Newly Printed THE Modern Conveyancer Or Conveyancing Improved being a choice Collection of PRESIDENTS on most Occasions Drawn after the manner of Conveyancing now in Use By the greatest Hands of the present Age of which some are still living Consisting of Settlements of Estates upon Marriages Mortgages Assignments c. With an Introduction concerning Conveyancing in General in large 8 vo Printed for J. Walthoe in Vine-Court Middle Temple LEX CVSTVMARIA OR A TREATISE OF Copy-hold Estates In respect of the Lord Copy-holder WHEREIN The Nature of CUSTOMS in general and of particular Customs Grants and Surrenders and their Constructions and Expositions in reference to the thing granted or surrendred and the Uses or Limitations of Estates are clearly Illustrated Admittances Presentments Fines and Forfeitures are fully handled and many Quaeries and Difficulties by late Resolutions setled Leases Licences Extinguishments of Copy-hold Estates and what Statutes extend to Copy-hold Estates are explained AND ALSO Of Actions by Lord or Tenant and the manner of declaring and pleading either Generally or as to particular Customs with Tryal and Evidence of Custom and of Special Verdicts TOGETHER With a Collection of many CASES wherein a Copy-holder may receive relief in the Court of Chancery To which are Annexed PRESIDENTS of Conveyances respecting Copy-holds Releases Surrenders Grants Presentments and the like As also PRESIDENTS of Court Rolls Surrenders Admittances Presentments c. By S. C. Barister at Law LONDON Printed by the Assigns of Richard and Edward Atkins Esquires for Iohn Walthoe and are to be sold at his Shop in Vine Court Middle Temple adjoyning to the Cloyster 1696. THE PREFACE TO THE PRACTICERS OF THE LAW SIR Edward Coke in Bagnal and Tucker's Case in Brownl 2 Rep. is of Opinion That the third part of this Realm is in Copy-hold If we consider the long and continued Series of Practice that this Great Man was Conversant in either at the Bar or Bench and to whom persons from all parts and corners of the Nation resorted as to the Oracle of the Law we shall not easily conceive his Judgment was not Temerarious but rather that he had good Reason for such positive conjecture However it is most certain That a vast number of Estates and those considerable too depend upon no other than Custom in point of Title and are no other ways preserved in point of Evidence then by Copies of Court Rolls Now we find large and very elaborate Volumes published concerning Estates and Tenures at Common Law and yet very little hath been professedly wrote upon this Subject tho' so great a part of the Lands and Estates of this Nation are protected and preserved by it which I the more wonder at for that to know when a Custom is good and allowable in Law requires a more than ordinary skill and amongst the infinity of Customs to try them by and pertinently to apply them to those four standing Essentials Antiquity Continuance Certainty and Reasonableness is a Work of great Judgment and Dexterity besides Constructions and Expositions of Grants and Surrenders the Penalty and fatal Consequence of Forfeitures under an obstinate Lord especially such as are wilful the nicety and variety of Customs seem very well to deserve a particular and designed Treatise I remember but two that have professedly handled this piece of Learning my Lord Coke in his Compleat Copy-holder and Mr. Calthrop in his Readings which tho' they are done with good Judgment yet as they do totally omit many Titles which are of great Use so they extend to very few more Cases than those which are amast together in the 4th Report since which we have thousands of Cases Argued and Debated and some Points started which are primae impressionis and in truth it is not fit to croud so much excellent Learning and of such general Use into a Manual In this Treatise you will find Totum Domini Totum Tenentis The Lord may see his power tho' moderated and the Tenant may understand his Duty and his Priviledge For Tempora mutantur when Bracton and Fleta wrote poor Copy-holders tempestive intempestive pro voluntate Domini possent resumi revocari But the Lord now is not Enthroned like a Grand Seigniour whose Proceedings are Arbitrary and his Humors Laws no he is a mixt Monarch he is bound up by the Customs and Constitutions of his little Empire 'T is true they are Tenants Ad voluntatem Domini yet this Will is abridged clogged and restrained secundum consuetudinem Manerii The Learning of Copy-holds is subtle and curious in the Arguments and Pleadings As for the purpose That great Question whether and how Copy-holds may be Intayled has been Argued with great subtilty and penetration as you may read Popham p. 32. Gravenor's Case Cro. Car. 42. Rowden and Malster's Case And in Carter's Reports 22. Taylor and Shaw's Case Now the mentioning of this Argument hath presented me with an Answer to what I foresee will be imputed as Faults to me In some Cases I am thought too tedious and write a great part thereof Verbatim and I think I have reason so to do tho' that is but seldom The reason of some Cases will ill bear abstracting as to Instance in that Great Man's Reports I mean my Lord Hobart and Mr. Justice Yelverton's Cases They that can satisfie themselves with half a Case let them dabble in those silly Abridgments of Moor Croke c. I was always of this mind That in the gelding a close and well compacted Argument the Vigour of it is in a great measure dwindled and emasculated Another Crime perhaps may be that I cite one Case two or three times and I do so when I meet with a copious prolifick Case which brancheth it self into several Points I thought it more Intelligible and Methodical to Graft each Shoot into its proper Title whether it be a point in Law or a Formality in Pleading But not to spend time in creating Apologies for Crimes perhaps which I shall never be accused Gentlemen I surrender the whole to your Use and hope thereby to gain Admittance into your favourable Opinion THE CONTENTS OF THE CHAPTERS IN THE Ensuing TREATISE CAP. I. OF the Original and nature of a Manor and of what it consists Of a Manor real and by reputation Of a customary Manor Of Grants and Leases of Manors chiefly respecting Copy-hold Estates and what shall be said parcel of a Manor and what shall be said severance of Copy-hold from the Manor CAP. II. The notion and nature of a Copy-hold as to its Basis and Foundation How a Copy-holder and a Tenant at Will at Common Law differ The general Maxims and Rules of Copy-hold Estates together with the several differences and diversities by the perusal whereof the ensuing Cases will be rendred the more easy and Intelligible CAP. III. The Priviledge of Copy-hold Estates Priviledges of the Lord. Of the Tenant Of Infants Copy-holders Of the Kings Prerogative and Priviledge in respect of Copy-holds CAP.
