to him might have been barr'd and interrupted by non-claim so in case of forfeiture the reason of the Rule is because the Law conceives he will have that knowledge to preserve his right when he is of full Age Carter's Rep. 86. in Smith and Painton's Case It was holden in Rumny and Eve's Case Not bound during his Minority to pray Admittance 1 Leon. p. 100 Pl. 128. If a Copy-holder dyeth his Heir within Age he is not bound to come into any Court during his non-age to pray admittance or to tender his Fine An Infant who surrenders his Copy-hold Land within Age may enter at his full Age Infant Surrenders he may enter at full Age. without being put to any Suit for it A Case cited in Popham 39. in Bullock and Dibler's Case Infant Copy-holder in Fee makes a Lease for years without Licence Infant shall not forfeit by making a Lease without Licence Acceptance at full Age makes it good to Lessee rendring Rent at full Age he accepts the Rent and after outs the Lessee Lessee brings Ejectment and Judgment for Lessee Per Cur. this Lease may be affirmed by acceptance and such a Forfeiture shall not bind an Infant 8 Rep. 44. Noy 92. Of Copy-holds and Copy-holders in respect of the King and his Prerogative Per Stat. 2 Ed. 6. Cap. 8. Copy-holders shall enjoy their Estates where the King is intituled by Office though they be not found by Inquisition The Statute of Chantries gives no Copy-hold Land to the King 1 Ed. 6.14 The Estates of the Kings Copy-holders confirmed by Decree in the Exchequer or Dutchy-Chamber shall be good according to the same Decree Stat. 7 Jac. Cap. 21. A Popish Recusant shall forfeit all his Copy-hold Land 35 Eliz. Cap. 2. Whether the King shall have the Copy-hold granted in Trust for an Alien It was a Question in Car. 1. between the King and Holland whether the King shall have a Copy-hold which is granted to one in Trust for an Alien The better Opinion seems to be that he shall Styles Rep. p. 20.37 75. Vide this Case Reported in Rolls 1. Abr. 194. Tit. Alien If an Alien Amy Purchase Copy-hold in Fee in the Name of J. S. in Trust for himself and his Heirs It was a great Question and much Argued whether the King shall have the Trust of this Copy-hold but no Opinion given as to this Point But the Trust being traversed and found for the King yet Judgment was given against the King because by the Inquisition by which this Trust and matter was found J. S. who was the person trusted and who had the Estate in Fee in the Law in him Where the King hath no possion by force of the Inquisition was put out of possession of it by the Inquisition where the Alien had but the Trust and no possession and therefore admitting that the Trust should have been given to the King yet the King may not have the possession by force of this but ought to have sued to have the Trust executed in a Court of Equity The King is seized of a Manor in Fee in which is a Copy-hold demisable at Will according to the Custom of the Manor The King demised this Copy-hold to J. G. for Life King need not recite in his Grant that it is Copy-hold by Letters Patents J. G. dyes The great Question was if it be destroyed or the King may grant it again by Copy Per Cur. 1. The King need not recite in the Grant that it is Copy-hold 24 H. 8.21 2. Copy-holder for Life dyes the King may regrant That after the Estate for Life determined the King may grant this House and Land again by Copy of Court Roll It is otherwise in the Case of a common person The Rule That a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind a Common person The Kings Gifts shall be taken favourably and not extended to two intents where there is no necessity for it Kings Grants favourably construed as there is not here and we are not here to intend a collateral intent and so the Copy-hold is not destroyed for the Law takes care to preserve the Inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copy-hold viz. to have Common Stiles p. 266. Cremer and Burnet If a Bishop Tenant in Tayl for Life or Years le ts a Copy-hold yet this shall not bind the Successor Issue in Tayl or him in Reversion to grant this by Copy again neither shall it bind an Infant Lord of Manor and the Estates and Possessions of the King are in like manner under the protection of the Law And if this Copy-hold should be extinguished Extinguishment perhaps a common Appendant or Appurtenant would be lost 2 Rolls Abr. p. 197. mesme Case If the King grants a Manor in which are Copy-holders in Fee-farm the Lands or Goods of the Copy-holder are not lyable to the Fee-farm Rent although the Freehold is Fee-Farm Rent because the Copy-holders are elder than the Rent being by Prescription 2 Rolls Abridgment p. 157. Loss of Issues If the Lord of a Manor lose Issues being summoned upon a Jury Process shall issue out of the Exchequer to levy them upon the Lands of the Copy-holders Lessees for Life or Years for the loss of Issues lyes upon the Land as an inherent Servitude by the Law in whose Hands soever it comes 1 Rolls Abr. 157. Surrender to the King without other matter of Record A Surrender of a Copy-hold to the King Lord of a Manor was in Lee and Boothby's Case 1 Keb. 720. adjudged good without other matter of Record All the Demesn Lands The King grants all his Demesn Lands in W. his Copy-hold Lands shall not pass Aliter in a common person 1 Rep. 46. Alton Wood's Case CAP. IV. The Nature of Custom in general Maxims of Customs What things are requisite to make a good Custom Time out of Memory Explained What shall be said to be an Interruption of Custom or not The reasonableness of Customs how to be judged of Several particular Customs Ratione Loci Of Customs enabling and disabling Of Customs and Prescriptions their difference and the different manner of Pleading them The several sorts of Prescription and how Prescription to be made and when and when not and by whom And when a Custom shall be said to be pursued or not Custom The Nature of Custom in general A Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record But being only matter of Fact and consisting in Use and Practice it can be recorded and registred no where but in the Memory of the People For a Custom taketh beginning and
and how they differ What Customs for Harriots are good or not Where they shall be apportioned and by whose Acts. Who shall pay Harriot or not and the Pleadings CAP. XXVI What Statutes extend to Copy-hold Lands and within what Statutes Copy-hold Lands shall be contained by Construction of Law without express words and what not and therein how Copy-holds shall be barred by Fine and non-claim c. CAP. XXVII Of Embleaments Who shall have them the Lord or the Copy-holder CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not CAP. XXIX Of Actions and Suits What Actions may be brought by the Lord and what Actions may be brought by Copy-holders or their Executors against the Lord or against Strangers in respect to their Copy-hold Estates and Priviledges CAP. XXX Of Copy-holders being impleaded and impleadable in the Lords Court and a Faux Judgment in the Lords Court and how and where to be relieved CAP. XXXI Of Declarations of for and concerning Copy-hold Estates how to be brought and laid and Presidents in what Cases they have been brought CAP. XXXII Of Pleadings The general Rules of Pleading as to Copy-hold Estates The different Forms of Pleading Customs and Prescriptions Of Pleading in reference to Common belonging to Copy-hold and when to be pleaded by way of Custom or by way of Prescription The manner of Pleading when a Lease is to be answered which is set forth in the Avowry Where in pleading the Commencement of the Estate must be shewed and by whom granted or not And how a Licence must be pleaded by the Lessee Prescription of Copy-holder to be discharged of Tythes how to be pleaded Of Traverses when how and where to be taken Forms of Pleading of Surrenders Admittances Estates in Fee Tayl for Lives or Years Pleadings of Presentments and Grants Presidents of bars by Commons Woods Ways Inclosures Forfeitures and all other Pleadings necessary for the Copy-holder to set forth his Title or defend it CAP. XXXIV Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not What shall be tryed by the Jury and what by the Court Rolls Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be tryed Venue CAP. XXXIV Of Special Verdicts Imperfect Custom not well found Failure of Prescription How the Custom must be found by the Jury Presidents of special Verdicts CAP. XXXV How and in what Cases Copy-holders have been relieved in Chancery Presidents of Conveyances respecting Copy-hold Estates and Presidents of Surrenders Grants Admittances Presentments Lex Custumaria OR A TREATISE OF Copy-hold ESTATES c. CAP. I. Of the Original and Nature of a Manor and of what it consists Of a Manor Real and by Reputation Of a Customary Manor Of Grants and Leases of Manors with respect to this Subject of Copy-holds and what shall be said Parcel of a Manor or what shall be said a Severance FOR the right understanding of the Law as to Copy-hold Estates it 's necessary to premise something of the Nature and Notion of a Manor upon which they depend as the Materia though Custom is the Form thereof And I shall say no more of Manors than what shall have a direct influence upon the Explication of the nature of Copy-hold Original of Manors As for the Original of Manors Take this brief Account out of Perkins 670. Horns Mirror Lib. 1. Cap. de Roy Alfred Fulbeck f. 18. Lambert verbo Thaine Bacon's Elements of the Law 41 42 c. The ancient Kings of this Realm who had all the Lands of England in Demesn that is in their own Hands or totally at their own disposal did grant a certain compass or circuit of Ground upon some great Personages with liberty to parcel out the Lands to other inferior Tenants reserving such Duties and Services as they thought fit with power to keep Courts where they might redress Misdemeanors within such their Precincts and decide Controversies of meum and tuum within their Jurisdictions these Lords and Noblemen performing such Services and paying and yielding such Rents as the said Kings by their Grants reserved These Grantees were called Barons and were such as came to Parliament and from thence it keeps the name of Court Baron to this day though in process of time by the Grants of such Barons these Lands and Manors came into the Hands of meaner Men by Purchase c. as it is at this day And according to this our Custom all Lands holden in Fee throughout France are divided into Feifs and Arrear-Feifs into Feifs or Knights Fees and Mesne Fees whereof the former are such as were granted by the King the second such as the Kings Feudatories do again grant to others Now by Justice Winch in his Argument in the Case of Rowles and Mason 2 Brownlow 195. Manors are divided into three sorts of Tenures 1. The first holds by Knight Service and this is for defence of the Lord. 2. The second holds by Socage and this is to Plow and Manure the Demesns of the Lord c. since turn'd into Rent 3. The third holds by base Tenure and these are at the will of the Lord and these were to do Services and some had greater Priviledges than others to encourage them to perform their Services as it is in Ireland at this day Out of these by length of time and Custom sprang up the Race of Copy-holders For the Name or Etymology of the word Manor Etymology some fancy it to be Manerium quasi Manurium from manuring the Ground and then it takes its Name either from the Lords Demesns which the Tenants are bound to Manure or from the Lands remaining in the Tenants hands and others with more probability think it to be derived from the French word Mesner to govern or guide because the Lord hath the government of the Tenants within his Jurisdiction But that I may come to the thing intended and to leave the flourishes of guess and fancy It is a Maxim common in our Books Of what a Manor consists Demesns what That a Manor consists of Demesns and Services As for the word Demesns Dominicum or Domainium it is taken it two senses It is most properly taken for those Lands which remain in the Kings hands and so all Subjects are excluded from being seized in Dominico and we have little of that now but ancient Demesn Lands which are such as were in the hands of King Edward the Confessor But in a sense less proper Demesn Lands may be said to be in the hands of an inferior Lord or Tenant and as my Lord Coke on Littleton f. observes the form of Pleading shews this difference for an inferior Lord or Tenant never pleads That he is seized in Dominico absolutely but qualified with this addition in dominico suo ut de feodo Pleading and the word Fee or Feif implies that his Estate is not absolute but depending on some superior Lord. So
4. Rep. 29. Bunting and Lepingwel 5. Copy-hold ought to be dimissa dimissibilis as it is in Murrels Case 4 Rep. vide infra Tit. Custom Yet this Rule is not Infallible For if a Copy-hold Land be in the hand of a Subject who is after preferred to Dignity Royal the Copy-hold is extinct for it is below the Majesty of a King to perform servile Services and yet after his Decease the next who hath right shall be admitted and the Tenure shall be revived in him 2 Siderfin 82. CAP. III. Priviledges of Copy-hold Estates 1. Priviledges of the Lord. 2. Of the Tenant 3. Priviledges of Infants Copy-holders 4. Of Copy-holds in respect of the Kings Prerogative and Priviledge BEfore I come to Treat farther of Copy-holds I thought it might not be amiss to set down the Priviledges of Copy-holders and Lords and Prerogative of the King that so the Student being well setled in these they need not be mentioned or explicated hereafter though they may lye here and there scattered in the following Cases Priviledges of the Lord. The Lord may upon Seizure of a Copy-hold maintain an Ejectment till the Heir come to be admitted 1 Keb. 287. Pateson and Danges The King shall not have the custody of the Land that the Ideot holds by Copy The Lord to have the custody of an Ideot for this is no more than an Estate at Will at Common Law and if the King should have the custody of the Land he would much prejudice the Lord. Yet alienation made of it by the Ideot after Office found shall be avoided Coke 4 Rep. 126. Beverly's Case Copy-hold Lands granted to three for the Lives of two if the Tenants pur auter vie dye Living cesty que vie the Lord shall have it for there shall no be Occupancy 1 Rolls Abridg. 