Newly Printed.

THE Modern Conveyancer; Or, Conveyancing Improved: being a choice Collection of PRESIDENTS on most Occasions. Drawn after the manner of Conveyancing now in Use. By the greatest Hands of the present Age; of which some are still living. Consisting of Settle­ments of Estates upon Marriages, Mortgages, Assignments, &c. With an Introduction con­cerning Conveyancing in General, in large 8 vo. Printed for J. Walthoe in Vine-Court, Middle Temple.

LEX CƲSTƲMARIA: OR, A TREATISE OF Copy-hold Estates, In respect of the Lord, Copy-holder. WHEREIN The Nature of CUSTOMS in general, and of particular Customs, Grants and Surrenders, and their Constructi­ons and Expositions in reference to the thing granted or surren­dred, and the Uses or Limitations of Estates are clearly Illustrated. Admittances, Presentments, Fines and Forfeitures are fully handled, and many Quaeries and Difficulties by late Resolutions setled. Leases, Licences, Extinguishments of Copy-hold Estates, and what Statutes extend to Copy-hold Estates are explained. AND ALSO Of Actions by Lord or Tenant, and the manner of declaring and pleading, either Generally, or as to particular Customs; with Tryal and Evidence of Custom, and of Special Verdicts. TOGETHER With a Collection of many CASES wherein a Copy-holder may receive relief in the Court of Chancery. To which are Annexed, PRESIDENTS of Conveyances respecting Co­py-holds, Releases, Surrenders, Grants, Presentments, and the like. As also PRESIDENTS of Court Rolls, Surrenders, Admittances, Presentments, &c.

By S. C. Barister at Law.

LONDON, Printed by the Assigns of Richard and Edward Atkins Esquires, for Iohn Walthoe, and are to be sold at his Shop in Vine Court, Middle Temple, adjoyning to the Cloyster. 1696.

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THE PREFACE TO THE PRACTICERS OF THE LAW.

SIR Edward Coke in Bagnal and Tucker's Case, in Brownl. 2 Rep. is of Opinion, That the third part of this Realm is in Copy-hold. If we consider the long and con­tinued Series of Practice that this Great Man was Conversant in, either at the Bar or Bench, and to whom persons from all parts and corners of the Nation resorted, as to the Oracle of the Law, we shall not [Page] easily conceive his Judgment was not Temerarious, but rather that he had good Reason for such positive conjecture: However, it is most certain, That a vast number of Estates (and those considerable too) depend upon no other than Cu­stom, in point of Title, and are no other ways preserved in point of Evidence, then by Copies of Court Rolls.

Now we find large and very elaborate Volumes published con­cerning Estates and Tenures at Common Law, and yet very little hath been professedly wrote upon this Subject, tho' so great a part of the Lands and Estates of this Nation are protected and preserved by it; which I the more wonder at, for that to know when a Cu­stom is good and allowable in Law requires a more than ordinary skill, and amongst the infinity of Cu­stoms to try them by, and perti­nently [Page] to apply them to those four standing Essentials, Antiquity, Con­tinuance, Certainty and Reasonable­ness, is a Work of great Judgment and Dexterity; besides Constructi­ons and Expositions of Grants and Surrenders, the Penalty and fatal Consequence of Forfeitures under an obstinate Lord, especially such as are wilful, the nicety and variety of Customs, seem very well to de­serve a particular and designed Treatise.

I remember but two that have professedly handled this piece of Learning, my Lord Coke in his Compleat Copy-holder, and Mr. Cal­throp in his Readings, which tho' they are done with good Judgment, yet, as they do totally omit many Titles which are of great Use, so they extend to very few more Cases than those which are amast together in the 4th Report; since [Page] which we have thousands of Cases Argued and Debated, and some Points started which are primae im­pressionis; and in truth it is not fit to croud so much excellent Learning, and of such general Use into a Manual.

In this Treatise you will find Totum Domini & Totum Tenentis. The Lord may see his power (tho' moderated) and the Tenant may understand his Duty and his Privi­ledge. For Tempora mutantur; when Bracton and Fleta wrote, poor Co­py-holders tempestive & intempe­stive pro voluntate Domini possent re­sumi & revocari.

But the Lord now is not En­throned like a Grand Seigniour, whose Proceedings are Arbitrary and his Humors Laws; no, he is a mixt Monarch, he is bound up by the Customs and Constitutions of his little Empire. 'Tis true, they are Tenants Ad voluntatem [Page] Domini, yet this Will is abridged, clogged and restrained secundum consuetudinem Manerii.

The Learning of Copy-holds is subtle and curious, in the Argu­ments and Pleadings. As for the purpose, That great Question, whe­ther and how Copy-holds may be Intayled, has been Argued with great subtilty and penetration, as you may read Popham, p. 32. Gra­venor's Case. Cro. Car. 42. Rowden and Malster's Case. And in Car­ter's Reports 22. Taylor and Shaw's Case.

Now the mentioning of this Ar­gument hath presented me with an Answer to what I foresee will be imputed as Faults to me.

In some Cases I am thought too tedious, and write a great part thereof Verbatim, and I think I have reason so to do (tho' that is but seldom.) The reason of some Cases will ill bear abstracting; as, [Page] to Instance in that Great Man's Reports, I mean my Lord Hobart and Mr. Justice Yelverton's Cases. They that can satisfie themselves with half a Case, let them dabble in those silly Abridgments of Moor, Croke, &c. I was always of this mind, That in the gelding a close and well compacted Argument, the Vigour of it is in a great measure dwindled and emascu­lated.

Another Crime perhaps may be, that I cite one Case two or three times; and I do so when I meet with a copious prolifick Case, which brancheth it self into several Points, I thought it more Intelligible and Methodical to Graft each Shoot into its proper Title, whether it be a point in Law, or a Formality in Pleading.

[Page]But not to spend time in crea­ting Apologies for Crimes per­haps which I shall never be accu­sed,

Gentlemen, I surrender the whole to your Use, and hope thereby to gain Admittance into your favou­rable Opinion.

THE CONTENTS OF THE CHAPTERS IN THE Ensuing TREATISE.

  • 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, chiefly respecting Copy-hold Estates, and what shall be said parcel of a Manor, and what shall be said severance of Copy-hold from the Manor.
  • [Page] CAP. II. The notion and nature of a Copy-hold as to its Basis and Foundation. How a Copy-holder and a Te­nant at Will at Common Law differ. The general Maxims and Rules of Copy-hold Estates, together with the several differences and diversities, by the perusal whereof the ensuing Cases will be rendred the more easy and Intelligible.
  • CAP. III. The Priviledge of Copy-hold Estates. Priviledges of the Lord. Of the Tenant. Of Infants Copy-holders. Of the Kings Prerogative and Priviledge in respect of Copy-holds.
  • CAP. IV. The nature of Custom in general, and the general Maxims of it. What things are requisite to make a good Custom. Time out of memory, what, and explained. What shall be said an Interruption of Custom or not. The unreasonableness of Customs by whom to be judged. Several particular Customs ratione loci. Of enabling and disabling Customs. Of Customs and Prescriptions, and the different manner of Pleading them. The several sorts of Prescriptions, and how and where Prescription must be made, and by whom. And when a Cu­stom shall be said to be persued or not.
  • [Page] CAP. V. Of particular Customs enabling or disabling in respect of the Lord, of the Tenant, and of the Estate li­mited or leased, and in respect of Discents.
  • CAP. VI. Customs of Manors as to Wives and Widows of Co­py-holders, what are good and what not. And where the severance of the customary Tenements from the Manor shall not prejudice the Copy-holder.
  • CAP. VII. Customs as to Timber, Woods and Under-Woods, and what Prescription by a Copy-holder to cut Trees, &c. shall be good or not.
  • CAP. VIII. Customs as to Commons, and where severance of the customary Tenements from the Manor by the Lord, shall not prejudice, and how the Copy-holder in such Cases shall be relieved by his Pleading.
  • [Page] CAP. IX. Of customary Incidents or Collateral Qualities of Co­py-hold Estates, and how guided, with the Illustra­tion of several particular Cases.
  • CAP. X. The several sorts of Copy-holders, and who shall be said to be customary Tenants. Of Copy-hold Bur­rough English. Of the Court. Two sorts of Courts Baron. Of the Copy-holders Court. Who may keep Courts, and to what purposes, and where. Of the Steward, his Office and power of Deputation, and what he may do ex officio, or not.
  • CAP. XI. What things may be granted by Copy of Grants by the Lord, Legitimus Dominus pro tempore. What Grants by Disseisor Infant, &c. shall be good, void or voidable. Grants in respect of the Lords Per­son or Estate, what shall be good or not. Of Grants by the King (Lord.) Who shall be said a Lord sufficient to grant Copies. What amounts to a Grant, at what place to be granted. Of Grants by the Co­py-holder to the Lord.
  • [Page] CAP. XII. Exposition of Grants. By what words in Grants Co­pyholds shall pass or not. What thing shall pass by Grant of another thing, as Appurtenant or Inci­dent.
  • CAP. XIII. Of Surrenders. The nature of a Surrender. Gene­ral Rules and Diversities for the Explication. Of the Alienation of Copy-hold Estates in general, and of the selling of Copy-holds by Commissioners of Bankrupts in particular. Of Surrenders 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.
  • CAP. XIV. What shall pass and by what words in a Surrender. Of Attornment. The Construction and Exposition of a Surrender. Where no Use or Estate is im­mediately limited in whole or in part; and where an Use is limited how far the construction shall be guided according to the Rules of Common Law, or not. Of use upon Use. Surrender to the Use of ones Wife. Where a Surrender is void for the un­certainty. Of a Surrender to the Use of a person [Page] not in esse, and of a Surrender to take effect in futuro.
  • CAP. XV. Constructions of Surrenders as to Limitations of Re­mainders and Reversions. Of contingent Remain­ders. Where the Heir shall be in by Discent or Purchase. Of a Surrender to the Use of ones last Will, and how to be construed. Surrender up­on Condition or Contingency. Of Surrender before Admittance. Surrender, by whom and to whom. By a Feme Covert Countermand of a Surrender, and what Remedy to force a Trustee to Surren­der.
  • CAP. XVI. Of Presentment, how and when to be made, how to be pursuant to the Surrender. Of the death of Surrendror, or cesty que use, or of the customary Tenants before Presentment or Admittance. Two Surrenders, and the second first presented.
  • CAP. XVII. Of Admittances upon voluntary Grants. Surren­ders and Discents. By whom Admittances upon Surrender made shall bind. In what Cases the Admittance of one shall be the Admittance o another. Of Admittance by Attorny. Admit­tance where to be made. Of Admittance upon [Page] Discent. 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 before Admittance. In what case the Lord shall be compelled to ad­mit.
  • CAP. XVIII. Fines certain, uncertain. Fines upon Discent or Pur­chase. Of excessive Fines. What Customs are good as to payment of Fines. Of Fines as to Re­mainders. What refusal to pay a Fine shall be a Forfeiture or not. How the Lord shall recover his Fine.
  • CAP. XIX. Of the Entayling Copy-hold Estates. The diffe­rent Opinion of the Judges, with an Abstract of the Reasons or Arguments how Copy-holds are or may be Intayled, and when the Law setled as to that point. How such Copy-hold Intayls may be barred. And what Acts of a Copy-holder may be a Discontinuance.
  • CAP. XX. Of Leases of Copy-hold Estates. Leases by the Lord, and Rent reserved, and his remedy. Of Leases made by Copy-holders. What Leases are a Forfeiture or not. When a Licence to make a Lease [Page] shall be said to be pursued or not. Commence­ment of Leases. Leases, by whom made. Bi­shops Tenants in Tayl. Infant. Of Rents. What things are demisable by Copy.
  • CAP. XXI. Of Licences. What Licence shall be good. By whom made shall bind or not. Licence taken for a Con­firmation. When, and where, and how a Licence is to be pleaded specially.
  • CAP. XXII. What shall amount to a Forfeiture. Non-fezance, Mis-fezance. Of refusal of Rent, Services, &c. Non-appearance at Courts. Of making Leases not warranted. What shall be said a Covenant and so no Lease, and so no Forfeiture. What alienati­on shall be a Forfeiture or not. Of Forfeitures by Waste in Trees. By Attainder of the Tenant. What act of the Husband shall forfeit the Wives Lands or not. Who shall take advantage of a For­feiture. Where the Lord shall take advantage be­fore a Presentment or not. Where the Forfeiture of one Copy-hold shall be the Forfeiture of another, either as to Estates or Persons. What shall be a dispensation of a Forfeiture; and if the Heir shall take advantage of a Forfeiture made in the Life of his Ancestor.
  • [Page] CAP. XXIII. Of Extinguishment of Copy-holds. How Copy-holds are destroyed by the act of the Lord, or of the Copy-holder. Where and how a right to a Copy-hold shall be estopp'd or extinguished, by acceptance of a new Estate, or release of the old. Where and in what Cases a Copy-hold shall be suspended, and revived or re-granted.
  • CAP. XXIV. How and where a Copy-holder shall hold his Land charged or not. Of charges by the Lord Copy-hold­er, as Dowers, Rent-charges, Statutes, &c. and by whom they shall be avoided.
  • CAP. XXV. Of Harriots. The nature of Harriot-Custom and Harriot-Service, 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 [Page] 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.
  • [Page] 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 [Page] 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.

[Page 1]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.

[Page 2] 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.

[Page 3]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; [Page 4] 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 that Copy-hold Land may well be parcel of the Demesns, and the Frank-tenements are resting in the Lord, but indeed the customary Inheritance is in the Copy-holder, and he shall plead, That he is seized (with this farther addition) In Dominico suo ut de feodo secundum consuetudinem Manerij.

Services.As for Services, whether Corporeal, Annual, or Accidental, they are Duties accrewing to the Lord by reason of his Seigniory. And respecting Copy-holds, I shall under their pro­per Titles hereafter speak of Herriots, For­feitures, Amerciaments and Fines for not doing Suit and Service, and the like.

It was ingeniously said by Doddridge, in Herns and Strouds Case, Latch, 63. That no Case re­sembles a Manor more than a Rectory: as a Manor is intire so is a Rectory, and the Glebe Lands resemble the Demesns, and the Tythes the Services.

If I let my Manor excepting the Demesns, the Exception is void, Winch p. 23.

Description of a Manor.The New Expositor of Law-Terms, describes a Manor, as a thing compounded of divers things; as of an House, Land, Arable, Pasture, Meadow, Wood, Rent, Advowson, Court Ba­ron, and the like; and this ought to be by long continuance of Time, to the contrary whereof Man's Memory cannot occur.

So that a Manor consists of Demesns and Services,Manor not made at this day. and a Court Baron as Incident, and this must be time out of Memory, for a Ma­nor cannot be made at this day, because a Court [Page 5] Baron cannot now be made;To a Manor, a Court-Baron is incident, and two Suitors at least. and a Manor can­not be without a Court Baron, and Suitors or Freeholders, Two at the least; for if all the Free-holds except one Escheat to the Lord, or if he purchase all except one, there his Ma­nor is gone, for that it cannot be a Manor without a Court Baron, and a Court Baron cannot be holden but before Two Suitors at the least. A Court Baron is incident to a Manor, as a Court of Pye-powders to a Fair. By the Grant of a Manor cum pertinentijs, the Court passeth, and a Man cannot grant his Court, but he may grant the Profits of his Court, 1 Brownl. 175. Browns Case.

Now though a Man cannot make a Ma­nor at this day, yet he may make Gifts in Tayl, reserving a Tenure and Suit of Court,Yet a Tenure may be created. because, though he may create a Tenure, yet he may not create a Court, and a Court cannot be but with a continuance time out of mind, 35 H. 8. Broke Tenure, 102.

A Manor, as I said before, may not be made at this day, neither by a common person,The King can­not make a Manor, or par­cel of a Ma­nor at this day. nor by the King himself; and the King cannot make a thing parcel of a Manor at this day; as if he grants Lands to hold of him, as of the Manor of Greenwich, by a certain Rent, this Rent is not parcel of the Manor. Yet though a Seigniory or Appendancy cannot be made at this day, yet if an Advowson be Ap­pendant to a Manor,Advowson ap­pendant. and the Lord grants part of the Manor with the Advowson to J. S. it is now Appendant to that part, Cro. El. p. 39. Morris and Smith.

In truth, Manors cannot at this day be creat­ed but by way of derivation, as being deri­ved out of an ancient Manor,Manor by de­rivation. or by act in Law, as in the Case of Copartners. Vide infra.

[Page 6] A Manor is entire.A Manor is an entire thing, and cannot be divided. If the Lord will transfer over unto a Stranger the Services of all his Tenants, and reserve unto himself the Demesns, or if he will pass away the Demesns, and reserve the Services; Now in both Cases the Lord hath not a Manor really, but nominally only and in reputation;Manor in re­putation. and if I am disseised of a Ma­nor, and the disseisor sever the Demesns from the Services, as it is 4 E. 4. I which have right, ought to make my demand according to my right, and not to take notice of his severance, for to me it is a Manor still.

Manor in sus­pence.If a Manor descendeth to Co-partners, and they make partition, and the entire Demesns are allotted to one, and the entire Services to the other, the Manor is now in suspence, for neither hath a Manor but in name only; but if part of the Demesns and part of the Ser­vices be allotted to each, then they each of them have a real Manor, 26 H. 4.8. 6 Rep. 64. Sir Moyle Finch's Case. To Explain this, I shall cite a Case or two.

Joynt-tenants make partiti­on of a Ma­nor, yet both keep but one Court.If two Joynt-Tenants make partition this day of a Manor, and each of them hath Demesns and Services, yet each of them hath not a Ma­nor, nor can keep several Courts, but must both keep one Court, Croke El. p. 39. Morris's Case.

A. seized of a Manor, whereof part of the Tenants were Freeholders and part Copy-holders; had Issue two Daughters, and dy'd; the Daughters entred and made partition of the Demesns only, but the Services of the Free-holders and Copy-holders remain'd in Com­mon. By the partition the Demesns are now become in gross, and severed from the Ma­nor; and if partition be made of a Manor so, as the Demesns be allotted to one Sister, [Page 7] and the Services to another, now the Manor is dissolved (or rather suspended;Manor sus­pended and revived.) yet if the other Sister dyes without Issue, and her part descendeth to the other, now it is become a Manor again, 1 Leon. p. 204. Thetford's Case.

By this you see we read in our Books of two sorts of Manors.

1. A real and perfect Manor, such as is be­fore described.

2. A nominal Manor, a Manor by reputation,A Manor no­minal. as you may see by several Instances before. Some call it a Manor in gross; as,Manor in gross. a man may have the Right and Interest of a Court Baron with the Perquisites thereunto belonging; but this is improperly called a Manor in a strict sense, and another may have the Scite and every Foot of Land thereunto belonging. And as to this, I will only cite a Case which refers to practice, 6 Rep. 64, 65. Sir Moyle Finch's Case. Reputation is sufficient to pass a thing in a Conveyance by the name of a Manor,Manor in re­putation will pass by the name of a Ma­nor in a Con­veyance, not in a Fine. which is not re vera a Manor, yet it ought to be in truth and not reputation, which ought to chal­lenge and hold Priviledge of a Manor, as to have a Court Baron, &c. But a Manor in re­putation which is not in truth a Manor, will not pass by the name of a Manor in a Fine or Common Recovery, for they shall not be taken by intendment, Croke Eliz. 524. Mallet's Case.

Of Customary Manors.

A customary Manor may be held by Copy, and such customary Lords may keep Courts and grant Copies, and such customary Manor may pass by Surrender and Admittance, 11 Rep. 17. Sir H. Nevil's Case. And so it is re­solved in More and Goodgame's Case, Croke [Page 8] Jac. 327. That within one Manor there may be another Manor demisable by Copy, and with­in that Manor there may be customary Te­nants; for as well as there may be a Tenant at will of a Manor at the Common Law, so there may be a Tenant at will according to the Custom of the Manor. Vide infra, sub titulo Courts.Pleading. But the way of pleading it must be thus. That such a Manor hath been used time out of mind to be granted by Copy, and also that time out of mind, such Grantees had used to hold Court Barons, and to grant Copies of Court Rolls to others, and so to prescribe in this time out of mind, 1 Bulstr. 57. The King and Stafferton. Yelv. p. 190. mesme Case. The Manor of Haylsham in the County of Norfolk, is held by Copy, and such a Manor by Escheat ceaseth to be a Manor. For by the Escheat the Services be extinct, and one Court Baron only shall be held after the Escheat. But though one Manor may be held of another Manor,One Manor cannot be par­cel of another. yet one Manor may not be parcel of another Ma­nor, and both be in esse at the same time; for being Liberties and Franchises of the same na­ture, non possunt stare insimul. More's Case.

The Lord may create a customary Ma­nor.Though the Lord by his own act may not make out of one Manor at Common Law, di­vers several Manors, consisting of Demesns and Freeholds, yet he may well by his own act make a customary Manor, consisting of Copy-holds, and they shall hold Court. As if he grant the Inheritance, or makes a Lease of all his Copy-hold Lands for two thousand years, the Grantee or Lessee may hold Court for the Co­py-holders, 4 Rep. 26, 27. Melwyche's Case, and Neal and Jackson's Case. Vide infra, sub ti­tulo Courts. For they have a kind of Seigni­ory in gross, and may keep a customary Court [Page 9] where the Steward shall be Judge, and shall take Surrenders and make Admittances.

Of Grants and Leases of a Manor, and how Ser­vices shall pass, and what and when shall be said to continue as parcel of the Manor, after a Grant or Lease, and what shall be a severance.

A man seized of a Manor, leaseth part of the Demesns for Years or Life,Reversion. the Rever­sion remains parcel of the Manor.

A man seized of a Manor in the right of his Wife, Leased part of it for Years, with­out his Wife; the Reversion thereof is not par­cel of the Manor. Contrary if the Lease had been made by the Husband and Wife.

By Feoffment of the Manor, the Services do not pass without Attornment, Lit. 127.Attornment. 6 Rep. Bracebridge's Case.

If a man make a Feoffment of a Manor in which are Tenants at will according to the Custom, there Services shall pass by the Feoff­ment, without their Attornment, Rolls Abridg­ment 293.

By a Grant of all the Demesns, the Waste passeth, unless excepted, 2 Keb. 558. North and Howland.

W. H. was seized of twelve Acres, holden of the Manor of W. by Suit and Services, and devised to the Defendant F. H. in Tayl, the remainder in Fee. After which F. H. purcha­sed the Manor; this being by purchase, maketh not the Land parcel, but by Escheat it doth. 2 Keb. Holmes and Hanby. But this Case is more clearly Reported by Mr. Siderfin, as follow­eth.

[Page 10] If one who had Land held of a Manor, be Tenant in Tayl of it, and the Manor is given to him, the Land in Tayl shall not pass by Grant of the Manor.The Lord of a Manor deviseth to J. S. the Manor in Tayl, the remainder over: J. S. had twenty Acres in Fee, which were held of the Manor by Suit of Court, and he being so seized of all, conveys the Manor to A. in Fee; Per Cur. these twenty Acres shall not pass as De­mesn of the Manor, for if it pass as part of the Demesns, this ought to have been so time out of memory; and there is a diversity be­tween Land Escheated, which comes in lieu of other Land, and Land purchased as this was, Siderfin 284. Holmes and Hanby.

Lands holden in Fee of a Manor, are not par­cel of a Manor, but the Rents and Services is­suing out of it are parcel of the Manor, Brook, Manor 2.22 H. 6.53.

Reversion.If a man let all the Demesns of a Manor for Life, rendring Rent, yet the Reversion is par­cel of the Manor, and it shall pass by the grant of the Manor, Dyer 6. 7 El. 10.

Attornment.If a man let ten Acres of the Demesns of a Manor, for ten years, rendring Rent, and after­wards demiseth the entire Manor, by the name of a Manor, &c. for twenty years, to com­mence at a day to come. An Interest in the ten Acres shall pass to the Lessee of the Ma­nor, after the expiration of the first ten years, although no attornment be by the first Termor, for this shall pass as parcel of the Manor, and not as a Reversion, for the ten Acres were never severed from the Manor, but the Free-hold and Fee of it remains parcel and mem­ber of the gross and body name of the Ma­nor, Dyer 18 El. 350.18. Pl. Com. Bracebridge's Case, 423.

Without express Grant, the Copy-hold can­not be severed by any distinct reservation or service, yet the entire Manor may be held by [Page 11] different Services, as to the Demesns,How Copy-hold may be severed from the Manor, and how not. altho' not the Services, as well by the Grant of the King, as of a common person, without dis­joyning any part of the Manor, as reservation of one Service on the Grant of the Manor, another on the Advowson. 1 Keb. 720. Lee and Boothby.

After partition of a Manor by Coparceners,Coparceners. one party cannot Lease her part by the name of the moity of the Manor, 1 Anders. 222.

It was cited by Richardson and Hutton, Note. to be one Hurston's Case,Ejectment. That an Ejectment cannot be of a Mannor, because there cannot be an Ejectment of the Services; but if they express farther a certain quantity of Acres, it is suf­ficient, Hetly, p. 80. Norris and Isham. Neither is it safe to bring Ejectment of a Manor, unless the attornment of Tenants be proved, Hetly 146. Warden's Case.

Pleadings.

Unum Maner. parcel. alterius, Ra. Entr. 25.271.357. Terre pleded esse parcel del Mannor us (que) concession' tali die. 1 Rep. 431.

CAP. II.

The Notion and Nature of a Copy-hold, as to its Basis and Foundation. How a Copy-holder and Tenant at Will differ. The general Maxims of Copy-hold Estates Ex­plicated, and thereby the ensuing Cases in this Book rendred more easy and intel­ligible.

THE Stile of a Copy-holder imports three things, according to my Lord Coke Lit.

1. Nomen, his Name, and that is Tenant by the Copy of Court Roll, not Tenant by the Court Roll, but Tenant by the Copy of Court Roll; and he is the only Tenant in Law which holds by the Copy of any Record, Deed, or Charter, or any other thing; forasmuch as the Title or Estate of the Copy-holder is entred in­to the Roll, whereof the Steward delivereth him a Copy, thereof he is called a Copy-holder. But by the Custom of Godmanchester in Huntingtonshire, they pass their Estates, by writing on wooden Indented Tallies.

2. Originem or Commencement, ad volunta­tem Domini, for originally he was not but a bare Tenant at Will to the Lord. Quod quis tempe­stive & intempestive resumere possit pro voluntate sua & revocare, Bract.

3. Titulum, his Title or Assurance, secundum consuetud. Manerij; for the Custom of the Ma­nor had fixed his Estate, and assured the Land to him, so long as he did the Services and Du­ties, and performed the Customs of the Manor, 9 Rep. Comb's Case.

[Page 13]Although a Copy-holder had not in Judg­ment of Law, but an Estate at Will, yet Cu­stom had so establish'd and fixt his Estate, that this by the Custom of the Manor is descen­dible, and his Heirs shall Inherit it, and there­fore his Estate is not meerly ad voluntatem Dom. but ad voluntatem Dom. secundum consuetudinem Manerij, so that the Custom of the Manor is the life and soul of Copy-hold Estates; for without a Custom, or if they break their Cu­stom, they are subject to the Will of the Lord. And by Custom a Copy-holder is to have his Land according to the Custom, as he which had Freehold at Common Law; as you may see by many Cases in 4 Rep. 21. Brown's Case.

Copy-hold at Common Law is but an Estate at Will; but the Common Law so takes notice as to establish it by Custom, that there may be a possessio fratris of it, and he may have Tres­pass against his Lord. And as Copy-hold is created by Custom, it is guided by Custom.

A Copy-holder doth not derive his Estate out of the Estate or Interest of the Lord only, for then the Copy-hold Estate should cease When the Estate of the Lord determined; but the Copy-holder is in by the Custom, 4 Rep. 23. a.

Yet it is but a base Estate, and not look'd up­on so worthy as Freehold. And therefore in Indictment sur Stat. 8. H. 6. of forcible Entry, for expelling one Syms from his Copy-hold. The Exception to it was because (disseisivit) was not in the Indictment, and yet it is good; for though the Statute 21 Jac. 15. gives resti­tution of Possession to Tenants for years and Copy-holders, in which there shall be an En­try or Deteiner by force: yet the Statute doth [Page 14] not give an Indictment of forcible Entry of a Copy-hold; but by Noy a Copyholder now shall have an Indictment of forcible Entry, but (disseisivit) shall not be in it, for no Jury can find that, for it is impossible, because a Copy-holder hath no Freehold, but he shall have a Pleint in nature of an Assise against a Stranger, Syms's Case, Mich. 2 Car. B. R.

Note, This Custom goes not to Collateral things; as, Entries upon Condition, vid. the Chapter of Collateral Incidents, infra.

A Copy-hold as to passing Estates, is in many Cases like a Will, and therefore a party shall take by the Habendums in the Admittance, which was no party to the Premisses. Vide infra. Tit. Surrender.

How a Copy-holder and a bare Tenant at Will differ.

Tenant at Will, according to the Custom of the Manor, may have an Estate of In­heritance; but a Tenant by the course of the Common Law, not so. Therefore, if a man seized of Lands (which are not custo­mary) and lets them to another, to have and to hold to him and to his Heirs, at the will of the Lessor, these words (to the Heirs of the Lessee) are void: for if Lessee dyeth, his Estate is absolutely determined, and if his Heir enter, Lessor shall have a good Action of Trespass, vi & armis, before any Entry made by him; otherwise of a Tenant according to the Custom of the Manor.

Fealty.Tenant at Will, who may be put out at the pleasure of the Lord, shall not do Fealty; for to what purpose were it, to swear to do his Customs and Services, when he hath no certain [Page 15] Estate? but a Copy-hold Tenant shall do Feal­ty, which proves he hath a fixed Estate, so long as he observes the Customs of the Manor, Coke Lit. 1.62, 63. And the Copy-holder may justifie against his Lord, and so cannot a Te­nant at Will; and he shall have the Aid of his Lord in an Action of Trespass, 1 Leon. p. 4.

If a Tenant at Will be Outlawed, his Estate is determined, but a Copy-hold is not forfeit­ed or determined by Outlawry, Littleton's Rep ▪ 234.

As for Tenants by the Verge,Tenants by the Verge. they are but Copy-holders, and have no other Evidence but by Copy of Court Roll; but they are so cal­led, because when they Surrender, they deliver a little Rod into the Stewards Hand, the which they deliver to the Steward, and he shall de­liver the Rod to him that takes the Land in the name of Seisin. It may be any other thing as well as a Rod, according to the Custom, as a single Penny, a Glove, &c.

Maxims of Copy-hold Estates.

1. When there is no Custom to guide Co­py-hold Estates, they shall be directed by the Rules of the Common Law. Vide this more Explained, Maxim 3, 4.

2. Copy-holders have no other Evidence con­cerning their Tenements, but only the Copies of Court Rolls. This is to be understood of Evidences of Alienation, for a Copy-holder (that comes in by way of Admittance) may have a Release of a right by Deed, and that is sufficient to extinguish the right of the Co­py-hold, which he that maketh the Release had, Lit. Sect. 75. Coke Lit. 60.

[Page 16]3. When the Custom hath created Estates of Inheritance, and that the Land shall be de­scendible, then the Law shall direct the de­scent, according to the Maxims and Rules of the Common Law, as incidents to every Estate descendible; therefore there shall be a possessio fratris to make the whole Blood to Inherit be­fore a Son by the second Venter; and this shall be tho' the elder dyes before Admittance; but such customary Inheritances shall not have by the Law any other collateral Qualities, which concern not Descents of Inheritance, as other Inheritances at Common Law shall have. There­fore such Copy-hold Inheritance shall not be Assets to charge the Heir; nor shall the Wife be endowed, nor the Husband Tenant by the Courtesie, without special Custom, 4 Rep. 22. b. Brown's Case.

4. As well Estates as Descents shall be directed by the Rules of Law, as necessary Consequents upon the Custom (unless there be a special Custom in the Manor; as, sibi & suis, sibi & as­signatis) may make an Estate of Inheritance. Therefore a Surrender to the use of A. without any Limitation, is but an Estate for Life, 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 [Page 18] 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.

[Page 19]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. Its 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 [Page 20] 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 [Page 21] 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 [Page 22] 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 [Page 23] 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, lets 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 [Page 24] 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 groweth to perfection in this manner. When a reason­able Act once done is found to be good, and [Page 26] beneficial to the People, and agreeable to their nature and disposition, then do they use it and practise it again and again, and so by of­ten iteration and multiplication of the Act, it becomes a Custom; and being continued with­out interruption time out of mind, it obtain­eth the force of a Law. So that Custom in the intendment of Law, is such an Usage which hath obtained vim Legis, and is revera, a bind­ing Law to such a particular place, persons and things wherein it is concerned. Davis's Preface to his Reports.

Custom then may be defined a reasonable Act, iterated, multiplied and continued by the People, time out of mind.

Custom in some Cases alters the nature of Free-hold, 5 Rep. 84. Pennyman's Case, A fortiori of a Copy-hold, Hetly, p. 126, 127. Turner and Hodges.

Consuetudo privat communem Legem. Custom is a ground and need not be proved, for the reason of every Custom cannot be shewed, as it was said in Knightly and Spencer's Case: But though Custom takes away Common Law, yet Common Law corrects, allows, and disal­lows both Statute Law and Custom; for if there be repugnancy in Statute, or unreason­ableness in Custom, the Common Law disal­lows and rejects it, as appears in Dr. Bonham's Case, 8 Coke 27.

Now Custom being the life and soul of Co­py-hold Estates, I shall in the next Chapter largely treat thereof in the full extent of it.

Maxims of Customs.

1. A Custom shall in construction be taken strictly, and shall not be extended beyond the [Page 27] words of it. One intituled himself to a Copy-hold in this manner, That within the Manor there is such a Custom, that if one taketh to Wife any customary Tenant of the Manor in Fee, and hath Issue by her, if he over-live the said Wife, he shall be Tenant by the Curtesie. The Case was, he married a Wife, who at the time of the marriage had no Copy-hold; but afterwards, during the Coverture, a Copy-hold descended to her. It was held in Sir John Sa­vages Case, cited in Beal and Langly's Case, 2 Leon p. 208. That no Tenancy by the Cur­tesie did accrew by the Custom, which did not extend, but where the Wife was a Copy-holder at the Marriage. So a Custom was, If a Co­py-holder in Fee dyes, having Issue Three Daughters, the eldest shall have all. The Case was, A Purchaser of a Copy-hold dyes with­out Issue, having many Sisters, they shall be C [...]parceners, for the Custom extends only to Daughters. So Burrough English, The middle Brother Purchaseth Lands, and dyes sans Issue, the eldest shall have it and not the youngest, 2 Rolls Rep. 368. So a Custom which goes in bar or deprivation of an Estate, shall be taken strict­ly, Carter's Rep. 87, 88. Yelv. p. 1. Baspool's Case. Forfeiture of a Copy-hold for Life, shall not forfeit the Remainder. Custom was, If any Copy-holder in Fee Surrender out of Court, and the Cesty que use doth not come into Court to take his Copy-hold, after three Proclamations, then the Lord shall seize it, as forfeited: And if a Copy-holder in Fee surrender to the use of one for Life, remainder over in Fee, and Te­nant for Life comes not in Court upon the Proclamations, this shall not forfeit the re­mainder, The Custom shall be taken strictly, being in destruction of an Estate, and it shall [Page 28] be intended only of a Tenant in Fee, in pos­session, and not in remainder, 1 Rolls Abr. 568. Baspool and Long. And yet it shall not be taken li­terally always, as in the common Case. Custom to grant Lands in Fee-simple, yet they may grant in Tayl, for Life or Years; but that stands upon this Rule, Omne majus includit in se minus.

2. Customs are to construed according to vulgar apprehension, because Customs grow ge­nerally, and are bred and brought up amongst the Lay-gents, therefore they are called Vul­gares Consuetudines, and they shall be interpre­ted according to the most effectual operation of the Law, Stiles 146.

3. Custom does not trench to things collate­ral to the Estate; such as Entries for Condi­tions. Copy-holder by Licence lets the Land for 60 years rendring Rent, upon condition of re-entry; Copy-holder surrenders to J. S. in Fee, who demands the Rent, which not being paid, Enters: His entry per Cur. is not good, for Copy-hold Land is not within the Statute of Conditions; nor the Surrender of such a Copy-hold, such an Assignee as the Statute intends, he being in only by Custom, is not privy to the Lease made by the first Copy-holder, nor in by him, but may plead his Estate immediate­ly under the Lord, Yelv. p. 222. Brasier and Beal.

4. When a Custom warrants a greater Estate, it warrants a less. The Custom was, That Copy-hold Lands may be granted to any person in Fee-simple; A Grant to one and the Heirs of his Body is within this Custom: So a Grant for Life or Years: And a Fee-simple includes all, 4 Rep. 23. The Custom is to grant for one, two or three Lives; A Grant to one durante viduitate is good, 4 Rep. 29. Down and Hopkins. Cro. El. p. 323. mesme Case.

[Page 29]5. Custom of a Manor cannot extend out of a Manor; therefore it ought to appear in Pleading, That the Locus in quo, &c. est infra Manerium, Hobart, p. 286. Roberts and Young.

6. Custom may enlarge a Grant farther than Common Law; as, Sibi & suis. So to one and his Heirs, by Custom may be re­strained to particular Heirs, 2 Keb. 158.174.