4. Rep. 29. Bunting and Lepingwel 5. Copy-hold ought to be dimissa dimissibilis as it is in Murrels Case 4 Rep. vide infra Tit. Custom Yet this Rule is not Infallible For if a Copy-hold Land be in the hand of a Subject who is after preferred to Dignity Royal the Copy-hold is extinct for it is below the Majesty of a King to perform servile Services and yet after his Decease the next who hath right shall be admitted and the Tenure shall be revived in him 2 Siderfin 82. CAP. III. Priviledges of Copy-hold Estates 1. Priviledges of the Lord. 2. Of the Tenant 3. Priviledges of Infants Copy-holders 4. Of Copy-holds in respect of the Kings Prerogative and Priviledge BEfore I come to Treat farther of Copy-holds I thought it might not be amiss to set down the Priviledges of Copy-holders and Lords and Prerogative of the King that so the Student being well setled in these they need not be mentioned or explicated hereafter though they may lye here and there scattered in the following Cases Priviledges of the Lord. The Lord may upon Seizure of a Copy-hold maintain an Ejectment till the Heir come to be admitted 1 Keb. 287. Pateson and Danges The King shall not have the custody of the Land that the Ideot holds by Copy The Lord to have the custody of an Ideot for this is no more than an Estate at Will at Common Law and if the King should have the custody of the Land he would much prejudice the Lord. Yet alienation made of it by the Ideot after Office found shall be avoided Coke 4 Rep. 126. Beverly's Case Copy-hold Lands granted to three for the Lives of two if the Tenants pur auter vie dye Living cesty que vie the Lord shall have it for there shall no be Occupancy 1 Rolls Abridg. 511. Ven and Howel's Case No Occupancy The Lord shall have the custody and not the Prochein Amy. The Copy-holder is surdus mutus the Lord shall have the Custody and not the Prochein Amy for otherwise he should be prejudiced in his Rents and Services Cro. Jac. 105. Evers and Skinner The Lord is Chancellor in his own Court to dispose of the Estate when the Tenant leaves it uncertain Vide infra sub Tit. Customs in reference to Estates sparsim per tout If a Copy-holder surrender to the use of one and the Lord refuseth to admit him no Action of the Case lyeth against him so if such Copy-holder prays the Lord to hold a Court and he refuseth Where a Surrender is to be made to a Tenant of the Manor if he will not take such Surrender yet no Action of the Case lyes against him 1 Rolls Abr. 108. In what capacity the Lord stands in reference to the Copy-holder's Estate He is an Instrument of Conveyance upon Surrenders and a Conveyer himself upon voluntary Grants He is Chancellor in his own Court and may proceed by Bill vide infra Of the Priviledges of Copy-holders In this Chapter I shall sum up some general Priviledges of Copy-holders which lye scattered in the several Customs hereafter treated of A Copy-holder may make a Lease for a year without Licence of the Lord vide Lease Lease Copy-holders of a Manor may have Solam separalem pasturam in the Soyl of the Lord Sola separalis pastura and exclude him 2 Sanders 326 327 328. If a man be obliged in a Statute Staple Stat. Staple Elegit his Copy-hold Land is not extendible but aliter upon a Statute of Bankrupts vide Tit. Grant It s not extendible upon Elegit If a Copy-holder Lease for years by Licence of the Lord this is not extendible in the Hands of the Lessee Rolls Abr. 888. Picto's Case Copy-holder of Inheritance may dig for Mines in his Land So the Parson in his Glebe as it seems Siderfin p. 152. The Lord of Rutland against Gee per Hobart and Warburton Copy-holder may dig for Marle without any danger of Forfeiture Digging for Marle but he ought to lay the said Marle upon the same Copy-hold Land Winch p. 8. A Custom is that the Lord of a Manor may dig for Coals and open Mines in the Land of his Copy-holder Coals It was made a doubt in Goodrick and Gascoin's Case if Lessee of the Manor may have this liberty and whether such liberty can pass by Grant of the Manor without special words Latch p. 189. A Copy-holder may hedge and enclose but not where it was never enclosed before Winch p. 8. Note a difference between Priviledges which are annexed to the Seigniory and Priviledges annexed to the Tenancy The first the Lord may destroy but not the last Therefore If Tenant at Will be Out-lawed his Estate is determined Outlawry but a Copy-hold is not forfeited or determined by Outlawry Lit. Rep. 234. cited to be adjudged in 44 Eliz. Yet vide 1 Leon. p. 99. Where a Copy-holder is Outlawed the King shall have the Profits of his Copy-hold Lands and the Lord hath not any remedy for the Rent If the King grants a Manor in which are Copy-holders in Fee-farm Fee-Farm Rent the Lands or Goods of the Copy-holders are not liable to the Fee-farm Rent although the Free-hold is for the Copy-holders are elder than the Rent being by Prescription So Rent by Prescription If the King had a Rent by Prescription out of the Manor in which there are Copy-holders if the King had not used to Levy this upon the Copy-holds it seems he cannot charge them forasmuch as they are in by Prescription also M. 12 Jac. B. 2 Rolls Abr. 157. Assets Copy-hold Inheritance shall not be Assets to charge the Heir Popham 188. Copy-holder makes a Lease for years by Licence and dyes this shall not be Assets in the Hands of his Executors Popham 188. Copy-holder shall have Ayd of the Lord where the right of the Seigniory comes in question upon the Issue taken Ayd 21 H. 6.37 But where he hath Ayd of a Bishop and after the King hath the Temporalties he shall not have Ayd of the King for so the Plaintiff may be perpetually delay'd 21 H. 6.37.39 Priviledge of Infants Copy-holders Or Resolutions concerning Infants in respect of Fines Admittances barring Estates and being bound by Customs or not Custom of a Manor is That if a Copy-hold descends to any man that Proclamation shall be made at three several Courts that he shall come in to be admitted Infant not comprehended within the Custom of coming in after three Proclamations and if he come not in it shall be a forfeiture to the Lord yet an Infant shall not be comprehended within this Custom for he by intendment of Law is not at discretion to make his Claim 8 Rep. 100. Letchford's Case It seems to be a Rule in Law An Infant cannot be protected by the Law by his non-age in any Case but where his Right which he had while an Infant and descended
to him might have been barr'd and interrupted by non-claim so in case of forfeiture the reason of the Rule is because the Law conceives he will have that knowledge to preserve his right when he is of full Age Carter's Rep. 86. in Smith and Painton's Case It was holden in Rumny and Eve's Case Not bound during his Minority to pray Admittance 1 Leon. p. 100 Pl. 128. If a Copy-holder dyeth his Heir within Age he is not bound to come into any Court during his non-age to pray admittance or to tender his Fine An Infant who surrenders his Copy-hold Land within Age may enter at his full Age Infant Surrenders he may enter at full Age. without being put to any Suit for it A Case cited in Popham 39. in Bullock and Dibler's Case Infant Copy-holder in Fee makes a Lease for years without Licence Infant shall not forfeit by making a Lease without Licence Acceptance at full Age makes it good to Lessee rendring Rent at full Age he accepts the Rent and after outs the Lessee Lessee brings Ejectment and Judgment for Lessee Per Cur. this Lease may be affirmed by acceptance and such a Forfeiture shall not bind an Infant 8 Rep. 44. Noy 92. Of Copy-holds and Copy-holders in respect of the King and his Prerogative Per Stat. 2 Ed. 6. Cap. 8. Copy-holders shall enjoy their Estates where the King is intituled by Office though they be not found by Inquisition The Statute of Chantries gives no Copy-hold Land to the King 1 Ed. 6.14 The Estates of the Kings Copy-holders confirmed by Decree in the Exchequer or Dutchy-Chamber shall be good according to the same Decree Stat. 7 Jac. Cap. 21. A Popish Recusant shall forfeit all his Copy-hold Land 35 Eliz. Cap. 2. Whether the King shall have the Copy-hold granted in Trust for an Alien It was a Question in Car. 