511. Ven and Howel's Case No Occupancy The Lord shall have the custody and not the Prochein Amy. The Copy-holder is surdus mutus the Lord shall have the Custody and not the Prochein Amy for otherwise he should be prejudiced in his Rents and Services Cro. Jac. 105. Evers and Skinner The Lord is Chancellor in his own Court to dispose of the Estate when the Tenant leaves it uncertain Vide infra sub Tit. Customs in reference to Estates sparsim per tout If a Copy-holder surrender to the use of one and the Lord refuseth to admit him no Action of the Case lyeth against him so if such Copy-holder prays the Lord to hold a Court and he refuseth Where a Surrender is to be made to a Tenant of the Manor if he will not take such Surrender yet no Action of the Case lyes against him 1 Rolls Abr. 108. In what capacity the Lord stands in reference to the Copy-holder's Estate He is an Instrument of Conveyance upon Surrenders and a Conveyer himself upon voluntary Grants He is Chancellor in his own Court and may proceed by Bill vide infra Of the Priviledges of Copy-holders In this Chapter I shall sum up some general Priviledges of Copy-holders which lye scattered in the several Customs hereafter treated of A Copy-holder may make a Lease for a year without Licence of the Lord vide Lease Lease Copy-holders of a Manor may have Solam separalem pasturam in the Soyl of the Lord Sola separalis pastura and exclude him 2 Sanders 326 327 328. If a man be obliged in a Statute Staple Stat. Staple Elegit his Copy-hold Land is not extendible but aliter upon a Statute of Bankrupts vide Tit. Grant It s not extendible upon Elegit If a Copy-holder Lease for years by Licence of the Lord this is not extendible in the Hands of the Lessee Rolls Abr. 888. Picto's Case Copy-holder of Inheritance may dig for Mines in his Land So the Parson in his Glebe as it seems Siderfin p. 152. The Lord of Rutland against Gee per Hobart and Warburton Copy-holder may dig for Marle without any danger of Forfeiture Digging for Marle but he ought to lay the said Marle upon the same Copy-hold Land Winch p. 8. A Custom is that the Lord of a Manor may dig for Coals and open Mines in the Land of his Copy-holder Coals It was made a doubt in Goodrick and Gascoin's Case if Lessee of the Manor may have this liberty and whether such liberty can pass by Grant of the Manor without special words Latch p. 189. A Copy-holder may hedge and enclose but not where it was never enclosed before Winch p. 8. Note a difference between Priviledges which are annexed to the Seigniory and Priviledges annexed to the Tenancy The first the Lord may destroy but not the last Therefore If Tenant at Will be Out-lawed his Estate is determined Outlawry but a Copy-hold is not forfeited or determined by Outlawry Lit. Rep. 234. cited to be adjudged in 44 Eliz. Yet vide 1 Leon. p. 99. Where a Copy-holder is Outlawed the King shall have the Profits of his Copy-hold Lands and the Lord hath not any remedy for the Rent If the King grants a Manor in which are Copy-holders in Fee-farm Fee-Farm Rent the Lands or Goods of the Copy-holders are not liable to the Fee-farm Rent although the Free-hold is for the Copy-holders are elder than the Rent being by Prescription So Rent by Prescription If the King had a Rent by Prescription out of the Manor in which there are Copy-holders if the King had not used to Levy this upon the Copy-holds it seems he cannot charge them forasmuch as they are in by Prescription also M. 12 Jac. B. 2 Rolls Abr. 157. Assets Copy-hold Inheritance shall not be Assets to charge the Heir Popham 188. Copy-holder makes a Lease for years by Licence and dyes this shall not be Assets in the Hands of his Executors Popham 188. Copy-holder shall have Ayd of the Lord where the right of the Seigniory comes in question upon the Issue taken Ayd 21 H. 6.37 But where he hath Ayd of a Bishop and after the King hath the Temporalties he shall not have Ayd of the King for so the Plaintiff may be perpetually delay'd 21 H. 6.37.39 Priviledge of Infants Copy-holders Or Resolutions concerning Infants in respect of Fines Admittances barring Estates and being bound by Customs or not Custom of a Manor is That if a Copy-hold descends to any man that Proclamation shall be made at three several Courts that he shall come in to be admitted Infant not comprehended within the Custom of coming in after three Proclamations and if he come not in it shall be a forfeiture to the Lord yet an Infant shall not be comprehended within this Custom for he by intendment of Law is not at discretion to make his Claim 8 Rep. 100. Letchford's Case It seems to be a Rule in Law An Infant cannot be protected by the Law by his non-age in any Case but where his Right which he had while an Infant and descended
more full to the purpose 1 Rolls Abr. 498. If the King be seized of a Manor whereof Blackacre is parcel and demisable by Copy in Fee Grant by the King good tho not recited to be Copy-hold and this comes to the King by Escheat or Surrender and after the King lets Blackacre to J. S. for Life not taking conusance that this was demisable by Copy this is a good Grant though the King recites not that this was demisable by Copy and by consequence this will destroy the power to grant this by Copy at any time after M. 15 Car. 2. Voluntary Grants by the Lord may be considered in respect of his Person Estate Disability oâ— person no hinderance to the Lord to grant As for his Person notwithstanding his disability yet his Grants of Copy-hold shall be good and valid in the Law as suppose he be an Infant Non compos mentis Lunatick Outlawed Excommunicate yet he is capable to make a voluntary Grant by Copy So a Feme Lady of a Manor takes Husband and they two joyn in a voluntary Grant by Copy this shall for ever bind the Wife and her Heirs and the reason is the Custom of the Manor being the main Foundation on which is built the whole Fabrick of the Copy-hold Estate what the Custom doth confirm to the Copy-holder the Law will ever allow and support it notwithstanding any such Imperfections in the Grantors person Co. Lit. f. 58. b. 8 Rep. 63. a. b. Swain's Case Noy p. 21. Grant by an Infant is good as well as presentation to a Benefice If the Lord release to a Copy-holder in Fee Habendum to him in Fee to the use of another this is a good use for upon such Release a Rent may be reserved 2 Rolls Abr. 788. Sams's Case What voluntary Grants by the Lord shall be good or not in respect of the Estate or Interest which he hath in the Manor and what not Voluntary Grants of Copy-hold Estates are of such as come to the Lords hands by Escheat or Forfeiture and the Lord may grant them by Copy again It was adjudged in Harris and Jay's Case Cro. El. 699. M. 41 El. B. R. That a Copy-hold Escheated and which hath been kept in the Lords hands divers years may be granted over by the Lord himself or by his Steward This may be considered in respect of the Quantity and Quality of his Estate He must be Legitimus Dominus a lawful Lord at the time of his voluntary Grant and then as to the quantity of his Estate in the Manor be it great or little is not material whether he be seized of or interested in the Manor in Fee or Tayl Dower or Curtesie for Life or Years Tenant per Statute Elegit or at Will or on Condition he may grant any Copy-hold Escheated to him for as long time as the Custom doth allow the Rents and Services being truly reserved and these Grants shall bind them that have the Inheritance or Freehold of the Manor the Reason is well delivered in Coke For a Copy-holder upon voluntary Grants made by Copy doth not derive his Estate out of the Lords Estate only for then the Copy-holders Estate should cease when the Lords Interest determineth but the Life of the Copyholders Estate is the Custom of the Manor and therefore whatsoever befalleth the Lords Interest in his Manor be it determined by course of time death forfeiture or other means yet if the Lord were Legitimus Dominus pro Tempore though his Estate in it be very small yet that is enough for the same Custom that fixeth a Copy-holder instantly in his Land upon his Admittance will likewise protect and support his Interest to the end in such manner that though the Lords Interest faileth yet the Copy-holders Interest shall not fall being upheld by such a Pillar unless he forfeit it by his own act Where Lord may augment the Rent and where not Where Copy-hold Land comes into the Hands of the Lord by Escheat or Forfeiture the Lord may grant this Land by Copy rendring greater Rent but not when he admits a Tenant Blewet Lord of a Manor wherein are many Copy-holders grants the Stewardship to S. for Life and after becomes a Lunatick and found upon Inquisition and thereupon commited W. to E. C. and others under the Seal of the Court of Wards The Lord Lunatick by his Steward may grant Copy-holds but the Committees by their Steward cannot c. The Question was whether the Committees by their Steward may grant Estates by Copy according to the Custom Per Cur. they cannot for by the Law they have no Estate in the Manor nor are Lords thereof for the time being but the Lunatick by his Steward may grant Copy holds and so it was decreed But it was ordered that the Steward should grant none without the privity of the Committees and warrant from the Court but this was only for caution Sir James Ley's Rep. f. 47. Blewit's Case Therefore if the Lord sever a Copy-hold from the Manor Severance from the Manor what it operates by granting the Inheritance to a Stranger now though one of the chief Pillars of a Copy-hold Estate is wanting viz. to be parcel of the Manor yet because the Land at the time of the Copy-holders admittance was customary and had this necessary incident this severance being a matter ex post facto and being the Lords own act shall not amount to the destruction of the Copy-hold There is this Custom in a Manor That every Copy-holder Tenant for Life had used to take all Trees growing upon his Land to be employed for Fuel and Repairs and Estovers Queen Eliz. being Seized of this Manor demiseth it to J. W. except Omnibus boscis subboscis arboribus maremiis Habend except pre-except for twenty one years who assigns all his Interest to J. P. and others Queen Eliz. dyes King James grants reversionem praed ac premissa sic ut prefertur except to A. F. R. S. and P. W. and their Heirs the Lessees Attorn A. F. and P. W. release to R. S. and his Heirs Lessees and their Steward c. grant to W. B. Def. a Messuage and a Vierge of Land whereon the Trees grew for term of Life secundum consuetudinem Manerij The Question was inasmuch as the Lessees hold the Court by virtue of the said Lease of the Manor out of which Lease the said Trees were excepted if the Def. the Grantee of the Lessees may take the Trees Per Cur. he may notwithstanding the Severance by the Exception and notwithstanding he comes in by Voluntary Grant and not by Surrender for the Estate of the Copy-holder which comes in by Voluntary Grant is not derived out of the Estate or Interest of the Lord of the Manor for he is but as an Instrument to make the Grant The Estate of the Copy-holder who comes in by voluntary Grant is not derived out of the Lord. but the Custom of the
severance of the Copyhold from the Manor the Copy-hold is not destroyed but it is not parcel of the Manor now if one would alien this he cannot do it by Surrender for it s not parcel of the Manor neither can the Feoffee make Admittance for he is not Dominus but if such Copy-holder will alien there is no way but to have a Decree against him and his Heirs in Chancery and so to bind his person but by it the Interest of the Land is not bound 4 Rep. 24 25. By the Statute of 13 El. Cap. 7. Copy-hold Lands are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record as other the Bankrupts Land but by the same Statute it is provided That all Persons to whom any such Sale shall be made shall before such time as they shall enter and take the Profit of the same agree and compound with the Lord of the Manor of whom the same shall be holden for such Fines or Incomes as heretofore hath been usual and accustomed to be yielded or paid therefore and upon every such Composition the Lord for the time being at the next Court to be holden at and for the said Manor shall not only grant to such Vendee upon request the same Copy or customary Lands or Tenements by Copy of Court Roll of the said Manors for such Estate or Interest as to them shall be sold and reserving the ancient Rents Customs and Services but also in the same Court admit them Tenants of the same Copy or customary Lands as other Copy-holders of the same Manor have been wont to be admitted as also to receive their Fealty accordingly Note Copy-hold Lands are within all the Statutes of Bankrupt Cro. Car. 550. Crisp and Plat. Title to a Copy-hold cannot be made by the Commissioners without Surrender or Admittance 1 Keb. 24. How and to what purpose such Estate Vests before Admittance Cro. Car. 569. In Parker and Bleke's Case it is adjudged That by Bargain and Sale made by the Commissioners of Bankrupts the Estate of the Copy-holder is vested in the Bargainee before Admittance though he may not enter and take the Profits till Admittance The Bargain and Sale binds the Copy-holder and bars his Estate and he is no Copy-holder after the Bargain and Sale enrolled And where the Bargainee is admitted by the Lord it shall have relation to the Bargain and Sale And where the Custom was That the Wife of a Copy-holder dying Tenant shall have a Life Estate it was adjudged the Copy-holder dying after the Bargain and Sale his Wife shall be barr'd of her Widows Estate A Bankrupt purchaseth a Copy-hold and the Tenant Surrenders into two Tenants Hands to the use of the Bankrupt and now he will not be admitted This may be sold by the Commissioners and the Vendee may pay the Admittance Of Surrender Now I shall treat of Surrenders then of Presentment and Admittance for that they make up but one Copy-hold Title First of Surrenders We have seen in the last Chapter how that in some Cases Copy-hold Lands may pass without Surrender Now In some few Cases a Surrender is sufficient without Admittance or Presentment Where Surrenders is sufficient without Admittance as if the Copy-holder Surrender to the Lords use there needs no Admittance And In some Cases Admittance will do without a Surrender Where Admittance is sufficient without a Surrender as if the Lord make a voluntary Grant of the Copy-hold in his hands no Surrender is needful but Admittance only But regularly Estates of Copy-hold must pass by Surrender and Admittance and if the Surrender be out of Court there must be a Presentment Of a Surrender in Court By what words a Surrender will pass It cannot well pass by any other word then sursum reddidit Surrender if it pass in the Court by the words Give Grant Bargain Sell this will not so pass it but the Heirs of the Copy-holder shall avoid it It is vocabulum artis as Warrantizare and some other Law words are What will amount to a Surrender in Court or not By Hobart in Hutton Rep. p. 81. What Words If a Copy-holder comes into Court and saith That he is weary of his Copy-hold and requests the Lord to take it that is a Surrender And by some if he come into the Court and desire the Lord to admit his Son into the Copy-hold this is a good Surrender to the use of the Son But if a Copy-holder comes into Court and saith He renounceth his Copy this is not any Surrender and if the Copy-holder say in the presence of any other Copy-holders He is content to Surrender to the use of J. S. This is not a good Surrender Any words in the Court that declare his intention of surrendring into the Lords Hands is good 3 Rep. 80. in Belfield's Case What Acts. It was agreed between the Lord of a Manor and J. S. That in Consideration of 5 l. paid to the Lord J. S. should enjoy the customary Lands for his Life and also of Alice his Wife durante viduitate and that J. S. should have election whether the said Lands should be assured to him and his Wife by Copy or by Bill c. and he chose by Bill which was made accordingly Per Cur. Here is a good Surrender of the said Lands and that for Life only 1 Leon. p. 191. Collman and Sir H. Portman's Case Cannot be surrendred but by actual Surrender If a Copy-holder in Fee takes the same Lands of the Lord by other Copy for Life this is not any Surrender or Determination of his Copy-hold Inheritance for a Copy-hold may not be surrendred but by actual Surrender in Court and not by a Surrender in Law 1 Rolls Abr. 501. Shepard and Adams But in 3 Bulst p. 80. Belfield and Adams its Reported thus Copy-holder in Fee comes into the Lord's Court and there takes a new Estate of his Copy-hold from the Lord to himself for his Life after to his Wife for Life and after to his Son for Life this was admitted a Surrender and so was the other Case in 1 Roll 501. In whom the Reversion after a particular Estate remains Postea 13 Jac. But the Reversion is in the Surrenderor no disposition having been made of it So in this Case this is not a giving up his Estate of Inheritance but only it shall enure by way of Surrender to the use of himself for Life after to the use of his Wife for Life and after to the use of his Son for Life But if a Copy-holder of Inheritance takes a Lease by Indenture for years by this his Copy-hold Estate is gone and this is a Surrender of his Inheritance in the other Case the Inheritance remains in him and is thus Reported by Rolls If a Copy-holder in Fee comes into Court Copy-holder by accepting of an Estate is not Estopt from claiming another Estate and accepts by Copy an
