in ead Curia Messuagium praed c. Habend tenend sibi haeredibus suis vel sibi haeredibus de corpore suo exeuntibus vel sibi ad terminum vitae c. Ad voluntatem Domini secundum consuetudinem manerij faciendo reddendo inde redditus servitia consuetudines inde prius debita consueta c. Et dat Domino pro fine c. Et fecit fidelitatem c. Note The Surrender to the Lord is general without expressing any Estate for that he is but an Instrument to admit Cesty que use for no more passeth to the Lord but to serve the Limitation of the Use and Cesty que use when he is admitted shall be in by him that made the Surrender and not by the Lord. And therefore if Copyholder in Fee Surrender to the use of another for Life nothing more passeth from him but what shall serve the Estate limited to use 9 Rep. 107. Podger's Case A Surrender is in nature of a Deed Poll rather than of an Indenture and enures by way of limitation of use 1 Sanders 151. If a Copy-holder Tenant Surrender to the use of himself Habend to him and his Wife and the Heirs of their Bodies it seems this is void for it is in nature of a Grant at Common Law for she was not named in the Premisses 2 Rolls Abr. 67. Brooks's Case Vide infra A Surrender is to this purpose that the Lord should not be a Stranger to his Tenant A Surrender is but a Conveyance by matter of Fact and no higher and
Cesty que use surrenders to another and after at another Court he to whose Use the Surrender was surrenders the Land to the Use of another this shall enure as an Admittance upon the first Surrender and after a Surrender for by the acceptance of the Surrender he is admitted Tenant Acceptance of a Surrender 1 Rolls Abr. 505. Calchin's Case 3 Bulst 230. mesme Case If a Copy-holder surrender to the Use of another Acceptance of Rent and after the Lord having knowledge of this accepts the Rent of Cesty que use out of Court this is an Admittance in Law Rolls 1 Abr. 505. Freswel and Welch If the two Tenants into whose Hands the Surrender was pay the Rent to the Lord yet his acceptance shall not amount to an Admittance but if he had alledged the payment of the Rent and acceptance of it by the Lord as of his Copy-holder this would have amounted to a good Admittance of him 3 Bulstr 215. mesme Case Any act to imply the consent of the Lord to the Surrender What acts or words by the Lord amount to an Admittance it shall be a good Admittance the Presentment by the Homage doth not make an Admittance the acceptance by the Steward of the Presentment is no Admittance Bridgman Rep. 82. Robinson and Groves Copy-holder surrenders his Estate to the Use of J. S. who again surrenders the same to the Use of J. N. this is good vide supra Or in such case if the Lord meet J. N. and saith to him Such a Surrender is made to your Use to which I agree or am content this saying amounts to a good Admittance 3 Bulstr 230. Elken's Case 215 216. If the Steward accept a Fine as of a Copy-holder it amounts to an Admittance granted in Rawlinson and Green's Case 3 Bulstr 237. In what Cases the Admittance of one shall be the Admittance of another If a Copy-holder surrender to the Use of one for Life the Remainder to another the Admittance of Tenant for Life is Admittance for him in Remainder also for that they are but one Estate and but one Fine is due for both 4 Rep. 22 23. Fither's Case Aliter of him in Reversion More n. 488. Dell and Higden He in Remainder after a Tenant for Life who was admitted surrenders to the Use of a Stranger in the Life-time of Tenant pur vie and good Cro. Jac. 31. Auncelm's Case But such Admittance of Tenant for Life shall not prejudice the Lord of his Fee due by the Custom 4 Rep. Brown's Case 22 23. Foxton and Colston But in Hippin and Bunner's Case Popham thought only one Fine to be due upon such surrender which the Tenant for Life shall pay before his Admittance except there be especial Custom that two Fines shall be due Cro. Eliz. 504. The Admittance of Tenant for Life or Years shall be an Admission of all in Remainder Per Hales and there is no inconvenience in it for Fines are to be paid by the particular Remainder except a Fine be assessed for the whole Estate and then there is an end of the Business The Estate is bound by the Surrender and shall go to them in Remainder Mod. Rep. and 3 Keb. 29. Blackburn and Greves A Copy-holder Surrenders to the Use of several Persons for years successive the Remainder in Fee to J. S. an Admittance of a particular Tenant is an Admittance of all the Remainders to all purposes but only the Lords Fine and the Possession of Lessee for years is the Possession of him in Remainder ibid so as to make a Possessio Fratris and the Sister of the whole Blood shall have it before a Brother of the second Venter Admittance by Attorny The Lord may refuse to admit by Attorny him to whose Use a Surrender was made for that he ought to do Fealty which he cannot do by Attorny 9 Rep. 76. Comb's Case Yet if the Lord will admit him by Attorny its good ibid. A Copy-holder surrendred to the Use of his last Will and devised the Lands to his youngest Son in Fee The youngest Son being in Prison makes a Letter of Attorny to one to be admitted to the Land in the Lords Court in his room and also after Admittance to surrender the same to the Use of B. and his Heirs to whom he had sold it for the payment of his Debts by two Judges it s not a good Surrender Admittance of an Heir is good by Prochein Amy By Prochein Amy. for by such Admittance he is to do corporal Service which cannot be done but in person and yet it hath been adjudged good the Heir consenting but otherwise 2 Siderfin 37 61 Blunt and Clark 4 Rep. Brown and Clerk's Case The Case was Copy-holder surrenders to the Use of J. S. and his Heirs Proviso That if the Copy-holder pay eight hundred pounds at such a day the Surrender shall be void J. S. dyes before the day not being admitted and his Heir beyond Sea A Neighbour comes and is admitted in the name of the Heir the Heir comes back and brings Ejectment Per Cur. It s a good Admittance for a Consent subsequent is as strong as an Authority precedent in this Case and the Heir affirms his Admission And if a Surrender Per Glyn be to the Use of J. S. and J. N. is admitted and J. S. consents it s a good Admittance Admittance where to be made The Lord of the Manor may make Admittance out of the Manor also Co. Lit. 61. b. The Steward of the Manor may admit upon a Surrender out of Court as well as in Court 4 Rep. 26 27. Freswel and Welch Admittances upon Descent The diversity between Admittance upon Surrender and Admittance upon Descent lyes In Admittance upon Surrender nothing is vested in the Grantee before Admittance no more than in voluntary Grants but in Admittance upon Descents the Heir is Tenant by Copy immediately upon the death of his Ancestor The time of Admittance There is thirty years between the death of the Father Excuse and the Heirs not being admitted who made a Lease Per Cur. this is supina negligentia and shall disable his Person to make any Demise but the Lessor at the time of the death of his Ancestor was two years of age and that after his full age no Court had been holden for a long time and that at the first Court lately he prayed to be admitted and the Steward refused him And Per Cur. this is a good excuse 1 Leon. 100. Rumny and Eves If a Copy-holder dyeth When the Heir must pray to be admitted his Heir within age he is not bound to come at any Court during his non-age to pray Admission or to tender his Fine also if the death of the Ancestor is not Presented nor Proclamations made he is not at any mischief although he be of full Age ibid. What things the Heir way do or not before Admittance Upon the death of the Ancestor he may
had not paid it accordingly The Plaintiff demurs the Lord having not shewed that the Fine assessed was reasonable But Per Cur. the Lord is not bound to aver that but it must come on the Copy-holders side to shew the circumstances of the Case to make it appear to the Court to be unreasonable But the Opinion of the Court was against the Lord in this Action because he had not laid a demand of his Fine at the time it grew due or sometime after of the person of the Tenant Refusal to pay an excessive fine no Forfeiture If the Lord demand an excessive Fine of his Copy-holder and he refuseeth to pay it it s no Forfeiture aliter where it is a reasonable Fine and the Court and Jury shall be Judges of the reasonableness of it But if a Fine be certain the Tenant is to bring it with him to Court and to pay it before Admittance and if he be not ready to pay it is a Forfeiture Moor n. 851. Dalton and Hammond Cro. El. p. 779. mesme Case No notice need where a Fine is certain Aliterâ— where it s uncertain Where a Fine is certain no notice or demand is necessary contra where it is uncertain and where the certainty is dubious the refusal is no Forfeiture 1 Keb. 154. Wheeler and Honour Tender and refusal is good payment Mod. Rep. 77. Legingham's Case Upon unreasonable Fine the Tenant may refuse to pay In Dow and Golding's Case The Question was whether the Lord of a Manor may assess two years and and half value of Copy-hold Land according to wracked Rent for a Fine upon Surrender and Admittance and for non-payment enter for a Forfeiture All the Court conceived That one year and an half Rent improved is high enough What Fine is unreasonable and two year and an half is unreasonable and therefore the Plaintiff in Trepass might well refuse the payment of it and the Entry of the Defendant for a Forfeiture is not justifiable Adjudged pro quer sur demur If the Ancestor had divers Copy-holds If the Lord demands one entire Fine for divers Copy-holds the Heir may refuse and the Lord demands of the Heir one entire Fine for them all the Heir may refuse payment the Lord ought to make several demands because the Heir may accept one and refuse the other And Waste in one of the Copy-holds is not a forfeiture of the other Cro. Eliz. 779. Dalton and Hammond If a Fine by the Custom of the Manor Refusal to pay a Fine certain upon the Admittance of a Copy-holder be certain if the Lord demand this Fine and the Copy-holder denies to pay it on demand Present Forfeiture without presentment this is a Forfeiture presently without Presentment But if the Fine by the Custom of the Manor be uncertain though a reasonable Fine be assessed yet it being uncertain the Copyholder is not bound to pay it on demand presently but shall have convenient time to discharge it 1 Rolls Abr. 507. But if he assess an unreasonable Fine and the Copy-holder refuse to pay it it s no Forfeiture therefor the Case of Turner and Cromwel cited in Crisp's Case is not Law 1 Rolls Abr. 507. It was held in the Case of Fanshaw and Bond Refusal to be admitted and to pay reasonable Fine That if a Copyholder refuseth to pay a reasonable Fine or to be admitted to the Copy-hold this is a Forfeiture of his Estate Stiles p. 387. Services If a Copy-holder do not perform the Services due to his Lord this is a Forfeiture 43 E. 3.25 b. What words of denial to perform Services shall be a Forfeiture or not The Lord comes to the Copy-holder and requires him to do his Services viz. such and such and the Copy-holder answers You shall have them if they are due by Law but it shall be tryed at Law first this was adjudged to be no Forfeiture in P. 16. Eliz. Vernon and Huggin's Case cited in Lach p. 122. Grey and Ulysses Case Not appearance at Court The not appearing at Court was a Forfeiture Now a Copy-holder said If it were a Court he would appear if none he would not though this appear to be a Court yet this is no Forfeiture because no wilful contempt Per Twisden in the Case of Muniface and Baker 1 Keb. 25. Willis's Case and Parker against Corker cited in the Case of Wheeler and Honour 1 Keb. 154. Stiles p. 141. Parker and Cooke Per Rolls if there were no controversie about the Courts being well held or not and that the words were used only as a Shift it s then a Forfeiture else not Warning of the Courts being held and where It was a Question whether a Copy-holder not coming to the Lords Court to do and perform his Suit in three years time be a Forfeiture It must be proved he had warning of the time of holding the Court for the Lord may hold his Court when he pleaseth 3 Bulstr 80. Belford and Adams If a Copy-holder in Fee retraxit Scil. withdraw his Suit for many years to the Court of the Lord no warning being alledged to be made by the Lord to him when he held his Courts it s no Forfeiture it is but a negligence aliter if he had been warned and then had refused to have done Suit 1 Rolls Rep. 256. Adam's Case The Manor of declaring when a Copy-holder is summoned Nar. and refuseth to do his Services 3 Bulstr 268. Hammond's Case Stiles 241. If the Copy-holder doth not come to the Court of the Lord Not coming upon notice without refusal express is a Forfeiture after a particular Summons made to their persons this was adjudged a Forfeiture without express refusal Noy p. 5. Sir Christopher Hatton's Case cited in Crisp and Fryer's Case 1 Rolls Rep. 429. Bullevant and Bickerstaff General warning within the Parish is sufficient General Summons or warning at Church for if the Tenant himself be not resiant upon his Copy-hold but elsewhere his Farmer may send notice to him of the Court If a man be so weak that he cannot travel without danger c. or if he he have a great Office c. these shall excuse Sir John Branch's Case 1 Leon. p. 104. Now Sir John had by his Letter of Attorny appointed the Son of his Farmer his Attorny to do the Services for him due for his said Copy-hold Per Cur. such a Person so appointed might Essoyn Sir John but not do the Services for him Services not to be performed by an Attorny An Essoyn may for none can do the same but the Tenant himself therefore the third Resolution in Tavernor and Cromwel's Case Cro. El. 353. seems not to be Law Vide Coke's Ent. 288. Tavernor and Cromwel's Case of a general Summons at the Church The Custom was If any Copy-holder in Fee dye seized and his Heir comes not at the next Court and claims the said Tenements and
dedemisable for one two or three Lives in which Manor was a Custom that the Lord for the time being might grant Copy-hold Estates for Life in Reversion the Lord granted such Lands for Life by Copy in possession took a Wife and granted the same Copy-hold to a Stranger in Reversion for Life and dyed the Copy-holder in possession dyed this Land inter alia is assigned to the Wife for her Dower Dower the Copy-holder shall hold the Land discharged of the Dower 1 Leon. p. 16. Cham and Dover's Case In Cham and Dover's Case is cited the Case of Slowman who being Lord of a Manor ut supra by his Will devised That his Executors should grant Estates by Copy and dyed having a Wife the Executors make Estates accordingly Dower the Wife in case of Dower shall avoid them Dyer 344. and 1 Leon. p. 16. Lord of such a Manor is bound by Recognizance Recognizance afterwards a Copy-holder for Life dyeth the Lord granteth his Copy-hold de novo the new Grantee shall hold the Land discharged of the Recognizance for the Copy-holder is in by the Custom which was paramount 1 Leon. p. 16. Granted upon an Escheat shall avoid Charges The Lord of a Copy-hold Manor where Copy-holders are for Life grants a Rent-charge out of all the Manor one Copy-hold Escheats the Lord grants that again by Copy the Grantee shall not hold it charged because he comes in above the Grant viz. by the Custom the same Law of Statutes Recognizances Dower and Dyer 270. is deemed for Law in Swain's Case Copyholders Beasts distrainable or not for a Rent charge If one is seized of Rent-charge by Prescription issuing out of the Manor of D. yet it seems he may not distrain the Beasts of the Copy-holders of the Manor unless they have been used to be distrained for that they are in by Prescription also and so as high as the owner of the Rent but it is clear That if the owner of the Rent had this by Grant or otherwise and not by Prescription that the Copy-holders Beasts cannot be distrained for this 1 Rolls Abr. 669 670. Cannon and Turner But by Coke Chief Justice If a Copy-holder be of 20 Acres and the Lord grants Rent out of those 20 Acres in the Tenure or occupation of the said Copy-holder and names him there if this Copy-hold Escheat and be granted again the Copy-holder shall hold it charged for this is now charged by express words Brownl 208. Sammer and Force Tenant by the Curtesie for Life or years of a Manor a Copy-hold comes to his Hands by Forfeiture or Determination and then he was bound in a Statute Statute by the Lord. and afterwards demised the Land again Per Cur. this Copy-hold shall be lyable to the Statute because it was once annexed to the Free-hold of the Lord and bound in his Hands But if a Copy-holder bind himself in a Statute Statute by the Copy holder Diversity it shall not be extended for he had not but an Estate at will and this diversity was agreed in Moor n. 233. Anonymus Lord of a Manor being summoned upon a Jury lose Issues Process for Loss of Issues Process shall issue out of the Exchequer to levy them upon the Lands of the Copyholders and Lessees for Life and years parcel of the Manor for the loss of Issues lies upon the Land as an inherent Servitude by the Law into whose Hands soever it comes and this is the common practice of the Exchequer CAP. XXV Of Harriots The Nature of Harriot Service and Harriot Custom and of their Differences What Custom for Harriots are good or not Where they shall be apportioned and by whose acts Who shall pay Harriot or not And the Pleadings Of Harriots HArriots being one of the ancient Services now most esteemed and kept up and many Copy-holds being Harriotable I shall Treat of Harriots chiefly intending Harriot Customs and so far of Harriot Services as to render the whole Intelligible The Normans upon parcelling out their Lands to inferior Tenants invented this Service and termed it Harriot Service and afterwards upon Infranchisement of their Villains Harriot Customs were given to the Lords for a future continued gratulation and so originally they were de gratia but now they are de jure It is the best Beast or other thing that the Tenant hath at the time of his death and this shall be paid before a Mortuary but the Lord if he will may seize the worst and that seizure gives him property Hob. p. 60.16 H. 7.5 Co. Lit. 185. b. Harriots may be by Tenure Custom or Reservation Plowd Com. Redsole and Mantel There are two sorts of Harriots Harriot Service Custom And the nature of them both will be best explained by these diversities Harriot Service is generally exprest in a mans Grant or Deed by which it is reserved and is in these words or to this effect ac etiam per servitium reddendi post mortem cujuslibet tenentis deceden seisit optimum animal c. 1 Anderson 298 299. Odiam and Smith But Harriot Custom is only due by Custom time out of mind and may be paid after the death of Tenant for Life Terms del Ley. Harriot Service is extinct by Purchase of parcel but not Harriot Custom Co. Lit. 149. b. It hath been made a question in our Books whether the Lord may seize for Harriot Service but it is agreed he must seize for Harriot Custom Plowd 96. a. In the Case of Woodland against Mantel it is said the Lord may seize for Harriot Service but Anderson 1. p. 298 299. in Odiham and Smith's Case saith he ought to distrain and not to seize so is Serjeant Benlows p. 18 39. But the Law is setled in Cro. Car. 260. Mayor versus Brandwood and that it is at the Lords election either to seize it or distrain it if he can find it though the pleading seem to justifie it for in Replevin if one justifie for Harriot Custom it s no Plea for the Plaintiff to say that the place where is hors de son Fee for that he claims this Harriot as his proper Gopds and may seize it wherever he finds it Bendl. p. 18 39. For the Lord may seize for an Harriot Custom in the High-way 2 Inst 132. What Custom for Harriots shall be good or not Custom was That if the best Beast be esloigned then the Lord had used to seize and take the best Beast of any other being Levant and Couchant upon the Land it s a void and unreasonable Custom So if it be the Goods of any Inhabitant or Dweller Dye 199. b. Paxton's Case Benl p. 39. bis Co. Ent. 666. The Custom of having an Harriot whether the man had Goods or not is a void Custom Carter's Rep. p. 86. A Custom That the Lord shall seize the Beasts of a Stranger for an Harriot it is not good because it alters the property but a Custom That he shall distrain
Lease had been in possession and the Lessee had never entred he had been barred 1 Brownl 181. This Fine shall not be a bar to the Copy-hold Estate in Remainder for Life for it is not turned to a right the Estate is given by Custom and is to have his beginning after the death of the first Tenant and if the first Tenant commit Forfeiture he in Remainder cannot enter and by Coke notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for Life remains in esse 2 Br. 153. mesme Case Custom that the Lord shall seize Copy-hold after three Proclamations and non-Claim by the Heir shall not bind the Heir that is beyond the Sea 8 Rep. Sir Richard Lechford's Case Statute 37 H. 8. Of Dissolutions 37 H. 8. Of Monasteries extends not to Copy-holds A Copy-holders Estate is not within the Statute of Monasteries and Chanteries to be avoided by any of the Statutes So by Statute 1 Ed. 6. Cap. 14. it is expresly provided That upon the dissolution of Abbies and Monasteries Copy-holds should continue as they did before the Statutes and should fall into the Kings Hands A Copy-holder dissolved by the Statute of Edw. 6. did between the Statute of 37 H. 8. and 1 Edw. 6. grant a Copy-hold Estate in Reversion but the Statute 37 H. 8. extends not to them 3 Bulstr p. 15. Long and Baker Vide 1 Leon. p. 4. mesme Case 31 H. 8. Eccles Leases Of making Leases of Copy-hold Lands belonging to Religious Houses for years after Leases for Lives or Years in being is within that Statute 8 Rep. 7. Heydon's Case 32 H. 8. Of Conditions Entries Assignee Copy-hold is not within the Statute of Entries for Conditions broken Surrendree of Reversion shall not enter for a Condition broken it s not within the Statute of Conditions Hob. p. 177 178. Swinnerton and Miller Copy-hold is not within the Statute of 32 H 8. Entries for Conditions Copy-holder by Licence makes a Lease for 60 Acres rendring Rent and condition of Re-entry Copy-holder Surrenders to J. S. and he demands Rent and enters for Non-payment J. S. is not such an Assignee as the Statute intends and Custom doth not trench to such collateral things such Assignee being in only by Custom is not privy to the Lease made by the first Copy-holder nor in by him but he may plead his Estate immediately under the Lord Yel 222. Brasier's Case But Assignee of a Copy-hold is within the Statute to have Action of Covenant 1 Keb. 356. Arrears of Rent Baker's Case Quaere if of Debt Cro. Car. 21. Platt and Plummer Executors brought Action for Arrears of Rent of Copy-hold of which Manor the Testator died seized Per Cur. Action doth not lye for Arrears of Copy-hold Rents but only of Rents of Free Land and Statute 32 H. 8. extends not to them Yelv. 135. Appleton and Doiley 1 Brownl 102. Tenant in Tayl of a Manor wherein Copy-holds are demisable for Life c. for a certain Rent Copy-holder for Life dyes and the Lord demiseth it for 21 years 38 H. 8. Rents of Leases in Tayl. rendring the ancient Rent c. it s good within the Statute 38 H. 8. for its not any prejudice to the Issue as to the Rent Noy p. 106. The Lord Norris's Case Vide infra hoc capite If the Lord of a Copy-holder for Life demisable by 10 s. Rent leaseth it by Indenture to the Copy-holder and two others for their Lives rendring 10 s. Rent by which it is within the Statute of 32 H. 8. and is not material though the Harriot be lost because it is meerly casual Noy p. 110. Banks and Brown Vide Montjoy's Case 5 Rep. Et supra Copy-hold is within the Statute 32 H. 8. 9. 32 H. 8. Cap. 9. Of maintenance Of Maintenance for the Word is Any Right or Title 4 Rep. 26. a. Vide infra hoc capite Copy-hold is grantable for three Lives 13 El. Cap. 10. Dean and Chapter of London grant this to H. G. for the Lives of J. R. and M. reserving the ancient Rent but no Harriot the Rent was payable at four Quarters and by this Lease its payable half yearly yet this is not void by the Statute 13 El. Cap. 10. For the Occupant shall be punish'd for Waste and the Harriot is not annual nor depends on the Rent and as to the Rent it s the accustomed yearly Rent but in Mountjoy's 5 Rep. yearly was wanting 6 Rep. 37 Dean and Chapter of Worcesters Case Copy-holds are within all the Statutes of Bankrupts by express words vide supra Statutes of Bankrupts 1 El. and Jac. A Copy-hold is not within the Statute of Limitations Debt for the Fine of a Copy-holder is not within the Statute of Limitations 2 Keb. 536. Statute of Limitations Hodsden and Harris Vide. It is laid down for a Rule in Rowden and Malster's Case Cro. Car. 44. When an Act of Parliament altereth the Service Custom Tenure and Interest of the Land Rules when Acts of Parliament extend to Copy-holds or not or other thing in prejudice of the Lord or Tenant there the general words of such an Act shall not extend to Copy-holds Therefore W. 2. Cap. 20. Elegit Statute W. 2. Cap. 20. which gives Elegit extends not to Copy-hold Lands because it would be prejudicial to the Lord and a breach of the Custom that any stranger should have Interest there without admittance and allowance of the Lord. 27 H. 8.10 Stat. of Uses Statute 27 H. 8.10 of Uses toucheth not Copy-holds because the transmutation of Possession by the sole Operation of the Statute without allowance of the Lord would be to the Lords prejudice 31 H. 8. and 32 H. 8. Of Partition The Statute 31 H. 8. Cap. 1. and 32 H. 8. Cap. 2. whereby Joynt-tenants and Tenants in common are compellable to make Prohibition extend not to Copy-holds And the 32 H. 8. Cap. 28. Leases by Tenant in Tayl or by Husband of the Wives Land Statute 32 H. 8. Cap. 28. Which confirms Leases for 21 years made by Tenants in Tayl or by the Husband and Wife of the Wives Land touch not Copy-holds for that Statute warrants only such Leases of Lands which are grantable by Deed such are not Copy-hold Lands though by the Lords Licence they may be granted by Indenture yet in their own nature they are only demisable by Copy So Statute 32 H. 8. Cap. 34. And for the same reason which gives an Entry to the Grantee of a Reversion upon the breach of a condition by the particular Tenant toucheth not Copy-hold In all Statutes made for the good of the Common-wealth and wherein no prejudice accrues to the Lord or Tenants by reason of the alteration of any Interest Service Tenure or Custom of the Manor there the general words of such acts of Parliament do extend to Copy-hold Lands as Statute of Merton Cap. 1.