1. between the King and Holland whether the King shall have a Copy-hold which is granted to one in Trust for an Alien The better Opinion seems to be that he shall Styles Rep. p. 20.37 75. Vide this Case Reported in Rolls 1. Abr. 194. Tit. Alien If an Alien Amy Purchase Copy-hold in Fee in the Name of J. S. in Trust for himself and his Heirs It was a great Question and much Argued whether the King shall have the Trust of this Copy-hold but no Opinion given as to this Point But the Trust being traversed and found for the King yet Judgment was given against the King because by the Inquisition by which this Trust and matter was found J. S. who was the person trusted and who had the Estate in Fee in the Law in him Where the King hath no possion by force of the Inquisition was put out of possession of it by the Inquisition where the Alien had but the Trust and no possession and therefore admitting that the Trust should have been given to the King yet the King may not have the possession by force of this but ought to have sued to have the Trust executed in a Court of Equity The King is seized of a Manor in Fee in which is a Copy-hold demisable at Will according to the Custom of the Manor The King demised this Copy-hold to J. G. for Life King need not recite in his Grant that it is Copy-hold by Letters Patents J. G. dyes The great Question was if it be destroyed or the King may grant it again by Copy Per Cur. 1. The King need not recite in the Grant that it is Copy-hold 24 H. 8.21 2. Copy-holder for Life dyes the King may regrant That after the Estate for Life determined the King may grant this House and Land again by Copy of Court Roll It is otherwise in the Case of a common person The Rule That a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind a Common person The Kings Gifts shall be taken favourably and not extended to two intents where there is no necessity for it Kings Grants favourably construed as there is not here and we are not here to intend a collateral intent and so the Copy-hold is not destroyed for the Law takes care to preserve the Inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copy-hold viz. to have Common Stiles p. 266. Cremer and Burnet If a Bishop Tenant in Tayl for Life or Years le ts a Copy-hold yet this shall not bind the Successor Issue in Tayl or him in Reversion to grant this by Copy again neither shall it bind an Infant Lord of Manor and the Estates and Possessions of the King are in like manner under the protection of the Law And if this Copy-hold should be extinguished Extinguishment perhaps a common Appendant or Appurtenant would be lost 2 Rolls Abr. p. 197. mesme Case If the King grants a Manor in which are Copy-holders in Fee-farm the Lands or Goods of the Copy-holder are not lyable to the Fee-farm Rent although the Freehold is Fee-Farm Rent because the Copy-holders are elder than the Rent being by Prescription 2 Rolls Abridgment p. 157. Loss of Issues If the Lord of a Manor lose Issues being summoned upon a Jury Process shall issue out of the Exchequer to levy them upon the Lands of the Copy-holders Lessees for Life or Years for the loss of Issues lyes upon the Land as an inherent Servitude by the Law in whose Hands soever it comes 1 Rolls Abr. 157. Surrender to the King without other matter of Record A Surrender of a Copy-hold to the King Lord of a Manor was in Lee and Boothby's Case 1 Keb. 720. adjudged good without other matter of Record All the Demesn Lands The King grants all his Demesn Lands in W. his Copy-hold Lands shall not pass Aliter in a common person 1 Rep. 46. Alton Wood's Case CAP. IV. The Nature of Custom in general Maxims of Customs What things are requisite to make a good Custom Time out of Memory Explained What shall be said to be an Interruption of Custom or not The reasonableness of Customs how to be judged of Several particular Customs Ratione Loci Of Customs enabling and disabling Of Customs and Prescriptions their difference and the different manner of Pleading them The several sorts of Prescription and how Prescription to be made and when and when not and by whom And when a Custom shall be said to be pursued or not Custom The Nature of Custom in general A Custom which hath obtained the force of a Law is always said to be Jus non scriptum for it cannot be made or created either by Charter or by Parliament which are Acts reduced to Writing and are always matter of Record But being only matter of Fact and consisting in Use and Practice it can be recorded and registred no where but in the Memory of the People For a Custom taketh beginning and
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
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
pleading we say such Lands or Tenements are demised and demisable A tempore cujus contrarij memoria hominum non existit And yet this Rule fails in the Kings Case vide supra It was said by Rolls Chief Justice in Pilkington and Bagshaw's Case Stiles 450. That a Custom cannot be urged for a thing that had its beginning since the time of Richard 1. if a Record can be shewed to the contrary But what measure of time shall make a Custom many differ Some judge it from the time of Henry 1. to the Stat. of Merton Cap. 8. which appointeth the Limitation in a Writ of Right and others say otherwise And by the Statute W. 1. the Limitation was from the time of R. 1. and these are Limitations as to Writs but this is since altered by 32 H. 8. What shall be said time out of memory which is reduced to sixty years next before the Teste of the Writ But the true measure is Littleton's Rule Where a Custom hath been used so long that man's Memory cannot remember the contrary that is when such a thing is pleaded that no man then living hath heard or known any proof to the contrary for if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the memory of any man living yet it is within the memory of man and therefore regularly a man cannot prescribe or alledge a Custom against a Statute for that is the highest Record but affirmative Acts do not take away a Custom If Land hath been demised by Copy for fifty years and yet some alive remember the same occupied by Indenture this is not a good Copy hold And if Land hath been demised by 40 years by Copy and none alive can remember the same to be otherwise demised this is a good Copy But sixty or eighty or an hundred years may make a good Limitation Calthrop's Reading Coke Lit. 114 115. 2. Continuance Custom ought to have continuance without interruption time out of memory for if it be discontinued time out memory the Custom is gone As if a Copy-hold be let by the Lord for life or for years according to the course of the Common Law it shall never be demised as Copy-hold according to the Custom afterwards Consuetudo semel reprobata non potest amplius induci and as Continuance makes the Custom so discontinuance destroys it The Continuance for fifty years is enough to fasten customary Conditions upon the Land against the Lord And per Cur. Though the original Commencement and the customary Interest did commence 10 H. 8. from which time sixty years passed yet the seizure for a Forfeiture in the mean time interrupted utterly the Continuance from the time which might by the Law have perfected the customary Interest What shall be said an interruption of a customary Estate or not Within the time of forty seven years a customary Interest cannot be Attached upon the Land 3 Leon. 107. Tavernor and Cromwel If the Lord of a Manor is seized of an ancient Copy-hold for Forfeiture or by Escheat and let the same at Will without Copy for divers years this is not any interruption of the customary nature of the Land but that he may grant it again by Copy Ibid. Interruption If customary Land hath been of ancient time grantable in Fee and now of late times for the space of forty years the Lord hath granted the same for Life only yet he may if he please resort to his ancient Custom and grant it in Fee 1 Leon. p. 56. Kemp and Carter Customary Land within a Manor hath been grantable in Fee and it Escheats the Lord may grant the same to another for Life for the Custom which enables him to grant in Fee shall enable him to grant for Life and after the death of Tenant pur vie the Lord may grant the same again in Fee for the grant for Life was not any interruption of the Custom 1 Leon. 56. id Case 3. Certainty Custom ought to be certain for incerta pro nullis habentur 13 Ed. 3. Fitzh dum fuit infra aetatem 3. A Writ of Dum fuit infra aetatem was brought against an Infant the Tenant pleads a Custom That when the Infant is within such an Age as that he may count twelve Pence or measure an Ell of Cloth that then his Feoffment shall be good this Custom is adjudged void for the incertainty Why an uncertain Custom shall be void Now the Reasons why an uncertain Custom shall be void are 1. Because an uncertain thing may not be continued time out of memory 2. A man cannot prescribe in a thing which may not at the beginning be well granted and an uncertain thing cannot well commence by Grant And if Tenants of a Manor prescribe that they ought not to pay for a Fine to renew their Copy-hold Estates more than the Rent of two years but ought to pay the Rent for two years or less this is not a good Prescription for the uncertainty for sometimes they are to pay two years Rent and sometimes less 2 Rolls Abridg. 