Proofs.

Vide Mr. Littleton, in his Chapter ofLitt. 15. b. Book of En­tries, 131. acc. Tenant by Copy, &c. fol. 15. Ad hanc Curiam venit A B, & sursumreddidit in eadem Curia in manus Domini, &c. unum Messuagium, &c. ad usum C D. & haere­dum suorum, &c.

But if the Surrender be made in Court into the hands of the Lord or his Steward, it must be to such a person or his Use who is in esse and capable of such a Sur­render, or that may take Presenty by force of the Surrender; otherwise such Surrender, though it be an Actual Sur­render made in the Court of the Manor to the Lord or Steward himself, is not good.

A Copy-holder in Fee surrendred [Page 3] his Copy-hold-lands into the hands ofH. 7 Jac. B. R. Simp­son and So­thern's Case. H. 17 Jac. in B. R. Bambridge and Whit­ton's Case acc. the Lord of the Manor, Habendum after his decease to the Use of an Enfant in Ventre sa mier, and if the said Enfant died within age, then to the Use of J S and his Heirs. In this Case these Points were Resolved. 1. If a Copy-holder in Fee doth surrender his Copy-hold-lands into the hands of the Lord, to the Use of him­self and his Heirs, That in that Case, be­cause the Limitation of the Use to him who had it before was void, the Surrender thereof to the Lord himself was also void. 2. That the Surrender made to the Enfant in Ventre sa mier was not good as an im­mediate Surrender, and to take effect im­mediately, as the intention of the Surren­derer was it should, because it was of a Free-hold, which could not begin at a day to come.

But yet Quere, If the Surrender be made into the hands of the Lord, to the Use of the right Heirs of the Surrenderer,Vid. P. 30 Eliz. Allen and Palmer's Case. Leon. part 1. 101. if the Lands shall not continue in the hands of the Lord till the death of the Copy-holder who made the Surrender, for the Court doubted of it, Pasc. 30 Eliz. in Allen and Palmer's Case.

A Surrender being then by the Copy-holder [Page 4] himself, in the Court of the Ma­nor, to the Lord, of his Copy-hold or Customary Lands; if then, upon the very Act done, the Estate be in the Lord, or in the Surrenderer, or in whom it resteth, re­maineth a Doubt. For Resolution there­of, I humbly conceive the Law to be, and so it hath been Resolved, That not­withstanding such a Surrender made, yet the Estate remaineth in the Copy-holder who surrendreth, and is not in the Lord, or in any other person whatsoever. But in case where the Copy-holder doth sur­render his Copy-hold in the Court of the Manor to the Use of the Lord himself, (which he may doe) there, by such a Surrender, the Land is immediatly vested in the Lord without any other Act done or required, because the Lord cannot take a Surrender, as to make thereof an Ad­mittance unto himself.

And to that purpose Vide Erish and Rive's Case, where it was Resolved, ThatVid. Cro. part 1. in Erish and Rive's Case, acc. if a Surrender be made by a Copy-holder of his Copy-hold-lands into the hands of the Steward of the Manor to the Use of the Steward himself, that Surrender is good without any farther Act, for the rea­son aforesaid.

Having thus shewed what will be a good Surrender of Copy-hold or Custo­mary Lands by an actual Surrender in the Court of the Lord of the Manor, I shall now consider

Proofs.

If a Copy-holder bargains and sells his Copy-hold by Deed of Bargain and Sale enrolled, though it be to the Lord of the Manor himself, it is void, and shall not a­mount to a Surrender.

If Tenant for life of Lands at the Com­mon Law agrees with his Lessor, or him in the Reversion, that he shall have his Interest in the Land for the Rent of 20 s. per annum; this Agreement will not a­mount to a Surrender of his Land by the Common Law. A fortiori, If a Copy-holder, or other Customary Tenant, shall say to his Lord, or other person in the Court of the Manor, I agree to surren­der my Lands; these words will not be a present or an express Surrender, nor will they amount to so much as a Relinquish­ing of his Estate: for in truth it is not any thing in present, but an Act to be done in futuro: Like unto the Case put by Wray Tr. 31 Eliz. in B. R. Sweeper and Randall's Case, Leon. 1 part, 178. Chief Justice; A seised of the Manor of D demiseth the same Manor at will; that it is no Lease. No more in the other Case shall it be a Surrender, or a Relin­quishing of his Copy-hold or Copy-hold-estate. But yet notwithstanding it will be agreed that in some cases an express and particular Agreement made by a Copy-holder with the Lord of the Manor for or concerning his Copy-hold-lands will amount to a Surrender of the same.

The Case was, That the Lord of a Manor, pretending that a Copy-holder [Page 7] had forfeited his Copy-hold-lands, entredM. 32 Eliz. in Ce [...] B. Collam and Sir Hugh Portman's Case, Leon. 1 part, 191. into a Communication with the Copy-holder concerning the same: Upon the Communication thereof had betwixt them, it was agreed, that the Copy-hol­der should pay unto the Lord the summe of 10 l, which he paid accordingly; and that in consideration thereof, the Copy-holder should have Election, whether he would have the Land assured unto him by Copy or by Bill, for the life of him and his Wife, or durante viduit ate of the Wife: who made his Election to have the Land by Bill. It was the opinion of the Ju­stices in that Case, That this Agreement was a good Surrender of the Lands, and a good Estate thereupon vested in the Wife for her life.

A Copy-holder in Fee came into theM. 13 Jat. B. R. Betfield and Adams Case. Court of the Lord of the Manor, and took a new Estate of his Copy-hold-lands from the Lord to himself for life, and afterwards to his Wife for life, and after to his Son for life. It was a Que­stion, whether this Act of the Copy-hol­der was the giving up and the relin­quishing of his Estate of Inheritance in his Copy-hold, and did amount to a Sur­render of his old Estate therein. It was [Page 8] agreed in this Case, That if a Copy-holderVid. 29 Eliz. Co. 2. part, Lanc's Case. of Inheritance takes a Lease by Indenture for years of the Lord of his Copy-hold, that by that Act of his his Inheritance in his Copy-hold is gone and determined. But it seemed to be the better opinion of the Court, That although that this ta­king of a new Estate shall imply a Sur­render, and be accounted as to some pur­pose to amount to a Surrender; yet in the judgment of Law it shall be but as a Sur­render to his Use for life, and after to his Wife and Son for their several lives, and that still the Inheritance of the Copy-hold remains in him. But Quere this Case. For that H. 36 Eliz. in Co. B. Rot. 2640. in Adams and Shepheard's Case, it seem­eth to be adjudged to the contrary.

A Copy-holder said to his Lord, thatVid. Colman and Bedil [...]'s Case, An­derson's Re­ports 199. acc. he would not hold his Land longer by Co­py, but by a Bill under the Lord's hand for his life, who made him such a Bill, which the Copy-holder accepted of. It was agreed by the Justices in that Case, That thereby his Copy-hold was deter­mined.

Proofs.

If the Under-steward hold a Court2 E. 6. Br. Tenant per Copie 26. within the Manor, and grants Copies by Court-Roll, without the authority of the Lord or of the high Steward, the Grants are good. But contrary it is, if he doe it out of Court, as it seemeth. And there it is a Quere, if the high Steward out of Court may grant Lands by Copy. But it is clearly holden, that he cannot admit a Copy-holder upon a Surrender out of Court, without a special authority from the Lord so to doe.

A Deputy-steward may take a Sur­render19 Eliz. in Co. B. out of Court, if the Office be granted to the Steward and his sufficient Deputies, or to be exercised by him and his sufficient Deputies; as it was Resolved 19 Eliz. in the Court of Common-Pleas.

The Lord of a Manor may retain a8 Eliz. Dyer 248. Steward by Word, and such a Retainer shall be good untill he be discharged, and such a Steward may take a Surrender out of Court, as it is holden in Coke 4. part, in the Lady Holcroft's Case. And so wasCo. 4. part, Holcroft's Case. it Resolved Tr. 41 Eliz. in Harris and [Page 12] Jaye's Case in B. R. But Quere of the firstVr. 31 Eliz. C. B. Bl [...] ­grave and Wood's Case, Godb. 142. Point. For that Tr. 31. Eliz. in Co. B. in Blagrave and Wood's Case, the opinion of the Justices was, That a Surrender to a Steward who was by word onely, out of Court, was not good.