and how they differ What Customs for Harriots are good or not Where they shall be apportioned and by whose Acts. Who shall pay Harriot or not and the Pleadings CAP. XXVI What Statutes extend to Copy-hold Lands and within what Statutes Copy-hold Lands shall be contained by Construction of Law without express words and what not and therein how Copy-holds shall be barred by Fine and non-claim c. CAP. XXVII Of Embleaments Who shall have them the Lord or the Copy-holder CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not CAP. XXIX Of Actions and Suits What Actions may be brought by the Lord and what Actions may be brought by Copy-holders or their Executors against the Lord or against Strangers in respect to their Copy-hold Estates and Priviledges CAP. XXX Of Copy-holders being impleaded and impleadable in the Lords Court and a Faux Judgment in the Lords Court and how and where to be relieved CAP. XXXI Of Declarations of for and concerning Copy-hold Estates how to be brought and laid and Presidents in what Cases they have been brought CAP. XXXII Of Pleadings The general Rules of Pleading as to Copy-hold Estates The different Forms of Pleading Customs and Prescriptions Of Pleading in reference to Common belonging to Copy-hold and when to be pleaded by way of Custom or by way of Prescription The manner of Pleading when a Lease is to be answered which is set forth in the Avowry Where in pleading the Commencement of the Estate must be shewed and by whom granted or not And how a Licence must be pleaded by the Lessee Prescription of Copy-holder to be discharged of Tythes how to be pleaded Of Traverses when how and where to be taken Forms of Pleading of Surrenders Admittances Estates in Fee Tayl for Lives or Years Pleadings of Presentments and Grants Presidents of bars by Commons Woods Ways Inclosures Forfeitures and all other Pleadings necessary for the Copy-holder to set forth his Title or defend it CAP. XXXIV Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not What shall be tryed by the Jury and what by the Court Rolls Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be tryed Venue CAP. XXXIV Of Special Verdicts Imperfect Custom not well found Failure of Prescription How the Custom must be found by the Jury Presidents of special Verdicts CAP. XXXV How and in what Cases Copy-holders have been relieved in Chancery Presidents of Conveyances respecting Copy-hold Estates and Presidents of Surrenders Grants Admittances Presentments Lex Custumaria OR A TREATISE OF Copy-hold ESTATES c. CAP. I. Of the Original and Nature of a Manor and of what it consists Of a Manor Real and by Reputation Of a Customary Manor Of Grants and Leases of Manors with respect to this Subject of Copy-holds and what shall be said Parcel of a Manor or what shall be said a Severance FOR the right understanding of the Law as to Copy-hold Estates it 's necessary to premise something of the Nature and Notion of a Manor upon which they depend as the Materia though Custom is the Form thereof And I shall say no more of Manors than what shall have a direct influence upon the Explication of the nature of Copy-hold Original of Manors As for the Original of Manors Take this brief Account out of Perkins 670. Horns Mirror Lib. 1. Cap. de Roy Alfred Fulbeck f. 18. Lambert verbo Thaine Bacon's Elements of the Law 41 42 c. The ancient Kings of this Realm who had all the Lands of England in Demesn that is in their own Hands or totally at their own disposal did grant a certain compass or circuit of Ground upon some great Personages with liberty to parcel out the Lands to other inferior Tenants reserving such Duties and Services as they thought fit with power to keep Courts where they might redress Misdemeanors within such their Precincts and decide Controversies of meum and tuum within their Jurisdictions these Lords and Noblemen performing such Services and paying and yielding such Rents as the said Kings by their Grants reserved These Grantees were called Barons and were such as came to Parliament and from thence it keeps the name of Court Baron to this day though in process of time by the Grants of such Barons these Lands and Manors came into the Hands of meaner Men by Purchase c. as it is at this day And according to this our Custom all Lands holden in Fee throughout France are divided into Feifs and Arrear-Feifs into Feifs or Knights Fees and Mesne Fees whereof the former are such as were granted by the King the second such as the Kings Feudatories do again grant to others Now by Justice Winch in his Argument in the Case of Rowles and Mason 2 Brownlow 195. Manors are divided into three sorts of Tenures 1. The first holds by Knight Service and this is for defence of the Lord. 2. The second holds by Socage and this is to Plow and Manure the Demesns of the Lord c. since turn'd into Rent 3. The third holds by base Tenure and these are at the will of the Lord and these were to do Services and some had greater Priviledges than others to encourage them to perform their Services as it is in Ireland at this day Out of these by length of time and Custom sprang up the Race of Copy-holders For the Name or Etymology of the word Manor Etymology some fancy it to be Manerium quasi Manurium from manuring the Ground and then it takes its Name either from the Lords Demesns which the Tenants are bound to Manure or from the Lands remaining in the Tenants hands and others with more probability think it to be derived from the French word Mesner to govern or guide because the Lord hath the government of the Tenants within his Jurisdiction But that I may come to the thing intended and to leave the flourishes of guess and fancy It is a Maxim common in our Books Of what a Manor consists Demesns what That a Manor consists of Demesns and Services As for the word Demesns Dominicum or Domainium it is taken it two senses It is most properly taken for those Lands which remain in the Kings hands and so all Subjects are excluded from being seized in Dominico and we have little of that now but ancient Demesn Lands which are such as were in the hands of King Edward the Confessor But in a sense less proper Demesn Lands may be said to be in the hands of an inferior Lord or Tenant and as my Lord Coke on Littleton f. observes the form of Pleading shews this difference for an inferior Lord or Tenant never pleads That he is seized in Dominico absolutely but qualified with this addition in dominico suo ut de feodo Pleading and the word Fee or Feif implies that his Estate is not absolute but depending on some superior Lord. So
4. Rep. 29. Bunting and Lepingwel 5. Copy-hold ought to be dimissa dimissibilis as it is in Murrels Case 4 Rep. vide infra Tit. Custom Yet this Rule is not Infallible For if a Copy-hold Land be in the hand of a Subject who is after preferred to Dignity Royal the Copy-hold is extinct for it is below the Majesty of a King to perform servile Services and yet after his Decease the next who hath right shall be admitted and the Tenure shall be revived in him 2 Siderfin 82. CAP. III. Priviledges of Copy-hold Estates 1. Priviledges of the Lord. 2. Of the Tenant 3. Priviledges of Infants Copy-holders 4. Of Copy-holds in respect of the Kings Prerogative and Priviledge BEfore I come to Treat farther of Copy-holds I thought it might not be amiss to set down the Priviledges of Copy-holders and Lords and Prerogative of the King that so the Student being well setled in these they need not be mentioned or explicated hereafter though they may lye here and there scattered in the following Cases Priviledges of the Lord. The Lord may upon Seizure of a Copy-hold maintain an Ejectment till the Heir come to be admitted 1 Keb. 287. Pateson and Danges The King shall not have the custody of the Land that the Ideot holds by Copy The Lord to have the custody of an Ideot for this is no more than an Estate at Will at Common Law and if the King should have the custody of the Land he would much prejudice the Lord. Yet alienation made of it by the Ideot after Office found shall be avoided Coke 4 Rep. 126. Beverly's Case Copy-hold Lands granted to three for the Lives of two if the Tenants pur auter vie dye Living cesty que vie the Lord shall have it for there shall no be Occupancy 1 Rolls Abridg. 511. Ven and Howel's Case No Occupancy The Lord shall have the custody and not the Prochein Amy. The Copy-holder is surdus mutus the Lord shall have the Custody and not the Prochein Amy for otherwise he should be prejudiced in his Rents and Services Cro. Jac. 105. Evers and Skinner The Lord is Chancellor in his own Court to dispose of the Estate when the Tenant leaves it uncertain Vide infra sub Tit. Customs in reference to Estates sparsim per tout If a Copy-holder surrender to the use of one and the Lord refuseth to admit him no Action of the Case lyeth against him so if such Copy-holder prays the Lord to hold a Court and he refuseth Where a Surrender is to be made to a Tenant of the Manor if he will not take such Surrender yet no Action of the Case lyes against him 1 Rolls Abr. 108. In what capacity the Lord stands in reference to the Copy-holder's Estate He is an Instrument of Conveyance upon Surrenders and a Conveyer himself upon voluntary Grants He is Chancellor in his own Court and may proceed by Bill vide infra Of the Priviledges of Copy-holders In this Chapter I shall sum up some general Priviledges of Copy-holders which lye scattered in the several Customs hereafter treated of A Copy-holder may make a Lease for a year without Licence of the Lord vide Lease Lease Copy-holders of a Manor may have Solam separalem pasturam in the Soyl of the Lord Sola separalis pastura and exclude him 2 Sanders 326 327 328. If a man be obliged in a Statute Staple Stat. Staple Elegit his Copy-hold Land is not extendible but aliter upon a Statute of Bankrupts vide Tit. Grant It s not extendible upon Elegit If a Copy-holder Lease for years by Licence of the Lord this is not extendible in the Hands of the Lessee Rolls Abr. 888. Picto's Case Copy-holder of Inheritance may dig for Mines in his Land So the Parson in his Glebe as it seems Siderfin p. 152. The Lord of Rutland against Gee per Hobart and Warburton Copy-holder may dig for Marle without any danger of Forfeiture Digging for Marle but he ought to lay the said Marle upon the same Copy-hold Land Winch p. 8. A Custom is that the Lord of a Manor may dig for Coals and open Mines in the Land of his Copy-holder Coals It was made a doubt in Goodrick and Gascoin's Case if Lessee of the Manor may have this liberty and whether such liberty can pass by Grant of the Manor without special words Latch p. 189. A Copy-holder may hedge and enclose but not where it was never enclosed before Winch p. 8. Note a difference between Priviledges which are annexed to the Seigniory and Priviledges annexed to the Tenancy The first the Lord may destroy but not the last Therefore If Tenant at Will be Out-lawed his Estate is determined Outlawry but a Copy-hold is not forfeited or determined by Outlawry Lit. Rep. 234. cited to be adjudged in 44 Eliz. Yet vide 1 Leon. p. 99. Where a Copy-holder is Outlawed the King shall have the Profits of his Copy-hold Lands and the Lord hath not any remedy for the Rent If the King grants a Manor in which are Copy-holders in Fee-farm Fee-Farm Rent the Lands or Goods of the Copy-holders are not liable to the Fee-farm Rent although the Free-hold is for the Copy-holders are elder than the Rent being by Prescription So Rent by Prescription If the King had a Rent by Prescription out of the Manor in which there are Copy-holders if the King had not used to Levy this upon the Copy-holds it seems he cannot charge them forasmuch as they are in by Prescription also M. 12 Jac. B. 2 Rolls Abr. 157. Assets Copy-hold Inheritance shall not be Assets to charge the Heir Popham 188. Copy-holder makes a Lease for years by Licence and dyes this shall not be Assets in the Hands of his Executors Popham 188. Copy-holder shall have Ayd of the Lord where the right of the Seigniory comes in question upon the Issue taken Ayd 21 H. 6.37 But where he hath Ayd of a Bishop and after the King hath the Temporalties he shall not have Ayd of the King for so the Plaintiff may be perpetually delay'd 21 H. 6.37.39 Priviledge of Infants Copy-holders Or Resolutions concerning Infants in respect of Fines Admittances barring Estates and being bound by Customs or not Custom of a Manor is That if a Copy-hold descends to any man that Proclamation shall be made at three several Courts that he shall come in to be admitted Infant not comprehended within the Custom of coming in after three Proclamations and if he come not in it shall be a forfeiture to the Lord yet an Infant shall not be comprehended within this Custom for he by intendment of Law is not at discretion to make his Claim 8 Rep. 100. Letchford's Case It seems to be a Rule in Law An Infant cannot be protected by the Law by his non-age in any Case but where his Right which he had while an Infant and descended
to him might have been barr'd and interrupted by non-claim so in case of forfeiture the reason of the Rule is because the Law conceives he will have that knowledge to preserve his right when he is of full Age Carter's Rep. 86. in Smith and Painton's Case It was holden in Rumny and Eve's Case Not bound during his Minority to pray Admittance 1 Leon. p. 100 Pl. 128. If a Copy-holder dyeth his Heir within Age he is not bound to come into any Court during his non-age to pray admittance or to tender his Fine An Infant who surrenders his Copy-hold Land within Age may enter at his full Age Infant Surrenders he may enter at full Age. without being put to any Suit for it A Case cited in Popham 39. in Bullock and Dibler's Case Infant Copy-holder in Fee makes a Lease for years without Licence Infant shall not forfeit by making a Lease without Licence Acceptance at full Age makes it good to Lessee rendring Rent at full Age he accepts the Rent and after outs the Lessee Lessee brings Ejectment and Judgment for Lessee Per Cur. this Lease may be affirmed by acceptance and such a Forfeiture shall not bind an Infant 8 Rep. 44. Noy 92. Of Copy-holds and Copy-holders in respect of the King and his Prerogative Per Stat. 2 Ed. 6. Cap. 8. Copy-holders shall enjoy their Estates where the King is intituled by Office though they be not found by Inquisition The Statute of Chantries gives no Copy-hold Land to the King 1 Ed. 6.14 The Estates of the Kings Copy-holders confirmed by Decree in the Exchequer or Dutchy-Chamber shall be good according to the same Decree Stat. 7 Jac. Cap. 21. A Popish Recusant shall forfeit all his Copy-hold Land 35 Eliz. Cap. 2. Whether the King shall have the Copy-hold granted in Trust for an Alien It was a Question in Car. 1. between the King and Holland whether the King shall have a Copy-hold which is granted to one in Trust for an Alien The better Opinion seems to be that he shall Styles Rep. p. 20.37 75. Vide this Case Reported in Rolls 1. Abr. 194. Tit. Alien If an Alien Amy Purchase Copy-hold in Fee in the Name of J. S. in Trust for himself and his Heirs It was a great Question and much Argued whether the King shall have the Trust of this Copy-hold but no Opinion given as to this Point But the Trust being traversed and found for the King yet Judgment was given against the King because by the Inquisition by which this Trust and matter was found J. S. who was the person trusted and who had the Estate in Fee in the Law in him Where the King hath no possion by force of the Inquisition was put out of possession of it by the Inquisition where the Alien had but the Trust and no possession and therefore admitting that the Trust should have been given to the King yet the King may not have the possession by force of this but ought to have sued to have the Trust executed in a Court of Equity The King is seized of a Manor in Fee in which is a Copy-hold demisable at Will according to the Custom of the Manor The King demised this Copy-hold to J. G. for Life King need not recite in his Grant that it is Copy-hold by Letters Patents J. G. dyes The great Question was if it be destroyed or the King may grant it again by Copy Per Cur. 1. The King need not recite in the Grant that it is Copy-hold 24 H. 8.21 2. Copy-holder for Life dyes the King may regrant That after the Estate for Life determined the King may grant this House and Land again by Copy of Court Roll It is otherwise in the Case of a common person The Rule That a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind a Common person The Kings Gifts shall be taken favourably and not extended to two intents where there is no necessity for it Kings Grants favourably construed as there is not here and we are not here to intend a collateral intent and so the Copy-hold is not destroyed for the Law takes care to preserve the Inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copy-hold viz. to have Common Stiles p. 266. Cremer and Burnet If a Bishop Tenant in Tayl for Life or Years le ts a Copy-hold yet this shall not bind the Successor Issue in Tayl or him in Reversion to grant this by Copy again neither shall it bind an Infant Lord of Manor and the Estates and Possessions of the King are in like manner under the protection of the Law And if this Copy-hold should be extinguished Extinguishment perhaps a common Appendant or Appurtenant would be lost 2 Rolls Abr. p. 197. mesme Case If the King grants a Manor in which are Copy-holders in Fee-farm the Lands or Goods of the Copy-holder are not lyable to the Fee-farm Rent although the Freehold is Fee-Farm Rent because the Copy-holders are elder than the Rent being by Prescription 2 Rolls Abridgment p. 157. Loss of Issues If the Lord of a Manor lose Issues being summoned upon a Jury Process shall issue out of the Exchequer to levy them upon the Lands of the Copy-holders Lessees for Life or Years for the loss of Issues lyes upon the Land as an inherent Servitude by the Law in whose Hands soever it comes 1 Rolls Abr. 157. Surrender to the King without other matter of Record A Surrender of a Copy-hold to the King Lord of a Manor was in Lee and Boothby's Case 1 Keb. 720. adjudged good without other matter of Record All the Demesn Lands The King grants all his Demesn Lands in W. his Copy-hold Lands shall not pass Aliter in a common person 1 Rep. 46. Alton Wood's Case CAP. IV. The Nature of Custom in general Maxims of Customs What things are requisite to make a good Custom Time out of Memory Explained What shall be said to be an Interruption of Custom or not The reasonableness of Customs how to be judged of Several particular Customs Ratione Loci Of Customs enabling and disabling Of Customs and Prescriptions their difference and the different manner of Pleading them The several sorts of Prescription and how Prescription to be made and when and when not and by whom And when a Custom shall be said to be pursued or not Custom The Nature of Custom in general A Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record But being only matter of Fact and consisting in Use and Practice it can be recorded and registred no where but in the Memory of the People For a Custom taketh beginning and
pleading we say such Lands or Tenements are demised and demisable A tempore cujus contrarij memoria hominum non existit And yet this Rule fails in the Kings Case vide supra It was said by Rolls Chief Justice in Pilkington and Bagshaw's Case Stiles 450. That a Custom cannot be urged for a thing that had its beginning since the time of Richard 1. if a Record can be shewed to the contrary But what measure of time shall make a Custom many differ Some judge it from the time of Henry 1. to the Stat. of Merton Cap. 8. which appointeth the Limitation in a Writ of Right and others say otherwise And by the Statute W. 1. the Limitation was from the time of R. 1. and these are Limitations as to Writs but this is since altered by 32 H. 8. What shall be said time out of memory which is reduced to sixty years next before the Teste of the Writ But the true measure is Littleton's Rule Where a Custom hath been used so long that man's Memory cannot remember the contrary that is when such a thing is pleaded that no man then living hath heard or known any proof to the contrary for if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the memory of any man living yet it is within the memory of man and therefore regularly a man cannot prescribe or alledge a Custom against a Statute for that is the highest Record but affirmative Acts do not take away a Custom If Land hath been demised by Copy for fifty years and yet some alive remember the same occupied by Indenture this is not a good Copy hold And if Land hath been demised by 40 years by Copy and none alive can remember the same to be otherwise demised this is a good Copy But sixty or eighty or an hundred years may make a good Limitation Calthrop's Reading Coke Lit. 114 115. 2. Continuance Custom ought to have continuance without interruption time out of memory for if it be discontinued time out memory the Custom is gone As if a Copy-hold be let by the Lord for life or for years according to the course of the Common Law it shall never be demised as Copy-hold according to the Custom afterwards Consuetudo semel reprobata non potest amplius induci and as Continuance makes the Custom so discontinuance destroys it The Continuance for fifty years is enough to fasten customary Conditions upon the Land against the Lord And per Cur. Though the original Commencement and the customary Interest did commence 10 H. 8. from which time sixty years passed yet the seizure for a Forfeiture in the mean time interrupted utterly the Continuance from the time which might by the Law have perfected the customary Interest What shall be said an interruption of a customary Estate or not Within the time of forty seven years a customary Interest cannot be Attached upon the Land 3 Leon. 107. Tavernor and Cromwel If the Lord of a Manor is seized of an ancient Copy-hold for Forfeiture or by Escheat and let the same at Will without Copy for divers years this is not any interruption of the customary nature of the Land but that he may grant it again by Copy Ibid. Interruption If customary Land hath been of ancient time grantable in Fee and now of late times for the space of forty years the Lord hath granted the same for Life only yet he may if he please resort to his ancient Custom and grant it in Fee 1 Leon. p. 56. Kemp and Carter Customary Land within a Manor hath been grantable in Fee and it Escheats the Lord may grant the same to another for Life for the Custom which enables him to grant in Fee shall enable him to grant for Life and after the death of Tenant pur vie the Lord may grant the same again in Fee for the grant for Life was not any interruption of the Custom 1 Leon. 56. id Case 3. Certainty Custom ought to be certain for incerta pro nullis habentur 13 Ed. 3. Fitzh dum fuit infra aetatem 3. A Writ of Dum fuit infra aetatem was brought against an Infant the Tenant pleads a Custom That when the Infant is within such an Age as that he may count twelve Pence or measure an Ell of Cloth that then his Feoffment shall be good this Custom is adjudged void for the incertainty Why an uncertain Custom shall be void Now the Reasons why an uncertain Custom shall be void are 1. Because an uncertain thing may not be continued time out of memory 2. A man cannot prescribe in a thing which may not at the beginning be well granted and an uncertain thing cannot well commence by Grant And if Tenants of a Manor prescribe that they ought not to pay for a Fine to renew their Copy-hold Estates more than the Rent of two years but ought to pay the Rent for two years or less this is not a good Prescription for the uncertainty for sometimes they are to pay two years Rent and sometimes less 2 Rolls Abridg. 264 265. Green and Berry 4. Reason Custom must be reasonable therefore it must not be against common Right or purely against the Law of the Land as is Littleton's Case The Lord prescibes That there hath been a Custom within his Manor that every Tenant who marries his Daughter without Licence of the Lord shall make Fine c. This Prescription is void it is against the freedom of a Freeman who is not bound thereto by particular Tenure Alit if it be upon a special Reservation of Gift of Lands or Tenure in Villanage Lit. Sect. 209. So in Sect. 212. To prescribe that the Lord of the Manor hath used to distrain Cattel Damage feasant and to retain the Distress till Fine were made to him for the Damages at his will This Prescription is void for it s against reason a man should be Judge in his own Cause If the Lord will prescribe to have of every Copy-holder belonging to his Manor for every Court he keepeth a certain Sum of Mony this is a void Prescription because it is not according to common Right for he ought to do it gratis for Justice sake But if the Lord Prescribe to have a certain Fee of his Tenants for keeping an extraordinary Court which is purchased only for the benefit of some particular Tenants to take up their Copy-holds and such like this is a good Prescription and according to common Right Coke Cop. 81. But now to distinguish what Customs are unreasonable and what not observe these differences Every Custom is not unreasonable which is contrary to a particular Rule or Maxim of the positive Law For its a Rule Consuetudo ex certa causa rationabili privat communem Legem As the Customs of Gavel-kind and Burrough English are against the Maxim of descent of Inheritance and the Maxim of Escheat as in Kent the Father to the Bough and
the Son to the Plow So the Custom that the Wife shall have the whole for her free Bench is against the Maxim of Common Law for Dower These Customs might have a reasonable beginning where they are not prejudicial to the Common-wealth nor to the present Interest of any particular person yet a Custom may be prejudicial to the Interest of a particular person and reasonable also where it is for the benefit of the Common-wealth in general as to make Bulwarks upon another mans Land in time of War c. But Custom which is contrary to the publick Good or injurious to a Multitude and beneficial only to some particular Person such Custom is repugnant to the Law of Reason and void ab initio and no Prescription can make it good therefore the Custom of a Manor was That no Commoner should put in his Beasts till the Lord had put in his and it was adjudged void 2 H. 4.24 For if the Lord would never put in his Beast the Commoners should lose their Common As to Customs being reasonable or unreasonable vide several more instances in the Argument of Rolls and Mason's Case 2 Brownl 86 88. Customs may be reasonable ratione loci Custom is Several particular Customs in several places where Copy-holder had Issue only Daughters the eldest shall have this for Life and after her death it shall go to the next Heir Male of the Father to him and his Heirs and if no such Heir then it shall Escheat to the Lord. Copy-holder dyes Borderers on Scotland his Wife hath it durante viduitate leaving two Daughters and during this time the eldest dyes The Question was if the second Daughter or the Lord by Escheat had the better Title Per Cur. 1. The Custom is good and the Estate which the Daughter had is an excrescent Estate and not properly a descent 2. She that was eldest at the time of the death of the Mother shall have it and not only Primogenita filia Siderfin p. 267. Newton and Shafto This Custom was good ratione loci for such Manor is bordering on Scotland where were frequent Invasions And Feme sole Merchant is good ratione loci Feme Sole Merchant London The Custom of the Isle of Man That one shall be hanged for stealing a Capon Isle Man but not for stealing an Ox is good In the Manor of Bemister in Dorset Bemister is this Custom That a Copy-holder ought to nominate his Successor otherwise the Land shall Escheat and it has been allowed to be a good Custom So the Manor of Taunton Taunton Dean That the Wife of the Copy-holder shall have the Inheritance of her Husband Siderfin p. 267. id Case The Custom of Millan in Norfolk is Millan in Norfolk If any Copy-holder will sell his Land and agree upon the Price at the next Court the next of his Blood and if he refuse any other of his Blood may have the Land And such like Custom there is at Ham in Middlesex Ham in Middlesex The next Clivener which is he that dwelleth next to him shall have the refusal giving as much as another will and he which inhabits on the East the first and then the South c. 2 Brownl 177. As for the other Rules of the validities of Customs as that they ought to be on good Considerations and beneficial to the Prescriber as Calthrop and Cokes Copyholder treat of they may be referred to the forgoing Rules Now you see there are three supporters of a Copy-hold Custom 1. Time and that must be out of the memory of Man so that Copy-hold cannot begin at this day 2. That the Tenements be parcel of the Manor or within the Manor 3. That it hath been demised and demisible by Copy of Court Roll Demised and demisible how understood for it need not be demised time out of mind by Copy of Court Roll but if it be demisible it is sufficient For Example If a Copy-hold Tenement Escheat to the Lord and the Lord keeps it in his hands many years during this time it is not demised but demisible for the Lord hath power to demise it again Coke Lit. 58. b. Customs of Manors are Disabling Enabling Disabling is That the Tenant by a particular Custom shall not be allowed to do that which he might by the general Custom of Manors As a man may sell Land to whom he will by the general Custom of Manors yet in some Manors by special Custom he must make an offer to the next of Blood Vide supra Customs ratione loci Enabling is where the Tenant by a particular Custom shall be enabled to do that from which he is restrained by the general Custom of Manors By the general Custom of Manors the granting of Copy-hold Land for more than one year without Licence is a Forfeiture yet in some Manors they may do it and it shall not be a Forfeiture Coke Copy-hold 79. Sect. 33. You will find Prescription mentioned in the ensuing Cases therefore it will be of good use a little to open the nature of Custom and Prescription and to shew how and wherein they agree and wherein they differ and also the difference as to Pleadings Custom Prescription and Usage are of great Affinity yet they differ thus Custom is where by continuance of time a Right is obtained concerning divers persons in Common Prescription is where by continuance of time one particular person obtaineth Right against another either a Person or Body Politick Usage is by continuance of time and an efficient cause of both Limitation is where a Right may be obtained by reason of Non-claim by the space of a certain number of years Calthrops Reading 1. Prescription is made in the Person and so the Pleading is That he and all his Ancestors c. Or he and all those whose Estate he hath time out of mind used to have Common of Pasture in such a place c. being the Land of some other c. as pertaining to the said Manor Custom is a Copy-holder of the Manor of D. doth plead That within the same Manor there is and hath been such a Custom timeout of mind used that all the Copy-holders of the said Manor have and used to have Common c. Coke Lit. 113. b. So Custom lyes upon the Land As infra manerium talis habetur consuetudo c. 8 Rep. Swain's Case And such Custom binds the Land as Gavel-kind Borough English c. Prescription ought to have a Lawful beginning not so of Custom So is Coke 6 Rep. Gateward's Case Prescription is alledged in the Person and a Custom ought always to be alledged upon the Land for every Prescription by common intendment ought to have a lawful beginning but it is otherwise of a Custom for this ought to be reasonable and Ex certa rationabili causa usitata but it need not to have an intendment of a lawful commencement as Custom to have Land devisable
after the death of the Lord he should pay a Fine it had been good This was resolved by the Judges in Serjeants-Inn in a Case of one Armstrong referred out of Chancery Lord cannot grant a Copy-hold in Reversion The Lord of a Manor cannot grant a Copy-hold in Reversion without a special Custom March Rep. 8. Whether the Lord of a Manor might grant Copies in the remainder only with the assent of the Tenants was a question if it was a good Custom but not resolved 3 Leon. 226. The Copy-holder is surdus mutus the Lord shall have the custody for otherwise he shall be prejudiced in his Rents and Services and not the Prochein Amy Cro. Jac. 105. Eavers and Skinner To seize the Estate of a Convict Felon Custom was if a Copy-holder be convict of Felony the Lord shall seize the Copy-hold Estate it is a good Custom 1 Leon. p. 1. Bornford and Packington 2 Brownl 217. Hitchins and Cooper Custom was that if the Tenant did not repair and it was presented by the Homage To repair or be presented The Tenant shall be amerced and the Lord shall distrain the Beasts of the Tenant and under-Tenant a good Custom March p. 161. Thorn and Tyler For the Custom which gives the distress knits it to the Land and so it is not meerly personal otherwise the Lord by such a devise as this viz. by making the Lease for one year by the Tenant should be defeated of his Services and though a Custom cannot extend to a Stranger Custom cannot extend to a Stranger Under-Tenant not a meer Stranger yet the under-Tenant is not a meer Stranger but as a customary Tenant for he shall have the Priviledges of a customary Tenant qui sentit commodum c. And transit terra cum onere He that shall have the Land ought to undergo the charge By all the Judges in that Case Customs as to Surrenders vide Surrenders Customs as to Forfeitures vide sub titulo Forfeitures Customs as to Admittances Fines vide Fines Admittances Custom The Lord not compellable to make a Grant but he is to make an Admittance That after the death of Tenant for Life of a Copy-hold the Lord is compellable to make the Estate to the eldest Son for Life and if he hath no Son to the Daughter and so imperpetuum this is not a good Custom but against Law because the Lord by this Custom is compellable to make a Grant Aliter if it be to make an Admittance More n. 1088. The Lord Grey's Case Customs in respect of the Tenants As to Forfeitures vide sub titulo Forfeitures As to Surrenders vide Surrenders As to Fines vide Fines c. Sparsim per tout That the Lord shall have the Estate of a Felon The Custom was if any Copy-holder of a Manor commit any Felony that he shall forfeit to the Lord his Copy-hold Estate and that the Lord upon presentment of this by the Homage may enter and seize the same it s a good Custom But the Case went farther H. a Copy-holder had killed one P. and the same was presented by the Homage If he be acquitted and they find that H. was Indicted for the same and Acquitted after this acquittal the Lord did enter and seize the Estate as forfeited But as to that point the Court gave not any Opinion 2 Brownl Rep. Gittins and Cooper By-Laws Custom was That the Steward of a Manor might make Laws and Ordinances for the well ordering of the Common and to assess a Penalty on those who broke those By-Laws also to prescrribe to Distrain for the Penalty Per Cur. The Custom is reasonable and the difference is where the Law or Ordinance takes away the whole profit of the Commoners and where it abridgeth it only And the Commoners are bound to take notice of these Ordinances March p. 28. James and Titney Custom to make By-Laws And this Law was made That no Tenant of the said Manor should put into such a Common any Steer being a year old or more upon pain of 6 d. for every such Offence and that it should be lawful to distrein the same It s avoided by Law for it s against common Right where a man hath Common for all his Cattel commonable to restrain him to one kind of Cattel and had it been that none should put in his Cattel before such a day that had been good for this doth not take away but order the Inheritance 1 Leon. 190. Erbery and Latton Custom was A Copy-holder for Life may nominate his Successor to have it for Life To compound for the Fine and the person nominated to compound with the Lord for the Fine and if he could not compound then he should give such a Fine as the Homage should Assess and should be admitted and hold for his Life it s a good Custom Cro. Jac. 368. Ford's Case 1 Rolls Rep. 125.195 More n. 1071. mesme Case 2 Brownl 85. Rolls and Mason Noy Rep. 2. Yestmester Custom In this he hath a greater Estate than a Sole Tenant for Life In Replevin and Avowry for not doing Suit To tender 8 d. for doing suit in a Court-Baron the Plaintiff sets forth a Custom That if any Tenant live at a distance and comes at Michaelmas and pays eight pence to the Lord and a penny to the Steward he shall be excused for not attending and then he said he tendred eight pence and the Lord refused Tender and refusal all one with payment if he avers That there are sufficient Copy-holders that live near the Manor its good and tender and refusal by Hales is all one with payment Modern Rep. p. 77. Legingham and Porphiry It s a good Custom this not being a customary Court but a Court-Baron where the free Suitors are Judges Siderfin p. 361. mesme Case 2 Keb. 344 380 851 mesme Case The Custom was Lord not compellable to make a Surrender That after the death of Tenant for Life of a Copy-hold the Lord is compellable to make an Estate to the eldest Son for Life and if he hath no Son to a Daughter and so in perpetuum The Justices were of Opinion that this was against Law More n. 1088. Lord Grey's Case Vide prius Of Customs in respect of the Estate Here I shall recite some few Cases of Customs about Leasing and Limitation of Estates when good or not As to the Custom concerning Leases Vide Leases and Licenses As to the Custom of Intailing Copy-holds and barring them Vide sub titulo Entails As to the Ceremony of Presentment vide Presentment Pled quod si terre sunt concesse habend sibi suis grantee habet in feodo Ra. Entries 627 116 155. Pled quod si terrae sunt concessae al. 2 pro vitis ille qui primo nominatus in copia habeat terras solus pro vita 3 Br. 475. Hern 73 83 124 654 712. Simile de terris
concessis al 2. pro vitis in reversione Co. Entr. 184. Paying Fine and renewing Leases The Custom was That the Land was demiseable for twenty one years paying the treble value of the Rent and if he dyed within the Term that the Term should be to his Heir paying a Fine certain of one years Rent and if he Assigned the Term the Assignee should have it paying for a Fine one years value of the Rent and he who had it might by the Custom renew it for twenty one years paying three years value and this was admitted to be a good Custom by the Court Croke Jac. p. 671. Page's Case To assign one to take the Profits of a Copy-holder Infant The Custom was The Lord of a Manor might assign one to take the Profits of a Copy-hold descended to an Infant during his non-Age to the use of the Assignee without rendring an account it was held to be a good Custom as a Rent granted to one and his Heirs to cease during the non-Age of every Heir and admitting the Custom were void yet an Action of Account lyes not Prochein Amy. for the Defendant hath not entred and taken the Profits as Prochein Amy in which case although he was not Prochien Amy he is chargable as Prochein Amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the Right of the Heir 1 Leon. p. 266. Case 357. Anonymus The Custom was The Lord to dispose the Estate when the Tenant leaves it in incertainty That if any one surrender to the use of another without expressing any Estate that the Lord may grant it in Fee to him to whose use the surrender was made it s a good Custom for he is a Chancellor in his own Court to dispose thereof when the Tenant leaves it uncertain Crok El. 392. Brown and Foster Custom in the Manor of Sedgly in Com. Staff was Lease to be void if Copy-holder dye within the year If a Copy-holder make a Lease without Licence of the Lord for one year and dyes within the term it shall be void against the Heir Per Cur. it s a good Custom for then the Lord may know his Tenant and the Tenant may have the Estate and pay his Fine It s void by the act of God but had the Custom been That if a Copy-holder within the year surrender his Copy-hold that the Lease shall be void this is an unreasonable Custom Lit. Rep. 233. Hutton 126 127. Turner and Hodges Custom To Lease without Licence That five Copy-holders without License they being seized in Fee may make any Lease for one year or many years and when they dye the term shall cease and the Heir may enter it s a good Custom Hutton p. 101. Custom To hold after the term ended That a Lessee for years may hold the Land for half an year after the term ended it s no good Custom More n. 27. Not to alien without Licence Custom That a Copy-holder shall not alien without Licence is good for it may have a lawful commencement by agreement To Lease without Licence A Custom That on payment of a years Rent the Lord should Licence to let for 99 years and if he refused the Tenant might do it without Licence adjudged a good and reasonable Custom Grove and Bridges cited in Porphyry and Legingham's Case 2 Keb. 344. For Lessee pur vie to let for another mans Life A Custom That Lessee for Life may let for another man's Life is no good Custom but the Lord may by Custom Lease the same for Life and forty years after More n. 27. To commit a forfeiture and so to bar the Intayl A Custom for a Copy-holder tenant in tayl to make a Lease for years without Licence to commit a Forfeiture on purpose to bar the Intayl and to transfer the Lands over to any other person is a good Custom and is but in the nature of a Surrender or Common Recovery 2 Saunders 422. Grantham and Coples And the Lord in such cases may not admit any other but him to whom it is appointed by the Tenant making such Forfeiture and when such Cesty que use is admitted he shall avoid all mean acts or dispositions made by the Lord as well as upon a Surrender and this though he was not admitted in the life of the Tenant so forfeiting Vide infra Tit. Intayling Copy-holders In respect of Discents The Manor of Wadhurst in Com. Sussex consisted of two sorts of Copy-hold viz. Sookland and Bondland and by several Customs in several Manors as if a man be first admitted to Sookland and afterwards to Bondland and dyes seized of both his Heir shall inherit both but if he be first admitted to Bondland and afterwards to Sookland and of them dye seized his youngest Son shall Inherit 1 Leon. p. 36. Kemp and Carter A. Seized of Copy-hold in Fee Copy-hold Burrough English in the nature of Burrough-English surrenders this into the Hands of the Lord ea intentione That he shall re-grant this to him and his Wife and to the Heirs of himself and the Lord re-grants this accordingly And there is a Custom That if any person seised in Fee of such customary Lands and dyes so seized that the Land shall descend filio juniori c. And A. having Issue three Sons and ten years after his death the youngest Son dyes in the Life of his Mother without Issue Per Jones and Crook The elder Brother shall have this as Heir to the youngest and not the middle Brother Custom not to extend to Collateral Descents for the Custom may not extend to a collateral Descent viz. to direct the Descent amongst the Brothers for this is out of the Custom and the Custom was once satisfied by Descent to the youngest and there is an end of the Custom and where Custom fails Common Law shall guide the Descent Where Custom fails Common Law guides the Descent And by this special Custom he which is youngest Son at the death of the Father shall have the Land and not he which comes to be youngest afterwards but Bramston and Berkly contra 1 Rolls Abr. 624. Reeve and Malster Vide Maxims of Copy-holds supra CAP. VI. Customs of a Manor as to Wives and Widows of Copy-holders What are good and what not As also of Tenancy per le Curtesie And where the Severance of the customary Tenants from the Manor shall not prejudice CUstom of Manors That Husbands shall be Tenant per le Curtesie and the Pleading More 171. Custom of a Manor is That the Wife shall have it during her Life and on Evidence it appears the Custom was she should have it durante viduitate this Evidence doth not maintain the Custom because it is a less Estate Cok. 4. Rep. 30. That the Wife of a Copy-holder for Life may hold it durante viduitate was agreed to be a good Custom