7. If a Custom hath a reasonable commence­ment, it may be good. And therefore a Custom for Copy-holders to have, solam & separalem pasturam, may have a reasonable commence­ment by voluntary Agreement of the Lord with his Copy-holders, to induce them to hold their customary Estates at Will, and bestow their pains and labour in improvement, Sanders 2. p. 326, 327. Robins and Hoskins. Vide Vaughan Rep. North and Coe, good reasons for the con­trary Opinion.

8. What may be claimed by Prescription may be good by Custom, and what may have commencement by Grant, may be claimed by Prescription, 2 Sanders 326.

9. A Custom never extendeth to a thing newly created. If there be a Custom within a Manor, That for every House or Cottage two shillings Fine shall be paid; now if the Te­nant make two Houses of one, he shall pay no Fine, for the new made House; But alteration of Rooms alters not the case in Prescription.

10. Custom is an entire thing, and cannot be apportioned; yet this Rule shall not bind-the King. Vide supra.

11. Consuetudo semel reprobata, non potest am­plius induci: As Continuance makes the Custom, so Discontinuance destroys it.

Custom. What things are requisite to make a good Custom.

Four things are required to make a good Custom.

  • Antiquity.
  • Continuance.
  • Certainty.
  • Reason.

1. Antiquity. Every Custom had a begin­ning, although the Memory of man doth not extend to it. And this is one of the grand Pillars of Copy-hold Estates: Therefore in 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 [Page 31] 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 [Page 32] 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 [Page 33] 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 its 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 [Page 34] 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 [Page 35] 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 [Page 36] 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.

[Page 37]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 [Page 38] 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, or of the nature of Gavel-kind, &c. but by common intendment they may not have a lawful commencement by Grant or Agreement, but by Act of Parlia­ment, Gatward's Case, 6 Rep.

So 4 Rep. 32. in Foyston's Case. Prescription is personal, and is always made in the name of a person certain, and his Ancestors, or of those whose Estate he hath: But Custom is local, and alledged in no person; but that within a Manor, &c. is such a Custom; and this shall serve for those which cannot Pre­scribe in their own name, nor in the name of a person certain. In Gateward's Case, 6 Rep. Defendant justifies in Trespass by Custom, That all the Inhabitants in such an Ancient Messuage, within the Vill of D. ratione com­morationis, have used to have common of Pa­sture in loco in quo, &c. this is ill pleaded, for in this word, Inhabitants are included Tenants in Fee, for Life, Years, by Elegit, at Will, and also he that hath no Interest, but Habitation only. Now Tenant in Fee ought to Prescribe [Page 39] in his own Name,Tenant in Fee in whose name to Prescribe, in whose name others. and the others which have Interest in the name of the Lord, and he that hath no Interest cannot have Com­mon. But there is no one that hath an In­terest, be he Tenant at Will, but by good Pleading he may enjoy it. Now Copy-hold­er in Fee or for Life, may by Custom of the Manor have Common in the Demesns of the Lord of the Manor, but then he ought to alledge the Custom of the Manor to be Quod quilibet tenens customar cujuslibet anti qui Me­suagii Custumarii, &c. How a Copy-holder shall plead. and not Quod quilibet In­habitans infra aliquod antiquum Mesuag. Custumar. &c. And a Prescription for the Inhabitants to be discharged of Tythes by a Modus, or Free­men of London to be discharged of Wharfage, &c. must be pleaded by way of Custom,When a thing must be plead­ed by way of Custom, and when by way of Prescripti­on. and not by way of Prescription, because the In­habitants or Freemen cannot Prescribe in their persons, and therefore are allowed to lay a Custom for their Discharge, and the na­ture of the things is not changed, but remains still a Prescription in his kind, though it be al­lowed to be pleaded by way of Custom, for necessity sake. And in Gateward's Case, a thing lying properly in Prescription, as Com­mon did in that Case, being an Interest which must inhere in some body,Common for Copy-holders in the Lords Soyl must be pleaded by a Custom in the Soyl of another by Prescription. cannot be pleaded by way of Custom, as there they would have made it for Inhabitants, that are not perma­nent to Prescribe; but yet Common for Co­py-holders in the Lords Soyl, is allowed to be pleaded by Custom, for necessities sake; where­as in the Soyl of another, it must be laid by Prescription in the Lord, and yet the nature of both is a Prescription; but a matter of dis­charge may be laid by way of Custom, for that is not an Interest but an Exemption; [Page 40] thus that great man, my Lord Hobart, p. 86. in Day and Savage his Case.

My Lord Coke in the Argument of Rowls and Mason's Case, makes four differences be­tween Prescription and Custom.

1. In the beginning, pugnant ex diametro, for nothing may be good by Prescription, but that which may have beginning by Grant.

2. Prescription is incident to the Person, and Custom to some Place, and holds place in ma­ny Cases which cannot be by Grant. As Lands may be devised by Custom: So Gavel-kind and Burrough English, &c. which cannot have their beginning by Grant. But Prescription and Custom are Brothers, and ought to have the same Age, and Reason ought to be the Father, and Congruence the Mother, and Use the Nurse, and Time out of Memory to For­tifie them both.

3. They vary in Quality; for Prescription is for one man only, and Custom for many, if all but one be not dead.

4. They vary in Extent and Latitude; for Prescription extends to Fee-simple only, but Custom extends to all Interests and Estates whatsoever, as appears by the Pleading. Pre­scription that a Copy-holder of Inheritance may sell the Trees, is not good, but such a Custom is good. Tenant in Tayl for Life or Years cannot Prescribe in a Que Estate, nor against the Lord in his Demesns,Who may prescribe in a Que Estate or not. but they ought to alledge the Custom, and against a Stranger they ought to Prescribe in the name of the Lord, 2 Brownl. 198.

In a Manor the Custom was, That every Copy-holder for Life, had Estovers for Fuel, &c. in the customary Lands: Now if the Lord aliens the Woods, &c. in Fee, and after Grant [Page 41] Copy-hold Lands and Houses for Lives, the Grantees shall have Common of Estovers, Pa­sture, &c. notwithstanding the Severance; but after such Severance of the Waste or Woods,Common is due to the Copy-holder, notwithstand­ing Severance by the Lord, and how to be pleaded. the Copy-holder, when he would entitle himself to Common or Estovers, the Copy-holder shall not plead generally, Quod infra Manerium praed. talis habetur, &c. consuetudo, &c. for after the Se­verance, this Waste or Wood is not within the Manor, but absolutely divided from it; but he shall plead, That until such a time (viz.) before the Severance Talis habebatur & a toto tempore, &c. consuetudo, &c. and then shew the Severance, as in Murrel's Case, 4 Rep. So he must do where the Lord aliens the Freehold and Inheritance of the Copy-holder, Swain's Case, 8 Rep.

2. It is said a Prescription goeth to one man, and a Custom to many, 1 Brownl. Rep. 133. in Rowls and Mason; and yet in Foystons Case, 4 Rep. the Custom for Common may be applied to one single Copy-holder.

3. The Allegation of a Custom shall serve when it is referred to a thing insensible, as that such Lands are devisable, &c. Foystons Case.

There is nothing more common than for the Lord to Prescribe for his Tenants, by Copy in another mans Land, whereas if it be laid in his own, it shall ever be laid by Custom, Ho­bart, p. 286. Roberts and Young.

There is a difference between a Prescripti­on for Freehold Land and for Copy-hold Land; for Custom which concerneth Freehold,Difference be­tween a Pre­scription for Freehold Land and for Copy-hold Land. ought to be throughout the County, and can­not be in a particular place, 45 Ass. but Pre­cription concerning Copy-hold Land, is good in one particular, Cro. El. p. 353. Taverner and Cromwel.

[Page 42]4. A Prescription must be in a thing done, and not in posse, therefore a Custom that Quaeli­bet femina vira cooperta poterit devisare, her Copy-hold Inheritance to her Husband, is not good, 3 Leon. 83. Skipwith's Case.

To Customs and Prescriptions, these two things are inseparable Incidents, viz. Possessi­on or Usage,Interruption 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 [Page 43] 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.

[Page 44] (Solummodo) how expound­edIf 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.

[Page 45]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 [Page 46] 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 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.

[Page 47]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

[Page 48] 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; its 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. Its avoided by Law, for its 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.

[Page 49]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, its 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. Its 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 [Page 51] 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, its 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. its a good Custom, for then the Lord may know his Tenant, and the Te­nant may have the Estate and pay his Fine. Its 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; its 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; its no good Custom, More, n. 27.

[Page 52] 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 [Page 53] 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; and so the Custom of Taun­ton-Dean, That if a Copy-holder in Fee marries a Wife,If the Wife survives she shall have the Fee. if the Wife survives she shall have the Fee, & sic e converso, agreed to be good, Noy Rep. p. 2.

There can be no Dower nor Tenancy by the Curtesie of the Copy-hold, unless by special Custom, 1 Anderson 292.

Lease made before admit­tance.A man may be Tenant by the Curtesie by Custom. Though the Husband enter into the Land in the right of the Wife, before admit­tance, and the Wife dyes before admittance, his Lease shall be good, 1 Anderson 192. Ewer and Astwick.

It was admitted by the Court to be a good Custom, That an Executor or Administrator [Page 55] shall have an year in the Land of the Copy-holder,Custom, that the Executor shall have an year in the Copy-hold. against the Wife that claims her Free-Bench, Noy, p. 29. Remington and Cole.

If a Woman be Dowable of Copy-hold by Custom, if the Husband after the marriage makes a Lease for years, good by the Custom,Tenant in Dower shall not avoid a Lease made by the Husband. the Tenant in Dower shall not avoid it, but it shall precede the Dower, More, n. 147. Hol­der and Fairly. For he comes under the Custom as well as the Feme.

The Custom of a Manor was, Quod quilibet tenens per Copiam poterit dimittere terras suas pur vie, or in Fee, or in Tayl,Custom, that the Wife Feme covert may Devise. and that a Wo­man cooperta viro poterit devisare her Copy-hold Land to her Husband or to any other, by the assent of her Husband. Per Cur. The Custom is not unreasonable: But because it was poterit de­visare which is a word of justification, and it should have been usi sunt devisare, by way of excuse; it was adjudged against the Plaintiff, More, n. 268. And so was one Welsh's Case, in C. B. 41 El. 3 Leon. p. 81. Skipwith's Case.

The Custom was, That Widows should en­joy during their Widow-hood.Where the severance of the customary Tenants from the Manor shall not pre­judice the Wi­dow in her customary Estate. The Lord Grants a customary Tenement of the Manor unto J. B. for Life, by Copy and after conveys the whole Manor to W. who conveyed the In­heritance and Free-hold of B's Tenement for mony paid by B. to J. S. and others, and their Heirs, during the Life of J. B. the remainder to Ellen, then Wife of J. B. the remainder to J. B. in Fee. J. B. Grants his remainder in Fee to his Son and his Heirs. The Son having Issue a Son, dyed, and then Ellen dyed. J. B. mar­ries Frances, and dyes seized of his customary Estate. Frances shall enter and enjoy her Widows Estate; for it is clear, That the customary Estate of J. B. remained as it was during his Life, not [Page 56] extinct nor altered by the purchase of the Fee-simple, which during his Life was in others, not in him; and then it follows by consequence, That all customary Incidents to such a customary Estate remain, whereof this is one, which by Cu­stom and Law grows of it self out of that Estate, as a Descent should have done if J. B. had been a Copy-holder in Fee, and the Freehold had been granted to another in Fee, Hobart, p. 181. Howard and Bartlet. It is not in the power of the Lord to destroy Widows Estates. By the severance Incidents to the Tenancy are not destroyed, but Incidents to the Seigniory are.

The Law vests the Estate in a Woman that is to hold du­rante viduitate before admit­tance.The Custom is, That a Woman shall hold durante viduitate, she shall make a Lease before admittance, for in that case there is no Fine due to the Lord, and the Law vests the Estate in her, Noy 29. Remington and Cole. Hobart 181. Vide Admittance.

The Lord En­feoffs the Co­py-holder; this destroys Free-Bench.A Custom of a Manor was found to be, That if a Copy-holder in Fee dyes seized, his Wife should hold it during her Life, as Free-Bench; the Lord Enfeoffs the Copy-holder, who dyed seized. Per Cur. she shall not hold her Free-Bench; aliter, if the Lord had enfeoffed a Stranger of that Land, yet the Land remained Copy-hold, and the Custom is not taken away, Crok. Jac. 126. Lashmer and Avery.

Damages re­covered in Dower.A Woman recovered Dower in the Lords Court, and 40 l. because her Husband dyed seized, and she brought Debt for the Damages in the Kings-Bench. Per Cur. The Action lyes not, because the Court-Baron could not hold Plea, nor award Execution of 40 l. Da­mages, although the Damages were there well assessed, More, n. 559.

[Page 57]If a Feme Copy-holder holds the Land du­rante viduitate, and then takes Husband, the Lord shall have the Corn, Oland's Case. Vide Emblements.

The Widows customary Estate is due to her,Divorce. though there was a Divorce a mensa & thoro, Hobart, p. 181. Howard and Bartlet.

Tenant of a Copy-hold for Life,Whether the Widow attaint for Felony shall have her Estate of vidu­ity. in which the Custom was, That the Wife should have her Widows Estate, and the Husband was attaint of Felony and Executed. The Question was, whether she should have it? Winch, not without a special Custom. Winch Rep. 27. Allen and Branch.

That the Wife shall not have her Dower,The Wife to claim her Dower within a year and day. except she claim it within a year and a day; its said to be a good Custom, 3 Leon. p. 226.

Pleadings.

Custom. Quod Uxores habeant Tenementa custumaria durante viduitate sua, Dyer 192. 3 Br. 403, 476. Hern 73.

Quod Uxores Tenen. custumar. in feodo habeant pro vita Tenementa unde viri obierunt seisita. Et si viri dimiser. tunc revers. & reddit, Cok. Ent. 123.

CAP. VII.

Custom as to Timber, Woods and Ʋnder-Woods; and what Prescription by a Copy-holder to cut Trees shall be good or not.

TEnant by Copy of Court Roll cannot by the Common Law take Trees for House-bote, Hedge-bote and Cart-bote, &c. as Te­nant for Life or Years may do, who have an Estate certain; but a Copy-holder by special Custom may do it, Cro. El. p. 5. Lord Mountague against Sheppard.

Where a Custom was alledged to be, That every Copy holder may cut down Trees at his pleasure, this Custom is against Common Law Winch, p. 1.

If a Custom be, That a Copy-holder may not cut down Trees, it is good or not good with this difference: If he be a Copy-holde of Inheritance, such a Custom is good; but if he be a Copy-holder for Life, its no [...] good, 1 Bulstr. 150. Earl of Northumberlan [...] against Wheeler. The Tenant prescribes to c [...] and dispose all the Trees upon his Tenancy▪ its an ill Prescription. Aliter of a Copy-holde of Inheritance, Noy, p. 2. So it is adjudged it 1 Rolls Abr. 650. Glascock and Peche. Its a good Custom,Copy-holder in Fee 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▪ [Page 59] 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.

[Page 60] Whats 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.

[Page 61]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 int. 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 [Page 63] 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 [Page 64] 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 [Page 65] 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. 'tis 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.

[Page 66]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 befor [...] treated, about the nature of Copy-hold Estates, that (amongst the rest of the Cons [...] derations in that Chapter) where the Copy-hold Estate is inheritable, and the Land discendible, That in such Case the Law shall direc [...] the descent, according to the Rules and Ma [...] ims of the Common Law, as incidents to ever [...] 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 [Page 67] 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 Inheritances at the Common Law have, unless it be by Custom; for though they are Estates of Inheritance according to the Custom, yet they are not Estates of Inheritance simpliciter, that is, to have all collateral Quali­ties, as Estates in Fee-simple have, but only such which Custom hath setled and allowed, 4 Rep. 22. Brown's Case. And accordingly my Lord Hobart in Cox and Darsen's Case, p. 215. &c. saith, The collateral Incidents of Estates, as Dower, Tenancy by the Curtesie, Ward­ship, &c. are not without special Custom.

And therefore Copy-hold Inheritance shall not be Assets to charge the Heir in an Action of Debt, upon Bond made by his Father,Copy-hold Lands, not As­sets in the Heir. tho' he has therein bound his Heirs; neither shall the Wife of such customary Estate be indow­ed, nor the Husband be Tenant by the Curtesie, neither shall the descent of any such Estate toll the Entry of him that had customary Right, &c. But to explain this, in these before-men­tioned Qualities, and others, I shall Illustrate it by several Cases and Resolutions.Dower.

The Wife shall have Dower of a Copy-hold by special Custom, otherwise not; and when she is to be endowed of a Copy-hold by the Custom, then she shall have all the incidents to Dower; as to recover Damages for the Pro­fits from the death of her Husband, by the Statute of Merton, C. 1. De viduis, 4 Rep. 30. Shaw and Tompson.

[Page 68] Tenant by the Curtesie, and that without admittance of the Wife.The Custom of a Manor was, That if any man had a Wife, who was a Copy-holder in Fee of the Manor, and had Issue by her, that he should be Tenant by the Curtesie of the Land. A. a Copy-holder was seized, and had Issue a Daughter, who was married to J. S. who had Issue. A. dyed, his Wife entred; the Wife dyed before admittance. The Que­stion was, if by the Entry of the Husband, without admittance of the Wife, he should be Tenant by the Curtesie. Per Cur. he shall; the delay of the admittance of the Wife, shall not prejudice the Husband being a third person, More, n. 425. Ever and Aston; but if a Wo­man Copy-holder in Fee takes Husband, who had Issue, and the Wife dyes, there the Husband shall not be Tenant by the Curtesie without special Custom, 4 Rep. 22. Ryers Case.

Descent tolls not an Entry. Discontinu­ance.The Descent of a Copy-hold doth not toll an Entry, 4 Rep. 22, 23. Bullock and Dibly, and 3 Rep. 9. You may see there where the Entry shall be congeable by the Issue, after a Sur­render or Lease by Licence of the Lord, made by the Ancestor, and shall not be a Disconti­nuance.

The Lord seized a Copy-hold without cause, and grants it to another, in Fee, Grantee dyes seized, and his Heir is admitted. The first Copy-holder dyes, his Heir enters, and Sur­renders to the use of a Stranger. Per Cur. 1. De­scent of a Copy-hold shall not take away the Entry of another Copy-holder who hath right. 2. The Entry of the Heir without ad­mission is lawful, and being in, his Surrender is good, Cro. Jac. 36. Joyner and Lambert.

If one seized of Copy-hold Land in the Right of his Wife, Surrender this to the use of another in Fee, who is admitted according­ly; [Page 69] the Husband dyes, this is no discontinuance to the Wife, nor her Heirs, but the Wife may enter, and not be put to her cui in vita, nor her Heir to her sur cui in vita.

If Copy-holder for Life Surrender to the use of another in Fee, this is no Forfeiture,Surrender by Copy-holder for Life to one in Fee, is no forfei­ture. for this passeth by Surrender to the Lord, and not by Livery. And Copy-hold Estates shall not have such qualities as Estates at Common Law have, without special Custom, 4 Rep. 4. Clun and Pearse; and therefore where by Custom of the Manor,But recovery by Pleint in a real Action shall be a dis­continuance. Pleints have been made in the Court of the Manor, in the nature of real Actions, That if a Recovery be in a Pleint in the nature of a real Action, against a Tenant Copy-holder in Tayl, its adjudged that this shall be a discontinuance, and shall take away the En­try of the Heir in Tayl; for these Pleints, in the nature of real Actions, are warranted by the Custom; this is an incident which the Law annexeth to the said Custom, and such reco­very shall be a discontinuance, 4 Rep. 23. Deal and Rigden.

Having finished the Learning of Customs, in order to the understanding of Copy-hold Estates; it will be convenient to say some­thing of the customary Tenant, and of the Court, and the Steward, which shall be at­tempted briefly in the next Chapter.

CAP. X.

The several sorts of Coph-holders, and who shall be said to be customary Tenants. Of Copy-hold, Burrough-English. Of the Court. Two sorts of Courts Baron. Of the Copy-holders Court. Who may keep Courts, and to what purposes, and where▪ Of the Steward, his Office and power of Deputation; what he may do ex officio, or not.

WE read of three kinds of Copy-holders in our Book.

I. Terra Nativa: These were called Bond-Lands also, because they held in Villenage.

II. Custumary. And this was held by Free-Tenants.

III. Mensales. As also Dominica, because by this the Table of the Lord is maintained.

Some Copy-hold Land is called Poadland, and some Molland, a molli redditu, where some small Rent was reserved.

There were two other manner of Copy-holds.

Old Aster and new Aster.

Aster signifies a Chimney; those Copy-hold Lands which had had usually for a long time an House on them, they called Old Aster Lands, but those which of late had an House built on them, they called New Asters. And in old Records, the Bastard Eigne did plead, That he [Page 71] was Filius Askarius, as much as to say, Born in the House. 2 Rolls Rep. 235. M. 20 Jac. B. R. Smith and Reynard.

Some Copy-hold Land is in the nature of Bur­rough-English, Cro. Jac. 56. Curtis's Case.Copy-hold Burrough-English. And so shall descend to the youngest Son. Some Copy-hold is of the nature of Burrough-Eng­lish, as well for the Brother as the Son. Cro. Jac. 101. Whitton and Williams. Between a Co­py-hold in Burrough-English, and a Freehold in Burrough-English, there is not any difference as to descents, Cro. Car. 411.

Baron and Feme, Copy holders for Life of Copy-hold, of the nature of Burrough-English, Reversion to the Husband in Fee; he had Is­sue three Sons William, George and Charles. The Father dyed seized of this Reversion, which descended to Charles. Charles dies without Issue, the Wife dyes: Question was, whether William, Brother and Heir of Charles, or George should have it? Berkly and Bramston were for George, because there being a Reversion expect­ant upon Estate for Life, George shall take his Title from his Father, and take by descent from him who had seisin of the Free-hold, and not make mention of him who had the 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 [Page 72] 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.

[Page 74] 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.

[Page 75]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 [Page 76] Per Cur. to take a Surrender and grant Land by Copy,Act done by the Servant of a Deputy. is not any judicial Act, and the ad­mitting of a Copy-holder is not any judicial Act, for there need not be any Suitors there who are Judges, and such a Court may be holden out of the Precincts of the Manor: Per Cur. the Grant is good,What Court may be held out of the Ma­nor. especially if the Lord of the Manor agree to it afterwards, 1 Leon. 288. Lord Dacres's Case.

One is made Steward ad exequendum per se vel sufficien' deputatum suum. J. S. makes A. his Deputy, hac vice to take a Surrender, & ad ulterius faciend, &c. its a good deputation, and though the authority was to take the Surren­der absolute, and he takes a Surrender upon a Condition, yet its good, by reason of these words, Et ad ulterius faciend. Cro. Eliz. p. 48. Burdets's Case.

The Kings Copy-holder is attainted of Felo­ny, whereby his Copy-hold Escheats; the Stew­ard may grant this over ex officio, without any especial Grant, yet its his duty before he does it, to inform the Lord Chancellor, Treasurer and Barons, 4 Rep. 30. Harris and Jay.

Surrender by a Deputy Steward, not according to his Warrant.Stewardship was granted to A. to execute the Office per se vel sufficien' Deputat. suum. A. made a Deputation to M. ad capiend. unam sursum redditionem of one J. W. and J. his Wife, and to examine J. ea intentione, that the said J. W. and J. might take back an Estate for their Lives, the remainder over to J. B. in Fee. M. took two several Surrenders from the Hus­band and Wife, the remainder to J. B. in Fee, upon condition to pay a certain Sum of mo­ny, &c. Per Cur. The proceedings are well warranted by the Deputation aforesaid, 1 Leon. p. 289. Burgess and Foster. I can conceive this [Page 77] to be the same Case as the former, and one will well help to explain the other.

If the Surrender and Re-grant is entred in the Roll of the Court, dated to be hold [...] the second day of May, and the Deputation bears date the third day of June after. Per. Cur. This misentry of the date of the Court shall not prejudice the Party, for this Entry is not matter of Record, Vide ibid.

The Kings Auditor and Surveyor for the County of N. appointed a Steward for one of the Manors, illa vice;The Kings Au­ditor and Sur­veyor cannot appoint a Steward, hac vice. He kept Court and grant­ed Copy-hold, &c. their appointment is not good; they have no authority to appoint Stew­ards, the one being to take Accounts, the other to survey Land, and the Grant is void. Things of necessity done by one who is but in a re­puted Authority is good, if they come in by presentment from the Jury, or of necessity are good; as the admittance of an Heir upon a presentment, or admittance by a Surrender to an Use. But acts voluntary,Things of ne­cessity by a reputed Stew­ard, good, not acts voluntary. as Grant of a Copy-hold, is not good. If the Steward di­minish the ancient Rents and Services, its a void Copy. If a Lord command a Steward that he shall not grant such Land by Copy,Lord counter­mands a Stew­ard. if he grant it, it is void, Cro. El. 699. Harris and Jay. 4 Rep. 38. mesme Case. They ought to have Letters Patents of the Office of Steward.Infant not to be Steward.

Infant is not capable of the Stewardship of a Manor, March p. 41.

Copy-holder moved the Court, 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.

Baron and Feme Copy-holder in right of his Wife, surrender out of Court into the Hands of the Steward, and she was examined by him, [Page 78] and it was not proved that he was Steward by Patent,Though it is not proved he is Steward by Patent, &c. yet Surrender out of Court into his Hands is good. nor any special Custom to warrant it; yet Per Cur. it was good, Cro. Jac. p. 526. Smithson and Cage.

Declaration.

Pro Senescallo Cur. Maner' impedit de Officio unde ei conces. pro vita, Rast. Ent. 5.9 Co. 42. 1 Br. 192. Hern 232.

CAP. XI.

What things way be granted by Copy. Of Grants by the Lord, legitimus Dominus pro tempore. Disseisor. Infant. And in respect of the Lords person or Estate, what shall be good or not. Of Grants by the King, Lord. VVho shall be said a Lord sufficient to grant Copies. VVhat amounts to a Grant, at what place to be granted. Of Grants by the Copy-holder to the Lord.

A Manor may be granted by Copy, C [...]. Lit. 58. b. i. e. a customary Manor; and so a Manor may be parcel of another Ma­nor.

Generally all Lands and Tenements with in the Manor, and whatsoever concerneth Lands and Tenements may be granted by Copy; as a Fair appendant to a Manor may be granted by Copy, Co. Lit. 58 b.

Underwoods without the Soyl may be granted by Copy to one and his Heirs, and so may the Herbage or Vesture of Land.

[Page 79]The Lord granted to one and his Heirs, subboscum in M. Wood, annuatim succidend. by four or five Acres at the least, and then made a Lease of the Manor: The Lessee cut Trees. Copy-holder brought Trespass. Lessee justifies with averment, That he had left sufficient for the Copy-holder to cut down by four or five Acres yearly. 1. Per Cur. Order of di­rection, not of instruction. Underwood may be granted by Copy, if the Custom permit it. 2. That the whole Wood passed, and the words annuatm succidend. is an Order only ap­pointed for the cutting it, and not to restrain the Grant, More n. 480. Taylor and Hoe, and Cro. El. 413.

The Market of Crokeham in Sommersetshire is always demised by Copy, 4 H. 6.21. cited in Hoe and Taylor's Case, More, n. 480. and Cro. Eliz. 413. Hoe and Taylor.

The grant of Waste by Copy is void, unless so granted time out of mind; also were it good, it would not bind the Successor, in the Case of a Bishop, 3 Keb. p. 124. Bishop of Lon­don and Rowe.

Tonsura Prati, is grantable by Copy. So Her­bagia, 1 Rolls Abr. 498.

Of Grants by the

  • Lord, or voluntary Grants.
  • Copy-holder.

Copy-holds come to the Lord by Escheats,Note. or Forfeiture, or Purchase: What comes by Es­cheat or Forfeiture, he may grant again.

H. 8. seized of a Manor in which are Co­pyholds, Grants Copy-hold for Life generally: It was a Quaere, in March Rep. 206. Fulham's Case, and not resolved whether this be a good Grant or not; and Per Cur. The Grant is not void; it never recites in any Grant of the King [Page 80] what is Copy-hold. But the great Question was, whether the Copy-hold was destroyed or not? It was not there resolved, but seems so. But Downcliff and Minor's Case is 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 o [...] 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.

[Page 81]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 [Page 82] 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.

[Page 83]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 [Page 84] 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 [Page 85] 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.

[Page 86] 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 [Page 87] 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 [Page 88] 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 [Page 89] 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 [Page 91] 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.

[Page 92] 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 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 [Page 93] 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 ex [...]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.

[Page 94] 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 [Page 96] 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 therefore where Surrenderer is Infant, and dyes, his Heir shall enter, Cro. El. 90. Knights's Case.

It must be an actual Surren­der in Court and not a Sur­render in Law.If a Copy-holder in Fee take the same Land 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; [Page 97] sursum reddens this into the hands of the Lord, and not by Surrender in Law, 1 Rolls Abr. 501. Shepard and Adams.

In grant of a Reversion,Attornment, why not need­ful. Attornment is not necessary for a Copy-holder, because there is no time when the Termor should Attorn; for before the Surrender he cannot Attorn, and after the Surrender and Admittance it is too late. The Copy-hold Estate is like an Estate raised by Uses or Devise, in which an Attorn­ment is not necessary, 1 Brownl. 179. Swin­nerton and Miller. The Surrender and Admit­tance are in the nature of an Inrolment, and so amount to an Attornment, or at least sup­ply the want of it, 1 Leon. 297.

General Rules and Maxims.

1. Implication is not good in a Surrender, though it be in a Will. A Surrender of Copy-hold Land was to the Use of the second Son for Life, after the Death of the Tenant and his Heirs, it was adjudged not good, 1 Brownl. Rep. 127. Allen and Nash, Noy. 152.

2. In Copy-hold Cases, a Surrender to the Use, &c. This is no Use properly, but an Explication shewing how the Land shall go, 1 Brownl. 127.

3. It is the general Custom of the Realm, That every Copy-holder may Surrender in Court, and need not to alledge any Custom therefore; so if out of Court he Surrender to the Lord himself, he need not in Pleading alledge any Custom; but if he Surrender out of Court into the Hands of the Lord, by the Hands of two or three Copy-holders, or by the Hands of the Bayliff, &c. or by the Hands of [Page 98] any other, these Customs are particular, and therefore he must plead them, Co. Lit. 59. a.

The Estate of Cesty que use shall ensue the Limitation in the Surrender, and not in the Admittance of the Lord, Co. Lit. 659. b. If two Joynt-Tenants be of Copy-hold Lands in Fee, and the one out of Court, according to the Custom, surrender his part to the Lords Hands to the use of his Will, and by his Will deviseth his part to a Stranger in Fee, and dyes, and at next Court the Surren­der is presented; by the Surrender and Pre­sentment, the Joynture is severed, and the De­visee ought to be admitted to the moiety of the Lands, for now by relation the state of the Land was bound by the Surrender, and the Lord cannot grant a larger Estate than is exprest by the limitation of the Use, 1 Rol [...] Rep. 438. In Grant of a Reversion, Attorn­ment is not necessary for a Copy-holder, Vide supra.

5. Copy-hold may not be surrendred but by actual Surrender in Court, and not by a Surren­der in Law, Vide infra.

6. A Copy-holder cannot Surrender an Estate to another, and leave a particular Estate in himself, no more than a Freeholder, Vide apres.

Before I come directly to treat of Surren­ders (one of the most useful pieces of Learn­ing as to Copy-hold Estates,) I shall premise some general Considerations, as to the Aliena­tion of Copy-hold Estates, or of a Transfer­ring of Copy-hold Interest from one to another▪ and more particularly of the Selling and Ali­ening of the Copy-hold Lands of a Bankrupt, the knowledge whereof is very necessary, and not very common.

[Page 99]The Assurance of Copy-hold Land from one man to another (who is not Lord) must be made by Copy of Court Roll, according to the Custom, and this must be by Surrender, and for the perfecting thereof must be Present­ment and Admittance generally. For,

If I would have my Estate pass according to my Will, I cannot devise this Copy-hold by Will, but must surrender it to the use of my last Will, and in my Will I must declare my in­tention. But for the manner of doing it, and the operation in Law, Vide postea sub Titulo Sur­render to the Use of a mans last Will. And

If I would Exchange Copy-hold Land with another, I cannot do it by Deed of Exchange, but we may Surrender it each to other, and the Lord shall admit us accordingly.

But Copy-hold Estates in some Cases may pass and be transferred from one to another with­out Surrender, and that by Release:Copy-hold in some Cases may pass otherwise than by Surrender. But then we must observe this difference between a Re­lease that enures by way of extinguishment, or by way of an enlargement of an Estate.

By Release sometimes a Copy-hold may be transferred when it enures by way of extin­guishment,As by Release. and so may serve to drown a Copy-hold Right. As for the purpose, A man is admitted upon a void Presentment, and where the Presentment and Admittance is not according to the Surrender; as where the Pre­sentment is absolute and the Surrender conditi­onal, and so void; It was resolved that the Admmittee had a customary Estate by Posses­sion, and is in by Title, and is capable of a Release from him who had the right; and here is a customary Estate upon which the Release may well be grounded; besides the Lord is not prejudiced, he being satisfied his [Page 100] Fine upon the Admittance. So if I am ousted of a Copy-hold, and the Lord admit the Dis­seisor, according to the Custom, a Release made by me will extinguish my right. But if one be disseised of a Copy-hold Estate, a Release by the Disseisee to the Disseisor is void, for this is a prejudice to the Lord in losing his Ad­mittance Fine, if it should be good, and there is no customary Right upon which a Release should enure, there never having been Admit­tance as was in the other Case: So is Mortimer's Case, Hetly, p. 150.

But a man cannot pass a Copy-hold Estate by way of Lease and Release, because this Re­lease enures by way of enlargement of Estate, and to transfer an Interest, but this must be by a Lease for a Year (which is warranted, &c.) and by Surrender of the Reversion into the hands of the Lord, and he to grant it over to the Lessee.

One Joynt-Tenant re­leaseth to his Companion.One Joynt-Copy holder released to his Com­panion, and it was resolved in the Case of Wase and Pretty, Winch Rep. p. 3. 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.

In some Cases Copy-holds cannot pass by Surrender, Release, Admittance, or otherwise. As for the purpose;

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 demiseth it to M. which was surrendred at next Court; now by the severance of the Copyhold from the Manor, the Copy-hold is not destroyed, but it is not [Page 101] parcel of the Manor; now if one would alien this, he cannot do it by Surrender, for its 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.

[Page 102]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

[Page 103]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 [Page 104] 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 [Page 105] 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 Estate to himself for Life, remainder to his Wife for Life, remain­der for the Life of his Son. The Question was, whether this shall Estop him from claiming another Estate, and so to lose the Inheritance. And Per Cur. he shall not be estopped; its but as a Surrender, and the Reversion in Fee con­tinues in his own person, 1 Rolls Rep. 265. Southcot and Adams. 1 Rolls Abr. 171, 172. mesme Case.

Of a Surrender out of Court.

A Surrender into the hands of two Tenants, they are but as Instruments, and therefore in an Arbitrament, if its awarded that one Party shall Surrender into the hands of two Tenants of the Manor, who shall present this, &c. this is a good Award, although it is to be made to Strangers, who are not compellable, be­cause they are to be used as Instruments, M. 13 Jac. B. R. Pooley and Coot.

A Surrender out of Court, if it be duly done, is as binding as that that is done in Court.

Who may take a Surrender out of Court.

A Copy-holder may Surrender into the hands of the Lord himself out of Court,The Lord himself. without a particular Custom to warrant it, and in Plead­ing he need not to alledge any Custom, Co. Lit. 59. a. b.

[Page 106] By the hands of two Te­nants.Copy-holder may Surrender out of Court, into the hands of the Lord, by the hands of two or three Copy-holders, or by the hands of the Bayliff or Reeve, &c. or by the hands of any other, but this cannot be without particular Customs, and therefore he must plead these Customs, Co. Lit. 59. a.

By Steward.The Steward of a Manor may take a Sur­render of a Copy-hold out of the Manor, M. 13 Jac. B. R. Housey and Wild. And the Lord or his Steward may grant Copies out of Court as well as in Court, Cro. El. 103.

But in such Case how it must be presented, Vide sub Titulo Presentment, infra.

By special Steward ap­pointed by the Lord to go to the Surren­deror.If he who ought to Surrender cannot come in Court to Surrender in person, the Lord of the Manor may appoint a special Steward to go to the Prison and take the Surrender, 1 Leon. p. 36. So if a Copy-holder be in extre­mis, the Custom was to Surrender into one Te­nants hands,A Surrender to one Tenants hands and presented to be done to another, yet good. in the presence of credible Wit­nesses, a Surrender was made accordingly, but presented to be done to another Tenant, yet being proved to be done to a Tenant of the Manor, it was holden by Wadham Windham Justice, to be good, May's Case, Norfolk Sum­mer Assises, 1663.

What Surrender out of Court is good or not.