264 265. Green and Berry 4. Reason Custom must be reasonable therefore it must not be against common Right or purely against the Law of the Land as is Littleton's Case The Lord prescibes That there hath been a Custom within his Manor that every Tenant who marries his Daughter without Licence of the Lord shall make Fine c. This Prescription is void it is against the freedom of a Freeman who is not bound thereto by particular Tenure Alit if it be upon a special Reservation of Gift of Lands or Tenure in Villanage Lit. Sect. 209. So in Sect. 212. To prescribe that the Lord of the Manor hath used to distrain Cattel Damage feasant and to retain the Distress till Fine were made to him for the Damages at his will This Prescription is void for it s against reason a man should be Judge in his own Cause If the Lord will prescribe to have of every Copy-holder belonging to his Manor for every Court he keepeth a certain Sum of Mony this is a void Prescription because it is not according to common Right for he ought to do it gratis for Justice sake But if the Lord Prescribe to have a certain Fee of his Tenants for keeping an extraordinary Court which is purchased only for the benefit of some particular Tenants to take up their Copy-holds and such like this is a good Prescription and according to common Right Coke Cop. 81. But now to distinguish what Customs are unreasonable and what not observe these differences Every Custom is not unreasonable which is contrary to a particular Rule or Maxim of the positive Law For its a Rule Consuetudo ex certa causa rationabili privat communem Legem As the Customs of Gavel-kind and Burrough English are against the Maxim of descent of Inheritance and the Maxim of Escheat as in Kent the Father to the Bough and
and so the Custom of Taunton-Dean That if a Copy-holder in Fee marries a Wife If the Wife survives she shall have the Fee if the Wife survives she shall have the Fee sic e converso agreed to be good Noy Rep. p. 2. There can be no Dower nor Tenancy by the Curtesie of the Copy-hold unless by special Custom 1 Anderson 292. Lease made before admittance A man may be Tenant by the Curtesie by Custom Though the Husband enter into the Land in the right of the Wife before admittance and the Wife dyes before admittance his Lease shall be good 1 Anderson 192. Ewer and Astwick It was admitted by the Court to be a good Custom That an Executor or Administrator shall have an year in the Land of the Copy-holder Custom that the Executor shall have an year in the Copy-hold against the Wife that claims her Free-Bench Noy p. 29. Remington and Cole If a Woman be Dowable of Copy-hold by Custom if the Husband after the marriage makes a Lease for years good by the Custom Tenant in Dower shall not avoid a Lease made by the Husband the Tenant in Dower shall not avoid it but it shall precede the Dower More n. 147. Holder and Fairly For he comes under the Custom as well as the Feme The Custom of a Manor was Quod quilibet tenens per Copiam poterit dimittere terras suas pur vie or in Fee or in Tayl Custom that the Wife Feme covert may Devise and that a Woman cooperta viro poterit devisare her Copy-hold Land to her Husband or to any other by the assent of her Husband Per Cur. The Custom is not unreasonable But because it was poterit devisare which is a word of justification and it should have been usi sunt devisare by way of excuse it was adjudged against the Plaintiff More n. 268. And so was one Welsh's Case in C. B. 41 El. 3 Leon. p. 81. Skipwith's Case The Custom was That Widows should enjoy during their Widow-hood Where the severance of the customary Tenants from the Manor shall not prejudice the Widow in her customary Estate The Lord Grants a customary Tenement of the Manor unto J. B. for Life by Copy and after conveys the whole Manor to W. who conveyed the Inheritance and Free-hold of B's Tenement for mony paid by B. to J. S. and others and their Heirs during the Life of J. B. the remainder to Ellen then Wife of J. B. the remainder to J. B. in Fee J. B. Grants his remainder in Fee to his Son and his Heirs The Son having Issue a Son dyed and then Ellen dyed J. B. marries Frances and dyes seized of his customary Estate Frances shall enter and enjoy her Widows Estate for it is clear That the customary Estate of J. B. remained as it was during his Life not extinct nor altered by the purchase of the Fee-simple which during his Life was in others not in him and then it follows by consequence That all customary Incidents to such a customary Estate remain whereof this is one which by Custom and Law grows of it self out of that Estate as a Descent should have done if J. B. had been a Copy-holder in Fee and the Freehold had been granted to another in Fee Hobart p. 181. Howard and Bartlet It is not in the power of the Lord to destroy Widows Estates By the severance Incidents to the Tenancy are not destroyed but Incidents to the Seigniory are The Law vests the Estate in a Woman that is to hold durante viduitate before admittance The Custom is That a Woman shall hold durante viduitate she shall make a Lease before admittance for in that case there is no Fine due to the Lord and the Law vests the Estate in her Noy 29. Remington and Cole Hobart 181. Vide Admittance The Lord Enfeoffs the Copy-holder this destroys Free-Bench A Custom of a Manor was found to be That if a Copy-holder in Fee dyes seized his Wife should hold it during her Life as Free-Bench the Lord Enfeoffs the Copy-holder who dyed seized Per Cur. she shall not hold her Free-Bench aliter if the Lord had enfeoffed a Stranger of that Land yet the Land remained Copy-hold and the Custom is not taken away Crok Jac. 126. Lashmer and Avery Damages recovered in Dower A Woman recovered Dower in the Lords Court and 40 l. because her Husband dyed seized and she brought Debt for the Damages in the Kings-Bench Per Cur. The Action lyes not because the Court-Baron could not hold Plea nor award Execution of 40 l. Damages although the Damages were there well assessed More n. 559. If a Feme Copy-holder holds the Land durante viduitate and then takes Husband the Lord shall have the Corn Oland's Case Vide Emblements The Widows customary Estate is due to her Divorce though there was a Divorce a mensa thoro Hobart p. 181. Howard and Bartlet Tenant of a Copy-hold for Life Whether the Widow attaint for Felony shall have her Estate of viduity in which the Custom was That the Wife should have her Widows Estate and the Husband was attaint of Felony and Executed The Question was whether she should have it Winch not without a special Custom Winch Rep. 27. Allen and Branch That the Wife shall not have her Dower The Wife to claim her Dower within a year and day except she claim it within a year and a day it s said to be a good Custom 3 Leon. p. 226. Pleadings Custom Quod Uxores habeant Tenementa custumaria durante viduitate sua Dyer 192. 3 Br. 403 476. Hern 73. Quod Uxores Tenen custumar in feodo habeant pro vita Tenementa unde viri obierunt seisita Et si viri dimiser tunc revers reddit Cok. Ent. 123. CAP. VII Custom as to Timber Woods and Vnder-Woods and what Prescription by a Copy-holder to cut Trees shall be good or not TEnant by Copy of Court Roll cannot by the Common Law take Trees for House-bote Hedge-bote and Cart-bote c. as Tenant for Life or Years may do who have an Estate certain but a Copy-holder by special Custom may do it Cro. El. p. 5. Lord Mountague against Sheppard Where a Custom was alledged to be That every Copy holder may cut down Trees at his pleasure this Custom is against Common Law Winch p. 1. If a Custom be That a Copy-holder may not cut down Trees it is good or not good with this difference If he be a Copy-holde of Inheritance such a Custom is good but if he be a Copy-holder for Life its noâ— good 1 Bulstr 150. Earl of Northumberlanâ— against Wheeler The Tenant prescribes to câ—â— and dispose all the Trees upon his Tenancy its an ill Prescription Aliter of a Copy-holde of Inheritance Noy p. 2. So it is adjudged it 1 Rolls Abr. 650. Glascock and Peche It s a good Custom Copy-holder in Fee