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 it s 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 it s 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. 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 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 it s 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 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. 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 Vse or Estate is immediately limited in whole or in part And where an Vse is limited how far the Construction shall go according to the Rules of the Common Law or not Of Surrender to Vse upon Vse To the Vse of one's Wife Where a Surrender is void for the uncertainty Of a Surrender to the Vse 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. 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 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. 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 it s 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 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
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 It s 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 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. It s 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 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 it s 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 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 it s not good in Chancery Mich. 9 Jac. Hughs and Carpenter 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 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 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 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 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 the interim the Interest remains in him who made the Surrender which Interest descended to the Heir and the acceptance of the Rent by the hands of Cesty que use gives not any Interest unto him and there is no Estate in Cesty que use but an Inception until this Surrender be presented in Court But they held also That it was not of necessity that the Parties who took the Surrender should present it and although they are dead and the Party who made it is dead yet as the Custom is found if it be presented by any other Copy-holder when the Court is held it s well enough and he may be thereupon admitted Cro. Jac. 403. Froswel and Welch and so is Buntings's Case 4 Rep. so resolved And Cesty que use shall procure a Court to be held for his own advantage 1 Bulst 215. mesme Case Two Joynt-Tenants in Fee of a Copyhold Cesty que use to procure a Court to be held for his own advantage and one surrenders his part into the Hands of the Lord to the Use of his last Will and after deviseth this to another in Fee and dyes and after at the next Court this is presented the Devisee shall have it for now by relation the Joynture was severed and the Estate of the Land bound by the Surrender Constable's Case Rolls 1 Abr. 501. So Cro. 30 Jac. Mich. Porter's Case Custom for a Copy-holder to Devise and if the Will be not presented within a year and a day next after the Devise to be void they were several Customs and so differ from Peyrrman's Case Now suppose no Court be holden in that time Carter's Rep. 71 72 88. Smith and Painton It shall be presented at a Court within the year or at next Court after the year ended else it shall be void 5 Rep. 84. 2 Anderson 125. In Perryman's Case 5 Rep. 84. It is a Question what remedy if the Copy-holder will not present the Surrender made out of Court the Answer is Caveat emptor but certainly there is good remedy in Equity as in all Cases of Trustees or Instruments of Conveyance The Custom is That it should be presented at next Court otherwise it was void One surrenders his Copy-hold into the Hands of two Tenants out of Court upon condition of payment of Mony 25 July after to be void After he surrenders out of Court to the Use of J. S. the Mony was paid before the 25 of July Then he surrenders to the Use of a third person before the payment At the next Court the surrenders were presented Two Surrenders and the second Surrender presented first but not the first and the Lord grants Admittances severally to these two Persons Per Cur. The second Surrender was good for nothing by the Surrender out of Court was divested out of him that surrendred until the Surrender was presented but he was absolute Owner to bring Trespass or any other Action and then that not being presented and the second was presented the first Surrender was void and the second was good Jones 306. 1 Rol. Abr. 500 Burgis and Spurlin's Case Cro. Car. 273 283. mesme Case CAP. XVII Of Admittances upon Voluntary Grants Surrenders Descents By whom Admittances upon Surrender made shall bind In what Cases the Admittance of the one shall be the Admittance of another Of Admittance by Attorny Admittance where to be made Of Admittance upon Descent The time of Admittance What things the Heir may do or not do before Admittance In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant and to what purposes not And what Leases c. made by them shall be good and in what Cases the Lord shall be compellable to make Admittances and where not Of Admittances on voluntary Grants NOTE a diversity between the Heir who comes in course by Descent and another Stranger who comes in by Surrender and hath these words Dominus concessit admissus est but when the Heir of a Copy-holder is to be Admitted he hath only these words Et admissus est Admittances are of three sorts upon a Voluntary Grant Surrender Descent As to voluntary Grants made by the Lord in some sense he may be said to be the absolute Owner of the Land and may dispose of it at his pleasure yet he is bound to observe the Custom of the Manor in his Grants neither can he alter the Estate or Tenure If the Custom doth warrant an Estate to a Woman durante viduitate only and the Lord admits for Life this shall not bind his Heir The Custom must be pursued So in Reservations according to the accustomable Rent the Lord must strictly pursue it as where he reserves 10 s. where the usual Rent was 20 s. So where the Rent has been accustomably paid at four Feasts and the Lord reserves it at two Feasts these are void So if two Copy-holds Escheat to the Lord the one of which hath been usually demised for 20 s. rent and the other for 10 s. and he granteth them both by Copy for 30 s. it s not good But in this kind of Surrender the Lord is not considered barely as an Instrument because he is not bound to dispose the Land but to whom he pleaseth yet he is an Instrument in respect he is tyed unto Custom but in the other sort of Surrender he is barely an Instrument Where to be made The Lord himself may grant or make Admittances out of the Manor at what place he pleaseth but so cannot the Steward 4. Rep. 26 and 27. Several Tenures and several Fines The Lord admits Tenenda per antiqua servitia inde prius debita de jure consueta And if the Tenures are several the Fines must be several In Westwick's Case 4 Rep. The Entry of the Roll was Ad hanc curiam venerunt Willielmus Westwick Johanna Uxor ejus ceperunt de Domino Tenementa praed cum pertin in quibus c. prefat Willielmo Westwick Johannae Uxori ejus Tenend eisdem Willielmo Johannae haeredibus suis c. When the Surrender was to the Use of William Westwick in Fee yet the Admittance shall enure only to the Husband The Admittance must be pursuant to the Surrender for the Lord can but make Admittance secundum formam offectum sursum redditionis de quo vide in Cap. Surrenders Cesty que use cannot surrender before Admittance and the Entry of the Surrenderer doth not make an
allowed Hetly p. 54. M. 3 Car. B. C. Davis and Fortescue Lord of the Manor made a Lease to two of the Copy-holders of the Court Baron for 200 years Lessees of Copy-hold and Court-Baron for 200 years what acts they may do saving to himself the other Demesns and Services the Lessees keep Court there and a Copy-holder surrenders to the Use of A. in Fee Per Cur. this is a good Copy the Court may well continue for that purpose as to Admittance of Copy-holders for otherwise every one of his own act may destroy his Copyholders Estate Cro. El. p. 394. Jackson and Neal and Lord Hatton's Case cited there If the Lord of a Manor grants a Copy-hold Who shall have the Rent rendring Rent praefato Domino at a certain time servitia de jure debita consueta his Heirs and Assigns after his death shall have this Rent this being reserved by a Copy 2 Rolls Abr. 450. Crisp and Fryar Copy-holder makes a Lease rendring Rent Avowry by the Lord for part of his Rent and after surrenders parcel to the Lord the Lord may avow on the Lessee for part of this Rent without alledging notice or attornment by him 1 Keb. 94. Blat and Mole vide The Lord may Distrain a Copy-holder for his Rent as well as Seize Quaere Distress if a man makes a Lease at will rendring Rent whether he may Distrain for this Rent 2 Brownl p. 279. Ravel and Downe Entry Acceptance of Rent The Lord after acceptance of Rent cannot enter upon the Lessee of a Copy-holder 1 Keb. 15. Whether the accustomed Rent be reserved upon a Lease by a Bishop Lord of the Manor Treacer was a Copy-hold Manor within the Manor of B. The Bishop of Exeter held both these Manors in the right of his Bishoprick the old accustomed Rent was 67 l. 1 s. 5 d. Hall Bishop demised these two Manors to P. for 99 years determinable upon three Lives reserving the old Rent P. assigns them over to N. except the Demesns of Treacer N. surrenders both Manors except Treacer The Bishop re-demiseth to him the said Manors except Treacer and one Farm more reserving the old Rent 67 l. 1 s. 5 d. Per Cur. this second Lease was good and the 67 l. 1 s. 5 d. was the old accustomed Rent within the Statute 1 El. Mod. Rep. 203. Thredneedle and Lynham Of Leases made by a Copy-holder and of Rents reserved thereupon vide Customs When Leases made by a Copy-holder for Years are a Forfeiture Vide sub Tit. Forfeiture Note Lease no disseisin A Copy-holders Lease is no Disseisin though it be a Forfeiture nor doth it alter the Estate of the Lord 2 Keb. 598. Note Lease not Assets Copy-holder made a Lease for years by License and Lessee dyed this shall not be accounted Assets in the hands of the Executors Quaere Nor be extended Popham 188. But if Copy-holder make a Lease for an year this is a Lease by the Common Law and not customary and shall be accounted Assets in the Hands of the Executors of the Lessee Popham 188. Yelv. What Leases shall be good or not in respect of Licence when it is persued or not Copy-holder may make a Lease for one year without Licence for that is warranted by the Law by the force of the general Custom of the Realm Lit. 234. and this shall be accounted Assets in the Hands of the Executors of the Lessee If the Lord give Licence to a Coph-holder for Life to let the Copy-hold for five years the Copy-holder may Lease this for three years for this is comprehended within the Licence inasmuch as he had given him Licence to let for more years M. 15 Jac. B. R. Woolridg and Bambridge adjudged upon a special Verdict so it was adjudged in the same Case Cro. Jac. 417. If the Lord give Licence to a Copy-holder for Life to Lease the Copy-hold for five years if the Copy-holder shall so long live and he lets this for five years generally without this limitation If he shall so long live yet this is a good pursuance of the Licence and so a good performance for the Lease is determinable by his death by a limitation in Law and therefore so much is implied by the Law as if he had made the actual limitation So is the Case of Hart and Arrowsmith Noy 121. the operation of Law made such a limitation to the Estate which he made i. e. if he shall live so long But if the Copy-holder had had an Estate in Fee it had been a Forfeiture to have made an absolute Lease because in this case he doth more than he was licenced to do Popham Rep. 105. A Lease not warranted by the Licence as to the commencement A. obtains a Licence in Court to let his Copy-hold for 21 years from Mich. last past he makes the Lease to begin at Christmass following Per Cur. this Lease 〈◊〉 not warranted by this Licence and so no Eject firmae lyes upon it Cro. El. p. 394. Jackson and Neal. Commencement When a Lease shall begin in point of computation and not in point of Interest Land is demised by Copy for three Lives successive and then a Lease is made for 30 years of the same Land to commence after the determination of the first Estate the Survivor dyes leaving a Widow who claims durante viduitate according to the Custom The Quaere was when this Lease shall begin if after the death of the Copy-holder or after the determination of the customary Estate in the Woman It shall commence presently in point of computation but not in point of interest till after the death of the Widow 2 Siderfin Clark and Caudle Capel and Stephens 1653. By Tenant in Tayl if warranted by the Stat. 32 H. 8. Arthur Copy-holder for Life surrenders to Sir Francis Knolls Knight Lord of the Manor in Tayl Reversion in the Crown Sir Francis makes a Lease for three Lives to commence from the day of the date and of the ancient Copy-hold Rent was reserved and more Three Questions were moved by the Jury 1. Per Cur. If this Land shall be said usually demised within the Statute 32 H. 8. being never demised before but by Copy And the Court ruled that so 2. If this Copy-hold Rent shall be said the ancient accustomed Rent within the Statute and ruled that so 3. Though an Herriot was not reserved in the new Lease which was payable by the Copy-hold Custom yet it was resolved that it was a good Lease within the Statute of 32 H. 8. if Livery was made after the day of the date Moor n. 1050. Banks and Brown The Land is accountable usually demisable when it is always demised it was Sir James Marvin's Case Tenant in Tayl lets a Copy-hold by Indenture rendring the same Rent as before it s a good Lease within the Statute of 32 H. 8. A Manor by Act of Parliament was Entayled to A. Wife of