A Surrender by Letter of Attorny to two customary Tenants out of Court, is good; for as a Copy-holder may Surrender in Court de communi jure, by the common Custom of the Realm, and at Common Law, so he may do it by Attorny, as a thing incident at Common Law; and the reason is founded upon a di­ve rsity. If a man had a naked Authority, cou­pled [Page 107] with a confidence as Executors have to sell Land, they cannot do it by Attorny;When one may do a thing by At­torny and when not. but if a man hath absolute Authority as Owner of the Land, which a Copy-holder hath, having a customary Estate of Inheritance, he may do it by Attorny, and so this need not be plead­ed as as a Custom. And though a man have an Authority joyned with an Interest, yet if the Authority be warranted by special Custom only, it cannot be executed by Attorny. As if there be a special Custom, That a Copy-holder for Life may make Estate for twenty years to continue after his death; this Estate cannot be made by Attorny; so for an Infant to Surrendr at the years of discretion, Co. Cop. 105. But in Chapman's Case, Hill. 28. El. B. R. Where the Custom of a Manor was, That the Copy-holder out of Court may Surrender into the hands of the Lord of the Manor, by the hands of two customary Tenants; in such Case the Copy-holder by his Attorny may not Sur­render into the hands of the Lord, by the hands of two Copy-hold Tenants, for without special Custom to warrant it, its not good.Authority to be pursued strictly.

But such Attornies ought to pursue the manner and form of the Surrender, in all points, according to the Custom, as the Co­py-holder himself ought to have done; as if by the Custom it ought to be done by the Rod, or any other thing, &c.

The form of a Letter of Attorny was in this manner.

That the Copy-holder doth Constitute W. T. and E. A. two Copy-hold Tenants of the Ma­nor of, &c. his lawful Attornies to Surrender vi­ce & nomine suo, to the Lord of the Manor, ten Acres, &c. to the use of J. N. and his [Page 108] Heirs, and after at a Court held in the Ma­nor, 8 July, Anno, &c. The said Attornies tunc tenentes Dom. per Copiam Rot. Cur. & in ead. Cu­ria ostenderunt script. praed. geren. dat. praed. 12 die Novemb. &c. Et iidem W. & E. authoritate eis per praed. literam per Attornatum dat. in plena curia sursum reddiderunt in manus Dom. praed. &c. Acras, &c. ad opus & usum, &c. Now the At­torny must do the Act in the name of him who gives the Authority, as it is in Brownl 94. The Letter of Attorny must say for him and in his name, yet the Entry aforesaid is good; for it is W. & E. sursum redderunt & authorita­te eis dat. What Entry as to the form of a Letter of Attorny is good. which is as much as if they had said, We as Attornies of, &c. Surrender. I as At­torny of J. S. do Surrender, or by Authority of this Letter of Attorny, I Surrender, it is all one, 9 Rep. 76. Combe's Case.

Not to be done without Deed, but ad­mittance by Attorny may be without Deed. Lessee for years cannot Surrender by Attorny, and how he may.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.

Lessee for years cannot Surrender by Attor­ny, but he may make a Deed purporting a Sur­render, and a Letter of Attorny to another to deliver it, 1 Leon. p. 36.

Copy-holder of Inheritance makes a Letter of Attorny to two joyntly and severally, to Sur­render his Copy-hold Lands to certain uses, according to the Custom of the Manor after his death, Quaere, if this be a good Custom, Stiles Rep. p. 291, 311. Wallis and Bucknal, and p. 243. Roby and Twelves.

Litera Attornatus ad sursum reddend. tenementa custumaria, sursum redditio & admissio, Co. Ent. 575, 676.

[Page 109] Pled. quod tenentes custumarij possunt sursum red­dere Tenementa tam extra Curiam in presentia 2 vel 3 tenentium quam in curia manus, Senel. Ra. Ent. 645. Simil. per 1 vel 2 Tenentes ut Attornatus, Co. Ent. 657.

CAP. XIV.

What shall pass, and by what words in a Surrender. Of Attornment. The Con­struction and Exposition of a Surrender. Where no Ʋse or Estate is immediately limited in whole or in part. And where an Ʋse is limited, how far the Constructi­on shall go, according to the Rules of the Common Law, or not. Of Surrender to Ʋse upon Ʋse. To the Ʋse of one's Wife. Where a Surrender is void for the uncer­tainty. Of a Surrender to the Ʋse of a person not in esse. And of a Surrender to take effect in futuro.

What shall pass, and by what words in a Surrender.

B. Covenants to assure all his Copy-hold Lands to A. after he Surrenders out of Court, according to Custom, diverse parcels by particular Names, the Surrender is enrolled ac­cordingly, with this Conclusion, By the name of all his Copy-hold Lands there; yet no more shall pass than what was named in the Surrender, Dyer 8 El ▪ 251.

[Page 110] Harvy Justice said, he knew it to be adjudg­ed, That a Surrender, cum pertinentijs, will pass Land, Hetly, p. 2. And that a Surrender of a Messuage and three Acres, would pass more Acres if divers Copies successive have been so. I suppose he means if the words cum pertinentijs be in.

What Ceremony, &c. is requisite or not to make good a Surrender.

Attornment.A Copy-holder with Licence, leased for Years, rendring Rent, and afterwards surren­dred the Reversion, with the Rent, to the use of a Stranger, who is admitted: Here needs no Attornment, either to settle the Reversion, or create a privity; for the Surrender and Ad­mittance are in the nature of an Inrollment, and amount to an Attornment, or at least supply the want of it, 1 Leon. 297. But there must be an Admittance by the Lord; but in such case there shall be no Entry for Conditi­on broken, without Attornment, Hobart 177. Swinnerton and Miller, 1 Rolls Abr. 235. mesme Case. Vide sparsim de Attornment.

The Construction and Operation of Surrenders. Where no Use or Estate is immediately limited in whole or part.

Surrender to the Lord, with­out expressing what use.If▪ a Surrender be made to the Lord in ge­neral, without expressing to what use, it shall be taken to the Lords use, Kitch 81. And therefore in Bunting's Case, cited in Brown and Foster's Case; A Custom was, That if any surrendred to the use of another, without ex­pressing any Estate, that the Lord may grant it [Page 111] to him to whose use the Surrender was made: It was adjudged a good Custom, and the Lord shall ascertain the Estate. A Copy-holder sold his Copy-hold Estate, but shews not what Estate,Or what Estate. but surrendred it the use of the Bargainee, and the Lord granted it in Fee to the Bargainee, and it was adjudged good, Cro. El. 392.

Copy-holder in Fee surrendred his Lands into the hands of the Lord, without saying to whose use the Surrender should be; and at the next Court the said Copy-holder was ad­mitted Habend. to him and his Wife in Tayl,And then ad­mittance is to uses; this sub­sequent act explains a Surrender. remainder to his right Heirs. Per Cur. The subsequent Act shall explain the Surrender, and when the Copy-holder accepted a new Admittance, the Law intends the Surrender was made to such an use as is specified in the Admittance. Quando ab est provisio partis, ad­est provisio Legis, Popham, p. 125, 126. Brook's Case, Cro. Jac. 434. mesme Case.

Copy-holder Surrenders to the use of M. and R. without limitation of any Estate, they shall only have it for their Lives; and in such case,A Surrender to one for Life, without limiting the Fee, the Fee is in the Sur­renderor. if the Lord make Admittance, and deliver Seisin to M. and R. and the Heirs of R. this was only an Admittance to them for term of their Lives, the Reversion over to R. who made the Surrender, for the Lord is but an Instrument, and when he hath made Admittance accord­ing to the effect of the Surrender, nothing remains in him, but the Reversion is in the Surrenderer, 4 Rep. 29. Bunting and Lepingwel.

But it is otherwise in the case of a Copy-holder for Life; as if a Copy-holder for Life Surrender to the use of J. S. for Life, and J. S. dyes, this shall not revert to the first Copy-holder for Life, Mich. 7. Car. 1.Diversity. King and Loder's Case. And therefore in Dyer, 9 Eliz. [Page 112] f. 264. The Husband seized in the right of his Wife, Reversion to B. Reversion to C. for their Lives; the Husband surrrenders to the use of B. for his Life, to whom the Lord grants it for his Life, and is admitted, and after dyes; the Husband shall not have it again during his Wives Life, for he had dismist him­self of it,Lord as Occu­pant. and C. shall not have it during the Wives Life, but the Lord as Occupant.

Where an Use is limited, how far the Construction shall be according to the Rules of Common Law or not.

Some lay it down for a Rule, That the same Construction which the Law makes upon words in a Deed, it will make upon a Copy, is not always true, though regularly it is so. As if Copy-hold be granted to a Corporati­on, where no Estate is named, its a Fee-simple. So if Surrender to one and his Heirs, and he reciting this Surrender, doth Surrender it to my use in the same manner as I surrendred it to him, this is a Fee-simple. So if I Surren­der to J. S. as large an Estate as he hath in the Manor of Dale, he hath a Fee-simple in that Manor, Co. Cop. 132.

The Wife shall take by the Admittance, tho not na­med in the Premisses in the Surrender.But a person may take by the Hab. in the Ad­mittance, who was not named in the Pre­misses, as to Copy-hold; therefore in Brook's Case above cited, Copy-holder Surrenders his Lands, without saying to whose use, and at the next Court the said Copy-holder was Admit­ted, Habend. to him and to his Wife in Tayl, the Remainder over. Per Cur. the Wife shall take by this Admittance, though she was not named in the Premisses. But this Case of a Copy-hold is like to the Case of a Will, or to [Page 113] the Case of a Frank-Marriage, in which it is sufficient to pass an Estate, albeit the Parties be only named in the Habendum; aliter, where the Surrender is to Uses, and she is not named in the Premisses.

And the like Rule is laid down in Bunting and Lepingwel's Case, 4 Rep. 29.As well Estates as Descents to be directed by the Rules of Law. That as well Estates as Descents, shall be directed by the Rules of Law, as necessary consequents upon the Custom, unless there be a special Custom to the contrary; as, a Surrender sibi & suis by the Custom, may make an Estate of Inhe­ritance; but a Surrender to one & tribus assig­natis suis, by his death, the Estate in the Copy-hold is determined, Yelverton, p. 16. Arnold's Case.

Though we have observed,Surrender passeth not by implication. That the passing of Estates of Copy-hold is much resembled to Devises, yet an Use shall not pass in a Sur­render by implication, and therefore in Sea­good and Hone's Case, Cro. Car. 366. A Copy-hold is surrendred to the use of F. K. and J. R. Son of the said F. and of the longest liver of them both, and for want of Issue of J. the Son of his Body, lawfully begotten, the Lands to remain to the youngest Son of M. S. Per Cur. J. had but an Estate for Life, and being an Estate for Life, limited by express limitation, it shall not be a greater Estate by implication.

Of Surrender to a Use upon Use.

Surrender by A. to the Use of B. and his Heirs, to the use of such person as A. should name by his Will, Per Twisden in Leaper and Wroth's Case, it is ill; no Use can be raised upon an Use, although it being Copy-hold it is not executed by the Statute. But H. nomina­ted [Page 114] by the last Will of A. had surrendred to B. the Court conceived no doubt in that Case, 1 Keb. 627.

Contingent Re­mainder.Surrender is to the Use of one in Fee upon Condition to pay 100 l. to a Stranger, and if he failed, it should be to the Use of a Stran­ger in Fee. The Question was, whether that should be a good Limitation to the Stranger, being a Fee upon a Fee. Beaumont conceived it to be well enough, being as an Use limited on a Feoffment, but it was found specially, Cro. El. 361. Paulter and Cornhil, vide infra.

To the Use of ones Wife

Is good, though he which is admitted is in by him who makes the Surrender, yet a man may Surrender to the Use of his Wife, because the Husband doth not do this immediately to the Wife, but by two means. 1. By Surrender of the Husband to the Lord, to the Use of the Wife. And 2. By Admittance of the Lord to the Wife, according to the Surrender, 4 Rep. 29. Bunting and Lepingwel.

Where a Surrender is void for the uncertainty.

Averment.A Copy-hold was granted to a Father, and to his Son and Heirs, who at the time of the Grant had but one Son, it was adjudged a good Limitation to that Son, Cro. Jac. 374. Cobb and Betterson. But in Winkmore's Case, ci­ted there, where a Copy was granted to S. the Father and to his Son, and he doth not demonstrate which of his Sons shall have it; it was adjudged to be a void Grant for the uncertainty, he having many Sons at that time.

[Page 115]But that which is wholly uncertain, no sub­sequent manifestation of my intention can help it, as a Surrender to the Use of my Cosin or my Friend, or to the Use of J. S. or J. N.

Surrender to the Use of a Person not in esse.

And in this point Limitations of Estates are not directed according to the Rules of Law.In this, Estates are not di­rected accord­ing to Law. For at Common Law if the Grantee (imme­diate) and be not in rerum natura, and able to take by vertue of the Grant, its void present­ly. But though at the time of the Surrender the Grantee is not in esse, or not capable of a Surrender, yet if he be in esse, and capable at the time of Admittance, that is sufficient; as a Surrender to him that shall be Heir to J. S. or to the Use of the next Child of J. S. or to the next Wife of J. S. though at the time of the Surrender J. S. had no Child, Heir or Wife; yet if he afterwards hath, his Heir, Wife or Child may come into Court and compel the Lord to admit according to the Surrender; the reason of this Construction seems to be, the Surrender is a thing execu­tory, and is executed by the subsequent Ad­mittance, and nothing vests in the Grantee before Admittance; and therefore if at the time of the Admittance, he be capable to take, its enough, Co. Copy. Put the Case at Common Law, J. S. bargains and Sells to the Use of the next Son of J. D. and he hath no Son then, but after he hath a Son before the Deed is enrolled, yet this shall not be good, and yet its as an executory Grant, i. e. not perfected till enrollment, and nothing passeth till enroll­ment, or vesteth in the Bargainee till then, no more than by Surrender.

[Page 116]I will put this Case. A Surrender is to the Use of A. B. for Life, and after to the next Child that J. S. shall have. A. B. for­feits his Estate, J. S. having no Child at that time, but afterwards he hath a Child; shall this Child compel the Lord to admit him? Q. for such a Remainder at Common Law would be destroyed.

But a Surrender to the Use of the right Heirs of J. S. he being alive, is void, because it can­not take effect according to the intent of the Grantor, which is to be executed presently.

To one in [...] mere.Surrender Habend. after his death, to the Use of his Child, then in ventre sa mere, his or her Heirs and Assigns, and if it dye before full Age or Marriage, then to the Use of another in Fee. Copy-holder dyes, Infant was born, but dyes before Age or Marriage; this is not good, he cannot make such a conditional Sur­render to operate in futuro: But whether the Surrender to an Infant in ventre sa mere be good, hath been much much questioned, Cro. Jac. 376. 1 Rolls Rep. 109, 131. 2 Rolls Abr. 415, 416. 2 Bulstr. 274, 275. Simson and Sothern. Some are for it and some against it. I conceive it is allowed to be good, as well as a Devise to an Infant in ventre entre sa mere. Surrender to the Use of J. S. for Life, remainder to the Use of an Infant, in ventre sa mere, is good.

Of a Surrender to take effect in futuro.

A Surrender of a Copy-hold in Fee, a tem­pore mortis, is void, 1 Sanders 151. Or a Surren­der at a day to come is void.

Copy-holder in Fee Surrenders out of Court, into the hands of two Tenants in Writing, as follows.

[Page 117]Memorandum, Such a day and year, A. S. the Copy-holder, Surrenders the Land, &c. to the Use of B. and C. &c. This Surrender not to stand and be of force till after the decease of A. S. Per Cur. If this Memorandum should be good, then this had been a Surrender at a day to come, and consequently void, and therefore the Surrender being perfect before, by the first part of the Instrument, this Memorandum shall not make it void, but the Memorandum shall be void, 2 Rolls Abr. 61. Seagood and Hone. And the Reason is given in Simpson and Southern's Case, Cro. Jac. p. 376. A Copy-holder cannot Surrender an Estate to another, and leave a particular Estate himself, no more than a Free-holder, for so 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 Ʋse 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.

[Page 119]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, its 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. Its made a Quaere in Stiles, in the Argument of Pausley's Case, If [Page 121] 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 [Page 122] 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; its not maintain­able. The great Question was, whether the Wife had an Estate Tayl executed (vested) in her. Per Coke, Whether Estate Tayl Executed, or rests in Con­tingency. its Estate Tayl executed in the Wife; but by the Reporter it seems it is not executed but rests in contingency; the Case as to that is but this: A man gives Lands to the Use of his Wife for Life (for as to this, the Estate of the Stranger is not material,) and after to the Use of the Heirs of the Body of the Husband and Wife, begotten; (for had it been to the Use of the Wife for Life, the Remainder to the Use of the Heirs of the Wife by the Hus­band begotten, it had been no Question) he which is to have this, ought to be Heir of both their Bodies, which cannot be before the death of both; and then it may so happen, that this Remainder shall never take effect, for if the Wife dye who had the particular Estate, during the Life of the Husband (as it was here) her Heir of her Body cannot take it, because he is not Heir of the Body of the Husband also, and then he not being capable of the determination of the particular Estate, he shall never have it, and where an Estate rests upon Contingency this may not be executed be­fore the Contingency happen. Per Cur. when the Wife and the Estranger are admitted in Fee, this doth not alter the Estate, but they shall be seized according to the Surrender. And when Dixon surrenders his moiety to the Use of the Husband,Severance of a Joynture. this was a severance of the Joynture, between him and the Woman, and the Husband aliening the whole to the [Page 123] Defendant, he had a moity for the Life of the Wife, defeazable by the Wife, and the other moiety for the Life of Dixon, and after when the Wife dyes, the Estate of Pannel is deter­mined, as to one moity, and on this the Re­mainder ought then to have vested; but the Plaintiff being Heir of the Body of the Wife begotten by the Husband,Remainder destroyed, be­cause not vests on the deter­mination of the particular Estate. cannot take the Remainder which was limited to the Heirs of the Body of the Baron and Feme, during the Life of the Husband, because non est haeres vi­ventius, and he which takes this Remainder ought to be Heir of both their Bodies, or otherwise he shall not take it at all, and there­fore the Remainder is destroyed, as to this moiety.

As to the Admittance of him in Remainder, Vide Admittance.

Note, The possession of a Lessee for years, is the possession of him in Remainder, yea, so as to make a possessio fratris, Modern Rep. 102. Blackburn and Greaves.

Where the Heir shall be in by Descent or Purchase.

It is a common diversity in our Law, where a Man surrenders to the Use of himself for Life, and afterwards to another in Tayl, the Remainder to the right Heir of him who sur­rendreth, there his Heirs shall have it by de­scent; otherwise, where the Surrenderer hath not an Estate for Life, or in Tayl, there his Heir shall enter as a Purchaser. To illustrate this by a Case or two:

A Copy-holder surrendred his Lands to the Use of a Stranger for Life, and afterwards to the Use of the right Heirs of the Copy-holder, who afterwards surrendred his Reversion to the [Page 124] Use of a Stranger in Fee, and dyed, and Te­nant for Life dyed, the right Heir of the first Copy-holder entred. Per Coke, nothing remain­ed in the Copy-holder upon the first Surrender, but the Fee is reserved to his right Heirs, for if he had not made any second Surrender, the Heir should be in, not by Descent, but by Purchase, 1 Leon. Allen and Palmer.

Heir. A. seized in Fee of a Copy-hold, surrenders this to the Use of his last Will, and after by his last Will devised it to B. for Life, and after his death to the Heir of his Body begot­ten for ever. Per Cur. The word (Heir) being limited to the Body of B. is nomen collectivum, and all one with the word Heirs, and so B. had a Fee executed, and his Heir shall have this by Descent and not by Purchase: And it is not like to Archer's Case, 1 Rep. Where the Devise is to B. for Life, and after to his Heir Male, and to the Heirs Males of such Heir Male, for there the Inheritance is limited to the Heir Male of the Body of such Heir Male, Stiles 249, 271. 2 Rolls Abr. 253. Powsly and Lowdal.

Not a good Remainder within the Custom.

A Copy-hold which by Custom was de­misable for three Lives, was demised to one for Life, the Remainder to such a Wife as he shall marry, and to the first Son of his Wife, Per Cur. These two Remainders are void, but the Estate for his Life was good, More, n. 1922. Webster and Allen, Vide supra.

Of a Surrender to the Use of one's last Will, and how to be construed.

A man cannot devise Copy-hold Estate to transfer it by his last Will only, but he must Surrender it in Manus Domini, to the Use of his last Will, and then he may devise it to whom he pleaseth; but its apparent that no­thing passeth by the Will, but all by the Sur­render; and the Will is only a Declaration of the Uses of the Surrender, 1 Bulst. p. 200. Se­main's Case: But if a Copy-hold he devised without Surrender,Decreed. it cannot be executed in point of Interest, but only by Decree in Chan­cery, 2 Keb. 837. Harrison and Grosvener.

But a Custom, that a Copy-holder shall De­vise his Land, is not good without Surrender, p. 35 Eliz. E. R. Rot. 334. Wrot's Case.

A man seized of Copy-hold Lands, devised a certain parcel of them to his Wife for Life,A general Sur­render re­strained by the Will. the Remainder to his Brother and his Heirs, and afterwards in presence of three persons of the Court, said to them, I have made my Will, and have appointed all things in my Will as I will have it; and afterwards he said, And here I Surrender all my Copy-hold Lands into your Hands accordingly. Per Cur. The Surrender is restrained by the VVill, and not all his Co­py-hold Lands, but only so much as are men­tioned in the Will, pass to the Wife, 3 Leon. p. 18.

Copy-holder in Fee surrenders into the Hands of a Tenant, according to the Custom, to the Use of a Will, which he said he would make and leave in the Hands of his Partner Moss. Moss dyes, and after the Copyholder makes his Will, and recites the Surrender; it [Page 126] seems that the Devisee shall have the Lands, for the words,Words of Demonstrati­on, and not of restraint. That he would leave in the Hands of Moss, are words of demonstration, and not of restraint; and then it is a ground in our Law, When an act is to be done, with re­ferrence to another thing, which is impossible, ille­gal or variant, the act shall stand, and the refe­rence shall be void, Lit. Rep. p. 23. Littleton against Eaton.

Let us see now when a man hath surrendred to the Use of his last Will, how the Estate stands in the Surrenderer.

Copy-holder surrenders to the Use of him­self, for Life, and after to the Use of R. his Son for Life, and after to the Use of his last Will. R. dyes, the Father afterwards surrenders it to the Use of J. S. in Fee, and dyes, with­out making any Will. Its a good Surrender, for a Copy-holder may surrender parcel of the Estate, and the residue shall be in himself, and the Fee Simple of the Copy-hold being limited to the Use of his Will, remains in the Copy-holder, and not in the Lord, Cro. El. 441. Co. 4 Rep. 23. Finch and Hockly, and that the Fee lyes not in the Lord, is Bullen and Grants Case, 1 Leon. p. 174. When one surrenders to the Use of his last Will, and thereby deviseth Copy-hold Lands to his middle Son, and the Heirs of his Body, who dyes without Issue, and the Lord grants it to the youngest, the eldest Son may enter, and Admittance is not necessary.

Copy-hold devised to pay Debis. J. S. seized in Fee of Copy-hold Lands, devised it to his Wife for Life, and that she should sell the Reversion for the payment of his Debts, and after in Court did Surrender the Lands to the Use of his Wife, for Life, according to the Will and Deed, she may sell the Land; he surrendered and referred to the [Page 127] Will, and she surrendred upon Condition to pay 12. l. this was held to be a good Sale, according to the Will. Cro. El. 68. Bright and Hubbard.

If there be two Joynt-Tenants,By Joynt-Te­nants. and the one Surrenders into the Hands of two Tenants to the Use of his last Will, and makes a Will of the Land, and dyes; the Surrender is after­wards presented. Per Cur. Its a severance of the Joynture, and shall bind the Survivor, for being presented, it shall relate to the first time of the Surrender, Cro. Jac. 800. Porter's Case, 1 Brownl. Rep. 127. Allen and Nash.

Pleadings.

Quod tenens custumar. in feodo possit devisare in feodo pro termino vitae vel annorum, Coke Ent. 124.

Surrender upon Condition or Contingency.

Copy-holder may Surrender to the Use of another, on Condition, if the Copy-holder pay to the Surrendree, &c. ad Domum suam Mansionalem, &c. that then the Surrender shall be void, 5 Rep. 114. Wade's Case.

A Copy-holder may Surrender to the Use of another, reserving Rent,Condition, Re entry for non-payment of Rent. with Condition of re-entry, for non-payment, and for default of payment, he may re-enter, 4 H. 6.11.21 H. 6.37.

A Copy-holder surrenders upon Conditi­on, and afterwards by his Deed releaseth the Condition; its good without surrender, for properly a Right or Condition cannot be given or determined by Surrender but by Re­lease, [Page 128] Cro. Jac. 36. Hull and Shardbrook, 4 Rep. Kite and Quinton.

Surrender to the Use of one in Fee, upon Condition to pay 100 l. to a Stranger; it was a Question, if the tender of 100 l. to a Stran­ger, and he refusing, the Condition is saved? By Beaumont, it is saved, aliter, in Case of an Obligation, where he takes upon him to do it, Cro. El. p. 361. Paulter's Case.

K. L. Father of the Defendant, Copyholder in Fee, surrendred to the Use of the Defen­dant in Fee, upon Condition he should per­form the Covenants in such an Indenture; the Defendant was admitted, and after surren­ders the Land to the Use of the Plaintiff in Fee, upon Condition if the Defendant paid 10 l. the Surrender to be void. The Defen­dant neither paid the 10 l. nor performed the Covenant in the Indentures. The Father en­ters and dyes seized, and it descends to the Defendant,Additional Surrenders defeated by Entry. and he enters, upon whom the Plaintiff enters: The Question was, if this En­try were lawful, and adjudged it was not; for by the Entry of the Father both the Surren­ders are defeated. So the Defendant may confess and avoid what was done to the Plaintiff, Judgment pro Defendente, Cro. Eliz. 239. Simonds and Lawnd, Trin. 33. Eliz.

One cannot pass a Copy-hold Estate to begin at a day to come, no not upon a Contingency.A Copy-holder saith, he surrenders his Co­py-hold Estate, and if his Child which shall be Born dyes before his Age of 21 years, that then his Brother shall have it; its not good. This Case falls upon a Rule in Law, That one cannot pass a Copy-hold Estate to begin from a day to come, nor yet upon a Contingency, no more than a Free-hold at Common Law, 2 Bulstr. 274. Simpson and Southern.

[Page 129]If a Copy-holder surrenders his Copy-hold of Inheritance into the hands of the Lord,Use vests pre­sently, the Condition to take effect in futuro. to the Use of J. S. paying of an 100 l. to his Executors, within such a time after his death, he to whose Use this Surrender is made, takes by force of this presently, Per Dodridge, 2 Bulst. p. 275. idem Case.

Surrender upon Condition or Contingency.

Copy-holder may surrender to the Use of another, on condition if the Copy-holder pay 250 l. ad domum suam mansionalem, &c. that then the Surrender shall be void, 5 Rep. 114. Wade's Case.

A Copy-holder may surrender to the Use of another, reserving Rent,Condition of re-entry for non-payment of Rent. with condition of re-entry for non-payment, and for default of payment, he may re-enter, 4 H. 6.11.21 H. 6.37.

A Copy-holder surrenders upon condition, and afterwards by his Deed releaseth the condition, its good without surrender, for properly a right or condition cannot be given or determined by Surrender, but by Release, Cro. Jac. 36. Hull and Sharebrook, 4 Rep. Kite and Quinton.

Surrender to the Use of one in Fee, upon con­dition to pay 100 l. to a Stranger; it was a Question if the tender of the 100 l. to the Stran­ger, and he refusing, the condition is saved. By Beaumont it is saved; aliter in Case of an Obliga­tion, where he takes upon him to do it, Cro. El. p. 361. Poulter's Case.

The Form of a Surrender of Copy-hold Land upon Condition, Vide Conveyancers Light, p. 827. Vide infra Presidents.

Of Surrender before Admittance, whether it shall be good or not?

Purchaser hath nothing before Admit­tance, neither can he Surren­der.A Surrender to J. S. J. S. Surrenders to a Stranger, who is Admitted. The Stranger takes nothing, for J. S. had no Estate before Admittance, and the right and possession still remains in him who surrendred, and this shall descend to his Heir. But the diversity is, an Heir to whom a Copy-hold descends or comes in remainder, he may surrender before Ad­mittance, because he is in by course of Law, for he Custom which makes him Heir to the Estate casts the Possession upon him, from his Ance­stors. But a Stranger to whom the Copy-hold is surrendred, had nothing before Admittance because he is a Purchaser, and the Copy made to him upon his Admittance is his Evidence by the Custom; and before this he is not a custo­mary Tenant, and so he can transfer nothing to another. Yelv. p. 144, 145. Wilson and Weddel. Cro. Jac. p. 36. Joyner's Case.

The Heir may surrender the Reversion be­fore Admit­tance.Copy-holders Baron and Feme to them and the Heirs of the Husband: Husband dyes, the Heir may surrender his Reversion into the hands of two Tenants, out of Court, (if the Custom be so,) before any Admittance, and during the Life of the VVife, and its a good Surrender, for the Reversion was cast upon him by the Surrender, before any Admittance, 1 Rolls Abr. 499. Calchin and Calchin.

Surrender, by whom.

By Infant.An Infant who Surrendred his Copy-hold Land within Age, may enter at his full Age, without being put to any Suit for it, Popham. p. 39.

Infant within Age, surrenders to the Use of another, its not good, in Chancery, Mich. 9 Jac. Hughs and Carpenter.

[Page 131]Baron seized of Copy-hold in right of his Feme, in Fee, surrenders without his Wife,By Husband of the Wives Land. to the Use of J. S. in Fee, who was Admitted; Baron dyes, VVife dyes, the Heir of the VVife enters, and makes a Lease, and good; this was not any discontinuance against the VVife, to put the Heir to his Plaint, in nature of a sur cui in vita. That Action is given, where Reco­very by default is against the Baron and Feme, Popham 39. Bullock and Dibler.

Copy-holder pur vie Surrenders to the Use of another,By Copyhold­er for Life. there can be no possibility of having it again, if he survive; for the Surrenderer is meerly in by the Lord, and not by the Copy-holder; but if a Copy-holder in Fee surrender to the Use of another, for Life, who is admit­ted, he is in quasi by the Copy-holder, and by his death the Copy-holder shall have it again, Cro. Car. 204▪ King and Lord.

Tenant for Life of a Copy-hold, where the Remainder is over, may surrender to the Lord, 9 Rep. 107. Podger's Case.

A Feme Covert and J. S. are Tenants for Life of a Copy-hold,By Joynt-Te­nants. and J. S. surrenders his moiety to the Husband of the VVife; this is a severance of the Joynture, so that he is Te­nant in Common with his VVife, 2 Rolls Abr. 88. Lane and Pannel.

Two Joynt-Tenants of a Copy-hold, and the one surrenders his moiety into the Hands of the Lord, to the Use of his last VVill, and thereby deviseth it to another; this is a good Devise, because by the Surrender the Joynture was severed between them, Co. Lit. 59. b. So if there are two Joynt-Tenants in Fee of a Co­py-hold, and the one Surrenders his part out of Court, into the Hands of the Lord, to the Use of his last VVill, and by his last VVill [Page 132] afterwards deviseth it to the Use of a Stranger in Fee, and after at next Court the Surrender is presented; by the Surrender and Presentment the Joynture was severed, and the Devisee ought to be Admitted to the moiety of the Land, for now by relation the State of the Land was bound by the Surrender, Co. Lit. 59 b. Constable's Case, cited there.

Where a Copy-hold granted by a Disseisor, &c. shall be good, and stand in force against the Disseisee, and where not.

By Disseisor, &c.Tenant for Life, Remainder for Life of a Copy-hold, the Remainder man for Life en­ters upon Tenant for Life in possession, and makes a Surrender; nothing at all passeth here­by; for by his Entry he is a Disseisor, and hath no customary Estate in him whereof to make a Surrender, Mod. Rep. 199. Bird and Keck.

Of the lawful Lord, who can make Grants and admit upon Surrenders.This diversity was unanimously agreed. If Disseisor or Feoffee of a Disseisor, or any other who has a tortious or defeasible 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 had right, when he shall re-continue the Manor by Action or Entry; for to this intent the said Custom shall be intended of a Lord which had a lawful Estate or Interest; but if such Lord who had a tortious or defeasible Estate, admit any upon Surrender made to the Use of another, or give Admittance to the Heir upon a Descent, such Admittance shall be good, and within the Custom; for such acts are lawful, and quo­dammodo judiciales, and which he may be com­pelled to do in a Court of Equity, 4 Rep. 23. b. Clark and Penyfeather. So every one who had [Page 133] a lawful Estate or Interest in a Manor (Dom. pro Tempore) both in Fee or Tayl, or Dower, or by the Curtesie, or for Life, or Years, or as Guardian, or Tenant by the Statute, or Elegit, or at Will. Otherwise of Tenant at Sufferance: For if there be Tenant pur auter vie, of a Manor, and Cesty que vie dyes, and the Tenant continue in the Manor, and hold Courts, and makes voluntary Grants, by Co­py, this shall not bind the Lessor; aliter of Ad­mittance upon Surrender, or upon Descent, 4 Rep. 24. Rous and Archer's Case; such Grants shall not be avoided by disability of the person, or defect of Interest, or exility of the Estate of the Lords (as at VVill, sur condition, &c.) 8 Rep. 63. Swain's Case: Or whether it were granted by non compos mentis, Infant, Bishop, Parson, non sanae memoriae, &c. it is not material in Sur­renders, Vide supra in Tit. Lords Grants. If a Co­py-hold Escheat or come into their Hands during their time, they may re-grant it, red­dendum the ancient Rents, Customs and Ser­vices, and this shall bind the Lord who had the Inheritance or Free-hold, 4 Rep. ibid. So such Grant by Baron and Feme shall bind the VVife, notwithstanding the Coverture; So a Grant by a non compos mentis, a Bishop, Infant, and so Feme Covert, non sanae memorie, Infants, Successors of Bishops, Parsons, Prebends, are bound by the said Custom, it being that the Tenements sunt dimiss. & dimissib. per Dom. Manerij pro tempore existen, &c. ibid. vide supra.

By a Feme Covert.

A Tenant out of Court cannot take a Sur­render of a Feme Covert, for that she is se­cretly to be examined by the Steward, Tothil, p. 108. unless by special Custom.

[Page 134] Sola & secreta examinat.The Surrender of a Feme Covert being so le examined, shall bind her; but whether such a Surrenderer, upon her examination made before two Tenants of the Manor, such Surrenders before them, being used to be made, be good, was the Question in the Case of Erish and Rives, Mich. 41 El. B. C. and Per Cur. by special Cu­stom to warrant it, it may be good.

By Infant, Vide supra.

By the Hus­band of the Wives Land, Quid opera­tur.Feme Tenant for Life of a Copy-hold, the Reversion being granted over to B. for Life, Re­mainder to C. for Life, cum acciderit post mortem sursum redditionem vel forisfacturam of the Feme, and after the Husband Surrenders to the Use of B. for Life, and so he is Admitted Tenant, and after dyes. In this Case C. shall not have this, because his Estate is not to commence till after the Death, Surrender, or Forfeiture of the Feme; and the Feme here is in Life and had not made any Surrender or Forfei­ture, and the Wife had right in this in the na­ture of a plaint de cui in vita. But the Lord in this Case may retain it in his own proper hands or disposition,Occupant. during the Life of the Hus­band, quasi an Occupant, Dyer 9 El. 264. Sect. 38.

Surrender, to whom.

To the Wife.By the Husband to the Use of the Wife is good, vide supra, and 4 Rep. 29. Bunting's Case, for it is done by Surrender to the Lord and Ad­mittance.

To the Ste­ward.A Surrender made to the Steward, to the Use of the Steward, is good, for the Entry is, quod sursum reddidit in manus Domini, and the Steward is but the Lords Servant, and the sur­render is to the Lord, and not to him, Cro. El. p. 717. Erish and Rives.

So Infant, Vide supra.

Of Countermand of a Surrender. Where the Surrender of a Copy-hold may be Coun­termanded by the Party himself, and what col­lateral Act without the assent and privity of the Party shall be a countermand, and where, and what not.

Grant by Baron and Feme shall bind the Feme notwithstanding the Coverture: so Grant by non compos mentis, Infant, Vide supra.

Vide supra. Where and what Grants by Lords of Manors shall be good or defeasible in re­spect of the Estate they had therein.

Surrender is not Countermanded by the death of Surrenderor before Presentment, 4 Rep. 29 Bunting's Case.

VVhere the Customs are not pursued, the surrenders are void, Vide sparsim, and 5 Rep. 84. Peryman's Case.

Surrender by Steward or Deputy Steward and of persuing their Warrants, vide Steward, supra.

What remedy to force a Trustee to Surrender.

A Copy-holder doth surrender to the Use of one A. in Trust,In the Lord's Court. that he shall hold the Land until he hath levied certain Monies, and that afterwards he shall surrender to the Use of B. The Monies are levied. A. is required to make surrender to the Use of B. he refu­seth, B. exhibits a Bill to the Lord of the Ma­nor against A. who upon hearing of the Cause Decrees against A. That he shall Surrender; he refuseth: Now the Lord may seize, and admit B. to the Copy-hold, for he in such case is Chancellor in his own Court, Per totam Curiam, 1 Leon. 2. Or relief may be had in Chancery.

CAP. XVI.

Of Presentment. How and when to be made. How to be pursuant to the Surrender. What the Law is if Surrenderor or Cesty que use, or the customary Tenants, into whose Hands the Surrender was made, dye be­fore Presentment or Admittance. VVhere two Surrenders are, and the second Sur­render is presented first.