may cut Trees and sell them by Custom That Copy-holder in Fee may cut Trees and sell them at his pleasure aliter 〈◊〉 a Copy-holder for Life Rook and Higgins's Case Ibid. Queen Eliz. Seized of the Manor of H. i◠Fee demiseth the same to J. W. except Omnibus boscis subboscis arboribus maremiis c Habend for twenty one years He 35 Eliz. Assigns his Interest to J. P. and others Queen Eliz. dyes King James grants to F. S. and W. reversionem praed ac premissa sic ut prefertur except to them and their Heirs the Lessees Attorn afterwards F. and W. by Deed release to S. and his Heirs And at a Court held by the Lessees their Steward grants by Copy to W. B. Def. certain of these Copy-hold Lands on which Oaks and Ashes grew for term of Life secundum consuetudinem Manerij and that there is such a Custom That every Copy-holder Tenant for Life used to take all Trees growing upon his Copy-hold to be employed for Fuel Bounds Fences Grantee by voluntary Grant shall have Trees though they are severed by an Exception The doubt was in as much as the said Lessees hold the Court by virtue of the said Lease of the Manor out of which Lease the said Trees were excepted if the Tenant may shroud them c. Per Cur. 1. Notwithstanding the Severance by the Exception and notwithstanding the Tenant comes in by Voluntary Grant for Life yet such Grantee shall have the Estovers for the Estate of the Copy-hold is not derived out of the Lord And so though the Waste be aliened in Fee by the Lord and so severed who is but an Instrument and though the Grant be new yet the Title to the Copy-hold is ancient 2. When the Copy-holders for Life have used to have Common or Waste or Estovers or any other Profit apprender and afterwards the Lord alien the Waste Woods c. in Fee and after grant certain Copy-hold Houses and Lands for Lives such Grantees shall have Estovers c. notwithstanding the Severance for the Title of Copy-hold is paramount the Severance 8 Rep. Swain's Case 63 64. 2 Brownl 231. mesme Case Vide infra What 's included by Timber Trees If a Copy-holder by the Custom cut down Timber-Trees for reparations he shall have the Trees Lop Top and Bark and though he cannot repair with the Tops and Bark yet he may sell them towards defraying the charge in repairing 3 Bulstr 281. Sandford and Stephens Where Copy-holder by Custom may not Fell and Sell Trees but take the Shrouds of the Trees for Fuel if the Copy-holder by force of the Custom shrouds the Trees and the Lord takes the Body of the Trees Copy-holder may bring Action of the Case against him Goswell's Case cited in Ford and Hoskins Case Rolls Rep. 196. To cut Timber for repairs to what that extends The Custom is for Copy-holders of Inheritance to cut Timber for Repairs he nor his Lessee cannot employ Trees fell'd with the Wind to any such use in regard that hereby his special property ceaseth much less can Lessee or Copy-holder for Life by any such Custom take Trees 1 Keb. 690. Custom for the Copy-holder to cut down all the Trees Copy-holder for Life by the Custom hath power to name a Successor such Copy-holder may cut and sell all the Trees growing upon the Copy-hold A bare Tenant for Life cannot be warranted by Custom to do such an act Powel and Peacock's Case yet here he had a greater Estate than for Life for he hath power to make another Estate for Life 2 Brownl p. 192. Rolls and Mason In this Case which was well argued by the Judges in 2 Brownl 195. There were two Customs 1. That a Copy-holder for Life may name his Successor 2. That such Copy-holder may cut down all the Trees growing upon the Copy-hold Lands The first Custom was adjudged good and reasonable and the second was adjudged void Copy-holder may justifie cutting Boughs for House-bote Hedge-bote Cart-bote c. To sell Trees 2 Brownl p. 329. Heydon and Smith But Tenant by Copy of Court Roll cannot make Waste nor cut Trees to sell but for his benefit in repairing his House If a Copy-holder for Life cuts down Timber Trees the Lord may take them If under Lessee for years of a Copy-holder cuts down Timber it shall not be a forfeiture of the Copy-hold Estate Stiles p. 233. A Copy-holder may prescribe to have the Toppings of Trees for Fire-bote and Hedge-bote Uncertain Pleading but the Prescription was to cut ramos aliquarum arborum which is uncertain if omnium arborum it had been well Noy p. 14. Cross and Abbot Presidents of Customs as to cutting Wood and Trees Quod tenentes custumarii mes habuer communiam estoveriorum in solo alterius solvendum annuatim 2d Dyer 363. Quod tenentes custumar in feodo succidant arbores ad libitum Cok. Entr. 284. Ub. 130. Simile 1. Br. 252. Quod tenentes custumarii amputent pollingers 13 Rep. 67. Quod tenen custumar repararent sepes in t terras custumar boscum per lignum capiend in bosco 1 Leon. 313. Quod tenentes custumarii usi fuer amputare arbores pro sepiment focali succidere arbores pro reparatione domorum per assigna ' Hern 226. CAP. VIII Customs as to Commons and where Severance shall not prejudice And Pleadings in such case THE Custom is that Copy-holders for Life have used to have Common in Waste or Estovers in Wood or any other profit appendant in parcel of the Manor after the Lord aliens the Waste Woods c. in Fee and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Estovers Common c. notwithstanding the Severance Severance by the Lord shall not prejudice the Common of Estovers for the title of Copy-hold is pararamount the Severance 8 Rep. 63 64. Swain's Case 2 Brownl 231. mesme But after such Severance the Copy-holder when he would intitle himself to Common or Estovers he shall not plead generally Quod infra manerium tali◠habetur Pleading c. consuetudo for after the Severance the Waste or the Woods are not within the Manor but absolutely divided from it but he shall plead That until such a time viz. before the severance talis habetur a toto tempore c. consuetudo c. and then shew the Severance mesme Case Where Copy-hold is extinct the Common is lost though the word cum pertin be in the Grant Common which was first gained by Custom and annexed to the customary Estate is lost when the Copy-hold is extinct and infranchised for Common is not in its own nature incident to a Copy-hold Estate but a collateral interest gained by usage therefore Copy-holder of a Messuage and two Acres of Land for Life had Common in the Lords Waste the Lord grants and confirms the said Copy-hold Messuage and Lands cum pertinentiis to him and
his Heirs The Question was whether he should have Common still Per tot Cur. he should not Custom hath annexed the Common to his customary Estate which being determined and destroyed by his own act in making it a Freehold the Common is also destroyed and cannot continue without special words and the general words cum pertinentiis will not help Yelv. p. 190. Cro. Jac. 253. Marsham and Hunter's Case Noy 136. mesme Case This is a local Prescription not to the Land but to the Estate and this proves well the words of the Prescription for the Copy-holder ought to Prescribe That every customary Tenant within the Manor c. so he hath his Common in respect that he is a customary Tenant and this is in respect of the Estate which he hath by the Custom and not in respect of the Land So was the Case of Forth and Ward where a Copy holder had used to take Estovers to repair his Hedges and the Lord granted to him the Freehold of the Copy-hold by the words of Grant unto him all the Lands Tenements and Hereditaments thereunto appertaining and thereto used and occupied It was resolved he should not have Common in the Land of the Lord 2 Brownl 209. Marsham and Hunter More n. 866. Forth and Ward the words cum pertinent do not create a Common A Copy-holder claims Common in another man's Land and the Lord Enfeoffs the Copy-holder of his Copy-hold Land he hath now lost his Common But if a Copy-holder hath Common in the Lords Wastes and the Lord Enfeoffs him of the Copy-hold with all his Commons the Common is not gone 1 Brownl 173. Lee and Edwards And all Pastures and Common whatsoever to the said Messuage or Tenement belonging or used or demised with the same and it his intent that a like Common shall be granted 2 Anderson 168. Wolredg's Case Abbot of F. was was seized of a Manor and there was a Prescription for Common in the Waste of the Manor as belonging to every Ancient Tenement King H. 8. granted the Manor to Sir J. G. which came to Sir T. G. who was Plaintiff in Trespass The Defendant justifies by an usitatum fuit That it had been there used time out mind that every Tenant for years of an Ancient Tenement and Close within the said Manor used to have Common of Turbary on the Waste of the said Manor and that the Tenement and Close he now hath is an Ancient Tenement and was granted to him with all Common appurtenant to the said Messuage and Close accepted or reputed as part parcel or member of the same And the Question upon a special Verdict was when the Lord of a Manor is seized of a Waste and a Tenant of an ancient Tenement prescribes to have Common in the Waste of the Lord afterwards the Tenement is severed from the Manor and granted for a Term to the Defendant with all Common appurtenant to the said Messuage and Close whether this Common that was before belonging to this Ancient Tenement shall pass to the Grantee Per Cur. This Prescription as it is here laid with an usitatum fuit Pleading by an usitatum fuit annexed to the Estate of a Termor is not good is not good It was agreed That if a Copy-holder doth purchase the Inheritance of his Copy-hold and afterwards grants this with all Commons belonging to the same The Common that was before used with the Copy-hold shall pass to the Grantee but the Pleading here is not good The beginning of this Common was by Grant and by permission of the Lord and this for the advancement of his Tenant and not by Prescription and no remedy he hath for this but only in Equity Per Williams a Termor may prescribe but not in his own name but in the name of his Lord That he hath had for himself and his Farmers c Had it been laid here with all Commons Profits used occupied and enjoyed with the Tenement by the Farmers this with an averment had been good but not as it is here the Grant is here with the usitatum fuit now here the usitatum est is annexed to the Estate of the Termor which is not good 1 Bulstr 17 18. 7 Jac. Grimes and Peacock 2 Brownl 222. mesme Case Lessee for years cannot alledge an Usage for every usitatum ought to go in one self same current not interrupted as in the Case of a Copy-hold but it might pass by apt words It was pleaded That all the Inhabitants in such an ancient Messuage ratione commorantiae Pleading Common ratione commorantie have used to have Common of Pasture in loco in quo c. 't is ill for in this word Inhabitants is included he which hath no Interest but Habitation only and he that hath no Interest cannot have Common 6 Rep. Gateward's Case My Lord Hobart's Reason is good Common is an Interest which must inhere in somebody and cannot be pleaded by way of Custom for the Inhabitants that are not permanent to prescribe Tenants in Fee must prescribe for Common c. in their own name and others that have Interest as for Life Years by Elegit at Will c. in the name of the Lord Gateward's Case 6 Rep. It was a Question in Roberts and Hoskin's Case Modern Rep. 74. and 2 Keb. 757. Sanders p. 324. Sola separalis pastura excluding the Lord is a good Custom Vaughan 251. North and Coe Whether a Custom for the customary Tenants to have solam separalem pasturam excluding the Lord were a good Custom Per Cur. it is notwithstanding this Prescription for the sole Pasture yet the Soil is the Lords and he hath Mines Trees c. And my Lord Coke is express in the point a man cannot Prescribe for sole Common but for sole Pasture he may As for the manner of pleading it Vide the Books cited Customs as to devising by last Will and Testament Vide infra Surrender to the use of 〈◊〉 mans last Will. CAP. IX Of custumary Incidents or collateral Qualities Of Copy-hold Estates and how to 〈◊〉 governed With the Illustration of seven particular Cases YOU may observe what has been beforâ— treated about the nature of Copy-hold Estates that amongst the rest of the Consâ—derations in that Chapter where the Copy-hold Estate is inheritable and the Land discendible That in such Case the Law shall direcâ— the descent according to the Rules and Maâ—ims of the Common Law as incidents to everâ— Estate descendible as it was in the Case of Uses When they had gained the reputation of Inheritances descendible the Common Law directed the descent of them and that there should be a possessio fratris of them as well as of other Inheritances So it is in Copy-hold Inheritances possessio fratris facit sororem esse haeredem Vide prius sub titulo Maxims But now such customary Inheritances shall not have by the Law any other collateral Qualities which do not concern descents of Inheritance which other
Reversion expectant upon an Estate for Life In all Writs where a man conveys by discent there shall not be mention of any but those who had seisin And in all Actions and Writs where a man conveys by descent there shall not be mention of any but of those who took the Estate and had seisin and not from others who never had seisin the Law esteeming them as if there had been never any such persons and by consequence he may claim here as youngest Son by the custom as Heir in Burrough-English as if Charles had never been because he hath it in course of descent and this is true at Common Law but Jones and Croke held that William had the better Title for Charles being youngest Son at the time of the death of his Father that makes him Heir in Burrough-English by the Custom and when it rests in the youngest Son as Heir by the Custom the Inheritance is fixed in him and he only who is in esse at the time of his Fathers death shall have as by Custom this seems to be the better Opinion Crok Car. 410. Reeve and Malster Who may be said to be customary Tenants A Wife that hath her Widows Estate according to the Custom of the Manor is a good customary Tenant So Tenant per the Curtesie per the Custom In Gloucestershire there is in a Manor a Custom That Executors shall have the Profits for a year In some sense they are good customary Tenants Under-Tenant in what respect Custom was That for Waste to be amerced and to distrain for such amerciament the Beast of the under-Tenant as well as the Tenant is liable The under-Tenant is a customary Tenant to this purpose and no Stranger Transit terra cum onere he enjoys the Priviledge of a customary Tenant and he shall undergo the Charges March Rep. 161. Thorn and Tyler Note There is difference between customary Lands and Copy-hold Lands Freehold as well as Copy may be customary Lands as ancient Demesn may pass by Surrender in some Manors and by Copy and ancient Demesn may pass by Feoffment as Surrender Vide Peryman's Case Rep. Court The Nature of a Court Baron and who may keep Courts or not A Manor cannot be without a Court Baron Vide supra it is inseperably incident to a Manor without any Grant from the King to keep the same and this is not drawn from the Crown but is to be held de necessitate 1 Bulstr 6. The King and Stafferton The Court Baron must be holden within the Manor Where to be held for if it be holden without the Manor it is void unless a Lord being seized of two or three Manors hath usually time out of mind kept at one of his Manors Courts for for all the said Manors then by Custom such Courts are sufficient in Law albeit they are not holden within the several Manors Co. Lit. 58. a. There may be a customary Manor held by Copy and such a customary Lord may keep Courts and grant Copies 11 Rep. Nevil's Case Cro. Jac. 260. contra Now there are two sorts of Court Baron Two sorts of Court Baron one at Common Law incident to every Manor and is of Freeholders and the Freeholders are Judges There is also a customary Court consisting of customary Tenants for without them it cannot be and this Court may be holden without any Free Tenants or other Suitors except Copy-holders and of this Court the Lord or his Steward is Judge Co. Lit. 58. And when the Court Baron is of this double nature the Court Rolls contain matters appertaining to both Honour what An Honour consists of many Manors yet all the Courts for the Manors are distinguished and have several Copy-holders and though there is for all the Manors but one Court yet are they quasi several and distinct Courts One Court kept for many Manors and so it was usually in the time of the Abbots they kept but one Court for many Manors Cro. Car. 361. Seagood and Hone. When the Lord of a Manor having many ancient Copy-holds in a Vill grants the Inheritance of all his Copy-holds to another Customary Court how made and may be held the Grantee may hold Court for the customary Tenants and accept of Surrenders and make Admittances and Grants for although this is not a Manor in Law because there want Freeholders yet there may be holden a Court for Copy-holders and the Lord or Steward is Judge And as the other being a Court Baron may be called the Freeholders Court this may be called the Copy-holders Court so if all the Freehold do Escheat or if the Lord release the Tenure and Services of all his Free Tenants yet the Lord may hold a customary Court for his Copy-hold Tenants So if the Lord demise all his Lands granted by Copy to another for a thousand years such Lessee may hold Court for the Copy-holders 4 Rep. 26 Melwich's Case and Sir Christopher Hatton's Case cited in Neal and Jackson's Case 27. These number of Copy-holds may support a Custom but a single Copy-hold cannot hold a Court. Tenant at Will of a Copy-hold Manor may grant Copyhold Estates but cannot keep Courts Guardian in Socage keeps Courts in his own name and grants Copies its good and shall bind the Heir Vide Tit. Grants Cro. Jac. 55 98. Shopland and Rider The Lord himself may Grant or make Admittance out of the Manor at what place he pleaseth but so cannot the Steward 4 Rep. 26. Melwich's Case 27 Clifton and Mollineux Court may be held out of the Manor by Custom but by Custom the Court may be held out of the Manor and Grants and Admittances there made be good as divers Abbots Priors c. have kept one Court for many Manors Steward Every Steward of Courts is either by Deed or without Deed for a man may be retained a Steward to keep his Court Baron and Leet without Deed and that retainer shall continue till he be discharged Co. Lit. 61. b. 4 Rep. 30. And such Steward may take Surrender of customary Tenants out of the Court 4 Rep. 30. Holcroft's Case In all real Actions which concern Lands the Suitors are the Judges but in personal Actions under the Sum of forty shillings the Steward is the Judge Steward without Deed may take Surrenders out of Court but the Custom must warrant it Note Difference between a Steward of a Manor and the Steward of a Court. A difference between Steward of a Manor and the Steward of Courts Steward of a Manor may take Surrenders in any place 1 Leon. p. 227. Case 307. Blagrave and Wood. Steward appoints his Deputy to keep a Court ad tradendum Copy-hold Land to W. for Life Deputy the Deputy commands H. his Servant to keep Court and grant the said Land and the Custom found did not extend farther than the Deputy though a Deputy cannot transfer his Authority over being an office of Trust yet
more full to the purpose 1 Rolls Abr. 498. If the King be seized of a Manor whereof Blackacre is parcel and demisable by Copy in Fee Grant by the King good tho not recited to be Copy-hold and this comes to the King by Escheat or Surrender and after the King lets Blackacre to J. S. for Life not taking conusance that this was demisable by Copy this is a good Grant though the King recites not that this was demisable by Copy and by consequence this will destroy the power to grant this by Copy at any time after M. 15 Car. 2. Voluntary Grants by the Lord may be considered in respect of his Person Estate Disability oâ— person no hinderance to the Lord to grant As for his Person notwithstanding his disability yet his Grants of Copy-hold shall be good and valid in the Law as suppose he be an Infant Non compos mentis Lunatick Outlawed Excommunicate yet he is capable to make a voluntary Grant by Copy So a Feme Lady of a Manor takes Husband and they two joyn in a voluntary Grant by Copy this shall for ever bind the Wife and her Heirs and the reason is the Custom of the Manor being the main Foundation on which is built the whole Fabrick of the Copy-hold Estate what the Custom doth confirm to the Copy-holder the Law will ever allow and support it notwithstanding any such Imperfections in the Grantors person Co. Lit. f. 58. b. 8 Rep. 63. a. b. Swain's Case Noy p. 21. Grant by an Infant is good as well as presentation to a Benefice If the Lord release to a Copy-holder in Fee Habendum to him in Fee to the use of another this is a good use for upon such Release a Rent may be reserved 2 Rolls Abr. 788. Sams's Case What voluntary Grants by the Lord shall be good or not in respect of the Estate or Interest which he hath in the Manor and what not Voluntary Grants of Copy-hold Estates are of such as come to the Lords hands by Escheat or Forfeiture and the Lord may grant them by Copy again It was adjudged in Harris and Jay's Case Cro. El. 699. M. 41 El. B. R. That a Copy-hold Escheated and which hath been kept in the Lords hands divers years may be granted over by the Lord himself or by his Steward This may be considered in respect of the Quantity and Quality of his Estate He must be Legitimus Dominus a lawful Lord at the time of his voluntary Grant and then as to the quantity of his Estate in the Manor be it great or little is not material whether he be seized of or interested in the Manor in Fee or Tayl Dower or Curtesie for Life or Years Tenant per Statute Elegit or at Will or on Condition he may grant any Copy-hold Escheated to him for as long time as the Custom doth allow the Rents and Services being truly reserved and these Grants shall bind them that have the Inheritance or Freehold of the Manor the Reason is well delivered in Coke For a Copy-holder upon voluntary Grants made by Copy doth not derive his Estate out of the Lords Estate only for then the Copy-holders Estate should cease when the Lords Interest determineth but the Life of the Copyholders Estate is the Custom of the Manor and therefore whatsoever befalleth the Lords Interest in his Manor be it determined by course of time death forfeiture or other means yet if the Lord were Legitimus Dominus pro Tempore though his Estate in it be very small yet that is enough for the same Custom that fixeth a Copy-holder instantly in his Land upon his Admittance will likewise protect and support his Interest to the end in such manner that though the Lords Interest faileth yet the Copy-holders Interest shall not fall being upheld by such a Pillar unless he forfeit it by his own act Where Lord may augment the Rent and where not Where Copy-hold Land comes into the Hands of the Lord by Escheat or Forfeiture the Lord may grant this Land by Copy rendring greater Rent but not when he admits a Tenant Blewet Lord of a Manor wherein are many Copy-holders grants the Stewardship to S. for Life and after becomes a Lunatick and found upon Inquisition and thereupon commited W. to E. C. and others under the Seal of the Court of Wards The Lord Lunatick by his Steward may grant Copy-holds but the Committees by their Steward cannot c. The Question was whether the Committees by their Steward may grant Estates by Copy according to the Custom Per Cur. they cannot for by the Law they have no Estate in the Manor nor are Lords thereof for the time being but the Lunatick by his Steward may grant Copy holds and so it was decreed But it was ordered that the Steward should grant none without the privity of the Committees and warrant from the Court but this was only for caution Sir James Ley's Rep. f. 47. Blewit's Case Therefore if the Lord sever a Copy-hold from the Manor Severance from the Manor what it operates by granting the Inheritance to a Stranger now though one of the chief Pillars of a Copy-hold Estate is wanting viz. to be parcel of the Manor yet because the Land at the time of the Copy-holders admittance was customary and had this necessary incident this severance being a matter ex post facto and being the Lords own act shall not amount to the destruction of the Copy-hold There is this Custom in a Manor That every Copy-holder Tenant for Life had used to take all Trees growing upon his Land to be employed for Fuel and Repairs and Estovers Queen Eliz. being Seized of this Manor demiseth it to J. W. except Omnibus boscis subboscis arboribus maremiis Habend except pre-except for twenty one years who assigns all his Interest to J. P. and others Queen Eliz. dyes King James grants reversionem praed ac premissa sic ut prefertur except to A. F. R. S. and P. W. and their Heirs the Lessees Attorn A. F. and P. W. release to R. S. and his Heirs Lessees and their Steward c. grant to W. B. Def. a Messuage and a Vierge of Land whereon the Trees grew for term of Life secundum consuetudinem Manerij The Question was inasmuch as the Lessees hold the Court by virtue of the said Lease of the Manor out of which Lease the said Trees were excepted if the Def. the Grantee of the Lessees may take the Trees Per Cur. he may notwithstanding the Severance by the Exception and notwithstanding he comes in by Voluntary Grant and not by Surrender for the Estate of the Copy-holder which comes in by Voluntary Grant is not derived out of the Estate or Interest of the Lord of the Manor for he is but as an Instrument to make the Grant The Estate of the Copy-holder who comes in by voluntary Grant is not derived out of the Lord. but the Custom of the
Manor after the Grant made hath stablish'd and fixed this firm to the Grantee So if the Copy-holders for Life used to have Common in the Lords Wastes or Woods and the Lord aliens the Wastes or Woods to another in Fee and after grants certain Copy-hold Lands or Houses for Lives such Grantees shall have Common of Pasture or Estovers notwithstanding the Severance for the Title of Copy-holder is paramount the Severance and the Custom unites the Common or Estovers which are but accessories and incidents so long as the House and Land being the principal is maintained by the Custom which customary Appurtenants are not pertaining to the Estate of the Lord for he is Owner of the Free-hold and Inheritance of the whole Manor but they are appertaining to the customary Estate of the Copy-holder after the Grant made 8 Rep. 63. Swain's Case Voluntary Grants made by Feoffee of Manor on Condition good Feoffee of a Manor upon Condition grants Land by Copy and afterwards the Manor becomes forfeited and the Feoffor entreth yet the Copy-hold Estate remains untouched so if Feoffee of a Manor on Condition to Enfeoff a Stranger and the next day makes a voluntary Grant by Copy this shall bind Coke Cop. Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio Nay though the Estate of the Lord in the Manor by Relation happen to be void ab initio yet if he grant by Copy during the continuance of his Interest it is good So Copy-holders Estates granted before a Divorce causa praecontractus shall be good So if a man espouseth the Lady of a Manor under the Age of consent and after she disagreeeth though the Marriage by relation was void ab initio yet Copy-holds granted before disagreement shall never be avoided So by Popham in Rowse's Case Owen 28. If a Manor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet such Copies of Surrenders are good Aliter where such Devisee makes new or voluntary Copies If the Lord of a Manor commits Felony or Murder and Process of Outlawry is awarded against him after the Exigent he granteth Copyhold Estates according to the Custom and then is Attainted these Grants are good though by relation the Manor was forfeited from the time of the Exigent awarded So if the Lord had been Attainted by Verdict or Confession If the Lord of a Manor acknowledgeth a Statute and then granteth Lands by Copy Grant after Stat. acknowledged and the Manor extended yet shall be good and after the Manor is delivered to the Conusee in Extent the Grant cannot by this be impeached Lease for years is made of a Manor and to be void upon breach of a Condition Condition is broken and Lessee before entry of the Lessor grants Estates by Copy these Grants shall never exclude the Lessor for upon breach of the Condition the Lease is void But in case of a Lease for Life or Grant in Tayl or Fee of the Manor on such Condition the granting Estates by Copy before Entry of the Lessor c. may be good for before his Title be executed by Entry the Tenant c. hath a lawful Interest to grant by Copy Coke Cop. p. 100 101. Sect. 34. But if a Parson before Induction grant Lands by Copy being parcel of a Manor which is Glebe Land this admitting binds not though he be afterwards Inducted Ibid. Tenant in Dower shall not avoid such Grant If the Lord of a Manor taketh a Wife and after that granteth Copy-hold Estates according to the Custom and dyeth and the Feme hath this Manor assigned to her in Dower yet she cannot avoid these Copy-hold Estates because the Copy-holders are in by a Title paramount to the Feme viz. by Custom Coke 8 Rep. 63. b. Swain's Case But if the Lords Heir make such assignment of Dower she may avoid them But in all these Cases before put observe these three Rules 1. These Grants must be according to the Custom of the Manor and Rents and Services customary must be reserved 2. Though it is not material what Estate or Interest the Lord hath Tenant at sufferance Grants c. shall not bind yet it must be an Estate or Interest and therefore Tenant Pur auer vie of a Manor is Cesty que vie dyes the Tenant continued possession of the Manor and held Courts and made voluntary Grants by Copy Per Cur. This shall not bind the Lord for he was but Tenant at sufferance who had not any Interest and so he was a Disseisor of the Manor More n. 369. Rouse and Artois 3. As to the Lords Grant of the Copy-hold Estate in respect of his Estate in the Copy-hold there the quantity of the Lords Estate is to be regarded for if a Copy-holder in Fee surrender to the use of the Lord for Life the remainder over to a Stranger or reserving the reversion to himself if the Lord will grant this by Copy in Fee whatsoever Estate the Lord hath in the Manor yet having but an Estate for Life in the Copy-hold no larger Estate shall pass than he himself hath Coke Cop. 96. What acts of the Lord in granting Copy-holds are not confirmed by Custom but only strengthned by the Power Interest and Authority of the Lord have no longer continuance than the Lords Estate continueth Therefore if a Tenant for Life of a Manor granteth a Licence to a Copy-holder to alien and dyeth the Licence is destroyed and the power of Alienation ceaseth Now as to the Quality of the Lords Estate he must be Legitimus Dominus he must have a lawful Estate in the Manor The Rule in Cokes 4 Rep. Clark and Pennyfeather's Case is universally true Grant by one that hath a tortious Title not Good If a Disseisor or Feoffee of a Disseisor or any other who had a tortious or defeazable Estate or Interest subject to the Action or Entry of another hold Court and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold such voluntary Grant shall not bind him that hath right when he hath re-continued the Manor by Action or Entry for to this intent the said Custom shall be understood of a Lord who hath a lawful Estate or Interest A Grant upon an usurped Title shall never bind the right Owner but that by Action or Entry he may avoid them for the Law will not support a Custom which shall work or tend to the disherison of the right owner If the Heir of a Disseisor who comes in by descent Grants any Copy-hold Estate it may be avoided by the Disseisee So of a Feoffee of a Disseisor who comes in by Title If Tenant in Tayl of a Manor discontinueth the Tayl and after the discontinuance granteth Copy-hold Estates and dyeth now the Discontinuee comes in under a just Title and shall enjoy against all the World during the
Life of Tenant in Tayl yet his Interest being determined by the death of Tenant in Tayl Grants made by whom shall be avoided the continuance of the Possession is a Tort to the Heir and upon his rcovery in a Formedon in the Descender he shall avoid these Grants So in cases of alienee of a Manor whereof a man was seized in jure Uxoris making Grants may be avoided after his death by the Feme So Lessee for years of Tenant for Life of a Manor So by a Tenant at sufferance as Tenant pur auter vie who continues in after the death of Cesty que vie Vide supra Rous and Artois Case 4 Rep. 24. mesme Case By Lessee of a Manor Lessee for years of a Manor grants a Copy-hold in Reversion and before the Reversion happen the Term is expired the Grant is void So if such Lessee surrenders his Term and then before his Lease should have ended in point of Limitation the Reversion falleth yet the Grantee shall not have it Infant One that hath in present a Lawful Estate or Interest in a Manor defeasable upon breach of Condition Enters he may make Grant by Copy before such Entry and it shall be good If Infant infeoff me of a Manor though he may enter upon me at his pleasure yet Grants made before his Entry shall not be avoided by any subsequent Entry vide supra Guardian in Socage may hold Courts and grant Copies not the Bayliff of a Manor A Guardian in Socage may hold Courts in his own name and may grant Copies for he is Dominus pro tempore and hath interest in the Land but a Bayliff of a Manor hath no interest therefore he cannot make Grants and Copies but the Guardian hath interest Provisione Legis but so as to be accountable for Fines Owen p. 115. Shopland and Radlen Grants of Copies in Reversion The Lord of a Manor for Life or a particular Tenant having interest in the Manor might grant Copies in Reversion although they were not executed in the Life of the Grantor More n. 292. Sir Peter Carew's Case 236. contra So a Tenant in Dower of a Manor may grant Copy-hold parcel of that which she hath assigned in Dower in Reversion Habend post mortem A. P. though it was doubted in the Earl of Arundel's Case and the reason is the Custom For it is said in Gay's Case Cro. El. p. 661. There is a Custom alledged That Dominus pro tempore may demise for one two or three Lives Copy-hold not to be granted by parcels in Possession or Reversion But one who hath a particular Estate in a Manor cannot grant a Copy-hold by parcel or demise part and retain the residue himself If a Feme be indowed of several Copy-hold Tenements she cannot grant part of them by Copy in possession or Reversion per Popham ibid. Vide mesme Case 1 Rolls Abr. 499. In some special Case an Estate may be granted by Copy Where a Grant may be good by one who is not Dominus pro tempore by one that is not Dominus pro tempore nor that hath any thing in the Manor as if the Lord of a Manor by his Will in writing deviseth That his Executors shall grant the customary Tenements of the Manor according to the Custom of the Manor for the payment of his Debts and dyeth the Executor though he hath nothing in the Manor may make Grants according to the Custom of the Manor Co. Lit. 58. b. At what place the Lord may Grant The Lord of a Copy-hold Manor may himself grant a Copy-hold at any place out of the Manor 4 Rep. 26. b. Melwich's Case What amounts to a Grant The admittance of the Lord amounts to a Grant to him who had a Title Aliter if it is to him who was in by wrong as by disseisin 4 Rep. 22. Winch Rep. 67. Hasset and Hanson Grant by the Copy-holder to the Lord. Though a Copy-holder may not convey his Copy-hold to a Stranger without Surrender and Admittance yet he may grant his Estate out of Court to the Lord of the Manor by Bargain and Sale for the Custom is not between the Lord and his Tenant but between themselves only Winch Rep. p. 57. Hasset and Hanson A Copy-holders Release to the Lord is a good Release 1 Keb. 808. CAP. XII Exposition of Grants By what words in Grants Copy-hold shall pass or not What things shall pass by Grant of another thing as Appurtenant or Incident A Copy-holder of a Manor which had Common by Prescription in sixty Acres parcel of the Demesns of the Manor Escheated and the Lord by Deed granted it to another in Tayl Per nomina c. communiarum quarumcunque dicto Messuagio sive tenemento spectan sive in aliquo modo pertinen vel cum eodem Messuagio dimisso usitat Though the ancient Common is determined by unity of possession in the Lord upon Escheat yet revived by a new Grant and by what words The Question was whether by these words the Grantee shall have Common in those sixty Acres Per Cur. The Donee in Tayl shall have such Common as the Copy-holder had But the ancient Common which was by Prescription is determined by unity of possession in the Lord but the Grant enures as a new Grant of the same Common As a Grant to Islington of the like Liberties which London hath is a new Grant of the like Liberties Cro. Eliz. p. 794. M. 42 Eliz. B. R. Worledge and Kingswel If the Lord of a Manor be seized of a Copy-hold Estate and grants this to another Nothing passeth to one named in the Hab. that is not named in the Premisses Hab. to him and his Wife and to the Heirs of their Bodies the Wife shall take nothing by this Grant because she was not mentioned in the Premisses and here is not any Surrender precedent to direct the Grant Where a Grant shall be expounded as a Grant at Common Law but it passeth only by the Grant and so it ought to be expounded as a Conveyance at Common Law So if a Copy-hold Tenant Surrender to the Use of himself Habend to him and his Wife and to the Heirs of their Bodies it seems that this is void for it is in nature of a Grant at Common Law 2 Rolls Abr. 67. Brooks and Brooks But in Surrender aliter Vide infra Tit. Surrender Copy-holder in Fee Surrenders to the Lord ad intentionem That the Lord shall grant this again to him for Life the remainder to his Wife until his Son shall come at full Age and after to his Son the Copy-holder dyes and after the Lord executes it to the Woman Per Cur. This Interest to the Wife is a Term Dyer 251 259. By cum pertin what passeth Copy-holder had Common of Estovers in the Lords Woods appurtenant to his Copy-hold and he purchased the Free-hold of Inheritance in the Copy-hold and had words in his