Seigniory as suppose he is only for Life and he licenseth for 21 years and dies it s determined 2 Brownl 40. Petty and Evans In Ejectment The Defendant pleaded a Surrender of a Copy-hold by the Hand of F. then Steward of the Manor Issue was joyned absque hoc that he was Steward Per tot Cur. it s no Issue Pleading a Surrender how for the Traverse ought to be general that he did not surrender for if he were not Steward the Surrender is void So of a Surrender pleaded into the Hands of the Tenants of the Manor Cro. El. p. 260. Wood and Butts Pleads Prescription to be discharged of Tythes Copy-holders of Inheritance who held of a Bishop as of his Manor may prescribe That the Bishop and his Predecessors seized of the said Manor for themselves their Tenants for Lives Years and Tenants by Copy of Court Roll of the said Manor time out of memory c. have been discharged from payment of Tythes for their Lands parcel of the said Manor for this is a good Prescription for their Tenements are parcel of the Demesns of the Manor and this may commence upon a real composition of all the Manor 1 Rolls Abr. 652. The Case was thus A Parson sues a Copy-holder in the Spiritual Court for Tythes arising upon the Copy-hold Land he brought his Prohibition and suggests that the Bishop of Winchester Lord of the Manor whereof his Copy-hold is parcel and his Predecessors c. time out of memory c. for them their Tenants and Farmers have been discharged of Tythes arising upon the Manor and shews that he had been Copy-holder of the said Manor time out of memory c. and prescribes in his Lord the Bishop of Winchester's Name the Spiritual Court would not allow this Plea but Per Cur. a Prohibition was granted although here be a Prescription upon a Prescription Prescription upon a Prescription one in the Copy-holder to make his Estate good the other in the Bishop to make his Discharge good yet it was allowed for all Copy-holds are derived out of the Manor and it shall be intended That this Prescription had its commencement at such time when all was in the Lords Hands and the one Prescription is not contrariant to the other although both were from time whereof c. Prescription in the Lord ought of necessity to precede the Prescription in the Estate of the Copy-hold and the discharge of Tythes in the Lord which may well be in this case because he is a Spiritual person trenches to the benefit of the Tenant who is a Copy-holder for by this means it may be presumed that the Lord had greater Fines and Rents Yelv. 2. Croucher and Fryar which case is more largely Reported by Cro. El. 784. Otherwise a Copy-holder which is a Temporal person cannot prescribe in non decimando Prohibition granted out of B. C. against the Ordinary of G. and one Branch the surmise was That the Land out of which the Tythes were demanded is Copy-hold parcel of a Manor of which a Prior was seized in Fee and was also Parson imparsonee Union by which Union the Tythes were extinct Per Cur. the surmise is not good and a Consultation was awarded it was no good Prescription to discharge the Tythes Moor Rep. n. 356. Branches Case A Prohibition prayed upon a surmise that the Dean and Chapter of C. seized of the Manor and Rectory of M. and one G. a customary Tenant prescribes That every Tenant of his Tenement hath used to pay 3 s. 4 d. to the Lord who is also a Parson in discharge of his Rent and a fourth part of the Tythe of B. Per Cur. it s no good Prescription for the Parson cannot libel for the Rent nor the Lord for the Tythe Uncertain and non constat what each should have and the Parson must have a satisfaction or else there can be no discharge 1 Keb. 886 906. Wilkinson and Richardson Traverses Traversing the day of the Grant In Ejectment The Defendant entitles himself by Copy granted 44 Eliz. The Plaintiff by Replication intitles himself by Grant 1 June 43 Eliz. The Defendant maintains his bar and traverseth absque hoc that the Queen 1 June 43 regni sui granted the Land by Copy modo forma prout c. This Replication is not good for the day and year of granting the Copy is not material but only whether it were granted before the Copy made to the Defendant therefore he ought to have traversed absque hoc That the Queen granted modo forma prout c. and this is matter of substance and not aided the traversing of the day where it ought not is matter of substance for thereby he makes it parcel of the Issue which ought not to be Cro. Jac. 202. Lane and Alexander 1 Brownl 140. mesme Case In Ejectment The Defendant pleads the Land is Copy-hold parcel of the Manor of S. whereof the King was and is seised who by his Steward granted the same such a day to him in Fee Habend c. by vertue whereof he was admitted entred and was seized and so justifies The Plaintiff replies That long before the King had any thing in the Manor Queen Elizabeth was seized in Fee in Jure Coronae who by her Steward at such a Court granted the Land in question by Copy to him in Fee Habend c. secundum consuet c. who was admitted and entred Confessing and avoyding Per Cur. the Replication is good and the Plaintiff need not Traverse the Grant alledged in the Bar by the Defendant for the Plaintiff hath confessed and avoided the Defendants Title by a former Copy granted by Queen Elizabeth and so need not traverse and as no man can have a Lease for years without assignment no more can a man have a Copy without a Grant made in Court Cro. Jac. p. 299. Rice and Harrison 1 Brownl p. 147. mesme Case The Plaintiffs Replication is good without any Traverse for how can the Defendant have this when as the Plaintiff had it before as by his Replication appears for that his Lease being first in time avoids the Defendants Lease being the latter and therefore the Defendant in this case ought to have rejoyned and so to have traversed the first Lease but by his Demurrer to the Replication he hath confessed the Lease under which the Plaintiff claims mesme Case 2 Bulstrode p. 1. 6 Rep. Helliar's Case A man pleads a descent of a Copy-hold in Fee the Defendant to take away the descent pleaded That the Ancestor did Surrender to the Use of another Traversing the dying seized absque hoc That the Copy-holder died seized Per Cur. the Traverse is ill because that he traversed that which needed not to be traversed for being Copy-hold and having pleaded a Surrender of it Difference between that and at Common Law the Party cannot have it again if not by Surrender But if a man plead
Court holden to be tryed by the Jury and not by the Rolls the same shall not be tryed by the Rolls of the Manor but by the Country and the Party may give in Evidence the truth of the matter and shall not be bound by this mis-entry of time upon the Rolls for this Entry is not matter of Record 1 Leon. 189. Burgess and Foster The Issue was upon separalis pastura Evidence to prove separalis pastura upon the Traverse of the sole Feeding the Defendants Evidence was That the Plaintiff used to Mow and provide Fodder for Winter which Per Curiam they cannot Common being to be taken per Bouch In North and Holland's Case 2 Keb. 577. If in Ejectment a Lease is pleaded of a Manor c. whereof the Tenements in which were parcel and upon this Issue is joyned Quod non dimisit manerium and the Jury upon this give a special Verdict viz. That there were not any Free-holders but divers Copy-holders of the Manor and that this was known by the name of a Manor although that this was not a Manor in Law for default of Freeholders and although this was alledged in pleading to be a Manor which pleading is made by learned Men Substance found on special Verdict and although this was in an Action Adversary and not Amicable yet for as much as an Issue is tryable by the Lay Gents and in truth the Tenements in which c. pass by the Lease this Verdict is found for him which pleads the Lease of the Manor for the substance of the Issue is whether it was demised or not M. 22 and 23 Eliz. B. R. Vines and Durham cited in 6 Rep. 77. Sir Moyle Finch's Case The Custom of neighbouring Manors good Evidence The Issue was whether Fines called Gresham Fines ab ingressu are due to the Lord till full Age and Evidence for the Defendant was That other Manors adjoyning had the same Custom not to pay till full Age and allowed 3 Keb. Champion's Case In Ejectment The Plaintiff declares of a demise made for three years and it was confessed by the Plaintiff That the Lands were Copy-hold Lands and that the Plaintiff had not Licence to demise them for three years neither could he prove by any Custom that he could demise them for three years so the Plaintiff was Non-suit and the Lessor taken for a disseisor Per tot Cur. 1 Brownl p. 133. P. 8 Jac. Cramporn and Freshwal By Rolls When proof by Court Rolls are good if Copy of Court Rolls are shewed to prove a custumary Estate the enjoyment of such Estate must also be proved otherwise the proof is not good Stiles p. 450. in Pilkington and Bagshaw's Case Copy of a Lease which the Lord had in his Hands Copy of a Lease good Evidence Special Verdict or admission on former pleading good Evidence Copy of the Roll where good Evidence whereby the Tenant had power to make Leases is good Evidence without swearing it a true Copy also the finding by special Verdict or Admission on former pleading is good Evidence unless the contrary appear 1 Keb. 720. Lee and Boothby Copy of Roll under the Stewards Hand who was Councel for the Lord Plaintiff was admitted good for the Copy-holder but contra of short Notes by way of Breviat 1 Keb. 720. Lee and Boothby The Copy-holder moved the Court Order to bring in the Rolls for his defence not granted That the Steward might be ordered to bring in the Court Rolls to enable him to defend his Title but the Court denied it Stiles 128. Who may be admitted to give Evidence The Steward Steward though he had a Fee for Admittance may be a Witness 3 Keb. Champion's Case To prove a Custom Copy-holder That a Copy-holder may cut Trees a Copy-holder that had not but a Kettle may be a Witness 2 Siderfin p. 7. The Lord may be admitted to give Evidence for the Lessee or Copy-holder The Lord. though the Court would have spared him had there been other 1 Keb. 15. Gerrard and Lister Court-Leet Books Proof of the Plaintiff Tenant of the Manor was by Court Leet Books by presentment of the Homage and not per Juratores of any certain place and so it was supplied by Witness this was in a Case of Fishing Copy of Court Roll. By consent the Jury had a Copy of Court Roll given by the Plaintiff in Evidence 1. Keb. 22. in Trowel's Case In Ejectment the Defendant pleaded a Surrender of a Copy-hold by the Hands of F. then Steward of the Manor Issue was joyned absque hoc Traverse that he was Steward ill That he was Steward Per Curiam this is no Issue for the Traverse ought to be general That he did not Surrender for if he were not Steward the Surrender is void Repleader was awarded Cro. Eliz. 160. Wood and Butts Venue Where Issue is taken upon a Surrender it shall be tryed where it was alledged to be done Note when Issue is to be taken upon a Surrender where to be Tryed and not where the Manor is of which the Copy-hold is holden Cro. Eliz. 260. Wood and Butts The Custom was alledged to be in Warfield in the Manor of Wargrave and the Venire facias was de Wargrave tantum a good Venue and need not be from both 2. Bulstr 135. Good-groom and Moor. For the Issue being whether within the Manor there be such a Custom the Venue shall be only of the Manor and Warfield being parcel of the Manor shall be intended to be within it Cro. Jac. 327. Custom for Common was alledged to be as to half an Acre of Land Copy-hold parcel of the Manor of Buckland in Buckland and the Venire was de vicineto Manerij its ill for the Manor being alledged to be the Manor of Buckland in Buckland the Venire facias ought to have been from Buckland and a Venire de novo awarded Cro. Jac. p. 302. Mortimer and Pettyfer The Issue was whether the Copy-holder in one Town had Common in Land lying in another Town Exception was to the Tryal because the Venire was not of both Villages 1 Brownl 41. CAP. XXXIV Of Special Verdict Imperfect Custom not well found Failure of Prescription Finding directly not argumentatively How the Custom must be found by the Jury Substance found Verdict aided Presidents of special Verdict THE Jury find quoad parcel tenementorum Quoad parcel and shew not what and nothing for the residue the special matter and they did not shew what parcel and they found nothing for the residue and the Verdict was held to be ill for both and a Venire facias de novo awarded Cro. Jac. 31. Anselm's Case Special Verdict upon the Custom of the Manor of Toddington That any Copy-holder might Surrender out of Court into the Hands of two Tenants Copy-holders of the Manor c. The Copy of the Surrender found in haec verba Toddington in the Margent
the Son to the Plow So the Custom that the Wife shall have the whole for her free Bench is against the Maxim of Common Law for Dower These Customs might have a reasonable beginning where they are not prejudicial to the Common-wealth nor to the present Interest of any particular person yet a Custom may be prejudicial to the Interest of a particular person and reasonable also where it is for the benefit of the Common-wealth in general as to make Bulwarks upon another mans Land in time of War c. But Custom which is contrary to the publick Good or injurious to a Multitude and beneficial only to some particular Person such Custom is repugnant to the Law of Reason and void ab initio and no Prescription can make it good therefore the Custom of a Manor was That no Commoner should put in his Beasts till the Lord had put in his and it was adjudged void 2 H. 4.24 For if the Lord would never put in his Beast the Commoners should lose their Common As to Customs being reasonable or unreasonable vide several more instances in the Argument of Rolls and Mason's Case 2 Brownl 86 88. Customs may be reasonable ratione loci Custom is Several particular Customs in several places where Copy-holder had Issue only Daughters the eldest shall have this for Life and after her death it shall go to the next Heir Male of the Father to him and his Heirs and if no such Heir then it shall Escheat to the Lord. Copy-holder dyes Borderers on Scotland his Wife hath it durante viduitate leaving two Daughters and during this time the eldest dyes The Question was if the second Daughter or the Lord by Escheat had the better Title Per Cur. 1. The Custom is good and the Estate which the Daughter had is an excrescent Estate and not properly a descent 2. She that was eldest at the time of the death of the Mother shall have it and not only Primogenita filia Siderfin p. 267. Newton and Shafto This Custom was good ratione loci for such Manor is bordering on Scotland where were frequent Invasions And Feme sole Merchant is good ratione loci Feme Sole Merchant London The Custom of the Isle of Man That one shall be hanged for stealing a Capon Isle Man but not for stealing an Ox is good In the Manor of Bemister in Dorset Bemister is this Custom That a Copy-holder ought to nominate his Successor otherwise the Land shall Escheat and it has been allowed to be a good Custom So the Manor of Taunton Taunton Dean That the Wife of the Copy-holder shall have the Inheritance of her Husband Siderfin p. 267. id Case The Custom of Millan in Norfolk is Millan in Norfolk If any Copy-holder will sell his Land and agree upon the Price at the next Court the next of his Blood and if he refuse any other of his Blood may have the Land And such like Custom there is at Ham in Middlesex Ham in Middlesex The next Clivener which is he that dwelleth next to him shall have the refusal giving as much as another will and he which inhabits on the East the first and then the South c. 2 Brownl 177. As for the other Rules of the validities of Customs as that they ought to be on good Considerations and beneficial to the Prescriber as Calthrop and Cokes Copyholder treat of they may be referred to the forgoing Rules Now you see there are three supporters of a Copy-hold Custom 1. Time and that must be out of the memory of Man so that Copy-hold cannot begin at this day 2. That the Tenements be parcel of the Manor or within the Manor 3. That it hath been demised and demisible by Copy of Court Roll Demised and demisible how understood for it need not be demised time out of mind by Copy of Court Roll but if it be demisible it is sufficient For Example If a Copy-hold Tenement Escheat to the Lord and the Lord keeps it in his hands many years during this time it is not demised but demisible for the Lord hath power to demise it again Coke Lit. 58. b. Customs of Manors are Disabling Enabling Disabling is That the Tenant by a particular Custom shall not be allowed to do that which he might by the general Custom of Manors As a man may sell Land to whom he will by the general Custom of Manors yet in some Manors by special Custom he must make an offer to the next of Blood Vide supra Customs ratione loci Enabling is where the Tenant by a particular Custom shall be enabled to do that from which he is restrained by the general Custom of Manors By the general Custom of Manors the granting of Copy-hold Land for more than one year without Licence is a Forfeiture yet in some Manors they may do it and it shall not be a Forfeiture Coke Copy-hold 79. Sect. 33. You will find Prescription mentioned in the ensuing Cases therefore it will be of good use a little to open the nature of Custom and Prescription and to shew how and wherein they agree and wherein they differ and also the difference as to Pleadings Custom Prescription and Usage are of great Affinity yet they differ thus Custom is where by continuance of time a Right is obtained concerning divers persons in Common Prescription is where by continuance of time one particular person obtaineth Right against another either a Person or Body Politick Usage is by continuance of time and an efficient cause of both Limitation is where a Right may be obtained by reason of Non-claim by the space of a certain number of years Calthrops Reading 1. Prescription is made in the Person and so the Pleading is That he and all his Ancestors c. Or he and all those whose Estate he hath time out of mind used to have Common of Pasture in such a place c. being the Land of some other c. as pertaining to the said Manor Custom is a Copy-holder of the Manor of D. doth plead That within the same Manor there is and hath been such a Custom timeout of mind used that all the Copy-holders of the said Manor have and used to have Common c. Coke Lit. 113. b. So Custom lyes upon the Land As infra manerium talis habetur consuetudo c. 8 Rep. Swain's Case And such Custom binds the Land as Gavel-kind Borough English c. Prescription ought to have a Lawful beginning not so of Custom So is Coke 6 Rep. Gateward's Case Prescription is alledged in the Person and a Custom ought always to be alledged upon the Land for every Prescription by common intendment ought to have a lawful beginning but it is otherwise of a Custom for this ought to be reasonable and Ex certa rationabili causa usitata but it need not to have an intendment of a lawful commencement as Custom to have Land devisable