In 17 Eliz. in Co. B. it was said byM. 17 Eliz. in C. B. by Dyer and Mounson. Dyer and Mounson, That without a Pre­scription a Surrender of Copy-hold-land could not be out of Court, nor an Admittance out of Court, neither to the Lord himself nor to his Steward. But in divers places it is used by Custome so to be. And then and thereupon the doing of Fealty and the paying of the Lord's Fine shall be presented by the Homage to be done at the next Court. And all these things they said are to be done by Cu­stome. And in that Case it was said by the Lord Dyer, That a Surrender out of Court might be to the Lord himself, to go by the way of Extinguishment.

A Copy-holder in Fee did, according to the Custome of the Manor, surrender his Copy-hold-lands into the hands of two Tenants; but the Surrender was to the Use of J S, to take effect immediately after his death. In this case it was Resolved, That as unto the Surrender into the hands [Page 13] of two Tenants, that might be good, al­though it was out of Court, by Custome. But because in that Case the Surrender was unto the Use of J S, to take effect im­mediately after the death of the Surren­deror, and a Free-hold cannot begin in futuro, or at a day to come, by the Com­mon Law, and for that the Estates of Co­py-holders shall be directed according to the Rules of the Common Law; for that cause onely the Surrender was holden to be void.

But although a Surrender out of Court may be good into the hands of Tenants of the Manor by Custome; yet untill such Surrender be presented by them in the Court of the Lord of the Manor, the E­state of the Lands doth remain in the Surrenderor, and nothing passeth thereby.

A Copy-holder in Fee did surrenderM. 14 Jac. B. R. Fros­well and Welshe's Case, Bridg­man 52. into the hands of two Tenants, according to the Custome, to the Use of A and B, who thereupon entred into and upon the Lands, and paid the Rent to the Lord; but before any Court was kept for the Manor, the Tenants to whom the Surren­der was made, as also the Copy-holder the Surrenderor, all of them died, and thereupon the Heir of the Copy-holder [Page 14] Surrenderor entred upon the said A and B, and made a Lease for years of the Lands, which Lease was warranted by the Custome. In that Case it was Resolved, That the Lease for years was well made, because that before such time that the Presentment was made in Court of the Surrender, the Interest of the Copy-hol­der did remain in the Surrenderor, and his Right descended unto and upon his Heir, and he might take & receive the Rents and Profits of the Lands; for that no person can have a Copy-hold or a Copy-hold-Estate, but such a person who comes in­to the same by the Custome of the Ma­nor, viz. by Admittance of the Lord, which in this Case A and B did not doe. But in that Case it was doubted by the Ju­stices, but not Resolved, Whether the Acceptance of the Rent by the Lord at the hands of the said A and B did amount to an Admittance or not.

There were two Joynt-tenants in FeeM. 9. Jac. Cro. 2. part, Porter and Porter's Case. of Lands which were holden by Copy. One of them, according to the Custome, surrendred into the hands of two Tenants to the Use of his last Will, and afterwards he made his Will, and thereby devised the Lands. In that Case it was holden [Page 15] by the Justices, That because the said Surrender was presented by the Tenants in the Court of the Lord, that the said Surrender should bind the Survivor; for that it shall have a relation to the first time of the Surrender. But if in that case the Copy-holder who made the Surrender had died before the same had been presen­ted, then the Copy-hold had survived to the surviving Joynt-tenant.

Two Coparcenors, Copy-holders, werep. 10 Jac. B. R. Godb▪ 141. in possession; the one did surrender her Reversion in the Moyety after her decease. It was adjudged a void Surrender, because a Free-hold could not commence in fu­turo, as well of Copy-hold-lands as of Free-hold-lands.

A Copy-holder surrendred a MessuageM. 8 Jac. in B. R. Cro. 3. part, Bur­goyne and Spurling's Case. and 20 Acres of Lands into the hands of two Tenants out of Court, to the Use of J S and his Heirs, upon Condition, that if he paid J S 100 l. before such a day, the Surrender to be void. Before the day of payment he surrendred one Acre, parcel of the 20 Acres, unto J D and his Heirs, and afterwards he performed the Condition by paying the 100 l. and afterwards in Court he surrendred the said Messuage and 20 Acres of Lands in­to [Page 16] the hands of the Steward, to the Use of J N and his Heirs. It was found by the Jurours that the first Surrender made to J S was never presented, but the two last Surrenders were presented. In this Case it was Resolved, That by the Condi­tional Surrender nothing passed, untill it was presented; but the Interest, Right and Possession remained in the Copy-hol­der who made the Surrender, so as he might transfer it to whom he thought good. For although it was a Surrender into the hands of Tenants, and so accor­ding to the manner of the Surrender the same was good by the Custome; yet be­cause the said Surrender into the hands of Tenants was but an Inchoation of the Case to whose Use the Surrender was made, which had no farther perfection or prosecution, but became void by the performance of the Condition, the first of the two last Surrenders presented, viz. the Surrender to the Use of J D and his Heirs, stood good, and the last Surrender to the Use of J N and his Heirs took no effect.

A Copy-holder in Fee made a LetterCoke 9. part, Comb's Case. of Attorney to two Tenants of the Ma­nor, to surrender his Copy-hold out of [Page 17] Court unto the Use of J S and his Heirs: They surrendred the same accordingly, and at the next Court brought in the Sur­render into Court, (but no Custome was found to warrant such a Surrender.) Not­withstanding in that Case it was Re­solved, 1. That it was a good Surrender, because he might doe it de communi jure without alledging any Custome. 2. When the Tenants shewed the same in Court, and the Authority which was given to make the Surrender, all which they had done was Resolved to be good, and legal­ly done.

Proofs.

The Custome of a Manor was, That aM. 23 Car. B. R. Baker and Den­ham's Case. Copy-holder might surrender his Copy-hold out of Court to the Use of another; the party to whose Use it was, to be ad­mitted at the next Court. Such a Surren­der was made, but before the next Court Cestuy que use died, and so was not admit­ted. It was Resolved in this Case, That he was not a Copy-holder within the Cu­stome; for by the Surrender before Ad­mittance the Surrenderee hath no possess­on, and the Heir is in by Discent, and holds by the Copy of his Ancestor, and so the Cestuy que use is not a perfect nor compleat Copy-holder. And it may be compared to the Case where a man makes a Feoffment in Fee of Lands, and makes Livery within the View; it is no perfect Livery till he doth enter into the Lands, but the Feoffor may punish a Trespass there done in the interim, for it is but in­choatum untill he enter. And so it is in case of a Copy-holder; the Surrender is but quasi inchoatum, as before, till he be admitted to the Copy-hold, Vid. Fros­well's Case before.

In 26 Eliz. the Question was, Whe­ther26 Eliz. Gal­loway's Case vouched in Bulstr. 3. part, [...]17. the Copy-holder might have an A­ction upon the Case against the Lord for not holding his Court, and not admitting of him to whom a Surrender was made according to the Custome of the Manor. It was Resolved in that Case, That the Copy-holder himself might have the A­ction. But in that Case it was Resolved, That he to whom the Surrender was made, untill Admittance, by force of the Sur­render had nothing; it was onely an Act begun, and not perfected; and therefore in such case he could not maintain the A­ction of the Lord for not admitting of him.

A Surrender of a Copy-hold is like to the Induction into a Benefice: before Induction there is no Possession; so before Admittance there is no Possession.

A Copy-holder, according to the Cu­stome,M. 12 Jac, Robinson and Green's Case, Bridg­man 82, 83. Bulstr. 3. part, 238. acc. did surrender out of Court into the hands of Tenants to the Use of J S and his Heirs; which Surrender was de­livered into the Court by the said Te­nants and there presented; which was ac­cepted of by the Steward of the Manor, and an Entry made thereof in the Court-Roll, and a Copy of the Surrender was [Page 20] delivered unto J S; and in the Copy it was, viz. Compertum est per Homagium, that the Surrender was to J S and his Heirs. It was the opinion of the Court in this Case, That none of these colou­rable things did imply a perfect Ad­mittance to the Copy-hold. For 1. The Acceptance of the Presentment by the Steward from the Homage was no more then what he was bounden to doe as be­ing Judge of the Court. 2. The Entry of it in the Roll was but an Office of Du­ty, being but an Evidence for the Lord, as also for him to whose Use the Surrender was; and so was the delivery of the Co­py to J S, the Cestuy que use. But none of these things did imply the Consent or Will of the Lord, that the Cestuy [...]ue use should be admitted or have the Lands according to the Surrender; and all these things together do not imply any Admit­tance, for all of them may be done, though no Admittance be in the case.