severance of the Copyhold from the Manor the Copy-hold is not destroyed but it is not parcel of the Manor now if one would alien this he cannot do it by Surrender for it s not parcel of the Manor neither can the Feoffee make Admittance for he is not Dominus but if such Copy-holder will alien there is no way but to have a Decree against him and his Heirs in Chancery and so to bind his person but by it the Interest of the Land is not bound 4 Rep. 24 25. By the Statute of 13 El. Cap. 7. Copy-hold Lands are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record as other the Bankrupts Land but by the same Statute it is provided That all Persons to whom any such Sale shall be made shall before such time as they shall enter and take the Profit of the same agree and compound with the Lord of the Manor of whom the same shall be holden for such Fines or Incomes as heretofore hath been usual and accustomed to be yielded or paid therefore and upon every such Composition the Lord for the time being at the next Court to be holden at and for the said Manor shall not only grant to such Vendee upon request the same Copy or customary Lands or Tenements by Copy of Court Roll of the said Manors for such Estate or Interest as to them shall be sold and reserving the ancient Rents Customs and Services but also in the same Court admit them Tenants of the same Copy or customary Lands as other Copy-holders of the same Manor have been wont to be admitted as also to receive their Fealty accordingly Note Copy-hold Lands are within all the Statutes of Bankrupt Cro. Car. 550. Crisp and Plat. Title to a Copy-hold cannot be made by the Commissioners without Surrender or Admittance 1 Keb. 24. How and to what purpose such Estate Vests before Admittance Cro. Car. 569. In Parker and Bleke's Case it is adjudged That by Bargain and Sale made by the Commissioners of Bankrupts the Estate of the Copy-holder is vested in the Bargainee before Admittance though he may not enter and take the Profits till Admittance The Bargain and Sale binds the Copy-holder and bars his Estate and he is no Copy-holder after the Bargain and Sale enrolled And where the Bargainee is admitted by the Lord it shall have relation to the Bargain and Sale And where the Custom was That the Wife of a Copy-holder dying Tenant shall have a Life Estate it was adjudged the Copy-holder dying after the Bargain and Sale his Wife shall be barr'd of her Widows Estate A Bankrupt purchaseth a Copy-hold and the Tenant Surrenders into two Tenants Hands to the use of the Bankrupt and now he will not be admitted This may be sold by the Commissioners and the Vendee may pay the Admittance Of Surrender Now I shall treat of Surrenders then of Presentment and Admittance for that they make up but one Copy-hold Title First of Surrenders We have seen in the last Chapter how that in some Cases Copy-hold Lands may pass without Surrender Now In some few Cases a Surrender is sufficient without Admittance or Presentment Where Surrenders is sufficient without Admittance as if the Copy-holder Surrender to the Lords use there needs no Admittance And In some Cases Admittance will do without a Surrender Where Admittance is sufficient without a Surrender as if the Lord make a voluntary Grant of the Copy-hold in his hands no Surrender is needful but Admittance only But regularly Estates of Copy-hold must pass by Surrender and Admittance and if the Surrender be out of Court there must be a Presentment Of a Surrender in Court By what words a Surrender will pass It cannot well pass by any other word then sursum reddidit Surrender if it pass in the Court by the words Give Grant Bargain Sell this will not so pass it but the Heirs of the Copy-holder shall avoid it It is vocabulum artis as Warrantizare and some other Law words are What will amount to a Surrender in Court or not By Hobart in Hutton Rep. p. 81. What Words If a Copy-holder comes into Court and saith That he is weary of his Copy-hold and requests the Lord to take it that is a Surrender And by some if he come into the Court and desire the Lord to admit his Son into the Copy-hold this is a good Surrender to the use of the Son But if a Copy-holder comes into Court and saith He renounceth his Copy this is not any Surrender and if the Copy-holder say in the presence of any other Copy-holders He is content to Surrender to the use of J. S. This is not a good Surrender Any words in the Court that declare his intention of surrendring into the Lords Hands is good 3 Rep. 80. in Belfield's Case What Acts. It was agreed between the Lord of a Manor and J. S. That in Consideration of 5 l. paid to the Lord J. S. should enjoy the customary Lands for his Life and also of Alice his Wife durante viduitate and that J. S. should have election whether the said Lands should be assured to him and his Wife by Copy or by Bill c. and he chose by Bill which was made accordingly Per Cur. Here is a good Surrender of the said Lands and that for Life only 1 Leon. p. 191. Collman and Sir H. Portman's Case Cannot be surrendred but by actual Surrender If a Copy-holder in Fee takes the same Lands of the Lord by other Copy for Life this is not any Surrender or Determination of his Copy-hold Inheritance for a Copy-hold may not be surrendred but by actual Surrender in Court and not by a Surrender in Law 1 Rolls Abr. 501. Shepard and Adams But in 3 Bulst p. 80. Belfield and Adams its Reported thus Copy-holder in Fee comes into the Lord's Court and there takes a new Estate of his Copy-hold from the Lord to himself for his Life after to his Wife for Life and after to his Son for Life this was admitted a Surrender and so was the other Case in 1 Roll 501. In whom the Reversion after a particular Estate remains Postea 13 Jac. But the Reversion is in the Surrenderor no disposition having been made of it So in this Case this is not a giving up his Estate of Inheritance but only it shall enure by way of Surrender to the use of himself for Life after to the use of his Wife for Life and after to the use of his Son for Life But if a Copy-holder of Inheritance takes a Lease by Indenture for years by this his Copy-hold Estate is gone and this is a Surrender of his Inheritance in the other Case the Inheritance remains in him and is thus Reported by Rolls If a Copy-holder in Fee comes into Court Copy-holder by accepting of an Estate is not Estopt from claiming another Estate and accepts by Copy an
the Surrenderer should have a particular Estate in him without a Donor or Lessor which by the Rule of Law cannot be March Rep. 177. Bambridge and Whitton therefore Noy p. 152. is not Law Vid. 1 Roll Rep. 135. CAP. XV. Constructions of Surrenders as to Limitations of Remainders and Reversions Of Contingent Remainders Where the Heir shall be in by Descent or Purchase Of a Surrender to the Vse of ones last Will and how to be Construed Surrender upon Condition or Contingency Of Surrender before Admittance Surrender by whom to whom by Feme Covert Countermand of a Surrender What Remedy to force a Trustee to Surender Construction of Surrenders as to Reversion Remainder Limitation What shall be good to pass by the Name of a Reversion or not Surrender by the name of a Reversion COpy-holder by Licence of the Lord demised the Copy-hold to the Plaintiff for twenty years by Indenture rendring Rent the same Copy-holder surrendred the Reversion of the one moity to A. and of the other to B. and they were admitted Per Cur. The Surrender by the name of a Reversion was good in this Case though the Lease was not made by Surrender which had then been directly derived out of the customary Estate but by Indenture for it is still the Lease of the Copy-holder and not of the Lord and the Rent will be divided by moities Husband seized of Copy-hold Land in the right of his Wife who had the Fee surrendred the Copy-hold Land by the name of a Reversion after the death of the Husband and Wife the Surrender is void for by that pretence there shall be a particular Estate left in the Wife and also in the Husband One cannot leave a particular Estate in himself whereas the Husband had nothing before which cannot be And when one is seized in Fee he cannot by any matter in Fact give away the Inheritance after his death and so leave a particular Estate in himself Peradventure by matter of Record he may Cro. Eliz. p. 29. Clamp's Case Copy-holder in Fee by Licence of the Lord 15 Feb. 4 Jac. makes a Lease for sixty years rendring Rent and the Lease was to commence at Michaelmass next ensuing Lessee enters and was possessed Postea scil 8. May the Copy-holder surrenders the Reversion to divers Uses the Grantee of the Reversion distrains for Rent this Grant of the Reversion seems not to be good the Surrender being made the 8th of May which was before the inception of the Lease perhaps if no day had been named it had been good Lit. Rep. 17 18. Surrender of a Reversion bears date before the inception of the Lease Mary Selby and Beck and Drewet's Case there cited A Feme Copy-holder in Fee comes into Court and offers to Surrender to J. S. in Fee but she desires to retain to her self an Estate for Life the Steward enters that she surrenders the Reversion of her Copy-hold to J. S. after her her death it s naught Vide Attornment supra Limitations in Remainder and Construction thereon and of Contingent Remainder Tenant for Life and he in Remainder of a Copy-hold he in Remainder surrenders his Remainder to the Use of Tenant for Life and after his decease to the Use of himself and his Wife the Estate limited to the Tenant for Life is void but the Estate limited to Baron and Feme is good by way of present Estate and not of Remainder 1 Sanders Rep. 150 151 152. So in Siderfin Remainder over good by way of Grant and doth not depend upon a particular void Estate p. 360. Copy-holder in Remainder surrenders to a Copy-holder for Life Remainder over this Remainder over is good by way of grant in the Estate limited to the Tenant for Life because he had an Estate in it for his Life before and therefore it was argued That the Remainder limited after this particular Estate which is void in its creation are void also But Per Cur. the intent was that Husband and Wife shall have the Land joynly for their Lives in possession after the death of Tenant for Life as by mediate Settlement A Surrender is rather in nature of a Deed Poll than of an Indenture and enures by way of limitation of Use ut res magis valeat Wade and Bath Fee upon a Fee upon a Contingency A Fee may be limited upon a Fee upon a collateral Contingent in Copy-hold Estates As if a man surrender a Copy-hold in Fee to the Use of J. S. and his Heirs who is an Infant and if J. S. dyes before the age of twenty one years or marriage then he surrenders this to the use of J. D. in Fee This is a good Remainder to D. upon the Contingent 2 Rolls 791. Simpson and Southwood It s made a Quaere in Stiles in the Argument of Pausley's Case If by the destruction of a particular Copy-hold a Contingent Remainder be destroyed Rolls conceived not because it doth not depend upon the particular Estate but ought to expect till the Remainder happen Stiles 251. and there is one in esse to take the particular Estate But it seems the Law to be contrary and that if the particular Estate be destroyed the Contingent Remainder is gone As to this A Surrender is to the Use of a Feme Covert the Remainder to the right Heirs of the Body of the Husband and Wife he in the Remainder shall not take till the Husband dyes for he which is to have this ought to be Heir of the Body of both 2 Rolls Abr. 415. Lane and Pannel A like Case as this is also Reported 3 Leon. p. 4. Copy-holder is surrendred to the Use of the Wife for Life the Remainder to the Use of the right Heirs of the Husband and Wife the Husband entred in the right of his Wife Per Cur. The Remainder is executed for a moiety presently in the Wife and the Husband was seised of that in the Right of his Wife and the Wife dying first her Heir shall have it but if the Husband had dyed first his Heir should have had one moiety But the Case of Lane and Pannel wherein was good Law and nicely argued is better Reported in 1 Rolls Rep. 238 317 438. The Case was this Lane was seized of a Copy-hold in Fee and having a Wife surrenders it to the Use of Dixon and the Wife for their Lives and after to the Use of the Heirs of the Body of the Husband and Wife and the Wife and Dixon are admitted to them and their Heirs and after Dixon surrenders his moiety to the Husband and Wife and their Heirs upon which they were admitted and afterwards they Surrender it to the Use of one Davis in Fee who was admitted then the Wife dyes having Issue and after the Husband dyes the Heir brings an Action of Trespass it s not maintainable The great Question was whether the Wife had an Estate Tayl executed vested in her Per Coke Whether
Therefore T. H. was Copy-holder in Fee and surrendred out of Court into the Hands of H. B. and W. J. two Copy-holders of the Manor to the Use of R. W. in Fee R. W. entred and paid the Rent to the Lord. T. H. who surrendred dyed H. B. and W. J. who took the Surrender are dead The Heir of T. H. entred R. W. re-enters Per Cur. By the Surrender into the Hands of two Tenants nothing passed until it was presented in Court and in the interim the Interest remains in him who made the Surrender which Interest descended to the Heir and the acceptance of the Rent by the hands of Cesty que use gives not any Interest unto him and there is no Estate in Cesty que use but an Inception until this Surrender be presented in Court But they held also That it was not of necessity that the Parties who took the Surrender should present it and although they are dead and the Party who made it is dead yet as the Custom is found if it be presented by any other Copy-holder when the Court is held it s well enough and he may be thereupon admitted Cro. Jac. 403. Froswel and Welch and so is Buntings's Case 4 Rep. so resolved And Cesty que use shall procure a Court to be held for his own advantage 1 Bulst 215. mesme Case Two Joynt-Tenants in Fee of a Copyhold Cesty que use to procure a Court to be held for his own advantage and one surrenders his part into the Hands of the Lord to the Use of his last Will and after deviseth this to another in Fee and dyes and after at the next Court this is presented the Devisee shall have it for now by relation the Joynture was severed and the Estate of the Land bound by the Surrender Constable's Case Rolls 1 Abr. 501. So Cro. 30 Jac. Mich. Porter's Case Custom for a Copy-holder to Devise and if the Will be not presented within a year and a day next after the Devise to be void they were several Customs and so differ from Peyrrman's Case Now suppose no Court be holden in that time Carter's Rep. 71 72 88. Smith and Painton It shall be presented at a Court within the year or at next Court after the year ended else it shall be void 5 Rep. 84. 2 Anderson 125. In Perryman's Case 5 Rep. 84. It is a Question what remedy if the Copy-holder will not present the Surrender made out of Court the Answer is Caveat emptor but certainly there is good remedy in Equity as in all Cases of Trustees or Instruments of Conveyance The Custom is That it should be presented at next Court otherwise it was void One surrenders his Copy-hold into the Hands of two Tenants out of Court upon condition of payment of Mony 25 July after to be void After he surrenders out of Court to the Use of J. S. the Mony was paid before the 25 of July Then he surrenders to the Use of a third person before the payment At the next Court the surrenders were presented Two Surrenders and the second Surrender presented first but not the first and the Lord grants Admittances severally to these two Persons Per Cur. The second Surrender was good for nothing by the Surrender out of Court was divested out of him that surrendred until the Surrender was presented but he was absolute Owner to bring Trespass or any other Action and then that not being presented and the second was presented the first Surrender was void and the second was good Jones 306. 1 Rol. Abr. 500 Burgis and Spurlin's Case Cro. Car. 273 283. mesme Case CAP. XVII Of Admittances upon Voluntary Grants Surrenders Descents By whom Admittances upon Surrender made shall bind In what Cases the Admittance of the one shall be the Admittance of another Of Admittance by Attorny Admittance where to be made Of Admittance upon Descent The time of Admittance What things the Heir may do or not do before Admittance In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant and to what purposes not And what Leases c. made by them shall be good and in what Cases the Lord shall be compellable to make Admittances and where not Of Admittances on voluntary Grants NOTE a diversity between the Heir who comes in course by Descent and another Stranger who comes in by Surrender and hath these words Dominus concessit admissus est but when the Heir of a Copy-holder is to be Admitted he hath only these words Et admissus est Admittances are of three sorts upon a Voluntary Grant Surrender Descent As to voluntary Grants made by the Lord in some sense he may be said to be the absolute Owner of the Land and may dispose of it at his pleasure yet he is bound to observe the Custom of the Manor in his Grants neither can he alter the Estate or Tenure If the Custom doth warrant an Estate to a Woman durante viduitate only and the Lord admits for Life this shall not bind his Heir The Custom must be pursued So in Reservations according to the accustomable Rent the Lord must strictly pursue it as where he reserves 10 s. where the usual Rent was 20 s. So where the Rent has been accustomably paid at four Feasts and the Lord reserves it at two Feasts these are void So if two Copy-holds Escheat to the Lord the one of which hath been usually demised for 20 s. rent and the other for 10 s. and he granteth them both by Copy for 30 s. it s not good But in this kind of Surrender the Lord is not considered barely as an Instrument because he is not bound to dispose the Land but to whom he pleaseth yet he is an Instrument in respect he is tyed unto Custom but in the other sort of Surrender he is barely an Instrument Where to be made The Lord himself may grant or make Admittances out of the Manor at what place he pleaseth but so cannot the Steward 4. Rep. 26 and 27. Several Tenures and several Fines The Lord admits Tenenda per antiqua servitia inde prius debita de jure consueta And if the Tenures are several the Fines must be several In Westwick's Case 4 Rep. The Entry of the Roll was Ad hanc curiam venerunt Willielmus Westwick Johanna Uxor ejus ceperunt de Domino Tenementa praed cum pertin in quibus c. prefat Willielmo Westwick Johannae Uxori ejus Tenend eisdem Willielmo Johannae haeredibus suis c. When the Surrender was to the Use of William Westwick in Fee yet the Admittance shall enure only to the Husband The Admittance must be pursuant to the Surrender for the Lord can but make Admittance secundum formam offectum sursum redditionis de quo vide in Cap. Surrenders Cesty que use cannot surrender before Admittance and the Entry of the Surrenderer doth not make an
Admittance it being entred thus Compertum est per homagium c. and not as its usual dat Domino de fine fecit fidelitatem admissus est inde tenens at the end of Popham p. 127 128. Rawlinson and Green Of Admittances upon Surrender The nature of it will be Explained by two or three Rules I. The surrender of a Copy-hold to J. S. hath no effect till J. S. be admitted Tenant Till admission the Tenant hath no Estate therefore if J. S. before he is admitted surrenders to J. B. who is admitted this avails nothing to J. B. for J. S. himself had nothing and so can pass nothing and the Admittance of his Grantee shall not be taken by implication as Admittance to himself for the Admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by it self and in such case the Right and Possession remains still in him who surrendered and descends to his Heir he to whom the Copy-hold is surrendred comes in as a Purchaser and his Copy is his Evidence by the Custom and till he is admitted he can be no customary Tenant and therefore can transfer no right to another Yelverton 145. Wilson and Weddel 1 Brownlow 143. Aliter in Case of Descent Vide infra The Admittance of a Copy-holder is compared to the Induction to a Benefice which gives Possession At the end of Popham p. 127 121. Rawlinson and Green That Case was Copy-holder surrendred his Copy-hold Estate to the Use of another which was presented at next Court and found by the Homage and he to whose Use the Surrender was made was there in Court accepted by the Steward and a Copy by him granted unto him afterwards he to whose Use this Surrender was made surrenders the same again to the Use of another which was presented and a Copy granted to him and he accepted as a Copy-hold Tenant but no Admittance Entred as Cepit de Dom. admissus est inde tenens c. Per Cur. He to whom the first Surrender was made had no Estate in him before Admittance and whether and how far he might transfer this Interest Curia dubitav and whether what was done to the second Surrendree is not an assent by the Lord to the first Surrenderer It was granted That if the Steward accepted a Fine as of a Copy-holder it amounted to an Admittance 3 Bulstr 237. mesme Case II. Surrenders of Copy-holds are not to be likened to Surrenders at Common Law for if a Copy-holder in Fee surrenders to the Use of another for Life nothing more passeth out of him than shall serve the Estate limited to the Use and he which made the Surrender shall not pay any Fine for re-Admittance to the Reversion for this continues always in him 9 Rep. 107. Margaret Podgers Case III. The Lord hath a bare customary power to admit secundum formam effectum sursum reddit Therefore if there be any variance between the Admittance and Surrender either in the Person or the Estate or in the Tenure its void c. The Lord doth only transfer an Estate according to the Surrender Where the Lords Admittance of a Copy-holder in other manner than agrees to the Surrender shall be good and how it shall be construed and enure Admittances as to Limitations alter not the Estate for he is in by force of the Surrender If J. surrender to the Use of J. S. and the Lord admits J. N. this Admittance is wholly void and yet the Lord may afterwards admit J. S. according to his Authority but had he admitted J. S. and J. N. joyntly then the Admittance had been void for the one and good for the other Co. Cop. 127. If a man surrender to the Use of J. S. and J. D. for their Lives the Remainder over to another and J. S. and J. D. are admitted in Fee yet this doth not alter their Estate but they shall be seised according to the Surrender 1 Rolls Rep. 317. Lane and Pannel Surrender is upon Condition the Presentment is absolute and the Admittance is absolute the Presentment was void But the Surrenderors Release to Cesty que use shall make his Estate good Vide supra 4 Rep. Keit and Quinton If the Lord after Surrender grants to Cesty que use and to Stranger all shall enure to Cesty que use or if he admit the Cesty que use upon a Condition the Condition is void for after Admittance he is in by him that made the Surrender So if a Copy-holder surrender to the use of another pur vie and the Lord admit him to hold to him and his Heirs yet Cesty que use had but an Estate for Life for he is in after Admittance by force of the Surrender 4 Rep. Westwick and Wier Note A Copy-hold Estate cannot be surrendred to another by an Attorny without Deed but one may be admitted to a Copy-hold Estate by Attorny without Deed Stiles Pract. Reg. 74. By whom Admittance upon Surrender may be made and shall bind By those that have defeasible Titles Admittances made by Disseisors Abators Intruders Tenant at sufferance or others who have defeizable Titles are good against them who have Right because these are lawful Acts and they were compellable to do the same Co. Lit. 58. b. If Disseisor of a Manor accept a Surrender of a Copy-hold of Inheritance to the Use of another and his Heirs and he admits Cesty que use accordingly this is good and shall bind the Disseisee p. 40 Eliz. B. R. Martin and Rieve 4 Rep. 24. If A. Copy-holder for Life surrender to the Disseisor of a Manor to the Use of another for the Life of A. and the Disseisor admits him accordingly this shall bind the Disseisee ibid. Martin's Case But without Admittance it shall not bind Surrender by Dom. pro tempore and his Estate determines before Admittance If the Lord pro tempore of a Copy-hold Manor be Lessee for Life or for Years Guardian or any who had particular Interest or Tenant at will of a Manor accept a Surrender and after before Admittance the Lessee for Life dyes or the Years Interest or Custody or the Will is determined although the next Lord comes in paramount the Lease for Life or for years the Custody or the particular Interest or Tenancy at Will yet he shall be compelled to make Admittance according to the Surrender 17 Jac. Lord Arundel's Case Co. Lit. 59. b. Trin. 1 Jac. Rot. 854. Shopland and Ridler By the Deputies Servant admitting no Judicial Act. The Deputy of a Steward commands H. his Servant to keep Court and grant Land and Admit Per Cur. it is good for the taking a Surrender granting Lands by Copy admitting a Copy-holder is not any judicial Act for there need not be any Suitors there who are Judges 1 Leon. 288. Lord Dacres's Case What amounts to an Admittance If a Copy-holder in Fee surrender to the Use of another
enter upon the Land before Admittance he may take the Profits punish any Trespass done upon the Land 4 Rep. 21. Brown's Case and 23 Fitch and Huckly He may before Admittance surrender to whose Use he pleaseth paying the Lord his Fine The Lord may avow upon him before Admittance for arrears of Rents or other Services If Baron and Feme Copy-holders to them and to the Heirs of the Husband are and the Husband dyes the Heir of the Husband may surrender his Reversion into the hands of two Tenants of the Manor out of Court before any Admittance during the Life of the Wife and this is a good Surrender for the Reversion was cast upon him before any Admittance Calchin's Case 1 Rolls Abr. 499. Possessio Fratris before Admittance There shall be a possessio fratris before Admittance for if a Copy-holder in Fee have Issue a Son and a Daughter by one Venter and a Son by another Venter What makes a Possession or not for that purpose and his Son by the first Venter enter into the Land and dyeth before Admittance the Daughter shall Inherit as Heir to her Brother and not the Son by the second Venter as Heir to his Father And sometimes the Possession of a Termor without any actual Entry or Claim made by the Heir will make a possessio fratris as if the Copy-holder by Licence of the Lord maketh a Lease for years and dyeth and the Son of the first Venter dyeth before the expiration of the Term being neither admitted nor having made any actual Entry or Claim yet this Possession of the Lessee is sufficient and the Reversion shall descend to the Daughter of the first Venter and not to the Son of the second Venter but if the Lease had determined the Son living by the first Venter and afterwards he had dyed before any actual Entry made the Law would have fallen out otherwise because there was a time when he might have lawfully entred The same Law was as to the possession of a Guardian Heir before Admittance is not a compleat Tenant to all purposes But yet the Heir before Admittance is not a compleat Tenant to all intents and purposes for before that he cannot be sworn of the Homage and he cannot maintain a Pleint in the nature of an Assise in the Lords Court till he is admitted Co. Cop. As there may be possessio fratris c. before the Heirs Admittance so there may be a Tenant by the Curtesie Dyer f. 292. before Admittance of the Feme More n. 425. By Hales in the Case of Blackburn and Greaves Modern Rep. 120. If a Surrender be to the Use of A. for Life the Remainder to his eldest Son c. or to the Use of A. and his Heirs and then A. dyes the Estate is in the Son without Admittance whether he takes by Purchase or Descent One seized of a Copy-hold Tenement in right of his Wife in his Demesn as of Fee surrenders this Copy-hold Tenement without his Wife to the Use of a Stranger in Fee who was admitted by the Lord accordingly Husband dyes and Wife dyes the Heir of the Wife without Admittance enters on the Stranger and made a Lease and good Popham 39. Bullock and Dibler This is no such discontinuance against the Heir as to put the Heir to a Plaint in the nature of a cui in vita it s no more than a Grant which passeth no more than his own Estate and the Heir may intermeddle with the Possession before Admittance Upon a Custom to surrender to two Copy-holders out of Court Surrender to the Heir as a Copy-hold Tenant is good before Admittance Heir may enter and have Trespass before Admittance a Surrender to the Heir of a Copy-holder before Admittance is good 1 Keb. 25. Munifas and Baker Copy-holder dyes the Lord admits a Stranger the Heir may enter and upon re-entry maintain a Trespass without Admittance Noy p. 172. Simpson and Gillion He shall have Trespass and this before his Admittance upon Descent 2 H. 4.12 Pl. 49. 4 Rep. 23. b. Cro. El. 349. Berry and Green When the Heir shall be in by Purchase and not by descent If a Copy-holder of Inheritance surrender this to the Use of another and his Heirs and he to whom the Surrender is made dyes before Admittance and after the Lord admits his Heir he shall be in by Purchase and not by Descent for he is in by the Lord for nothing was in his Father by the Surrender before Admittance 1 Rolls Abr. 827. More 's Case Where there needs no Admittance In the Cases of the Heir per Descent Vide supra When one comes in as of an old Estate A. surrenders Copy-hold into the hands of the Lord and the Lord de novo re-grants the same to A. for Life and afterwards to J. his Wife during the non-age of the Son and Heir of A. and after to the Son and Heir in Tayl. A. dyes the Child being 5 years old Now the Wife is to have the said Lands for 16 years by force of the said Surrender and Admittance The Wife took another Husband and dyed Per Cur. The Husband shall have the Land during the non-age of the Infant and that without any Admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee 3 Leon. p. 9. Dedicot's Case If a Copy-holder be for years and maketh his Executors Executors and dyeth the Executors shall have the Term without any Admittance Sed Quaere for Weston in this point was against Dyer and Brown Joynt-Tenants Release One Joynt-Copy-holder released to his Companion and it was resolved That the Release was good without Surrender or Admittance for the first Admittance is of them and every of them and the ability to Release was from the first Conveyance and Admittance Winch p. 3. Wase and Pretty In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant before Admittance and to what purposes not and what Leases made by them shall be good Upon Surrender nothing is vested in the Grantee before Admittance Vide supra The Copy-holder upon Surrender if the Lord refuse to admit him He who makes the Surrender continues in possession till Admittance cannot enter without Admittance nor have an Action unless there be a special Custom to warrant it for he who makes the Surrender continues in possession till Admittance and not the Lord or Cesty que use and he shall have Trespass against any that enters Cro. El. 349. Berry and Green If by the Custom of the Manor the Copy-hold ought to descend to the youngest Son and the Copy-holder in Fee surrender this to the Use of himself and his Heirs and dyes before any Admittance upon the Surrender and the youngest Son first enters the eldest may not justifie his entrance upon him before Admittance 1 Rolls Abr. 502. If a Copy-holder surrendreth to the Use
of one for Life who is admitted and dyeth He in Reversion he in the Reversion may enter without a new Admittance and therefore H. B. being seized of Copy-hold Land in Fee and having Issue three Sons G. H. and J. he surrenders it to the Use of his last Will and thereby devised it to his Wife for Life the Remainder to H. and the Heirs of his Body the Wife dyed after Admittance Henry dyes without Issue G. may enter and Admittance for him is not necessary 1 Leon. p. 174. Bullen and Grant If customary Lands do descend to the youngest Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected He shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves Feme to her Free-Bench the Freehold of the Copy-hold being granted over The Custom of Free Bench was durante viduitate si tam diu casta vixerit the Wife after the death of her Husband comes into Court and challenged her Right of Free Bench and prayed to be admitted and the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring an Action by reason the Woman was not admitted was the Question for it was agreed no Fine was due to the Lord. Per Cur. If the Freehold of the Copy-hold be granted over and the Husband dyes Admittance in Law there cannot be Admittance in that Case and yet she may enter And in this case she hath done all she could for Admittance and it is an Admittance in Law to an Estate created by Custom and by act of God and Law Continual Claim amounts to an Entry Hutton p. 18. Jordan and Stone In this Case after the death of the Husband the Law casts the Estate upon the Wife before Admittance and she may make a Lease for years as any other Copy-Holder may mesme Case 1 Rolls Abr. 592. Steward will not admit Cesty que use He enters and takes the Profits Lord brings Ejectment the Defendant shall plead not Guilty If a Copy-holder Surrender to a Stranger and the Steward will not admit him and the Stranger enters and occupies the Land if the Lord Lease to a Stranger to try the Title he to whom the Surrender was made although he be not admitted may well plead not Guilty and it shall be found for him against the Lord. In the Case of Arnold and George Yelv. p. 16. agreed by the four Judges Yet Quaere for how can the Stranger make a Title to the Profits without Admittance But perhaps the reason was That the Lord seemed to be particeps criminis for it may be intended he would not suffer the Steward to admit the Defendant She who hath a Widows Estate shall make a Lease before Admittance for the Law vested the Estate in her and there is no Fine due to the Lord Noy p. _____ Remington and Cole Husband enters into the Lands in right of the Wife before Admittance Entry of the Husband in Right of the Wife and Lease by him before Admittance and the Wife dyes before Admittance yet his Lease shall be good 1 Anderson 192. Ewer and Astwick in More n. 425. mesme Case If by the Entry of the Husband without Admittance of the Wife he should be Tenant by the Curtesie and resolved he shall In what Cases the Lord shall be compelled to make Admittances and how and in what not If the Lord of the Manor for the time being be Lessee for Life or Years Guardian or any that hath any particular Interest or Tenant at Will of a Manor all which are accounted in Law Domini pro tempore do take a Surrender into his hands and before Admittance the Lessee for Life dieth or the Years Interest or Custody do end or determine or the Will is determined though the Lord cometh in above the Lease for Life or years or other the particular Tenancies yet shall he be compelled to make Admittances according to the Surrender Co. Lit. 59. b. Earl of Arundel's Case Action on Case by the Surrenderor but not by Cesty que use It was resolved in Gallaway's Case 26 El. The Party that made the Surrender may have Action on the Case against the Lord for not holding his Court and admitting him to whose Use the Surrender was made but Cesty que use cannot Chancery Chancery will compel the Lord to admit a Tenant Tothil p. 65. Custom was That a Copy-holder for Life should name his Successor for Life and to compound with the Lord if he cannot compound then the Homage to assess the Fine he tenders it the Lord refuseth to admit Action on the Case lies not against the Lord and he that is nominated hath not any Interest therein but he may compel him in Chancery Cro. Jac. 368. He that hath no Interest as a Nominee shall have no Action sur Case Ford and Hoskins 1 Rolls Rep. 125 195. ibid. 2 Bulstr 236. mesme Case The Nominee hath neither jus in re nor jus ad rem he hath a nomination only which is matter meerly in Equity he hath neither damnum nor injuriam here because he hath no Interest Littera Attornatu ad sursum reddend tenmenta Custumaria sursum redditio admissio Co. Ent. 576. CAP. XVIII Of Fines Fines certain Vncertain Vpon Descent and Purchase Of Fine Excessive What Customs are good as to payment of Fines Of Fines as to Admittances to Reversions or Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine Fines FInes due to the Lord upon Admittance are not to be paid till Admittance either upon a Surrender or Descent for Admittance is the cause of the Fine and the Parties being Admitted intitles the Lord to the Fine 4 Rep. 28. Sand's Case and Bacon's Case Though sometimes they are certain and by some Customs uncertain yet they ought to be reasonable Of Fines certain It was the Opinion of Richardson Chief Justice There is scarce a Copy-holder in England but the Fines are uncertain for saith he If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine this makes the Fine uncertain the ordinary course to search it is by Bill in Chancery Lit. Rep. 252. It was but his private Opinion for Fines are certain in great numbers of Manors And I suppose he means as to Evidence for in the Case of Allen and Abraham 2 Bulst 32. there is diversity between proof in case of Descents and Purchase The Case was this Upon not Guilty in Ejectment the matter upon the issue was about the Custom of a Copy-hold Manor whether the Copy-holders upon their Admittances have used to pay Fines uncertain at the will of the Lord or certain i. e. the value of two years Rent To prove the Fines uncertain Evidence to prove uncertainty