concessis al 2. pro vitis in reversione Co. Entr. 184. Paying Fine and renewing Leases The Custom was That the Land was demiseable for twenty one years paying the treble value of the Rent and if he dyed within the Term that the Term should be to his Heir paying a Fine certain of one years Rent and if he Assigned the Term the Assignee should have it paying for a Fine one years value of the Rent and he who had it might by the Custom renew it for twenty one years paying three years value and this was admitted to be a good Custom by the Court Croke Jac. p. 671. Page's Case To assign one to take the Profits of a Copy-holder Infant The Custom was The Lord of a Manor might assign one to take the Profits of a Copy-hold descended to an Infant during his non-Age to the use of the Assignee without rendring an account it was held to be a good Custom as a Rent granted to one and his Heirs to cease during the non-Age of every Heir and admitting the Custom were void yet an Action of Account lyes not Prochein Amy. for the Defendant hath not entred and taken the Profits as Prochein Amy in which case although he was not Prochien Amy he is chargable as Prochein Amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the Right of the Heir 1 Leon. p. 266. Case 357. Anonymus The Custom was The Lord to dispose the Estate when the Tenant leaves it in incertainty That if any one surrender to the use of another without expressing any Estate that the Lord may grant it in Fee to him to whose use the surrender was made it s a good Custom for he is a Chancellor in his own Court to dispose thereof when the Tenant leaves it uncertain Crok El. 392. Brown and Foster Custom in the Manor of Sedgly in Com. Staff was Lease to be void if Copy-holder dye within the year If a Copy-holder make a Lease without Licence of the Lord for one year and dyes within the term it shall be void against the Heir Per Cur. it s a good Custom for then the Lord may know his Tenant and the Tenant may have the Estate and pay his Fine It s void by the act of God but had the Custom been That if a Copy-holder within the year surrender his Copy-hold that the Lease shall be void this is an unreasonable Custom Lit. Rep. 233. Hutton 126 127. Turner and Hodges Custom To Lease without Licence That five Copy-holders without License they being seized in Fee may make any Lease for one year or many years and when they dye the term shall cease and the Heir may enter it s a good Custom Hutton p. 101. Custom To hold after the term ended That a Lessee for years may hold the Land for half an year after the term ended it s no good Custom More n. 27. Not to alien without Licence Custom That a Copy-holder shall not alien without Licence is good for it may have a lawful commencement by agreement To Lease without Licence A Custom That on payment of a years Rent the Lord should Licence to let for 99 years and if he refused the Tenant might do it without Licence adjudged a good and reasonable Custom Grove and Bridges cited in Porphyry and Legingham's Case 2 Keb. 344. For Lessee pur vie to let for another mans Life A Custom That Lessee for Life may let for another man's Life is no good Custom but the Lord may by Custom Lease the same for Life and forty years after More n. 27. To commit a forfeiture and so to bar the Intayl A Custom for a Copy-holder tenant in tayl to make a Lease for years without Licence to commit a Forfeiture on purpose to bar the Intayl and to transfer the Lands over to any other person is a good Custom and is but in the nature of a Surrender or Common Recovery 2 Saunders 422. Grantham and Coples And the Lord in such cases may not admit any other but him to whom it is appointed by the Tenant making such Forfeiture and when such Cesty que use is admitted he shall avoid all mean acts or dispositions made by the Lord as well as upon a Surrender and this though he was not admitted in the life of the Tenant so forfeiting Vide infra Tit. Intayling Copy-holders In respect of Discents The Manor of Wadhurst in Com. Sussex consisted of two sorts of Copy-hold viz. Sookland and Bondland and by several Customs in several Manors as if a man be first admitted to Sookland and afterwards to Bondland and dyes seized of both his Heir shall inherit both but if he be first admitted to Bondland and afterwards to Sookland and of them dye seized his youngest Son shall Inherit 1 Leon. p. 36. Kemp and Carter A. Seized of Copy-hold in Fee Copy-hold Burrough English in the nature of Burrough-English surrenders this into the Hands of the Lord ea intentione That he shall re-grant this to him and his Wife and to the Heirs of himself and the Lord re-grants this accordingly And there is a Custom That if any person seised in Fee of such customary Lands and dyes so seized that the Land shall descend filio juniori c. And A. having Issue three Sons and ten years after his death the youngest Son dyes in the Life of his Mother without Issue Per Jones and Crook The elder Brother shall have this as Heir to the youngest and not the middle Brother Custom not to extend to Collateral Descents for the Custom may not extend to a collateral Descent viz. to direct the Descent amongst the Brothers for this is out of the Custom and the Custom was once satisfied by Descent to the youngest and there is an end of the Custom and where Custom fails Common Law shall guide the Descent Where Custom fails Common Law guides the Descent And by this special Custom he which is youngest Son at the death of the Father shall have the Land and not he which comes to be youngest afterwards but Bramston and Berkly contra 1 Rolls Abr. 624. Reeve and Malster Vide Maxims of Copy-holds supra CAP. VI. Customs of a Manor as to Wives and Widows of Copy-holders What are good and what not As also of Tenancy per le Curtesie And where the Severance of the customary Tenants from the Manor shall not prejudice CUstom of Manors That Husbands shall be Tenant per le Curtesie and the Pleading More 171. Custom of a Manor is That the Wife shall have it during her Life and on Evidence it appears the Custom was she should have it durante viduitate this Evidence doth not maintain the Custom because it is a less Estate Cok. 4. Rep. 30. That the Wife of a Copy-holder for Life may hold it durante viduitate was agreed to be a good Custom
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. it s 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 it s 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 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 holdâ—â— 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 it s 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 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 Câ— 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 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 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
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 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 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 Rolâ— 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 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 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
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 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 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 it s 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 it s 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 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 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
Cesty que use surrenders to another and after at another Court he to whose Use the Surrender was surrenders the Land to the Use of another this shall enure as an Admittance upon the first Surrender and after a Surrender for by the acceptance of the Surrender he is admitted Tenant Acceptance of a Surrender 1 Rolls Abr. 505. Calchin's Case 3 Bulst 230. mesme Case If a Copy-holder surrender to the Use of another Acceptance of Rent and after the Lord having knowledge of this accepts the Rent of Cesty que use out of Court this is an Admittance in Law Rolls 1 Abr. 505. Freswel and Welch If the two Tenants into whose Hands the Surrender was pay the Rent to the Lord yet his acceptance shall not amount to an Admittance but if he had alledged the payment of the Rent and acceptance of it by the Lord as of his Copy-holder this would have amounted to a good Admittance of him 3 Bulstr 215. mesme Case Any act to imply the consent of the Lord to the Surrender What acts or words by the Lord amount to an Admittance it shall be a good Admittance the Presentment by the Homage doth not make an Admittance the acceptance by the Steward of the Presentment is no Admittance Bridgman Rep. 82. Robinson and Groves Copy-holder surrenders his Estate to the Use of J. S. who again surrenders the same to the Use of J. N. this is good vide supra Or in such case if the Lord meet J. N. and saith to him Such a Surrender is made to your Use to which I agree or am content this saying amounts to a good Admittance 3 Bulstr 230. Elken's Case 215 216. If the Steward accept a Fine as of a Copy-holder it amounts to an Admittance granted in Rawlinson and Green's Case 3 Bulstr 237. In what Cases the Admittance of one shall be the Admittance of another If a Copy-holder surrender to the Use of one for Life the Remainder to another the Admittance of Tenant for Life is Admittance for him in Remainder also for that they are but one Estate and but one Fine is due for both 4 Rep. 22 23. Fither's Case Aliter of him in Reversion More n. 488. Dell and Higden He in Remainder after a Tenant for Life who was admitted surrenders to the Use of a Stranger in the Life-time of Tenant pur vie and good Cro. Jac. 31. Auncelm's Case But such Admittance of Tenant for Life shall not prejudice the Lord of his Fee due by the Custom 4 Rep. Brown's Case 22 23. Foxton and Colston But in Hippin and Bunner's Case Popham thought only one Fine to be due upon such surrender which the Tenant for Life shall pay before his Admittance except there be especial Custom that two Fines shall be due Cro. Eliz. 504. The Admittance of Tenant for Life or Years shall be an Admission of all in Remainder Per Hales and there is no inconvenience in it for Fines are to be paid by the particular Remainder except a Fine be assessed for the whole Estate and then there is an end of the Business The Estate is bound by the Surrender and shall go to them in Remainder Mod. Rep. and 3 Keb. 29. Blackburn and Greves A Copy-holder Surrenders to the Use of several Persons for years successive the Remainder in Fee to J. S. an Admittance of a particular Tenant is an Admittance of all the Remainders to all purposes but only the Lords Fine and the Possession of Lessee for years is the Possession of him in Remainder ibid so as to make a Possessio Fratris and the Sister of the whole Blood shall have it before a Brother of the second Venter Admittance by Attorny The Lord may refuse to admit by Attorny him to whose Use a Surrender was made for that he ought to do Fealty which he cannot do by Attorny 9 Rep. 76. Comb's Case Yet if the Lord will admit him by Attorny its good ibid. A Copy-holder surrendred to the Use of his last Will and devised the Lands to his youngest Son in Fee The youngest Son being in Prison makes a Letter of Attorny to one to be admitted to the Land in the Lords Court in his room and also after Admittance to surrender the same to the Use of B. and his Heirs to whom he had sold it for the payment of his Debts by two Judges it s not a good Surrender Admittance of an Heir is good by Prochein Amy By Prochein Amy. for by such Admittance he is to do corporal Service which cannot be done but in person and yet it hath been adjudged good the Heir consenting but otherwise 2 Siderfin 37 61 Blunt and Clark 4 Rep. Brown and Clerk's Case The Case was Copy-holder surrenders to the Use of J. S. and his Heirs Proviso That if the Copy-holder pay eight hundred pounds at such a day the Surrender shall be void J. S. dyes before the day not being admitted and his Heir beyond Sea A Neighbour comes and is admitted in the name of the Heir the Heir comes back and brings Ejectment Per Cur. It s a good Admittance for a Consent subsequent is as strong as an Authority precedent in this Case and the Heir affirms his Admission And if a Surrender Per Glyn be to the Use of J. S. and J. N. is admitted and J. S. consents it s a good Admittance Admittance where to be made The Lord of the Manor may make Admittance out of the Manor also Co. Lit. 61. b. The Steward of the Manor may admit upon a Surrender out of Court as well as in Court 4 Rep. 26 27. Freswel and Welch Admittances upon Descent The diversity between Admittance upon Surrender and Admittance upon Descent lyes In Admittance upon Surrender nothing is vested in the Grantee before Admittance no more than in voluntary Grants but in Admittance upon Descents the Heir is Tenant by Copy immediately upon the death of his Ancestor The time of Admittance There is thirty years between the death of the Father Excuse and the Heirs not being admitted who made a Lease Per Cur. this is supina negligentia and shall disable his Person to make any Demise but the Lessor at the time of the death of his Ancestor was two years of age and that after his full age no Court had been holden for a long time and that at the first Court lately he prayed to be admitted and the Steward refused him And Per Cur. this is a good excuse 1 Leon. 100. Rumny and Eves If a Copy-holder dyeth When the Heir must pray to be admitted his Heir within age he is not bound to come at any Court during his non-age to pray Admission or to tender his Fine also if the death of the Ancestor is not Presented nor Proclamations made he is not at any mischief although he be of full Age ibid. What things the Heir way do or not before Admittance Upon the death of the Ancestor he may