Presentment.

No good Sur­render till presented.IF the Surrender be made out of Court in­to the Hands of the Lord himself, which the general Custom will warrant, or into the Hands of the Bayliff, or of two Tenants of the Manor (which is warrantable only by special Custom) there must be a true Present­ment of the Surrender in Court, by the same Persons into whose Hands the Surrender was made, and the Admittance of the Lord must be according to the effect and tenor of both the Surrender and Presentment. It is not an effectual Surrender till it be presented in Court. And therefore in an Action on the Case on As­sumpsit, in Consideration that the Plaintiff would surrender to the Defendant and his Heirs a Co­pyhold according to the Custom of the Manor, Defendant assumed to pay 500 l. and for breach of this promise the Plaintiff brings the Acti­on and had a Verdict; but Judgment was arrested, because the Consideration on the Plaintiffs part was not performed; for the Con­sideration was, That he should surrender the [Page 137] Copy-hold to the Defendant and his Heirs, and he hath alledged the surrender to be into the Hands of a Copy-hold Tenant of the Ma­nor, to Use of the Defendant, which is no surrender untill it be presented at the next Court, and so it is uncertain whether it shall take effect or not, Stiles, p. 256. Shaan and Shaan.

The Presentment by the general Custom of Manors is to be made at the next Court day,When to be. be made. immediately after the surrender, but by speci­al Custom, at the second or third day after­wards, and by Rolls in Jay's Case, Stiles 275. there is no certain time, but as the Custom is, so that it be within the Life of the Tenant, it is to be made by the same persons that took the Surrender, and in points material, accor­ding to the true tenor of the Surrender.

But if the Surrender be conditional,Presentment must pursue the Surrender. and the Presentment absolute, the Surrender, Present­ment and Admittance are void, except the Steward in the entry of it omits the Condi­tion, and upon sufficient proof made in Court of that, the Surrender shall not be avoided, but the Roll amended, and this shall be no conclusion to the Party to plead, or give in Evidence the truth of the matter, 4 Rep. 25. Kite and Quinton.

But in May's Case, Norf. Summer Assises, 1663. The Custom of a Manor was for a Copy-holder in extremis to surrender into one Te­nants Hands in the presence of credible Wit­nesses, and a Surrender was made accordingly, but presented to be done to another Tenant, yet being proved to be done to a Tenant of the Manor; It was holden by Wadham Wind­ham Justice to be good.

Of Presentment where the Surrenderor or Surren­dree, Cesty que use, or customary Tenants dye before Presentment or Admittance.

Surrenderor dyes.If one Surrender out of Court, and dye be­fore Presentment, if Presentment be made af­ter his death, this is good, 4 Rep. 29. Bunting's Case.

Cesty que use, dyes.If (Cesty que use) he to whose Use the Sur­render is made, dyeth before Presentment, yet upon Presentment made after his death, his Heir shall be admitted, Stiles, p. 145. Barker and Denhan.

Surrenderor and Cesty que use, both dye▪If one Surrender out of Court, to the Use of one for Life, the Surrenderor and the Les­see for Life both dye before the Presentment, yet upon Presentment made, he in Remainder shall be Admitted.

Surrendree dyes.Surrendree dyes before Admittance, his Heir may be Admitted, and if it be Burrough-Eng­lish, the youngest Son, 2 Siderfin, 38, 61.

The Tenants into whose hands the Sur­render was made, dye.If the Tenant, into whose Hands the Sur­render was made, dye before Presentment, yet upon sufficient proof made in Court, That such a Surrender was made, the Lord shall be com­pelled to admit, Co. Lit. 62.

Nothing pas­seth till pre­sentment.But nothing passeth till Presentment. 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 [Page 139] 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, its 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.

[Page 140]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 [Page 142] 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. its 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 [Page 143] 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 [Page 144] 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 [Page 145] 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 [Page 147] 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,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 [Page 148] 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. [Page 149] 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, its 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 [Page 150] 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. Its 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, its 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 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.

[Page 152]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, [Page 153] 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; its 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.

[Page 154]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, [Page 155] 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 Copy­hold 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. [Page 156] 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 [Page 157] 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.

[Page 158] 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. Ʋncertain. Ʋpon 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 [Page 160] 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 [Page 161] 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 [Page 162] 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; its 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 [Page 163] 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, its 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 [Page 164] 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 Lord recover his Fine.

Debt.Debt lyes for a Fine against the Copy-holder by the Lord, Siderfin, p. 58. agreed in the Case of Wheeler and Honor.

Copy-holder, Heir waves the possession.If Copy-holder in Fee dyes where the Fine is certain, and the Heir waves the possession and refuseth to be admitted, it seems the Lord shall not have an Action of Debt against him; and yet some hold he may not wave the pos­session, because being Inheritance, Interest de­scends, and for this reason praecipe quod reddat lyes against the Heir at Common Law before his Entry, Siderfin, p. 58. Wheeler and Honor.

Pled. Vide Presidents, infra.

Custome quod Dominus habeat rationabilem finem pro admissione, Co. Ent. 646. 13 Rep. 1.

CAP. XIX.

Of the Entayling of Copy-hold Estates. The different Opinion of the Judges, with an Abstract of the Reasons and Arguments how Copy-holds are or may be Entayled, and the Law setled as to that Point. How such Copy-hold Entayls may be barred or dock'd. And what acts of Tenant Copy-holder in Tayl, &c. shall amount to a Dis­continuance or not.

Of Copy-hold Estates being Entayled.

AS to Copy-hold Lands being Entayled, whether there be any such Estate Tayl by any particular Custom to be allowed, and how such Entayls arose, it hath been vexatio quaestio. This Question hath been curiously de­bated in our Books, and therefore I shall be the larger upon it.

It is clear, That the Statute de donis per se doth not create an Estate Tayl in a Copy-hold, 9 Rep. 105. the Case of Thornton and Lu­cas, there cited; for the Statute de donis doth not extend to such base Estates at will.

The Question is, if the Statute may co-op­perate with the Custom as to make an Estate Tayl. Coke in the Case of Warn and Sawyer, 1 Rolls Rep. 48. cited one Haslerick and Grays Case to be so adjudged; and in one Hills Case a Custom was pleaded that a Copy-hold might be granted to one and the Heirs of his Bo­dy, with remainder over; but (saith he) we of the other side durst not hazard the matter [Page 166] upon this, but we devised a Plea, That there was another Custom there, that if a Tenant in Tayl alien, this shall be a bar to the Re­mainder; and upon issue that Custom was found; for it was agreed, Per totam Curiam, That if an Estate Tayl may be of a Copy-hold by Custom, that by a Custom it may be dock'd and destroyed.

It hath been often moved in our Books, When a Copy-holder in Fee surrenders to the Use of one in Tayl, there being no Custom to warrant such an Entayl, whether it be an Estate Tayl, by the Statute of De donis condi­tionalibus; or a Fee-simple conditional at the Common Law. This point is well argued and setled in Rowden and Malster's Case, Cro. Car. p. 42.Copy-hold cannot be En­tayled within the Statute de donis. Yelverton held, That it was an Estate Tayl by the Equity and intent of the Statute de donis, but Hutton, Harvy and Croke, That it was not an Entayl, but a Fee-simple conditi­onal at Common Law. 1. Because it would be prejudicial to Lords, for by this means the tenure would be altered, for the Donee in Tayl without a special reservation, ought to hold of the Donor, by the same Services that the Donor holdeth over, and he who comes in by Surrender and the Admittance of the Lord, to hold to him and the Heirs of his Bo­dy, cannot hold of him who surrendred, but shall hold of the Lord, and is Tenant at will unto him, and shall do the Services unto him as Lord. 2. In respect of the baseness of their Estate, the Statute never intended to provide remedy for them nor their Alienations; for the words of the Statute are, Quod voluntas donatoris in Charta sua manifeste expressa de caetero observetur, which proveth that the intent of the makers of the Statute was, That no Heredita­ment [Page 167] should be intayled within this Statute, but such as either was or might be given by Charter or Deed, and other Reasons out of the words of the Statute, Carters Rep. 8. But Copy-holds are no such Hereditaments, and therefore not within the meaning of the Act. 3. If Copy-holds might be Entayled, then the perpetuity of such Estates might be maintain­ed, for a Fine cannot be levied of Copy-hold Lands to bar the Entayl, nor can a Recove­ry in value be intended of such an Estate where warranty cannot be annexed to it. Ceo reason come jeo pense ne vault rien pas. Car est agree per touts que poet estre dock't per recovery en curia del Baron, Vide apres. They held also, That neither Estate Tayl, nor Estate after possibility of issue extinct (which had a necessary dependance upon an Estate Tayl) can by any particular Custom be allowed. Cave Lecteur; for its agreed by all, That a Custom co-operating with the Statute may create an Estate Tayl. Observe Plowden in Manxel's Case is no Law, 2 Rolls Rep. 383. mesme Case

Co. Lit. 60. As there may be an Estate Tayl by Custom with the co-operation of the Sta­tute of W. 2. Cap. 1. So may he have a Formedon in discender, i. e. a Writing in the nature of a Formedon in Descender, in the Lords Court: But as the Statute without a Custom extendeth not to Copy-holds, so a Custom without the Statute cannot create an Estate Tayl. Now it is not a sufficient proof, that Lands have been granted in Tayl; for albeit Lands have anciently and usually been granted by Copy to many men and to the Heirs of their Bodies, that may be a Fee-simple conditional, as it was at the Common Law; but if a Remain­der hath been limited over such Estates and [Page 168] enjoyed, or if the Issues in Tayl have avoid­ed the alienation of the Ancestor, or if they have recovered the same in Writs of Formedon in the Discender; these, and such like, are proofs of an Estate Tayl: But if by Custom Copy-hold may be Entayled, the same by like Custom may be cut off, Plow. Com. 240.

This was the first Opinion, and by Clench and Gaudy agreed to in Grovener's Case, Pop­ham 32. The other Opinion is, That an Estate is wrought out by the Equity of the Statute de donis, for otherwise it cannot be that there should be any Estate Tayl of Copy-hold Land; for by Usage it cannot be maintained, because that no Estate Tayl was known in Law before this Statute; and after this Statute it cannot be by Usage, because this is within the time of limitation, aftet which an Usage cannot make a Prescription, for a Custom can­not be made after the Statute de donis. And it appeareth by Littleton and Brook, That a Plaint lyes of Copy-hold Land, in the nature of a Formedon in Discender at Common Law, and therefore the Statue helps them for their remedy for Entayled Lands, which is but custo­mary by Equity; and if the Action shall be given by Equity for this Land, why shall not the Statute by Equity work to make it an Estate Tayl also of this nature of the Land? Popham's Rep. 33. Gravenor and Brooks; so Bullen and Grant's Case.

A Copy-holder Surrendred to the Use of J. for Life, the Remainder to H. and the Heirs of his Body: it was a Question if this Estate limitted to H. was an Estate Tayl, or a Fee-simple conditional; for if it were a Fee-simple conditional, then there cannot be an other Estate over, (but yet in Case of a De­vise, [Page 169] an Estate may depend upon a Fee-simple precedent, but not as a Will, but as an exe­cutory Devise.) Per Wray, it is an Estate Tayl. Coke then said, They who would prove the Cu­stom to Entayl Copy-hold Lands within a Ma­nor, it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies, but they ought to shew that Surrenders made by such persons have been avoided by such mat­ter. But by Wray, that is not so, for customa­ry Lands may be granted in Tayl, and yet no Surrenders have been made within time of memory, 1 Leon. p. 174. Bullen and Grant, Cro. El. 148. mesme Case. Heyden's Case in 3 Rep. 8. is clear, That neither Statute without the Custom, nor the Custom without the Statute, but both co-operating may create Tayl. And as for Custom, if the Custom be to grant Lands in Fee-simple, this without question may be granted to one and the Heirs of his Body by Copy▪ for omne majus includit minus.

My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case. First (says he) a Copy-hold may be Entayled; not Entayled, as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold, which is a kind of base Estate, and which might be grantable to one and the Heirs of his Body, according to the Custom, and if he dyed without Issue, it might be aliened again; and that a Copy-holder could not bar his Issue, unless by a Recovery; such an Estate might be by Custom. I hold (saith he) That the Evidence may fall out to be such that we may take it for granted, that Lands granted by Copy to one and the Heirs of his [Page 170] Body, the Remainder over may be a good Remain­der, and the Reversion may continue in the Copy-holder, the Donor may have a good Reversion, and all this without the help of W. 2. That which confirms me is the constant practice of most Co­pyholds, to have Estates over. As for the reason of it, if we shall give in Evidence (for the pur­pose) a Surrender in H. 7ths time, wherein Lands are limited to one and the Heirs of his Body, the Remainder over; this is an Evi­dence that it was so in H. 7ths time, and we have reason to think so it was past time of memory of Man. And as your Evidence is for Custom, so may your Case be to make an immemorial Custom. Then all the Question is, whether it will bear it or not? In this Case of a Copy-hold being an Estate at will, you may have it at will, according to the na­ture of the Custom; it is not against the Ana­logy and Reason of the Law, and it may bear it; the Evidence may be such. If in H. 7th or E. the 4ths time it appears so, it is a good warrant for matter of Evidence for a Jury to find, That there were such Copy-hold Estates with limitation over. Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body, the Remainder over; or to grant the Land by the name of a Reversion; for here is no alteration of Common Law Estates: The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate,Proofs of an Estate Tayl. neither a Remainder nor a Reversion; but the Act prohibiting Alienations, Quo mi­nus ad exitum illorum, quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad dona­torem (si exitus ejus deficiat) revertatur, by ope­ration of Law, it comes to a Remainder or [Page 171] Reversion; if by Custom such Estates may re­main or revert, so may Copy-holds by Custom, because they are Tenants at will. Now as by that construction W. 2. did make a Remainder or a Reversion, so the Custom of prohibiting Alienations by Copy, may make Reversions or Remainders of Copy-hold Estates.

If the Reader hath a mind to see other Cases about the Entayling of Copy-holds (though they are all reduced to what is be­fore cited) he may peruse 2 Brownl. 42, 76. Keymer and Poel 121. Hill and Upchurch, 1 Rolls Rep. 48. Warn and Sawyer. Cro. El. 717. Erish and Rives, &c. 2 Brownl. 121.

The Law about Entayling of Copy-holds is setled and agreed by the Judges, B. R. 17 Car. 2. Newton and Shaftoe's Case, That it is by Custom and not by the Statute, so agreed M. 18. Car. Pilkington and Stanhop's Case, queux vide apres.

Of docking or barring Copy-hold Estates, being bar­red by Fine or Recovery, or otherwise.

It is agreed by all the Judges, 1 Rolls Rep. 48. Warn and Sawyer's Case, That if an Estate Tayl may be of a Copy-hold by Custom, that by Custom it may be dock'd and destroyed, See More, n. 877. A Copy-hold may be En­tayled by Custom, and barred by a Recovery by special Custom; and it was agreed that a Surrender may bar the Issue by special Custom, Chard and Wyat, so Lee and Brown, M. 15 Jac. B. R. And it was agreed to be a strong proof of the Custom, that they to whose Use such Surrenders had been made, had enjoyed the Land against the Issue in Tayl, 1 Rolls Abr. 506. mesme Case.

[Page 172]The Custom of the Manor of Wakefield was, That they may Entayl their Copy-hold Lands; and the Custom of the Manor to bar the Entayls, and the Remainders there, is, That the Tenant in Tayl shall commit a Forfeiture, as by making a Lease without Licenc, &c. and then for the Lord to make three Proclama­tions and to seize the Copyhold, and then to grant this to the Copy-holder and his Heirs, allowed to be a good Custom; Also this Custom there was good, That if Tenant in Tayl make a Surrender to a Purchaser and his Heirs, of his Copy-hold, and such Purchasor intending to bar the Entayl and the Remainders, com­mits a Forfeiture, upon which there is a seizure by the Lord, and three Proclamations, &c. and so for him to grant; these were adjuged good Customs, though the Tenant in Tayl nor his Issue are privy: See as to this last Custom in a Tryal at Bar in Ejectment, Siderfin, p. 314. Lessee of Pilkington contra Stanhop. So in Eject­ment in Grantham and Coplies Case, 2 Sanders 422. And it was fa [...]ther adjudged, If such For­feiture be presented in the Copy-hold Court, and the Land seized in Manus Domini, the Lord may not admit any other but him to whom it is limited and assigned by the Te­nant who made such Forfeiture, and the Lord cannot dispose of it otherwise: And farther, That if the Lord admit any other, and after sells the Manor to a Stranger, by whom Cesty que use is admitted, Cesty que use hath a good Title, and shall avoid all mean acts and dis­positions made by the Lord, as he should if a Surrender had been made to his Use, ibid.

Mr. Keble in the Reporting of this Case of Coply's 2.823. saith, A Surrender is to the Lord to the intent quod inde faciat voluntatem, yet [Page 173] by Custom the Surrenderer by Petition or De­claration may direct it to any person what­ever, and the Lord must pursue it, and there is no Estate in the Lord, but it remains in the Tenants hands till Admittance of such party, and the Purchasor might come in at any time.

The Case of Taylor and Shaw, in Carters Rep. 6, 22. The like Custom is adjudged void, but that was upon a fault in the special Verdict: Tenant in Tayl of Copy-hold Lands, the Jury find a Custom, That this is to be barred by seizure of the Lord as a Forfeiture, & non alio modo, and not otherwise, as the Lord Chief Justice Bridgman well observed, and that being naught, the whole Custom is in vain. As for his first Reason of such a Custom being void, that its a precarious Custom; you must have the concurrence of the Lord, or you can­not do it; and Custom implies Right; though this is of weight, yet it might have been ob­jected in Pilkinton's Case and Grantham's Case, yet in these Cases such Custom is adjudged good. But his second Reason is cogent; by this negative Custom you destroy that which is essential to the Estate. If you will allow a customary Tayl, you must allow a customary Recovery, and so this Case differs from those others.

Now these ways of barring Entayled Copy-holds, are in nature of a Recovery to dock the Entayl. But Rolls Opinin in Stiles 450. Pilkington and Bagshaws Case is not Law; he conceived there could be no such Custom to cut off Entayled Lands of Copy-hold by the Forfeiture and seizure of the Lord, for his seizure upon the forfeiture destroys the Copy-hold Estate at Common Law; Mo­dus [Page 174] & Conventio vincunt Legem. And there­fore

It was made a Question in Dell and Heydon's Case, If Tenant in Tayl of a Copy-hold, Re­mainder in Fee, is impleaded by plaint in a Court Baron, in nature of a Writ of Entry in the Post,The manner how, and the reason why a Recovery shall bar a Copy-hold Estate. and suffers a Common Recove­ry with Voucher, whether if Tenant in Tayl dye sans issue, this shall bind the Remainder? Cro El. p. 372. But Rolls in 1 Abr. 506. in the same Case, saith this may be barred by a Com­mon Recovery, for a warranty may be an­nexed upon this by a Surrender to an Use, or by a confirmation, or by Release with War­ranty, and it may be intended he shall have other Copy-hold in value. And Sir Francis More in the Report of this Case saith, if Te­nenant in Tayl come in as Vouchee, this is a bar to the Issues and Remainder. Surrender with warranty to an Use, and grant accor­dingly, makes the party in the per by the Surrenderor, and upon this Warranty the Sur­renderor may be vouched, and Recovery in value shall be only of other Copy-hold Lands in the Manor, No. 488. and in 4 Rep. mesme Case, its adjudged that such Recovery shall make a Discontinuance, and shall take away the Entry of the Heir in Tayl.

If a Copy-holder surrenders in Tayl, and the Heir of the Donee is to bring a Formedon, he ought to count of a Gift made by the Copy-holder who surrendred, and not by the Lord, for he is but the Instrument to convey it, and nothing passeth from him, Cro. El. 361. Paulter and Cornhil.

And yet in the Case of Clun and Pease, ad­judged since Dell and Higden's Case, Per totam Curiam, A Recovery with common Voucher [Page 175] in a Plaint, in nature of a Writ of Entry, in Curia Manerij, shall not bind the Issue in Tayl, for it shall not bind but upon expectancy of a Recovery in value, which is the reason it binds for Land at the Common Law, and here he cannot have any Land in value, neither at Com­mon Law, nor customary Land; for if it should be so Conveyed, the Lord should lose his Fine, and one should hold his Land as a Copy-holder without Admittance or Grant from the Lord, which is contrary to the nature of a Copy-hold, but its a Discontinuance clearly, which cannot be defeated by Entry, Cro. El. p. 391.

Now as a Feoffment will not destroy a Copy-hold Estate Entayled, so neither a Fine or Re­covery at Common Law.

It doth not make any Discontinuance,Copy-hold Estate, how discontinued or not. for these being Common Law Assurances, they do not work upon the Assurance of the Copy-hold, and that that doth not work upon the right of the Estate Tayl cannot make a Discontinuance. And the same reason of a Fine, which is but a Feoffment on Record, and the same reason holds; a Fine may work to the destruction of an Estate, where it is not preserved by special Custom, but this is preserved by special Custom: so for a Re­covery, that that is in demand is the Free-hold. True, if the Recovery were in the Lords Court, there the Estate may be turned to a Right, and a Recovery at Common Law cannot bar a Copy-hold Estate, because of the Recovery in value, to which the Warranty is annexed, doth not go according to the Copy-hold, but accord­ing to the Freehold. These being Common Law Assurances, work only a Common Law Interest, and cannot work upon a Copy-hold; this is the Abstract of Glin's Argument in Tay­lor and Shaw's Case, Carter's Rep.

[Page 176] How Copy-hold barred by a Fine at Common Law.But the Lord Chief Justice Bridgman in that Case put a nice difference, as to the barring Entayled Copy, by a Fine at Common Law; if a Copy-hold be suspended, while it is in suspence a Fine at Common Law bars it; for one cannot be a Copy-holder in Tayl and have the Inheritance of Freehold in himself, it must be suspended for a time, as if he divide the Copy-hold from the Freehold for a time; and he there gave a notable difference,Difference, as to what may pass by a Fine or be barred by a Fine. where a man may pass a thing by a Fine, and where he may bar by a Fine; a right of Copy-hold cannot be passed by a Fine, but may be bar­red by a Fine. A man that hath a Rent-charge, he levies a Fine of the Land, the Rent-charge is gone by it, yet the Fine is not levi­ed of the Rent but of the Land; as for his other Reason from the words of the Statute, 32 H. 8, Of Lands any ways Entayled, &c. I con­ceive that cannot extend to Copy-hold Lands, Carter's 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.

Discontinu­anceIf 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 [Page 177] 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 [Page 178] 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 [Page 179] 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, its 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.

[Page 181]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.

[Page 182] 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 re­demiseth 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.

[Page 184] 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 [Page 185] 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; its 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 [Page 186] 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; its 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 [Page 187] 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 [Page 188] 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 [Page 189] 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 [Page 190] 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 [Page 192] 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.

[Page 193]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.

[Page 196] 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.

[Page 197]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. [Page 198] 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 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, its 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; Aliter [...] where its 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 [Page 199] 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, its 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.

[Page 200] 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, its 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, its no Forfeiture, it is but a negligence; aliter, if he had been warned, and then had [Page 201] 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 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 [Page 202] 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 [...]orfeitu [...]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 [Page 204] 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. Its a cer­tain [Page 205] 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, its 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. 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 [Page 206] 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. Its 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 its 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, its not a Forfeiture; nothing passeth, and so its no alienation; aliter of a Lease, [Page 207] 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 [Page 208] 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, its 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 Top­boughs.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 [Page 209] 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, its 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. Its 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 the principal and reversed the Outlawry, and was found Not Guilty, and the Heir of him which was hang'd [Page 210] 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 its 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.

[Page 211]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: [Page 212] 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.

[Page 213]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.

[Page 214] 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,) its 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 [Page 215] 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. Its 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 [Page 216] 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 [Page 217] 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, its 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. [Page 218] 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.

Its 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 its 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 [Page 220] 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 [Page 223] 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.

[Page 224] 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.

[Page 225]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.

[Page 226] 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 [Page 227] 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. its 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 [Page 228] 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 [Page 229] 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, [Page 230] 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 [Page 231] 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 [Page 232] 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 [Page 233] 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, [Page 234] 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 [Page 235] 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 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 [Page 236] 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 [Page 237] 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 [Page 238] 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 [Page 239] 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, its 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; its 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 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. [Page 241] 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.

[Page 242]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, [Page 243] 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, [Page 244] 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.

[Page 245]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. [...]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 [Page 248] 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 [Page 249] 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 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 [Page 250] 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, its 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 [Page 251] the Lord demiseth it for 21 years,38 H. 8. Rents of Leases in Tayl. rendring the ancient Rent, &c. its 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 its 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, [Page 252] 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 [Page 253] words of such acts of Parliament do extend to Copy-hold Lands, as

Statute of Merton, Cap. 1.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.

[Page 254] 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, its 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 [Page 255] 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. 2 [...]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.

[Page 247]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.

[Page 548]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 [Page 249] 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 Pa [...]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 [Page 250] 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. its 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 [Page 251] 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 its 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, [Page 252] 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.

[Page 253]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; its 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.

[Page 254] 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 [Page 256] 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 Tnant at Will, and the Freehold being in another: But he may have a Peti­tion to the Lord, in the nature of a Faux Judgment, and therein assign Errors, and have Remedy according to Law, 4 Rep. 21. Brown's Case.

Fenner said he had seen a Record 36 H. 8. where the Lord by Petition to him, had for certain Errors in the Proceedings, reversed such Judgment given in his own Court.

Now real Pleints are in the Lords Court, are in this Form,

A. de B. queritur versus C. de D. de placito ter­rae, videlicet de uno Messuagio quadraginta Acris ter­rae, &c. cum pertin. & fecit protestationem sequi querelam istam in natura Brevis Domini Regis As­sisae mortis Antecessoris ad communem Legem (vel Brevis Domini Regis Assisae novae disseisinae ad com­munem Legem) aut in natura Brevis de forma do­nationis in discendere ad communem Legem, (and so in the nature of any other Writ, &c.) ple­gii de prosequendo, F. G. &c.

CAP. XXXI.

Declaration of, for and concerning Copy-hold Lands and Presidents.

IN Ejectione Firmae, it was doubted by the Court, whether the Plaintiff in his Decla­ration ought to set forth the Custom of the Manor, That the Copy-holder may Lease, &c. and then to shew that the Lease is warran­ted by the Custom,Whether in Ejectment the Plaintiff need to shew that the Lease was warranted by the Custom. in 1 Anderson Rep. Ewer and Astwick. But it is fully resolved and agreed in Rumney and Eves's Case, 1 Leon p. 100. That the Plaintiff ought not to shew that the Lease is warranted by the Custom, but that shall come of the other side. This was Pasch. 30 El. B. R. But in Hill. 38 El. Cro. p. 469. Wells and Partridge, it was doubted; because otherwise being a general Court, it shall be intended of a Lease at Common Law, which a Copy-holder cannot make; as if the Heir in Burrough English brings a Mordancestor, he ought to shew the Custom in his Count, and declare accor­ding thereunto: This was the Opinion of An­derson in the Case; and in Moor, n. 927. Gre­gory and Harrison. It is said to be resolved an Ejectione Firmae doth not lye of a Copy-hold, if the Plaintiff doth not declare the Custom, Lease and Ejectment; but the Practice now is otherwise.

Upon Agreement, Whereas W. was seized of Copy-hold Lands, That he should surrender the same to the Use of Elkin, and that he was to give him for the same 560 l. and if he sold the same over, the Plaintiff to have the moiety of what he sold over and above: It is said in [Page 258] the Declaration,Declaration must be, That he is seized in Dom. suam ut de feodo secun­dum, &c. and also may shew that they are customary Lands. he was seized in Dominico ut de feodo secundum consuetudinem manerij, and he doth not shew the same was customary Land Per Cur. he ought to shew it, but he need not shew that he was admitted, 3 Bulstr. 230. Elkins and Wastel.

Declaration sur Assumpsit to make a Surrender of Copy-hold Land, Placita gen. & spec. p. 16.

Declaration in Case for a Copy-holder for cutting down Trees upon his customary Tene­ments, Brownl. 252.

Def. seisitus de terris custumar vendidit querent (ur) statum suum inde ac omnia bona & as [...]umpsit causa­re statum fieri quer in terris & deliberare bona, Rast. Ent. 7.

Nar pro tenen customar versus Dom Maner qui succidit arbores suꝑ Tenementa custumar per quod quer non habet suffeciens forale sepiment (ur) & maremium ꝑro reparatione secundum consue­tud Manerij, Hern 216, or 226. 1 Brown 252.

Pro ten custumar versus un Tanner de Tanpi [...]s erect. propre rivulum decurren ad Mes­suagium querentis per quod aqua corrumpitur, Hern 254.

Ad exheredand quer de Tenementis custumar & impediend ipsum de Administratione bonor ei committend, Co. Entr. 29.

Pro ten custumar molendini versus occupatio­nem tenementorum qu [...] per consuet (ur) debe [...] molare grana ad dict' molend, Hern 83.

Narrat in Action sur Case per Copyhold que fuit le Tenant pur 3 vies successive des terres d'un Manor deins quel fuit un Custome habere successive, &c. & un auter Custome que prima persona in copiis rotulorum ejusdem Manerij no­minata poet surrender in manus Dom al son proper use & al use des deux auters nominand Le Def. in consideratione quod le Plaintiff, pro 12 d. in [Page 259] manibus & 50 quarter de brasis illi deliberand as­sumpsit sursum reddere ad usu ipsius & duor alior ex nominatione Def. & procurare cur assumpsit & promisit apparere apud Curiam & accipere sta­tum ad usum ipsius & 2 aliorum & deliberare les 50 quart (ur) brasii pred, Winch. Ent. 65.

Narrat (ur) per Copyhold qui fuit Tenant pur 3 vies successive des terres tenus d'un Manor, deins quel fuit un Custome habere successive, &c. & un auter Custome que prima persona in Co­piis rotulorum ejudem manerij nominat poec surrender in manus Dom al son proper use & al use deux auters per ipsum nominand Le Def. in consideratione que pro 12 d. in manibus & 50 quarters de Malt a luy deliberand ad assu­me a Surrender al use de luy mesme & 2 auters nominatione Def. & procurare curiam assumpsit & promisit d'appearer al Court & d'accepter del Estate a luy & les deux auters & pur deliver les 50 quarters de Melt vendit (ur), Winch Entr. p. 65. Chambers and Turner.

Cond del obliḡ a Surrender un Copyhold Estate al use del [...]quer al proche in Court, Bar quod Def. al Court tenus tiel jour surrendroit accor­dant al effect del condicon, Winch. Entr. 241, 222. & demur general al bar, Eldre & Ll'uel­ling.

CAP. XXXII.

Of Pleadings. The general Rules of Plead­ing as to Copy-hold Estates. Of Plead­ing, Customs and Prescriptions, and the different Forms. Pleading in reference to Common, 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 shewn, and by whom granted, or not. How a Licence must be pleaded by the Lessee. Prescription for Copy-holders to be dis­charged of Tythes. How to be pleaded. Of Traverses, when and where to be ta­ken. Forms of Pleading of Surrenders, Admittances. Forms of Pleading Estates in Fee Tayl for Lives or Years. Plead­ing of Presentments, Grants. Pleadings in respect of Commons, Trees, Ways, In­closures, Forfeiture, and all other Plead­ings necessary for the Copy-holder to set forth his Title or to defend it.

Pleadings. General Rules of Pleading as to Copy-hold Estates.

EVery Admittance of an Heir upon a De­scent, amounts in Law to a Grant, and after Admittance the Heir may in Pleading [Page 261] alledge this as a Grant;How a Copy-holder shall plead in ma­king Title to a Copy-hold. and this the Law allows for avoiding an inconvenience which will other­wise happen; for if the Copy-holder in Plead­ing shall be put to shew the full Grant, either it was before the time of memory, and then it is not pleadable, or within time of memory, and then the Custom fails;Admittance pleaded as a Grant. and for this cause the Law hath allowed the Copy-holder in Pleading to alledge any Admittance upon a Descent or upon a Surrender as a Grant, and yet he may if he will, alledge the Admittance of his Ancestor as a Grant, and shew the Des­cent to himself, and that he entred, and good without any Admittance of him; but the Heir cannot plead, That his Father was seized in Fee at the Will of the Lord, by Copy of Court Roll of such a Manor, according to the Custom of the Manor, and that he died seized and that it descended to him, for in truth such an In­terest is but a particular Interest at Will, in judgment of Law, although it is descendible by the Custom; for he is Tenant at Will of the Lord, according to the Custom of the Manor, 4 Rep. 22. Brown's Case.

If one Surrender to the intent that the Lord shall grant it to another, and he admitts him, it was adjuded good; yet he ought to plead it as a Grant, Lit. Rep. 175.

Tenant in Dower may Grant a Copy-hold in Reversion, which shall be good,Grant of Co­py-hold Land in Reversion must be plead­ed as a Grant in Reversion and not as a Grant in pos­session, nor by a per nomen. though not executed, in the Life of Tenant in Dower. But then it must be pleaded as a Grant in Reversion, and not as a Grant in Possession; therefore in Gray's Case, Cro. El. p. 661, 662. It was there pleaded, That he granted Tene­menta praedicta per nomen of a Messuage which A. P. held for Life; and Per Cur. its an uncura­ble [Page 262] Fault, for it is not alledged that he grant­ed the Tenement in Reversion: and the per no­men will not help.

Averment del' v [...]e.Tenant by curtesie of Copy-hold, brings Ejectment or Action, it must appear that he is in Life, or else he cannot have Judgment, 1 Anderson, p. 292. Ewer and Astwick.

Where in Pleading the Commencement of the. Estate must be shewn, or by whom granted, or not.

In matter of Conveyance to a Title, need not shew the Convey­ance.Replevin, the Plaintiff in bar to the Avowry shews that the Land was Copy-hold Land, grantable in possession or reversion for Life or in Fee, and that the Lord granted the Rever­sion to him after the death of W. who was Tenant pur vie, and shews the death of W. whereby he entred. And demurred, because he did not shew the beginning of W. his Estate, nor by whom W. had the Estate granted him. Per. Cur. this is no cause of Demurrer, be­cause it is not the Plaintiffs Title, but matter of Conveyance thereunto, Cro. Jac. 52. Lodge and Fry.

Admittance of the last Heir to be shewed instead of an ancient Grant.If one pleads Seisin of a Copy-holder in Fee, and claims under him; he ought to shew of whose Grant, as he ought to shew of any other particular Estate; but perhaps that is so ancient that it cannot be shewn who was the first Grantee, yet it was held suffici­ent to shew the Admittance of the last Heir, which is in nature of a Grant, and may be pleaded by way of Grant, Cro. Jac. 103. Pyster and Hembling.

In Trespass the Defendant justifies he con­fesseth the Close to be Copy-hold Land, but pleads, That long time before it was parcel of the Manor of, &c. and that long before the [Page 273] supposed Trespass, one Pole and M. his Wife was Lord of the Manor in right of his Wife for Life, remainder to Stephen in Tayl, and he made a Lease of this Land to the Defendant; its an ill Plea, because the Defendant hath not shewed (as he ought) how Pole and his Wife came to this Estate for Life, the remainder over; they ought to shew how this particular Estate hath its commencement, they claiming a de­rivative Estate from Pole and his Wife for years, 3 Bulstr. 281. Sandford and Stephens.

None may entitle himself to any Copy-hold but he ought to shew a Grant thereof. In Tres­pass the Plaintiff in his Rejoynder intitles him­self, because the place where is customary Land, parcel of such a Manor, whereof J. S. is seiz­ed in Fee, and demisable by Copy at Will in Fee; and that J. N. was seized in Fee, by Copy, &c. and dyed seized, so as it descended to two Daughters, as Heirs of J. N. and that at such a Court Dominus concessit eis extra manus suas, &c. Habend. & tenend. Tenementa praedicta, to the said Daughters and their Heirs, whereby they were seized in Fee, and afterwards demised to the Plaintiff for years. The Plaintiff hath not made a good Title; and he shewing such an one was seized in Fee, without shewing the Grant thereof, Per Cur. its not good, Cro. Car. 190. Shepherd's Case; yet it was but default of form, and Issue, for the Plaintiff being found, it is a Jeofail.

Pleading Custom or Prescription.

A Copy-holder in Pleading need not alledge a Custom to make a Surrender, for that is the Custom of all England.

[Page 574]A Copy-holder need not alledge a Custom to make a Lease for a year.

It must be pleaded that he used to do it.It is not sufficient to alledge a Custom that one might do such an Act, but that he used to do it; as to alledge dimissibile and dimissum; there­fore in Brown and Foster's Case, the Defendant avows in Replevin for Damage feasant; the Plaintiff makes Title as Copy-holder, and shews, that within the Manor of A. time whereof, &c. Talis habebatur & habetur consuetudo, &c. That any Copy-holder may surrender into the Hands of two Customary Tenants, &c. this is not well pleaded; for it is pleaded by Usage and Custom, but he doth not plead that ever it was put in ure in that manner, which ought to be alledged, as in Sir William Hatton's Case, where it was pleaded, Quod Talis habebatur con­suetudo within a Manor, Quod licebit Seneschall [...] to impose a Fine, &c. But in the principal Case, the not naming the Steward made the Avowry ill; and then Per Cur. the Avowry be­ing ill, although the bar to the Avowry were ill,Not naming the Steward in the Avowry ill. yet he cannot have return, Cro. p. 37. El. 392. Brown and Foster.