of Fines the Plaintiff shewed divers Court Rolls of Admittances upon Surrenders and that the Fines taken by the Lord were not certain but sometimes one sometimes another Per Curiam To prove a Custom for uncertainty of Fines and not to be certain two years Rent there ought to be shewed Court Rolls Fines upon Discent and Purchase and that in Cases of Descents and that upon such Admittances they used to pay two years Rent the proof ought to be in case of Descents for in case of a Surrender or Purchase the Lord may take what Fine he will But such Fines are no proof to prove the taking uncertain Fines by the Custom but the same ought to be in cases of Descents Of Fines reasonable Excessive Fines how to be determined But where the Fines are uncertain yet the Lord cannot exact excessive Fines and if the Copy-holder deny to pay it it shall be determined by the Opinion of the Judges before whom the matter depends Hubbard and Hamon's Case cited 1 Brownl 186.4 Rep. 27. mesme Case Co. Lit. 59 60. To this purpose is Denny and Lemon's Case Hobart p. 135. Copy-holder brought Trespass against his Lord. Defendant pleads he had admitted the Copy-holder and had assessed a Fine of twenty Nobles and had appointed him to pay it to his Bayliff at his House within the Manor three Months after and alledged he had not paid it The Plaintiff demurs Whether in pleading the reasonableness of the Fine must be averred for that the Lord had not averred the Fine was reasonable But Per Cur. the Lord is not bound to aver it but it must come on the Copy-holders side to shew the circumstances of the Case to make it appear to the Court to be unreasonable and so to put it upon the Judgment of the Court for the Fine in Law is arbitrary and is due to the Lord of common Right and it is only in point of excuse to the Tenant if it be unreasonable and the Court shall judge the unreasonableness of it The Copy-holder if he be Defendant may plead not Guilty and then it shall come in Evidence whether the Fine were reasonable or not and so is the Opinion of my Lord Coke Comment upon Lit. Sect. 74. The reasonableness saith he shall be discussed by the Justices upon the true circumstances of the case appearing unto them and if the Court where the Cause dependeth adjudgeth the Fine exacted unreasonable then is not the Copy-holder compellable to pay it for all excessiveness is abhorred in the Law It was argued in Wheeler and Honor's Case That all Fines are reasonable unless the contrary appear 1 Keb. 154. What Customs are good as to payment of Fines Of Fines due by the Copy-holder to the Lord some be by change or alteration of the Lord and some by change or alteration of the Tenant If the Fine be due by the alteration of the Lord such alteration must be by act of God Fines due by the alteration of the Lord. for if the Lord do alledge a Custom within his Manor to have a Fine of every one of his Copy-holders at the alteration or change of the Lord of the Manor be it by alienation demise death or otherwise this Custom is against the Law as to the change of the Lord by the act of the Party for by that means the Copy-holders should be oppressed by the multitudes of Fines by the Lords own act but when the change groweth by the act of God there the Custom is good By the act of God as by the death of the Lord Co. Lit. 59. b. Due by the alteration of the Tenant But it is a good Custom that the Copy-holder had used to pay a Fine upon every alteration of the Tenant either by the act of God or by the act of the Party Co. Lit. 59. b. Armstrong's Case The Fine is to be assessed by the Lord. The Fine by whom to be assessed But in some places the Custom is That the succeeding Copy-holder shall compound with the Lord for his Fine and if he cannot compound then the Homage of the Manor shall assess the Fine as was the Case of Ford and Hoskins Cro. Jac. 368. Custom not to pay a Fine till full Age. The Custom is not to pay a Fine till one come to Age it s a good Custom 3 Keb. 90. agreed to in Champian and Atkinson's Case Fines as to Admittances to Reversions or Remainders Copy-holder in Fee surrenders to the Use of another for Life when Lessee dyes he shall not pay a Fine for his Admittance to the Reversion for this continues always in him 2 Rep. 107. Margaret Podger's Case If Copy-holder in Fee surrender to the Use of one for Life the Remainder to another for Life the Remainder to another in Fee there is but one Fine due for the particular Estate and the Remainders are but one Estate 1 Rolls Abr. 505. What refusal to pay a Fine shall be a Forfeiture or not If the Fine be uncertain Notice to be given if the Fines be uncertain notice must be given before there be a Forfeiture aliter if the Fine be certain but yet Denny and Lemon's Case is good Law Time and place must be ascertained and refusal must be proved 1 Keb. 154. 4 Rep. 27 28. The Lord assesseth a Fine of 12 l. to be paid by a Copy-holder Tendring the Fine certain though not the Fine assess'd is no forfeiture and appoints it to be paid at his Capital Messuage of the Manor three Months after and the Copy-holder pretending the Fine to be certain viz. two years Quit-Rent offered at the day of assessing the Fine according to the Rent for two years but at the day appointed for the payment thereof cometh not thither to excuse his non-payment nor makes any other refusal Per Cur. this is in Law a forfeiture of his Copy-hold but if he had come at the day assigned him for the payment and had then tendred the two years Quit-Rent being the Fine certain though not the Fine assessed it had been no forfeiture Cro. Jac. p. 617. Gardner and Norman It is adjudged in the Case of Dalton and Hammond More n. 851. If the Fine be certain the Tenant is to bring it with him to the Court and pay it before Admittance and if he be not ready to pay it it s a Forfeiture aliter of the refusal to pay an excessive Fine Where a Copy-holder hath divers several Lands For every several Tenure several Fines severally holden by several Services by Copy there the Lord may assess and demand Fines severally for every parcel which is so severally held for the Tenant may refuse to pay a Fine for the one and so forfeit this and yet pay the Fines for the others and for every several Tenure the Lord ought to demand and assess a several Fine as in Tavernor and Cromwel's Case 4 Rep. 28. Hobart and Hamond's Case How the
Rep. 25 26. Where by the Custom Plaints have been made in the Court of the Manor in the nature of real Actions if such a Recovery be against Tenant in Tayl Copy-holder this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for they are warranted by Custom and it is an incident that the Law amounteth to the said Custom that such Recovery shall make a Discontinuance 4 Rep. 23. Deal and Rigden Discontinuance If a man seized of Copy-hold Land in right of his Wife surrender it to the Use of another in Fee who is admitted and the Husband dyes this is not any Discontinuance to the Wife nor to her Heirs but that she may enter and shall not be put to a cui in vita nor her Heir to a sur cui in vita 4 Rep. 23. Bullock and Dibler Yet Walmsly in Collins and Cranks Case Cro. Jac. 105. held it was a Discontinuance Quaere his Reason Surrender by Tenant Copy-holder in Tayl If Surrender make a Discontinuance makes not any Discontinuance except a special Custom be and then its a bar Vide prius and Cro. El. p. 148. Bulle's Case But in Cro. El. 717. Erishes Case That such a Surrender is a Discontinuance to put the Issue to his Action this being as strong as a Livery by Tenant in Tayl and the Alienee is in by the Tenant in Tayl though he comes in by Grant of the Lord 1 Leon. p. 95. Case 124. Knight and Footman there holden That the surrender of Copy-holder in Tayl to the Use of another in Fee doth not make any Discontinuance but the Issue in Tayl may enter and the Serjeants Case there cited to be so One under age surrenders and dyes having Issue A. A. may enter and shall not be put to his dum fuit infra aetatem 1 Leon. 95. Knights Case But it is setled That a Surrender makes not a Discontinuance Vide infra pres a pres A farther Discourse of what shall amount to a Discontinuance or not Vide hic Cap. supra If a Copy-holder in Tayl admitting it be an Entayl surrender to the Lord to make his Will and he re-grants this to the Copy holder this is not any Discontinuance although a Surrender to the Use of an Estranger should be admitted to be a Discontinuance for a surrender to the Lord may not make any Discontinuance forasmuch as he had the Reversion agreed upon Evidence at the Bar in Lee and Brown's Case Mich. 14 Jac. B. R. So a Surrender of a Copy-hold Entailed to certain Uses c. is no Discontinuance though the Court there said it had been a great Question but by a special Custom such surrender may be a Discontinuance Discontinuance to the Wife If the Husband seized of Copy-hold in the right of his Wife surrender this to the Use of another in Fee who is admitted accordingly Husband dyes this is not any Discontinuance to the Wife 4 Rep. 23. Bullock and Dibler's Case nor her Heirs but the Wife may enter and not be put to her cui in vita nor her Heir to a sur cui in vita A Discontinuance may be of a Copy-hold Entayl admitting it to be a Tayl as by a Recovery in a real Action in the Lords Court 4 Rep. 23 Deal's Case Quaere if it be not more properly a Bar for the time than a Discontinuance 1 Rolls Abr. 634. Morris's Case 44 Eliz. B. R. In Chard and Wyat's Case More n. 877. The Court were divided in Opinion whether a Surrender was a Discontinuance The Case was this A Copy-holder in Fee surrendred to the Use of his Will and having a Daughter born and his Wife with Child he devised by Will part of his Land to his Son or Daughter with which his Wife went haeredibus suis legitime procreat and the residue he devised to his Daughter born to have to her and the Fruit of her Body and if she dye without Fruit of her Body the same shall remain to the Child in the Mothers Belly and if both dye without Fruit then J. S. should sell the Land and willed the one Sister to be Heir to the other The Wife of the Devisor entred and was admitted and had a Daughter which afterward dyed the Mother took Husband and they surrendred Resolved 1st That this was a Fee Tayl in the Daughter 2ly That one in ventre sa mere could not take an Estate in possession by Purchase but in this Case she may take in Remainder But whether it were a Discontinuance the Court was divided but they all agreed a Copyhold may be Entayled by Custom and barr'd by Recovery by special Custom and yet in Moor n. 1087. afterwards it was adjudged a Surrender by a Tenant in Tayl of a Copy-hold was not a Discontinuance but by what is said before the Law is setled as to this point But to cite no more in this point where by Custom of the Manor Pleints have been made in the nature of real Actions That if a Recovery be in a Pleint in nature of a real Action against a Tenant Copy-holder in Tayl it s adjudged that this shall be a Discontinuance and shall take away the Entry of the Heir in Tayl for these Pleints are warranted by the Custom this is an incident which the Law annexeth to the said Custom 4 Rep. 23. Deal and Rigden CAP. XX. Of Leases of Copy-hold Estates Leases by the Lord and Rent reserved and his Remedy by Avowry And of Leases made by Copy-holders What is a Forfeiture or not When a Licence to make a Lease shall be said to be persued or not Commencement of a Lease Leases by whom made Bishop Tenant in Tayl. Infant Of Rents reserved What things are demisable by Copy Of Leases of Copy-hold Land Vide Title Customs as to Leases and Limitations of Estates supra Of Leases of Copy-hold Land made by the Lord Tenants 1. By the Lord and his Avowries and remedy for the Rent Lease of the Freehold of a Copy-hold THE Lord leaseth the Freehold of a Copy-hold to J. S. this is good betwixt J. S. and the Lord But the Lord cannot reserve the Rent upon such a Lease 1 Keb. 15. Gerrard's Case Custom A Custom That on payment of ten years Rent the Lord should Licence to let for 99 Years and if he refused the Tenant might do it without Licence was adjudged good and reasonable Grow and Bridges cited in 2 Keb. 344. Porphyry and Legingham If a man be seized of a Manor wherein are divers Copy-holders admittable for Life or for years Lord lets for Life he may Lease by Copy in Reversion to commence after the death of the first Copy-holder and he leaseth the Manor to another for term of Life the Lessor may make a Demise by Copy in Reversion to commence after the death of the first Copy-holder and that is good enough but the Custom of some Manors is to the contrary and that is
allowed Hetly p. 54. M. 3 Car. B. C. Davis and Fortescue Lord of the Manor made a Lease to two of the Copy-holders of the Court Baron for 200 years Lessees of Copy-hold and Court-Baron for 200 years what acts they may do saving to himself the other Demesns and Services the Lessees keep Court there and a Copy-holder surrenders to the Use of A. in Fee Per Cur. this is a good Copy the Court may well continue for that purpose as to Admittance of Copy-holders for otherwise every one of his own act may destroy his Copyholders Estate Cro. El. p. 394. Jackson and Neal and Lord Hatton's Case cited there If the Lord of a Manor grants a Copy-hold Who shall have the Rent rendring Rent praefato Domino at a certain time servitia de jure debita consueta his Heirs and Assigns after his death shall have this Rent this being reserved by a Copy 2 Rolls Abr. 450. Crisp and Fryar Copy-holder makes a Lease rendring Rent Avowry by the Lord for part of his Rent and after surrenders parcel to the Lord the Lord may avow on the Lessee for part of this Rent without alledging notice or attornment by him 1 Keb. 94. Blat and Mole vide The Lord may Distrain a Copy-holder for his Rent as well as Seize Quaere Distress if a man makes a Lease at will rendring Rent whether he may Distrain for this Rent 2 Brownl p. 279. Ravel and Downe Entry Acceptance of Rent The Lord after acceptance of Rent cannot enter upon the Lessee of a Copy-holder 1 Keb. 15. Whether the accustomed Rent be reserved upon a Lease by a Bishop Lord of the Manor Treacer was a Copy-hold Manor within the Manor of B. The Bishop of Exeter held both these Manors in the right of his Bishoprick the old accustomed Rent was 67 l. 1 s. 5 d. Hall Bishop demised these two Manors to P. for 99 years determinable upon three Lives reserving the old Rent P. assigns them over to N. except the Demesns of Treacer N. surrenders both Manors except Treacer The Bishop re-demiseth to him the said Manors except Treacer and one Farm more reserving the old Rent 67 l. 1 s. 5 d. Per Cur. this second Lease was good and the 67 l. 1 s. 5 d. was the old accustomed Rent within the Statute 1 El. Mod. Rep. 203. Thredneedle and Lynham Of Leases made by a Copy-holder and of Rents reserved thereupon vide Customs When Leases made by a Copy-holder for Years are a Forfeiture Vide sub Tit. Forfeiture Note Lease no disseisin A Copy-holders Lease is no Disseisin though it be a Forfeiture nor doth it alter the Estate of the Lord 2 Keb. 598. Note Lease not Assets Copy-holder made a Lease for years by License and Lessee dyed this shall not be accounted Assets in the hands of the Executors Quaere Nor be extended Popham 188. But if Copy-holder make a Lease for an year this is a Lease by the Common Law and not customary and shall be accounted Assets in the Hands of the Executors of the Lessee Popham 188. Yelv. What Leases shall be good or not in respect of Licence when it is persued or not Copy-holder may make a Lease for one year without Licence for that is warranted by the Law by the force of the general Custom of the Realm Lit. 234. and this shall be accounted Assets in the Hands of the Executors of the Lessee If the Lord give Licence to a Coph-holder for Life to let the Copy-hold for five years the Copy-holder may Lease this for three years for this is comprehended within the Licence inasmuch as he had given him Licence to let for more years M. 15 Jac. B. R. Woolridg and Bambridge adjudged upon a special Verdict so it was adjudged in the same Case Cro. Jac. 417. If the Lord give Licence to a Copy-holder for Life to Lease the Copy-hold for five years if the Copy-holder shall so long live and he lets this for five years generally without this limitation If he shall so long live yet this is a good pursuance of the Licence and so a good performance for the Lease is determinable by his death by a limitation in Law and therefore so much is implied by the Law as if he had made the actual limitation So is the Case of Hart and Arrowsmith Noy 121. the operation of Law made such a limitation to the Estate which he made i. e. if he shall live so long But if the Copy-holder had had an Estate in Fee it had been a Forfeiture to have made an absolute Lease because in this case he doth more than he was licenced to do Popham Rep. 105. A Lease not warranted by the Licence as to the commencement A. obtains a Licence in Court to let his Copy-hold for 21 years from Mich. last past he makes the Lease to begin at Christmass following Per Cur. this Lease 〈◊〉 not warranted by this Licence and so no Eject firmae lyes upon it Cro. El. p. 394. Jackson and Neal. Commencement When a Lease shall begin in point of computation and not in point of Interest Land is demised by Copy for three Lives successive and then a Lease is made for 30 years of the same Land to commence after the determination of the first Estate the Survivor dyes leaving a Widow who claims durante viduitate according to the Custom The Quaere was when this Lease shall begin if after the death of the Copy-holder or after the determination of the customary Estate in the Woman It shall commence presently in point of computation but not in point of interest till after the death of the Widow 2 Siderfin Clark and Caudle Capel and Stephens 1653. By Tenant in Tayl if warranted by the Stat. 32 H. 8. Arthur Copy-holder for Life surrenders to Sir Francis Knolls Knight Lord of the Manor in Tayl Reversion in the Crown Sir Francis makes a Lease for three Lives to commence from the day of the date and of the ancient Copy-hold Rent was reserved and more Three Questions were moved by the Jury 1. Per Cur. If this Land shall be said usually demised within the Statute 32 H. 8. being never demised before but by Copy And the Court ruled that so 2. If this Copy-hold Rent shall be said the ancient accustomed Rent within the Statute and ruled that so 3. Though an Herriot was not reserved in the new Lease which was payable by the Copy-hold Custom yet it was resolved that it was a good Lease within the Statute of 32 H. 8. if Livery was made after the day of the date Moor n. 1050. Banks and Brown The Land is accountable usually demisable when it is always demised it was Sir James Marvin's Case Tenant in Tayl lets a Copy-hold by Indenture rendring the same Rent as before it s a good Lease within the Statute of 32 H. 8. A Manor by Act of Parliament was Entayled to A. Wife of
the Lord M. with divers Remainders over with a Proviso That the Donees non facerent aliquid in nocumentum vel ex heredat haeredum suorum vel c. sed tantum pro junctura vel pro termino vitae vel pro annis vel ad voluntatem secundum consuetudinem manerij reddend antiquum redditum The said Manor consisted of divers free Rents amounting to 7 l. 15 s. Copy-hold Tenements held for Lives the customary Rent of which was 3 l. and Waste and Herriots The free Rents or Copy-hold Rents or Herriots were never devised before for Life or Years or otherwise A post mortem viri by Fine grants and renders the moiety of the Manor for 300 years rendring Rent amounting to the Free and Copy-hold Rents and 8 d. more payable at two Feasts whereas the ancient Rents were payable at four Per Cur. the Lease was void the Copy-holds ought to have been granted by Copy and not by Fine and the reservation at two days where the Rent was payable at four days before made the Grant void for its ad nocumentum haered and there can be no apportionment in that case for Copy-holds for Lives are uncertain and Herriots accidental When two Ferms are joyned together the entire Rent which is reserved out of both of them is a new Rent and not the accustomable Rent 5 Rep. 5. Lord Mountjoy's Case By whom made Ecclesiastical person If a Bishop let Copy-hold Land for Life rendring the ancient Rent it s not good because the Successor cannot Distrain the Copy-holder for Rent but if it be of a Manor to which a Copy-hold belongs its good Lit. Rep. 305. in Sheers Case Dean and Chapter of Worcester Lord of a Manor in jure Ecclesiae of which Manor H. G. was a Copy-holder for Life of Lands under the Rent of 8 s. 8 d. per annum payable Quarterly and Herriotable at the death of the Tenant the Copy-holds were by the Custom grantable for three Lives they demise the said Lands to H. G. and his Assigns for the Lives of R. J. and M. and the survivor of them renduring 8 s. 4 d. per annum at two Feasts Question was if this Lease were good or might be avoided by the Successor Per the Statute 13 Eliz. Cap. 10. It was resolved 1. The Lease was good though it was made pur auter vies and that the Occupants shall be punishable for Waste 2. Customary Demises are within this Law Customary demises are not in the Statute 13 Fl. cap. 10. for this Estate granted by Copy was in judgment of Law an Estate at Will and without doubt Lands which have been accustomed to be demised at will by those which have the Inheritance of the Land rendring rent are Lands accustomably let to Farm within the said Act. 3. The said Act of 13 El. doth not avoid the Lease if the accustomed yearly Rent or more be reserved and for that an Herriot is not a thing Annual nor a thing depending on the Rent it sufficeth if the Annual Rent be reserved 6 Rep. 37. Dean and Chapter of Worcesters Case Cro. Jac. 76. Baugh and Heyns mesme Case As to Leases by Bishops of Manors consisting of Copy-hold Lands and Services of Free-Tenants and reserving the ancient Rent vide 3 Keb. 372. Mod. Rep. 203. Threadneedle and Lynham Infant Copy-holder in Fee leaseth for years Infant without Licence by parcel rendring Rent Lease affirmed by acceptance at full Age he accepts the Rent being admitted to the Copy-hold and after ousts his Lessee Lessee brought Ejectment Judgment for the Lessee Per Cur. this Lease for years is no Disseisin to the Lord though it may be a Forfeiture and this Lease is not void but voidable and may be affirmed by acceptance Noy p. 92. Ashfield's Case Lach. p. 199. Vide Rolls Rep. 256. By a Copy-holder or Heir before Admittance vide Admittance As to Rents reserved Lands at Common Law and Copy-hold Lands are leased by one Indenture Lease of Free-hold and Copy-hold the Rent issues out of both rendring Rent the whole Rent shall issue out of the Lands at Common Law and not out of the Copy-hold But if a man leaseth Land part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the entry of the Disseisee the Rent shall be apportionted Moor n. 144. Term. Pasch 5 El. But the Law is not so for in Collins and Harding's Case Moor n. 723. the Judges were divided in Opinion about this very point But in Rolls 2 Abr. p. 426. it is resolved That this Rent shall issue out of the Copy-hold Land as well as out of the other Land for a Rent may be reserved out of the Copy-hold Land and this is such a thing to which one may resort for a Distress Collins and Harding's Case And this Case is farther Reported by Rolls 1 Abr. p. 234. If a man Lease for years Freehold Land and also Copy-hold Land by Licence of the Lord reserving a Rent and after grants the Reversion of the Free Land to another and the Lessee Attorn the Rent shall be apportioned for this waits upon the Reversion Rent apportioned vide Collins and Harding's Case also Reported in Cro. El. p. 600 622. The Rent issueth out of both and is not like to a Lease of Lands and Goods for all the Rent is there issuing out of the Lands and it is now in the Hands of the Grantee as one entire Reversion Pleading and he shall declare accordingly and although they be several Reversions yet he shall declare upon the truth of the matter Copy-holder by Licence of the Lord demised the same by Indenture to the Plaintiff for twenty years under the Rent of 25 l. per annum the Copy-holder surrenders the Reversion of the one moiety of the same Copy-hold to the Use of one N. W. to which he was admitted and then the Reversion of the other moiety to W. who was admitted Per Cur. the Surrender by the name of a Reversion is good though the Lease is by Indenture and not by Surrender Rent apportioned which if it had been so it had been derived directly out of the customary Estate for still it is the Lease of the Copy-holder and not of the Lord. Quaere if the Copy-holder in this case should forfeit his Estate the Lease would stand good against the Lord being by Licence And Per Cur. the Rent is to be divided by moyeties according to the halves of the Reversion and in this case it was resolved there needed no Attornment upon the Surrender for the Admittance settles the Estate Attornment Hobart 177. Swinnerton and Miller It was said by Hale Chief Justice That a Lease for years of Lands that are Copy-hold Lease of Copy-hold without taking notice that it was Copy-hold particularly without taking notice that this was Copy-hold this is good for the Rent of the Copy-holder and after
the Lease spent the Inheritance takes place and severs the Copy-hold from being granted by Copy after during the Lease but when that is spent it is well again Sir George Sand's Case cited in 3 Keb. p. 91. in Cholmly and Cooper's Case A. being a Copy-holder by Licence of the Lord leased his Copy-hold to Smith for years rendring Rent and afterwards by Deed granted the Rent to another Habend during the term c. to which grant the Lessee did Attorn and paid the Rent to the Grantee Per Gaudy the Grant is good but now it is but a Rent-seek Rent-seek the Grantee cannot have an Action of Debt for it for he is not party nor privy to the Contract nor hath the Reversion 1 Leon. 315. Austin and Smith Copy-holder makes a Lease for years How a Lease not warranted is good not according to the Custom of the Manor yet this Lease is good so as the Lessee may maintain an Ejectione firmae for between the Lessor and Lessee and all others except the Lord of the Manor the Lease is good Owen 17. Downingham's Case Of Leases made by those in Remainder or Reversion Tenant for Life By one in remainder by Parol the Remainder in Fee of a Copy-hold he in the Remainder makes a Lease by Parol Tenant for Life and he in Remainder joyn in a Surrender to the Use of him in the Remainder in Fee This is a good Lease and shall take effect in the life of Tenant for Life and it shall be good against him in Remainder for the Estate of Tenant for Life is extinct and cannot hinder the Lease to have operation like as he in Remainder grants a Rent-charge and after the Tenant pur vie surrenders the Rent shall commence presently Cro. El. p. 160. Dove and Williot A Lease for Life made in Reversion A Lease for Life may be made in Reversion of a Copy-holder according to Custom but whether such a Lease be void if made by Dean and Chapter per the Statute of 37 H. 8. which extends to all Colledges c. Quaere 1 Rolls Rep. 202. Long and Baker As to Remedy for Rents by Entry or Action Vide infra titulo What Statutes extends to Copy-hold Lands and sub titulo Actions and Suits What things are demisable by Copy Underwoods may be demised by Copy to one and his Heirs for this Underwood is a thing of Inheritance for after every cutting down they will grow again from the Stubbs Cro. El. 413. Hoe's Case Tythes may be demisable by Copy of Court Roll according to the Custom of the Manor for they may be parcel of a Manor as well as a Rent-charge Com. p. 43 Eliz. Sands and Drury Tonsura prati may be demisable by Copy of Court Roll according to the Custom of the Manor by Prescription per Gaudy Vide pluis supra Pleadings Custome quod tenens custumarius in feodo possit dimittere terras pro aliquo termino annorum sine Licentia Domini Cro. Entr. 123. Simile non excedens 21 annos Hern 81. CAP. XXI Of Licence What Licence shall be good By whom made shall bind or not Licence taken for a Confirmation When and where a Licence is to be pleaded specially and when and where not QUaere if Lessee for years may grant Licence to a Copy-holder to fell Timber To fell Timber The extent by Lessee how far good or not But though it be good against himself yet it is void against the Lessor because the Licence is derived out of the Interest and so can be of no greater extent than it and the Assignee of the Lessee may take advantage of it 1 Keb. 26. Muniface and Baker And by Twisden Where a Copy-holder hath Licence to fell though it were repealed by the Grant of the Lord of his Interest before the felling yet this is no Forfeiture though the Licence be determined by it ibid. Licence to make Leases Vide supra Leases The Lord Licenced his Copy-holder to make a Lease of his Copy-hold for 21 years Concurrent Lease to begin at Michaelmas following and he made a Lease accordingly by Indenture and also before Michaelmas by Deed made another Lease to another for 21 years to begin also at Michaelmas following Per Anderson The making of the second Lease was a Forfeiture the Licence is satisfied by the first Lease and so the second Lease is without Warrant and consequently a Forfeiture Lease void in Interest and good by Estoppel The second Lease is void in Interest and good by Estoppel If a Copy-holder make a Lease contrary to the Custom it is a forfeiture before the Entry of the Lessee Moor Case 329. Once a Licence to make a Lease and always If the Copy-holder make a Lease for years by Licence of the Lord the Lessee may assign this over or make an under-Lease without any new Licence for the Interest of the Lord was discharged by the first Licence 1 Rolls Rep. 509. Johnson and Smart What Licence shall be good and by whom by a Lord at will A Lord at Will of a Copy-hold Manor connot give Licence to a Copy-hold Tenant to make a Lease for years although that he may grant a Copy-hold for Life according to the Custom 1 Rolls Abr. 511. Petty and Debbans By Lord for Life Licence determinable If a Lord for Life of a Copy-hold Manor give Licence to a Tenant to make a Lease for years this Lease shall not continue longer than the Life of the Lord ibid. 2 Brownl p. 40. mesme Case Licence to make a Lease upon condition void Aliter upon a Limitation The Lord licenceth a Tenant to make a Lease upon Condition the Condition is void for the Lord giveth nothing by the Licence but doth only dispense with the forfeiture A Licence gives not a Right but only executes it but a Limitation to such a Licence is good as a Licence to let for two years he cannot Lease for three years Owen p. 73. Haddon and Arrowsmith If a Copy-holder makes a Lease for years by Licence of the Lord Copy-holder leaseth for years and dyes sans Heir if determined Licence taken for a confirfmation and dyes without Heir the year not expired Some say the Lord may enter for the Estate out of which this Lease was derived is detemined Yelv. contra This Licence shall be taken as a confirmation of the Lord and the Lease shall be good against him Popham 188. Pleadings When and Where a Licence is to be pleaded specially and when and where not In Ejectione Firmae brought by the Lessee of a Copy-holder it is sufficient that the Count be general without mentioning of the Licence if the Defendant plead Not Guilty then the Plaintiff ought to shew the Licence in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the Licence certainly in his Replication and the time and place when it was made and in this Case the
Plaintiff replyed That the Copy-holder by Licence first then had of the Lord did demise and did not shew what Estate the Lord had nor the time and place when it was made it is not good for the Licence is traversable The Defendant cannot plead That the Plaintiff by Licence did not demise for this is a negative pregnant 2 Browl. 40. Petty and Evans Licentia dat ad dimittendas terras custumarias Co. Ent. 185. CAP. XXII Of Forfeitures What shall amount to a Forfeiture of a Copy-hold Estate by act of the Party by non-feazance or misfeazance Of refusal of Writ Services c. Non-Appearance at Courts Of making Leases not warranted Rent shall be said a Covenant and no Lease and so shall be no Forfeiture VVhat Alienation shall be a Forfeiture or not Of Forfeiture by wast in Trees By Attainder of the Tenant What act of the Husband shall forfeit the Wifes Land or not Who shall take advantage of a Forfeiture Where the Lord shall take advantage before a Presentment or not VVhere the Forfeiture of one Copy-holder shall be the Forfeiture of another as to Estates or Persons What is a dispensation of a Forfeiture and of what Forfeitures in the Life of the Ancestor the Heir shall take advantage Of Forfeitures What shall amount to a Forfeiture of a Copy-hold Estate BY act of the Party By Operatation of the Law What act of the Party respecting Non-Feazance Mis-Feazance Of refusal to pay Rent perform Services or Suit of Court when they shall be causes of Forfeitures or not A Copy-holder hath an Inheritance by Custom but when he doth that which is contrary to the Custom as to cut down Trees c. he shall then be in no better a condition than a bare Tenant at will and so it will be a Forfeiture If a Copy-holder be to pay a certain Rent yearly by his Copy to the Lord and the Lord comes upon the Land and demands the Rent at the day if the Copy-holder being present refuseth to pay it this is a Forfeiture but if in such Case the Copy-holder saith to the Lord he hath not his Rent ready this is not any Forfeiture for the Lord may Distrain 1 Rolls Abr. 506. therefore the Case in Cokes Copy-holder p. 189. is not Law which saith That if the Copy-holder tells his Lord that he wanteth Mony to discharge the Rent and intreateth him to forbear unless the Lord giveth his consent that this is a Forfeiture vide Noy p. 58. Crispe and Fryar Cro. El. 505. mesme Case A Widow had Copy-hold Land and knew not how to pay her Rent and divers persons came for the Rent but she dismist them with dilatory Answers last of all comes a young Gallant and demands the Rent she answers That she did not know him but if he would dance before her if she liked his dancing she would pay it This denyal was adjudged no Forfeiture not being wilful Lit. Rep. 268 in Paston and Uthert's Case Voluntary refusal If the Copy-holder be absent when the Lord demands the Rent at a day and none is there to pay it this is a refusal in Law yet this is no Forfeiture for this amounts not to a voluntary refusal and there ought to be a demand of the person of the Copy-holder to make a Forfeiture Hob. p. 135. Denny and Lemon p. 38. El. B. R. Crisp and Fryer And therefore that other Assertion in Cokes Copy-holder p. 190 That if the Lord continue in making his demand upon the Land and the Copy-holder is still absent Absence that this makes the Copy-holders Estate subject to a Forfeiture seems not to be Law for the Lord may have other remedy for his Rent William's Case cited in Latch 122. Grey and Ulisses was thus The Lord demanded the Rent of his Copy-holder and he answered that he had it not with him then but that he would pay it as soon as he could the Lord said pay this at my House such a day which House was within the Manor it was resolved that the first words were not any Forfeiture Notice to pay the Rent at a place out of the Manor but when the Lord assigned him a day certain at which day he pays it not this failure amounts to a wilful refusal and was a Forfeiture But had the place been out of the Manor it had been no Forfeiture which Crew Chief Justice agreed to Copy-holder in Fee rendring Rent at Michaelmas and Lady-day Not paid at the last instant of the day he suffers the Rent to be unpaid for three years the Lord at the last Instant of the day of payment demands the Rent upon the Land and the Copy-holder is not there to pay it the better Opinion was that it is a Forfeiture Moor n. 468. Crisp and Fryar An Act which makes a Forfeiture ought to be to the disherison of the Lord of his Copy-hold not of a collateral thing Copy-holds are determinable the same way as Estates at Will When a Copy-holder doth acts as Owner not warranted by the Custom 5 Rep. 13. as Waste unless the special Custom aid 2 Keb. 466. Ivery's Case If the Estate of the Lord of the Manor cease by limitation of Use and the Use and Estate of it is transferred to another Notice of the alteration of the use and Estate or else no Forfeiture for denyal of payment of Rent who demands the Rent of the Copy-holder and he denies to pay it this is no Forfeiture without notice given to the Copy-holder of the Use and Estate Beconshaw and Southcot's Case cited in 8 Rep. 92. Francis's Case Bargainee of a Manor by Deed Indented and Inrolled shall not take advantage of the Forfeiture of a Copy-hold for denyal of payment of Rent to him without notice given to him of the Bargain and Sale agreed for Law in Francis's Case 8 Rep. Copy-holder before any Rent due saith he will not pay any Rent to the Lord hereafter What words of denyal amount to a Forfeiture or not or when a Court is to be holden that he will not appear to do any Suit at the Court of the Lord these are no Forfeitures But if his Rent being due he denies it or when the Court is holden he saith he will not do any Suit the same is a Forfeiture Sir Christopher Hatton's Case cited 3 Leon. 108. in Tavernor and Cromwel's Case Vide supra Paston and Utbert's Case In case of the forfeiture of a Copy-hold either for Rent or Fine the Lord must demand the Rent or Fine of the person of the Tenant Fine and therefore in Denny and Lemon's Case Hob. p. 135. Demand must be made of the person of the Tenant In Trespass by the Copy-holder against his Lord the Defendant pleads he had admitted the Copy-holder and assessed a Fine of 20 Nobles upon it and had appointed him to pay it to his Bayliff at his House being within the Manor three Months after and alledged That he
prays to be admitted to them then a publick Proclamation shall be made in full Court That the Heir shall come to the Court to claim and be admitted and so at two other ensuing Courts the like Proclamation Custom if the Heir come not and pray to be admitted after three Proclamations he shall forfeit but not if he be beyond Sea and if the Heir come not then the Lord to seize them as forfeited Per Cur. this Custom and non-claim shall not foreclose the Heir which was beyond Sea at the time of the Proclamations made for by intendment of Law he cannot have notice c. But if the Heir had been within the Realm at the time of the first Proclamation and after goes beyond Seas the Proclamations shall bind him though he be beyond Sea at the time of the other Proclamations made for he shall not defeat the Lord by his own Act 8 Rep. Sir Rich. Lechford's Case Cro. Jac. p. 226. Underhil and Kelsey he cannot return when he will and the Law doth not compel one to impossibilites though Coke then Puisny Justice in that Case of Underhil was of another Opinion and he might by Letter of Attorny pray to be admitted and Cro. Jac. 101. Whitton and Williams The Proclamations to be proved viva voce Proclamations whereby the Lord claims Forfeiture ought to be proved viva voce and not only by the Court Rolls The Proclamation was That J. S. come in and be admitted to the Lands descended unto him which the certainty of the Lands being before declared How to be made as to the certainty of the Lands is sufficient unless the Custom be contrary and not like a demand of Rent which being generally of so much is ill especially the Custom of the Manor being to demand it generally and not to specifie the Lands 1 Keb. 287. Lord Salisbury's Case Homage forfeit for refusing to make a presentment If a Jury or Homage of the Manor after Oath taken to present the Articles of the Court refuse to make a presentment according to their Oath If they are Copy-holders this is a Forfeiture of their Estate Dyer 4 El. 211. As to Misfeazance what acts made or done by a Copy-holder shall be a Forfeiture Note Every act that makes a Forfeiture ought to be 1st To the disherison of the Lord 2ly A voluntary act against the Custom therefore a Trespass on the Demesns of the Lord is no Forfeiture As to making Leases not warranted For the Lord of a Manor to avoid a Lease for a Forfeiture by making a Lease contrary to the Custom There must be certain proof of such a Lease there ought to be direct proof made of a Lease certain with beginning and ending certain so to make any other act or thing a Forfeiture this must certainly appear to the Court and the Oath of a Stranger in the Lords Court to the Homagers That a Copy-holder had made a Lease for ten years that so the Homagers may find and present the Forfeiture shall not be of force especially the Copy-holder continuing in possession and dying seized of his Copy-hold Estate and this never came in question till after his death 1 Bulstr 189. Hamlen's Case Copy-holder for Life makes a Lease for a year A Lease made for years excepting two days in each year c. is a Fraud and shall be a â—orfeituâ—e and afterwards makes a Lease to the same party for another year to commence one day after the first year and another Lease for another year to commence at a day after the second year and after surrenders his Copy-hold to the Lord the Lord enters and makes a Lease to the Plaintiff in the Ejectment Per Cur. 1. Although the general Custom of the Realm allows a Copy-holder to make a Lease for one year this ought to be in present and he cannot make one for another year in reversion 2. The Lease in reversion was a Forfeiture and when the Surrender was made to the Lord this Lease was void against him and his Interest discharged without presentment and seizure for the Forfeiture for which his Entry was lawful and Judgment pro Quer. Jones 249. Mathews and Weston 1 Bulstr 215. mesme Case Rolls Abr. 510. mesme Case This Case is thus Reported by Rolls If a Copy-holder for Life agrees to make three several Leases by Indenture the one to commence after the other there being two days between the end of the first and the commencement of the seccond and so between the second and the third and after he executes them at one time this is a Forfeiture for this is apparent Fraud and a greater Estate than for one year passeth presently Rolls Abr. 508. Mathews and Weston If a Copy-holder makes a Lease for one year and covenants that after the end of this year he shall have the same for another year and so in this manner de anno in annum during the space of ten years this is no such Lease as shall make a Forfeiture of his Copy-hold Estate because he hath no lawful Lease but for one year only 1 Bulstr 187 190. Hamlen's Case 6 Rep. 35. b. Plowd 237. b. Cro. Jac. 301. the Lady Mountagues Case A Copy-holder makes a Lease for an year excepting the last day of the year and so from year to year excepting the last day of every year as long as he lived The Question was if this were such a Lease as would cause a Forfeiture for it was not a Lease for an entire year neither is it a Lease for two years together Per Cur. it is a Forfeiture It s a certain Lease for years excepting two days which is a Lease in effect for more than one year Cro. Jac. p. 308. Lutterel and Weston A Lease for three years by Parol is a Forfeiture whether the Lessee enter or not Lease Parol and this for the unlawful Contract made to the disherison of the Lord and a Lease to commence at a day to come is a Forfeiture Lease to commence at a day to come because it is not avoidable by any of the Parties Moor n. 508. East and Harding and so in Harding and Turpin's Case Hetly p. 122. If a Copy-holder make a Lease for years to commence at Michaelmas next it s a Forfeiture presently and so Cro. El. Jackman's Case 351. A Lease for years of Copy-hold Land by Indenture or Parol is a Forfeiture unless there be an express Custom to warrant it So Cro. El. East and Harding's Case The Lord licenceth a Copy-holder to make a Lease of his Copy-hold for 21 years to begin at Michaelmas following and he made a Lease accordingly by Indenture and also before Michaelmas by Deed made another Lease for 21 years to begin at Michaelmas following By concurrent Lease Per Anderson the making of the second Lease was a Forfeiture the Licence is satisfied by the first Lease and so the second Lease is without warrant Moor n.