enter upon the Land before Admittance he may take the Profits punish any Trespass done upon the Land 4 Rep. 21. Brown's Case and 23 Fitch and Huckly He may before Admittance surrender to whose Use he pleaseth paying the Lord his Fine The Lord may avow upon him before Admittance for arrears of Rents or other Services If Baron and Feme Copy-holders to them and to the Heirs of the Husband are and the Husband dyes the Heir of the Husband may surrender his Reversion into the hands of two Tenants of the Manor out of Court before any Admittance during the Life of the Wife and this is a good Surrender for the Reversion was cast upon him before any Admittance Calchin's Case 1 Rolls Abr. 499. Possessio Fratris before Admittance There shall be a possessio fratris before Admittance for if a Copy-holder in Fee have Issue a Son and a Daughter by one Venter and a Son by another Venter What makes a Possession or not for that purpose and his Son by the first Venter enter into the Land and dyeth before Admittance the Daughter shall Inherit as Heir to her Brother and not the Son by the second Venter as Heir to his Father And sometimes the Possession of a Termor without any actual Entry or Claim made by the Heir will make a possessio fratris as if the Copy-holder by Licence of the Lord maketh a Lease for years and dyeth and the Son of the first Venter dyeth before the expiration of the Term being neither admitted nor having made any actual Entry or Claim yet this Possession of the Lessee is sufficient and the Reversion shall descend to the Daughter of the first Venter and not to the Son of the second Venter but if the Lease had determined the Son living by the first Venter and afterwards he had dyed before any actual Entry made the Law would have fallen out otherwise because there was a time when he might have lawfully entred The same Law was as to the possession of a Guardian Heir before Admittance is not a compleat Tenant to all purposes But yet the Heir before Admittance is not a compleat Tenant to all intents and purposes for before that he cannot be sworn of the Homage and he cannot maintain a Pleint in the nature of an Assise in the Lords Court till he is admitted Co. Cop. As there may be possessio fratris c. before the Heirs Admittance so there may be a Tenant by the Curtesie Dyer f. 292. before Admittance of the Feme More n. 425. By Hales in the Case of Blackburn and Greaves Modern Rep. 120. If a Surrender be to the Use of A. for Life the Remainder to his eldest Son c. or to the Use of A. and his Heirs and then A. dyes the Estate is in the Son without Admittance whether he takes by Purchase or Descent One seized of a Copy-hold Tenement in right of his Wife in his Demesn as of Fee surrenders this Copy-hold Tenement without his Wife to the Use of a Stranger in Fee who was admitted by the Lord accordingly Husband dyes and Wife dyes the Heir of the Wife without Admittance enters on the Stranger and made a Lease and good Popham 39. Bullock and Dibler This is no such discontinuance against the Heir as to put the Heir to a Plaint in the nature of a cui in vita it s no more than a Grant which passeth no more than his own Estate and the Heir may intermeddle with the Possession before Admittance Upon a Custom to surrender to two Copy-holders out of Court Surrender to the Heir as a Copy-hold Tenant is good before Admittance Heir may enter and have Trespass before Admittance a Surrender to the Heir of a Copy-holder before Admittance is good 1 Keb. 25. Munifas and Baker Copy-holder dyes the Lord admits a Stranger the Heir may enter and upon re-entry maintain a Trespass without Admittance Noy p. 172. Simpson and Gillion He shall have Trespass and this before his Admittance upon Descent 2 H. 4.12 Pl. 49. 4 Rep. 23. b. Cro. El. 349. Berry and Green When the Heir shall be in by Purchase and not by descent If a Copy-holder of Inheritance surrender this to the Use of another and his Heirs and he to whom the Surrender is made dyes before Admittance and after the Lord admits his Heir he shall be in by Purchase and not by Descent for he is in by the Lord for nothing was in his Father by the Surrender before Admittance 1 Rolls Abr. 827. More 's Case Where there needs no Admittance In the Cases of the Heir per Descent Vide supra When one comes in as of an old Estate A. surrenders Copy-hold into the hands of the Lord and the Lord de novo re-grants the same to A. for Life and afterwards to J. his Wife during the non-age of the Son and Heir of A. and after to the Son and Heir in Tayl. A. dyes the Child being 5 years old Now the Wife is to have the said Lands for 16 years by force of the said Surrender and Admittance The Wife took another Husband and dyed Per Cur. The Husband shall have the Land during the non-age of the Infant and that without any Admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee 3 Leon. p. 9. Dedicot's Case If a Copy-holder be for years and maketh his Executors Executors and dyeth the Executors shall have the Term without any Admittance Sed Quaere for Weston in this point was against Dyer and Brown Joynt-Tenants Release One Joynt-Copy-holder released to his Companion and it was resolved That the Release was good without Surrender or Admittance for the first Admittance is of them and every of them and the ability to Release was from the first Conveyance and Admittance Winch p. 3. Wase and Pretty In what Cases and to what purposes the Copy-hold Estate shall be in the Tenant before Admittance and to what purposes not and what Leases made by them shall be good Upon Surrender nothing is vested in the Grantee before Admittance Vide supra The Copy-holder upon Surrender if the Lord refuse to admit him He who makes the Surrender continues in possession till Admittance cannot enter without Admittance nor have an Action unless there be a special Custom to warrant it for he who makes the Surrender continues in possession till Admittance and not the Lord or Cesty que use and he shall have Trespass against any that enters Cro. El. 349. Berry and Green If by the Custom of the Manor the Copy-hold ought to descend to the youngest Son and the Copy-holder in Fee surrender this to the Use of himself and his Heirs and dyes before any Admittance upon the Surrender and the youngest Son first enters the eldest may not justifie his entrance upon him before Admittance 1 Rolls Abr. 502. If a Copy-holder surrendreth to the Use
of one for Life who is admitted and dyeth He in Reversion he in the Reversion may enter without a new Admittance and therefore H. B. being seized of Copy-hold Land in Fee and having Issue three Sons G. H. and J. he surrenders it to the Use of his last Will and thereby devised it to his Wife for Life the Remainder to H. and the Heirs of his Body the Wife dyed after Admittance Henry dyes without Issue G. may enter and Admittance for him is not necessary 1 Leon. p. 174. Bullen and Grant If customary Lands do descend to the youngest Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected He shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves Feme to her Free-Bench the Freehold of the Copy-hold being granted over The Custom of Free Bench was durante viduitate si tam diu casta vixerit the Wife after the death of her Husband comes into Court and challenged her Right of Free Bench and prayed to be admitted and the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring an Action by reason the Woman was not admitted was the Question for it was agreed no Fine was due to the Lord. Per Cur. If the Freehold of the Copy-hold be granted over and the Husband dyes Admittance in Law there cannot be Admittance in that Case and yet she may enter And in this case she hath done all she could for Admittance and it is an Admittance in Law to an Estate created by Custom and by act of God and Law Continual Claim amounts to an Entry Hutton p. 18. Jordan and Stone In this Case after the death of the Husband the Law casts the Estate upon the Wife before Admittance and she may make a Lease for years as any other Copy-Holder may mesme Case 1 Rolls Abr. 592. Steward will not admit Cesty que use He enters and takes the Profits Lord brings Ejectment the Defendant shall plead not Guilty If a Copy-holder Surrender to a Stranger and the Steward will not admit him and the Stranger enters and occupies the Land if the Lord Lease to a Stranger to try the Title he to whom the Surrender was made although he be not admitted may well plead not Guilty and it shall be found for him against the Lord. In the Case of Arnold and George Yelv. p. 16. agreed by the four Judges Yet Quaere for how can the Stranger make a Title to the Profits without Admittance But perhaps the reason was That the Lord seemed to be particeps criminis for it may be intended he would not suffer the Steward to admit the Defendant She who hath a Widows Estate shall make a Lease before Admittance for the Law vested the Estate in her and there is no Fine due to the Lord Noy p. _____ Remington and Cole Husband enters into the Lands in right of the Wife before Admittance Entry of the Husband in Right of the Wife and Lease by him before Admittance and the Wife dyes before Admittance yet his Lease shall be good 1 Anderson 192. Ewer and Astwick in More n. 425. mesme Case If by the Entry of the Husband without Admittance of the Wife he should be Tenant by the Curtesie and resolved he shall In what Cases the Lord shall be compelled to make Admittances and how and in what not If the Lord of the Manor for the time being be Lessee for Life or Years Guardian or any that hath any particular Interest or Tenant at Will of a Manor all which are accounted in Law Domini pro tempore do take a Surrender into his hands and before Admittance the Lessee for Life dieth or the Years Interest or Custody do end or determine or the Will is determined though the Lord cometh in above the Lease for Life or years or other the particular Tenancies yet shall he be compelled to make Admittances according to the Surrender Co. Lit. 59. b. Earl of Arundel's Case Action on Case by the Surrenderor but not by Cesty que use It was resolved in Gallaway's Case 26 El. The Party that made the Surrender may have Action on the Case against the Lord for not holding his Court and admitting him to whose Use the Surrender was made but Cesty que use cannot Chancery Chancery will compel the Lord to admit a Tenant Tothil p. 65. Custom was That a Copy-holder for Life should name his Successor for Life and to compound with the Lord if he cannot compound then the Homage to assess the Fine he tenders it the Lord refuseth to admit Action on the Case lies not against the Lord and he that is nominated hath not any Interest therein but he may compel him in Chancery Cro. Jac. 368. He that hath no Interest as a Nominee shall have no Action sur Case Ford and Hoskins 1 Rolls Rep. 125 195. ibid. 2 Bulstr 236. mesme Case The Nominee hath neither jus in re nor jus ad rem he hath a nomination only which is matter meerly in Equity he hath neither damnum nor injuriam here because he hath no Interest Littera Attornatu ad sursum reddend tenmenta Custumaria sursum redditio admissio Co. Ent. 576. CAP. XVIII Of Fines Fines certain Vncertain Vpon Descent and Purchase Of Fine Excessive What Customs are good as to payment of Fines Of Fines as to Admittances to Reversions or Remainders What refusal to pay a Fine shall be a Forfeiture or not How the Lord shall recover his Fine Fines FInes due to the Lord upon Admittance are not to be paid till Admittance either upon a Surrender or Descent for Admittance is the cause of the Fine and the Parties being Admitted intitles the Lord to the Fine 4 Rep. 28. Sand's Case and Bacon's Case Though sometimes they are certain and by some Customs uncertain yet they ought to be reasonable Of Fines certain It was the Opinion of Richardson Chief Justice There is scarce a Copy-holder in England but the Fines are uncertain for saith he If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine this makes the Fine uncertain the ordinary course to search it is by Bill in Chancery Lit. Rep. 252. It was but his private Opinion for Fines are certain in great numbers of Manors And I suppose he means as to Evidence for in the Case of Allen and Abraham 2 Bulst 32. there is diversity between proof in case of Descents and Purchase The Case was this Upon not Guilty in Ejectment the matter upon the issue was about the Custom of a Copy-hold Manor whether the Copy-holders upon their Admittances have used to pay Fines uncertain at the will of the Lord or certain i. e. the value of two years Rent To prove the Fines uncertain Evidence to prove uncertainty
the Lord M. with divers Remainders over with a Proviso That the Donees non facerent aliquid in nocumentum vel ex heredat haeredum suorum vel c. sed tantum pro junctura vel pro termino vitae vel pro annis vel ad voluntatem secundum consuetudinem manerij reddend antiquum redditum The said Manor consisted of divers free Rents amounting to 7 l. 15 s. Copy-hold Tenements held for Lives the customary Rent of which was 3 l. and Waste and Herriots The free Rents or Copy-hold Rents or Herriots were never devised before for Life or Years or otherwise A post mortem viri by Fine grants and renders the moiety of the Manor for 300 years rendring Rent amounting to the Free and Copy-hold Rents and 8 d. more payable at two Feasts whereas the ancient Rents were payable at four Per Cur. the Lease was void the Copy-holds ought to have been granted by Copy and not by Fine and the reservation at two days where the Rent was payable at four days before made the Grant void for its ad nocumentum haered and there can be no apportionment in that case for Copy-holds for Lives are uncertain and Herriots accidental When two Ferms are joyned together the entire Rent which is reserved out of both of them is a new Rent and not the accustomable Rent 5 Rep. 5. Lord Mountjoy's Case By whom made Ecclesiastical person If a Bishop let Copy-hold Land for Life rendring the ancient Rent it s not good because the Successor cannot Distrain the Copy-holder for Rent but if it be of a Manor to which a Copy-hold belongs its good Lit. Rep. 305. in Sheers Case Dean and Chapter of Worcester Lord of a Manor in jure Ecclesiae of which Manor H. G. was a Copy-holder for Life of Lands under the Rent of 8 s. 8 d. per annum payable Quarterly and Herriotable at the death of the Tenant the Copy-holds were by the Custom grantable for three Lives they demise the said Lands to H. G. and his Assigns for the Lives of R. J. and M. and the survivor of them renduring 8 s. 4 d. per annum at two Feasts Question was if this Lease were good or might be avoided by the Successor Per the Statute 13 Eliz. Cap. 10. It was resolved 1. The Lease was good though it was made pur auter vies and that the Occupants shall be punishable for Waste 2. Customary Demises are within this Law Customary demises are not in the Statute 13 Fl. cap. 10. for this Estate granted by Copy was in judgment of Law an Estate at Will and without doubt Lands which have been accustomed to be demised at will by those which have the Inheritance of the Land rendring rent are Lands accustomably let to Farm within the said Act. 3. The said Act of 13 El. doth not avoid the Lease if the accustomed yearly Rent or more be reserved and for that an Herriot is not a thing Annual nor a thing depending on the Rent it sufficeth if the Annual Rent be reserved 6 Rep. 37. Dean and Chapter of Worcesters Case Cro. Jac. 76. Baugh and Heyns mesme Case As to Leases by Bishops of Manors consisting of Copy-hold Lands and Services of Free-Tenants and reserving the ancient Rent vide 3 Keb. 372. Mod. Rep. 203. Threadneedle and Lynham Infant Copy-holder in Fee leaseth for years Infant without Licence by parcel rendring Rent Lease affirmed by acceptance at full Age he accepts the Rent being admitted to the Copy-hold and after ousts his Lessee Lessee brought Ejectment Judgment for the Lessee Per Cur. this Lease for years is no Disseisin to the Lord though it may be a Forfeiture and this Lease is not void but voidable and may be affirmed by acceptance Noy p. 92. Ashfield's Case Lach. p. 199. Vide Rolls Rep. 256. By a Copy-holder or Heir before Admittance vide Admittance As to Rents reserved Lands at Common Law and Copy-hold Lands are leased by one Indenture Lease of Free-hold and Copy-hold the Rent issues out of both rendring Rent the whole Rent shall issue out of the Lands at Common Law and not out of the Copy-hold But if a