Note, It was Resolved in the Court ofM. 6 Jac. in B. R. Wil­son and Wed­dall's Case, [...]lv. 144. King's Bench, That if a Surrender be of a Copy-hold to J S, it is of no effect untill he be admitted Tenant: and if be­fore Admittance J S doth surrender the Land unto another, a Stranger, who is [Page 21] admitted, yet nothing passeth to the Stranger by this Admittance of the Stran­ger.

Proofs.

1. THE Heir of a Copy-holder mayCo. 4. part, Clark and Penyfather's Case. enter and have an Action of Trespass before Admittance. 2. A Pos­sessio Fratris or Sororis may be of a Copy-hold before Admittance. 3. A Discent shall not bind the Heir of a Copy-holder. 4. He may surrender unto a Stranger be­fore Admittance.

A Copy-holder in Fee had Issue twoVid. 12 Eliz. Dyer 291. Daughters by divers Women, and died seised; the Daughters entred, and took the Profits many years; and before Ad­mittance, the eldest Daughter died with­out Issue, and afterwards the youngest Daughter was admitted to the whole Land, as sole Heir to the Father. In this Case it was holden, That the possession of the eldest Daughter, though before [Page 22] Admittance, should make her Sister, though of the half bloud, inheritable to the Land.

If a Copy-holder in Fee by Licence24 Eliz. in Co. B. Coke 4. part, 23. Brown's Case acc. maketh a Lease for years, and the Lessee entreth, the Copy-holder having a Son and a Daughter by one Woman, and a Son by another; the Land shall discend to the Daughter of the whole bloud, al­though that the Son died, and was not ad­mitted to the Copy-hold as Heir to his Father. And that that should be Possessio Fratris of a Copy-hold before Admit­tance.

If a Copy-holder doth surrender to a40 Eliz. in B. R. Arnold and George's Case, Yelv. 16. acc. Stranger, and the Steward will not admit him, and the Stranger enters, and holds the Land; if the Lord bring Trespass a­gainst him before Admittance, he may plead Not guilty, and his Plea shall be good, and it shall be found against the Lord, because he is particeps criminis to the Admittance, because it shall be inten­ded, that the Lord would not suffer the Steward to admit him to the Copy-hold.

A Copy-hold was seized by the LordTr. 3 Jac. B. R. Joyner and Lam­ber [...]'s Case, Cro. 2. part, 36. of the Manor, and he granted it to ano­ther in Fee, who died, and his Heir was admitted; then the first Copy-holder di­ed, [Page 23] and his Heir entred, and surrendred unto a Stranger in Fee. It was Resolved in that Case, That the Entry of the Heir was lawfull, though he was not admitted to the Copy-hold-estate, and the Discent of the Land to the Heir of the Grantee of the Lord should not bind him. And farther it was Resolved in that Case, That the Heir of the Copy-holder being in the Land, his Surrender of the Land unto a Stranger was good before his Admit­tance.

Proofs.

The Lord of a Manor demised Copy-holdM. 40 Eliz. B. R. Pay and Brown's Case, Cro. 1. part. of Inheritance to A, upon Conditi­on that he should pay to B 20 s. yearly during his Minority, and 100 l. at his full age. A paid not the 20 s. but sur­rendred the Land to the Use of P and his Heirs. The Lord admits him. B attains his full age, and the 100 l. is not paid. The Lord enters for the Condition bro­ken, and grants the Land by Copy to B. P enters upon him. It was holden in this Case, That his Entrie was lawfull, for that he to whose Use the Surrender was made comes in by him who surren­dred, and not by the Lord.

A Copy-holder in Fee surrendred [Page 25] his Lands into the hands of the Lord by theTr. 15 Jac. B. R. Brook's Case, Poph. 125. hands of Tenants, according to the Cu­stome, without expressing to whose Use it should be. At the next Court he was admitted Habendum to him and his Wife in tail. It was objected, That no Use being expressed, the Surrender was void, and the Admittance not good, to pass an Estate to the Wife not being named in the Premisses, but in the Habendum one­ly. It was Resolved, 1. The Surrender was good, for it shall be intended, that the Surrender generally made was to such Use as was specified in the Admittance; and the Lord was onely as an Instrument put in trust to convey the Estate, and make such Admittance as he who surren­dred would have him to make. 2. That the Wife should take by the Admittance, though she was not named in the Premis­ses, but in the Habendum onely.

If a Copy-holder surrendreth his Lands33 Eliz. Co. 4. part, West­wick's Case. to the Use of J S, the Lord hath but a Customary power to make the Admit­tance secundùm effectum & formam Sur­sumredditionis. And if in such case the Lord grants the Land to J S and a Stran­ger, all shall enure to J S, and nothing to the Stranger. And if the Copy-holder [Page 26] doth surrender his Lands without a Con­dition, if the Lord doth admit the Te­nant upon a Condition, the Condition is void; for that after the Admittance the Surrenderee is in by him who made the Surrender, and not by the Lord.

A Copy-holder surrenders to the Use28 Eliz. Co. 4. part, Bunting's Case. of another; the Lord admits him to hold to him and his Heirs: yet he shall have but an Estate for life, for that after the Admittance he is in by him who made the Surrender, and not by the Lord.

The Custome of the Manor was, ThatCoke 8. part, in Swayne's Case. a Copy-holder for life might take Timber to repair: The King made a Lease of the Manor, excepting Woods and Under­woods and Trees: The Lessee for years of the Manor grants a Copy-hold upon which were Timber-trees to another for life, who cuts Timber to repair. It was Resolved, That in this Case, notwith­standing the Severance and Exception, the Grantee should have the Trees, for that the Estate of the Copy-holder who comes in by a voluntary Grant is in by the Cu­stome, and the Lord is but an Instrument to make the Grant.

When a Copy-holder surrenders to theCo. 4. part, in Tavernor's Case. Use of another, and the Lord admits him; [Page 27] now he who is admitted is in by him who makes the Surrender. For in a Plaint in the nature of a Writ of Entry in the Per, he shall be supposed to be in the Per by him who made the Surrender, because the Lord is but an Instrument to make the Admit­tance; and he who is admitted shall not be subject to any Charges or Incumbrances of the Lord, for the Lord hath but a Custo­mary power to make the Admittance se­cundùm effectum sursumredditionis, as be­fore is said.

A Copy-holder surrenders to the UseM. 37 Eliz. Cro. 1. part, Berry and Green's Case. of J S; the Lord refuseth to admit him: he cannot enter, unless there be an espe­cial Custome to warrant it; but if there be, then he may enter.

Proofs.

A Copy-holder in Fee by Licence made a Lease for years; the Lessee enters;M. 24 Eliz. Co. 4. part, Browne's Case. the Copy-holder, having Issue a Son and a Daughter by one Woman, and a Son by [Page 28] another, died; the eldest Son died before Admittance. In this Case it was Resolved, (amongst other things) That the Admit­tance of Tenant for life is the Admittance of him in the Remainder, but not to bar the Lord of his Fine, which he ought to have by the Custome.

The Father a Copy-holder in FeeP. 36 Eliz. B. R. Coke 4. part, Fitch and Huckley's Case. made a Surrender to the Use of himself for life, and after to the Use of his Son for life, and after to the Use of his last Will. The Father was admitted, and died: The Lord pretending a Forfeiture entred, and granted the Copy-hold to a Stranger. Resolved, That the Admit­tance of the Tenant for life was the Ad­mittance of him in the Remainder; and then the Land could not vest in the Gran­tee of the Lord.