Copy-holder pleads, Quod infra Manerium praed. talis habetur, nec non a toto tempore cujus con­trarij memoria hominum non existit habebatur consue­tudo videl. quod quilibet tenens custumar' praedict te­nementa, &c. hath used to have Common in such a place, parcel of the Manor. Question was, if the Custom may be alledged within the Manor, and applied but to a single Copy-hold. Per Cur. such Custom, as well for the form as the matter, is good; for a Copy-holder can­not prescribe in his own name for the exility of his Estate;Precribe for Common in one Copy-holder. but he ought to prescribe in the Lords name, when he claims Common, &c. out of the Land of a Stranger; but if he claim [Page 275] such profit in the Manor, he must lay it by way of Custom, for then he cannot prescribe in the Lords Name, for the Lord cannot pre­scribe to have Common in his own Soil, and one Copy-holder may have such Common, &c. It may have a lawful commencement, and all the other Copyholds may be extinct, 4 Rep. 31, 32. Foyston's Case, vide for Prescription devant.

In Trespass, the Defendant justifies as Copy-holder for Common, he saith these are customa­ry Lands, but doth not say, ad voluntatem Dom. which is uncertain whether Tenant-right Lands or Burrough-English, or Free-hold: Judgment Pro Quer. 3 Keb. 368. Walker and Wilson.

Customs must be pursued in Pleadings.

A man cannot plead a Prescription against a Prescription,A Prescription not to be pleaded against Pre­scription. but he ought to answer the Pre­scription alledged in the Count, when two Cu­stoms repugne, Cro. Car. 432. Spooner and Day's Case, Carter's Rep. 88.

Custom alledged to be, That if any Copy-holder seised of customary Lands of the said Copy-hold, die seized thereof, having many Sons, that the youngest shall Inherit; and the Defendant in Replevin, makes his Title, That a customary Estate was granted to the Father and Mother, and the Heirs of the Father, and the Mother survived. This Estate is not within the Letter of the Custom, Per Walmsly, and cited Sir John Savage's Case, Quod vide supra, sub Tit. Custom, 2 Leon. 208. Beal and Langly.

A particular Tenant at Will may not pre­scribe in his sole Tenancy,Prescription by a particular Tenant at Will. but when the Pre­scription and the Custom runs half through the Manor, he may well lay it by Custom, Kel­loway 76, 77. Tropnel's Case.

[Page 276] Tenant may plead a Cu­stom to enjoy without inter­ruption of the Lord.Copy-holder may plead a Custom, That eve­ry Tenant, after he hath paid the Lord his Fine, may enjoy his Lands and Tenements, granted by Copy, during their Estates, Terms, or Interests, without interruption or expulsion of the Lord, for the time being, they perform­ing their Services, and doing nothing that may Forfeit, Kelloway 76, 77. Ann Tropnel's Case.

Vide supra.

When the Copy-holder claims any thing by Prescription in the Soil of another; in Plead­ing he ought to prescribe in the name of the Lord; but if he claim any thing in the Soil of the Lord,When it must be pleaded by way of Cu­stom, and when by way of Prescrip­tion. within the Manor, then he shall plead the Custom of the Manor, for there he cannot plead in the name of the Lord, in as much as the Lord cannot prescribe in his own Soil, Foyston's Case, and 4 Rep. 31. Cooper's Case, 6 Rep. 60. Gateward's Case.

Rule.There is nothing more common, than for the Lord to prescribe for his Tenants by Copy, in another mans Land; whereas if it be in his own it shall ever be laid per Custom, Hob. p. 28, 61.

Of Pleading a Custom for Common by Prescription.

Defendant pleads in Trespass, That there are divers Freehold Tenements, time out of mind, in the said Manor, &c. and that there were and are, infra eand. villan divers. customary Tenements, parcel of the said Manor, grantable ad voluntatem Dom. by Copy, That all the Te­nants of the Free Tenements, time out of mind Habuerunt & usi fuerunt, and all the Tenants of the customary Tenements, per consuetudinem ejus­dem manerij in eodem manerio a toto tempore supra dict. usitat. & approbat. habuerunt & habere con­sueverunt solam & separalem pasturam, &c. for all [Page 277] their Cattel (Hogs, Sheep and Steers excep­ted) Levant and Couchant upon their respective Messuages and Tenements every year for all times of the year, except, &c. as belonging and appertaining to their several Tenements, and that at the time of the Trespass the De­fendant put in his own Cattel, Levant and Couchant, upon this said Messuage, prout ei bene licuit, &c. Exceptions to this Pleading, were, 1. That he was seised de Antiquo Messu­agio, and of no Land, is not proper, for in com­mon intention Cattel cannot be said to be Levant upon a Messuage only. 2. He saith he put in his own Levant and Couchant, but avers not as he ought, That none of them were Porci, Oves, or Steers. 3. The Plea doth not set forth the Custom of the Manor, but implicitely, That the Freehold and customary Tenants have had and enjoyed Per Consuetudi­nem Manerij solam & separalem Pasturam for all their Cattel, which is a double Plea, both of the Custom of the Manor, and of the claim by rea­son of the Custom, which ought to be seve­ral, and the Court shall judge, and not the Jury, whether the claim be according to the Custom alledged; the Custom may be different from the Claim, Per Consuetudinem Manerij, if particularly alledged, Vaughan's Rep. 253. North and Cole.

In Replevin, Defendant makes Conuzance, as Bayliff to, &c. Damage Fesant. In bar of this Cognizance the Plaintiff pleads, That H. Earl of H. was seized of the Manor of A. where­of one Messuage, &c. is parcel, and demisable by Copy, and that within the said Manor there is this Custom, That every customary Tenant of the said Messuage, &c. have used to have Pasture, &c. in the said place called [Page 278] Land-Mead, The Form how to apply the Custom of a Manor to a particular Messuage in pleading. and so derives his Title by Grant by Copy: the Issue was upon the Traverse, Ab­sque hoc quod infra manerium praed. talis habetur con­suetudo quod quilibet tenens custumarius, &c. have used to have Common, &c. prout, &c. Here is no Custom alledged, because it did not ap­pear in Pleading, That the place where the taking was supposed to be, was within the said Manor, and no Custom of the Manor can ex­tend out of the Manor, but he ought to pre­scribe in the Manor. Note, he ought to have pleaded, That the place in which, &c. was par­cel of the Manor, and then the Plea had been good, Hob. p. 286. 1 Brownl. 172. Roberts and Young.

Plaintiff in Replevin rejoyns by Custom of all the Copyholders of Blackacre, in the Manor of D. used to have Common in A. to which the Avowant demurred, because he should have prescribed in the Lords name, A. be­ing out of the Manor; but the truth being that A. was anciently parcel, and lately se­vered by the Lord, this destroys not the Com­mon, Per Cur. But the Copy-holder ought to prescribe specially, That Talis consuetudo suit, till such a day,Special Pre­scription 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 [Page 279] 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. Its not alledged that they have solam pasturam for their Beasts Levant and Couchant: Per Cur. its 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 its no mischief to the Lord, 2 Sanders 326, 327. Hoskins and Robins.

[Page 280] 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, [Page 281] 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 re­entred, 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, [Page 282] 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, its 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 Seigniory; as suppose he is only for Life, and he licenseth for 21 years, and dies, its 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. its 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 [Page 283] 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 [Page 284] 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. its 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, [Page 285] 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 [Page 286] 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 a descent of Inheritance at Common Law, there the Defendant may plead a Feoffment made by the Ancestor, absque hoc, that he died seized, because he may have an Estate by disseisin after the Feoffment. Tra­verse of the descent and not of the dying seiz­ed, is not good, March, p. 21. Anonymus.

Copy-hold Land was granted by the Lord of a Manor, 10 May, 3 Car. to the Wife of Tho. Kett; and in the Replication the Defendant justifies as Bayliff to Tho. Kett; the Plaintiff confesseth the Land is Copy-hold Land, but that the Lord granted it 1 Jac. to N. S. in Fee, who had two Daughters, the Wife of the Plaintiff, and the Wife, of Tho. Kett, and died seized, and that the Lands descended to them, upon which it was demurred. By Berkley, the Grant of the whole ought to be traver­sed,Coparceners. or confessed and avoided; for the first Grant shews that the Defendant was in of all, [Page 287] and the descent to the Wife is but for a moi­ty, Dyer 171. pl. 8. Per Cur. upon the whole matter disclosed, Quaere if a Coparcener cannot distrain upon the Land of another,Matter of Form. damage fesant; and the matter of form in the plead­ing, ought not to be regarded by the Judges, upon Statute, 23 El. Cap. 5. Judgment was pro Quer. Hutton said, The descent which was pleaded makes the second Grant void; but by Richardson, Though it be avoided, yet it is not confessed, Hetly, p. 114. Port and Yates.

In Replevin, the Defendant avows for damage fesant, by reason of a Copy granted to him of the place where, &c. by the Lord of the Manor, Cooper Bishop of Winchester. The Plain­tiff saith, That before Cooper, Horn was Bishop, by whose death the Temporalties came into the Queens Hands, and this Copy-hold, during the time that the Temporalties were in the Queens Hands, Escheated; and the Queen granted it to the Plaintiff in Fee, by force whereof he put in his Beasts,If there is not confessing and avoiding, there must be a Traverse. and traverseth the Grant by Cooper. Per. Cur. this Traverse is good, and ought to be, for there is not any confessing and avoiding, because he doth not confess the Seisin and grant by Copy; but if he had confessed, That the Bishop had entred and granted it by Copy,Where needs no Travers. then there needed not any Traverse: So where one justifies by Lease from J. S. the Plaintiff saith, That J. S. enfeoffed himself, it is not good without a Tra­verse, Cro. El. p. 754. Covert's Case.

In Ejectment,Ancient De­mesn pleaded. Replication, That they are Copy-hold and Traverse. The Defendant pleaded that the Lands were ancient Demesn, and plead­able by a Writ of Right Close, &c. The Plain­tiff shews, That they were Copy-hold Lands, and parcel of the Manor, and entitles himself [Page 288] by Lease under the Copy-holder, and tra­verseth, That they were impleadable by a Writ of Right Close; the Traverse is well enough taken, Cro. Jac. 559. Pimmock and Helder.

The Avowant hath Election to Traverse any part of the Plea which goes to the end of the Action, or justifies the Action.

Traverse the consequence.In Ejectment, the Defendant pleaded, That the Lands were ancient Demesn, and plead­able by a Writ of Right Close, &c. the Plain­tiff shews they were Copy-hold Lands, parcel of the Manor, and intitles himself by Lease under the Copy-holder, and traverseth that they are impleadable by a Writ of Right Close. Demurrer, because this Traverse, that they were impleadable, is but the consequence of ancient Demesn, and therefore not traversable; but Per Curiam, that the Traverse is well enough taken.

Where a par­ticular Custom is confessed in the Rejoynder he ought to Traverse the general Cu­stom.If the Plaintiff in his Rejoynder confesseth a particular Custom, he ought to Traverse the general Custom alledged by the Defendant; as in Replication the Defendant alledgeth a ge­neral Custom, Quod quaelibet femina cooperta viro, joyning with her Husband in a Surrender of Copy-hold Lands; and being privately exa­mined by the Steward, that this by the Cu­stom is a good Surrender; the Plaintiff replies, That there is a Custom in the Manor, quod quaelibet, &c. who is of full Age may Surren­der; but the Wife who surrendred here was of full Age, and doth not traverse the other Custom, And Per Curiam, it was ill, Lit. Rep. 174. Anonymus.

Presidents and Forms of Pleading as to Copy-hold Estates.

The Form of Pleading that a Messuage is parcel of a Manor, & dimissibil & dimiss. per Copiam, 1 Sanders 146. Wade and Batch.

That the Lands are Copy-hold Lands, &c. 2 Sanders 321.

Pleading of a Surrender made in the Court of the Lord of the Manor, to the Use of J. W. in Fee, and of the Grant of the Lord to the said J. W. accordingly, 1 Sanders 146.

Pleading of the Surrender of a Remainder of a Copy-hold Estate, to one for Life, to another for Life, to another in Fee, and ad­mission of them accordingly, 1 Sanders 147.

Pleading the Admittance of two Tenants in the Remainder for Life, the Remainder in Fee, 1 Sanders 147. Wade and Batch.

The Form of Pleading Copy-hold in Fee-simple, in Tail, for term of Life or Years.

In Fee-simple, Hern p. 80. Co. Entr. 10. 647.Estate▪3 Br. 463. Hern 227.607.

In feod simplici, Tail, Life or Years, Ra. Ent. 627. Co. Ent. 206. U. B. 128, 157. Co. Ent. 657, 123. Hern 679.

Ad terminum vite vel vitarum, Hern 653.

Ad terminum 2 vitarum successive, Hern 72.

Ad terminum 1, 2 vel 3 vitarum successive, Hern 83, 123.

Simile in possessione, Hern 711.

Ad terminum vite vel vitarum tam in possessio­ne quam in Reversione, Co. Ent. 373, 672.

Ad terminum 1 vel 2 vitarum in possessione & 1 vite in Reversione, Hern 724.

[Page 290]Ad Terminum 1 vite in possessione, & 1 vel 2 vitarum in Reversione, Hern 254.

Ad terminum 1, 2 vel 3 vitarum in possessione vel 2 vitarum in reversione unius vite in possessio­ne, Coke Ent. p. 184, 3 Br. 745.

Pleading Surrender.

Surrender in Cur ad usum in feod. Ra. Entr. 627. Co. Entr. 206. 3 Br. 465.

Extra Curiam in manus 2 Tenent (ur) ad usum in feod, Co. Entr. 575, 645.

Usi.Extra Curiam ad usum W. pur vie Remainder al Baron & Feme & Heires de Feme, Co. Entr. 207.

In manus Dom, Co. Entr. 575.

Per Tenant pur vie, de moiety al use des Fitz, Hern 255.

Per 2 Tenants pur vie al intent de regrant, Hern 656.

Per Feme Covert secret (ur) examinat (ur), Co. Entr. 576. 3 Br. 465.

Per Attorn secundum consuetudinem Manerij, Co. Entr. 657.

Per literam Attoruat (ur), Co. Entr. 576.

Presentment per l' homage de surrender extra Curiam, Co. Entr. 206.

Simile per tenent (ur) jacen in extremis, Co. Ent. 206.

Admissio secundum sursum redditionem, Co. Entr. 207, 575, bis 577, 645, 657.

Admissio heredis super descensu, Cro. Entr. 575, 657.

Dom concessit querenti terras custumar que ei descend, restituend eum ad jus, ubi terre fuer pri­us concesse alij, qui obiit, Ra. Ent. 628.

[Page 291]Dominus ob certas causas seiseivit terras custom & concessit eas in feod al W. cui Vir et Vxor propre­tarij unde relaxaverunt jus, 3 Br. 464.

Dominus ex traditione propria grant al un pur vie per Copie, 1 Coke 117.

Grants.

Grant per Copie in Fee, Rast. Entr. 627. Limitation dea Estate. Co. Ent. 9, 10, 123, 274, 645, 611, 657. 3 Br. 97, 464. Hern 81, 226, 707.

Simile al Baron & Feme, Ra. Entr. 627.

Simile al Baron & Feme & Heires del Feme, Cro. Encr. 575.

Al un pur vie ove several Remainders in Tayl, & in defectu exitus quod terre venderentur, & deuar inde provenien disponerentur juxta Testamen­tum, Co. Ent. 207.

Al un pur vie, Co. Ent. 576, 662.

Al 2 pur vies, Co. Ent. 273. Hern 73.

Al 3 pur vies successive, Hern 83, 711.

Al un pur vie en Reversion, Hern 255.

Grant al un pur vie in Reversion apres mort de Tenant pur vie per primer grant, Hern 724.

Simile al 2 pur vies in Reversion; Co. Ent. 114. bis 662.

Per Senescallum Regis, ratione Temporal Episcopatus in manu Regis duran vacac. Co. Entr. 645.

Grant reddend & faciend redditus consuetudines & servitia consueta, Co. Ent. 662.

Terres grant per nosmes, Co. Entr. 662. Hern 254, 255.

Pleading a Manor held by another Manor, 11 Rep. p. 17. Sir Henry Nevil's Case.

Cur tent (ur) coram Dept (ur) Senescallo, Co. Entr. 570.

Forms of Pleadings of Lords and Copy-holders in re­ference to Common.

Per Dom Manerij habere communiam pro tenentibus Custumariis, Hern 117, 124.

Rex Seisitus de Manerio habuit communiam Pasture in bosco pro se & liberis tenent (ur) & custu­mar manerij pro omnibus averijs ꝑ tot (ur) An­num, Co. Entr. 656.

Rector Ecclesie seisitus de Manerio Rectorie ha­buit communiam pro se & tenen custumar Mes­suaḡ & Terrarum in loco in quo, &c. pro omni­bus magnis averiis per tot (ur) Annum, Co. Entr. 574.

Vn seisitus de Manerio habuit communiam pro se & tenen suis in terris tent (ur) de manerio, quando non seminantur, Co. Entr. 118,

Quer seisitus de manerio habuit communiam pastur pro tenen custumariis Messuaḡ & Terra­rum in 10 Acres Pasture pro omnibus averiis per tot (ur) Annum, Co. Entr. 9. 9 Co. 112. Hern 117.

Domini separalium Maneriorum habuer com­muniam pasture pro tenen custumariis causa vici­nagij, Co. Entr. 10. vet (ur) int (ur) 191. de injur propr & traverse prescript (ur).

Prior seisitus de manerio habuit communiam pro se & tenementis suis ad voluntatem, in terra, post blada asportata usque reseminationem, & quando facet frisca per tot (ur) annum, Et in prato post foenu asport (ur) usque Purit', Rast. Entr. 622. 1 Brownl. 66.

Trans̄ bar' per prescription de communia in clauso parcel Manerij.

Repl protestando quod clausum non est parcel Manerij, pro placito de injur propria, & travers prescription, 3 Browl. 418.

[Page 293]Iustificat (ur) in Trans̄ pro common per Custome infra Manerium pro defectu sufficien fensur Def. existen. Lessee p̄ ans d'un Widdw que tenuit terras per Custome quamdiu casta & innupta vi­veret, Tomps. 331.

Trans. Iustificat (ur) pro common & prescribe in in Dom Manerij, Tomps. 371, 379, 392, 418.

Pled que customarij Tenants debent habere so­lam & separalem pasturam cum liberis tenentibus pro omnibus averiis (barbits except.) Levant & Couchant, 1 Sanders 347. 2 Sanders 321.

Pled que custumary Tenants usi sunt habere separalem pasturam come appurtenant Tene­mentis suis, 2 Sanders 351.

Per Lessee del Copyholder, de Turbis fossis in communia pasture, Hern 80. Simile pro, Hern 116.

Bar in Repleḡ, That he is Copyholder of another Manor of Copy-hold, called P. and pre­scribes for Common in loco quo, &c. omni tempo­re Anni pro omnibus averiis communicalibus Le­vant & Couchant, sur le Cohy-hold appell. P. & que posuit averia sua utendo communia, Repl per Traverse que barbits la fuer Levant & Couchant, &c. Demur special, the Traverse not being good, Winch Entr. p. 970. By four Judges the Tra­verse was good; its an essential part of the Plea, and the Avowant hath election to Traverse any, part of the Plea which goes to the end of the Action or Justification.

Pled Custome aver common in loco in quo, &c. Repl de son Tort Demesne & traverse que les avers fuer Levant & Couchant sur le Copy-hold Tempore quo, &c. Rej. & issue sur le Traverse, Winch. 1068. ad 1071.

Def. in Trespas plead severally pro def [...] suf­ficien' fensur & monstre lour Title al Copy-hold Estates, Tomps. 410.

[Page 294]Iustificat (ur) p̄ Common per Custome per un Copyholder, Toms. 410.

Custome pleaded, quod tenen custumarii habe­ant communiam pasture per tot (ur) Annum in terris parcel Manerij, Hern 81.

Simile in terris non allegat (ur) fore parcel Mane­rij, Hern 708.

Simile pro averiis vocat (ur) Horse-Beasts, Neat-Beasts, Levant, &c. per totum Annum, Coke Etr. 10.

Simile pro bobus levan a festo ad festum in pastura, 3 Br. 61.

Simile in 7 acris terre post blada messa & asportat (ur) ex eisdem & resid camporum usque An­nunciac̄ nisi interim seminat (ur), 3 Br. 96.

De Arboribus.

Bar to the Avowry, That Sir R. D. was sei­zed of the Manor of R. Vnde, &c. locus in quo, contains 14 Acres, and are customary Lands, held of the said Manor, Sir Robert granted this by Copy to T. who dyed, and the Premisses descended to T. his Son, &c. who demised for a year to the Plaintiff. Replication, The De­fendant confesseth the seisin of Sir Robert, but said the 20 Acres of Land, and 30 Acres of Meadow (of which the 4 Acres are parcel) are custumary Lands of the said Manor, which Lands Sir Robert granted by Copy to T. T. the Father. T. the Father forfeits his Copy-hold Land for Waste, and Sir Robert enters for the Forfeiture, &c. Rejoynder, the Plaintiff confesseth the mat­ter in the Replication to the seisin of T. T. the Father: And farther the Plaintiff shews, the Cu­stom of the Manor was for every Copy-holder d'amputer & decapiter tam touts arbores que de­vant ustoient estre amputes, & decapitates quam [Page 795] touts juveniles arbores n'esteant pluis que 12 Inches square al stubb. The Trees supposed to be decapitated by the Father, were decapita­ble by the Custom, &c. Demur. Winch Ent. 1022. &c: Drury's Case.

Bar al cognizance, Dean & Cap. West. seisit (ur) de Manor de T. a quel certain custumary Tenants appertain, &c. S. H. fermor del Dean & Cap. & Senesc del Manor al Court tenus 28 March grants al Plaintiff in Fee, secundum consuetudinem le lieu in Question parcel del Manor. Custom del Manor fuit pro chesun Tenant aver common en le lieu in Question, per que le Plaintiff mit sa vache pur user sa common jesque, &c. Repl. per confession vel grant des custumarie Terres al Plaintiff, mes ouster il replie que D. & Cap. 7 May 8 Jac. demised al H. H. le dit Manor pur vies del A. sa feme H. son fitz. & J. sa file, & que un auter Close de Pasture nosme L. estreant custu­marij terres 28 March 18 Jac. fuer grant per H. al Green in Fee, & Green 10 June, fist Waste per succision de Timber (Ash) in le man 21 April 15 Jac. le Plaintiff ove auters del Homage fuit jure d'enquirer des choses enquirables deins le Manor, le Plaintiff refuse a presenter le Waste pur que il forfeit (ur) son Copy-hold, le Seignior 12 July, 15 Jac. enter & le Def. come Bayliff a luy distreine pur damage fesant. Rej. Quod protestand que Se­nescal ne done luy un charge de presenter le Waste & que il nemy refuse a presenter ceo pro placito dic qd D. & Cap. demise al H. prout devant & que il grant al Green en Fee, & monstre Cu­stome del Manor que chesun Ten poet crop & lop arbores crescents sur leur customary Terres (ex­cept Fruit Trees,) & traverse le succision del Ash in le man la. Demur gen̄al al Rejoynder, Winch Entr. 931. al 934. Adjudged pro Quer sur gross default in Pleading; the Forfeiture is alledged [Page 296] to be in May, and the Court was holden in April before, which was impossible, Vide mesme Case Winch Rep. p. 63. Webb and Barlow.

Vide Winch Ent. 125. al 129.

Custom that every Tenant had used to take Woods and Underwoods, 2 Brown 350, 251. 1 Brown 273, 274.

De Aquae cursu.

Prescript (ur) per seperales Dominos Manerii de aqua pro tenen custumariis, Hern 255.

De Chimin. Way.

Pro domino Manerii habere viam, &c. ꝑ tenen custumariis trans diversa clausa, &c. Hern 72, 711. 1 Brown 368.

Prescription to have an Horse and Foot-way appertaining to a customary Messuage and Close, over the Close newly assigned, and the Lord of the Manor grants to Tenant for Life, by Copy. Defendant justifies as Servant to Tenant for Life, for to use the way. Replication de son Tort Demesn, with a Traverse of the Prescrip­tion. Rejoinder, by maintainance of the Pre­scription, and Issue upon this, Winch 1093. Lock and Troublefield.

Bar in Trespass, That every Copy-holder had an Horse and a Foot-way, &c. 2 Brown 248, 249.

De Inclosures.

Facere sepes & fensuras clausi versus venellam, ne averia tenen custumar ibidem evadant pastu­ram, Hern p. 708.

De Forisfacturis.

Trns̄ Bar quod P. seisitus de maner grant cu­stumar terres all Def. pur vie, Repl Def. foris­fecit terras per non residence per custom. Rejoynd Def. fuit residens apud manerium & non extra. V. B. 157.

Trns̄ Bar per Franktenement, Repl Terres sunt custumar & grant al Def. in Fee. Rejoynd quer forisfecit terras per succissonem arborum Sur maintenance de Replic. Demur inde, Co. Ent. 277, 280.

Similis Bar & Replic. Rej. quod quer forisfecit terras per decasum horrei. Surrej. Dominus ex­pulsit quer & dimisit aliis. Horreum cecidit. Quer reintravit. Et travers quod quer fecit volunta­rium vastum permittend horreu cadere, Co. Entr. 280.

Similes Bar & Repl Rej. quer forisfecit terras per sectam Curie infactam. Surrej. Dominus expu­lit quer & dimisit alij Cur tent (ur). quer reintra­vit, Et postea Curia tent (ur) ad quam quer fecit defalt (ur) Demur inde, Co. Entr. 289.

Des terres devises pur Cond broken & Heir en­ter, 1 Rep. 21.

In Replevin, the Defendant makes conizance as Bayliff to Sir Robert Chichester, by Damage fesant. Bar to the Conisance, Sir Iohn Chiche­ster, Father to the said Sir Robert, seized of the Manor of D. unde locus in quo est parcel, and customary Lands in Fee, granted by Copy to Geo. Allen in Reversion for Life: Tenant in possession dyes, Geo. Allen enters, and the Ma­nor descended to Sir Robert. Geo. Allen es­poused the Plaintiff, and dyes. The Custom of the Manor was, That the Wife of every custo­mary Tenant pur vie, dying in possession shall [Page 298] have her Widows Estate, by which her Hus­band being dead, the Plaintiff enters and was seized for Life, and put in her Beasts till the Defendant took them, &c. Replication, the De­fendant confesseth the bar, as far as the entry of the Husband of the Plaintiff, and the de­scent of the Manor to Sir R. But saith the Plain­tiffs Husband such a day committed Felony, by stealing a Mare, and was Executed for this; for which the Lord entred as forfeited. De­mur general, and Joynder, Winch Ent. 968. to to 970. Allen and Branch. By Winch, the Woman shall not have her Widows Estate without special Custom, as in Gavelkind, The Father to the Bough, the Son to the Plough.

Similes Bar & Repī.

Rejoynd. maintenance de franktenement & tra­verse le grant per Copie, Co. Entr. 280.

Similes Bar & Repl. Rej. quod quer forisfecit terras per Forgery del Roll de Customes. Sur­rej. Quer & alij tenentes agreaverunt ponere con­suetud manerij in script (ur), & traverse Forgery, Co. Entr. 280.

Forisfactt (ur) (pleaded) pur fine insolut (ur) Surrej. quod finis non fuit rationabilis. Demur ind. Co. Entr. 645, 647.

Forfeiture de terme per tenant pur ans & de­mise pur vie, Plo. 188.

Simile by Fine levied, Co. Entr. 691. 1 Rep. 71. Hern 25.

De terme pur felo de se, Plo. 254. Rast. Entr. 609.

De Estate de tenant pur vie per alienation in Fee, Ra. Ent. 65, 208, 398, 647. 1 Rep. 107. Vet. Intr. 30, 121.

Per Recovery per fraud en Formedon, Ra. Ent. 643. 1 Rep. 82.

Bars per franktenement. Repl. quod terre sunt cust. bars que sunt customary terres, &c.

Trns̄. Bar quod C. seisitus de maner grant customar terres al D. de quo descend al Def. Repl quod maner descend quer qui fuit seisitus quous­que trans̄ & travers quod terres sunt customar V.B. 153.

Dower.Dower. Bar quod terres sunt Copy-hold & grant per copie, & issint non-tenure Repl. Tenens est Tenens ut de libero tenemento, Ra Ent. 231.

Repl Bar quod F. seisitus in see prist al baron Def. qui est Tenant per le Curtesie. Repl ter­res sunt customarie, & travers quod F. fuit seisitus in Fee, Hern 681.

Trns̄. Bar quod terre sunt Liberum Tene­ment (ur). Def. Rej. quod terre sunt custumar & fuer dimiss. quer per copiam. Repl. per maintenance de frank-tenement & traverse grant per Copie, Co. Ent. 180. per Title Surrender & Admittance, Fine.

Repl Bar per Title al custumarie terres al J. Feme de H. in Fee, & descent al Def. Repl H. & J. ad talem curiam (ead J. existen sola examinat (ur) per seneseal) surrender al use de quer Rej. main­tenance de discent, & travers quod J. fuit sola ex­aminat (ur), 3 Brownl. 270.

Trns̄ Bar quod J. seisitus de terris custumar surrender al use de S. qui fuit admit, & descent. Def. replie qd I. surrender sur condicon de payment. Et quod obtulit denar quos def. recusavit. Rej. non obtulit denar, Co. Ent. 657.

Repl Bar quod D. seisitus de maner grants custumar terres al Def. pur vie. Replic S. prius seisitus de Maner grant al Plaintiff pur vie. Rej. Plaintiff surrender al use del J. &c. Surrej. [Page 300] maintenance del Avowry & Traverse le surrend, Hern 653. & 753. Vide.

Surrender & Descent.Avowre que W. Roy seise de Manor grant in Fée al M. qui surrend al use de Def. Repl̄ W. pri­us seisitus de manerio grant al J. de quo descend al P. qui surrend al use de M. pur vie, qui demise al querenti. Rej. W. devant grant al J. grant al B. de quo descend al M. qui surrend al Def. Et Traverse grant al J. Co. Ent. 575.

Trns̄ Bar quod E. seisitus de Manor pur vie grant al Def. in Fée. Repl̄ H. seisitus de rever de Manor puis mort de E. grant terres al quer & Traverse grant al Def. Co. Ent. 660.

Trns̄ Bar quod Abbas seise de Manor grant custumar terres al J. & H. in Fée. H. surrend al use de R. qui fuit admit (ur) & de luy descend al Def. Replic quod Terres descendebant juniori filio per consuet (ur) manerij. Abbot granted al dit R. contra consuet (ur) qui mor seise. Abbas restituend grant al quer junior. filio & traverse que Abbas granted al J. & H. Rast. Ent. 627.

Trn̄s Bar quod dominus manerij ob certas cau­sas seisivit terras custumarias unde E. fuit seisitus pur vie & grant al M. in Fóe. E. Release. M. Surrend al use de Def. qui fuit admissus. Repl̄ E. mor seisie, & discent querent (ur) & Traverse le Release, 3 Browl. 463.

Trns̄ Bar quod T. seisitus de Manor grant per Copie al Def. pur vie. Repl̄ Abbot prius seisitus grant al R. pur vie, & puis grant le Revereon al Plaintiff pur vie. Rej. Abbot devant grant in re­version demise Manor pur ans al J. le Roy seise per surrend del Abbot grant Manor al dit T. Surrej. Maintenance de grant in Reversion per Copie & Traverse demise de Manor, Co. Entr. 662.

[Page 301]Trans̄ Bar ꝑ frank-tenement. Repl̄ que terre fuit customar & fuit grant per Copie pur vies. Et per Custome Feme Plaintiff est seise p̄ son free Bench, 3 Brownl. 474.

Trns̄ Bar ꝑ frank-tenement. Replic R. se­isitus de Manor grant ꝑ Copie en Fée al J. qui surrender al use de Plaintiff qui est admit. Rej. ꝑ consuetud maner Dominus habere debet finem pro admissione. Et quer forisfecit ter̄as ꝑ finem insolut (ur). Sur̄ej. finis non fuit rationabilis De­mur inde, Co. Ent. 657.

Quod J. seisitus de maner unde ter̄e custumar discend fun filio ꝑ consuet (ur) concessit ter̄as viro & Vx. & her̄d viri Vxor suꝑ vixit, & reversio discend fratri & de eo dese. juniori filio, Hern 679.

Bar in Repl quod T. W. was seized of the Manor of H. (unde locus in quo est parcel & cu­stumar ter̄es) in Fee. Custom of the Manor was for every Tenant to hold successive, as they are named in the Copy. W. grants to Iohn Podger and E. and M. his Daughters, for their Lives. Iohn enters and was seized for Life, he dyes, and E. enters and was seized for Life; she afterwards marries the Plaintiff, by which he was seized in right of his Wife and put in his Beasts, until, &c. and avers the Life of the Wife. Repl Def. protestando the place in Question is not parcel of the Manor of H. &c. pro placito, he confesseth the seisin of W. of the said Manor, unde, &c. and that there was such a Custom as the Plaintiff hath alledged; and that W. granted to Podger and his Daughter for Lives, and shews the en­try and seisin of the Father: But farther saith, That W. by Indenture Enrolled, bargained and sold the place in Question to Iohn Podger in Fee, and the Act of 27 H. 8. De uses & pro­clamat (ur) upon a Fine, according to the 4 H. 7. [Page 302] and the Fine levied to the Use of Iohn Pod­ger in Fee; he dyes and the Premisses de­scend to Marmaduke his Son, who levies ano­ther Fine of the Premisses to the Use of him and M. his Wife, and the Heirs of the Hus­band: The Husband dies, his Wife survives, and enters into the Premisses; and after the Plain­tiff enters and puts in Beasts, &c. upon whose possession the Wife re-enters, and the Defendant takes the Beasts of the Plaintiff. E. did not claim within five years, and that the Plaintiff and his Wife were barred. Upon De­murrer general to the Replication and Rejoin­der, the Judgment of the Court was, That the Fine was not a bar, Winch Ent. p. 926 ad 929. Vide the Argument of this Case, 9 Rep. Margaret Podgers Case.

Avowry ꝑ Lessée p̄ ans del Eves (que) p̄ Damage Fezant, & averre le vie del Eves (que) Bar que le lieu est parcel d'un Mannor & demisable ꝑ Copie, & intitle luy mesme ꝑ Copie grantepdecessor del Eves (que). Defend maintaine son Avowry & Tra­verse le Prescription del Copy-hold, placita Gen & Spec, 579.

Bar to the Conisance in Replevin, That the 10 Acres are Copy-hold, parcel of the Ma­nor of W. And King H. 8 seized of this Manor, grants by Copy the said 10 Acres to R. D. he dies, and a descent to Grace and Alice his Daughters and Co-heirs. Grace dies, a de­scent to S. E. her Son, who demiseth his part for a year. Kepe the Defendant protest (ur) that the 10 Acres are not Copy-hold, and that King H. 8. had not granted to R. pro plto, That King H. 8. was seized of those 10 Acres in Fee, & in jur corone, and died seized, and descent to King Edw. 6. who grants them to K. F. and W. F. in Fee. R. releaseth to W. W. dyes [Page 303] sole seized, descent to W. his Son and Heir. W. the Son dies without Issue, descent to K. Father of W. in the Conisance; Fine with Proclamation to the Use of R. F. Father of the said W. (in the Conisance named) seisin in Fee. R. dies, descent to W. (named in the Conisance) who entred and was seized in Fee, and because the Beasts were Damage fesant he maintains his Conisance. Demurs, and Judgment pro Quer, for that the Replication doth not confess or avoid, nor deny the bar to the Avowry, Winch Ent (ur). p, 997, 998, 999. Foster and Woodcock.

Eject. Bar que W. seisitus de Manor grants custumar ter̄es in Reversion al Def. & auters pur vies. Repl que W. demised ceo Manor al C. & R. determinable pur vie del M. ils̄ assigne al M. qui grant Reversion de ter̄es al H. pur vie. Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise, &c. Surrej ꝑ maintenance de Replic & Traverse le disseisin, Demur inde Co. Ent. 184.

Replev. Quod Reg. Eliz. seisita de manerio un­de, &c. concessit ter̄as custumar R. & M. Vxori ejus & hered Vxoris qui sursum reddider ad usum Def. Bar quod W. prius seisitus de ma­ner concessit terras al J. de quo descend al P. qut sursum reddidit al A. qui sursum reddidit al M. pur vie qui dimisit quer Repl quod W. ante concession al J. concessit ter̄as al B. de quo discend al M. qui sursum reddidit Def. & travers grant al J. & issue inde, Co. Ent. 575.

Quod J. seisitus de maner unde, &c. concessit Def. pro vita in Reversion ter̄as custumar di­missibil pro 2 vitis tam in Possessione quam in Reversione, Hern 724.

Trns̄ quod C. seisitus de manerio concessit ter̄as customar in feod al B. de quo descend Def. [Page 304] Repl C. fuit sisitus de manerio unde, &c. quod discend quer & traverse quod ter̄e sunt custum, U. B. 153.

Trns̄ Def. justif. sub tenent (ur) custum & mon­stroit le Estate de Copyhold durante viduitate, Tomps. 395.