man leaseth Land part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the entry of the Disseisee the Rent shall be apportionted Moor n. 144. Term. Pasch 5 El. But the Law is not so for in Collins and Harding's Case Moor n. 723. the Judges were divided in Opinion about this very point But in Rolls 2 Abr. p. 426. it is resolved That this Rent shall issue out of the Copy-hold Land as well as out of the other Land for a Rent may be reserved out of the Copy-hold Land and this is such a thing to which one may resort for a Distress Collins and Harding's Case And this Case is farther Reported by Rolls 1 Abr. p. 234. If a man Lease for years Freehold Land and also Copy-hold Land by Licence of the Lord reserving a Rent and after grants the Reversion of the Free Land to another and the Lessee Attorn the Rent shall be apportioned for this waits upon the Reversion Rent apportioned vide Collins and Harding's Case also Reported in Cro. El. p. 600 622. The Rent issueth out of both and is not like to a Lease of Lands and Goods for all the Rent is there issuing out of the Lands and it is now in the Hands of the Grantee as one entire Reversion Pleading and he shall declare accordingly and although they be several Reversions yet he shall declare upon the truth of the matter Copy-holder by Licence of the Lord demised the same by Indenture to the Plaintiff for twenty years under the Rent of 25 l. per annum the Copy-holder surrenders the Reversion of the one moiety of the same Copy-hold to the Use of one N. W. to which he was admitted and then the Reversion of the other moiety to W. who was admitted Per Cur. the Surrender by the name of a Reversion is good though the Lease is by Indenture and not by Surrender Rent apportioned which if it had been so it had been derived directly out of the customary Estate for still it is the Lease of the Copy-holder and not of the Lord. Quaere if the Copy-holder in this case should forfeit his Estate the Lease would stand good against the Lord being by Licence And Per Cur. the Rent is to be divided by moyeties according to the halves of the Reversion and in this case it was resolved there needed no Attornment upon the Surrender for the Admittance settles the Estate Attornment Hobart 177. Swinnerton and Miller It was said by Hale Chief Justice That a Lease for years of Lands that are Copy-hold Lease of Copy-hold without taking notice that it was Copy-hold particularly without taking notice that this was Copy-hold this is good for the Rent of the Copy-holder and after
Copy-holder It hath been a Question when a Copy-holder bargains and sells his Copy-hold to the Lord of a Manor in Lease for years whether the Copyhold Estate was extinguished But in Hutton p. 81. it is agreed that this Copy-hold is not extinguished but that the Lord who is Lessee for years is Dominus pro tempore and may grant it by Copy de novo The Lord of a Manor demised Copy-hold Lands to three Sisters Habend to them for their Lives successive the eldest Sister married one C. after which the Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after making the said Indenture but four days after the Lease made she agreed to it in pais and then married a Husband Agreement to an Indenture by one in Remainder for Life and they claim the Land The point is if by Agreement of the second Sister her Right to the Copy-hold were extinct The Interest of the eldest Sister is gone by her acceptance of the Estate by Indenture now if the second Sister may come and claim her customary Interest Per Cur. it s no extinguishment in the second Sister and yet Judgment was against her for Per Gaudy none can take advantage of the eldest Sister's Estate being determined the Lord against his Lease cannot enter or claim and the second Sister cannot enter during the Life of the eldest Sister for her Remainder takes effect in possession after the death of her said Sister 1 Leon. p. 73. Curtis and Cottell's Case 28 Eliz. Trin. B. R. By acceptance of a new Estate of Free-hold Baron and Feme Copy-holders to them and their Heirs the Baron in consideration of mony paid by him to the Lord obtaineth an Estate of the Freehold to him and his Wife and to the Heirs of their Bodies Baron dieth having Issue the Feme enters and suffers a Recovery and his Heir enters Per Statute 11 H. 7. Per Cur. the Entry is lawful for the Copy-hold by the Acceptance of the new Estate was extinguished Cro. El. 24. Stockbridge's Case Where and how Right to a Copy-hold shall be Extinguished by Release A man makes a Surrender of his Copy-hold Land to J. S. which is not good and after J. S. is admitted he which made the Surrender releaseth to him being in possession and after enters upon him The Question was if his Entry be congeable and if by the Release by Deed the customary Right of the Copy-holder was extinct And Per Cur. it is extinct by the Release for he to whom the Release was made was Copy-holder in possession and admitted to the Tenements and therefore the Release of a customary right may enure to him and the Lord hath no prejudice for he hath received his Fine for Admittance and he to whom the Release is made is in by Title viz. by Admittance of the Lord and so this Release enures by way of extinguishment And there is great difference between transferring of an Estate and an extinguishment of a Right Diversity between the transferring of an Estate and the extinguishment of a Right But if a Copy-holder be ousted per Tort there his Release to the disseisor or other wrong doer does not transfer his Right or Bar him 1. Because there is no customary Estate upon which a Release of any customary Right may enure and then 2. It would be a prejudice to the Lord who would lose his Fines and Services Co. 4 Rep. 25. b. Kite and Queinton In Replevin bar to the Conisance That K.D. was seized of the Manor of R. in Fee and that the Tenements in which c. were customary held of the said Manor and that at such a Court a Copy was granted to the Plaintiff whereby he entred and put in his Beasts The Defendant protesting the Premisses were not customary for Plea saith That before the Plaintiffs Title J. Abbot of the Monastery of B. was seized of the Manor of R. c. and one R. T. being seized of the customary Lands in which c. in Fee at the will of the Lord the said R. surrendred to the Abbot who was possessed and occupied the said Premisses for divers years and afterwards demised the said Manor for 40 years to W. M. and then surrendred the entire Manor and Abbathy to H. 8. who granted the entire Manor to the Duke of Norfolk in Fee and he with the assent of the Termor made a Feoffment to Drury of the Manor to whom the Termor surrendred his Lease Drury dyes and it descends to his Heir who granted the Land in which c. again by Copy to Tillot for his Life who entred and put in his Beasts Demurrer The Question was if the Custom is destroyed or if Drury the Defendant may avoid his Grant by Copy Note The custumary Land was never severed from the Manor but granted with the Manor as part of it and was demisable by Copy by all the Lords of the Manor and so it remained till the 15th of Eliz. when the Defendant granted the Copy to the Plaintiff Winch Ent. 991 992. Where a Copy-hold shall be perpetually extinct or where it shall after become a Copy-hold by regrant Forfeit Escheat If a Copy-hold Estate be forfeit or escheat to the Lord or otherwise come into the Hands of the Lord if the Lord make a Lease for years or for Life or other Estate by Deed or without Deed this Land shall never after be granted again by Copy for the Custom is destroyed for that during such Estates the Land was not demised nor demisable by Copy of Court Roll So if the Lord make a Feoffment and enter for the Condition broken it shall never be granted again by Copy But if the Lord keep it in his Hands a long time or let this at will then he may re-grant it Lach p. 213. 1 Rolls Abr. 498. Downcliff and Minors So if the interruption be tortious as if the Lord be disseised and the disseisor dye seized or the Land be recovered against the Lord by false Verdict or erroneous Judgment yet after the Land recovered or the judgment reversed this is grantable again by Copy Legal Interruptions But if the Land so Forfeited or Escheated before any new Grant be extended upon a Statute or Recognizance acknowledged by the Lord or the Lords Wife hath this assigned to her in a Writ of Dower though these are impediments by acts in Law yet the interruptions are lawful and the Lands may never again be granted by Copy 4 Rep. 31. Frenches Case If Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed but such Lessee may re-grant the Copy-hold again to whom he will for the Land was always demised or demisable If a Copy-hold be surrendred to the Lessor of a Manor or be Forfeited to him he his Executors or Assigns may well
dedemisable for one two or three Lives in which Manor was a Custom that the Lord for the time being might grant Copy-hold Estates for Life in Reversion the Lord granted such Lands for Life by Copy in possession took a Wife and granted the same Copy-hold to a Stranger in Reversion for Life and dyed the Copy-holder in possession dyed this Land inter alia is assigned to the Wife for her Dower Dower the Copy-holder shall hold the Land discharged of the Dower 1 Leon. p. 16. Cham and Dover's Case In Cham and Dover's Case is cited the Case of Slowman who being Lord of a Manor ut supra by his Will devised That his Executors should grant Estates by Copy and dyed having a Wife the Executors make Estates accordingly Dower the Wife in case of Dower shall avoid them Dyer 344. and 1 Leon. p. 16. Lord of such a Manor is bound by Recognizance Recognizance afterwards a Copy-holder for Life dyeth the Lord granteth his Copy-hold de novo the new Grantee shall hold the Land discharged of the Recognizance for the Copy-holder is in by the Custom which was paramount 1 Leon. p. 16. Granted upon an Escheat shall avoid Charges The Lord of a Copy-hold Manor where Copy-holders are for Life grants a Rent-charge out of all the Manor one Copy-hold Escheats the Lord grants that again by Copy the Grantee shall not hold it charged because he comes in above the Grant viz. by the Custom the same Law of Statutes Recognizances Dower and Dyer 270. is deemed for Law in Swain's Case Copyholders Beasts distrainable or not for a Rent charge If one is seized of Rent-charge by Prescription issuing out of the Manor of D. yet it seems he may not distrain the Beasts of the Copy-holders of the Manor unless they have been used to be distrained for that they are in by Prescription also and so as high as the owner of the Rent but it is clear That if the owner of the Rent had this by Grant or otherwise and not by Prescription that the Copy-holders Beasts cannot be distrained for this 1 Rolls Abr. 669 670. Cannon and Turner But by Coke Chief Justice If a Copy-holder be of 20 Acres and the Lord grants Rent out of those 20 Acres in the Tenure or occupation of the said Copy-holder and names him there if this Copy-hold Escheat and be granted again the Copy-holder shall hold it charged for this is now charged by express words Brownl 208. Sammer and Force Tenant by the Curtesie for Life or years of a Manor a Copy-hold comes to his Hands by Forfeiture or Determination and then he was bound in a Statute Statute by the Lord. and afterwards demised the Land again Per Cur. this Copy-hold shall be lyable to the Statute because it was once annexed to the Free-hold of the Lord and bound in his Hands But if a Copy-holder bind himself in a Statute Statute by the Copy holder Diversity it shall not be extended for he had not but an Estate at will and this diversity was agreed in Moor n. 233. Anonymus Lord of a Manor being summoned upon a Jury lose Issues Process for Loss of Issues Process shall issue out of the Exchequer to levy them upon the Lands of the Copyholders and Lessees for Life and years parcel of the Manor for the loss of Issues lies upon the Land as an inherent Servitude by the Law into whose Hands soever it comes and this is the common practice of the Exchequer CAP. XXV Of Harriots The Nature of Harriot Service and Harriot Custom and of their Differences What Custom for Harriots are good or not Where they shall be apportioned and by whose acts Who shall pay Harriot or not And the Pleadings Of Harriots HArriots being one of the ancient Services now most esteemed and kept up and many Copy-holds being Harriotable I shall Treat of Harriots chiefly intending Harriot Customs and so far of Harriot Services as to render the whole Intelligible The Normans upon parcelling out their Lands to inferior Tenants invented this Service and termed it Harriot Service and afterwards upon Infranchisement of their Villains Harriot Customs were given to the Lords for a future continued gratulation and so originally they were de gratia but now they are de jure It is the best Beast or other thing that the Tenant hath at the time of his death and this shall be paid before a Mortuary but the Lord if he will may seize the worst and that seizure gives him property Hob. p. 60.16 H. 7.5 Co. Lit. 185. b. Harriots may be by Tenure Custom or Reservation Plowd Com. Redsole and Mantel There are two sorts of Harriots Harriot Service Custom And the nature of them both will be best explained by these diversities Harriot Service is generally exprest in a mans Grant or Deed by which it is reserved and is in these words or to this effect ac etiam per servitium reddendi post mortem cujuslibet tenentis deceden seisit optimum animal c. 1 Anderson 298 299. Odiam and Smith But Harriot Custom is only due by Custom time out of mind and may be paid after the death of Tenant for Life Terms del Ley. Harriot Service is extinct by Purchase of parcel but not Harriot Custom Co. Lit. 149. b. It hath been made a question in our Books whether the Lord may seize for Harriot Service but it is agreed he must seize for Harriot Custom Plowd 96. a. In the Case of Woodland against Mantel it is said the Lord may seize for Harriot Service but Anderson 1. p. 298 299. in Odiham and Smith's Case saith he ought to distrain and not to seize so is Serjeant Benlows p. 18 39. But the Law is setled in Cro. Car. 260. Mayor versus Brandwood and that it is at the Lords election either to seize it or distrain it if he can find it though the pleading seem to justifie it for in Replevin if one justifie for Harriot Custom it s no Plea for the Plaintiff to say that the place where is hors de son Fee for that he claims this Harriot as his proper Gopds and may seize it wherever he finds it Bendl. p. 18 39. For the Lord may seize for an Harriot Custom in the High-way 2 Inst 132. What Custom for Harriots shall be good or not Custom was That if the best Beast be esloigned then the Lord had used to seize and take the best Beast of any other being Levant and Couchant upon the Land it s a void and unreasonable Custom So if it be the Goods of any Inhabitant or Dweller Dye 199. b. Paxton's Case Benl p. 39. bis Co. Ent. 666. The Custom of having an Harriot whether the man had Goods or not is a void Custom Carter's Rep. p. 86. A Custom That the Lord shall seize the Beasts of a Stranger for an Harriot it is not good because it alters the property but a Custom That he shall distrain