It was Resolved by the Justices, ThatTr. 36 Eliz. B. R. Deal and Hig­den's Case, Moore 358. the Admittance of Tenant for life of a Copy-hold is the Admittance of him in the Remainder, because he is to pay his Fine which is intire, and no Fine is due to be paid by him in the Remainder to the Lord: but otherwise it is of him in the Reversion.M. 39 Eliz. B. R. Cro. 2. part, Gip­pin and Ban­nye's Case.

A Copy-holder surrendred to the Use of one for life, the Remainder to another [Page 29] in Fee: Tenant for life was admitted: He in the Remainder surrendred to the Use of J S; which Surrender the Lord accepted of, and admitted him, and then the Tenant for life died. It was holden in this Case, That the Heir of J S should have the Land, for that the Admittance of the Tenant for life was the Admittance of him in the Remainder; and also be­cause the Acceptance of the Lord was quasi an Admittance to him in the Re­mainder.

A Copy-holder in Fee surrendred toTr. 2 Jac. B. R. Aun­celme and Auncelme's Case, Cro. 2. part. the Use of his Wife for life, the Remain­der to his younger Son in Fee, and died: The Wife was admitted, but the younger Son refused to be admitted during the life of his Mother, but afterwards, without other Admittance, he surrendred to the Use of J S. It was Resolved, That the Admittance of the Mother Tenant for life was the Admittance of the younger Son in the Remainder, because they made but one Estate.

A Copy-holder had Issue 3 Sons, B, C, Hil. 31 Eliz. B. R. Bullein and Graunt's Case, Leon. 1 part, 174 [...] and D, and surrendred to the Use of his last Will, and thereby devised the same to his Wife for life, the Remainder to C and the Heirs of his body: The Wife di­ed [Page 30] after Admittance, and the Lord gran­ted the Copy-hold to D in Fee, who sur­rendered to the Use of J S for life, and after died without Issue: B the eldest Son entred. It was adjudged, That his Entry was lawfull, and that Admittance of him was not necessary; for that if a Copy-holder surrendreth to the Use of one for life, he in the Reversion or Remain­der may enter without any new Admit­tance.

Proofs.

The Lord by his Act cannot, withoutCo. 2. part, 17. in Lane' [...] Case. the concurrent Act of the Copy-holder himself, determine the Estate and Interest which the Copy-holder hath in his Co­py-hold. And therefore the Severance of the Free-hold and Inheritance of the Land holden by Copy of Court-Roll (being done by the Act of the Lord) doth not determine the Copy-holder's Estate, or extinguish the Copy-hold. For although that the Estate of the Copy-holder be but an Estate at will, viz. ad Co. 4. part, 21. in Brown's Case. voluntatem Domini secundùm Consuetu­dinem Manerii; yet Custome hath so established the Estate of the Copy-hol­der, that he is not removeable at the [Page 32] will of the Lord, so long as he performs the Customes and Services.

If a Copy-holder will joyn with the Lord in a Deed of Feoffment of the Ma­nor, there, by that Act of them both, the Copy-hold is extinct; as it was said by the Lord Anderson Chief Justice, P. 24 Eliz. in Co. B.

A Feme-sole was Lady of a Manor, toVid. Cro. 1. part, 5 acc. which were divers Copy-holders: One of the Copy-holders did intermarry with the Seignioress of the Manor. It was the opinion of the Justices, That the Inter­marriage was onely a Suspension of the Copy-hold, and not an Extinguishment of it. But afterwards they joyned in suffering a common Recovery of the Land; and upon that their Act it was Resolved, that the Copy-hold was extinguished.

Husband and Wife Copy-holders inH. 26 Eliz. in Co. B. Cro. 1. part, Stockbrid­ge's Case. Fee to them and their Heirs: The Hus­band for Money obtained an Estate of Free-hold to him and his Wife, and the Heirs of their bodies. It was Resolved in that Case, That by the Acceptance of the new Estate the Copy-hold was de­termined.

If a Copy-holder doth surrender toM. 29 Eliz. in C. B. Godb. 101. him who hath a Lease for years of the [Page 33] Manor to the Use of the same Lessee, by that Act of his the Copy-hold-estate is extinct.

The Lord of a Manor sold the Free-holdP. 30 Eliz. B. R. Leon. 1. part, 102. Wakesield's Case. of a Copy-hold unto another, and so it was divided from the Manor; and af­terwards the Copy-holder did release to the Purchasor. It was the opinion of the Justices, That by this Release the Copy-hold was gone and extinct. But in that Case it was said, That if a Copy-holder be ousted, so as the Lord of the Manor is disseised, and the Copy-holder releaseth to the Disseisor, Nihil operatur by such Release.

A Copy-holder had common by Usage in the Wastes of the Lord as to his Mes­suage and Lands belonging: The Copy-hold comes to the Lord, who after grants the same to the Copy-holder cum per­tinentiis. In this Case it was holden, That these words, viz. (cum pertinentiis) could not create a new Common, and the Com­mon first holden was by Custome annex­ed to the Customary Estate, and was ab­solutely extinguished.

If there be Lessee for life, the Remain­derM. 9 Jac. in C. B. ad­judge. acc. for life of a Copy-hold, and the first Tenant for life purchaseth the Free-hold [Page 34] of the Copy-hold, and afterwards levieth a Fine thereof, and five years pass: It was adjudged, That in that Case by the Fine levied the Copy-hold was not gone nor destroyed, and that this Fine was not a Bar to him who was in Remainder in life of the Copy-hold.

There was Tenant for life of a Copy-hold:P. 8 Jac. in Co. B. Moore and Ride­val's Case. The Lord granted the Reversion of the Copy-hold after the determination of the particular Estate to another for 20 years: Afterwards the Copy-holder, who was Tenant for life, by Deed made a Lease for life of his Copy-hold, and made Live­ry, which was a Forfeiture of his Copy-hold-estate. It was the opinion of the Justices in that Case, That this Act of the Tenant for life was not a Determina­tion or an Extinguishment of the Copy-hold: For although it was a Determina­tion of the particular Estate of the Co­py-holder, and that he in the Remain­der might enter; yet the Land remained Copy-hold as it was before.

The Custome of a Manor is, That if3 Jac. in B. R. Lashmor and Averi [...]'s Case, Cro. 2. part. a Copy-holder in Fee dieth sei [...]ed, his Wife shall hold the Land during her life as Free-Bench: The Lord enfeoffeth the Copy-holder of the Land. It was ad­judged, [Page 35] That she should not hold the Land for her life as Free-Bench, but it was gone by the Purchase. Contrary, if the Lord had infeoffed a Stranger of the Land.

C purchased a Copy-hold from A Vid. 30 H. 8. Dyer, acc. Lord of the Manor, to him and his Wife and their Child for their lives: After­wards A by Indenture granted the Free­hold to B for life, rendring Rent, and made Livery: And afterwards A levied a Fine sur Conusans de droit, &c. to C of the same Lands, who afterwards accep­ted of the Rent from B. It was holden in that Case, That by the Acceptance of the Rent from B the Copy-hold of C was destroyed and determined.

Note, If a Copy-holder takes a LeaseM. 15 & 16 Eliz. in Co. B. for years of his Copy-hold-lands, the Copy-hold is determined: and so it is, if the Lord leaseth a Copy-hold for years which is escheated, the Copy-hold is determined. But if a Copy-holder pur­chaseth the Manor, the Copy-hold is not determined, but suspended, because there is no Interruption, but it is able to be gran­ted again, because by the Custome it suf­ficeth that it hath been demised and de­misable.

Proofs.

A Copy-holder makes a Lease eitherCoke 4. part, Murrel's Case. for life or years of his Copy-hold-lands, [Page 37] which is not warranted by the Custome of the Manor: now although such Lease shall be a good Lease as betwixt the Co­py-holder and his Lessee, and he shall not avoid his own Lease; yet as unto the Lord it is a Forfeiture of the Copy-hold and of his Estate, and the Lord shall take advantage of such Forfeiture, and may enter upon the Lands leased.

So if a Copy-holder makes a Lease ofH. 37 Eliz. East and Harding's Case. his Copy-hold for 3 years by word, to begin at Michaelmas or at a day to come; although it is a good Lease as betwixt the parties to it, yet it is a Forfeiture of the Copy-hold to the Lord; and so it was holden Hil. 37 Eliz. in East and Har­ding's Case.