Deed of Purchase of all Commons appertaining to his said Messuage Per Cur. The Common which he had in the Copy-Estate was extinct because the Common appertained to the customary Estate which is determined and because now he claims from the Lord in whom the Common may not stand divided from the Land and Soil of the Wood but had there been special words in the Grant of the like Common as he had in the Common Before the Surrender it had been good as a new Grant of the Common More n. 915.866 Fort and Ward By what words in Grants Copy-holds shall pass or not What shall pass by the words All the Demesn Lands King Ed. 6. by Patent granted omnes terras Dominicales Manerij de W. It was adjudged That customary Lands held by Copy parcel of the same Manor shall not pass and yet they are in the Law parcel of the Demesns of the Manor but in the Case of a common Person they shall pass by those words 1 Rep. 46. in Alton Wood's Case But if a man grant all his Demesn Lands his Copy-hold Lands will not pass if he had other Demesns to satisfie the words of the Grant 2 Rolls Rep. 236. And if I grant all my Lands and Tenements in D. my Copy-hold Lands there pass not because they cannot pass by any such assurance Owen Upon a special Verdict King H. 8. seized in Fee of the Manor of D. granted by his Letters Patents to Richard Andrews and Peter Temple in Fee Inter alia omnia Messuagia terras tenementa redditus reversiones servitia hereditamenta sua in D. subscripta viz. totum illum annualem redditum quindecim solidorum alia ser vitia exâ—untia de terris W. K. ac totum illud Messuagium 6 vergatas terrae in D. in tenura J. D. Habend tenend omnia predicta Messuagia terras tenementa redditus reversione servitia hereditamenta in D. pred to the said Richard Andrews and Peter Temple and their Heirs The Question was whether this was a good Patent to convey the said Lands of the said W. R. being a Copy-holder pur vie Per Cur. It was a void Patent to convey the Lands of the Copy-holder to them for there is not any Land granted but the Rents and Services of W. R. which is intended Freehold and there being none such the Grant is meerly void Cro. Car. 21. Castle and Hobbs By Hobart if the King grant you his Demesns you shall not have his Copy-holds in Waste and Pretty's Case Winch p. 3. What things shall pass by Grant of another thing as Appurtenant or Incident or not If there be a Common appendant to a Copy-hold Tenement Appurtenant and the Lord makes a Feoffment of the Tenement with all Profits Commodities and Common to this Appurtenant Yet the Feoffee shall not have any Common for this was Appurtenant to the Copy-hold and not to the Freehold 2 Rolls Abr. 61. So if he Lease the Copy-hold Tenements for years with such words as before yet Lessee shall not have any Common for the reason aforesaid ibid. What passeth or not by the words cum pertinentijs There being a Copy-hold Messuage called Symonds whereto divers Copy-hold Lands were appertaining the said Messuage called Symonds cum pertinentiis being surrendred to the Lord and all his rights therein It was moved whether by that surrender the Copy-hold Land shall pass or only the said House with the Orchards Yards and Curtelage And Per Cur. The Copy-hold Land shall not pass by these words cum Pertinentiis and in this it is all one in case of a Copy-hold as a Freehold Cro. Jac· p. 526. Smithson and Cage By Feoffment of the Manor Copy-holds pass 3 Keb. 456. Copy-holder had Common of Estovers in the Lords Wood appurtenant to his Copy-hold and he purchased the Inheritance of the Copy-hold Common and had the words in his Deed of all Commons appertaining the Common is extinct had there been special words aliter More n. 915.866 Vide supra Cum Pertin Copy-holder hath Common in the Wastes of the Lord the Lord by Deed confirms to a Copy-holder Hab. to him and his Heirs with the Appurtenances the Common is extinct for he hath his Common in respect as he is customary Tenant 2 Brownl 210. Marsham and Hunter CAP. XIII Of Surrenders The nature of a Surrender General Rules and Diversities for the better Explication Of the Alienation of Copy-hold Estates in general and of selling Copy-holds by Commissioners of Bankrupts in particular Of Surrender in Court. By what words a Surrender will pass What amounts to a Surrender Of a Surrender out of Court Who may take a Surrender out of Court What Surrender out of Court is good or not Of Surrenders The Nature of a Surrender A Surrender is a giving up of the Land by the Tenant to the Lord according to the Custom to the use of him that is to have the Estate and is entred in this manner The form thus according to Mr. Littleton Ad hanc curiam venit A. de B. sursum reddidit in ead curia unum Messuagium c. in manus Domini ad usum C. de D. Haeredum suorum vel Haeredum de corpore suo exeuntium vel pro termino vitae suae c. Et super hoc venit paerdictus C. de D. cepit de Domino in ead Curia Messuagium praed c. Habend tenend sibi haeredibus suis vel sibi haeredibus de corpore suo exeuntibus vel sibi ad terminum vitae c. Ad voluntatem Domini secundum consuetudinem manerij faciendo reddendo inde redditus servitia consuetudines inde prius debita consueta c. Et dat Domino pro fine c. Et fecit fidelitatem c. Note The Surrender to the Lord is general without expressing any Estate for that he is but an Instrument to admit Cesty que use for no more passeth to the Lord but to serve the Limitation of the Use and Cesty que use when he is admitted shall be in by him that made the Surrender and not by the Lord. And therefore if Copyholder in Fee Surrender to the use of another for Life nothing more passeth from him but what shall serve the Estate limited to use 9 Rep. 107. Podger's Case A Surrender is in nature of a Deed Poll rather than of an Indenture and enures by way of limitation of use 1 Sanders 151. If a Copy-holder Tenant Surrender to the use of himself Habend to him and his Wife and the Heirs of their Bodies it seems this is void for it is in nature of a Grant at Common Law for she was not named in the Premisses 2 Rolls Abr. 67. Brooks's Case Vide infra A Surrender is to this purpose that the Lord should not be a Stranger to his Tenant A Surrender is but a Conveyance by matter of Fact and no higher and