the Goods in such Case it is good because it is as a Pledge 2 Leon. p. 725. Parker's Case Where Harriot shall be apportionable or not By the Act of the Lord. Tenant Lord and Tenant by Fealty and Harriot Service and the Lord purchaseth part of the Land the Harriot Service is extinct because it is intire valuable Aliter of Harriot Custom for if the Custom of a Manor be That upon the death of every Tenant of the Manor that dyes seized of any Land holden of the said Manor the Lord shall have an Harriot although the Lord purchase parcel of the Tenancy yet the Lord shall have an Harriot by the Custom of the Manor for the residue for he remains Tenant to the Lord and the Custom extends to every Tenant Co. Lit. 149. b. 6. Rep. 1.2 Bruerton's Case 8 Rep. 105. Talbot's Case 106. Feme by Custom is to have a moiety by Survivor and if Harriot be to be paid for the whole if it be part surrendred both shall pay Harriots 1 Keb. 356. Muniface and Baker Act of the Tenant If Tenant alien parcel of the Tenancy entire Services as Homage Fealty Harriot c. shall be multiplied Solida a singulis praestantur If my Tenant who holds of me by an Harriot aliens parcel of his Land to another each of them is chargable to me with an Harriot because it is entire and though the Tenant purchase the Land back again I shall have of him for every portion an Harriot 6 Rep. 1. Bruerton's Case 8 Rep. 105. Talbot's Case 34 Edw. 3.1 Copy-hold was held by Rent and Harriot upon Alienation and Surrender Copy-holder aliens parts of his Copyhold to one and part to another and retains part in his Hands and surrenders to the Use of the Alienees Per Cur. the Lord shall have an Harriot upon every alienation in case of a Copy-holder as well as a Tenant at Common Law If they should not be multiplied it would be in the power of the Tenant to defraud the Lord by Alienation of parcels and in this case the Alienor pays the Harriot because he continues Tenant and upon every Alienation after by the Alienees they shall pay it Palmer's Rep. 342. Sir Francis Snag against Fox 1 Keb. 357. If a Copy-holder being sick in his Bed doth surrender into the Hands of two Tenants c. to the Use of his eldest Son in Fee and dyeth before the Surrender is presented in Court the Lord must have an Harriot If Surrender had been presented in Court and Admission before the Father's death Aliter If an Harriot is due to the Lord upon every descent only and a Surrender is made by a Copy-holder unto the Use of his Heirs in full Court and to his Heirs and the eldest Son is admitted Tenant accordingly and the Father dyeth the Lord shall have no Harriot Who shall pay an Harriot and when or not Where many Purchase Land joyntly an Harriot shall not be paid till after the death of the Survivor 8 Rep. 105. If by Custom a Copy-holder dyes seized he shall pay an Harriot to the Lord and after the Copy-holder is disseised and dyes during the disseisin yet he shall pay an Harriot within this Custom for he was Tenant in right notwithstanding this disseisin 2 Rolls Abr. 72. Norris's Case Lease is made to A. for 99 years if B. C. and D. or any of them so long shall live to commence after the determination of a former Lease rendring Rent after the commencement of the term ac etiam post mortem B. C. D. respective for an Harriot 3 l. B. dyes before determination of the first term and Lessor brings det for 3 l. for an Harriot Per Cur. no Harriot is due because coupled with a Rent and no Rent is due during the interesse termini but both begin together Siderfin p. 437. Hangon and Carve Lease is made for 99 years if I. and S. live so long to commence after the determination of a former Lease to Sibel if Sibel lived so long reddendo 40 s. per annum and 3 l. in the name of an Harriot post mortem of each Cesty que vie Per Cur. the Harriot ought not to be paid till the Lease come in possession which is not till Sibel dye at which time the second Lease takes effect and this shall follow the nature of the Rent being in company with such Rents and Services as are to be only done when the Lease comes in possession and the Lease to Lessee for 99 years is but a future Interest where the Lessor hath no Reversion nor the Lessee any term and reddendo is a reservation and therefore cannot take effect till there is a Reversion but Keeling contra this being a sum in gross and here is an express agreement to pay after the death of either of the Parties and agreements may reach payments as well on contingency as where the Party hath Interest 1 Keb. 677. Lemal against Cara. Who shall have an Harriot A. is Copy-holder for Life of Lands Harriotable by the Custom if he dye seized and the Lord grants the Freehold of the Copy-hold to B. for 99 years if A. the Copy-holder so long live the Remainder to A. for 1000 years and afterwards A. assigns over his Lease of 1000 years to C. and afterwards A. makes F. his Executor and dyes seized Per. Cur. C. the Assignee of 1000 years shall not have an Harriot because at the time of the death of A. when the Harriot became due he was not Lord but had only a future Interest and if any Harriot be to be paid the Executor of A. or the Lord in Fee shall have it P. 15 Jac. B. R. Norris and Norris 2 Rolls Abr. 72. This Case in March p. 23. is Reported thus The Lord granted the Seigniory for 99 years if the Tenant should so long live and after he made a Lease for 4000 years Tenant for Life is disseized or more properly ousted and dyed Two points resolved 1. An Harriot was to be paid notwithstanding the Tenant did not dye seized because he had the Estate in right and might have entred 2. He in the remainder for years should not have it their reason was because the Tenant for Life was not the Tenant of him who had the future Interest of 4000 years but of him who had the Interest for 99 years but the Court was not agreed that the Grantee for 99 years should have the Harriot the reason of the doubt was because that eo instante the Tenant died eodem instante the Estate of the Grantee for 99 years determined A Bishop is seized of the Manor of D. and he lets twenty Acres of it to A. and B. during the iives of their three Children rendring 21 s. Rent per Annum and also paying and delivering to the Bishop and his Successors two of the best Beasts upon the death of every Cesty que vie The Bishop after lets all the Manor to W. rendring the ancient
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 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 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 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 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 or Surrenders or other Assurance or Assurances to be made of the same Copy-hold Lands and Premisses all and singular the said Copy-hold Lands and Premisses so to be surrendred or otherwise conveyed as aforesaid shall be free and clear and freely and clearly and absolutely acquitted freed and discharged of and from all former Surrenders and Forfeitures and other Incumbrances whatsoever had made done or wittingly and willingly suffered by him the said A. B. or by any other person and persons whatsoever one Lease made by the Licence of the Lord of the Manor aforesaid to K. F. c. of c. of one Copy-hold Messuage c. excepted A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time This Indenture made c. between Sir T. D. of P. c. of the one part and I. H. of c. of the other part Witneseth That whereas the said Sir T. D. hath now lately surrendred into the Hands of the Lord or Lords of the Manor of W. in the said County of S. by the Rod according to the Custom of the said Manor by the Hands and acceptanc of R. C. and E. M. two of the customary Tenants of the said Manor all that Messuage c. To the Use of the said I. H. his Heirs and Assigns to hold according to the Custom of the said Manor with a proviso and upon condition That if the said Sir T. D. his c. shall and do well and truly pay or cause to be paid c. at c. then the said Surrender to be void and of none effect as by a Note or Memorandum of the said Surrender taken out of the Court the day of the date hereof relation c. more plainly appeareth Now the said Sir T. D. doth for himself his Heirs Executors and Administrators Covenant c. to and with the said I. H. his Executors and Administrators by these presents to pay the Mony at the day and place and in manner and form in the said Proviso or Condition of the said Surrender before recited limited and appointed for the payment thereof And farther also That the said Sir T. D. at the time of the making of the said Surrender before recited had a good Estate of Inheritance in Fee-simple according to the Custom of the said Manor of W. of and in all and singular the said Messuages c. before mentioned to be surrendred and had good right and lawful and absolute power and authority in himself to surrender the same and every part thereof unto the said I. H. and his Heirs in manner and form aforesaid and that the same are free from all former Surrenders and Incumbranses whatsoever In default of payment I. H. and his Heirs to enjoy the Premisses for ever After default in payment Sir T. D. covenants for farther Assurance be it by Fine or Recovery according to the Custom of the said Manor Surrender Release or Confirmation or all or any of the said wayes or means in the Law whatsoever as by the said I. H. his Heirs or Assigns or his or their Councel learned in the Law shall be reasonably devised advised or required Till default of payment I. H. to permit and suffer Sir T. D. to enjoy c. A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts This Indenture c. Between A. B. c. the Commissioners of the one part and C. D. c. Assignees of the other part Whereas the King and Queens Majesties Commission under the Great Seal of England grounded upon the several Statutes made concerning Bankrupts bearing date at Westminster the day of c. last past hath been awarded against E. F. of c. and directed to the said Commissioners thereby giving full power and authority unto the said Commissioners four or three of them whereof the said A. B. and P. B. to be one to execute the same as by the said Commission more at large appeareth And whereas the Commissioners parties to these presents or the major part of them or the major part of the Commissioners by the said Commission authorized having begun to put the said Commission in Execution upon due examination of Witnesses and other good proof and upon Oath before them taken do find That the said E. D. hath for the space of six years last past or thereabouts used and exercised the Trade and profession of a c. in buying and selling of c. at his House and Shop in S. aforesaid and sought and endeavoured to get his living by buying and selling And that the said E. F. so seeking and endeavouring to get his living by buying and selling during the time of his said Trading did become justly and truly indebted and still doth owe and stand indebted unto the above-named C. D. and other his Creditors in the sum of c. and being so indebted he the said E. F. did in the judgment of the said Commissioners parties to these presents become Bankrupt to all intents and purposes within the compass true intent and meaning of several Statutes made concerning Bankrupts or within some or one of them before the date and suing forth the said Commission And whereas also the said Commissioners parties to these presents or the major part of the Commissioners by the said Commission authorized having also found out and discovered that he the said E. F. at the time and since he became Bankrupt was and stood seized to him and his Heirs according to the Custom of the Manor of L. in the County of L. of and in c. All which Copy-hold or customary Premisses the greater part of the above-named Commissioners by the said Commission authorized have caused to be viewed and rented and the same to be appraised to the best value they can or may and accordingly the same have been viewed rented and appraised by R. S. and T. V. men of sufficient skill and ability for the doing thereof in manner and form following that is to say
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 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 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 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
Dominoru Manerii pd per virgam secundum consuetud ejusdem Manerii per manus F. E. S. S. custumar ' Tenen pdictur Manerii Et juratur ad capiend sursum redditur in extremis tantum totur illud custumar Messuagiu sive Tenementum suum cum ê‘tin adinde spectan scituatur jacen existen c. infra Parochia cognitur per nomen de c. tunc in tenura sive occupatione T. N. ad opus usum ultur voluntatur sue in scriptis sub manu sigillo suis usus in ead declaratur Quodque pdictur I. C. post confectionem sursum redd pdictur obiit seitur Modo ad hanc Curiam ven A. C. vid mater pdictur I. C. ê“tulit hic in Curiam ultur voluntatem sive Testamentur dic I. C. debÌ„to modo factur probatur in Curiam c. geren datur decimo sexto die Iunii ultimo sciltur pterito tenor cujus quoad Messuagium sive Tenementum pdictur cum ê‘tinen sequitur in his verbis sciltur 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 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 pdictur A. C. petit se admitti ad pmissa pdictur secundum formam effectum Testam pdictur pro termino vite sue naturalis Cui DnÌ„i per Seneschallum suum pdictur concesser inde seisinam per virgam habend sibi Assign suis pro termino vite sue naturalis remanere inde in forma pdictur Tenend de Dominis per virgam ad voluntatem Dominorum secundum consuetudinem Manerii pdictur per redditur servic consuetud inde prius debitur de jure consuetur Et dat Dominis de fine fecit fidelitatur admissa est inde tenens Et postea sedente Curia predictur A. C. sursum redd in manus Dominorum ê‘ manus Seneschalli sui pdictur ê‘ virgam secundum consuetud Manerii pdictur totur illud Messuagium sive Tenementum pdictur cum pertin vocatur sive cognitur ê‘ nomen c. totum Statu jus titul interesse sua de in eod ad opus usum pdictur I. C. filii I. C. hered assign suorum imperpetuum cui quidem I. fil psen hic in Cur DnÌ„i ê‘ Senescallu suum pdictur concesser inde seisinam ê‘ virgam habend sibi heredibus suis sub conditionibus in ultur voluntate sive Testamento pdictur I. C. defuncti mentionatur contentis Tenend de Dominis per virgam ad voluntat Dominorum secundum consuetudinem Manerii predictur per redditur servitur consuetud inde prius debitur de jure consuetur dat Dominis de fine fecic fidelitatur 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 clÌ„a terre in c. pditur alicui persone vel aliquibus personis pro aliquo termino annorum non Excendentur Termin trigentur unius annorum a festo sui MichÌ„is tunc ê“x 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 psentatur est per homagÌ„ quod E. H. vid un Customar Tenen hujus Manerii citra ultur Cur ante hanc Cur obiit seisitur de uno Customar Messuagio vocat sive cognitur c. tentur per Copiam Rotulorum Curie hujus Manerii quod W. E. est filius prox here 's dicte E. quia pdictur W. non venit ad Capiend premissa pdictur 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 HomagÌ„ pdictur super Sacramentur suum pdictur dicunt presentant quod summa Centur triu librarum mentionatur in sursum redd conditional factur per R. F. S. Vxor ejus cuidam E. L. ad ult general Cur tentur pro Manerio pdictur die martis in prima septimana Pasche solubÌ„ suê‘ decim Octavum diem Septembris ultur pteritur non fuit solutur secundum dictam conditionem in dicta sursum redd specificatur 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 admissÌ„ fuer ad ultimam generalem Curiam ad un ClÌ„m terre continen per estimationem novem Acr jacen prope c. suê‘ sursum redd C. N. A. Vxor ' ejus nunc taxatur ad decem libras solvend Senescallo Manerii pdictur apud Cameram sua scituatur 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 comptur est per HomagÌ„ quod premissa in sursum redd superius ultur mentionatur sursum redd per super nominatur I. D. ad T. B. heredibus suis inter alia oneratur fuer cum solutione summe Centur librarum legalis monete Anglie cuidam M. D. soror ' pdictur I. solvend cum attingerit ad etatem vigintur unius annorum vel ad diem maritagii primo contingen cum summa al Centur librarum consimilis monete Anglie cuidam A. D. alteri sorori dic I. solvend in eodem modo prout ê‘ ultimam voluntatem G. D. eorum Avi geren datur decimo quinto die Augusti Anno Domini 1670. plenius apparet quodque pdicta M. etatur suam vigintur unius annorum pimplevit Et ê‘ quoddam scriptum suum sub manu sigillo suis debito modo factur