A Copy-holder of a Manor made aP. 10 Jac. in Co. B. the Lady Moun­tague's Case, Cro. 2. part, acc. Lease of his Free-hold-lands for 10 years, and, to avoid a Forfeiture, made a Lease of his Copy-hold-lands for one year; but covenanted with his Lessee, that he should enjoy the Copy-hold-lands de anno in annum, during the 10 years. It was the opinion of the Justices in this Case, That because this Demise of the Copy-holder was but for one year, and so warranted both by Law and Custome, and it was but onely a Covenant on the part of the Lessee that [Page 38] he should hold it for a longer time, that this was no Forfeiture, although the Lord pretended the same to be a Forfei­ture.

The Lord licensed his Copy-holder toM. 27 Eliz. in Co. B. by Anderson. Moore 184. make a Lease of his Copy-hold-lands for 21 years, to begin at Michaelmas follow­ing: The Copy-holder by Indenture made a Lease accordingly; but afterwards, before Michaelmas, he made another Lease by Indenture to another person, to begin at Michaelmas following. It was the opinion of the Lord Anderson Chief Justice, Mich. 27 Eliz. in Co. B. That the making of this second Lease, being without the Licence of the Lord, was a Forfeiture of his Copy-hold.

A Copy-holder for life hath LicenceM. 15 Jac. in B. R. Wor­lidge and Banburie's Case, Cro. 2. part. of the Lord to make a Lease for 3 years, if he so long live, and he makes a Lease for 3 years without such Limitation. It was holden to be no Forfeiture of his Estate in the Copy-hold, because the Law makes such a Limitation to the Estate which he makes, that it shall continue but during his life. But if he had been a Copy-holder in Fee, it had been a For­feiture of his Estate to have made such an absolute Lease, because he had done more [Page 39] then he was licensed to doe by the Law. And so it was adjudged in Hall and Ar­rowsmith's Case, which see in Popham's Reports, 185.

If a Copy-holder without Licence ofM. 8 Jac. in B R. Ward's Case. the Lord doth erect a new House upon his Copy-hold-lands, some opinion hath been, That the same is a Forfeiture of his E­state. But I doubt much of that Case, because the Act done is for the benefit and advantage of the Lord, and not to his Prejudice. Quere of it.

Proofs.

A Copy-holder in Fee was seised ofH. 33 Eliz. Crispe and Fryer's Case in Moore. Land rendring Rent at Michaelmas and our Lady-day. The Lord at the last instant of the day of payment demanded the Rent upon the Land, and the Copy-holder was not there, nor any for him, to pay it. It was a Question, if his Non­payment of the Rent was a Forfeiture of [Page 38] [...] [Page 39] [...] [Page 40] his Copy-hold or not. And the better opinion of the Court seemed to be, That it was a Forfeiture, because the Copy-holder was to take peremptory notice of the day of payment of his Rent, and his not being there seemed to imply that it was a voluntary Denial, or Refusal at the least, of doing the same. But Quere of it; for it was Resolved in another Case, Tr. 21 Jac. in C. B. ThatTr. 21 Jac. in Co. B. not payment of Rent, or of the Fine upon Admittance to his Copy-hold, was no Forfeiture of his Copy-hold-estate, without there was some express verbal Denial of it, which there was not in this Case.

A Copy-holder seised by force of se­veralM. 37 Eliz. B. R. Taver­nor and Lord Crom­wel's Case, Cro. 1. part. Copies of Black-acre by the Rent of 4d, White-acre by the Rent of 4d, and Green-acre by the Rent of 6d, denied the Rent of Black-acre. In that case it was holden to be a Forfeiture of that Acre, but no Forfeiture of the other two Acres, be­cause, although they were all in one hand, yet because they were holden by several Rents, the Forfeiture of the one Acre can­not be the Forfeiture of the other two Acres.

No Fine is either due or payable to [Page 41] the Lord, but either upon a Discent, orVid. Coke 4. part, 28. in Sands Case. upon an Admittance. But if such a Co­py-holder upon his Admittance shall make an absolute Refusal to pay the Fine to the Lord, the same is a Forfeiture of his Co­py-hold and of his Estate. But there such a Fine must be reasonable. For if the Fine assessed by the Lord be an unreaso­nable Fine, (of which the Judges shall determine) a Refusal or Denial of the Copy-holder to pay the same shall be no Forfeiture of his Estate or Copy-hold.

Note, It was Resolved by the Justices,M. 43 Eliz. Dalton and Hamond's Case, Moor [...] 622. That if the Lord demandeth an unrea­sonable Fine of his Copy-holder, and he refuseth to pay it, it is no Forfeiture; otherwise where it is a reasonable Fine. If a Fine be certain, the Tenant is to bring it with him to the Court, and to pay it before Admittance; and if he be not ready to pay it, it is a Forfeiture, and so it was adjudged. But what shall be a reasonable Fine or an unreasonable Fine, ought to be determined per arbitrium bo­ni viri; and the Court and Justices of it shall be Judges of the Reasonablenesse of the same, if it be pleaded that the Fine demanded by the Lord, or the [Page 42] Distress for it, be unreasonable or exces­sive.

A Copy-holder seised of Copy-hold-landsM. 6 Jac. in C. B. Wil­lowes and Willowes Case, Coke Select Cases. of the yearly value of 53s. 4d. per annum, and no more, surrendred them into the hands of the Lord of the Manor to the Use of J S and his Heirs: The Custome of the Manor was, That upon the Admission of any person a reasonable Fine shall be assessed by the Lord or his Steward to be paid. The Steward at the Court holden for the said Manor assessed a Fine of 5l. 6s. 8d. (the value of the Lands for 2 years) to be paid by J S for a Fine; which Fine being requested of him by the Lord to pay, he refused to pay the same; whereupon the Lord en­tred upon the Lands for a Forfeiture. In which Case these Points were Resolved. 1. That if the Fine assessed had been rea­sonable, yet a certain time was to be set, and a certain place where it should be paid: for it shall not be intended that the Tenant hath sufficient Money about him to pay a Fine which is uncertain to be assessed. 2. That the Fine assessed by the Steward was an unreasonable Fine: and 3. That the Refusal was no Forfei­ture.

If the Fine of a Copy-holder be as­sessedH. 13 Jac. C. B. Denny and Lemon's Case, Hob. 135. Co. 11. part, God­frie's Case acc. by the Lord or his Steward, be the Fine reasonable or unreasonable, the Lord must demand the Fine of the Copy-hol­der before he can enter upon the Copy-hold for not payment thereof, and the Reasonablenesse or Unreasonablenesse thereof shall be adjudged by the Court.

Lands being Customary Lands, andP. 30 Eliz. B. R. Aumo­ry and Eves Case, Leon. 1 part, 100. by the Custome discendable to the youn­ger Son, the Father died, the younger Son being of the age of 2 years: Thir­ty years incurred after the death of the Father, and no Court had been holden for the Lord of the Manor: But in the in­terim the younger Son had made a Lease of the Lands to a Stranger; and after, at the next Court holden for the Manor, he came into Court and prayed to be ad­mitted, but the Steward refused to admit him. It was holden in this Case, That the Lease made by him was good, and that there was no negligence in him to be admitted to the Copy-hold-estate; for that it was holden in this Case, That if a Copy-holder dieth, his Heir within age, he is not bound to come at any Court during his Nonage to pray Admittance, or to tender his Fine for the same; and [Page 44] if the death of the Ancestor be not pre­sented, nor Proclamations made that the Heir come in to take up the Land and pay his Fine, the Heir shall not forfeit his Land for such neglect, although he be of full age.

If the Homagers in a Court-Baron4 Eliz. Dyer 211. being Copy-holders do refuse to make their Presentments, it is a Forfeiture of their Copy-holds: and so it was Resolved to be by both the Chief Justices in the Star-Chamber in the Earl of Arundel's Case.

A Copy-holder came not to the Lord'sH. 13 Jac. B. R. Bel­field and A­dams Case, Bulstr. 3. part, 81. Court of the Manor to doe his Suit and Service by the space of 3 years toge­ther. The Question was, if it was a suf­ficient cause of Forfeiture of his Copy-hold. It was said by the Court, That it was no cause of Forfeiture, if a Warning be not given by the Lord of the time of his Court to be holden, and no­tice thereof given to the Copy-holder himself; and the withdrawing of his Suit by a Copy-holder is onely fineable: but if he doth deny to doe his Suit and Ser­v [...]e, then it is a Forefeiture of his Copy-hold: and so was it adjudged M. 14 Jac. in B. R. in Hammond and Winibank's Case.