Trn̄s & novel assignmt (ur) Def. dicit quod pmissa tempore, &c. parcel & custmaria & dimissibilia ꝑ cop. cuicun (que) ꝑsone ill capere volent in Talliat (ur) seu pro vita. Et quod F. G. pd fuit seisitus ad cur tent (ur) 26 Martij, dimisit cuidam W. in feodo qui dimisit Def. pro Anno virtute cujus, &c. & done Colour. Repl quod pmissa sunt liberum tene­mentum quer & sic manutenet nar̄ationem & tra­verse que pmisse fuer parcel manerij de L. Rej. & exitus sur traverse. Keb. 465, 467.

In Repl Copyhold in Reversion ꝑ copiam te­nent (ur) in possessione advocat captionem pur Damage fesant & custom del Manor granter Estates en pos­session ou reversion, Hern 777.

CAP. XXXIII.

Evidence, Tryal, Issue. What shall be a good Evidence to prove the Custom alledged or not. Presumptive Evidence. Where Copy of a Lease is good Evidence. What shall be tryed by the Jury, and what by the Court-Rolls. Substance found in special Verdict. Who may be admitted to give Evidence. When Issue is taken upon a Surrender, where to be Tryed. Venue.

What shall be a good Evidence to prove the Cu­stom or not.

THE Custom of a Manor was laid to be, That if a Copy-holder hath two Sons and a Wife, and dyes, and the eldest Son hath Issue and dies in the Life of the Wife, that the younger Son shall have the Land, the Issue being upon the Custom; the Jury found the Custom to be, That the younger Son shall have the Land, unless the eldest was admitted in his Life, and paid the Lords Fine. Per Curiam, the Verdict is not sufficient to prove the Issue, Moor, n. 566.

In Replevin, If the Defendant justifies the taking as Damage fesant. The Plaintiff in bar pleads by reason of a 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 were at Issue; and it is found that part of the Beasts [Page 306] were Levant and Couchant,Part found for the whole. and part not; this is found for the Defendant, for the Issue is upon the whole, and the contrary to it is found, Trin. 17 Jac. B. Sloper and Allen.

The Issue was in Kemp and Carters Case, 1 Le­on. Case 70. p. 55. If the Lord of the Manor granted the Lands in question, Per copiam ro­tulorum curiae Manerij praed. secundum consuetud. Manerij praed. It was given in Evidence, That within the said Manor were divers custuma­ry Lands, and that the Lord, now of late, at the Court of the said Manor, granted the Land per Copiam Rotulorum curiae, where it was never granted by Copy before: Per Cur. the Jury are bound to find Dominus non concessit, for not­withstanding de facto Dominus concessit per Co­piam Rotulorum curiae, Non concessit. yet non concessit secundum consuetudinem manerij predict. for the said Land was not custumary, nor had the Custom taken hold of it.Several Cu­stoms within several limits ought to be specially shew­ed. It was shewed then, That within the said Manor some customary Lands are de­misable for Life only, and some in Fee. By Anderson Chief Justice, He who will give in Evidence these several Customs, ought to shew the several Limits wherein the several Customs are severally running; as that the Manor ex­tends into two Towns, and that the Lands in one of the said Towns are grantable for Lives only, and the Lands in the other in Fee, and he ought not to shew the several Customs pro­miscue valere, through the whole Manor.

In an Action brought, The Defendant alledg­eth a Custom of a Copy-hold to be demised in Fee, Tayl, or for Life, and made Title by a demise in Fee to himself. The Plaintiff tra­versed the Custom, and the Custom was found to be,Substance found. to demise in Fee, or for Life, but not in Tayl: Per Cur. the Issue was found for the [Page 307] Defendant, because the substance was found for him, and the Tayl was but inducement, Moor, n. 490. Dorley and Wood.

Wadsworth's Case before Judge Crawley at York Assises, was upon an Intail of a Copy-hold within the Manor of W. and several an­tient Intails shewed in Evidence, in Edward III. time, and remainders limited over upon such Intails, and Plaints in nature of Formedons, brought there for such Remainders, and Reco­veries thereupon, and several Issues after had taken their Admittances, as of Fee simple Land, as Heirs in Fee; and for this cause Purcha­sers look at the Copies,Presumptive Evidence. and seeing Fee-simple in Admittances, are secure the Estate is so, and apply their Assurances accordingly; the Jury found for the Plaintiff against this Intail, and it shall be presumed the Intail hath been cut off some way, when many Admittances have been in Fee simple.

The Custom of a Manor is,Less Estate than the Custom. That the Wife shall have it during her Life, and on Evidence it appears that she shall have it, durante vidu­itate, this Evidence doth not maintain the Cu­stom, 4 Rep. 30.

If the Parties be at Issue upon the time of the Surrender made, or the Court holden,The time of the Surrender or of 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 [Page 308] 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 [Page 309] 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.

[Page 310] 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 [Page 311] 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. At the Court Baron of the Honour of Hampton J. S. and J. D. Tenants of the Honour of Hampton, do present, An Honour. That J. R. did Surrender into the Hands of two Tenants of the Honour. Per Jones, This being a Court of the Honour, and into the Hands of the Tenants of the Honour, its not good; but by the other [Page 312] three Justices its good enough. For Todding­ton being in the Margent it shall be said a di­stinct Court by it self: For an Honour con­sisteth of many Manors; yet all the Courts for the Manors are distinguished, and have several Copyholders. Cro. Car. 366. Seagood and Hone.

Special Verdict was, That Copy-holder of Inheritance bargained and sold his Copy-hold Land, &c. to the Lessee of the Manor, and this was by Indenture, and the Indenture was to this effect,Verdict found not according to the Inden­ture. That he bargained and sold all his Lands and Tenements, as well Copy-holds as other Lands, bought of John Culpepper, in such a Town; but it is not found by the Verdict nor averred by the Party, That the Land was bought of John Culpepper, and so ill. Winch Rep. p. 67. Hasset and Hanson.

Custom not well found.A Copy-holder of Inheritance made a Let­ter of Attorny to two Joyntly and severally, to Surrender his Copy-hold Lands in Fee to certain Uses, after his death; but the Verdict doth not find that the two Attornies were cu­stumary Tenants, nor doth it appear that they were customary Tenants at the time of the Ad­mittance (and the primier possession will make a disseisin by the Defendant, if the Custom be not well found;It is not found that the two Attornies were customa­ry Tenants.) but it was objected, here is so much found as shall make it to be presu­med that they were Tenants of the Manor, for it is found that the party is admitted se­cundum consuetud. Manerij, which cannot be a good Admittance if they were not Tenants. But Rolls answered, to be admitted secundum con­suetudinem goes to the Admittance, not to the Letter of Attorny (the Custom is not good) neither is it found that the Land is demisable at the will of the Lord, &c. and so it may be [Page 313] free Land. and the Custom reaches it not, Stiles p. 311. Wallis and Bucknal.

The Plaintiff entitles himself to have Com­mon of Pasture, &c. to his Copy-hold, and the Custom was traversed; it was found he ought to have the same Common, but that every Co­py-holder used to pay, time out of mind, &c. pro ead. communia unam gallinam, & quinque ova annuatim; upon this Verdict the Plaintiff shall have Judgment;Failure of Custom found this is not a common sub mo­do, for the Ter-Tenant had remedy for the Hen and Eggs by distress, and it is not parcel of the Issue; but had the Jury found that the Plaintiff shall have Common, paying so many Hens and Eggs, the Issue had been against him, and it had been parcel of the Custom; its not Modus Communiae, but collateral recom­pence. One prescribes to carry Water out of the River, the Jury find he ought to have this paying 6 d. yearly.Failure of Prsecription found. Per Cur. he hath fail­ed of his Prescription, for he had prescribed ab­solutely, and the Jury found it conditionally, or sub modo, and the Ter-Tenant in this Case hath no remedy but by disturbance, 5 Rep. 68. Gray's Case.

If the Issue be, whether,Jury must find directly and not argumen­tatively. where a Copy-hold is granted to three for the Lives of two, he who dies seized, &c. ought to pay an Har­riot Custom, and the Jury find there never was a Grant of such Estate within the said Manor; This is not well found, for this is but an argu­ment that no Harriot ought to be paid, but they ought to have found it directly, M. 15 Jac. B. R. Ven and Howel.

If the Issue be, whether by the Custom of the Manor a Copy-hold may be granted to three for the Life of two, and they find that by the Custom, it may be granted for three Lives; [Page 314] this is not well found, because it is only by Argument, because if a greater Estate may be granted, a lesser may be. So if the Issue be whether a Copy-hold may be granted in Tail, and they find it may be granted in Fee, mesme Case.

What shall be intended by the Juries finding, if, &c. then for the Plaintiff.Special Verdict upon a Patent from King H. 8. (which Patent was adjudged void to pass the Estate) the Jury find if it were a good Pa­tent then for the Defendant, if otherwise, they find for the Plaintiff. It is intended there is a sufficient Title found for the Plaintiff, unless by this Patent it be defeated;If Jury be sa­tisfied the Plaintiff hath Title, the Court ought not to doubt thereof. so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title, the Court ought not to doubt thereof, and so is Goodal's Case, 5 Rep. 97. Cro. Car. 21. Castle and Hobbs.

Custom was pleaded by the Defendant, That if a Copy-holder in Fee hath a Wife at the time of his death, and two Sons or more, that the Wife shall have her Free-Bench, du­ring her Life, and that if the eldest Son dye, living the Wife, though he hath Issue, his Issue shall not have it,Custom must be found in the manner that he pleads it. but the second Son. The Jury found the Custom that the youngest Son should have it, unless the eldest Son was admitted thereto, as to the Reversion, or made a Fine for it with the Lord in his Life-time: Per Cur. The Custom is not found in that manner that he pleaded it, therefore it is found against him that pleaded it; for he pleaded a general Cu­stom, without exception, and the Custom found is with an exception, and special, as the Case is in Dyer 192. Where a Custom was pleaded, That a Feme should have it, and it was found she should have it,Verdict not aptly conclu­ded. durante viduitate, but in this Case there was not any Verdict upon this Issue, for they concluded their Verdict, Si, &c. they found [Page 315] the Defendant guilty, if otherwise, not guilty, and so there is not any conclusion of the point in Issue. Per Cur. a gross fault, and a Venire Facias de novo was awarded, Cro. El. 415. Bora­ston and Hay.

In Trespass, the Plaintiff in his Replication makes Title, That this Land is parcel of the Manor of D. and demisable, &c. by Copy in Fee, in Tail, for Life or years, &c. and the Land was let to him by Copy in Fee;Substance found. the Prescription was traversed, and found that it was demisable, &c. in Fee, but never in Tail, and that it was granted to the Plaintiff in Fee, this was found for the Plaintiff; for the Allegation, That the Land was demisable in Fee, or in Tail, &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 [Page 316] 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.

[Page 317] 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, [Page 318] 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 [Page 319] 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, Copy-holders, Fines, For­feitures, Surrenders, Admittances, Trusts, &c. and what is proper to be brought and exa­mined in that Court.

Alteration of a Custom by consent of Lord and Tenants allowed in Chancery, Custom alte­red. and decreed accordingly, Dyer contra Dyer, 10 July. 44 El.

If any particular Copy-holders complain in Chancery of the grievousness of a Fine,Outragious Fines as to particular Copy-holders relieved, but not upon a Petition by all the Copy-holders. where the Fine is arbitrable, at the will of the Lord; if such Fine be outragious my Lord will miti­gate it, and lessen it according to the time: But if the whole company of Copy-holders do ex­hibit a Bill, praying a mitigation of their un­reasonable Fines, where they are arbitrable at the will of the Lord; in this Case my Lord will reject the Bill, for, said he, I can make no Act of Parliament for them, 24 Nov. 44 Eliz.

[Page 320]The Defendant being Lord of a Manor, had 150 l. as a Fine upon the Plaintiffs admission to the Lands in question: The Court of Chan­cery directed to an Issue, whether the 150 l. were a reasonable Fine, or not? and the Defendant got a Verdict, and the Damages were given by the Jury, being to the Value. This Court de­clared,Reasonable­ness of a Fine how to be de­termined and properly reco­vered. That the Fine was proper to be reco­vered at Law, and that the reasonableness or unreasonableness of a Fine to be paid by a Copy-holder, is a question of Law, and not to be determined by a Jury, Hill contra Jacobs, 3 Jac. 2. f. 2.

One impro­ved years va­lue decreed to be a moderate Fine.In the case of Popham and Lancastar, 12 Car. 1. The Court seeing there hath been a variation of the Fines, and not certain, decreed, That one improved years value, is a moderate Fine between Lord and Tenant; so was Middleton and Jackson's Case, 5 Car. 1.

Forfeitures wilful, not relieved.In the Case of Ackland Pope and my Lady Wentworth, the Lord Chancellor said, he would not relieve any Copy-holder, who through wil­ful Forfeiture hath given cause of seizure to the Lord; for he said, The Lord had as good a right to a seizure for a Forfeiture, as a Copy-hol­der to his Copy-hold Estate; but a wilful For­feiture he would not relieve, but for negligence he might.

Copyholder conceals the Land of the Lord.If a Copy-holder conceal the Land of the Copy-hold to the disherison of the Lord, and say to the Lord, Lay out of my Land, and I will pay you your Rent for it. My Lord Chancellor Elsemere said, He is worthy to return to his ancient villainous Tenure again.

Commons for Copy-holders.Commons for Copy-holders and Terminors to be relieved in Chancery, Tothil 108. Colcot and Lee.

[Page 321]A Copy-holder can have no assise of Common against his Lord,Copy-holder can have no Assise against his Lord, but relievable in Equity. Copy-holder to sue at Law sans forfeiture. but is to be relieved in Equity The Tenants of Petsworth and the Earl of Nor­thumberlands Case, Tothil 108.

The Court will compel the Lord to admit a Tenant Copy-holder, to sue at Law, with­out any forfeiture of his Copy-hold, Tothil 65.

Tenant by Copy shall not have Assise against his Lord, because he hath a Frank-tenement, 4 Rep. 21. but he shall be relieved in Equity, Tothil p. 108.

A Suit was to compel a Lord to Grant a Licence to let a Copy-hold;Licence▪ Forfeiture to be examined before a Li­cence be de­creed. but because the Defendant said in his Answer, That the Co­py-hold was forfeited, the Court would not en­force him to grant a Licence till the forfeiture was examined, Tothil 107, 108.

A Court of Equity shall compel a Lord to admit a Copy-holder;Admittances. for before Admit­tance he cannot have an Action (upon Sur­render) and he hath no remedy at Common Law, Hetly Rep. p. 2.

A Bill in Chancery to admit a Copy-holder against Lord and Steward,Plaintiff ad­mitted to try a Title upon a Mortgage. and this was only to try a Title, to enable a Mortgagee to try a Custom, That if mony be paid after the day, so it be before Entry of the Surrender made by Mortgagee, that its a sufficient Redempti­tion; and also where the Wife Inheretrix dies sans Issue, the Husband shall have the Fee at Taunton Dean. Per Cur. the Plaintiff shall be ad­mitted, though the Steward need not have been made one of the Defendants, 2 Keb. 357. Towel versus Cornish.

Chancery will design the Bounds of a Copy-hold, but not whe­ther parcel or not parcel. If a Copy-holder removes or defaceth the bounds of a Copy-hold, it is proper for such a Court to design them; but parcel or not par­cel [Page 322] of a Copy-hold belongs to the Common Law to try, Hetly p. 2. Blackhal and Thursby.

Possession after 43 years. Lyford contra Coward, 35 Car. 2. Richard Ly­ford Senior, the Plaintiffs Father, being seized in Fee, of Freehold and Copy-hold Lands, and ha­ving had Issue Richard, Thomas and John, now Plaintiff, by Will gave the Plaintiff all his Co­py-hold Lands, and to his Heirs Males, and for default of such Issue to his Heirs general, and made a Surrender to the Use of his Will; That the Surrender was presented, and the Plaintiff admited Tenant, and hath ever since been of the Homage, and enjoyed the Copy-hold Lands. That Richard the Son died 1637. leaving only one Daughter, the Defendant Ma­ry: That the Court Rolls are lost, and the Defen­dant insists, That he in right of his Wife, the Defendant Mary, as Heir at Law to the said Ri­chard Lyford, Senior, is entitled to the Premi­ses, there being no such Surrender or Admit­tance to be found, and that no such Will was made, or any thing that will make out the De­fendants Title. The Court declared they would see Presidents; but then declared, That after 43 years possession they thought it hard that the Plaintiff should be evicted, and Ordered, That the Defendant should admit of a Surrender and Admittance upon payment of Costs, and bring an Ejectment, and the Plaintiff not to insist on his possession to hinder the Tryal. The Court Decreed, to the Plaintiff and his Heirs to en­joy the Land, according to the said Will, and Custom of the Manor.

Relief as to Surrenders, Purchases, Agreements, Trusts, Rolls lost, and Rents Arrear.

It is Decreed, in the Case of Greenwood cont. Hare, 18 Car. 2. That where one was a Copy-holder for the Lives of himself and his two Sons, and he paid the Fine,Defendant de­creed to sur­render accor­ding to an Agreement. and afterwards covenanted and agreed with the Plaintiffs Fa­ther to Surrender his Title and Interest in the Premisses, to the Plaintiffs Father, and his Heirs. Copy-holder dies before any Surrender. The Plaintiffs Father dyes; he Exhibits his Bill to have the Premisses surrendred according to the Agreement, the Purchase-mony having been paid by the Plaintiffs Father. The Court considering, That by the Custom the Defen­dants Father could have 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 [Page 324] 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.

[Page 325] 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 [Page 326] 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 [Page 327] 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 [Page 330] 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. [Page 331] 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 [Page 332] 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 Attornies, by their appointment, in the Name or Names of them the said T. S. and M. in case the same Marriage take effect, to commence Suit against, sue and prosecute all and every the person or persons, as occasion shall require, for all every of any the said monies that are now owing to the said M. And that he the said T. S. shall justifie all and every such Actions and Suits,That he shall not release the Action. and shall not Release or discharge the same, or any Judg­ment or Judgments, or Execution thereupon to be had, without the consent of the said Trustees, but shall suffer the said Trustees to receive the same monies, and every Sum there­of,That what is received shall be at her dis­posal. and all and other the Sum and Sums, above the Sum of 300 l. and to preserve and dispose of the same according to the Trust in them reposed, by the aforeseid M. And that the said M. shall have full power of the disposal [Page 333] thereof, to any person or persons, other than the said T. S. without any contradiction of him the said T. S. or any threats or uncivil car­riage to deter her thereunto.That neither of the Estates be charged with the others Debts due be­fore Marriage. And it is farther agreed by and between the said T. S. and M. F. That neither of them nor their Estates shall be charged with the Debts or Engage­ments of either of the other of them, due or payable before the date of these presents. And to that end the said T. S. doth covenant, pro­mise and grant, to and with the said Trustees before named, and to and with every of them, That he will pay and discharge all his own particular Debts, or which he is bound for or stands chargable to pay, to any person or persons, out of his own particular Estate, with­out having or craving any of the now per­sonal Estate of her the said M. other than the aforesaid 300 l. before mentioned.If there ap­pear any Debts on her part, Trustees to pay them out of her per­sonal Estate in their Hands. And also the said M. F. doth hereby agree, That in case the said T. S. after the said intended Marriage shall take effect and be solemnized, shall be questioned or molested for any the proper Debts of her the said M. contracted or owing by her, before the solemnization of the said intended Marriage, or for any Legacy or Le­gacies which she is any ways chargable to pay to any person or person, That the Trustees shall have power and authority hereby to pay and discharge the said Debts and Legacies, which she the said M. is so chargable to pay, and that out of any her now proper Estate, other than the aforesaid 300 l. and in so doing the Trustees shall be discharged of any other account thereof unto the said M. or to the said T. S. after the solemnization of the said intended Marriage. And the said Trustees and every of them do hereby declare, That [Page 334] they will perform the Trust in them repo­sed by these presents, according to the true intent and meaning thereof. And do hereby Covenant every one of them one with the other respectively, not to act or do any thing touching the Premisses, without the consent of them all. In Witness whereof to the first part of these presents, remaining with the said T. S. the said M. F. and the said Trustees have put their Hands and Seals; to the second part of these Indentures, remaining with the said Tru­stees, the said M. F. and T. S. have put their Hands and Seals, to the third part of these In­dentures, remaining with the said M. F. the said T. S. and the said Trustees have put their Hands and Seals, the day and year first above written.

Covenant to Surrender Copy-hold Land, after a Bar­gain and Sale of Free-hold.

And whereas the said I. W. holdeth to him and his Heirs, by Copy of Court Roll, at the Will of the Lord, according to the Custom of the Manor of S. aforesaid, the said Parcel of Land in S. aforesaid, before excepted. It is Covenanted and agreed, by and between the said Parties to these presents, and the said I. W. for himself, his Heirs, Executors and Ad­ministrators, for the Considerations aforesaid, doth Covenant to and with the said H. A. RG. and I. A. their Heirs and Assigns by these presents, That he the said I. W. shall and will before the Feast of St. John Baptist, now next ensuing, surrender according to the Custom of the said Manor, the said Parcels of customa­ry Lands, before excepted, unto the use and behoof of the said H. A. R. G. and I. A. and [Page 335] their Heirs for ever, and procure them to be admitted unto the same accordingly, To hold according to the Custom of the said Manor, freed and discharged of all Forferfeitures, Char­ges and Incumbrances, done or suffered by him the said J. W. or F. W. his Father, or either of them, In Witness, &c.

Covenant that he is rightfully seized of Copy-hold Land.

And the said A. B. (for the Considerations aforesaid) doth for himself, his Heirs, Execu­tors, Administrators and Assigns, and for every of them, covenant, promise and grant to and with the said I. G. his Heirs and Assigns by these presents, that he the said A. B. now at the sealing and delivery of this, &c. is solely, lawfully and rightfully seized of and in all and singular the said Copy-hold Lands and Pre­misses, herein before mentioned to be granted, with their, &c. Appurtenances, of a good Estate in Fee-simple, according to the Custom of the Manor, of which the same Premisses are holden. If the Copy-holds belong to two Manors, then thus—of a good Estate in Fee-simple, according to the Custom of the several Manors, of which the said Premisses are respectively holden.

Covenant to Surrender Copy-hold Lands.

And also that he the said A. B. or his Heirs, shall and will at the next Court-Baron to be held for the Manor of W. in the said County, &c. or at any other time or times, upon the request of the said I. G. his Heirs or Assigns, [Page 336] but at the proper Costs and Charges of the said A. B. or his Heirs, surrender into the Hands of the Lord of the Manor, or to the Steward thereof, or otherwise, according to the Custom of the said Manor, to the use of the said I.G. his Heirs and Assigns, all those Lands, Tene­ments, and Hereditaments, herein after men­tioned, which he the said A. B. doth hold of the said Manor aforesaid, by Copy of Court Roll, according to the Custom of the said Ma­nor, viz. one piece of Land, called, &c. And all other the Copy-hold or customary Lands of the said A. B. held of the said Manor of W.

And the said A. B. for himself, &c. doth farther Covenant, &c. to and with the said I. G. his Heirs and Assigns, &c. that he the said A. B. his Heirs, Executors or Administrators, shall and will pay the Fines 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 [Page 337] 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 [Page 383] 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 [Page 340] 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) &c. as by the particular appraisment sent to the said Commissioners, it may appear, the value whereof in the total amounts to the sum of, &c.

Now this Indenture witnesseth, That the said Commissioners, parties to these presents, by force and vertue of the said Commission, and of the several Acts of Parliament therein men­tioned and evpressed, for and with the con­sent, and at the request of the Creditors of the said E. F. that have sued forth and prose­cuted the said Commission against the said E. F. for and in consideration of the sum of, &c. unto the said Commissioners, by the said C. D. &c. to the use, benefit and behoof, as [Page 341] well of themselves, as also of all other the Creditors of the said E. F. that have sued forth and joyned, and that shall hereafter in due time joyn in the prosecution of the said Com­mission, according to the Statutes in that be­half made and provided, well and truly con­tented and paid, have by force and virtue of the said Commission, as much as in them the said Commissioners lyeth, and they law­fully may, granted bargained and sold, and by these presents do as much as in them lyeth, and they lawfully may, grant, bargain and sell unto the said C. D. &c. all the aforesaid Co­py-hold or customary Messuage, &c. now in the occupation of, &c. holden by Copy of Court Roll of the aforesaid Manor of W. to­gether with all Woods, Under-woods, Com­mons, Pastures, &c. and Appurtenances what­soever, unto all and every the said Copy-hold or other customary Premisses thereby granted, and every part and parcel thereof belonging or in any wise appertaining, and all the Estate, Right, Title, Interest, Use, Possession, Rever­sion and Reversions, Remainder and Remain­ders, Claim and Demand whatsoever, of the said E. F. of, in and to all and singular the Premisses hereby granted, and every part and parcel thereof, To have and to hold all the said Copy-hold or customary Messuage or Te­nement, &c. with their and every of their Ap­purtenances, to their proper use and behoof, for ever, according to the Custom of the said Manor of L. Yeilding, paying, performing and doing unto the said Lord of the aforesaid Ma­nor, of whom the Copy-hold or customary Premisses, hereby granted, are holden, all and every the Fines, Rents, Duties and Services, of right used and accustomed to be yeilded, [Page 342] paid, performed and done for the same, &c. In Witness, &c.

A Surrender in Trust, and the Trust declared: Trustees, Covenant not to commit, &c. any thing that may amount to a Forfeiture.

Whereas the said A. B. hath with his own proper Monies bought and purchased of C. D. of, &c. Lord of the Manor of Belton, in the County of, &c. (amongst other Lands and Te­nements, in certain Articles indented and made between the said C. D. of the one part, and the said A. B. of the other part, and bearing date the, &c.) the customary Messuage, Lands, Tenements and Hereditaments, hereafter men­tioned, that is to say, &c.. And whereas also the said E. F. G. H. and I. K. customary Te­nants of the said Manor, of and in the custo­mary Messuage, Lands and Premisses, did by Surrender bearing date, &c. according to the Custom of the said Manor, surrender into the Hands of the said C. D. Lord of the Manor aforesaid, all and singular the customary Mes­suage, Lands, Tenements and Hereditaments before mentioned, to the use and behoof of them the said I. S. and P. S. their Heirs and Assigns, to the intent and purpose that the said C. D. or other the Lord or Lords of the said Manor of, &c. or the Steward or Stewards of the said Manor for the time being, at the next Court to be holden for the said Manor, should admit or cause to be admitted them the said I. S. and P. S. Tenants of and to all and sin­gular the said, &c. as by the said Surrender, relation being thereto had, may more at large appear. Now this Indenture farther Witnesseth, That the said I. S. and P. S. for the avoiding [Page 334] and clearing all doubts, questions and ambi­guities which may hereafter arise or grow, touching or concerning the said Surrender ta­ken in their Names, as aforesaid, do, and either of them doth by these presents voluntarily and spontaneously acknowledge, express and de­clare, That the said Surrender so had and ta­ken as aforesaid, was had, taken, passed and done by the special direction and appointment of the said A. B. in trust to and for the only use, benefit and behoof of him the said A. B. his Heirs and Assigns for ever, and to and for none other use, intent or purpose what­soever. And farther the said J. S. and P. S. do for themselves, their Heirs and Assigns, freely and absolutely disclaim any other Estate, Right, Title, Interest, Claim or Demand, of, in, to, or out of the said customary Messu­age, Lands and Tenements, and Premisses, or any part thereof, but such only as they have by virtue of the Surrender aforesaid, in and upon the Trust aforesaid. And the said I. S. and P. S. for themselves, their Heirs, Execu­tors and Assigns, do covenant and grant, to and with the said A. B. his Heirs, Executors and Assigns, that they the said I.S. and P. S. their Heirs or Assigns, shall not and will not at any time or times hereafter, act, do, per­mit, or willingly or wittingly suffer any act, matter or thing whatsoever, that may amount to or cause a Forfeiture of the said Premisses, or any part thereof, or whereby the said Pre­misses or any part thereof may be destroyed, extinguished, impeached or incumbred. In Witness, &c.

An Infranchisement of Copy-hold Lands made by a Lord of a Manor to his Copy-holder.

This Indenture made, &c. Between A. B. of, &c. Esquire, and E. B. of, &c. Gentleman, Son and Heir apparent of the said A. B. Lord of the Manor of H. in the County of Nor­folk, of the one part, and T. P. of, &c. R. S. of, &c. and T. P. of, &c. of the other part, Witnesseth, That the said A. B. and E. B. as well for and in consideration of the sum of, &c. of lawful mony to them the said A. B. and E. B. or one of them in hand paid, by the said T. P. R. S. and T. P. at and before the ensealing and delivery of these presents, the receipt whereof they the said A. B. and E. B. do by these pre­sents acknowledge, and thereof, and of every part and parcel thereof, do acquit, exonerate and discharge the said T. P. R. S. and T. P. and every of them, their and every of their Heirs, Executors and Administrators, for ever by these presents, as also for divers other good Causes and Considerations, them, and either of them hereunto especially moving, Have granted, bar­gained, sold, enfeoffed, delivered, aliened and confirmed, and by these presents do grant, bargain, sell, enfeoff, deliver, alien and con­firm unto the said T. P. R. S. and T. P. their Heirs and Assigns, all those Messuages, Cot­tages, Lands, Tenements, Pastures, Feedings and Hereditaments whatsoever, situate, lying and being in K. and S. or any other Town, in the said County of Norfolk, which are Co­py-hold or customary Lands, holden of the Manor of H. within the said County of Nor­folk, and which the said T. P. holdeth by Co­py of Court-Roll of the Manor aforesaid, or [Page 345] of right ought to hold as Copy-hold, or of some customary Tenure of the said Manor of H. or of the Lord or Lords thereof, or of any other Manor or Lordship, now or late of the said A. B. and E. B. or either of them; and the Free-hold of all and singular the said Mes­suages, Cottages, Lands, Tenements, Pastures, Feedings and Hereditaments whatsoever, with the Appurtenances; and also all the Freehold of the Inheritance of all those Copy-hold and customary Messuages, Cottages, Lands, Tene­ments and Hereditaments whatsoever, which were surrendred lately by J. G. unto the use of the said T. P. and his Heirs; and also all such Rents and Arrearages of Rents, Services, Suits, and other Demands whatsoever, which now or at any time heretofore have been due or payable, or that shall or ought to be here­after due, payable or done, for all or any of the said Messuages, Cottages, Lands, Tene­ments, Pastures, Feedings and Hereditaments whatsoever; all which said Messuages, Cotta­ges, Lands, Tenements, Pastures, Feedings and Hereditaments, with the Appurtenances, were late in the occupation of, &c. and the Re­version and Reversions, Remainder and Re­mainders of all and singular the Premisses; all Rents and Reservations reserved or payable, by or upon any Demises, Leases or Grants heretofore made or granted of the said Pre­misses, or any part or parcel thereof. To have and to hold all and singular the said Messuages, Cottages, Lands, Pastures, Feedings and Here­ditaments, and all and singular the above-men­tioned or intended to be hereby granted and bargained Premisses, with their and every of their Appurtenances, unto the said T. P. R. S. and T. P. their Heirs and Assigns, to the only [Page 346] proper and absolute use and behoof of them the said T. P. R. S. and T. P. their Heirs and Assigns for ever; and the said A. B. and E. B. for themselves and every of them, their and either of their Heirs, Executors and Admi­nistrators, and every of them, do covenant and grant to and with the said T. P. R. S. and T. P. their Heirs, Executors and Assigns, and every of them, by these presents, in manner and form following, That is to say, that they the said A. B. and E. B. or one of them, are or is at the time of the sealing and delivery of these presents, lawfully, joyntly or solely seized in their or one of their Demesns, as of Fee, of and in the said Manor of H. and of and in all and singular the said bargained Premisses, and every part and parcel thereof, with the Appurtenances, of a good, perfect and absolute Estate of Inheritance, in Fee-sim­ple, without, &c. and unto the use of them, or one of their Heirs and Assigns, without any manner of Condition, power of Revoca­tion, Limitation of Use or Uses, Trust, or other matter or thing whatsoever, to alter, change, charge, incumber, impeach, determine or make void the same. And that they the said A. B. and E. B. or one of them, have or hath at the time of the sealing and delivery of these presents, and at the time of the ex­ecution of the first Estate hereby to be made and granted, shall have full Power, good Right, and lawful Authority, to Grant, Bargain and Sell all and every the said Messuages, Cot­tages, Lands, Tenements, Pastures, Feedings, Hereditaments and Premisses before-mentioned, to be hereby granted, bargained and sold, with their and every of their Appurtenances, unto the said T. P. R. S. and T. P. their Heirs and [Page 347] Assigns, in manner and form aforesaid and according to the effect of these presents. And also that all and every the said afore-mention­ed to be hereby granted and bargained Mes­suages, Cottages, Lands, Tenements, Pastures, Feedings, Hereditaments and Premisses, and every part and parcel thereof, now are, and at all times hereafter shall and may be remain and continue unto the said T. P. R. S. and T. P. their Heirs and Assigns, and every or any of them, free and clear, and freely and clearly acquitted, exonerated and discharged, or other­wise upon reasonable request, well and suffi­ciently saved and kept harmless and indem­nified, by the said A. B. and E. B. their Heirs, Executors, or Administrators, or some or one of them, of and from all and all manner of former and other Gifts, Grants, Bargains, Sales, Estates, Wills, Entails, Alienations, Joyntures, Right and Title of Dower, Statutes, Merchant, and of the Staple, Judgments, Executions, Rents, arrearages of Rents, Mortgages, and of and from all other Charges, Titles, Claims and Incumbrances whatsoever. And farther the said A. B. and E. B. for themselves, their Heirs, Executors, Administrators and Assigns, and for every of them, do covenant and grant to and with the said T. P. R. S. and T. P. their Heirs, Executors and Administrators, and eve­ry of them by these presents, That they the said A. B. and E. B. and either of them, their and either of their Heirs and Assigns, lawfully having, claiming or pretending to have, or which hereafter shall or may lawfully claim, or pretend to have any Estate Right, Title, Interest, Claim or Demand, of, in or to the said bargained Premisses, or of, in or to any part or parcel thereof, by, from or under them [Page 348] the said A. B. and E. B. or either of them, their or either of their Heirs and Assigns, shall and will from time to time, and at all times hereafter, at the reasonable request, costs and charges in the Law of the said T. P. R. S. and T. P. their Heirs and Assigns, make, do, acknow­ledge or cause to be made, done, executed, acknowledged and suffered, all and every such farther act and acts, thing and things, devise and devises, assurances and conveyances in the Law whatsoever of the said Premisses, as by the said T. P. R. S. and T. P. their Heirs or Assigns, their or any of their Councel Learn­ed in the Law, shall be reasonably advised or required, be it by Fine or Feoffment, Deed, or Deeds Inrolled or not Inrolled, Recovery or Recoveries with single, double, or more Voucher or Vouchers, or by any other law­ful ways or means whatsoever, for the better assurance and sure making of the said bargain­ed Premisses, and every part and parcel there­of, with their and every of their Appurte­nances, unto the said T. P. R. S. and T. P. their Heirs and Assigns for ever, &c.

A Letter of Attorny to deliver seisin.

A Lease of Copy-hold Land, with the Lords Li­cence recited.

This Indenture, &c. Between A. B. of, &c. of the one part, and C. D. of, &c. of the other part, Witnesseth, That the said A. B. by vir­tue of a Licence, before the sealing and de­livery of these presents, by him procured and obtained of and from E. F. Lord of the Ma­nor of W. in the County of S. for the grant­ing and letting to Farm, the Tenements, &c. [Page 349] hereafter in and by these presents demised to the said C. D. according to the tenor and true meaning of these presents, Hath demised leas­ed and to farm let, and by these presents doth demise, lease, and to farm let, unto the said C. D. &c. all, &c. To have and to hold the said, &c. with their and every of their Appute­nances unto the said C. D. his Executors, Ad­ministrators and Assigns, from the, &c. for and during the term, and unto the full end and term of, &c. from thenceforth next ensuing and fully to be compleat and ended, Yielding and paying therefore yearly and every year, during the said term, unto the said A. B. his Heirs and Assigns, the yearly Rent or Sum of 3 s. of, &c. at, &c. (with clause of Distress, &c.) and usual Covenants to repair, &c. And also the said C. D. for himself, his Executors, Administrators and Assigns, and every of them, doth covenant, promise and grant to and with the said A. B. his Heirs, Executors and Assigns, That he the said C. D. his Executors nor Assigns, nor any of them shall do, or wittingly or willingly permit or suffer any act, matter or thing what­soever, which may forfeit, lose, or impair the Estate or Interest of the said A. B. of, in or to the said hereby demised Premisses, or of, in or to any part or parcel thereof, or which may be otherwise hurtful or prejudicial to the said A. B. his Heirs or Assigns, for or concerning the having, holding or enjoying of the same, or any part thereof. And the said A. B. for him­self, his, &c. doth covenant and grant, to and with the said C. D. his Executors and As­signs, that he the said C. D. his Executors and Assigns, under the payment of the said yearly Rent, and performance of the Covenants and Agreements aforesaid, which on his and their [Page 350] parts and behalfs are and ought to be performed, shall and may quietly and peaceably have, hold and enjoy all and singular the before-mentio­ned to be hereby demised Premisses, and eve­ry part and parcel thereof, during the term hereby demised, without any interruption, mo­lestation or eviction of him the said A. B. his Heirs and Assigns, or of any person or per­sons whatsoever, now lawfully claiming, or that shall or may hereafter lawfully claim any Estate, Right, Title or Interest, of, in or to the same, or any part thereof, by, from or under him, them, or any of them. And also that he the said A. B. his Heirs, Executors and Assigns, or some or one of them, shall and will from time to time, and at all times hereafter discharge, or upon reasonable request save harmless and keep indemnified the said C. D. his Executors and Assigns, of, for and from all Quit-Rents, payments, Duties and Services to be had, paid, made or done, for or out of the said hereby demised Premisses, or any part thereof, to the said E. F. Lord of the Manor aforesaid, his Heirs and Assigns.