the principal and reversed the Outlawry and was found Not Guilty and the Heir of him which was hang'd entred upon the Lord adjudged inasmuch as there cannot be an accessary unless there be a principal that the Entry of the Heir was lawful 2 Brownl 217. Gittins and Cooper So it s a good Custom in 1 Leon. p. 1. Burnford and Packington Copy-holder for Life was arraigned for Felony and convicted and prayed his Clergy whereupon the Plaintiff as Lord entred for the Forfeiture without alledging any special Custom or Attainder Q. 2 Keb. 451 456. Jury and Pawlet Of other acts which are Forfeitures If a Copy-holder forgeth a Customary containing divers false Customs and pretending them to be true Customs Quaere if this be a Forfeiture 3 Leon. 107 108. Tavernor and Cromwel By Inclosure Custom is That the Lord hath a Field-course for five hundred Ewes over the Lands of the Copy-holder from Michaelmas till Lady-day in all the Lands of the Copy-holders not inclosed the Custom was too That if they did Inclose he might Fine them Per Cur. Inclosure is no Forfeiture Paston and Utbert 5 Car. 1. Hutton p. 102. Lit. Rep. 246. mesme Case Rescous Rescous by a Copy-holder is a Forfeiture Replevin by a Copy-holder If a Copy-holder bring a Replevin it is a Forfeiture 1 Rolls Rep. 48. in the case of Warn and Sawyer Outlawry A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by it and yet the King shall have the Profits Inclosure Bare Inclosure is not Forfeiture of a Copy-hold Hetly p. 7 8. The manuring of Land to Hop Ground was agreed to be a Forfeiture If Doal Marks are about a Copy-hold and the Copy-holder makes such Ditches that he defaceth the Doal Marks this may be a Forfeiture for in time it may prove to the disheritance and loss of the Copy-hold What Acts of the Husband shall forfeit the Wives Land or not Feme Copy-holder of Inheritance takes Husband Husband makes a Lease for years Lease of a Copy-hold shall not bind the Wives Estate of Inheritance the Lord enters for a Forfeiture Husband dies the Feme dies the Heir of the Wife enters and his entry was adjudged lawful Palmer's Rep. 387. Savern and Smith 35 El. Sandley's Case 2 Rolls 344. mesme Case Denial of Rent by the Husband shall be a Forfeiture against the Wife and so shall waste Denyal of Rent by the Husband Quaere if waste be not a Forfeiture by the Statute of Gloucester which extends to Copy-holds but not collateral acts as cutting Trees c. By Doddridge waste at Common Law by the Husband shall bind the Wife but not a Feoffment and he took this difference Diversity where the Copyhold came to the Woman after Coverture his Forfeiture shall not bind her for then it cannot be said it was her folly to take an Husband that would forfeit c. Palmer's Rep. 387. Savern and Smith If a Feme Copy-holder pur vie Waste committed by Husband takes Husband who commits waste this shall bind the Wife and the difference is as to this and the Husbands making a Lease In waste the Forfeiture goes to the Inheritance of the waste which continues for ever but in Savern and Smith's Case this Forfeiture determines with the Lease But if a stranger commits waste without the assent of the Husband By Estranger this is no Forfeiture 4 Rep. 27. Clifton and Molineux Vide pluis infra A Feme Copy-holder takes an Husband who lets the Land for more years than the Custom doth warrant it is Quaere whether this shall bind the Wife as a condition in Law Per Wray If the Husband deny to pay the Rent or to do Suit of Court these are present Forfeitures which shall bind the Wife for they are things that the Lord must of necessity have but Quaere of the Lease saith the Book Cro. El. 149. Hedd and Challener But it hath been resolved ut supra in Savern's Case Who shall take advantage or enter for a Forfeiture and of what Forfeitures or not After a Copy-hold is dismembred from the Manor yet of what Forfeitures the Grantee or Feoffee shall take advantage It was a Question in East and Harding's Case If the dismembring of the Inheritance of the Copy-hold Land by the Feoffment of the Manor had disabled from taking the advantage of the Forfeiture It was ruled with this difference that all Forfeitures which accrew by reason of any matters of the Court are discharged but not Forfeitures at Common Law as Waste or Leases made to the disherison of the Lord but the Feoffee of them made in his time shall enter and take advantage thereof Moor n. 508. Lessee for years Dom. pro tempore Lessee for years of a Manor shall take advantage of a Forfeiture committed by a Copy-holder for he is Dominus pro tempore East and Harding's Case So Tr. 10. Jac. B. C. Rowls and Mason Lessee for years shall take advantage of a Forfeiture by waste after his Lease made and before the commencement of his Term Moor n. 508. If the Lord of a Manor in which are Copy-holders Tenants of the Manor and the Lord grant to a Stranger the Free-hold of a Copy-hold in Fee although by this his Tenement is divided from the Manor and not demisable per Copy again yet the Grantee of the Free-hold shall take advantage of a Forfeiture committed after by the Copy-holder for he ought to pay his Rent to the Grantee So in this case if the Grantee of the Frank-Tenement make a Lease for years of the Frank-Tenement this Lessee for years shall take advantage of a Forfeiture committed after by the Copy-holder for that he is Dominus pro tempore 1 Rolls Abr. 509. East and Harding Cro. El. 499. mesme Case For Copy-holder as to the Forfeiture of his Estate remains in all degrees as before the severance thereof from the Manor If a Copy-holder makes a Lease for years Where Lessee or Feoffee shall take advantage which is a Forfeiture at Common Law and afterwards the Lord make a Feoffment or a Lease for years of the Free-hold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Copy-holder shall continue his Estate and so is in nature of an affirmance or confirmation of the Lease Owen p. 63. Pen and Merival But If the Lord of a Copy-holder for Life Where he shall Lease the Copy-hold for years to commence after the end forfeiture or determination of the Tenant for Life and after the Tenant for Life commits a Forfeiture by making a Feoffment if the Lord will not enter for the Forfeiture yet the Lessee for years may 8 Rolls Abr. 858. Mere and Ridealt He in Remainder Copy-holder for Life the Remainder for Life
commits a Forfeiture he in the Remainder shall not enter but the Lord because the Remainder is to commence in possession after the death of the Lessee by the Custom Where the Lord shall take advantage before Presentment or not Presentment where material or not Presentment is not of necessity but for the Lords better Instruction of the Title and he may if he will take advantage of the Forfeiture before Presentment Cro. El. p. 499. in East and Harding's Case And therefore the distinction of Coke's Copy-holder is frivolous except the Custom is so though as for those Offences which by common presumption the Lord himself cannot have notice without notice given are usually presented as if a Copy-holder commit Felony or Treason or be Outlawed or excommunicate a Presentment seems necessary that the Lord may have the profits of his Copy-hold Land So if a Copy-holder alien by Deed or do a thing notorious as cutting down and selling of Trees of the Copy-hold Land by the Tenant it s not material whether it be presented by the homage or not 3 Keb. 641. Pascal and Wood's Case The presentment is to give notice to the Lord and not to intitle him and he may take notice if he will Lach. p. 227. Where and in what Cases the Forfeiture of one Copy-hold is the Forfeiture of another and where and in what Cases not as to Estate or persons Divers Copy-holds were granted by one Copy and several Habendums and several Reddendums for every of them What Forfeiture of part shall be of the whole or not and they all began at one time and were to end at one time the Copy-holder commits waste in one of the Copy-holds The Question was Whether that should be a Forfeiture of them all Per Cur. they are as several Grants and several Copies and the Forfeiture of the one is not the Forfeiture of the other Cro. El. p. 353. Tavernor and Cromwel 24 Rep. 14. mesme Case It s not material if the Copy-hold be in one or several Copies but if the Tenure be one or several If a Copy-holder make a Feoffment of one Acre of Land parcel of his Copy-hold all the Copy-hold is not forfeited by this but only this Acre p. 41. El. B. R. Fuller and Terry But if a Copy-holder cuts down a Tree which grows upon one Acre of Land parcel of his Copy-hold this is a Forfeiture of all his Copy-hold for that the Trees are to be employed in Buildings and Reparation of the Houses and Copy-hold and therefore by the making of waste all the Copy-hold is empaired So 3 Keb. 641. Pascal and Wood. If divers Copy-holds Escheat to the Lord and he re-grants them to another Tenendum per Antiqua Servitia c. they shall be severally held as they were before the Escheat 4 Rep. 27. And the Fines shall be several as Hubart and Hamond's Case 4 Rep. 28. and consequently the Forfeitures Tenant for Life Where the Forfeiture of one person shall be the Forfeiture of another persons Estate and where not Remainder in Fee of a Copy-hold Tenant for Life commits a Forfeiture by waste and the Lord enters this shall not bind him in Remainder Trin. 39 El. B. R Rastal and Turner But the Lord shall hold it during the Life of Tenant for Life So Custom is upon Surrender made to one and his Heirs if three Proclamations pass and he doth not come in to be Admitted that the Estate shall be forfeit Remainder not forfeit by the act of Tenant for Life Surrender is made to A. for Life the Remainder to B. in Fee A. comes not in this shall not forfeit the Remainder Yel p. 1. Baspool and Lond. For the Estates of A. and B. are divided Estates and the Custom shall be intended of an entire Fee-simple given to one person and the Custom being to bar an Estate shall be taken strictly It is made a Quaery in that Case of Yelverton If such a Surrender be made to A. and B. and their Heirs and A. comes within the time of the Proclamations and B. not if A. shall have all or that a moiety shall be forfeit I conceive a moiety shall be forfeit to the Lord as being Joynt-Tenants But Quaere farther of Co-partners in such case who are but one Heir Cro. El. 879. mesme Case Lessee forfeits his own Estate and not the Estate of his Copy-holder If a Copy-holder let for years by Licence of the Lord and after the Lessee makes a Feoffment this shall forfeit only his Estate and not the Estate of the Copy-holder 1 Rolls Abr. 509. White and Hunt If a Woman Copy-holder takes Husband and the Husband makes a Lease for years although the Lord enters for the Forfeiture yet after the death of the Husband this is no Forfeiture to the Wife but that she may well enter Where the Wife shall suffer for the Forfeiture of her Husband or not for this act was a wrong to the Wife as well as to the Lord and where it is a wrong to the Wife there is no reason it should be a Forfeiture 1 Rolls Abr. 509. Cro. Car. 7. Savern and Smith's Case But if the Husband seized of a Copy-hold in right of the Wife do waste this Forfeiture shall bind the Wife after the death of the Husband for this act was not any wrong to the Wife but lawful as to her and only a wrong to the Lord 4 Rep. 27. Note the difference Copy-hold is demised to two for Life successive Cutting of Trees by Tenant pur vit is a Forfeiture of the Remainder for Life where the Custom is they may not cut Trees the first Tenant cuts it s a Forfeiture of him in Remainder as well as of his own Estate if a Stranger cuts Trees or another who occupies at their sufferance this is a Forfeiture of the Copy-hold Moor 149. but Quaery of the last What is a dispensation of a Forfeiture or what acceptance or act shall purge a Forfeiture or not The admittance of an Heir of a Copy-holder by a Dominus pro tempore Admittance is a dispensation with a precedent Forfeiture 1 Keb. 26. Muniface and Baker Admission by the Lord dispenseth with a former Forfeiture Tothil 107. Clerk and Wentworth Aliter had the Lord seized an Herriot And yet if the Father commits a Ferfeiture and dyeth and the Son is admitted as Heir by descent this purgeth not the Forfeiture because the Father dying seized of no Estate the Son cannot be admitted to any Tothil p. 107. If the Tenant be amerced Amerciament the amerciament dispenseth with the Forfeiture though the amerciament be not estreated or levied 1 Leon. 104. Sir John Braunches's Case If a man comes into a Copy-hold tortiously Disseisor is admitted by the Lord and he makes a Lease not warranted a Release from the Disseisee purgeth and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture
yet if he that hath the pure right to the Copy-hold Release to the wrong doer before the Lord enters that is good for until the Lord enter he is Tenant in fait 4 Rep. 15. I Brownl 149. in Odingsal and Jackson's Case Quaere Acceptance Copy-holder sold Timber off the Land Lord enters Copy-holder dyes Lord seises a Beast the Heir brought Trespass the Plaintiff justified the seizure for an Harriot Per Cur. in Ejectment this being the Defendants Evidence Justification for Harriot Service or Seisin of Ancestor is an acceptance of Heir as Tenant and purgeth the Forfeiture contra on Acceptance Justication or Avowry for Harriot Custom but now there being an actual Entry in the Life-time of the Ancestor by the Lord for the Forfeiture no acceptance after will purge it 3 Keb. 641. Pascal and Wood. Repairs of waste If a Tenant permit Waste and after repair yet it seems this doth not purge the Forfeiture Lach. 227. But Moor n. 508. is contra If a Copy-holder cut down Trees without a Custom it is a Forfeiture unless it be for Reparation Note The Repairing with Timber though after five years cut and after Action brought is a dispensation of the Forfeiture Affirmance or confirmation by the Lord Feoffment or Lease of the Freehold If a Copy-holder makes a Lease for years which is a Forfeiture at common Law and afterwards the Lord makes a Feoffment or a Lease for years of the Freehold of this Copy-hold to another the Feoffee or Lessee shall not take advantage of it for the Lease of the Freehold made by the Lord before Entry is an assent that the Lessee of the Copy-holder shall continue his Estate and so is in nature of an affirmance or a confirmation of the Lease Owen p. 63. Pen and Merival So the difference is when the Lord enters or not and also whether the Forfeiture be committed before the Lords feoffment c. or after Whether Forfeiteres in the time of the Ancestors of the Lord shall descend to the Heir Copy-holder doth waste the Lord dyes Where the Heir shall not take advantage of a Forfeiture the waste is presented in the Court and the Lords Heir enters the better Opinion is he cannot enter Per Dodderidge Actions ancestrel shall descend to the Heir but not Forfeitures which is in the Will of the Lord to take advantage or not Palmers Rep. 416. Cornwallis and Hammond 18 Eliz. in Harpers Rep. cited by Lach. p. 227. in Cornwallis's Case The Case was Lord and two Co-partners Copy-holders the one makes a Feoffment and the Lord makes a Lease of the Manor the Lessee shall not take advantage of this Forfeiture because he is not privy to the Title but if the Lessor dyes it was agreed the Heir should take advantage of it Ideo Quaere It s a mischievous Case if the Lord should be suffered to rake up old Forfeitures a long time past and yet on the other side there is no reason that the Lords should be abridged of their Rights And it s adjudged 2 Siderfin p. 8. Chamberlain and Drake's Case That the succeeding Lord shall not take advantage of waste made in the time of the preceeding Lord. Upon Entry for a Forfeiture who shall have the Emblements Upon Entry by the Lord for a Forfeiture he shall have the Emblements then growing as if a Feme Copy-holder durante viduitate sows the Land and before severance takes a Husband the Lord shall have the Emblements for her own act is the cause of the determination of the Estate If such Woman let for years and the Lessee sows the Land and after the Widow takes Husband the Lessee shall not have the Emblements for although his Estate is determined by the act of a Stranger yet as to the first Lessor he shall not be in better case than his Lessor was 5 Rep. Oland's Case Vide Emblements The Lords Remedy for a Forfeiture For Forfeitures presented by the homage the Lord may distrain or seize 1 Keb. 287. Pateson and Danges By Entry the Lord shall have the Emblements CAP. XXIII Of extinguishment of Copy-holds How they are destroyed by the act of the Lord or of the Copy-holder VVhere and how a Right to a Copy-hold shall be Estopped or Extinguished by Acceptance or Release VVhere a Copy-hold shall be suspended and where it may be regranted Where and by what acts a Copy-hold shall grow extinct and destroyed for ever and where not and to what purposes and to what not By the act of the Lord Copy-holder BY the act of the Lord. And here observe two Rules By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed for though the Copy-hold must be parcel of the Manor yet severance made by the Lord shall not destroy the Estate of the Copy-holder Custom has so fixt and established his Estate In all cases where the Copy-hold is gone by the Grant of the Reversion it is not so gone but that the Tenant shall hold his Estate still and subject to Forfeiture as before To Illustrate this I shall cite two or three Cases That the Lords act shall not prejudice the Copy-holders Estate If the Lord makes a Lease for an hundred years the Lands are not so severed from the Manor as that the Copy-hold is extinct and the customary Interest is not determined but the Lord himself hath destroyed the Custom as to the Services for the Services reserved upon the Copy Copy-hold extinct as to Services but remains as to the Customary Estate and the advantage of waste and other Forfeitures are extinct But by Anderson the Rents and Services remain and waste shall be a Forfeiture though such waste cannot be found by an ordinary Presentment and that the Lord shall have the Rents and Services and not the Lessee quod mirum saith the Reporter against his own Lease 2 Leon. 208. Beal and Langley But this point is well setled in Murrel and Smith's Case 4 Rep. 25. though the Reversion of the Copy-hold be granted and so severed from the Manor yet the Copy-holder shall hold his Estate and subject to Forfeiture as before and shall perform the same Services suit of Court excepted as before and the Custom incident to the Land as Burrough English Gavel-kind continue still but Fine upon Alienations and Suit of Court and Admittances are gone The Lord Grants an ancient Copy-hold to S. in Fee and after he grants the Inheritance of that Copy-hold to a Stranger in Fee S. makes his Will and deviseth it to M. in Fee which was surrendred at next Court Per Cur. 1. Copy-hold though severed from the Manor not destroyed by the Lords act By the severance of the Inheritance of the Copy-hold from the Manor the Copy-hold is not destroyed being the Lords act 2. The Surrender after the Severance of the said Copy-hold was void and so was the Will for the Lands were not parcel of the Manor at the time of
the Surrender and the devise only cannot transfer for such customary Estate 3. After the severance the Copy-holder shall pay his Rent to the Feoffee and other Services which are due without Admittance as Harriot c. But not Fine or Suit of Court After severance Forfeitures continue But such Forfeitures as were Forfeitures before the Severance as Feoffment Lease Waste are Forfeitures after 4 Rep. 24 25. In Lee and Boothby's Case Cro. Car. 521. The Question was If a Copy-holder in Fee surrender to the Lord of the Manor his Copy-hold Estate and the Lord makes a Lease for years of the Manor and of the said Copy-hold by the name of his Tenement called H. whether it was a determination of his Copy-hold Per Curiam it is not because when he lets the Manor it is included as parcel of the Manor the Manor being demised includes the Copy-hold as parcel of the Manor and the naming of the Copy-hold is surplusage But if he though he had been but Dominus pro tempore or for half a year though by parol had made a Lease for years of the Copy-hold by it self that had destroyed the Copy-hold for it was then during that time severed from the Manor and so could never after be demised by Copy Lease for years of a particular Copy-hold by name together with the Manor by the King hath not so extinguished that the Copy-hold though by the surrender of it it is parcel of the Manor in the King but that after such Lease the Patentee of the Reversion may regrant it as Copy-hold 1 Keb. 720. Act of the Lord with consent of the Tenant where it destroys it or not But the act of the Lord with consent and acceptance of the Tenant will destroy the Copy-hold otherwise it shall not prejudice the Copy-holder But in some sense the Copy-holder may assent and yet not be prejudiced as in Howard and Bartlet's Case Hob. 181. The Custom was Copy hold Estate may remain to some purpose notwithstanding the severance from the Freehold if Copy-holders for Life dye seized their Wives shall have this during their Widowhood and A. being Copy-holder for Life the Lord conveys the Freehold and Inheritance of the Copy-hold of A. by the procurement of A. to J. S. a Stranger and his Heirs during the Life of A. Remainder to B. the Wife of A. for Life Remainder to A. and after A. grants the Remainder to W. his Son after this B. the Wife of A. dyes and A. marries C. and dyes seized now though here appears the Copy-holders privity and consent in that he takes the Remainder in Fee and grants it over to his Son that it should be destroyed and though this Copy-hold Estate was destroyed before her marriage yet the viduity of C. is not extinguished for the Freehold being in J. S. during the Life of A. the Estate of A. was not so extinct but the Custom shall continue quoad her The Copy-hold Estate here remains notwithstanding the severance from the Free-hold and though the Remainder was in him and he granted it over yet he lived and dyed a Copy-holder Hobart p. 181. Howard and Bartlet 1 Rolls Abr. 510. Cro. Jac. 573. the same Case by the name of Waldee and Bartlet Copy-holder in Tayl accepts a Feoffment from the Lord it destroys not the Copy-hold so as to conclude his Issue Carters Rep. 6 7. 2. By the act of the Copy-holder If a Copy-holder accept a Lease for years of his Copy-hold Acceptance of a Lease by this his Copy-hold is destroyed whether it be immediately from the Lord or mediately as was Lane's Case 2 Rep. 16. b. The King seized of a Manor in Fee grants Copy-hold Lands parcel of this Manor to another in Fee by Copy of Court Roll according to the Custom of the Manor And after the King by his Letters Patents under the Exchequer Seal makes a Lease for 21 years to another of these Lands the Lessee grants his Term to the Copy-holder afterwards Queen Elizabeth reciting the Lease for 21 years grants the Reversion in Fee the 21 years expire and the Patentee of the Reversion enters upon the Copy-holder his Entry adjudged good for Per Cur. by the acceptance of the Term by the Copy-holder the Copy-hold Estate was determined as well as if the Copy-holder had immediately accepted a Lease for years of his Copy-hold The reason of the Extinguishment the reason is the same in both Cases A Copy-hold Interest and an Estate for years of one and the same Land may not stand together in one and the same person at one time without confounding the lesser and if one of them ought to be determined it ought to be the Copy-hold Estate Also they are of divers natures and so cannot stand together in the same person the Estate at the Common-Law cannot drown it being the more worthy than the customary Estate and the customary must Vide mesme Case in Anderson 1 Rep. 191. and 1 Leon. 170. So it was resolved in Hide and Newport's Case A Copy-holder in Fee took a Lease for years of the Manor the Copy-hold is extinct for ever and not only during the Lease Moor Rep. n. 330. Acceptance to hold the Land by Bill and not by Copy Copy-holder accepts to hold his Land by Bill under the Lords Hand and not by Copy this determines the Copy-hold 1 Anderson 199. Colman and Bedil If a Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed 4 Rep. 21. French's Case But such Lessee may re-grant the Copy-hold to whom he will for the Land was always demised and demisable If the Lord make a Lease for Life to the Copy-holder by parol this shall confound the Copy-hold if Livery be made otherwise not Latch 213. If there be a Lease for years of the Manor and one of the Copy-holders doth purchase the Reversion in Fee by this the Copy-hold is destroyed and the Lessee of the Manor shall oust the Copy-holder and hold the Land for the time Calth p. 97. By the Tenants Release to the Lord. By the Copy-holders Release to the Lord. If a Copy-holder releaseth to his Lord that extinguisheth his Copy-hold although it be contrary to the nature of a Release to give possession Hutton p. 81. Or to a Purchasor The Lord sells the Freehold interest of a Copy-holder of Inheritance unto another so as it is divided from the Manor and afterwards the Copy-holder releaseth to the Purchaser by it the Copy-hold Interest is extinct but if the Lord be disseised and the Copy-holder releaseth to the Disseisor Nihil operatur 1 Leon. 102. Wakeford's Case Cro. Eliz. 21. For if a Copy-holder is ousted and so the Lord is disseised and the Copy-holder releaseth all his right to the disseisor and dyes his Heir Enters and brings an Action of Trespass against the disseisor who pleads his Frank-tenement Per Cur. the Release is void the disseisor not being admitted
Copy-holder It hath been a Question when a Copy-holder bargains and sells his Copy-hold to the Lord of a Manor in Lease for years whether the Copyhold Estate was extinguished But in Hutton p. 81. it is agreed that this Copy-hold is not extinguished but that the Lord who is Lessee for years is Dominus pro tempore and may grant it by Copy de novo The Lord of a Manor demised Copy-hold Lands to three Sisters Habend to them for their Lives successive the eldest Sister married one C. after which the Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after making the said Indenture but four days after the Lease made she agreed to it in pais and then married a Husband Agreement to an Indenture by one in Remainder for Life and they claim the Land The point is if by Agreement of the second Sister her Right to the Copy-hold were extinct The Interest of the eldest Sister is gone by her acceptance of the Estate by Indenture now if the second Sister may come and claim her customary Interest Per Cur. it s no extinguishment in the second Sister and yet Judgment was against her for Per Gaudy none can take advantage of the eldest Sister's Estate being determined the Lord against his Lease cannot enter or claim and the second Sister cannot enter during the Life of the eldest Sister for her Remainder takes effect in possession after the death of her said Sister 1 Leon. p. 73. Curtis and Cottell's Case 28 Eliz. Trin. B. R. By acceptance of a new Estate of Free-hold Baron and Feme Copy-holders to them and their Heirs the Baron in consideration of mony paid by him to the Lord obtaineth an Estate of the Freehold to him and his Wife and to the Heirs of their Bodies Baron dieth having Issue the Feme enters and suffers a Recovery and his Heir enters Per Statute 11 H. 7. Per Cur. the Entry is lawful for the Copy-hold by the Acceptance of the new Estate was extinguished Cro. El. 24. Stockbridge's Case Where and how Right to a Copy-hold shall be Extinguished by Release A man makes a Surrender of his Copy-hold Land to J. S. which is not good and after J. S. is admitted he which made the Surrender releaseth to him being in possession and after enters upon him The Question was if his Entry be congeable and if by the Release by Deed the customary Right of the Copy-holder was extinct And Per Cur. it is extinct by the Release for he to whom the Release was made was Copy-holder in possession and admitted to the Tenements and therefore the Release of a customary right may enure to him and the Lord hath no prejudice for he hath received his Fine for Admittance and he to whom the Release is made is in by Title viz. by Admittance of the Lord and so this Release enures by way of extinguishment And there is great difference between transferring of an Estate and an extinguishment of a Right Diversity between the transferring of an Estate and the extinguishment of a Right But if a Copy-holder be ousted per Tort there his Release to the disseisor or other wrong doer does not transfer his Right or Bar him 1. Because there is no customary Estate upon which a Release of any customary Right may enure and then 2. It would be a prejudice to the Lord who would lose his Fines and Services Co. 4 Rep. 25. b. Kite and Queinton In Replevin bar to the Conisance That K.D. was seized of the Manor of R. in Fee and that the Tenements in which c. were customary held of the said Manor and that at such a Court a Copy was granted to the Plaintiff whereby he entred and put in his Beasts The Defendant protesting the Premisses were not customary for Plea saith That before the Plaintiffs Title J. Abbot of the Monastery of B. was seized of the Manor of R. c. and one R. T. being seized of the customary Lands in which c. in Fee at the will of the Lord the said R. surrendred to the Abbot who was possessed and occupied the said Premisses for divers years and afterwards demised the said Manor for 40 years to W. M. and then surrendred the entire Manor and Abbathy to H. 8. who granted the entire Manor to the Duke of Norfolk in Fee and he with the assent of the Termor made a Feoffment to Drury of the Manor to whom the Termor surrendred his Lease Drury dyes and it descends to his Heir who granted the Land in which c. again by Copy to Tillot for his Life who entred and put in his Beasts Demurrer The Question was if the Custom is destroyed or if Drury the Defendant may avoid his Grant by Copy Note The custumary Land was never severed from the Manor but granted with the Manor as part of it and was demisable by Copy by all the Lords of the Manor and so it remained till the 15th of Eliz. when the Defendant granted the Copy to the Plaintiff Winch Ent. 991 992. Where a Copy-hold shall be perpetually extinct or where it shall after become a Copy-hold by regrant Forfeit Escheat If a Copy-hold Estate be forfeit or escheat to the Lord or otherwise come into the Hands of the Lord if the Lord make a Lease for years or for Life or other Estate by Deed or without Deed this Land shall never after be granted again by Copy for the Custom is destroyed for that during such Estates the Land was not demised nor demisable by Copy of Court Roll So if the Lord make a Feoffment and enter for the Condition broken it shall never be granted again by Copy But if the Lord keep it in his Hands a long time or let this at will then he may re-grant it Lach p. 213. 1 Rolls Abr. 498. Downcliff and Minors So if the interruption be tortious as if the Lord be disseised and the disseisor dye seized or the Land be recovered against the Lord by false Verdict or erroneous Judgment yet after the Land recovered or the judgment reversed this is grantable again by Copy Legal Interruptions But if the Land so Forfeited or Escheated before any new Grant be extended upon a Statute or Recognizance acknowledged by the Lord or the Lords Wife hath this assigned to her in a Writ of Dower though these are impediments by acts in Law yet the interruptions are lawful and the Lands may never again be granted by Copy 4 Rep. 31. Frenches Case If Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed but such Lessee may re-grant the Copy-hold again to whom he will for the Land was always demised or demisable If a Copy-hold be surrendred to the Lessor of a Manor or be Forfeited to him he his Executors or Assigns may well
re-grant it to him again If a Copy-hold Escheat to the Lord Escheat and he alien the Manor by Fine Feoffment c. his Alienee may re-grant this Land by Copy for it was always demised or demisable but if it be a particular Copy-hold Estate otherwise as was said in the beginning of this Case 4 Rep. 31. Frenches Case If a Copy-holder sue Execution of a Statute against the Lord of a Manor Not destroyed by execution of the Manor at the Copy-holders Suit and had the Manor in Execution and after the Debt is levied the Interest of the Copy-hold remains Per Manwood Heydon's Case Savills Rep. A Copy-holder in Fee marries a Woman Suspended Seignioress of the Manor and after they suffer a Common Recovery which was to the Use of themselves for Life Remainder over by some the Copy-hold is extinct for by the Recovery the Husband had gained an Estate of Freehold But Per Cur. by the inter-marriage it was only suspended Cro. El. p. 7. Anonymus If a Copy-holder accept of a Lease for years of the Manor or marry the Lords Wife by this the Copy-hold is not extinct but suspended If a Copy-hold be granted to three for Lives Suspended and the first of them take an Estate by Deed with livery from the Lord by this the Copy-hold for that Life is suspended Dyer 30. 4 Rep. 31. No prejudice to the Wife or to him in reversion Baron seized of a Manor in right of his Feme let Copy-hold Land parcel thereof for years by Indenture and dyed this doth not destroy the Custom as to the Wife but that after the death of her Husband she may demise by Copy as before So If Tenant pur vie of a Manor let a Copy-hold parcel of the Manor for years and dyes it shall not destroy the Custom as to him in Reversion Cro. El. P. 38 Eliz. Conesby and Rusketh for being Tenant pur vie he may not do wrong by destroying of Customs King H. 8. grants Lands being parcel of Copy-hold of a Manor without reciting this to be Copy-hold to Sir J. G. pur vie Sir J. G. morust Queen Mary grants the Manor to Susan Tenny in Fee who let the Manor for years to Lee. Lee before his years expired grants the Land in question to R. L. in Fee according to the Custom of the Manor Lee's years expire R. L. let to Field at will and the Defendant enters as Heir to Tenny Judgment pro Quer. Suspension and not Destruction of a Custom Kings Prerogative The Grant of the King is but a suspension and no destruction of the Custom And though the Maxim is It ought to be demised and demisable c. yet this holds not in the case of the King 2 Siderfin p. 142. Vide contra 1 Rolls Abr. 498. Downcliff and Minors Vide sub Tit. Grants by the Lord. As to the escheating of Copy-holds after escheating it cannot properly be called a Copy-hold Escheat except it be because there is power in him to re-grant it as Copy-hold Were it by Custom that the Wife shall be endowed of the intierty or moiety and such customary Copy-hold Lands Escheat and the Husband dyes The Wife not to be endowed after Escheat his Wife shall not be endowed of the intierty or moiety because the Custom as to her is extinct 2 Siderfin 19. A Copy-hold Escheated may be demised notwithstanding the Lords Continuance of it in his Hands above 20 years 2 Keb. 213. Pemble and Stern Note If the Copy-holder of a Manor hath had time out of memory Copy-hold extinct but not a Way over the Copy-hold Land a Way over the Land of another Copy-holder and he purchaseth the Inheritance of his Copy-hold by which the Copy-hold is extinct yet by this the Way is not extinct 1 Rolls Abr. 933. Empson and Williamson CAP. XXIV How and where Copy-holder shall hold his Lands charged or not by the Lord or Copy-holders as Dowers Rent-charges Statutes And how and where they shall be avoided THE Lord of a Manor in which were Copy-holders for Lives takes a Wife Dower of the Lords Wife and after a Copy-holder dyes the Lord after Coverture grants the Lands again according to the Custom of the Manor for Lives and dyes the Lords Widow shall not avoid these Grants in a Writ of Dower yet the Custom which is the Life of the Grant was long before 4 Rep. 24. If Feoffee of a Manor upon Condition make voluntary Grants of Copy-hold Estates according to Custom and after the Condition is broken By Feoffee a Manor upon condition and Feoffee re-enters yet the Grants by Copy shall stand Earl of Arundel's Case cited in Co. 4 Rep. 24. Copy-holder by voluntary grant not subject to the Lords Charges The Copy-holder which comes in by voluntary Grant shall not be subject to the Charges or Incumbrances of the Lord before the Grant 8 Rep. 63. Swain's Case Lord of a Manor where the Custom was of Land demisable for one two or three Lives that he that was first named in the Copy should enjoy it only for his Life and so the second The Remainder preserves the Estate from Charges c. grants it to J. P. and E. and M. his Daughters for their Lives if the Lord had charged the Inheritance of the Copy-hold J. P. shall not hold it charged during his Life for the mean Estates in Remainder preserve the Estate of J. P. by Copy from the Incumbrances of the Lord 9 Rep. 107. Margaret Podger's Case Rent charge Earl of W. seized of Manor by Copy grants a Rent-charge to Sir W. Cordel for the term of his Life and conveys the Manor to Sir W. Clifton in Tayl the Rent is behind Sir W. Cordrel dyes the Manor descends to Sir John Clifton who grants a Copy-hold to H. The Executors of Sir W. Cordel distrain for the Rent Per Cur. the Copy-holder shall hold the Land charged 2 Leon. p. 152. and 109. Cordel and Clifton But it hath been adjudged That the Wife of the Lord shall not be endowed against the Copy-holder for the Title of Dower is not consummated before the death of the Husband so as the Title of Copy-holder is compleated before the Title of Dower and in this Case the Seisin and possession continues in Sir John Clifton who claims only by Sir William Clifton who was the Tenant in Demesn who ought to pay the Rent Lord and Copy-holder for Life be the Lord grants a Rent-charge out of the Manor Rent charge by the Lord upon the Manor whereof the Copy-hold is parcel the Copy-holder surrenders to the Use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dyeth so that his Estate is determined and the Lord granteth to a Stranger de novo to hold the said Land by Copy this new Tenant shall hold the Land charged 1 Leon. p. 4. Lord of a Manor where Lands were