Statute by Equity work to make it an Estate Tayl also of this nature of the Land Popham's Rep. 33. Gravenor and Brooks so Bullen and Grant's Case A Copy-holder Surrendred to the Use of J. for Life the Remainder to H. and the Heirs of his Body it was a Question if this Estate limitted to H. was an Estate Tayl or a Fee-simple conditional for if it were a Fee-simple conditional then there cannot be an other Estate over but yet in Case of a Devise an Estate may depend upon a Fee-simple precedent but not as a Will but as an executory Devise Per Wray it is an Estate Tayl. Coke then said They who would prove the Custom to Entayl Copy-hold Lands within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies but they ought to shew that Surrenders made by such persons have been avoided by such matter But by Wray that is not so for customary Lands may be granted in Tayl and yet no Surrenders have been made within time of memory 1 Leon. p. 174. Bullen and Grant Cro. El. 148. mesme Case Heyden's Case in 3 Rep. 8. is clear That neither Statute without the Custom nor the Custom without the Statute but both co-operating may create Tayl. And as for Custom if the Custom be to grant Lands in Fee-simple this without question may be granted to one and the Heirs of his Body by Copy for omne majus includit minus My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case First says he a Copy-hold may be Entayled not Entayled as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold which is a kind of base Estate and which might be grantable to one and the Heirs of his Body according to the Custom and if he dyed without Issue it might be aliened again and that a Copy-holder could not bar his Issue unless by a Recovery such an Estate might be by Custom I hold saith he That the Evidence may fall out to be such that we may take it for granted that Lands granted by Copy to one and the Heirs of his Body the Remainder over may be a good Remainder and the Reversion may continue in the Copy-holder the Donor may have a good Reversion and all this without the help of W. 2. That which confirms me is the constant practice of most Copyholds to have Estates over As for the reason of it if we shall give in Evidence for the purpose a Surrender in H. 7ths time wherein Lands are limited to one and the Heirs of his Body the Remainder over this is an Evidence that it was so in H. 7ths time and we have reason to think so it was past time of memory of Man And as your Evidence is for Custom so may your Case be to make an immemorial Custom Then all the Question is whether it will bear it or not In this Case of a Copy-hold being an Estate at will you may have it at will according to the nature of the Custom it is not against the Analogy and Reason of the Law and it may bear it the Evidence may be such If in H. 7th or E. the 4ths time it appears so it is a good warrant for matter of Evidence for a Jury to find That there were such Copy-hold Estates with limitation over Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body the Remainder over or to grant the Land by the name of a Reversion for here is no alteration of Common Law Estates The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate Proofs of an Estate Tayl. neither a Remainder nor a Reversion but the Act prohibiting Alienations Quo minus ad exitum illorum quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad donatorem si exitus ejus deficiat revertatur by operation of Law it comes to a Remainder or Reversion if by Custom such Estates may remain or revert so may Copy-holds by Custom because they are Tenants at will Now as by that construction W. 2. did make a Remainder or a Reversion so the Custom of prohibiting Alienations by Copy may make Reversions or Remainders of Copy-hold Estates If the Reader hath a mind to see other Cases about the Entayling of Copy-holds though they are all reduced to what is before cited he may peruse 2 Brownl 42 76. Keymer and Poel 121. Hill and Upchurch 1 Rolls Rep. 48. Warn and Sawyer Cro. El. 717. Erish and Rives c. 2 Brownl 121. The Law about Entayling of Copy-holds is setled and agreed by the Judges B. R. 17 Car. 2. Newton and Shaftoe's Case That it is by Custom and not by the Statute so agreed M. 18. Car. Pilkington and Stanhop's Case queux vide apres Of docking or barring Copy-hold Estates being barred by Fine or Recovery or otherwise It is agreed by all the Judges 1 Rolls Rep. 48. Warn and Sawyer's Case That if an Estate Tayl may be of a Copy-hold by Custom that by Custom it may be dock'd and destroyed See More n. 877. A Copy-hold may be Entayled by Custom and barred by a Recovery by special Custom and it was agreed that a Surrender may bar the Issue by special Custom Chard and Wyat so Lee and Brown M. 15 Jac. B. R. And it was agreed to be a strong proof of the Custom that they to whose Use such Surrenders had been made had enjoyed the Land against the Issue in Tayl 1 Rolls Abr. 506. mesme Case The Custom of the Manor of Wakefield was That they may Entayl their Copy-hold Lands and the Custom of the Manor to bar the Entayls and the Remainders there is That the Tenant in Tayl shall commit a Forfeiture as by making a Lease without Licenc c. and then for the Lord to make three Proclamations and to seize the Copyhold and then to grant this to the Copy-holder and his Heirs allowed to be a good Custom Also this Custom there was good That if Tenant in Tayl make a Surrender to a Purchaser and his Heirs of his Copy-hold and such Purchasor intending to bar the Entayl and the Remainders commits a Forfeiture upon which there is a seizure by the Lord and three Proclamations c. and so for him to grant these were adjuged good Customs though the Tenant in Tayl nor his Issue are privy See as to this last Custom in a Tryal at Bar in Ejectment Siderfin p. 314. Lessee of Pilkington contra Stanhop So in Ejectment in Grantham and Coplies Case 2 Sanders 422. And it was faâ—ther adjudged If such Forfeiture be presented in the Copy-hold Court and the Land seized in Manus Domini the Lord may not
the Surrender and the devise only cannot transfer for such customary Estate 3. After the severance the Copy-holder shall pay his Rent to the Feoffee and other Services which are due without Admittance as Harriot c. But not Fine or Suit of Court After severance Forfeitures continue But such Forfeitures as were Forfeitures before the Severance as Feoffment Lease Waste are Forfeitures after 4 Rep. 24 25. In Lee and Boothby's Case Cro. Car. 521. The Question was If a Copy-holder in Fee surrender to the Lord of the Manor his Copy-hold Estate and the Lord makes a Lease for years of the Manor and of the said Copy-hold by the name of his Tenement called H. whether it was a determination of his Copy-hold Per Curiam it is not because when he lets the Manor it is included as parcel of the Manor the Manor being demised includes the Copy-hold as parcel of the Manor and the naming of the Copy-hold is surplusage But if he though he had been but Dominus pro tempore or for half a year though by parol had made a Lease for years of the Copy-hold by it self that had destroyed the Copy-hold for it was then during that time severed from the Manor and so could never after be demised by Copy Lease for years of a particular Copy-hold by name together with the Manor by the King hath not so extinguished that the Copy-hold though by the surrender of it it is parcel of the Manor in the King but that after such Lease the Patentee of the Reversion may regrant it as Copy-hold 1 Keb. 720. Act of the Lord with consent of the Tenant where it destroys it or not But the act of the Lord with consent and acceptance of the Tenant will destroy the Copy-hold otherwise it shall not prejudice the Copy-holder But in some sense the Copy-holder may assent and yet not be prejudiced as in Howard and Bartlet's Case Hob. 181. The Custom was Copy hold Estate may remain to some purpose notwithstanding the severance from the Freehold if Copy-holders for Life dye seized their Wives shall have this during their Widowhood and A. being Copy-holder for Life the Lord conveys the Freehold and Inheritance of the Copy-hold of A. by the procurement of A. to J. S. a Stranger and his Heirs during the Life of A. Remainder to B. the Wife of A. for Life Remainder to A. and after A. grants the Remainder to W. his Son after this B. the Wife of A. dyes and A. marries C. and dyes seized now though here appears the Copy-holders privity and consent in that he takes the Remainder in Fee and grants it over to his Son that it should be destroyed and though this Copy-hold Estate was destroyed before her marriage yet the viduity of C. is not extinguished for the Freehold being in J. S. during the Life of A. the Estate of A. was not so extinct but the Custom shall continue quoad her The Copy-hold Estate here remains notwithstanding the severance from the Free-hold and though the Remainder was in him and he granted it over yet he lived and dyed a Copy-holder Hobart p. 181. Howard and Bartlet 1 Rolls Abr. 510. Cro. Jac. 573. the same Case by the name of Waldee and Bartlet Copy-holder in Tayl accepts a Feoffment from the Lord it destroys not the Copy-hold so as to conclude his Issue Carters Rep. 6 7. 