Summons was given at the Church­doorH. 36 Eliz. in Co. B. Godb. 142. for a Copy-holder to appear at the Lord's Court, and doe his Suit and Ser­vice; upon which Summons he did notVid. M. 30 Eliz. C. B. Sir John Bruanche's Case, Leon. 1 part, 104. Where gene­ral Warning of a Copy-holder to appear at the Lord's Court given with­in the Parish shall be suf­ficient, where not. appear. The Doubt was, if it was a cause of Forfeiture of his Copy-hold. It was the opinion of the whole Court, That it was no cause of Forfeiture of his Copy-hold, because that it was not shewed that it was the Custome to make such Sum­mons: and the Court said, That it were hard to make it a Forfeiture, because per­haps the Copy-holder had not Notice of it: and they held that in such case Notice must be given to the person, and his Re­fusall must be a wilfull Refusall.

The Custome of a Manor was, That ifH. 25 Eliz. in B. R. Borneford and Sir John Packington's Case, Leon. 1. part, 1. a Copy-holder died seised, his Wife should hold his Lands as her Free-Bench, and be admitted Tenant, and that the Son should not be admitted Tenant during the life of his Mother: and farther the Cu­stome was, That if any Copy-holder com­mitted Felony, and it were presented by the Homage, that the Lord might seize the Copy-hold as forfeit: The Copy-holder died; his Wife was admitted to her Free-Bench: The Son committed Fe­lony; the Wife died. The Question [Page 46] was, if the Lord might seize the Copy-hold as forfeit. It was objected, He could not, for that the Son was not Te­nant at the time of the Forfeiture com­mitted, and so the Lord could not then seize, and the Custome should be taken strictly. But notwithstanding it was Re­solved, That the Lord should have the Land as forfeit, and that the Son was a Copy-holder within the Intent of the Cu­stome.

If Husband and Wife be Joynt-Copy-holders of the purchace of the Husband; during the Coverture the Husband is at­tainted of Felony, and dieth: It is no Forfeiture of any part of the Copy-hold. But if the Purchace be made before the Coverture, then it is a Forfeiture of the moyety.

The King being Lord of a Manor, aM. 5 Jac. in Scaceario, Godb. 269. Copy-holder within the Manor made a Lease of his Copy-hold for 3 Lives; and the surviving Tenant for life continued the possession of the Lands for 40 years. Though the making of such a Lease for 3 Lives was in Law a Forfeiture of the Copy-hold; yet because it did not ap­pear upon the Endorsement of the Deed that Livery was made, it was holden, That [Page 47] the King could not take advantage of the Forfeiture.

If a Copy-holder doth bargain and sell his Copy-hold-lands by Deed indented and enrolled, it was Resolved, The same was no cause of Forfeiture of the Copy-hold of which the Lord can take advan­tage, because the Copy-hold did not pass by the Deed: and so it was said it was adjudged in London's Case.

So, if a Copy-holder for life surren­dreth to the Use of another in Fee, and35 Eliz. Bul­lock's Case. besides that makes Livery of the Land; this is no Forfeiture of his Copy-hold, because the Estate passeth by the Surren­der, and not by the Livery.

If a Copy-holder for life cuts down Timber-trees, it is a Forfeiture of his Co­py-hold: and so it was adjudged in Bel­field and Adams Case. But if a Copyhol­der makes a Lease for years, and the Les­see cuts down Timber-trees, or commits other Waste upon the Copy-hold-lands, the Lord cannot enter upon the Land for a Forfeiture; but in such case the Lord is put to his Action upon the Case against the Wrong-doer.

Proofs.

A Copy-holder commits Waste, and af­terPasc. 5 Jac. Cro. 2. part, Mantlie and Willington's Case. the Waste done, the Lord ac­cepts of the Rent from the hands of the Copy-holder. Quere if it shall bar him to enter for the Forfeiture. It is a Quere not Resolved.

If Lands be demisable to two by CopyP. 5 Eliz. Moore 49. for life successivè, and the Custome of the Manor is, that they may not cut Trees: if the first of them cutteth down Trees, it is a Forfeiture both of the Estate of the present Tenant for life, and of the Estate of the other in Remainder over.

If a Copy-holder levies a Fine, makes a Feoffment, or suffers a common Re­covery which destroys the Estate: in such case no Acceptance of the Rent, or Act done by the Lord, shall be available to make the Estate again good. But where the Custome of the Manor onely is bro­ken; [Page 49] as if the Copy-holder makes a Lease of his Copy-hold-lands for more years then one year, or denies to pay his Rent, or denies to be sworn of the Homage, or commits Waste: there his Estate may be afterwards confirmed, and there and in such case the Acceptance of the Rent by the Lord will amount to a Confirmati­on of the first Estate.

In some cases, where an Estate of a Co­py-holder is forfeited by Law, yet by Cu­stome, and the Act of the Lord in his Court of the Manor, the Forfeiture may be mitigated, and the Land shall not be utterly forfeited or destroyed. As where the Custome is, That for Waste Copy-hold shall be forfeited, a Custome for to amerce the Tenant for the Waste done, and to distrain for the Amercement, will be a good Custome to mitigate the Forfei­ture of the Copy-hold.

The Custome of the Manor where Co­py-hold-tenements17 Car. in B. R. Thorne and Tyler's Case. were demisable for lives was, That if any such Copy-holder suffered his Messuage to be ruined for want of Repairing, or by committing of Waste, if the same was presented by the Homage, the Lord used to di­strain the Cattel as well of the Copy-holder [Page 50] himself as of his Under-tenant levant and couchant upon the Lands for the said Amercement. It was objected, That the Custome was not good, for that it was an unreasonable Custome, that the Under-tenant should be punished for the offence of the Copy-holder, for the Under­tenant is a Stranger to the Custome, and Customes should be taken strictly. But it was Resolved that the Custome was good: For by the Law, the suffering of the Co­py-hold Messuage to fall to ruine, or to be wasted, was a Forfeiture of the Copy-hold, and the Custome did abridge and mitigate the Forfeiture, and the Under­tenant for a year was a Tenant to the Lord, and distrainable for the Rents and Services, and the Charge lies upon the Land, and not upon the person; and there­fore it was Adjudged, That the Custome was good, and the Amercement lawfull, and the Distress of the Cattel of the Un­der-tenant levant upon the Land was law­full, all of them being by the Act of the Lord in his Court, and by the Custome of the Manor, in mitigation of the For­feiture of the Land, and so for the good of the Copy-holder.

Proofs.

A Copy-holder in Fee surrendred outP. 31 Eliz. Co. 4. part, Kite and Queinton's Case. of Court his Copy-hold-lands to the Use of another and his Heirs upon Condition: At the next Court the Sur­render was presented, but in the Present­ment the Condition was omitted: He to whose Use the Surrender was made be­ing dead, the Lord admitted his Heir. It [Page 71] was Resolved in this Case, That the Pre­sentment of the Surrender was void, be­cause it was not made in such manner as the Surrender was made. But if the Conditional Surrender had been presen­ted, it had beed good, although it was not entred into the Court-Roll.

A Copy-holder surrendred his Copy-holdTr. 2 Jac. B. R. Cro. 2. part, Hall & Shardbrook's Case. upon Condition, and afterwards by Deed he released the Condition. Re­solved it was good without a Surrender, for that a Condition or a Right cannot properly be said to be determined by a Surrender, but it may be by a Release.