the Goods in such Case it is good because it is as a Pledge 2 Leon. p. 725. Parker's Case Where Harriot shall be apportionable or not By the Act of the Lord. Tenant Lord and Tenant by Fealty and Harriot Service and the Lord purchaseth part of the Land the Harriot Service is extinct because it is intire valuable Aliter of Harriot Custom for if the Custom of a Manor be That upon the death of every Tenant of the Manor that dyes seized of any Land holden of the said Manor the Lord shall have an Harriot although the Lord purchase parcel of the Tenancy yet the Lord shall have an Harriot by the Custom of the Manor for the residue for he remains Tenant to the Lord and the Custom extends to every Tenant Co. Lit. 149. b. 6. Rep. 1.2 Bruerton's Case 8 Rep. 105. Talbot's Case 106. Feme by Custom is to have a moiety by Survivor and if Harriot be to be paid for the whole if it be part surrendred both shall pay Harriots 1 Keb. 356. Muniface and Baker Act of the Tenant If Tenant alien parcel of the Tenancy entire Services as Homage Fealty Harriot c. shall be multiplied Solida a singulis praestantur If my Tenant who holds of me by an Harriot aliens parcel of his Land to another each of them is chargable to me with an Harriot because it is entire and though the Tenant purchase the Land back again I shall have of him for every portion an Harriot 6 Rep. 1. Bruerton's Case 8 Rep. 105. Talbot's Case 34 Edw. 3.1 Copy-hold was held by Rent and Harriot upon Alienation and Surrender Copy-holder aliens parts of his Copyhold to one and part to another and retains part in his Hands and surrenders to the Use of the Alienees Per Cur. the Lord shall have an Harriot upon every alienation in case of a Copy-holder as well as a Tenant at Common Law If they should not be multiplied it would be in the power of the Tenant to defraud the Lord by Alienation of parcels and in this case the Alienor pays the Harriot because he continues Tenant and upon every Alienation after by the Alienees they shall pay it Palmer's Rep. 342. Sir Francis Snag against Fox 1 Keb. 357. If a Copy-holder being sick in his Bed doth surrender into the Hands of two Tenants c. to the Use of his eldest Son in Fee and dyeth before the Surrender is presented in Court the Lord must have an Harriot If Surrender had been presented in Court and Admission before the Father's death Aliter If an Harriot is due to the Lord upon every descent only and a Surrender is made by a Copy-holder unto the Use of his Heirs in full Court and to his Heirs and the eldest Son is admitted Tenant accordingly and the Father dyeth the Lord shall have no Harriot Who shall pay an Harriot and when or not Where many Purchase Land joyntly an Harriot shall not be paid till after the death of the Survivor 8 Rep. 105. If by Custom a Copy-holder dyes seized he shall pay an Harriot to the Lord and after the Copy-holder is disseised and dyes during the disseisin yet he shall pay an Harriot within this Custom for he was Tenant in right notwithstanding this disseisin 2 Rolls Abr. 72. Norris's Case Lease is made to A. for 99 years if B. C. and D. or any of them so long shall live to commence after the determination of a former Lease rendring Rent after the commencement of the term ac etiam post mortem B. C. D. respective for an Harriot 3 l. B. dyes before determination of the first term and Lessor brings det for 3 l. for an Harriot Per Cur. no Harriot is due because coupled with a Rent and no Rent is due during the interesse termini but both begin together Siderfin p. 437. Hangon and Carve Lease is made for 99 years if I. and S. live so long to commence after the determination of a former Lease to Sibel if Sibel lived so long reddendo 40 s. per annum and 3 l. in the name of an Harriot post mortem of each Cesty que vie Per Cur. the Harriot ought not to be paid till the Lease come in possession which is not till Sibel dye at which time the second Lease takes effect and this shall follow the nature of the Rent being in company with such Rents and Services as are to be only done when the Lease comes in possession and the Lease to Lessee for 99 years is but a future Interest where the Lessor hath no Reversion nor the Lessee any term and reddendo is a reservation and therefore cannot take effect till there is a Reversion but Keeling contra this being a sum in gross and here is an express agreement to pay after the death of either of the Parties and agreements may reach payments as well on contingency as where the Party hath Interest 1 Keb. 677. Lemal against Cara. Who shall have an Harriot A. is Copy-holder for Life of Lands Harriotable by the Custom if he dye seized and the Lord grants the Freehold of the Copy-hold to B. for 99 years if A. the Copy-holder so long live the Remainder to A. for 1000 years and afterwards A. assigns over his Lease of 1000 years to C. and afterwards A. makes F. his Executor and dyes seized Per. Cur. C. the Assignee of 1000 years shall not have an Harriot because at the time of the death of A. when the Harriot became due he was not Lord but had only a future Interest and if any Harriot be to be paid the Executor of A. or the Lord in Fee shall have it P. 15 Jac. B. R. Norris and Norris 2 Rolls Abr. 72. This Case in March p. 23. is Reported thus The Lord granted the Seigniory for 99 years if the Tenant should so long live and after he made a Lease for 4000 years Tenant for Life is disseized or more properly ousted and dyed Two points resolved 1. An Harriot was to be paid notwithstanding the Tenant did not dye seized because he had the Estate in right and might have entred 2. He in the remainder for years should not have it their reason was because the Tenant for Life was not the Tenant of him who had the future Interest of 4000 years but of him who had the Interest for 99 years but the Court was not agreed that the Grantee for 99 years should have the Harriot the reason of the doubt was because that eo instante the Tenant died eodem instante the Estate of the Grantee for 99 years determined A Bishop is seized of the Manor of D. and he lets twenty Acres of it to A. and B. during the iives of their three Children rendring 21 s. Rent per Annum and also paying and delivering to the Bishop and his Successors two of the best Beasts upon the death of every Cesty que vie The Bishop after lets all the Manor to W. rendring the ancient
Rent one of the Cesty que vies dies The Question was whether the Harriot belongs to the Bishop or to W. Per Cur. 1. The Rent issues out of the intire Manor 2. That the Harriot reserved shall go with the Reversion Winch p. 46 57. Bishop of Gloucester against Wood. Pleadings What shall be a good Avowry or Conizance for an Harriot in Replevin or a good Justification in Trespass or not and how to be pleaded If the Lord avow generally for an Harriot without shewing what the Harriot should be whether Beast or other thing its sufficient Hobart p. 176. Shaw and Taylor Exception to an Avowry was for that in it he sets forth That if any Tenant dye seized the Lord is to have an Harriot and shews not of what Estate he should dye seized for in one case it may be an Harriot Custom may be due in another case an Harriot Service But Per Curiam it shews he took them nomine Heriotorum which is good enough 1 Bulstr 101. Sylliard's Case Defendant saith That all the Tenants for Term of Life c. after their deaths have used to pay to him an Harriot the Avowry is insufficient That Tenants should pay after their deaths its repugnant But if he had said That he and all those whose Estate he hath c. have had an Harriot it had been good this is Harriot Custom for Harriot Service is of Tenants in Fee 21 H. 7.13 15. 8 H. 7.10 Avowry by Harriot Service he need not shew what was the Beast he demanded nor the kind or price thereof Cro. Car. 260. Mayor and Brandwood Bar to the Avowry nulla habuit Animalia Quaere Hobart 176. Avowry for three Oxon Separatim pro separalibus Harriot ' Cust tunc 3 Br. 313 333. Prescription for Harriot sur Alienation 8 H. 7.10 Avowry for Harriot Custom hors son Fee is no Plea Vide supra Bend. p. 18. for Harriot Service hors son Fee is a good Plea Up. B. 110. Plowd 96. a. Avowry and Distress for Harriot Service bar by Harriot Custom Plowd 94. Woodland and Mantel Bar for Harriot reserved upon a Demise Tomps f. 257. Custom Pleaded Quod Dominus habeat Harriot Custumar post mortem cujusllibet tenentis Co. Entr. 39.3 Brownl 313 403. Simile si fuerint elongat tunc optimum animal levan cuban super terras Co. Ent. 666. Dier 199. Moor 16. Traverse Traverse tenure by Services alledged Co. Lit. 598 599. Traverse le seisin Quod Pater non fuit seisitus Coke Ent. 613. Plowd 94 95. Traverse le tenure protestando quod non fuit seisitus pro placito dicit quod non tenet c. 3 Brownl 329 349 313. Traverse del Custome 3 Brownl 313. Justification in Trespass Bar. quod Defend Dom. manerij habuit Harriot custom de omnibus tenentibus alienan sine Licentia Ra. Ent. 650. Up. B. 182. Bar by Harriot Custom Post mortem tenentis Co. Ent. 39. The like after the death of Tenant pur vie 3 Brownl 402. Repl. quoad 1 mes hors son fee quoad 2 Mes non est talis consuetudo Up. B. 222. Harriot pleaded in Bar al Trespass 1 Brown 383. CAP. XXVI What Statutes extend to Copy-hold Lands and within what Statutes Copy-hold Lands shall be contained by construction of Law without express words and what not HOW the Statute De donis extends to Copy-hold Lands or not Vide sub Tit. West 2. c. De donis Of Copy-holds Intayled It is expresly provided 1 R. 3. c. 4. Of Juries That a Copy-holder having Copy-hold Land to the yearly value of 26 s. 6 d. above all Charges may be impannelled upon a Jury as well as he that hath 20 s. Free-hold But now this is altered by latter Statutes Copy-hold Lands are within the words and intention of the Statute 4 Hen. 7.24 4 H. 7. c. â—4 Of Fines and non-Claim of Fines with Proclamations and five years non-claim and shall be barred as a Lessee for years and his Lessor shall be barred so the Copy-holder and his Lord Covin But if a Copy-holder by assent and covin to bar the Lord of his Inheritance makes a Feoffment and levies a Fine with Proclamations such Fine shall not bar the Lord no more than it shall the Lessor if it be levied by Lessee for the reason in Fermor's Case 3 Rep. f. 77. If a Copy-holder for Life or in Fee be ousted and the Lord be disseised Disseisin and the Disseisor levy a Fine with Proclamations and five years pass as well the Lord as the Copy-holder is barred and the Lord shall not in such case have five years after the death of Tenant pur vie for the Lord may presently have remedy by Action viz. Assise c. and recover the Land and the Lord may without consent or commandment precedent or assent subsequent enter in the name of the Tenant by Copy and his own Right to save their particular Interests as his own Freehold and Inheritance for the Lord is no Stranger but is privy in Estate But not if a Stranger who hath no Right enter c. 9 Rep. 105 106. Margaret Podgers Case The Case was A Copy-hold is granted to A. B. and C. for their Lives suecessive the Lord by Deed Inrolled bargains the Copy-hold to A. in Fee and levies a Fine to him with Proclamations A. dies seized this discends to M. his Son and Heir who levies a Fine to Uses Fine when it shall bar or not after ten years B. enters the Fine is no bar for no Fine or Warranty shall bar any Estate in Possession Reversion or Remainder which is not devested and put to a Right and the Lords Bargain and Sale doth not devest the Estates of them in Remainder for the Lord doth that which he may do by Law and A. was in by force of the Statute of 27 H. 8. And an Act of Parliament shall do no wrong Bicknal and Tucker's Case Trin. 9 Jac. Rot. 3648. was Whether a Fine with five years will bind the Copy-holder in Remainder There was a Copy-hold granted to three for Lives to have and to hold successively the first accepts a Bargain and Sale of the Freehold Whether a Fine and non-Claim shall bar a Copy-holder in Remainder by the Lord of the Manor and then he levied a Fine with Proclamations and five years pass Whether he in Remainder is barred or not Those whose Estates are turned to Rights either present or future are meant by the Statute to be barred If a Copy-holder for years be put out of Possession and a Fine levied and no entry by him he is barred by the Statute By the Bargain and Sale he in Remainder is not put out of Possession If a man makes a Lease to begin at Easter next and before Easter a Fine is levied and five years pass this Fine will not bar because at the levying of the Fine he could not enter for then his his Right was future If the
Merton Cap. 1. Of Damages sur Recovery en Dower which gives Damages to a Feme Covert upon a Recovery in a Writ of Dower where the Baron dyed seized extends to Copy-holds And Stat. W. 2. C. 3. W. 2. Cap. 3. Cui in vita And the three several branches of that Stat. the one which gives a cui in vita upon a discontinuance made by the Husband The second which gives the Receit to the Wife upon her Husbands refusal to defend the Wifes Title Resceit And the third which gives a Quod ei deforceat to particular Tenants extends to Copy-holds Quod ei deforceat And The Statute 32 H. 8. Cap. 9. 32 H. 8. cap. 9. Champerty against Champerty and litigious Titles which gives an Entry in lieu of a Cui in vita extendeth to Copy-holds Cro. Car. 43. Rowden and Malster Vide Plowd f. 371. The Statute W. 2. which gives Elegits Elegit extends not to Copy-holds for that would be a prejudice and the Common Law would break the Custom Savil's Reports Heydon's Case vide supra Copy-hold Lands are liable to the Statutes of Recusants 13 El. cap. 4. Of Recusants and the King shall have the profits of the Lands only but no Estate and such Statute doth not make a Tenant to the Lord and though the King hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the King 1 Leon. p. 98. Saliard and Everat's Case Owen p. 37. mesme Case Copy-hold Lands are not within the words of that Statute but by Anderson 34 H. 8.5 Of Wills the Equity of that Act doth extend to Copy-holds 1 Leon. 83. in Skipwith's Case 31 Eliz. cap. 7. Cottages Copy-hold is not within that Stat. 1 Bulstr 50. Brock's Case 11 H. 7. cap. 10. Joyntresses Copy-hold Lands are assured to the Wife for her Joynture and she aliens them it s no Forfeiture within Statute 11 H. 8. Cap. 10. Copy-hold Land is not within that Statute 2 Siderfin p. 41 73. Harrington and Smith CAP. XXVII Of Emblements who shall have them the Lord or the Copy-holder A Woman who had her Widows Estate of Copy-hold Land and before severance took Husband the Lord shall have the Corn because the Estate of the Woman determined by her own act otherwise if her Estate had ended by Death Divorce Determination of the Will c. Moor n. 512. Oland and Burdwick 5 Rep. 115. mesme Case If a Copy-holder Durante viduitate Lease for one year and the Lessee sows the Land and after the Copy-holder takes an Husband yet the Lessee shall have the Corn for her act shall not prejudice a third person Ibid. Oland's Case If the Husband seized of a Copy-hold in Fee sows the Land and after surrenders to the Use of his Wife who is admitted accordingly and after the Husband dyes before severance it seems the Wife shall have the Corn and not the Executors or Administrators of the Husband Annexed to the Land for that the Husband passed the Emblements with the Land to the Wife as annexed to the Land and by this the Priviledge which the Law gives to him who sows it is taken away by the Surrender and so it is all one as if the Wife had sowed it or purchased the Land sowed by a Stranger 1 Rolls Abr. 727. CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not IF a Copy-holder in Fee dyeth seized and the Lord admit a Stranger to the Land who entreth he is but a Tenant at will and not a Disseisor to the Copy-holder who hath the Land by Discent because he cometh in by the Assent of the Lord 3 Leon. 210. If a Copy-holder without Licence makes a Lease for years the Lessee who enters by colour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firmae 2. Brownl p. 40. Petty and Evans If a Copy-holder Lease for years by License of the Lord and after enters upon the Lessee and ousts him this is a Disseisin to the Lord of the Frank-Tenement 1 Rolls Abr. 662. by Coke Vide sparsim CAP. XXIX Actions and Suits What Action may be brought by the Lords What Actions brought by Copy-holders or their Executors in respect to their Copy-hold Estates shall be good or not either against their Lords or others What Actions may be brought by the Lords THE Lord upon seizure of Copy-holder may maintain Ejectment till the Heir comes to be admitted as in Harverights Case Latch 511. upon Entry of the Feoffor upon Rent reserved and Entry till satisfaction he may upon such Interest quousque maintain an Ejectment 1 Keb. 2â—7 Lord Salisbury's Case As to the Lords Action for Rent Distress Remedy for Forfeitures Vide supra sparsim per tout in Indice What Actions a Copy-holder may bring against his Lord and what not Trespass upon Ejectment by the Lord. Copy-holder doing and paying the Customs and Services if he be ejected by his Lord he shall have an Action of Trespass against him Co. Lit. 60. b. 61. a. 4 Rep. 22. a. For though he is Tenens ad voluntatem Domini yet it is Secundumconsuetudinem Manerij For cutting Trees He shall have Trespass against his Lord for cutting of Trees or breaking his House in the Case of Stebbing and Gosnel 1 Rolls Abr. 108. The Custom was That every Copy-holder in Fee shall have the Loppings of the Pollingers The Lord cuts down two Oaks and in his Plea to an Action sur Case saith he cut down two Oakes being Pollinger Timber Trees and left the Loppings there for the Plaintiff On Demurrer it was adjudged for the Plaintiff for a Copy-holder of Inheritance hath interest in the Loppings and Boughs as well as the Lord in the Timber And if the Lord shall cut down all the Timber Trees than the Copy-holder shall lose the Profit Cro. El. p. 629. Moor n. 727. mesme Case 1 Rolls Rep. Ford and Hoskin's Case Nay the Action of Trespass by a Copy-holder in Fee against his Lord for cutting down the Trees lyes at Common Law without any special Custom for the Copy-holder hath a special property therein and the Lord a general property the Lord may as well subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to Repair it 2 Brownl 328. Heydon and Smith and in Doyle's Case Mich. 25. and 26 El. it was adjudged where it was a Custom that the Copy-holder might cut Maremium to Repair if the Lord carry it away an Action of Trespass lyes against him by the Tenant in Taylor 's Case Pasch 36. Eliz. A man was Tenant by Copy of Court Roll of Wood and the Soyl was excepted to the Lord and yet the Copy-holder maintained an Action of Trespass against the Lord for cutting his Wood Moor n. 480. If a Stranger cut a Tree Trespass by the Lord and the Copy-holder for cutting down Trees the
Lord shall have one Action and the Copy-holder another and each one shall recover Damages according to his Interest Vide Leon. 1. 272. Copy-holder dyes Lord admits a Stranger the Heir may enter and upon a re-entry maintain Trespass without Admittance Noy p. 172. Simpson and Gillion Vide Admittance For non-Admittance no Action by Surrendree Action on the Case against the Lord lyes not for non-Admittance A Copy-holder in the Eye of the Law is but Tenant at the Lords Will and if the Lord will not hold Court he hath no remedy to compel him but by order in Chancery Cro. Jac. p. 368. Ford and Hoskins No Action on the Case by a named Successor By Surrendror Surrendror may have an Action on the Case for not admitting but not the Surrendree 2 Keb. 357. Quaere Remedy in faux Judgment The Demandant in a Pleint in nature of a real Action recovereth the Land erroneously with remedy for the party grieved for he cannot have the Kings Writ of faux Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a Tenant at Will and the Freehold being in another yet he shall have Petition to the Lord in nature of a Writ of faux Judgment and therein assign Errors and have remedy according to Law Co. Lit. 60. And if there be cause the Judgment may be reversed Assise Tenant by Copy shall not have Assise against his Lord as Tenant in ancient Demesn shall have because he hath no Frank-Tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. The Copy-holders Actions and Remedies against Strangers and where A man grants all the Coals and Coal-Mines within a Manor and parcel was Copy-hold for Life to J. S. Where Copy-holder shall have Trover for Coals digged out of his Copy-hold Land Lessee enters into the Copy-hold and digs a new Pit in the Copy-hold Land during the Life of the Copy-holder and takes the Coals and converts them c. And Lessee of the Coal-Mine brought Trover against the Lessor Per Curiam he may do it for when the Lessor or Lessee of the Coals or a Stranger enters and digs the Coals out of the Pits these belong to the Lessee and if any one else take the Coals he shall have Trover Jones Rep. 243. Player and Roberts Lessee of a Copy-holder for a year Ejectment shall maintain an Ejectione Firmae for in as much as his Term is warranted by Law by force of the general Custom of the Realm it is but reason if he be ejected that he shall have Ejectione Firmae and it is a speedy course for a Copy-holder to have the possession of the Land against a Stranger 4 Rep. 26. As to the Declaration in Ejectment Vide Tit. Declaration In Cro. El. p. 224. It is said to be adjudged Ejectment Per tot Cur. That an Ejectione Firmae doth not lye of a Copy-hold Estate But it was agreed That an Ejectione Firmae doth lye of a Lease made by a Copy-holder but not of a Demise made by the Lord of a Copy-hold by Copy of Court Roll Cole and Wall 's Case A Copy-holder had Licence from his Lord to let his Land for 21 years he lets it to the Plaintiff for three years who entred and being Ejected brought Ejectione Firmae Ejectment by Lessee upon a Lease not warranted good against a Stranger Per Cur. he may maintain this Action at Common Law for it is a good Lease between the Paâ—â—â—s and against all others but the Lord and as this Case is it is good against him because it is done by his Licence and it is a good Lease and well warranted by the Licence Cro. El. 535. Goodwin and Longhurst A Copy-holder made a Lease for one year excepting one day which was warranted by the Custom Lessee being ousted by a Stranger brings Ejectione Firmae it well lyes and if there were not any Custom yet it shall be good against all but him who had the Inheritance and Freehold So if a Lessee for Will at the Common Law had made a Lease for years for the Tenant at Will is only a Disseisor and the Lease is good against him Cro. Trin. 41 El. p. 676. Spark's Case So 717. Erish's Case Moor n. 709. Stoner and Gibson Ejectment by the Heir without Admittance to presentment If customary Lands do descend to the younger Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected he shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves n. 128. If a Copy-holder had Common by Prescription in the Waste of the Lord and the Lord stores the Waste with Conies every Copy-holder may have Action on the Case against the Lord averring That by this the Common is impaired 1 Rolls Abr. 106. Clayton and Sir Jerom Horsey Trespass for Beasts depasturing his Common by every Commoner Copy-holder prescribes to have Common in the Waste of the Lord and brings Trespass on the Case against a Stranger for his Beasts depasturing on the Common there The Question was whether this Action lyes for 15 H. 7.12 it s agreed a Commoner cannot maintain an Action of Trespass nor no other but the Owner of the Soyl 12 H. 8.2 And the Commoner hath no right till he hath taken it by the mouth of his Beasts and the Damage is to the Tenant of the Land and then every other Commoner may have Action of Trespass and so the Stranger shall be infinitely punishable Per Coke If a Commoner may distrain Damage feasant doing Damage which proves lie hath wrong then by the same reason if the Beasts are gone before his coming he may have Action on the Case otherwise one that hath many Beasts may destroy the Common in a night And it s not like a Nusance for that is Publick and may be punished in a Leet But the other is private to the Commoners and cannot be punished in another course he cited one Whitehand's Case Many Copy-holders prescribe to have the Loppings and Toppings of Pollards the Lord cuts them every Copy-holder may have his Action and also Hill 5. Jac. Rot. 1427. Geo. England's Case and Warburton of the same Opinion 2 Brownl p. 146. Crogate and Morris If a Copy-holder by the Custom of a Manor had used to have Common for all his Beasts Action on the Case for digging Turffs on the Common Levant and Couchant upon his customary Tenements in a certain parcel of the Manor and a Stranger digs Turffs there and takes them away by which his Common is impaired Action on the Case lyes declaring That the Defendant digged so many Turffs there and then with his Horses and Carts Herbam tunc ibid crescen ' predict ambulando conculcando Declaration from the place aforesaid minus rite ceperit abcarriavit
per quod quer ' communiam suam predict pro averiis suis c. in tam amplo beneficiali modo prout antea habuit c. habere non potuit This is a good Declaration though the Commoner cannot have any Damage for the taking and carrying away the Turffs yet the coming on the Land with Horse and Carts is a prejudice to the Common and the per quod the Common is impaired is the cause of Action and the carrying away a means to impair it 1 Rolls Abr. 89. Terry and Goodier and good tho' Damages were entire Action shall be brought in a Copy-holder Lunaticks name for though the custody of the Land was granted to one by the Lord yet no Interest was gained by this commitment and the Lord hath not power over the Lunaticks Lands without a Custom Hobart p. 215 216. Cox and Darson Trespass Quare clausum fregit Copy-holder of Under-Wood without the Soil shall have Trespass Quare clausum fregit Moor n. 480. Account for Profits Account lies not for an Heir Copy-holder for the Profits of his Copy-hold Lands taken during his non-Age where the Defendant hath not entred and taken the Profits as Prochein Amy but claims by Custom and Grant of the Lord to the Use of the Assignee which Custom is good 1 Leon. p. 226. n. 356. Anonymus Faux Judgment Writ of faux Judgment lies not for a Copy-holder Vide supra Writ of Right Close Writ of Right Close lies not for a Copy-holder 4 Rep. 21. Avowry for Rent by Lessee of a Copy-holder Lessee for years of a Manor distrains a Copy-holder for Rent he Replevins Lessee Avows Per Curiam Avowry may be made for the Rent of a Copy-holder in the Kings-Bench and there is difference between an Ejectione Firmae and this Case For the Ejectione Firmae is brought for the Copy-hold it self But this Avowry is for Rent due to the Lord which is a duty at the Common Law and therefore an Avowry may well be for it Cro. El. p. 524. Laughter and Humphry A Copy-holder in Fee by Licence made a Lease for 21 years by Indenture rendring Rent Covenant by Assignee of a Reversion wherein the Lessee Covenants for himself his Executors and Assigns That he will erect a c. The Lessor surrendred to the Use of the Plaintiff and his Heirs who was admitted accordingly and the Plaintiff as Assignee brings his Action of Covenant Whether the Assignee may maintain this Action by the Common Law or by the Statute 32 H. 8. Cap. 34. was the Question for the Defendant demurred upon the Declaration it was adjourned in Cro. Car. 24. Plat and Plummer But it seems by 1 Keb. 356. Baker and Berisford's Case That the Assignee is not within this Statute to have a Covenant Action of Debt doth not lye for Arrearages of Copy Rents for the Stat. of 32 H. 8. Action of Debt for Rent does not extend to them but to Rents out of Free Land Yelv. p. 135. Appleton and Doily And so Executors shall not have Debt for Arreages of such Rents due in the Life-time of the Testator The Lord of a Manor is and Fines No Remedy for Fines Rents c. after vendition for Admittances and Copy-hold Rents are Arrear and then he sells the Manor he is without Remedy both in Law and Equity He hath deprived himself of the Remedy by his own act viz. the vendition 1 Rolls Abr. 374. Serjeant Hitcham and Finch Copy-holder for Life becomes Lunatick A. Action of Trover to be brought in the Lunaticks name he being a Copy-holder sows the Land The Lord grants the custody of the Lunatick to B. A. takes the Corn to the Use of the Lunatick B. Brought Trover in his own name it s ill brought It ought to be brought in the Lunaticks name and not in the name of the Committee Noy p. 27. Cox and Dawson Covenant by Rent Custom is when a Copy-holder dies seized of Copy-hold Lands or Rent That his Wife shall have the one moiety and his Issues the other moiety A. B. so seized takes Mary to Wife and they have Issue John A. B. dies so that Mary is seized of the moiety for her Life and John of the other moiety in Fee and of the first moiety as his Reversion Mary and John her Son make a Lease to J. B. for twenty one years rendring fifty pounds Rent to Mary and fifty pounds to John and after the death of Mary one hundred pounds to John John marries Margaret they have Issue three Sons John dies so that a fourth part comes to his Wife and the other fourth part to his three Sons Rent is behind Margaret brought Debt on Covenant for the Rent Per Curiam it was well brought by her sole Joynder in Action without joyning Mary with her Tenant in Commonn shall joyn in Action so long as the privity of Contract remains but when the privity is determined as it is here they may sever and such Contract shall ensue the nature of the Land and also there is a vesting by Custom and express several Reservations 2 Siderfin p. 9. Baker and Berisford CAP. XXX Of Copy-holders being Impleaded and Impleadable in the Lords Court Vide supra Tit. Customs COpy-hold Lands are as the Demesns of the Manor and are the Lords Freehold and therefore are not impleadable but in the Lords Court Croke Jac. 559. Pymmock and Hilder One recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right A Precept cannot be made and awarded out of the Court to execute the said Recovery Posse Manerij and to put him who recovered into possession with the Posse Manerij for force in such cases is not justifiable but by command out of the Kings Courts 3 Leon. 99. A Woman recovered Dower of a Copy-hold within the Manor and 40 l. Damages 40 l. Damages recovered yet no Execution or remedy but by Petition and she brought Debt for the Damages in B.R. Per Cur. it lyes not because the Court Baron cannot hold Plea nor award Execution of 40 l. Damages though the Damages were there well assessed and because no Writ of Error or Faux Judgment lyes upon such a Recovery of a Copy-hold but only a Petition to the Lord of a Manor so that Copy-hold Plaints are not within the Jurisdiction of this Court of Kings-Bench Moor n. 559. Shaw and Tompson If an erroneous Judgment be given in a Copy-hold Court of a common Lord in an Action in nature of a Formedon a Bill may be exhibited in Chancery Faux Judgment how relieved in nature of a Faux Judgment to reverse this Pateshall's Case in Scaccario 1 Rolls Abr. 373. and Co. on Lit. p. 60. a. He cannot have the Kings Writ of false Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a
in Case of severance and that after the Lord granted over c. as on change of a Corporation in Lutterell's Case 1 Keeble 652. Davy and Watts The Case was The King was seized of a Manor Common appendant where there were divers Copy-holders for Life and was also seized of 8 Acres of Land in another Manor in which the Copy-holders have used time out of mind c. to have Common and after the King grants the Manor to one and the 8 Acres to another and a Copy-holder puts in his Beasts into the 8 Acres And in Trespass brought against him by the Patentee of the 8 Acres he prescribes That the Lord of the Manor and all those whose Estates he hath in the Manor have used time out of mind c. for them selves and their Copy-holders to have Common in the said Acres of Land And he farther pleads That he was Copy-holder for Life by Grant after the said unity of possession in the King and so demanded Judgment si actio Against which the unity of possession was pleaded The Defendant demurs Per Cur. as this Prescription was pleaded the Common was extinct but by special pleading he might have been helped and save his Common for this was Common appendant 2 Brownl 47. Vide James and Read Tirringhams Case 4 Rep. 38. Custom was alledged Sola separalis pastura That all the customary Tenements Habuerunt habuere consuever separalem pasturam c. it was excepted to this Plea That the Copy-holders have not shewed what Estate they have in their customary Tenements And 2dly It s not alledged that they have solam pasturam for their Beasts Levant and Couchant Per Cur. it s not material for be their Estates what they will in Fee or Life or Years Custom hath annexed this sole feeding as a profit apprender to their Estates and this they claim by the Custom of the Manor and not by Prescription As to the other Exception True it is if one claim only Common appurtenant to his Land he ought to say for his Beasts Levant and Couchant for in such case he claims but part of the Herbage and the residue the Lord is to have and therefore if he put in any Beasts that are not Levant and Couchant he doth a wrong to his Lord and the Lord shall have Trespass But here the Commoners claim all the Herbage and so exclude the Lord totally and so it s no mischief to the Lord 2 Sanders 326 327. Hoskins and Robins Estovers If a Copy-holder for Life had used to have Common in the Waste of the Lord or certain Estovers in his Wood and the Lord alien the Waste and the Wood to a Stranger and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Common and Estovers in the Lands and Woods which were aliened notwithstanding the Severance But after such severance the Copy-holder shall not plead generally Quod infra manerium praed talis habetur consuetudo for after such severance the Waste or Wood is not parcel of the Manor but he may plead That before and until such time of the severance Talis habebatur a toto tempore c. consuetudo c. and then shew the severance as in Murrel's Case where the Lord severs the Freehold and Inheritance from the Copy-hold Co. 8 Rep. Swain's Case Where a Copy-holder prescribes for Estovers in the Soil of another and he saith That all Copy-holders Ejusdem tenementi usi sunt c. where he ought to have said Ejusdem manerij c. This Prescription was adjudged void 21 Ed. 4.36 b. 63. b. Prescription Pro ligno combustibili is good 2 Brownl 330. Trees A Prescription for a Copy-holder to cut Boughs of Trees is well laid by way of a Custom 2 Brownl 329. The manner of Pleading when a Lease is to be answered which is set forth in the Avowry In Replevin B. avowed for Damage feasant and sets forth That the Lady J. was seized of such a Manor whereof the place where c. and leased the same to the Defendant for years c. The Plaintiff saith That long time before King H. 8. was seized of the said Manor and that the place where c. is parcel of the said Manor demised and demisable by Copy c. and that the said King by such an one his Steward demised and granted the said parcel unto the Ancestor of the Plaintiff whose Heir he is by Copy in Fee and upon this there was a Demurrer because by that bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in bar to the Avowry ought to have concluded And so he was seized by the Custom until the Avowant pretextu of the said Term for years entred And so it was adjudged 1 Leon. p. 81. Herring and Badcock In Ejectment the Defendant pleads Ejectment That the Lessor of the Plaintiff was Copy-holder in Fee of that Land parcel of the Manor of H. which is in the Queens possession by reason of a Ward and that the Lessor surrendred to the Use of the Defendant in Fee who was admitted and that afterwards the Lessor entred upon him and expelled him and let to the Plaintiff prout in the Declaration and the Defendant re-entred as he lawfully might Lease as at Common Law and plead Lease of Copy-hold Land Custom or Licence must specially be shewed The Plaintiff dedemurs Per Cur. the Plea is naught for there is no confession and avoydance of the Lease let by the Plaintiff for the Action is brought as of a Lease of Land at Common Law and this proves that the Land was Copy-hold Land and a Copy-holder cannot make a Lease for years unless by Custom or by Licence of the Lord which ought specially to be shewed Cro. El. 728. Kensey and Richardson In Ejectione Firmae brought by the Lessee of a Copy-holder Lessee pleading a Licence how it is sufficient that the Count be general without any mention of the Licence and if the Defendant plead not Guilty then the Plaintiff ought to shew the Licence in Evidence but if the Defendant plead specially then the Plaintiff ought to plead the Licence certainly in his Replication and the time and place when it was made And if the Plaintiff replies That the Copy-holder by Licence first then had of the Lord did demise and did not shew what Estate the Lord had nor the place and time when it was made it s not good Per tot Cur. For the Licence is traversable for if the Copy-holder without Licence make a Lease for years the Lessee which enters by colour of that is a disseisor and a disseisor cannot maintain an Ejectione Firmae and the Defendant cannot plead That the Plaintiff by Licence did not demise for this is a negative pregnant also it ought to appear what Estate the Lord had for he cannot Lease for a longer time than he had in the