A Release of a Copy hold Estate.

To all Christian people to whom these pre­sents shall come, A. B. of, &c. and C. B. of, &c. Brother of the said A. B. send Greeting, Whereas the said A. B. is or was seized for and during the term of his natural Life, ac­cording to the Custom of the Manor of W. in the, &c. of and in one Copy-hold Messuage, or Tenement, with the Appurtenances in W. aforesaid, being parcel of the said Manor, late in the Tenure or Occupation of, &c. deceased, and of and in several parcels of Land, Mea­dow [Page 351] and Pasture, to the same belonging, or reputed part thereof. And whereas the said C. B. hath a Copy-hold Estate for the term of his Life, in the said Messuage and Premisses, in Reversion, after the death of the said A. B. as by the Court Rolls of the said Manor of W. more at large appeareth. Now know ye there­fore, That the said A. B. and C. B. for and in pursuance of an Agreement heretofore made and concluded, between the said A. B. E. F. Esq Lord of the said Manor of W. of and for the said Copy-hold Estate, and for and in con­sideration of the Sum of, &c. of lawful mony of England, by him the said E. F. in hand paid, to the said A. B. and C. B. or one of them, before the sealing and delivery hereof, the receit whereof they do hereby acknow­ledge, and for other good causes and conside­rations them hereunto moving, have granted, yeilded up, surrendred, remised, released and quit claimed, and by these presents they the said A. B. and C. B. do, and either of them doth grant, yield up, surrender, remise, release and for ever quit claim unto the said E. F. and unto F. C. of, &c. and to their Heirs, Execu­tors and Administrators for ever (which said E. F. and F. C. are, or one of them now is, Lord of the said Manor of W. and are, or one of them now is in the actual possession of the said Premisses) their said several and re­spective Copy-hold Estates in the said Mes­suage, Lands and Premisses, and in any part or parcel of the same, and all their and either of their Estate, as well Free-hold as Copy-hold, Right, Title, Interest, Possession, Claim and Demand whatsoever, either in Law or Equity, or according to the Custom of the said Manor, or otherwise howsoever. And [Page 352] the said A. B. and C. B. do for themselves, their Heirs, Executors and Administrators, covenant and grant to and with the said E. F. and F. C. their Heirs, Executors and Administrators by these presents, that they the said A. B. and C. B. shall and will from time to time, and at all times hereafter, upon request, and at the Costs and Charges in the Law of the said E. F. and F. C. or either of them, do and per­fect, or cause to be done and perfected, all such lawful and reasonable acts and things in the Law, for the surrendring, barring, and ex­tinguishing of their or either of their Right and Estate, as well Free-hold as Customary, and all their or either of their Claim or De­mand, in or to the said Messuage or Tene­ment and Premisses, or any of them, as by them the said E. F. or either of them, their or either Heirs or Assigns, of the said Manor, shall be reasonably advised and required, In Witness, &c.

Copy of a Court Roll, or an Extract of a Surrender out of the Rolls of the Court.

Ad curiam Baron F. R. Mil & Baronet, Dom manerij pred ibid tent (ur) die Lune videlicet secundo die Junij Anno Domini millesimo sextentesimo nonagesimo Anno (que) Regni Domini [...] Gulielmi & Mariae, Dei gratia Anglie, Scotie, Francie & Hi­bernie Regis & Regine fidei defensor, &c. primo coram S. C. Arm Senescallo ibid Irrotulatur sic.

Ad hanc curiam venit A. B. unus custum te­nen Manerij pred in propria persona sua & sur­sum reddidit in manus Domini per manus Se­nescalli sui pred secundum consuetud Manerij pred unum messuaḡ sive tenementum & decem acras pasture cum pertin in A. pred infra Ma­nerium pred ad opus & usum C. D. hered & assignat (ur) suorum imperpetuum. Cui Dominus per senescallu pd concessit inde seisinam, per virḡ Habend sibi & heredibus suis Tenend de Do­mino per virgam ad voluntatem Domini secun­dum consuetudinem manerij pd per redditus & servitia inde prius debit (ur) & de jure consuet (ur). Et dat Domino de fine pro ingressu suo inde ha­bend quadragint (ur) solid fecit fidelitatem & admis­sus est tenens.

Another form according to Littleton.

Ad hanc curiam venit A. de B. & sursum red­didit in ead curia unum messuagium, &c. in manus Domini ad usum C. de D. & here­dum suorum (vel hered de corpore suo exeun­tium vel ꝓ termino vite, &c.) Et super [Page 354] hoc venit predictus C. de D. & cepit de Do­mino in ead curia messuaḡ pdict (ur), &c. Ha­bendum & tenendum, sibi & heredibus suis (vel sibi & hered de corpore suo exeuntibus vel sibi ad terminum vite, &c. Ad vo­luntatem Domini secundum consuetud ma­nerij faciendo & reddendo inde redditus ser­vitia & consuetudines inde prius debita & consueta, &c. Et dat Domino ꝓ fine, &c. Et fecit Domino fidelitatem, &c.

Ad hanc curiam H. H. filius & heres W. H. defunct' sursum reddidit in manus Dom Ma­nerij pdict (ur) per Senescallum pdict (ur) totum, &c. ad usum pdict (ur) H. ꝓ termino vite sue, & post ejus decessum ad usum W. H. & heredibus suīs per se e corpore Mariae tunc Vxoris sue legitime pro­creat (ur) sive procreand. Et ꝓ defectu talis exitus ad usum rectorum heredum, &c. Et superinde ad istam eandem curiam vener pdict (ur) H. H. & W. H. in propriis personis suis et petunt se inde admitti tenentes, unde Dominus pdict (ur) per Se­escalluu suu pdict (ur) secundum consuetudinem Manerij pdict (ur) concessit eisdem H. H. & W. H. ead tenementa cum pertinentiis Habend & tenend ead tenementa cum pertinentiis eid H. pro & durante vita sua naturali. Et post ejus deces­sum eid W. & heredibus suis per se e corpore Mariae tunc Vxoris suis legitime procreat (ur) sive procreand & ꝓ defectu talis exitus rectis, &c. imperpetuum secundum consuetud Manerij p̄dict (ur) & reddit (ur) Herriot sect (ur) curie consuet (ur) & servitia inde prius debit (ur) & de jure consuet (ur) & sic iidem H. & W. admissi sunt inde tenentes & dedere Do­mino de fine ꝓ tali ingressu suo sic inde habend quatuor libras & fecerunt Domino fidelitatem Dat (ur) sub Sigillo Senescalli pdict (ur) die & Anno supradicto. Per me S. E. Senescal

Surrender of Copy-hold Lands for Life, the Remainder in Fee, taken by the Steward out of Court.

Ad hant Curiam Testatum est per A. H. Seneschallum Cu [...]ie pdict (ur) quod primo die Maij Anno Regni dicti Dom Regis nunc tricesimo A. B. geu jacens in extremis sursum reddidit in manus Domini, per manus dicti Senescall extra curiam in presentia E. F. G. H. & J. K. secundum consetudinem manerij pdict (ur) unum, &c. infra maner pdict (ur) vocat (ur) Nocks Farm, ad opus & usum E. Vxoris ejusdem E. remanere inde S. T. & U. W. filiis natu minoribus pdict (ur) A. B. & hered suis proviso tamen semper & sub hac con­ditione qd si contingat aliqm pdictor S. & V. obire sine heredibus de corpore suo exeun quod tunc ipse qui supervixerit habebit & gaudebit pdict (ur), &c. Et cetera premissa ꝑdicta cum pertin sibi & he­redibus suis imperpetuum & suꝑ hoc venit hic in cur pdict (ur) E. in propria persona sua & petit se admitti ad, &c. Et cetera premissa pdict (ur) cum pertin cui Dominus per Senescallum suum con­cessit inde per virgam seisinam habend sibi in forma pdict (ur) ad voluntatem Domini secundum consuetud manerij pdict (ur). Et dat Domino de fine ꝓ ingressu suo inde habend vigint (ur) solid fe­cit fidelitatem & admissus est inde tenens.

A Surrender out of Court of a Reversion to the use of a Man and his Wife, and the Heirs of the Body of the Husband, the Remainder to the Heirs of the Body of the Wife, the Remainder to the Husband of the present Tenant for Life in Tayl, the Remainder to the present Tenant for Life in Tayl, the Remainder to another in Fee, with the Lords acknowledgment of a satis­faction of a Fine; the Surrenderor surren­dreth all his Right, &c. to the Husband and Wife, the present Tenant for Life, to the Uses aforesaid.

Ad hanc curiam Testatum est per predict (ur) T. P. Senescallum ibid quod, &c. die, &c. Anno, &c. T. J. venit coram prefato Senescallo in propria persona sua & sursum reddidit in manus Domini per manus dicti Seneschalli extra cur in presentia L. D. C. K. & J. T. secun­dum consuetud manerij pdict (ur) reversionem unius Messuagij sive Tenementi sexdecim acras pra­ti, &c. ac reversionem duorum Cottagiorum, &c. cum pertin in, &c. infra manerium pdict (ur). Ad opus & usum D. T. & K. Vxor ejus & he­redibus de corpore pdict (ur) D. legitime procreat (ur) cum post mortem cujusdam A. modo Vxor H. J. acciderint. Et pro defectu talis exitus de corpore pdict (ur) D. T. legitime procreat (ur) remanere inde prefat (ur) K. Vxori prefat (ur) D. et heredibus de corpore ejusdem K. legitime procreat (ur) & pro defectu talis exitus remanere inde prefat (ur) H. J. & hered de corpore suo Legitime procreat (ur) & pro defectu talis exitus remanere inde prefato A. Vxori pdict (ur) J. H. & heredibus de corpore ejusdem A. Legitime procreat (ur) & pro defectu ta­lis exitus remanere inde V. S. & heredibus suis [Page 357] imperpetuu Quibus, quidem D. T. & K. Vxor ejus Dominus per Senescallu suum pdict (ur) Dom ad hanc curiam concessit inde per virgam seisi­nam Habend & Tenend pdict (ur) Messuagium Cotta-& cetera premissa pdict (ur) cum pertin in rever­sione secundum consuetud Manerii pdicti cum post mortem pdict (ur) A. Vxoris pdict (ur) H. J. acciderint prefat (ur) D. & K. Vxori ejus & heredibus de cor­pore pdict (ur) D. Legitime procret (ur) & pro defectu talis exitus remanere inde prefato K. Vxori pre­fat (ur) D. & heredibus de corpore ejusdem K. Le­gitime procreat (ur) & pro defectu talis exitus re­manere inde prefat (ur) H. J. & heredibus de cor­pore suo Legitime procreat (ur) & pro defectu talis exitus remanere inde prefat (ur) A. Vxori pdict (ur) H. J. & heredibus de corpore ejusdem A. Legitime procreat (ur) & pro defectu talis exitus remanere inde pfat (ur) V. S. & heredibus suis imperpetuum ad vo­luntatem Domini secundum consuetudinem Ma­nerii pdict (ur) ꝑ reddit (ur) & servitia inde prius debit (ur) & de jure consuet (ur) Et pdict (ur) D. & K. Vx. ejus dant Domino de fine pro tali statu suo inde ha­bend centum solid & admissi sunt inde tenentes modo & forma predict (ur) &c predict (ur) Dominus con­cessit se satisfact (ur) de predicto fine inde habend ꝓ Messuagio Cottagiis & ceteris premissis pre­dict (ur) cum pertin de predict (ur)D. & K. Vxore ejus cum predict (ur) Messuagiu Cottagia & cetera pre­missa pdict (ur) cum pertin post mortem predict (ur) A. Vxoris predict (ur) J. H. ad manus sua devenerint Et postea ad hanc curiam venit predict (ur) F. J. in propria ꝑsona sua & hic in plena curia sursum reddidit in manus Domini tota jus titulu cla­meu & interesse sua in omnibus predic Mes­suagio Cottagiis▪ & ceteris premissis cum per­tin ad usus predict (ur) & ulteris remisit relaxavit & omnino ꝓ se & heredibus suis quiet (ur) clamavit prefat (ur) H. J. & A. Vxori ejus totum jus titulum [Page 358] clameum interesse & demaund sua que ipse T [...]. unquam habuit in predict (ur) Messuagio Cottagiis & ceteris premissis predict (ur) cum ꝑtin habend & tenend omnia & singula pdict (ur) Messuagium & Cot­tagia & cetera premissa pdict (ur) cum ꝑtin pfat (ur) H. & J. Vxori ejus ꝓ termino vite pdict (ur) A. & post decessum ejusdem A. remanere omniu pdict (ur) terraru & tenementor cum ꝑtin pfat (ur) D. T. & K. Vxori ejus & heredibus de corpore pdict (ur) D. Legitime procreat (ur) & ꝓ defectu talis exitus re­manere inde pfat (ur) K. Vxori pdict (ur) D. & herede­bus de corpore ejusdem K. Legitime procreat (ur) & ꝓ defectu talis exitus remanere inde pfat (ur) H. J. & heredibus de corpore pdict (ur) H. J. Legitime pro­creat (ur) & pro defectu talis exitus remanere inde pfat (ur) A. Vxor ꝑdict (ur) H. J. & heredibus de cor­pore ejusdem A. Legitime procreat (ur) & ꝓ defectu talis exitus remanere inde pdfat (ur) V. S. & heredi­bus suis imperpetuu ad voluntatem Domini secundu consuetud manerii pdict (ur), &c.

After abatement and intrusion the Lord seizeth the Lands, and grants them to the Abator for term of Life, Remainder to the next Heir of the Disseisee and in Tayl, Remain­der in Fee.

Compertu est ꝑ homagiu ibid quod quidam O. B. Miles defunct (ur) tenuit de Domino hujus Manerii die quo obiit sibi & heredibus suis ad voluntatem Domini secundum consuetudinem Manerii pdict (ur) unum Messuaḡ, &c. cum ꝑtin in A. pdict (ur) infra Maner pdict (ur) & quod pdict (ur) O. obiit de tali statu suo inde seisit (ur) ꝑ sex annos [...]am ultimo elapsos & amplius & quod quida H. R. in jure Vxoris sue quonda uxoris L. B. Arm filii pdict (ur) O. B. immediate post decessu pdict (ur) O. B. in pdict (ur) Messuaḡ, &c. & cetera pre­missa [Page 359] pdicta cum ꝑtin abatavit intravit & intru­sit super possession Dn̄i Manerii pdict (ur) in ex­heredetation dicti Dom Manerii pdict (ur) succes­sor suor & contra consuetud Manerii sui pdict (ur) a tempore cujus contrarii meomria hominu non existit in eod Manerio usitat (ur) & approbat (ur) & exi­tus & ꝓficua inde a tempore mortis pdict (ur) O. B. ad suu propriu usu hucus (que) habuit & percepit nor capiend pdict (ur) Messuaḡ &c. & cetera pmissa pdict (ur) cum ꝑtin extra manus Dom Manerii pre­dict (ur) nec fecit inde Dn̄o fine ꝓ eisdem secun­dum consuetud Manerii sui pdict (ur) & sic pdict (ur) H. R. tenuit & occupavit pdict (ur) Messuaḡ. & per pdict (ur) sex annos ult (ur) elapsos & amplius contra consuetud Manerii pdict (ur). Ideo pceptu est bal­livo Manerii pdict (ur) seisire in manus Domini pdict (ur) Messuaḡ, &c. & cetera premissa pdict (ur) cum ꝑtin quousque, &c. Et Dominus modo habens inde seisinam ad humilem petitionem pdict (ur) H. R. ex gratia sua speciali ad hanc curiam concessit extra manus suas pdict (ur) Messuaḡ, &c. pfat (ur) R. H. & A. Vxori ejus ad terminum vite ipsius A. & liberata est eis seisina ꝑ virgam Habend & te­nend pdict (ur) Messuaḡ, &c. pfat (ur) R. & A. ad ter­minum vite ipsius A. ad voluntatem Domini secundum consuetud Manerii pdict (ur) & post deces­sum ipsius A. remanere inde quibusdam D. T. & K. Vxori ejus consanguin & proxime heredibus pdict (ur) O. B. videlicet filie pdict (ur) L. B. filij O. B. & heredibus de corpore pdict (ur) D. T. Legitime pdict (ur) procreat (ur) & pro defectu talis exitus rema­nere inde pfat (ur) K. &c. (with Remainder over in Fee to V. S.) tenend de Domino per vir­gam ad voluntatem Domini secundum consue­tudinem Manerii pdict (ur) per reddit (ur) & servitia inde prius debit (ur) & de jure consuet (ur) Et tam pdict (ur) H. R. & A. Vxor ejus quam pdict (ur) D. T. & K. Vxor ejus dant Domino de fine ꝓ tali ingressu suo inde habend de & in premissis 5 libras fecer [Page 360] Dom fidelitatem & admissi sunt inde tenentes modo & forma pdictis, &c.

Surrender out of Court to several Uses upon a Marriage Settlement.

Compertum est per Homagium ibid quod A. B. qui tenuit (ut supra) unu Messuaḡ sive Tene­mentum vocat (ur), &c. in A. infra Manerium pdict (ur) citra ult (ur) Curia & extra Curia sursu reddidit in manus Dn̄i per manus H. K. & J. W. duor cu­stum tenen Manerii pdict (ur) secund consuetud Ma­nerij illius pdict (ur) Messuagiu seu Tenementu & cetera premissa pdict (ur) cum ꝑtin ad opus & usu pdict (ur) A. B. & Hered & Assign suor us (que) ad so­lempnization cujusda intensi marritaḡ (permis­sione Divina) cito habitur & solempnizatur inter quenda C. D. filium & heredem apparen pdict (ur) A. B. ex una parte & quandam A. D. de A. pdict (ur) Spinster ex altera parte & ab & immediate post solempnization ejusd Maritaḡ tunc ad opus & usu pdict (ur) A. B. pro & durante termino vite sue naturalis, & ab & immediate post ejus decessum tunc ad opus & usum S. Vxoris ejus pro & du­rante termino vite sue naturalis & ab & immedi­ate post decessus (Anglice) deceases ipsorum A. B. & S. Vxoris ejus & decessum eor superviventis tunc ad opus & usum pdict (ur) C. D. ꝓ & durante termino vite sue naturalis & ab & immediate post decessus ipsor pdict (ur) A. B. & S. Vxor ejus C. D. & decessum eoru superviventis tunc ad opus & usu pdict (ur) A. Vroris sue intense pdict (ur) C. D. ꝓ & durante termino vite sue naturalis & ab & immediate post decessus ipsoru pdict (ur) J. B. & S. Vxor ejus C. D. & A. Vxoris sue intense & decessum eorum su­perviventes tunc ad opus & usum heredu de cor­pore pdict (ur) C. D. suꝑ corpus pdict (ur) A. legitime ꝓcreat (ur) vel fore ꝓcreand Et ꝓ defectu talis exitus [Page 361] tunc ad opus & usum Hered & Assign pdict (ur) C. D. imperpetuu Tenend de Dn̄o ꝑ virgam ad volun­tatem Dn̄i secundi consuetud Maner pdict (ur) Qui quidem A. B. & S. Vxor ejus citra ult (ur) Curiam obierunt Et modo ad hanc Curiam venit C. D. in ꝓpria psona sua & petit se admitti ad pdict (ur) Mes­suagiu sive tenementu & cetera premissa pdicta rum ꝑtiu Cui Dn̄s ꝑ Senescalu suu concessit inde ꝑ virgam seisinam Habend & Tenend eid C. D. & Assign suis ꝓ termino vite sue na­turalis remanere inde ꝓut superius Limitatur ac tenend de Dn̄o ꝑ reddit (ur) ꝑ annum 50 s. & alia servitia inde prius debit (ur) & de jure consuet (ur) Et dat Domino de fine, &c. fecit fidelitat (ur) & admissus est inde tenens.

Presentment of a Surrender made in Court, with the Admittance of the Tenant next Heir.

Iuratores pdict (ur) psentant super sacramentum suum quod J. S. custumarius tenens Manerii pdict (ur) qui tenuit sibi & heredibus suis de Dn̄o hujus Manerii secundum consuetud Manerii pdict (ur) unum Messuagium sive tenementum, &c. cum ꝑtin in A. ante hanc curiam obiit inde seisitus & quod H. S. est unicus frater & heres proxim pdict (ur) T. S. & plene etatis qui presens hic in Curia petit se admitti tenentem ad omnia ter­ras & tenementa custumaria de quibus ipse pdict (ur) T. S. obiit inde seisitus videl ad pdict (ur) Messuaḡ, &c. & cetera premissa pdict (ur) cum pertin in A. pdict (ur) infra Maner pdict (ur) cui quidem H. S. Dominus per Senescallum pdict (ur) concessit inde per vir­gam seisinam Habend & Tenend Domino per virgam ad voluntatem Dom secundum consue­tud Manerii pdict (ur) per redditus & servitia inde prius debit (ur) & de jure consuet (ur) & dat Domino de [Page 362] fine ꝓ ingressu suo inde habend decem in libras & fecit Dom fidelitatem & admissus est inde te­nens.

The finding of the death of a Tenant and of the Lands and Heir with the admission of the Tenant, and a Presentment made in Court between the Heir and his Mother touching her Dower, and the Mothers Re­lease of her Dower.

Iuratores &c. presentant quod R. B. unus cu­stumar tenen manerii pdict (ur) obiit post ult (ur) Cu­riam solus seisitus de & in diversis custumariis terris & Tenementis tent (ur) de manerio pdict (ur) in Dominico suo ut de feodo secundum consuetud manerii pdict (ur) & quod N. B. est unicus filius & heres ꝓximus pdict (ur) R. secundum consuetud manerii pdict (ur) & plene etatis vigint (ur) & unius an­nor & ultra qui presens hic in Curia petit se admitti tenentem ad omnia & singula pmissa predicta videlt (ur) ad unum tenementu, &c. tent (ur) per redditum quinque solidorum 9 d. & ad unum clausum, &c. tent (ur) per redditum 3 s. 4 d. per annum & ad, &c. & sectam curie omnia que quidem pmissa cum ꝑtin pdict (ur) R. B. nuper cepit in curia manerii pdict (ur) de sursum redditione J. B. jun ꝓut apud Curiam hic tent (ur) die Martii 8 die Octobris Anno, &c. apparet ac etiam ad unam aliam peciam terre custumar, &c. continen 12 acras, &c. pdict (ur) R. B. super hic in Curia mane­rii pdict (ur) cepit sibi & heredibus suis post sursum redditionem inde fact (ur) per pdict (ur) J. W. ꝓut apud Curiam, &c. plenius liquet & apparet que quidem 12 acre fuere tent (ur) de Domino Manerii pdict (ur) per redditum 14 s. & sectam Cur & admissus est inde tenens cui quidem N. seisina tradita est sibi & heredibus suis per virgam ad voluntatem Domi­ni [Page 363] secundum consuetud manerii pdict (ur) per servi­tia & annuales redditus pdict (ur) salvo jure, &c. & dat Dn̄o de fine, &c. & fecit fidelitatem, Et postea ad eandem Curiam vener pdict (ur) N. B. & E. vid relict (ur) pdict (ur) R. B. & dant curie hic intelligi quod ipsi sunt agreati inter semet ipsos de & con­cernen dote pdict (ur) E. in pmissis secundn con­suetudinem manerii pdict (ur) super quo pdict (ur) E. pre­sens hic in curia remisit & relaxavit in manus Dom pdict (ur) totam dotem & titulum dotis sue & demand quodcun (que) illi ꝑtin secundum con­suetudinem manerii pdict (ur) de & in omnibus & singular custumariis terris & tenementis tent (ur) de manerio pdict (ur) que nuper fuere pdict (ur) R. B. nu­per viri sui ad opus & usum pdict (ur) N. B. in (plena & pacifica sua possessione inde existen) & Hered & Assign suorum imperpetuum ita quod pdict (ur) E. abhinc in posterum nullo modo requiret clamaret sive demandaret aliquam dotem de in sive ad pmissa vel aliquam parcellam inde secun­dum consuetud manerii pdict (ur) sed inde & de & absqe omnibus actionibus & demandis talis dotis con­cernen pmissa erit preclusa & exclusa imperpe­tuu per hoc presens Irrotulamentu & ꝓ hac remis̄ & relaxatione pdict (ur) E. N. dedit pdict (ur) E. 104 l. 3 s. 4 d. legalis monete Anglie & dedit Dom de fine &c. ꝓ relaxatione pdict (ur), &c.

Presidents of Copies of Court Rolls, Pre­sentment by the Homage of the Copy-hold Customs. Several sorts of Surrenders, Ab­solute, Conditional. Surrenders to the use of ones last Will. Presentment that Copy-hold Lands are Enfranchised. Admittances. Ad­mittance by Guardian. Licence to demise for years. Releases. Proclamations for not coming in and taking up the Estate, and Seizure by the Lord, &c.

Maner. de L. VIc Franc Pliḡ cum Cur Baron A. B. Arm & C. D. Gen Dominor Manerii pdict (ur) ibidem tent (ur) die Martis Scilicet decimo sep­timo die Aprilis, Anno Regni Regis Iacobi se­cundi quarto Anno (que) Dn̄i 1688. cora S. C. Ar Senescalo ibidPaten.

  • F. E. Jur.
  • T. S. Jur.
  • Inquisitio Magna.
    I. C. Jur.
  • T. S. Jur.
  • I. S. Jur.
  • T. W. Jur.
  • I. R. Jur.
  • R. P. Jur.
  • R. A. Jur.
  • E. K. Jur.
  • M. D. Jur.
  • I. H. Jur.
  • R. S. Jur.
  • D. A. Jur.
  • I. E. Jur.
  • I. S. Jur.
  • A. C. Jur.
  • C. E. Jur.
  • S. W. Jur.
  • R. S. Jur.
  • B. M. Jur.

Communis Finis sol in Cur.

Communis Finis vjs.Iuratores pdict (ur) super Sacram suu pdict (ur) di­cunt quod dant Dn̄o Communem Finem semꝑ ad hunc diem vj s.

[Page 365]Iuratores pdict (ur) dicunt & presentant quod E. F. incroachavit super Vastu hujus Manerii prope T. Lane & M. Lane duce n erga W. & E. B. & cum sepibus & fossis partem vasti pdict (ur) inclusit Ideo Ordinat (ur) est ꝑ Cur hic quod E. vastum pdict (ur) sic ut pfert (ur) Inclusu patifaciat infra decem dies nunc prox' sequen Subpena vj. s. vij d.

Iuratores pdict (ur) super sacram suu pdict (ur) ulte­rius dicunt & psentant qd T. S. inchochavit suꝑ vastu pdict (ur) & cum postib longuriis & palis al­tam viam regiam in W. pdict (ur) ducen ad villam, &c. de C. B. pdict (ur) obstruxit Ideo considerat (ur) est ꝑ Cur hic qd pdict (ur) T. obstructionem pdict (ur) sic ut pfert (ur) per ipsn M. factam removeat infra tem­pus pdict (ur) Subpena xx d.

Iuratores pdict (ur) super Sacram suum pdict (ur) ul­ter presentant qd N. D un Constabular Paro­chie de, &c. pdict (ur) pro Anno preterito infra Iu­risdictionem hujus lete Officium suum Consta­bnlar negligent (ur) exercuit Ideo ipse in misericor­dia x s.

Iuratores pdict (ur) super Sacram pdict (ur) ulterius dicunt qd ipsi in omnib concernen inclusion mag­ni vasti vocat (ur), &c. concordant cum presentamento homagii ad hanc Cur fact (ur).

Iuratores pdict super Sacram suu pdict (ur) ulte­rius dicunt quod L. W. &c. & I. S. de S. M. sunt & quilibet eor est resien & Commoran infra jurisdictionem hujus Lete & licet debito modosum­monit (ur) & exact (ur) fuer & quilibet eorum sum­monit (ur) & exactus fuit non Comperuer nec eoum alter comperuit sed defalt (ur) fecer & quilibet eor defalt (ur) fecit ideo in misericordia sunt & quilibet eor in misericordia est xij d.

Amerciamenta pdict (ur) afferat (ur) fuer per

  • S. S.
  • T. S.

Iur qui ad inde Iur fuer.

Nomina Officiar' pro Anno Sequente.

Eligerunt L. P. & R. W. fore Constabular Parochie de, &c. ꝑ anno futuro qui quidem R. W. Iurat (ur) fuit ad Officium illud bene & fidel per­formand & exequend eliger I. S. & H. fore subc̄on stabular Parochie predict (ur) pro Anno pdict (ur) qui qui­dem I. S. Iuratus fuit.

Eligerunt T. S. & I. S. fore cervicie gusta­tores pro Anno futuro.

Eliger H. B. & T. B. fore Sigillatores pro Anno futuro.

Eliger W. E. fore corij Custod Com̄nis pro Anno futuro.

Homage and Presentment of Custom of the Manor.

Homag.

  • S. H. Gen
  • S. T.
  • I. H.
  • W. A.
  • W. H.
  • I. H. Jur.
  • I. C. Jur.
  • C. H. Jur.
  • I. R. Jur.
  • I. F. Jur.
  • C. N. Jur.
  • R. C. Jur.
  • T. S. Jur.

Homaḡ. pdict (ur) sup Sacram suu pdict (ur) dic quod R. N. Arm I. H. & I. K. sunt tenen­tes Dn̄or & debent sect (ur) Cur hic & ad hunc diem defalt (ur) fecer & quilibet eor defalt (ur) fecit Ideo qui­libet in misericordia 1 s.

Presentment of Copy-hold Custom.

Item presentant pro Cusiumis hujus Manerii ꝓut sequit (ur) (viz.)

Imprimis qd Cur Let (ur) & Cur Baron teneri debent (ur) infra Maneriu super diem Martis in qualibet septimana Pasche Annuatim.

[Page 367]Item quod ad hujus Cur tempore in eujus contrarin memoria hominum non existit Constab & sub Constab elect (ur) fuer ꝓ illa ꝑte Parochie de S. M. que jacet infra maneriu pdict (ur) nec non duo Constab & sub Constab C. B. & unu utrius (que) ꝓ E. B. alia Villa.

Item qd quilibet Tenens Custumar maerem & al Arbores super Tenement (ur) sun crescen dese­care possit abs (que) licentia Dn̄or.

Item quod Homagium Iur ad quamlibet Cur super eor visu alicujus Nocument (ur) vel inchro­chiament inter Tenen Custumar per mulcta sive pena redigere valeant.

Item quod super visum et presentament (ur) per homaḡ quod aliqu. Customar Tenement (ur), &c. fit in decasu si Tenens hujusmodi Tenementi illud infra tal tempus convenien qual homa­gin propterea appunctuavit non reparabit Tene­ment (ur) suu sic in decasu Domino forisfacit.

Item quod duo Tenentes Custumar Iurat (ur) vel alter edrum unacu Balliva Manerij pdict (ur) fursum redditiones in extremis tant (ur) capere possunt Quod (que) nullus al preter Senescalll Dominorum per paten vel ejus deputat (ur) sursum redditiones ex­tra Cur cape possit.

Item quod omnes Admissiones per Dominos dat (ur) extra Cur necnon omnes sursum redditiones ꝑ ipsos sic capt (ur) homagio ad prox Cur communi­cari debeant.

Item qd omnes sursu redditiones per Senescal vel ejus Deputat (ur) seu per Tenentes Iur capt (ur) ad Cur prox sequen Capcon hum̄odi sursu reddi­tionis presentari debeant.

[Page 368]Item qd feoda Cur sunt ꝓut sequit (ur) (viz.) ꝓ qualibet singul sursu redditione secreta examina­tione femine nupt (ur) ac admissione in Cur.

 s.d.
Senescallo68
Clerico28
Homagio04
Ballivo04
 10

Quod (que) Omnes duplices sursum redditiones & Admissiones solvant feoda duplic Ac sil̄iter omnes sursu redditiones Examinationes & Admis­ssiones ad Curias Speciales Necnon Omnes sursu redditiones capt (ur) per Senescallum extra Cur.

Item qd omnes inhabitantes infra Paroch̄ &c. fodere valeant ac a tempore quo Hom me­moria in contrar non existit fod erunt Arenam. Anglice Loam infra infra magnu vastum sive Communiam ibidem vocat (ur) B. C. pro reparatione altaru viar Parochie illius necnon pro emen­dation & reparation tenementor suor infra dict' Parochiam abs (que) solutione aliq' Dominis hu­jus Manerii ꝓinde.

Item presentant qd propositiones ad Cur pri­or per Dominos ꝓposiit in ordinem ad inclu­dend Communiam in novem separalib̄ Paragra­phiis content (ur) sunt in Opinionib Iur nullo mo­do ad advantaḡ Tenentiu hujus Manerii ac ꝓ inde propositiones illas idon non putant.

1. Pro eo quod proportio perinde per Do­minos clamat (ur) existens integra tertia pars valde irrationabilis videtur.

[Page 369]2. Pro eo quod tenura precipue in relatione ad liberos tenentes nec non redditus proinde re­servat (ur) est in eorum opinione per magna & irra­tionabilis.

3. Pro eo quod super totam materiam opinio est Iuratorum quod si vetus Communis Re­strictio renovat (ur) & confirmat (ur) esset multo plus foret pro beneficio Parochie de, &c. predict (ur) quam aliter esse potest per includend Communiam pdict (ur) quodque quedam particularis Curia capiatur pro prevention nimie Onerationis Commu­nie pdict ꝓ futuro. Ac ad intentionem ill hoc homagium Senescall pdict (ur) desiderant quod certum numerum Customar & liberorum Tenen­tium nominare placebit ad adjudicand certum nu­merum Catallorum Ovium, &c. que dehinc super Communiam pdict (ur) depascentur conservabuntur quod (que) cuncta hujusmodi catalla cum quodam Com­muni signo signentur.

Surrender by Baron and Feme.

Nunc de rebus ad Cur Baron spectan.

Ad hanc Curiam vener T. W. gen Custom Tenens hujus Manerii & P. Vx' ejus & (ipse P. pdict (ur) existens prius sola & secreta examinat (ur)Senesc pd prout mos est) sursu redd in manus Domino (rum) per manus Senesc pd ꝑ virgam secun­dum consuetud Manerii pdict (ur) tot (ur) illu Customar Messuaḡ sive Tenement (ur) communiter vocat (ur) sive cognit (ur) ꝑ nomen de, &c. cum Curtilagio & omnibus aliis ptinen ad inde spectan sive pertin scituat (ur) jacen & existen in C. pdict (ur) Ad opus & usum W. S. de, &c. pdict (ur) pistoris hered & Assignat (ur) suorum imperpetuum Qui quidem W. psen hic in Cur petit se admitti ad pmissa pdicta cui Dn̄i ꝑ Senescallum suum pdict (ur) concesser inde seisinam [Page 370] ꝑ virgam Habend sibi & heredibus suis Tenend de Dominis ꝑ virgam in villenagio ad voluntatem Dominorum secundum consuetud Manerij pdict (ur) ꝑ reddit (ur) servic & consuet (ur) inde prius debit (ur) & de jure consuet (ur) Et dat Dominis jure fecit fidelita­tem Et admissus est inde tenens,Finis xvj l. Redd. &c.

Surrender ad usum ultimae voluntatis.

W. ad usum ult. voluntat.Ad hanc Curiam ven T. R. Gen Customar Tenens hujus Manerii & in plena Curia sur­sum redd in manus Dominorum per manus Se­neschalli sui pdict (ur) ꝑ virgam secundum consue­tud Manerii pdict (ur) tot (ur) illud Customar Claus̄ sive parcella prati communiter vocat (ur) sive cog­nit (ur) per nomen de, &c. jacen & existen in C. predict (ur) continen per Estimationem sexdecim Acr sive plus sive minus ad opus & usum talis perso­ne sive personar & pro tali statu sive statibus qual ꝑdict (ur) T. R. ꝑ ultima voluntatem sua aut ꝑ aliquod aliud script (ur) sub manu & sigillo suis li­mitabit declarabit sive appunctuabit.

Grant of Wardship of a Tenant.

Custod. S. & Commiss. H.Cum ad Cur Baron hic tentam die Mer­curij scil̄t vicesimo nono die Februarii nunc ul­timo preterito Custod tam Corporis quam Tene­mentorum S. M. Infantis Custom Tenen hujus Manerii concess. fuit I. M. Ballivo Manerii pdict (ur) durante Minori etate sua, &c. Modo ad hanc Cur Domin Manerii pdict (ur) receperunt custod Warde sue pdict (ur) extra manus Balli pdict (ur) & in plena Cur concesser custodiam tam corporis quam Tent (ur) pdict (ur) S. M. W. H. de &c. durante mino­ri etate dicte S. inveniend, &c. & Reddend, &c.

Surrender of Right, Title and Interest to two by moieties.