2. By the act of the Copy-holder If a Copy-holder accept a Lease for years of his Copy-hold Acceptance of a Lease by this his Copy-hold is destroyed whether it be immediately from the Lord or mediately as was Lane's Case 2 Rep. 16. b. The King seized of a Manor in Fee grants Copy-hold Lands parcel of this Manor to another in Fee by Copy of Court Roll according to the Custom of the Manor And after the King by his Letters Patents under the Exchequer Seal makes a Lease for 21 years to another of these Lands the Lessee grants his Term to the Copy-holder afterwards Queen Elizabeth reciting the Lease for 21 years grants the Reversion in Fee the 21 years expire and the Patentee of the Reversion enters upon the Copy-holder his Entry adjudged good for Per Cur. by the acceptance of the Term by the Copy-holder the Copy-hold Estate was determined as well as if the Copy-holder had immediately accepted a Lease for years of his Copy-hold The reason of the Extinguishment the reason is the same in both Cases A Copy-hold Interest and an Estate for years of one and the same Land may not stand together in one and the same person at one time without confounding the lesser and if one of them ought to be determined it ought to be the Copy-hold Estate Also they are of divers natures and so cannot stand together in the same person the Estate at the Common-Law cannot drown it being the more worthy than the customary Estate and the customary must Vide mesme Case in Anderson 1 Rep. 191. and 1 Leon. 170. So it was resolved in Hide and Newport's Case A Copy-holder in Fee took a Lease for years of the Manor the Copy-hold is extinct for ever and not only during the Lease Moor Rep. n. 330. Acceptance to hold the Land by Bill and not by Copy Copy-holder accepts to hold his Land by Bill under the Lords Hand and not by Copy this determines the Copy-hold 1 Anderson 199. Colman and Bedil If a Copy-holder takes a Lease for years of the Manor by this his Copy-hold is destroyed 4 Rep. 21. French's Case But such Lessee may re-grant the Copy-hold to whom he will for the Land was always demised and demisable If the Lord make a Lease for Life to the Copy-holder by parol this shall confound the Copy-hold if Livery be made otherwise not Latch 213. If there be a Lease for years of the Manor and one of the Copy-holders doth purchase the Reversion in Fee by this the Copy-hold is destroyed and the Lessee of the Manor shall oust the Copy-holder and hold the Land for the time Calth p. 97. By the Tenants Release to the Lord. By the Copy-holders Release to the Lord. If a Copy-holder releaseth to his Lord that extinguisheth his Copy-hold although it be contrary to the nature of a Release to give possession Hutton p. 81. Or to a Purchasor The Lord sells the Freehold interest of a Copy-holder of Inheritance unto another so as it is divided from the Manor and afterwards the Copy-holder releaseth to the Purchaser by it the Copy-hold Interest is extinct but if the Lord be disseised and the Copy-holder releaseth to the Disseisor Nihil operatur 1 Leon. 102. Wakeford's Case Cro. Eliz. 21. For if a Copy-holder is ousted and so the Lord is disseised and the Copy-holder releaseth all his right to the disseisor and dyes his Heir Enters and brings an Action of Trespass against the disseisor who pleads his Frank-tenement Per Cur. the Release is void the disseisor not being admitted
re-grant it to him again If a Copy-hold Escheat to the Lord Escheat and he alien the Manor by Fine Feoffment c. his Alienee may re-grant this Land by Copy for it was always demised or demisable but if it be a particular Copy-hold Estate otherwise as was said in the beginning of this Case 4 Rep. 31. Frenches Case If a Copy-holder sue Execution of a Statute against the Lord of a Manor Not destroyed by execution of the Manor at the Copy-holders Suit and had the Manor in Execution and after the Debt is levied the Interest of the Copy-hold remains Per Manwood Heydon's Case Savills Rep. A Copy-holder in Fee marries a Woman Suspended Seignioress of the Manor and after they suffer a Common Recovery which was to the Use of themselves for Life Remainder over by some the Copy-hold is extinct for by the Recovery the Husband had gained an Estate of Freehold But Per Cur. by the inter-marriage it was only suspended Cro. El. p. 7. Anonymus If a Copy-holder accept of a Lease for years of the Manor or marry the Lords Wife by this the Copy-hold is not extinct but suspended If a Copy-hold be granted to three for Lives Suspended and the first of them take an Estate by Deed with livery from the Lord by this the Copy-hold for that Life is suspended Dyer 30. 4 Rep. 31. No prejudice to the Wife or to him in reversion Baron seized of a Manor in right of his Feme let Copy-hold Land parcel thereof for years by Indenture and dyed this doth not destroy the Custom as to the Wife but that after the death of her Husband she may demise by Copy as before So If Tenant pur vie of a Manor let a Copy-hold parcel of the Manor for years and dyes it shall not destroy the Custom as to him in Reversion Cro. El. P. 38 Eliz. Conesby and Rusketh for being Tenant pur vie he may not do wrong by destroying of Customs King H. 8. grants Lands being parcel of Copy-hold of a Manor without reciting this to be Copy-hold to Sir J. G. pur vie Sir J. G. morust Queen Mary grants the Manor to Susan Tenny in Fee who let the Manor for years to Lee. Lee before his years expired grants the Land in question to R. L. in Fee according to the Custom of the Manor Lee's years expire R. L. let to Field at will and the Defendant enters as Heir to Tenny Judgment pro Quer. Suspension and not Destruction of a Custom Kings Prerogative The Grant of the King is but a suspension and no destruction of the Custom And though the Maxim is It ought to be demised and demisable c. yet this holds not in the case of the King 2 Siderfin p. 142. Vide contra 1 Rolls Abr. 498. Downcliff and Minors Vide sub Tit. Grants by the Lord. As to the escheating of Copy-holds after escheating it cannot properly be called a Copy-hold Escheat except it be because there is power in him to re-grant it as Copy-hold Were it by Custom that the Wife shall be endowed of the intierty or moiety and such customary Copy-hold Lands Escheat and the Husband dyes The Wife not to be endowed after Escheat his Wife shall not be endowed of the intierty or moiety because the Custom as to her is extinct 2 Siderfin 19. A Copy-hold Escheated may be demised notwithstanding the Lords Continuance of it in his Hands above 20 years 2 Keb. 213. Pemble and Stern Note If the Copy-holder of a Manor hath had time out of memory Copy-hold extinct but not a Way over the Copy-hold Land a Way over the Land of another Copy-holder and he purchaseth the Inheritance of his Copy-hold by which the Copy-hold is extinct yet by this the Way is not extinct 1 Rolls Abr. 933. Empson and Williamson CAP. XXIV How and where Copy-holder shall hold his Lands charged or not by the Lord or Copy-holders as Dowers Rent-charges Statutes And how and where they shall be avoided THE Lord of a Manor in which were Copy-holders for Lives takes a Wife Dower of the Lords Wife and after a Copy-holder dyes the Lord after Coverture grants the Lands again according to the Custom of the Manor for Lives and dyes the Lords Widow shall not avoid these Grants in a Writ of Dower yet the Custom which is the Life of the Grant was long before 4 Rep. 24. If Feoffee of a Manor upon Condition make voluntary Grants of Copy-hold Estates according to Custom and after the Condition is broken By Feoffee a Manor upon condition and Feoffee re-enters yet the Grants by Copy shall stand Earl of Arundel's Case cited in Co. 4 Rep. 24. Copy-holder by voluntary grant not subject to the Lords Charges The Copy-holder which comes in by voluntary Grant shall not be subject to the Charges or Incumbrances of the Lord before the Grant 8 Rep. 63. Swain's Case Lord of a Manor where the Custom was of Land demisable for one two or three Lives that he that was first named in the Copy should enjoy it only for his Life