The Case was; Grandfather, Father,M. 15 E. 3. 13. and Son: The Grandfather died: The Father assigned Dower to the Grandmo­ther, being his Mother, who surrendred it back to the Father paying 10 l. per an­num: The Father died; his Wife brought Dower against the Son and recovered, because the Father had the Fee and Free­hold conjoyned in the life of the Grand­mother by the Surrender. It was Re­solved in this Case, That when the Wife of the Father doth recover Dower, she shall pay to the Grandmother so much Rent as doth belong to her proportion in Dower. And in this Case it was hol­den, [Page 72] That although the Estate of a man be Conditional and defeasible upon a bad Title; yet the Wife shall not be ousted of her Dower untill the Conditional or defeasible Title be defeated. And where Husband and Wife are Tenants for life, and surrender to him in the Reversion, the Wife of him in the Reversion shall be endowed, and yet the Surrender is but Conditional; for if the Wife of the Tenant for life overliveth her Husband, the Surrender is defeasible: à fortiori in case where it is not defeasible, as in this Case. And it was said in case of a Sur­render of Copy-hold-land, where it was Conditional, the Wife is dowable of it, if the Condition do not determine the E­state in the life-time of the Husband: But a Feme is not dowable of Copy-hold but by Custome of the Manor.H. 27 Eliz. Cro. 3. part, 68. Bright and Hub­bard's Case.

A Copy-holder devised his Lands to his Wife for life, and that she should sell the Lands for the payment of his Debts; and surrendred to the Use of his Will: The Copy-holder died: His Wife sur­rendred the Land upon Condition to pay 12 l. It was Adjudged, It was a good Sur­render upon the Condition, and that it was a good Sale made by her.

The Father, Copy-holder in Fee, sur­rendredTr. 33 Eliz. Cro. 1. part, Symonds and Lawn [...]'s Case. his Copy-hold-lands to the Use of his Son in Fee, upon Condition to perform Covenants in an Indenture: The Son after Admittance surrendred to J S upon Condition that if the Son pay 10 l. the Surrender to be void: The Son nei­ther pays the 10 l. nor performs the Co­venants in the Indenture: The Father enters. Resolved, That by the Entry of the Father both the Surrenders were avoided, and there the Son might well en­ter after the death of his Father, and the Surrender made by him to J S.

If a Copy-holder doth surrender his33 Eliz. Co. 4. part, West­wick's Case. Lands to the Use of J S and his Heirs absolutely, and the Lord admits the Te­nant upon Condition, it is void; for that after Admittance the Tenant is in by him who made the Surrender, & not by the Lord.

The Custome was, That a Copy-hol­der might out of Court surrender to theTr. 28 Eliz. in B. R. Cro. 1. part, [...] dett's Case. Use of a Stranger in Fee: The Lord of the Manor made J his Steward ad exe­quendum per se, or his sufficient Deputy, who made A his Deputy pro hac vice to take a Surrender of Husband and Wife, the Remainder in Fee: The Deputation was farther, viz. Et ulteriùs faciendum [Page 74] quantum in me est: A took a Surrender of the Husband and Wife upon Condition, which Condition was afterwards peform­ed and executed. Resolved in this Case, That although the authority to take the Surrender was absolute, and to be with­out a Condition; yet when A took it upon a Condition to be performed, it was a good Surrender made to him, by reason of the words in the Deputation, Et ulteri­ùs faciendum, &c.

A Woman Copy-holder durante Vidui­tate P. 39 Eliz. B. R. Oland and Bar­wick's Case, Cro. 1. part, acc. sowed the Land, and before Seve­rance of the Corn she took Husband. Resolved, That although the Estate of the Wife was incertain, and determined by the Limitation, and not by any Con­dition either in Fact or in Law, that the Lord should have the Corn sowed upon the Lands.

A Copy-holder in Fee of Lands dis­cendable in Borough-English had 3 Sons,H. 2 Jac. B. R. Cro. 2. part, Cur­ [...]ies and Wolverston's Case. and surrendred to the Use of his Will, and thereby devised his Lands to his middle Son in Fee, upon Condition to pay to his 4 Daughters, to every of them 20 l. at their full age: The eldest Son had Issue 2 Daughters, and died: The middle Son is admitted, and doth not [Page 75] pay the Daughters their Summs at their full ages: The youngest Son entred in the name of the Daughters, who disagreed to it. It was Resolved, That it was a Condition, but not broken without demand of their Summs at their full ages; and when they disagreed to the Entry, the Entry of the youngest Brother was not lawfull.

A Copy-holder surrendred his LandsM. 13 Jac. B. R. Simp­son and So­thern's Case, Cro. 2. part. into the hands of the Lord, Haben­dum after his death to the Use of an Enfant en ventre sa Mier. Resolved that a Surrender to an Enfant en ventre sa Mier was not good as an immediate Surrender, for that it cannot begin at a day to come. And whereas a Re­mainder was thereupon limited over, it was holden to be void, because it was to begin upon a Condition precedent, (Vid. the Condition) which was never performed; and therefore the Surren­der into the hands of the Lord was void, because he takes it but as an Instrument to convey it over.

Proofs.

THE Custome of a Manor is, That36 Eliz. Co. 4. part, Gra­venor and Tedd's Case. a Copy-hold-estate may be grant­ed in Fee-simple. In that Case it was adjudged, That an Estate thereof granted to one and the Heirs of his body is good, and within the Custome; for Ubi licet quod est majus, non debet quod est minus non licere.

The Custome of a Manor is, That39 Eliz. in B. R. Downs and Hop­kins Case. Copy-hold-estates may be granted for life or lives: In such case a Grant is made to a Woman durante Viduitate suâ: And it was adjudged good, and within the Cu­stome, for that every Grant for life is durante Viduitate; but every Grant du­rante Viduitate is not for life.

The Custome of a Manor out of mindH. 34 Eliz. B. R. Stanton and Bar­ney's Case. used was, To grant certain Lands, par­cell of the said Manor, in Fee-simple, and never any Grant was made to any and the [Page 77] Heirs of his body for life or for years: The Lord of the Manor did make a Grant by Copy to one for life, the Remainder over to another and the Heirs of his bo­dy. It was adjudged, That the Grant and the Remainder over was good; for the Lord having an Authority by Cu­stome, and an Interest withall, might grant any lesser Estate: but otherwise it is where one hath but a bare Authority.

In Trespass the Issue was, if the LordP. 29 Eliz. C. B. Kempe and Carter's Case, Leon. 1. part, 56. of the Manor granted the Lands per Co­piam Rotulorum Curiae Manerii secundùm Consuetudinem Manerii praedict. It was given in Evidence, that the Lord of late at his Court granted the Lands per Copiam Curiae, where it was never granted by Co­py before. In that case the Jury are bound to find quòd Dominus non concessit, as it was holden by the Court. For al­though de facto Dominus concessit per Co­piam Rotulorum Curiae, yet non concessit secundùm Consuetudinem Manerii praedict. But in that Case it was holden, If Custo­mary Lands had been grantable in Fee, if the same Land escheat to the Lord, and he grant the same to another for life, it is a good Grant, and warranted by the Custome; for the Custome which enables [Page 78] him to grant in Fee shall enable him to grant for life.

If a Copy-hold-estate fall into theM. 15 & 16 Eliz. in Co. B. ad­judge. acc. hands of the Lord by Escheat, Forfei­ture, or the like, and the Lord make a Lease thereof for years or life by Deed or without Deed, or if he make a Feoffment of it upon Condition, or if the Copy-hold so escheated, &c. be extended up­on a Statute or a Recognizance, or the same Land be assigned to the Wife of the Lord in Dower; In all these cases the Land can never be granted again by Copy, because after such Disposi­tion thereof it was not demiseable. But if the Interruptions were not lawfull, but tortious, as if the Lord be dissei­sed, or if the Land be recovered a­gainst the Lord by a false Verdict, or by an erroneous Judgment; yet after the Land is re-continued, and the In­terruption which was wrongfull remo­ved, the Land is grantable again by the Lord by Copy.

Proofs.

A Guardian in Socage held a Copy-CourtTr. 1 Jac. B. R. Soap­land and Ridler's Case, Owen 115. in his own name, and granted Copies in Reversion. Adjudged he was Dominus pro tempore, and had an Interest in the Lands; for he might make a Lease [Page 80] thereof in his own name, and therefore he might both grant Copies, and also admit Copy-holders to Estates before granted. But the Bailiff of a Manor hath no Interest in the Manor, and therefore he cannot grant Copies of the Land holden of the Manor.