Ad hanc Cur ven C. N. & A.N. & Uxor. ad N. & C. Vxor ejus Et pdict (ur) A. (eristen prius sola & secret (ur) examinata per Senescallum pdict (ur) ꝓut mos est) sursum red­dider in manus Dominorum Manerii pdict (ur) per manus Senescalli sui pdict (ur) per virgam secund consuetud Manerii pdict (ur) tot (ur) jus pdict (ur) C. A. Stat (ur) Titul Clam Interesse & demand sua que un­quam habuer vel eo (rum) alter habuit habent seu quovismodo in futuro habere poterint de & in uno Clauso terre continen ꝑ estimationem novem Acr jacen prope, &c.Copia Facta. cum omnibus suis perti­nentiis ad opus & usum I. N. Iun & E. N. so­roris p̄dict (ur) I & modo Vxor I. C. de Villa S. A. in Com H. pistor Qui quidem I. & E. sunt in plena possessione & seisina Clausi pdict (ur) & hered dic I. & E. imperpetuum Tenend unam medietatem Clausi pdict (ur) pdict (ur) I. N. & heredibus suis & tenend alteram medietatem Clausi pdict (ur) cum per­tin pdict (ur) E. D. & heredibus suis Qui quidem I. & E. presen hic in Cur pet (ur) se admitti ad pre­missa pdict (ur) quibus Domini per Senescallum suu ꝑdict (ur) concesser inde seisinam per virgam habend ipsis & hered suis in forma pdict (ur) Tenend de Dominis per virgam ad voluntat (ur) Dominorum secundum consuetud Manerii pdict (ur) per reddit (ur) servic & consuet (ur) inde prius debit (ur) & de jure con­suet (ur) Et dant Dominis de fine Et pd [...]ct (ur) I. N. fecit fidelitatem suam sed fidelitas dict (ur) E. respectu­atur, &c. Et admissi sunt inde Tenentes.

Admittance of a next Heir.

Cum ad Curiam Baron hic tentam xxix. die Feb. ult (ur) preterito compert (ur) fuit ꝑ Homaḡ quod W. M. Sen Arm citra tunc ult (ur) Curiam & ante Curia illam obiit seisit (ur) de diversis terris & tene­mentis Custom tent (ur) de Manerio pdict (ur) Et quod E. M. fuit neptis & prox' heres Domini W. M. sen Cumque etiam ad Cur Baron hic tenta vicesimo tertio die martii silit (ur) nunc ult (ur) preterit (ur) compt (ur) fuit per homaḡ quod pdict (ur) E. M. citra tunc ult (ur) Curiam & ante Curiam ill de terris customar predict (ur) inter all obiit seisita Et quod M. Vxor I. K. de, &c. gen Amita pdict (ur) E. & filia unica pdict (ur) W. M. fuit prox' heres dicte defuncte Mo­do ad hanc Curiam ven pdicta M. Et petit se Admitti ad tot (ur) illud Customarium Messuagium sive Tenementm in L. pdict (ur) communiter vocat (ur) sive cognit (ur) per nomen de, &c. cum Areis Gar­dinis & pertinentiis adinde spectantibus ac etiam ad totos illos separales Compos vel Clausa pasture & prati vocat (ur) le, &c. continen insimul per esti­mationem triginta Acr sive plus sive minus Que discendebant eid M. per mortem dicte E. cui Domini ꝑ Senescallum suum pdict (ur) concesser inde seisinam ꝑ virgam Habend sibi & here­dibus suis Tenend de Dominis per virgam ad voluntatem Dominorum secundum consue­tudinem Manerii predict (ur) per reddit (ur) servic & consuetud inde prius debit (ur) & de jure consuet (ur) & dat Dominis de fine & admissa est inde tenens sed fidelitas respectuatur, &c.

A Surrender by one in extremis by the hands of two customary Tenants, to the Use of his last Will, which is recited, To one for Life, the Remainder over, Tenant for Life surrenders to him in Remainder, on condi­tion in the Will contained.

Ad hanc Curiam Homaḡ pdict (ur) super Sacra­mentum suum pdict (ur) psentant quod nono die Iunii nunc ultimo preterito I. C. unus customar Te­nen Manerii pdict (ur) jacen in extremis infra Pa­rochiam de, &c. infra Maner p̄dict (ur) extra Curiam sursum redd in manus Dominoru Manerii pd per virgam secundum consuetud ejusdem Manerii per manus F. E. & S. S. custumar' Te­nen pdict (ur) Manerii Et jurat (ur) ad capiend sur­sum reddit (ur) in extremis tantum tot (ur) illud cu­stumar Messuagiu sive Tenementum suum cum ꝑtin adinde spectan scituat (ur) jacen & existen, &c. infra Parochia & cognit (ur) per nomen de, &c. tunc in tenura sive occupatione T. N. ad opus & usum ult (ur) voluntat (ur) sue in scriptis sub manu & sigillo suis & usus in ead declarat (ur) Quodque pdict (ur) I. C. post confectionem sursum redd pdict (ur) obiit seit (ur) Modo ad hanc Curiam ven A. C. vid mater pdict (ur) I. C. & ꝓtulit hic in Curiam ult (ur) volun­tatem sive Testament (ur) dic I. C. deb̄to modo fact (ur) & probat (ur) in Curiam, &c. geren dat (ur) decimo sexto die Iunii ultimo scilt (ur) pterito tenor cujus quoad Messuagium sive Tenementum pdict (ur) cum ꝑtinen sequitur in his verbis scilt (ur), Whereas I have sur­rendred into the hands of the Lord of the Ma­nor of, &c. by the hands of, &c. two customo­mary Tenants of the said Manor, all that my customary Tenement in, &c. commonly known by the sign of the, &c. with the appurtenances, to the use and behoof of my last Will and [Page 374] Testament. Now therefore my Will and mean­ing is, and I do hereby give, devise and be­queath the said Tenement with the Appurte­nances lying, &c. aforesaid to my loving Mother A. C. for and during her natural Life, and after her death I do give and devise the same to my Kinsman I. C. Son of I. C. and his heirs for ever, upon this condition, That he pay unto his Brother T. five pounds, and to his Brother S. five pounds, being the youngest Son of the said I. C. to be paid to them or their Heirs within one year next after the decease of my said Mother A. C. Et super hoc pdict (ur) A. C. petit se admitti ad pmissa pdict (ur) secundum for­mam & effectum Testam pdict (ur) pro termino vite sue naturalis Cui Dn̄i per Seneschallum suum pdict (ur) concesser inde seisinam per virgam habend sibi & Assign suis pro termino vite sue naturalis remanere inde in forma pdict (ur) Tenend de Do­minis per virgam ad voluntatem Domino­rum secundum consuetudinem Manerii pdict (ur) per reddit (ur) servic & consuetud inde prius debit (ur) & de jure consuet (ur) Et dat Dominis de fine fecit fide­litat (ur) & admissa est inde tenens Et postea sedente Curia predict (ur) A. C. sursum redd in manus Dominorum ꝑ manus Seneschalli sui pdict (ur) ꝑ virgam secundum consuetud Manerii pdict (ur) tot (ur) illud Messuagium sive Tenementum pdict (ur) cum pertin vocat (ur) sive cognit (ur) ꝑ nomen &c. & totum Sta­tu jus titul & interesse sua de & in eod ad opus & usum pdict (ur) I. C. filii I. C. hered & assign su­orum imperpetuum cui quidem I. fil psen hic in Cur Dn̄i ꝑ Senescallu suum pdict (ur) concesser inde seisinam ꝑ virgam habend sibi & heredibus suis sub conditionibus in ult (ur) voluntate sive Te­stamento pdict (ur) I. C. defuncti mentionat (ur) & contentis Tenend de Dominis per virgam ad voluntat Dominorum secundum consuetu­dinem [Page 375] Manerii predict (ur) per reddit (ur) servit (ur) & con­suetud inde prius debit (ur) & de jure consuet (ur) & dat Dominis de fine fecic fidelitat (ur) & admissus est inde tenens.

Licence to demise for years not exceeding one and thirty.

Ad hanc Cur Licentia conceditur M. O. vid ad dimittend &c. tria cl̄a terre in, &c. pdit (ur) alicui persone vel aliquibus personis pro aliquo termino annorum non Excendent (ur) Termin trigent (ur) & unius annorum a festo sui Mich̄is tunc ꝓx. sequence.

Presentment that the customary Tenant died seized, and that the Heir came not to take up the Land, and Proclamation made.

Ad hanc Curiam psentat (ur) est per homaḡ quod E. H. vid un Customar Tenen hujus Ma­nerii citra ult (ur) Cur & ante hanc Cur obiit seisit (ur) de uno Customar Messuagio vocat sive cognit (ur), &c. tent (ur) per Copiam Rotulorum Curie hujus Ma­nerii & quod W. E. est filius & prox. heres dicte E. & quia pdict (ur) W. non venit ad Capi­end premissa pdict (ur) extra manus Dominorum Ideo prima Proclamatio facta est.

Presentment that the Mony mentioned in a Surrender was not paid at the time, ideo pro­clamatio prima.

Ad hanc Curiam Homaḡ pdict (ur) super Sacra­ment (ur) suum pdict (ur) dicunt & presentant quod sum­ma Cent (ur) & triu librarum mentionat (ur) in sursum redd conditional fact (ur) per R. F. & S. Vxor ejus cuidam E. L. ad ult. general Cur tent (ur) pro [Page 376] Manerio pdict (ur) die martis in prima septimana Pas­che & solub̄ suꝑ decim Octavum diem Septem­bris ult (ur) pterit (ur) non fuit solut (ur) secundum dictam conditionem in dicta sursum redd specificat (ur) Et quia nullus venit, &c. Ideo prima proclamatio facta est.

A Fine respited at last Court, now taxed.

Ad hanc Curiam finis pro Admissione I. N. Iun & E. I. C. qui admiss̄ fuer ad ultimam generalem Curiam ad un Cl̄m terre continen per estimationem novem Acr jacen prope, &c. suꝑ sursum redd C. N. & A. Vxor' ejus nunc taxat (ur) ad decem libras solvend Senescallo Manerii pdict (ur) apud Cameram sua scituat (ur) in, & super festum sci T. A. nunc prox. sequen inter hor decima & duodecim ejusdem diei.

Presentment, That whereas a Surrender precedent was chargable with payment of 100 l. to M. when he should attain the age of 21 years or day of Marriage, which should first happen, and with a like Sum to A. payable in the same manner. M. upon receipt of the 100 l. re­leaseth, and the Surrendree secures the pay­ment of the other 100 l. to A. by Lease.

Ad hanc Cur compt (ur) est per Homaḡ quod pre­missa in sursum redd superius ult (ur) mentionat (ur) & sursum redd per super nominat (ur) I. D. ad T. B. & heredibus suis inter alia onerat (ur) fuer cum so­lutione summe Cent (ur) librarum legalis monete Anglie cuidam M. D. soror' pdict (ur) I. solvend cum attingerit ad etatem vigint (ur) & unius anno­rum vel ad diem maritagii primo contingen & cum summa al Cent (ur) librarum consimilis mone­te Anglie cuidam A. D. alteri sorori dic I. sol­vend [Page 377] in eodem modo prout ꝑ ultimam volunta­tem G. D. eorum Avi geren dat (ur) decimo quin­to die Augusti Anno Domini 1670. plenius ap­paret quodque pdicta M. etat (ur) suam vigint (ur) & unius annorum pimplevit Et ꝑ quoddam scriptum suum sub manu & sigillo suis debito modo fact (ur) & delibat (ur) geren dat (ur) primo die instantis Octo­bris cognovisse habuisse & recipisse de pdict L. B. pdict (ur) summam Cent (ur) librarum & ips' deinde & de omni inde parte & parcella ꝑ scriptum suum pdict (ur) acquietasset & exoneravisset ꝓut ꝑ eundem scriptum hic in Curiam prolat (ur) & ostensum plenius apparet quodque etiam pdict (ur) T. B. ꝑ securi­tate dicte summe Cent (ur) librarum pdict (ur) A. cum contingeret fore debit (ur)Indentur suam dimission geren dat (ur) quarto die instantis Octobris & fact (ur) inter pdict (ur) C. B. de una parte & pdict (ur) I. D. & A. D. ex altera parte barganisasset & vendi­disset pdict (ur) I. D. diversas parcellas terre in, &c. in ead Indentura ꝑticul mentionat (ur) pro terminono­nagint (ur) & novem Annorum a die dat (ur) Indenture pdict (ur) reddend & solvend ꝓut inde Annuat (ur) unum granum piperis si requisit (ur) foret cum proviso ꝓ solutione summe Cent (ur) libr pdict (ur) A. secundum veram intentionem ult (ur) volutat (ur) dic G. D. ꝓut per Indentur pdict (ur) silit (ur) hic in Cur ꝓut plenius liquet & apparet.

Presentment that several Copy-hold Lands were Infranchised by the Lord.

Ad hanc Curiam Homagium pdict (ur) suꝑ Sacra­mentum suum pdict (ur) presentant quod separalia Messuaḡ terre & Tenementa custumar cum per­tin separaliter in quindecim separalibus pa­ragraphiis sequen fuer' separaliter infranchizat (ur) ꝑ I. S. Arm nuper Dominum hujus Manerii Et feoda liberaque & Tenementa inde concessa [Page 378] fuer respectivis personis sequentibus & heredibus suis.

Vn Messuagium, &c. cum pertin vocat (ur), &c. in &c. concessn T. B. &c. & hered suis ad usum R. M. & al per Indenturas dimissionis & relax­ationis geren dat (ur) decimo sexto & decimo septi­mo diebus Octobris Anno Regni dict Domini Regis nunc, &c. primo.

Vnum clausum terre adjungen atrio pdict (ur) Messuagii vocat (ur), &c. continen duas Acras vel eo circiter concess̄ eisdem personis & hered suis ad usus pdict (ur) ꝑ consimiles factas Dimissiones & Re­lax. dat. &c.

Surrender on Condition.

Ad hanc Curiam testat (ur) est per Senescallu pdict (ur) ac comptu est ꝑ Homagium quod decimo quarto die Febr ult preterito I. M. un custumar tenen hujus Manerii ven coram S. C. Arm Senescallo per Paten Manerij pdict (ur) & extra Cu­riam viz. apud Cam̄am dicti Seneschalli scituat (ur) in interiori Templo London sursum redd in manus Dominorum pdict (ur) Manerii per ma­nus Senescalli sui pdict (ur) per virgam secundum consuetudinem pdict (ur) Manerii Omnia ill quatuor Messuagia sive Tenementa sua cum Curtilagio & ꝑtin adinde spectan scituat (ur) & existen in &c. infra Parochiam de C. B. & Manerium pdict (ur) Ad opus & usum R. H. de Parochia, &c. ac he­red & assign suoru imperpetuum sub conditione tamen quod si pdict (ur) I. M. Hered Executores Ad­ministratores vel Assign sui vel eorum aliquis bene & fidelit (ur) solvant seu solvi faciant pdicto R. H. Executoribus Administratoribus vel Assign suis plenam & justa summa 53 l. bone & legalis mone­te Anglie ad vel super 15 die Febr qui erit in Anno Domini 1691. ad vel in nunc Domo [Page 379] Mansional dicti R. H. scituat (ur) in, &c. pdict (ur) absque aliqua deductione vel detractione ex eadem pro vel in respectu alicujus taxationis Assessmentati so­luconis vel alicujus al mater vel rei cujuscunque Quod tunc ista sursumredd erit vacua alit (ur) in ple­na vi remanere.

Surrender to the Use of a youngest Son, con­ditional for payment of Mony at several days.

Ad hanc Curiam testat (ur) est ꝑ Seneschallum pdict ac compt (ur) & psentat (ur) est per Homagium Quod 28 die Febr ult (ur) preterit (ur) I. R. un customar Te­nen pdict (ur) Manerii Anna & Vxor ejus vener coram S. C. Arm Senescallo per Paten pdict (ur) Manerii & extra Curiam videl̄t apud Cam̄am dicti Seneschalli scituat (ur) in, &c. (& pdict (ur) Anna existen prius sola & secrete examinata ꝑ pdict (ur) Senescallum secundu consuetud pdict (ur) Manerii) sursum redd in manus Dominorum▪ pdict (ur) Mane­rii ꝑ manus Senescalli sui pdict (ur) per virgam Tot (ur) ill customar Messuagium sive Tent (ur) & sex Acras pasture adinde spectan (sit plus sive minus) cum omnibus Horreis Stabul Domibus extran Po­mariis Gardinis adinde simul cum Curtilagio & omnibus aliis ꝑtin scituat (ur) jacen & existen &c. & nunc in occupatione pdict (ur) I. R. vel subte­nen suorum nec non omnia alia custumar Mes­suaḡ terre tenementa & hereditamenta sua cum eorum pertin parcel pdict (ur) Manerii ad opus & usum I. H. filii natu minimi nuper de, &c. pdict (ur) defuncti ac hered & Assign suorum imperpetuum proviso semper & sub conditione tamen quod si pdict (ur) I. R. & A. Vxor ejus vel eorum alt (ur) Hered Ex­ecutor Administratoru & Assign eorum vel eorum alterius solvant seu solvi faciant pdict (ur) M. H. Executoribus Administratoribus vel Assign [Page 380] suis summam 261 l. & 5 s. bone & legalis mo­nete Anglie absque aliqua deductione taxation vel aliis publicis oneribus quibuscunque modo & forma sequen (viz.) 5 l. 12 s. 6 d. partem inde super octavum diem Septembris tunc prox. sequen & 255 l. 12 s. 6 d. resid. inde suꝑ octavn diem Martii qui erit in Anno Domini, 1693. quod tunc ista sursumredd erit vacua alit. in plena vi & virtute remanere.

A Surrender and Release for consideration of 400 l.

Ad hanc Curiam testat (ur) est per Senescallum pdict (ur) ac compertu & presentat (ur) est ꝑ homagium quod 28 die Febr ult (ur) preterit (ur) S. D. unus customar tenen pdict (ur) Manerii ven coram A. B. Arm Se­nescallo per paten pdict (ur) Manerii & extra Cur (viz.) apud Cameram dicti Seneschalli scituat (ur) in, &c. in consideratione 400 l. bone & legalis monete Angl sibi in manibus solut (ur) ad et ante Execution hujus sursu Redd & Relaxationis per S. B. de London vid Recepc̄on cujus ipse per­inde cognovit & exoneravit pdict (ur) S. B. Hered Execut (ur) & Administr suis imperpetun per presen­tes ipse pdict (ur) S. D. ꝑ virgam secundum consue­tudinem Manerii pdict (ur) sursum redd remittebat relaxabat & imperpetuum quiete clamabat pdict (ur) S. B. tot (ur) il customar messuagium sive tene­mentum scituat (ur) & existen in, &c. infra Maneriu pdict (ur) cu omnibus areis horreis & curtilaḡ adinde spectan vel pertin ac etiam omnia illa quatuor separal clausa pastur jacen pone pdict (ur) Messua­gium continenestimation octodecim Acra (sint plus sive minus) coīter vocat (ur) sive cognit (ur) ꝑ nomen de, &c. & nunc vel nuper in tenura sive occupati­one N. T. Hered vel Assign suorum simul cum omnibus coīis ꝓficuis com̄oditatibus & advanta­giis [Page 381] adinde spectan & totu statu rectu titulu interesse usu possessionem ꝓprietat (ur) clamiu & demand quecunque pdict (ur) S. D. tam in lege quam in equitate de in & ad pdict (ur) Messuaḡ vel Tene­menta clausa & pmissa cu suis ptin habend pd S. B. Hered, & Assign suis ad usu ipsius Hered & Assign suor imperpetuu secundu consuetud Manerii pd ꝑ reddit (ur) consuetud & servic deinde de jure debit (ur) & accustomat (ur) que quidem S. B. presens hic in Cur petit se admitti ad pmissa pdict (ur) cui Dominus ꝑ Seneschallu suu pdict (ur) concessit inde seisinam per virgam habend sibi & hered suis te­nend de Dominis ꝑ virgam in Villenagio ad vo­lunt (ur) Dominoru secundum consuetudinem Mane­rii pdict (ur) ꝑ reddit (ur) servic & consuetud inde prius debit (ur) & de jure consuet (ur) & nil sol ꝓ fine quia remittit (ur) fecit fidelitat (ur) & admissa & inde tenens.

Surrender to the Use of ones last Will, to which a Codicil is annexed, and which is present­ed by the Jury, and Admittance to Tenant for Life.

Hanc ad Curia Baron hic tenta 15 die Febr Anno Dn̄i 1689. comꝑtu & psentat (ur) fuit per tunc Homagiu qd vicesimo quarto die Augusti tunc ult (ur) preterit (ur) W: H. un custom Tenen pdict (ur) Manerii secundum consuet (ur) ejusdem Manerii sursu redd tot (ur) Messuagiu sive Tenementu suu com­munit (ur) cognit (ur) per nomen de, &c. infra Man pdict (ur) simul cum curtilagiis & ꝑtin adinde spectan ad usum ultime vol sive Testamenti sui sub manu & Sigillo suo in scriptis modo ad hanc Cur present (ur) est ꝑ homagium qd pdict (ur) W. H. obiit seit (ur) de Mes­suagio predict (ur) cum pertin & in plen & aperta Cur C. H. [...]id & relicta Dn̄i W. in propria persona sua ven & protulic hic in Cur ult (ur) vol sive Testa­mentum dicti W. nuꝑ viri sui defunct (ur) debito mo­do [Page 382] fact (ur) & probat (ur) in Cur Prerogativa Cantuarge­ren dat (ur) 26 die Augusti Anno Domini 1689. cu­jus tenor quoad pmissa pdict (ur) sequitur in his ver­bis sequen (viz.) Item, I give and bequeath the said Messuage or Tenement with the Ap­purtenances unto, &c. my now Wife, for and during the term of her natural Life, together with all the Rents, Issues and Profits arising or co­ming from the same, and after her decease, &c. Et ꝑ Codicilla dicto testam annex' & cum eadem ꝓbat (ur) continentem sic (viz.) Whereas I have be­queathed unto my loving Cousin, &c. ꝓut per eandem volunctat (ur) & codicil int (ur) alia plenius liquet & apparet Et super inde pdict (ur) C. petit se admitti ad Messuagin sive tenementu & curtilaḡ pdict (ur) cu pertin ꝓ termino vite sue naturalis secundum for­mam & effectu testamenti pdict (ur) cui Domini ꝑ Se­neschallu suu pdict (ur) concesser inde seisinam ꝑ vir­gam habendu sibi & Assign suis pro termino vite sue naturalis remanere in forma pdict (ur) tenend de Dn̄is ꝓ virgam ad vol Dominoru secundu con­suetud & dat Dominis de fine ꝓut patet in mar­gine fecit fidelit (ur) & admiss. est inde tenens.

Second Proclamation for not coming in and ta­king up the Estate.

Ad hanc Curia quia A. B. non ven ad capiend unu custom Tenement (ur) cum pertin in, &c. pdict (ur) vocat (ur), &. extra manus Dominoru ad usu ejusdem I. sursu redd ꝑ T. B. vicesimo sexto die Novem­bris Anno Domini 1689. Ideo secunda Proclam facta est.

Acknowledgment by the Lord that the Copy-hold is Infranchised.

Ad hanc Curia (ad special Instanc & requisic C. P. Arm filii & Heredis nuꝑ de E. in Com H. Militis defunct (ur) Domini Manerii pdict (ur)Se­nescaiu suu pdict (ur) Recognover quod unu Messu­agiu sive Tenementum olim Cottagiu necnon duo Campi prati sive pasture adinde spectan un eoru voc &c. & alter eoru vocat (ur), &c. continen insimul ꝑ estimac̄on quatuordecim Acras sive plus sive minus ac nunc divis in quatuor cla in oc­cupatione C. M. Gen vel Assign suor scituat (ur) ja­cen & existen in E. pdict (ur) ac aliquando Terre sive possession B. M. defunct (ur) & per ipsu tent (ur) de tunc Domino hujus Manerii per Copiam Rotulor Cur ac per virgam in villenagio ad voluntat (ur) Domini secundum consuetud Manerii pdict (ur) ꝑ reddit (ur) octo so­lidorannu Et al servic postea ꝑ Dominu Ma­nerii pdict (ur) infranchisat (ur) fuer ac & reverc̄o inde deb. concess. fuer' T. B. Arm tunc filio & heredi ap­pren R. B. Mil & heredibus & Assign. pdict (ur) T. imperpetuu.

Admittance by Gardian.

Compertu est per Homagiu quod vicesimo die Novembris ult (ur) pterito Domini hujus Manerii extra Curia Administ (ur) T. H. ꝑ Gardian suu ad, &c. ut filiu & hered I. H. Gen nuꝑ Pr̄is sui defunct (ur).

Tertia Proclamatio quia tenens non venit▪ ad capiend, &c. & seisin per Ballivum.

Ad hanc Cur quia I. V. non ven ad capi­end Vn Custum Tentu extra manus Domino­ru [Page 384] ad usu ejusdem I. ꝑ T. B. sursu redd 26 No­vembris 1689. Ideo tertia Proclamatio facta est Et suꝑ hoc pcept (ur) est Ball quod seisiri fac in ma­nus Dominoru Tenement (ur) pdict (ur) cu ꝑtin, &c.

Licence to demise and fine pro Licencia.

Ad hanc Cur Domini Manerii pdict (ur) con­cesser Licencc I. R. Arm ad dimittend omnia & singula customar Messuaḡ terras & Tenementa sua infra Maneriu pdict (ur) alic ꝑsone vel ꝑsonis ꝑ aliq̄ termino Annoru non exceden terminu 21 Annor a Festo die Nativitatis Sancti Iohannis Baptiste ull̄ pterito computand Et prefat (ur) I. R. dat (ur) Dn̄is de fine pro hac licenc ꝓut patet in Mar­gine.

THE INDEX.

A.
  • ADmittance.
  • The nature and effect of Admittance upon a Surrender 143
  • Of what force the Surrender is till admission ibid.
  • Where the Lords Admittance of a Copy-holder in other manner then agrees with the Surrender shall be good, and how it shall enure. 142
  • Admittances that differ from the Limitations alter not the Estate Surrendred 145
  • The Lord compellable to make Admittance, though not a Grant 157
  • The Law vests the Estate in a Woman that is to hold durante viduitate before Admittance 146
  • By whom Admittances may be ibid.
  • What amounts to an Admittance 147
  • In what cases the Admittance of one shall be the Ad­mittance of another 148
  • Admittance by Attorny may not be 149
  • The time of being admitted 151
  • Admittance upon Discent 150
  • [Page]What things the Heir may do or not do before Admit­tance 151
  • Admittance where to be made 150
  • In what Cases and to what purposes the Copy-hold E­state shall be in the Tenant before Admittance, and to what purposes not 155
  • Where there need no Admittance 154
  • In what cases the Lord shall be compelled to make Ad­mittances 157
  • Actions, Suits.
  • What Actions may be brought by the Lord 256
  • What Actions may be brought by the Copy-holder 256, 257, 258
  • What Actions the Copy-holder shall have against Strangers 258
  • Action on the Case by a Copy-holder for digging Turfs on the Common, and Narr' 261
  • No Actions or Remedies for Fines, Rents, Amercia­ment after Sale of the Manor 263
  • Of Copy-holders being impleaded and impleadable in the Lords Courts, and the remedy there, and how to be relieved against faux Judgment there 265
  • Copy-holder shall not have Assise against his Lord ibid.
  • Copy-hold Inheritance shall not be Assets in the Heirs hands 267
  • Where Attornment is necessary to the passing of a Ma­nor, and where not 9
  • Attornment not necessary in the Grant of a Reversion of a Copy-hold
  • Authority must be strictly persued
  • Avowry for Rent by Lessee of a Copy-holder 262
  • Action must be brought in the name of a Copy-holder Lunatick, and not in the name of the Committees 263
  • Acceptance of a Lease by the Tenant destroys the Copy-hold 225
  • Action on the Case lyes against the Lord for non-Ad­mittance [Page] by the Surrendror, but not by Cesty que use
  • Chancery will compel the Lord to admit a Tenant 321
  • Admittance, where it shall be pleaded as a Grant 271
B.
  • Baron and Feme.
  • Custom, That the Wife Feme Covert may devise, good 55
  • Where the severance of the customary Tenants from the Manor shall not prejudice the Wife in her custo­mary Estate 5
  • If the Lord enfeoff the Copy-holder, this destroys the Widows Free-Bench 56
  • Of the transferring and assigning the Copy-hold Estate of a Bankrupts, by Commissioners 251
  • Where and what acts of the Husband shall forfeit the Wives Estate or not 211
  • Copy-holds within the Statutes of Bankrupts 201
  • Of customary By-Laws 48
C.
  • Original and nature of Copy-holds 1
  • Copy-hold created and guided by Custom 28
  • How a Copy Copy-holder and bare Tenant at Will dif­fer 14
  • Three sorts of Copy-holders 70
  • Who may be said to be customary Tenants, and in what respects
  • What Evidence Copy-holders have for their Estates
  • Copy-holders may have Sola & separalis pastura in the Lords Soyl, and exclude the Lord▪ 66
  • [Page]Where a Copy-holder shall hold his Land charged by the Lord or the Copy-holder as to Dower, Rents Charge and Statutes and how and where they shall be avoided 233
  • Custom.
  • The Nature of it 25
  • To be taken strictly, and in many cases Cases Secun­dum vulgarem conceptum cannot extend out of the Manor 29
  • What is a good Custom or not, and what things are re­quired to the making a good Custom 30
  • How Customs ought to be certain 32
  • Of the reasonableness of Customs, and when they are said to be unreasonable or not 33
  • Several Customs in several places 35
  • Three supporters of Copy-hold Custom 36
  • Of Customs enabling or disabling 36, 37
  • Where a Custom shall be said to be pursued or not 43
  • Where one shall be Tenant by the Curtesie of a Copy-hold without Admittance of the Wife 86
  • Where Copy-hold is extinct, Common is lost 62
  • Severance by the Lord shall not prejudice the Commo­ner 41, 62
  • The nature of a Court Baron 73
  • Courts may be held out of the Manor by Custom, and where 75
  • Of warning of Courts being holden at what place
  • Relief for a Copy-holder in Chancery in many Cases where none is at Law 319
  • Chancery will design the bounds of Fines and of a Copy-hold, but not whether parcel or not parcel 321
  • The Lord Decreed to hold a Court 324
  • Fines and Rents arrear not relieved after the Sale of the Manor 324
  • Composition decreed
  • Statute 32 H. 8. cap. 7. against Champertry, extends to Copy-hold 251
  • [Page]Copy-hold is not within Statute 31 Eliz. of Cottages 254
  • Copy-hold is not within the Stat. 32 H. 8. Of Entrys for Conditions broken 150
D.
  • Demesns, what 3
  • Dimis. & dimissib. how to be understood
  • Custom extends not to collateral Discents
  • Discent of a Copy-hold Tolls not an Entry 68
  • Where the Heir shall be in by Discent or Purchase
  • Copy-hold Estates how discontinued or not
  • Surrender makes not a Discontinuance 175▪ 176
  • What shall amount to a Discontinuance 69
  • Distress, Avowry for Rent of a Copy-hold 236
  • Copy-holders Beasts distrainable or not, for a Rent Charge 236
  • What shall be said a Disseisin as to Copy-hold Estates or not 255
  • Whether in Declaration in Ejectment the Plaintiff need to shew that the Lease was warranted by the Custom 257
  • Declaration by a Copy-holder, That he is seised in Do­minico suo ut de feodo secundum consuetud. Manerii, and also must shew that they are custo­mary Lands 268
  • Presidents of Declarations ibid.
E.
  • Exposition of words.
  • Dimiss. & Dimissibile 16
  • Solum modo 44
  • Cum pertin. 92, 94
  • Ejectment brought by Copy-holder, and how to declare 257, 259
  • Emblements, who shall have them upon a Ferfeiture 219, 220, 254
  • [Page] Evidence.
  • What shall be good Evidence to prove a Custom 305
  • Special Customs within several Limits ought to be shewed 306
  • Custom found 306, 307
  • Evidence of Prescription 307, 308
  • Where proof by Court Rolls are good Evidence 309
  • Copy of a Lease, where good Evidence ibid.
  • Who and what may be admitted to give Evidence Steward, Court Books, &c. ibid.
  • Extingushment.
  • A Copy-hold may be extinct as to the Services, and remain as to the Customary Estate
  • Copy-hold though severed from the Manor by the Lords act, is not destroyed 222
  • Acceptance of a Lease by the Tenant destroys the Copy-hold 225
  • Copy-hold extinct by the Copy-holders Release to the Lord, and where or how a Right to a Copy-hold shall shall be exinct by a Release 226, 228
  • Copy-hold suspended and revived 230, 231
  • After Escheat of a Copy-hold, the Wife shall not be en­dowed 233
  • The Statute of VV. 2. that gives Elegits, extends not to Copy-hold 253
F.
  • Copy-hold Estates are within the words and intention of the Statute of Fines and non-claim 247, 248
  • Of Copy-holder compounding for a Fine
  • Fine on Admittance, when to be paid 159
  • Of Fines certain 159
  • What Evidence shall prove the uncertainty of Fines 160
  • Excessive Fines, how to be determined 160
  • [Page]What Customs are good as to payment of Fines, and what not 161
  • Fine, by whom to be Assessed 162
  • For every several Tenure, several Fines 163
  • How the Lord shall recover his Fine 164
  • Difference as to what may pass by a Fine, or be barred by a Fine at Common Law 176
  • Outragious Fines relieved in Chancery Forfeiture. 319
  • Notice must be given if the Fines be uncertain, before there can be a Forfeiture 198
  • Refusal to pay an excessive Fine, no Forfeiture 198
  • What shall amount to a Forfeiture of a Copy-hold Estate 69, 194, 195
  • Refusal to pay Rent, perform Services, or Suit of Court, when they shall be cause of Forfeitures 195
  • What words of denyal amount to a Forfeiture 197
  • Demand must be made of the person of a Tenant for a Fine, or else non-payment is not a Forfeiture 198
  • Surrender by a Copy-holder for Life to one in Fee, is no Forfeiture
  • What is a present Forfeiture without presentment 199
  • Heir beyond Sea shall not forfeit for not coming in upon Proclamation in Court 202
  • Wilful Forfeitures not relieved in Chancery 320
  • Where the Wife shall suffer for the Forfeiture of her Husband or not 211
  • Forfeiture as to cutting of Trees by Tenant for Life 207, 208
  • Where Admittance is a Dispensation of a Forfeiture 217
  • Where Amerciament is a Dispensation of a Forfeiture ibid.
  • Forfeiture purged by Release ibid.
  • Where, and what Acceptance is a Dispensation of a Forfeiture, and where and what not 218
  • Where the Heir shall not take advantage of a Forfei­ture in the Life of the Ancestor 219
  • [Page]The Lords Remedy for a Forfeiture 220
  • Bill in Chancery to reverse a Faux Judgment given in the Lords Court 326
  • What alienations shall be a Forfeiture 206
  • Forfeiture in Waste 207
  • By Rescous 216
  • By Inclosure 210
  • After a Copy-hold is dismembred from the Manor, of what Forfeitures the Feoffee or Grantee shall take ad­vantage 212
  • Where the Forfeiture of one Copyholder is the Forfei­ture of another; where Forfeiture of part shall be of the whole 214, 215
G.
  • By the Kings Grant of all his Demesn Lands, Copy-hold shall not pass, aliter in the case of another
  • What things may be granted by Copy 78
  • Of voluntary Grants by the Lord 79, 80
  • Disability of the Lords person no hindrance of the Grant 80
  • What Estate the Lord must have to enable him to make Grants 81, 82
  • Voluntary Estates granted during the time of the Lords Interest shall be good, though the Lords Estate be avoided, ab initio 84
  • Grants by Tenant at sufferance, or one that has a tor­tious Title, not good 86, 87
  • Copy-hold not to be granted by parcels 89
  • What amounts to a Grant 90
  • How Grants of a Copy-hold to be expounded 90, 91, 92
  • What shall pass in a Grant by the words cum perti­nentiis 92, 94
  • By what words in Grants Copy-holds shall pass or not 92, 93
H.
  • [Page]Honour, what 311
  • Where the Heir shall be in by discent or Purchase 123
  • Heir before Admittance is not a compleat Tenant to all purposes
  • Hariot Service and Hariot Custom, the difference 237, 238
  • What Custom for Hariots▪ shall be good or not 239
  • Where and how Hariots shall be apportioned, or not 240
  • Who shall pay an Hariot, and when and when not
  • Who shall have an Hariot 241
  • Pleading as to Hariot, vide Tit. Pleading.
  • What shall be a good Avowry in conuzance for an Harriot in Replevin, or a good justification in Tres­pass or not, and how to be pleaded 244
I.
  • Infant not bound by many Customs 21
  • If Infant Surrender, he may enter at full Age 21
  • Infant may make a Lease without Licence, and not forfeit 21
  • Surrender by Infant at five years old
  • Custom to assign one to take the profits of a Copy-hold Infant
  • Interruption in the Possession and in the Right 32, 42
  • Faux Jugdment given in the Lords Court, where re­lievable
  • Copy-hold Lands are not within the Statute 11 H. 7. cap. 20. Of Joyntresses 254
  • The Lord to have the custody of an Ideot 17
K.
  • Kings Grants favourably construed 32
  • [Page]King need not reci