Court holden to be tryed by the Jury and not by the Rolls the same shall not be tryed by the Rolls of the Manor but by the Country and the Party may give in Evidence the truth of the matter and shall not be bound by this mis-entry of time upon the Rolls for this Entry is not matter of Record 1 Leon. 189. Burgess and Foster The Issue was upon separalis pastura Evidence to prove separalis pastura upon the Traverse of the sole Feeding the Defendants Evidence was That the Plaintiff used to Mow and provide Fodder for Winter which Per Curiam they cannot Common being to be taken per Bouch In North and Holland's Case 2 Keb. 577. If in Ejectment a Lease is pleaded of a Manor c. whereof the Tenements in which were parcel and upon this Issue is joyned Quod non dimisit manerium and the Jury upon this give a special Verdict viz. That there were not any Free-holders but divers Copy-holders of the Manor and that this was known by the name of a Manor although that this was not a Manor in Law for default of Freeholders and although this was alledged in pleading to be a Manor which pleading is made by learned Men Substance found on special Verdict and although this was in an Action Adversary and not Amicable yet for as much as an Issue is tryable by the Lay Gents and in truth the Tenements in which c. pass by the Lease this Verdict is found for him which pleads the Lease of the Manor for the substance of the Issue is whether it was demised or not M. 22 and 23 Eliz. B. R. Vines and Durham cited in 6 Rep. 77. Sir Moyle Finch's Case The Custom of neighbouring Manors good Evidence The Issue was whether Fines called Gresham Fines ab ingressu are due to the Lord till full Age and Evidence for the Defendant was That other Manors adjoyning had the same Custom not to pay till full Age and allowed 3 Keb. Champion's Case In Ejectment The Plaintiff declares of a demise made for three years and it was confessed by the Plaintiff That the Lands were Copy-hold Lands and that the Plaintiff had not Licence to demise them for three years neither could he prove by any Custom that he could demise them for three years so the Plaintiff was Non-suit and the Lessor taken for a disseisor Per tot Cur. 1 Brownl p. 133. P. 8 Jac. Cramporn and Freshwal By Rolls When proof by Court Rolls are good if Copy of Court Rolls are shewed to prove a custumary Estate the enjoyment of such Estate must also be proved otherwise the proof is not good Stiles p. 450. in Pilkington and Bagshaw's Case Copy of a Lease which the Lord had in his Hands Copy of a Lease good Evidence Special Verdict or admission on former pleading good Evidence Copy of the Roll where good Evidence whereby the Tenant had power to make Leases is good Evidence without swearing it a true Copy also the finding by special Verdict or Admission on former pleading is good Evidence unless the contrary appear 1 Keb. 720. Lee and Boothby Copy of Roll under the Stewards Hand who was Councel for the Lord Plaintiff was admitted good for the Copy-holder but contra of short Notes by way of Breviat 1 Keb. 720. Lee and Boothby The Copy-holder moved the Court Order to bring in the Rolls for his defence not granted That the Steward might be ordered to bring in the Court Rolls to enable him to defend his Title but the Court denied it Stiles 128. Who may be admitted to give Evidence The Steward Steward though he had a Fee for Admittance may be a Witness 3 Keb. Champion's Case To prove a Custom Copy-holder That a Copy-holder may cut Trees a Copy-holder that had not but a Kettle may be a Witness 2 Siderfin p. 7. The Lord may be admitted to give Evidence for the Lessee or Copy-holder The Lord. though the Court would have spared him had there been other 1 Keb. 15. Gerrard and Lister Court-Leet Books Proof of the Plaintiff Tenant of the Manor was by Court Leet Books by presentment of the Homage and not per Juratores of any certain place and so it was supplied by Witness this was in a Case of Fishing Copy of Court Roll. By consent the Jury had a Copy of Court Roll given by the Plaintiff in Evidence 1. Keb. 22. in Trowel's Case In Ejectment the Defendant pleaded a Surrender of a Copy-hold by the Hands of F. then Steward of the Manor Issue was joyned absque hoc Traverse that he was Steward ill That he was Steward Per Curiam this is no Issue for the Traverse ought to be general That he did not Surrender for if he were not Steward the Surrender is void Repleader was awarded Cro. Eliz. 160. Wood and Butts Venue Where Issue is taken upon a Surrender it shall be tryed where it was alledged to be done Note when Issue is to be taken upon a Surrender where to be Tryed and not where the Manor is of which the Copy-hold is holden Cro. Eliz. 260. Wood and Butts The Custom was alledged to be in Warfield in the Manor of Wargrave and the Venire facias was de Wargrave tantum a good Venue and need not be from both 2. Bulstr 135. Good-groom and Moor. For the Issue being whether within the Manor there be such a Custom the Venue shall be only of the Manor and Warfield being parcel of the Manor shall be intended to be within it Cro. Jac. 327. Custom for Common was alledged to be as to half an Acre of Land Copy-hold parcel of the Manor of Buckland in Buckland and the Venire was de vicineto Manerij its ill for the Manor being alledged to be the Manor of Buckland in Buckland the Venire facias ought to have been from Buckland and a Venire de novo awarded Cro. Jac. p. 302. Mortimer and Pettyfer The Issue was whether the Copy-holder in one Town had Common in Land lying in another Town Exception was to the Tryal because the Venire was not of both Villages 1 Brownl 41. CAP. XXXIV Of Special Verdict Imperfect Custom not well found Failure of Prescription Finding directly not argumentatively How the Custom must be found by the Jury Substance found Verdict aided Presidents of special Verdict THE Jury find quoad parcel tenementorum Quoad parcel and shew not what and nothing for the residue the special matter and they did not shew what parcel and they found nothing for the residue and the Verdict was held to be ill for both and a Venire facias de novo awarded Cro. Jac. 31. Anselm's Case Special Verdict upon the Custom of the Manor of Toddington That any Copy-holder might Surrender out of Court into the Hands of two Tenants Copy-holders of the Manor c. The Copy of the Surrender found in haec verba Toddington in the Margent
c. is but a Conveyance to his Title and for that it was found that it was demisable in Fee and that it was demised unto him in Fee this is the substance of his Title and so sufficient Cro. Eliz. p. 431. Doyle and Wood. In Eject Fir. If the Jury find a special Verdict That J. S. was seized of the Manor of D. in his Demesn as of Fee in which Manor was a Copy-holder of the place where c. and commits Waste by cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters in the Manor in the place where c. for the said Forfeiture and was of this seized in his Demesn as of Fee and concludes si super totam materiam c. This is not a good Verdict because it is not found that J. S. died seized of the Manor and that this descends to the Lessor Seisin and descent as Cousin and Heir as his Cousin and Heir for it may be that J. S. aliened the Land and that the Father of the Lessor or the Lessor himself re-purchased this and that he was also Cousin and Heir to J. S. and although it be in a Verdict it shall not be intended that the Fee continued in J. S. at the time of his death and that he died thereof seized without finding it 2 Rolls Abr. 699. Cornwallis and Hammond Part found the Issue upon the whole not good In Replevin The Defendant justifies by reason of Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties are at issue and it is found that part of the Beasts were Levant and Couchant and part not this is found for the Defendant for the whole for the issue was upon the whole and the contrary is found 2 Rolls Abr. 707. Sloper and Allen. Presidents in Special Verdicts Quod Tenementa sunt custumaria dimissibilia per Copiam dimissio per Dominum ex traditione propria 1 Rep. 117. Chudleigh 's Case Sursum redditio admissio in feodo Co. Entr. 207. Simile in Tallio communis recuperatio inde Co. Entr. 206. Tenementa concessa per copiam la A. B. super vixit Co. Ent. 273. Consuetudo infra manerium de devisatione devisatio in haec verba Co. Ent. 124. Littera Attornat ' ad sursum reddend ' tenementa custumaria sursum redditio admissio superinde Coke Entr. 576 577. Et si sit sufficiens in Lege Manerium Tenementa ab antiquo discendebant 2 percenariis qui fecer ' partitionem de terris dominicalibus ac Tenementa Custumaria servitia remanser ' in communi Coke Entr. 711. Officium Seneschalli manerij execut ' per deput ' contentio inter 2 Seneschallos de Cur. Baron Tenend 9 Rep. 45. In Ejectment Jury find that the Lands are demisable by Lives in possession or reversion and that the Widow in possession held the Lands so long as she remained sole and chaste and that M. C. Widow was seized for Life durante viduitate the Lord grants the Reversion of the said Lands by Copy to R. C. the Son of M. for Life to commence after the death forfeiture or surrender of M. M. surrenders one moiety of the Premisses to R. The Lord dies discent of the Manor to C. S. his Cousin and Heir R. Tenant for Life of one moiety and M. Tenant in Free-Bench of the other moiety the Lord by Indenture demiseth to the Lessor of the Plaintiff for 99 years if he and J. and B. his Sons shall so long live to commence after the death and determination of the Estates of the said M. and R. and of the viduity of such person as shall be his Wife at the time of his death M. surrenders her moiety to R. R. dies seized of both moieties P. C. the Defendant his Wife is admitted she commits Fornication and had a Bastard Jury find the entry of the Lessor If the Lease shall commence before P. dies was the Question Winch Ent. 455. Jury found that the Messuage and Lands tempore quo c. tempore hors memory were custumary part of the Manor of B. a Prebend of S. demisable by Copy of Court Roll for one two or three Lives and that by the Custom of the Manor every Tenant for Life sole seized of any customary Estate for Life in possession may nominate one to succeed him to be Tenant to the Lord for Life and that the party nominated used to require his Admittance and pay such Fines as were taxed by the Homage Another Custom was That every customary Tenant sole seized in possession may cut Timber Trees c. and that Mason the Defendant being Copy-holder for Life 1 May 40 Eliz. named R. P. to be his succeeding Tenant They also find that Robert P. being Prebendary of the said Prebend and seized in Fee of the said Manor 20 March 40 Eliz. demised by Indenture the Manor of B. to Peter Hoskins for three Lives and by the said Indenture Bargains and Sells to him all the Timber Trees c. by which Indenture is a Letter of Attorny to make Livery and they find the Indorsement on the Indenture to this effect Midd. That J. B. one of the Attornies entred into part and made Livery Midd. That J. G. the other Attorny entred into part and made Livery The Livery made in the House of the Lord was Endorsed but it is not mentioned to be part of the Manor The Jury find the entry of Peter Hoskins and seisin for three Lives according to the Lease which aids the other Imperfections Verdict aided 1 Jan. 43 Eliz. Peter Hoskins demiseth to J. Hoskins Masons Tenement and Lands for 99 years March 3 Jac. Mason continuing customary Tenant for Life after his nomination aforesaid cut down 20 Trees off his Copy-hold upon which J. Hoskins 6 Jac. entred upon the Land and demised to the Plaintiff who enters upon Mason who re-enters and if his re-entry be lawful they find for Mason After non-suit one of the Defendants was dead this suggestion must be entred on the Roll. and if not lawful they find for the Defendant Winch Ent. 440. Rowls and Mason In Ejectment to try the Custom of E. of Copies for three Lives the Plaintiff was non-suit and one of the Defendants being dead Hales Chief Justice advised to enter a Suggestion on the Roll That one was dead or else the Judgment for the Defendant on the non-suit will be erroneous as to all 2 Keb. 832. Hawthorn versus Bawden CAP. XXXV Copy-holders relieved in Chancery or what things in respect of Copy-hold Estates are relievable in Chancery or not NOW I conceive it will not be impertinent but rather a thing well approved of to cite some Cases Resolutions and Decrees wherein Copy-holders have been relieved and what remedy the Chancellor will give in respect of Lords
surrendred all the three Lives and though it was not a Copy-hold in Fee yet it was decreed That the Agreement should be performed and that the Defendant do Surrender to the Plaintiffs Use and an Injunction for quiet enjoyment A Woman Copy-holder for Life took an Husband and the Reversion of the said Copy-hold was granted to three viz. A. B. C. cum acciderit by Surrender or Forfeiture for their Lives successive according to the Custom The Husband doth Surrender to the Use of A. for Life to whom the Lord doth grant a Copy accordingly A. and B. dye and the Opinion of the Court was That C. hath no right to be admitted by the Law nor in Conscience for that after the death of the Husband the Wife may enter and have a Plaint in nature of a Cui in vita contradicere non potest and during the Husbands Life the Lord may have it in the nature of an Occupancy But the Case did proceed farther viz. That the Husband and Wife were willing to release all the Right of the Wife to the surviving Reversioner The Lord Decreed to hold a Court. and the Lord would not receive it nor hold a Court But it was decreed That the Lord should hold his Court and accept their Conveyance or else avoid the Possession thereof Dyer 246. a. Copy-hold Estate in some cases not to be passed but by Decree Where the Lord grants the Reversion of the Copy-holds the Tenant cannot Surrender there being no Dominus servitiorum as the Custom will warrant and he cannot pass his Estate any way but by a Decree in Chancery and this will bind the person only 4 Rep. p. 25. in Murrel's Case vide supra Fines and Rents arrear not relieved after Sale of the Manor Copy-hold Tenant in Fee surrenders to the Use of one for Life Remainder to B. in Fee Tenant for Life dies and B. pays no Fine for his Admittance but after dies and this descends to his Son and after his Son surrenders to the Use of J. S. in Fee and no Fine paid for it and also the Rents for divers years are behind and after the Lord grants the Manor in Fee to J. B. and after sues in a Court of Equity for the Fines and Rents due before the Sale of the Manor and alledgeth in his Bill That the Copy-holder had Free Land intermixed with the Copy-hold Land so that he could not know where to Distrain for it yet he shall not be relieved in Equity for this for it is against a Maxim in Law for as much as by his own Act he had destroyed his Remedy P. 10 Car. B. R. Serjeant Hicham Plaintiff and Finch and Block Defendants and a Prohibition was granted to the Court of Requests where the Suit was Gold versus Dore Martis 23. Oct. 2 Jac. The Plaintiff delivered to the Defendant an 100 l. to buy a Copy-hold in the Defendants Name but to the Plaintiffs Use because there were differences between the Lord of the Manor and the Plaintiff so as the Plaintiff had no hopes to prevail for himself and when the Copy-hold should be obtained then the Trust was That the Defendant should Surrender the same to the Use of the Plaintiff The Defendant accordingly bought the Copy-hold Trustee refusing to surrender according to his Trust not relieved and took it in his own name and his Childrens but afterwards would not surrender it to the Use of the Plaintiff notwithstanding the same was bought with the Plaintiffs mony for this the Plaintiff Exhibited his Bill in Chancery and this appearing to be the true state of the Case my Lord would not relieve the Plaintiff because he said he would never ground a Decree upon a Lye a Falsity it appearing to him that this packing was used to thrust a Tenant upon the Lord whom he liked not and so dismist the Cause Tracy versus Noel M. 2 Jac. Copy-holder in Fee takes a Lease the Manor is sold Copy-holder not relieved though the Purchaser had notice A Copy-holder of Inheritance took a Lease for years of his Copy-hold from the Lord of the Manor the Lord sold his Manor to J. S. who had notice of this Copy-hold of Inheritance yet would not this Court relieve the Copy-holder his Lease being ended for by Law his Copy-hold Estate is determined Robes Purchased the Inheritance of a Copy-hold in the Name of B. and another in Trust B. surrendred his moiety to the Use of his own Son and the other died seized The Son of B. and the Heir of the other for mony sold the Copy-hold to C. for 50 l. being of the value of 80 l. Robes sued the Son of B. and the Heir of the other and C. in Chancery for the 80 l. It was decreed That A. should recover this 50 l. only from B. and the Heir of the other No Recompence for the over-value of an Estate because no Fraud and C. should be discharged of it and hold it in peace But if notice had been proved in C. Robes shall have the Land and no recompence for the over-value was given against the Vendors because no Fraud Moor Rep. n. 745. Kobes Bent and Cock's Case Copy-hold devised without Surrender executed by Decree in Chancery A Copy-hold devised without Surrender it cannot be executed in point of Interest but only by Decree in Chancery by a Concessum in 2 Keb. 837. Harrison's Case A Copy-hold granted out of a Manor confirmed Court Rolls produced A Copy-hold granted at a Court kept out of the Manor confirmed against the Lord who made it Tothil 107. Mark contra Suliard In Corbet and Peshal's Case 12 Jac. it was Ordered That Court Rolls should be brought and shewed to Councel to shew which is Copy-hold and which is Free-hold Composition Decreed Sterling's Case a Composition formerly made between Lords and Tenants Decreed to bind a Purchasor or an Heir 9 Car. Bill in Chancery to reverse a Faux Judgment in the Lords Court If an erroneous Judgment be given in a Copy-hold Court of a common Lord in a Formedon a Bill may be exhibited in Chancery in nature of a Faux Judgment to reverse it Pateshull's Case in Scaccario 1 Rolls Abridgment 373. Admission by Letter of Attorny Copy-holder ought not to be admitted to a Copy-hold Estate by Letter of Attorny for he ought to do Fealty at the time of his Admittance which must be done in person 21 Car. 2. Flyer and Hedgingham Fines certain or not having been tryed at Law no farther Relief here Smith contra Sallet 24 Car. 2. Fines of Copy-holders whether certain or arbitrary it having been tryed at Law and in two Tryals Verdict for Fines certain This Court would not relieve the Plaintiff other than for the preservation of Witnesses and so dismist the Plaintiffs Bill it being to have an Issue directed to try whether certain or not Morgan versus Scudamore 29 Car. 2. The Lord limitted to a
two years full value for a Fine The Lord was limitted to a two years value for a Fine though the Fines were Arbitrary and the Custom was to renew but every 99 years but the Copy-holders decreed to renew their Estates within one year after the Term. Barker contra Hill 33 Car. 2. Heir Decreed to surrender upon a Contract with the Ancestor Surrender by Infant of five years old Upon a Contract for Copy-hold Estate and Purchase-mony paid the bargainor dies before Surrender his Heir decreed to Surrender Nayler contra Strode The Surrender of a Copy-hold Estate by an Infant of 5 years old allowed by this Court Precedents in Chancery A Bill for the quieting the possession of a Copy-holder where the Copies and Court Rolls are lost and to have Witnesses examined Conveyancers Light 258. A Bill for entring and detaining Copy-hold Lands by reason of the detaining the Writings thereof Wests Presidents Edit 1647. PRESIDENTS c. A Settlement before Marriage of a Copy-hold Estate where according to the Custom of the Manor there is a dead Year after the death of every Tenant grantable by the Tenant in his Life-time and his Widow enjoys the Estate durante castitate if he surrender or alien it not in his Life-time with permission That the Goods of the Wife shall remain at her disposal and that her Husbands Name may be made use of to sue for her Debts but the Monies to be secured by the Trustees to her Use THIS Indenture Tripartite made c. between M. F. of c. Widow late Wife and Relict of E. F. late of c. Gentleman deceased on the first Party and T. S. of c. Gentleman on the second Party and E. L. of c. Gentleman T. B. of c. J. B. of c. Gentleman on the third Part. Whereas the said M. is now possessed in a personal Estate of Mony Debts owing by Bond and Securities and otherwise above the value of 300 l. and of Goods Chattels and Utensils of Houshold Stuff according to the Inventory or Note of particulars hereof hereunto annexed expressed And whereas the said T. S. is now seized in possession of a Copy-hold Estate of Lands and Tenements for term of his Life lying and being in S. within the Manor of W. in the said County of c. of the yearly value of 40 l. or thereabouts by vertue of a Copy of Court-Roll and Grant of the said Copy-hold Premisses by R. B. then Serjeant at Law at a Court of the said Manor of him the said R. B. holden the _____ day _____ in the year _____ as by the said Copy under the Hand and Seal of him the said R. B. and subscribed by S. F. his then Steward appeareth unto which Copy-hold Premisses there is a dead year belonging according to the Custom of the said Manor after the death of the Tenant thereof dying seized in possession disposable by such Tenant in his Life-time or else to be enjoyed by his Executors or Administrators And whereas also by the Custom of the said Manor the Wife of such Tenant if she survive him is to hold and enjoy the said Copy-hold Estate during the time of her Widowhood keeping her self chast And whereas a Marriage is intended to be had and solemnised between the said T. S. and the said M. F. It is agreed between all the said Parties to these presents and the said T. S. for himself his Heirs Executors and Administratrators doth Covenant Promise and Grant to and with the said E. L. T. B. J. B. and J. P. and to and with every of their Executors and Administrators That he the said T. S. shall not and will not surrender yield up or make void the said Copy-hold Estate whereby she the said M. may be defeated of her Widows Estate in the same Copy-hold Premisses after the death of him the said T. S. if the said Marriage take effect and in case she shall him survive And also the said T. B. doth hereby Grant to the said E. L. T. B. J. B. and J. P. and the survivor of them the dead year of the said Copy-hold Premisses to hold to them and the survivor of them immediately from and after the death of him the said T. S. in Trust for her the said M. in case the said Marriage take effect and she survive him the said T. S. And the said T. S. doth also Covenant Grant and agree to and with the said E. L. T. B. J. B. and J. P. and to and with every of them their and every of their Executors and Administrators That he the said T. S. his Executors Administrators and Assigns shall not intermeddle with claim That he will intermeddle with no more of the Wives Estate then 300 l. take or dispose of any other the aforesaid Estate Personal Mony Goods or Chattels of the said M. saving only the sum of 300 l. in mony and no more but that the said T. S. shall be contented and satisfied with the aforesaid sum of 300 l. in mony and no no more as a full Marriage Portion to him with the said M. if the said Marriage shall take effect That she may dispose of it by Will c. And that the said M. shall have full power by her last Will or otherwise to dispose of all or any the rest of her Estate to any other person or persons other than the said T. S. without any contradiction of him the said T. S. to hinder or let the same And the said M. F. by and with the consent of the said T. S. as well in consideration of c. to her paid by the said E. D. T. B. J. B. and J. B. or one of them as also to preserve the Interest and Property of all and singular the Goods Chattels and Implements of Houshold now of her the said M. in the Schedule or Note of particulars thereof hereunto annexed specified so that he the said T. S. may not have any power or disposal of them She the said M. hath given granted bargained and sold and doth hereby give grant bargain sell and deliver unto the said E. L. T. D. J. B. and J. P. their Executors Administrators or Assigns all and singular the said Goods Chattels and Implements of Houshold To have and to hold to them their Executors Administrators and Assigns for ever And the said T. S. for himself his Heirs Executors and Administrators doth Covenant Promise and Grant to and with the said E. L. J. B. T. B. and J. P. and to and with every of them their Executors and Administrators That whereas she the said M. hath divers sums of Mony owing unto her upon Bonds Specialties and otherwise above the sum of 300 l. That for recovery of the said Debts if need require he the said T. S. shall permit and suffer the Trustees aforesaid The Husband to permit Trustees to make use of his name to sue for his Wives Debt or any Attorny or
due for Admittances of the said I. G. or his Heirs into the said Copy-hold Lands unto the Lords of the said Manors respectively And that he the said A. B. and his Heirs from time to time and at all times hereafter within the space of seven years next ensuing the date hereof c. at and upon the reasonable Request and proper Costs and Charges in the Law of the said I. G. his Heirs or Assigns shall and will make and do all and every such farther and other lawful and reasonable acts and things for the farther better and more perfect assuring and conveying all and singular the said Copy-hold Lands and Tenements and all other the Copy-hold Lands of the said A. B. in the County of S. to or to the Use of the said I. G. his Heirs or Assigns or by his or their Councel learned in the Law shall be reasonably devised or advised and required And that at the time of such Surrender or Surrenders or other Assurance or Assurances to be made of the same Copy-hold Lands and Premisses all and singular the said Copy-hold Lands and Premisses so to be surrendred or otherwise conveyed as aforesaid shall be free and clear and freely and clearly and absolutely acquitted freed and discharged of and from all former Surrenders and Forfeitures and other Incumbrances whatsoever had made done or wittingly and willingly suffered by him the said A. B. or by any other person and persons whatsoever one Lease made by the Licence of the Lord of the Manor aforesaid to K. F. c. of c. of one Copy-hold Messuage c. excepted A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time This Indenture made c. between Sir T. D. of P. c. of the one part and I. H. of c. of the other part Witneseth That whereas the said Sir T. D. hath now lately surrendred into the Hands of the Lord or Lords of the Manor of W. in the said County of S. by the Rod according to the Custom of the said Manor by the Hands and acceptanc of R. C. and E. M. two of the customary Tenants of the said Manor all that Messuage c. To the Use of the said I. H. his Heirs and Assigns to hold according to the Custom of the said Manor with a proviso and upon condition That if the said Sir T. D. his c. shall and do well and truly pay or cause to be paid c. at c. then the said Surrender to be void and of none effect as by a Note or Memorandum of the said Surrender taken out of the Court the day of the date hereof relation c. more plainly appeareth Now the said Sir T. D. doth for himself his Heirs Executors and Administrators Covenant c. to and with the said I. H. his Executors and Administrators by these presents to pay the Mony at the day and place and in manner and form in the said Proviso or Condition of the said Surrender before recited limited and appointed for the payment thereof And farther also That the said Sir T. D. at the time of the making of the said Surrender before recited had a good Estate of Inheritance in Fee-simple according to the Custom of the said Manor of W. of and in all and singular the said Messuages c. before mentioned to be surrendred and had good right and lawful and absolute power and authority in himself to surrender the same and every part thereof unto the said I. H. and his Heirs in manner and form aforesaid and that the same are free from all former Surrenders and Incumbranses whatsoever In default of payment I. H. and his Heirs to enjoy the Premisses for ever After default in payment Sir T. D. covenants for farther Assurance be it by Fine or Recovery according to the Custom of the said Manor Surrender Release or Confirmation or all or any of the said wayes or means in the Law whatsoever as by the said I. H. his Heirs or Assigns or his or their Councel learned in the Law shall be reasonably devised advised or required Till default of payment I. H. to permit and suffer Sir T. D. to enjoy c. A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts This Indenture c. Between A. B. c. the Commissioners of the one part and C. D. c. Assignees of the other part Whereas the King and Queens Majesties Commission under the Great Seal of England grounded upon the several Statutes made concerning Bankrupts bearing date at Westminster the day of c. last past hath been awarded against E. F. of c. and directed to the said Commissioners thereby giving full power and authority unto the said Commissioners four or three of them whereof the said A. B. and P. B. to be one to execute the same as by the said Commission more at large appeareth And whereas the Commissioners parties to these presents or the major part of them or the major part of the Commissioners by the said Commission authorized having begun to put the said Commission in Execution upon due examination of Witnesses and other good proof and upon Oath before them taken do find That the said E. D. hath for the space of six years last past or thereabouts used and exercised the Trade and profession of a c. in buying and selling of c. at his House and Shop in S. aforesaid and sought and endeavoured to get his living by buying and selling And that the said E. F. so seeking and endeavouring to get his living by buying and selling during the time of his said Trading did become justly and truly indebted and still doth owe and stand indebted unto the above-named C. D. and other his Creditors in the sum of c. and being so indebted he the said E. F. did in the judgment of the said Commissioners parties to these presents become Bankrupt to all intents and purposes within the compass true intent and meaning of several Statutes made concerning Bankrupts or within some or one of them before the date and suing forth the said Commission And whereas also the said Commissioners parties to these presents or the major part of the Commissioners by the said Commission authorized having also found out and discovered that he the said E. F. at the time and since he became Bankrupt was and stood seized to him and his Heirs according to the Custom of the Manor of L. in the County of L. of and in c. All which Copy-hold or customary Premisses the greater part of the above-named Commissioners by the said Commission authorized have caused to be viewed and rented and the same to be appraised to the best value they can or may and accordingly the same have been viewed rented and appraised by R. S. and T. V. men of sufficient skill and ability for the doing thereof in manner and form following that is to say
Seigniory as suppose he is only for Life and he licenseth for 21 years and dies it s determined 2 Brownl 40. Petty and Evans In Ejectment The Defendant pleaded a Surrender of a Copy-hold by the Hand of F. then Steward of the Manor Issue was joyned absque hoc that he was Steward Per tot Cur. it s no Issue Pleading a Surrender how for the Traverse ought to be general that he did not surrender for if he were not Steward the Surrender is void So of a Surrender pleaded into the Hands of the Tenants of the Manor Cro. El. p. 260. Wood and Butts Pleads Prescription to be discharged of Tythes Copy-holders of Inheritance who held of a Bishop as of his Manor may prescribe That the Bishop and his Predecessors seized of the said Manor for themselves their Tenants for Lives Years and Tenants by Copy of Court Roll of the said Manor time out of memory c. have been discharged from payment of Tythes for their Lands parcel of the said Manor for this is a good Prescription for their Tenements are parcel of the Demesns of the Manor and this may commence upon a real composition of all the Manor 1 Rolls Abr. 652. The Case was thus A Parson sues a Copy-holder in the Spiritual Court for Tythes arising upon the Copy-hold Land he brought his Prohibition and suggests that the Bishop of Winchester Lord of the Manor whereof his Copy-hold is parcel and his Predecessors c. time out of memory c. for them their Tenants and Farmers have been discharged of Tythes arising upon the Manor and shews that he had been Copy-holder of the said Manor time out of memory c. and prescribes in his Lord the Bishop of Winchester's Name the Spiritual Court would not allow this Plea but Per Cur. a Prohibition was granted although here be a Prescription upon a Prescription Prescription upon a Prescription one in the Copy-holder to make his Estate good the other in the Bishop to make his Discharge good yet it was allowed for all Copy-holds are derived out of the Manor and it shall be intended That this Prescription had its commencement at such time when all was in the Lords Hands and the one Prescription is not contrariant to the other although both were from time whereof c. Prescription in the Lord ought of necessity to precede the Prescription in the Estate of the Copy-hold and the discharge of Tythes in the Lord which may well be in this case because he is a Spiritual person trenches to the benefit of the Tenant who is a Copy-holder for by this means it may be presumed that the Lord had greater Fines and Rents Yelv. 2. Croucher and Fryar which case is more largely Reported by Cro. El. 784. Otherwise a Copy-holder which is a Temporal person cannot prescribe in non decimando Prohibition granted out of B. C. against the Ordinary of G. and one Branch the surmise was That the Land out of which the Tythes were demanded is Copy-hold parcel of a Manor of which a Prior was seized in Fee and was also Parson imparsonee Union by which Union the Tythes were extinct Per Cur. the surmise is not good and a Consultation was awarded it was no good Prescription to discharge the Tythes Moor Rep. n. 356. Branches Case A Prohibition prayed upon a surmise that the Dean and Chapter of C. seized of the Manor and Rectory of M. and one G. a customary Tenant prescribes That every Tenant of his Tenement hath used to pay 3 s. 4 d. to the Lord who is also a Parson in discharge of his Rent and a fourth part of the Tythe of B. Per Cur. it s no good Prescription for the Parson cannot libel for the Rent nor the Lord for the Tythe Uncertain and non constat what each should have and the Parson must have a satisfaction or else there can be no discharge 1 Keb. 886 906. Wilkinson and Richardson Traverses Traversing the day of the Grant In Ejectment The Defendant entitles himself by Copy granted 44 Eliz. The Plaintiff by Replication intitles himself by Grant 1 June 43 Eliz. The Defendant maintains his bar and traverseth absque hoc that the Queen 1 June 43 regni sui granted the Land by Copy modo forma prout c. This Replication is not good for the day and year of granting the Copy is not material but only whether it were granted before the Copy made to the Defendant therefore he ought to have traversed absque hoc That the Queen granted modo forma prout c. and this is matter of substance and not aided the traversing of the day where it ought not is matter of substance for thereby he makes it parcel of the Issue which ought not to be Cro. Jac. 202. Lane and Alexander 1 Brownl 140. mesme Case In Ejectment The Defendant pleads the Land is Copy-hold parcel of the Manor of S. whereof the King was and is seised who by his Steward granted the same such a day to him in Fee Habend c. by vertue whereof he was admitted entred and was seized and so justifies The Plaintiff replies That long before the King had any thing in the Manor Queen Elizabeth was seized in Fee in Jure Coronae who by her Steward at such a Court granted the Land in question by Copy to him in Fee Habend c. secundum consuet c. who was admitted and entred Confessing and avoyding Per Cur. the Replication is good and the Plaintiff need not Traverse the Grant alledged in the Bar by the Defendant for the Plaintiff hath confessed and avoided the Defendants Title by a former Copy granted by Queen Elizabeth and so need not traverse and as no man can have a Lease for years without assignment no more can a man have a Copy without a Grant made in Court Cro. Jac. p. 299. Rice and Harrison 1 Brownl p. 147. mesme Case The Plaintiffs Replication is good without any Traverse for how can the Defendant have this when as the Plaintiff had it before as by his Replication appears for that his Lease being first in time avoids the Defendants Lease being the latter and therefore the Defendant in this case ought to have rejoyned and so to have traversed the first Lease but by his Demurrer to the Replication he hath confessed the Lease under which the Plaintiff claims mesme Case 2 Bulstrode p. 1. 6 Rep. Helliar's Case A man pleads a descent of a Copy-hold in Fee the Defendant to take away the descent pleaded That the Ancestor did Surrender to the Use of another Traversing the dying seized absque hoc That the Copy-holder died seized Per Cur. the Traverse is ill because that he traversed that which needed not to be traversed for being Copy-hold and having pleaded a Surrender of it Difference between that and at Common Law the Party cannot have it again if not by Surrender But if a man plead