The Custome of a Manor was, ThatP. 41 Eliz. B. R. Ga [...] and Kay's Case, Cro. 1. part. Dominus pro tempore might make a De­mise for 2 or 3 Lives in Possession or Reversion: A Woman Tenant in Dower for life of the Manor granted a Copy-hold to J S and 2 others for their Lives, Habendum post mortem of A B, and di­ed: A B died. It was holden by the Court in this Case, That the Grant was good in Reversion, although it was not executed in the life of the Tenant in Dower: And Vide, That the Lord of a Manor for life, or any other particular Estate, having In­terest in the Manor, might grant Copies in Reversion of Lands which are holden by Copy of Court-Roll, although the Grants were not executed in the life of the Grantors; as it was adjudged in SirH. 14 Eliz. the Earl of Oxford's Case, Moore 95. Peter Carew's Case. Quere: for Hil. 14 Eliz. in the Earl of Oxford's Case in Moore 95. it is not good, unless it come in Possession during the life of the Grantor.

Note, It was holden by the JusticesP. 15 Car. C. B. Godb. 6. acc. P. 15 Jac. in Co. B. That there ought to be a Custome to enable the Lord of the Manor to make a Grant of a Copy-hold in Reversion.

Generally, Things which lie not in Tenure, as Advowsons in grosse, Com­mons in grosse, or the like incorporate Inheritances, out of which a Rent can­not be reserved, cannot be granted by Copy of Court-Roll by the Lord of the Manor; nor can they be holden by any Service to be done for them. But Ad­vowsons appendants, Commons appen­dants, and such things as are parcell of a Manor, and which have Continu­ance, may be granted by the Lord of the Manor, to be holden by Copies of Court-Roll, according to the Custome of the Manor.

In Trespass for cutting down of Un­der-woods,M. 38 Eliz. B. R. Cro. 1. part, Hoe and Taylor's Case. the Question was, Whether Under-woods might be granted by Copy of Court-Roll, for that by such Grant or Lease the Soil passeth not. But it was Resolved, That Under-woods are a thing of Inheritance and perpetuity, which may have Continuance for ever; for af­ter they are once cut, they will grow a­gain [Page 82] ex stipitibus, and so they may be well granted by Copy.

In Trover and Conversion of 20 LoadsP. 43 Eliz. B. R. Sands and Darcie's Case, Cro. 1. part, acc. of Tith-Hay, the onely Question was, Whether Tithes were grantable by Copy. It was objected they were not, because it is against the nature of Tithes, and none could have a property in them be­fore the Council of Lateran, and there­fore it was impossible to have any Cu­stome so to grant them. But it was Re­solved, That they might be granted by Copy, if there had been a Custome time out of mind so to grant them.

One Manor may be holden of another39 H. 6. 9. b. Vid. M. 11 Jac. Moore and Good­greave's Case, Cro. 2. part. Coke 11. part, Sir Henry Nevil's Case. M. 37 Eliz. B. R. Sir John Bourn's Case, acc. Manor, and may be demiseable by Copy of Court-Roll, and there may be Custo­mary Tenants, according to the Custome of the Manor; and so it was said, That a Market or a Fair, although they are things of Priviledge and Liberty onely, yet because they might be appendant unto or parcel of a Manor, or used with a Ma­nor and Lands, that an Estate might be granted of them by Copy of Court-Roll.

Proofs.

IN Ejectione firme the Case was, TheH. 38 Eliz. C. B. Wells and Par­tridge's Case, Cro. 1. part. Plaintiff was Lessee for years of a Co­py-hold; and the Custome of the Manor was, That a Copy-holder might let the Land for 3 years. It was the opinion of Anderson Chief Justice, That the Lessee of a Copy-holder cannot maintain Ejecti­one firme; but if he might, he ought to shew his Lessor's Estate, or his Licence, or a special Custome, to warrant it.

A Copy-holder made a Lease forM. 14 & 15 Eliz. Leon. 1. part, 4. years by Indenture warranted by the Cu­stome. It was adjudged, That the [Page 98] Lessee should maintain Ejectione firme; although it was strongly objected, That if it were so, then the Plaintiff should have an Habere facias possessionem, and so Copy-holds should be ordered by the Laws of the Land.

The Custome of a Manor was, That if any Copy-holder of Inheritance died,P. 33 Eliz. in B. R. Cole and Wall's Case, Leon. 1. part, 328. his Heir within the age of 14 years, then the Lord of the Manor might grant the Custody of his Body and Lands▪ to whom he pleased: A Copy-holder of Inheri­tance died, his Heir within the age of 14 years: The Lord committed the Cu­stody of his Body and Lands to J S, who, being ejected, brought a Writ of Ejectione Custodie of his Body. It was the opinion of the Justices, That the Action did not lie. But it was agreed in that Case, That an Ejectione firme lieth upon a De­mise of Copy-hold-lands by Lease for years by the Copy-holder himself, but not upon a Demise by the Lord of the Copy-hold.

Note, It was Resolved by the Justices,Coke 4. part, 26. in Mel­wich [...]'s Case. M. 8 Jac. in C [...]. B. Crane­ford and Freshwater's Case, acc. That the Lessee of a Copy-holder for a year may maintain an Ejectione firme: for inasmuch as his Term is warranted by the Law by force of the general Cu­stome [Page 99] of the Realm, it is but reason that,H. 39 Eliz. Cro. 1. part, Goodwin and Langhurst's Case, acc. if he be ejected, he should have an E­jectione firme; for it is a speedy Course for a Copy-holder to gain the possession of the Land against a Stranger, being no more then what right requires to be yielded him for the Recovery of his E­state.

Proofs.

It was Resolved by all the Justices,6 Jac. in Co. B. Coke Select Cases 27, 28. That no Tenure shall pay for a reasonable Aid to make the eldest Son Knight, or to marry the eldest Daughter, but Te­nure by Knight's-Service or Tenure inLittl. 16. sect. 36. Socage. Now Littleton saith, that all Te­nures are either Knight's-Service or So­cage: And the Statute of Westm. 1. cap. 36. of reasonable Aid extends onely to such Tenures. The Question then is, [Page 101] Whether a Copy-hold-Tenure be with­in that Statute. I shall not determine the Question, for that I do not find it moved in any Book of the Common Law: But although I humbly conceive Copy-holds be within the general words of Mr. Littleton, (all Tenures in So­cage;) yet that the said Statute of Westm. 1. cap. 36. doth not extend to Copy-holds. Quere of it.

The Statute of Westm. 2. de Donis con­ditionalibus Statute Westm. 2. de Donis. I conceive doth not extend to Copy-holds within the general words thereof. The words of the Statute are of Gifts per Chartam datis; and Copy-holds do not pass by Deeds, but by Surren­ders. But yet it is conceived, that al­though they be not within the general Words of the Statute, yet they are within the Equity of the said Statute, if there be a Custome to warrant such Estates.

The Case was, A Copy-holder in FeeH. 37 Eliz. in Co. B. Church and Wyatt's Case, Moore 637. surrendred his Copy-hold-lands to the Life of his Will; and having a Daugh­ter born, and his Wife with Child, he devised part of his said Lands to his Son or Daughter which his Wife went with, & Haeredibus suis legitimè procreatis; and the residue thereof he devised to his [Page 102] Daughter born, to have to her and the fruit of her body. One Point in this Case was, What Estate the Daughter born had in the said Copy-hold-lands, if in Tail or not. It was said, It was a Fee-tail in the Daughter born. But it was much doubted if it was an Estate within the said Statute de Donis, &c. But in that Case it was agreed, That Co­py-hold might be entailed by Custome co-operating with the said Statute, and if not within the words, yet within the Equi­ty of the said Statute.

The Statute of Praerogativa Regis, cap. Stat. Prae­rogat. Regis, cap. 9 & 10. Co. 8. part, 170. in Tow­erson's Case. Co. 4. part, 127. in Be­verly's Case. 9 and 10. gives the Lands of Idiots na­tural to the King, he finding them con­venient Maintenance out of the Profits thereof: But if the Idiot hath Copy-hold-lands discended unto him, the King shall not have the Wardship of those Lands therewith, out of the Profits there­of to maintain the Idiot, because the same would be prejudicial to the Lord of the Manor, of whom the Lands are holden by Copy. But yet all Alienations made by an Idiot of his Copy-hold-lands, af­ter Office found, shall be avoided by the King.

Proofs.