and so the second The Remainder preserves the Estate from Charges c. grants it to J. P. and E. and M. his Daughters for their Lives if the Lord had charged the Inheritance of the Copy-hold J. P. shall not hold it charged during his Life for the mean Estates in Remainder preserve the Estate of J. P. by Copy from the Incumbrances of the Lord 9 Rep. 107. Margaret Podger's Case Rent charge Earl of W. seized of Manor by Copy grants a Rent-charge to Sir W. Cordel for the term of his Life and conveys the Manor to Sir W. Clifton in Tayl the Rent is behind Sir W. Cordrel dyes the Manor descends to Sir John Clifton who grants a Copy-hold to H. The Executors of Sir W. Cordel distrain for the Rent Per Cur. the Copy-holder shall hold the Land charged 2 Leon. p. 152. and 109. Cordel and Clifton But it hath been adjudged That the Wife of the Lord shall not be endowed against the Copy-holder for the Title of Dower is not consummated before the death of the Husband so as the Title of Copy-holder is compleated before the Title of Dower and in this Case the Seisin and possession continues in Sir John Clifton who claims only by Sir William Clifton who was the Tenant in Demesn who ought to pay the Rent Lord and Copy-holder for Life be the Lord grants a Rent-charge out of the Manor Rent charge by the Lord upon the Manor whereof the Copy-hold is parcel the Copy-holder surrenders to the Use of A. who is admitted accordingly he shall not hold it charged but if the Copy-holder dyeth so that his Estate is determined and the Lord granteth to a Stranger de novo to hold the said Land by Copy this new Tenant shall hold the Land charged 1 Leon. p. 4. Lord of a Manor where Lands were
Merton Cap. 1. Of Damages sur Recovery en Dower which gives Damages to a Feme Covert upon a Recovery in a Writ of Dower where the Baron dyed seized extends to Copy-holds And Stat. W. 2. C. 3. W. 2. Cap. 3. Cui in vita And the three several branches of that Stat. the one which gives a cui in vita upon a discontinuance made by the Husband The second which gives the Receit to the Wife upon her Husbands refusal to defend the Wifes Title Resceit And the third which gives a Quod ei deforceat to particular Tenants extends to Copy-holds Quod ei deforceat And The Statute 32 H. 8. Cap. 9. 32 H. 8. cap. 9. Champerty against Champerty and litigious Titles which gives an Entry in lieu of a Cui in vita extendeth to Copy-holds Cro. Car. 43. Rowden and Malster Vide Plowd f. 371. The Statute W. 2. which gives Elegits Elegit extends not to Copy-holds for that would be a prejudice and the Common Law would break the Custom Savil's Reports Heydon's Case vide supra Copy-hold Lands are liable to the Statutes of Recusants 13 El. cap. 4. Of Recusants and the King shall have the profits of the Lands only but no Estate and such Statute doth not make a Tenant to the Lord and though the King hath the Copy-hold Land yet the Lord shall have the Rent during the possession of the King 1 Leon. p. 98. Saliard and Everat's Case Owen p. 37. mesme Case Copy-hold Lands are not within the words of that Statute but by Anderson 34 H. 8.5 Of Wills the Equity of that Act doth extend to Copy-holds 1 Leon. 83. in Skipwith's Case 31 Eliz. cap. 7. Cottages Copy-hold is not within that Stat. 1 Bulstr 50. Brock's Case 11 H. 7. cap. 10. Joyntresses Copy-hold Lands are assured to the Wife for her Joynture and she aliens them it s no Forfeiture within Statute 11 H. 8. Cap. 10. Copy-hold Land is not within that Statute 2 Siderfin p. 41 73. Harrington and Smith CAP. XXVII Of Emblements who shall have them the Lord or the Copy-holder A Woman who had her Widows Estate of Copy-hold Land and before severance took Husband the Lord shall have the Corn because the Estate of the Woman determined by her own act otherwise if her Estate had ended by Death Divorce Determination of the Will c. Moor n. 512. Oland and Burdwick 5 Rep. 115. mesme Case If a Copy-holder Durante viduitate Lease for one year and the Lessee sows the Land and after the Copy-holder takes an Husband yet the Lessee shall have the Corn for her act shall not prejudice a third person Ibid. Oland's Case If the Husband seized of a Copy-hold in Fee sows the Land and after surrenders to the Use of his Wife who is admitted accordingly and after the Husband dyes before severance it seems the Wife shall have the Corn and not the Executors or Administrators of the Husband Annexed to the Land for that the Husband passed the Emblements with the Land to the Wife as annexed to the Land and by this the Priviledge which the Law gives to him who sows it is taken away by the Surrender and so it is all one as if the Wife had sowed it or purchased the Land sowed by a Stranger 1 Rolls Abr. 727. CAP. XXVIII What shall be said a Disseisin as to Copy-hold Estates or not IF a Copy-holder in Fee dyeth seized and the Lord admit a Stranger to the Land who entreth he is but a Tenant at will and not a Disseisor to the Copy-holder who hath the Land by Discent because he cometh in by the Assent of the Lord 3 Leon. 210. If a Copy-holder without Licence makes a Lease for years the Lessee who enters by colour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firmae 2. Brownl p. 40. Petty and Evans If a Copy-holder Lease for years by License of the Lord and after enters upon the Lessee and ousts him this is a Disseisin to the Lord of the Frank-Tenement 1 Rolls Abr. 662. by Coke Vide sparsim CAP. XXIX Actions and Suits What Action may be brought by the Lords What Actions brought by Copy-holders or their Executors in respect to their Copy-hold Estates shall be good or not either against their Lords or others What Actions may be brought by the Lords THE Lord upon seizure of Copy-holder may maintain Ejectment till the Heir comes to be admitted as in Harverights Case Latch 511. upon Entry of the Feoffor upon Rent reserved and Entry till satisfaction he may upon such Interest quousque maintain an Ejectment 1 Keb. 2â—7 Lord Salisbury's Case As to the Lords Action for Rent Distress Remedy for Forfeitures Vide supra sparsim per tout in Indice What Actions a Copy-holder may bring against his Lord and what not Trespass upon Ejectment by the Lord. Copy-holder doing and paying the Customs and Services if he be ejected by his Lord he shall have an Action of Trespass against him Co. Lit. 60. b. 61. a. 4 Rep. 22. a. For though he is Tenens ad voluntatem Domini yet it is Secundumconsuetudinem Manerij For cutting Trees He shall have Trespass against his Lord for cutting of Trees or breaking his House in the Case of Stebbing and Gosnel 1 Rolls Abr. 108. The Custom was That every Copy-holder in Fee shall have the Loppings of the Pollingers The Lord cuts down two Oaks and in his Plea to an Action sur Case saith he cut down two Oakes being Pollinger Timber Trees and left the Loppings there for the Plaintiff On Demurrer it was adjudged for the Plaintiff for a Copy-holder of Inheritance hath interest in the Loppings and Boughs as well as the Lord in the Timber And if the Lord shall cut down all the Timber Trees than the Copy-holder shall lose the Profit Cro. El. p. 629. Moor n. 727. mesme Case 1 Rolls Rep. Ford and Hoskin's Case Nay the Action of Trespass by a Copy-holder in Fee against his Lord for cutting down the Trees lyes at Common Law without any special Custom for the Copy-holder hath a special property therein and the Lord a general property the Lord may as well subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to Repair it 2 Brownl 328. Heydon and Smith and in Doyle's Case Mich. 25. and 26 El. it was adjudged where it was a Custom that the Copy-holder might cut Maremium to Repair if the Lord carry it away an Action of Trespass lyes against him by the Tenant in Taylor 's Case Pasch 36. Eliz. A man was Tenant by Copy of Court Roll of Wood and the Soyl was excepted to the Lord and yet the Copy-holder maintained an Action of Trespass against the Lord for cutting his Wood Moor n. 480. If a Stranger cut a Tree Trespass by the Lord and the Copy-holder for cutting down Trees the
Lord shall have one Action and the Copy-holder another and each one shall recover Damages according to his Interest Vide Leon. 1. 272. Copy-holder dyes Lord admits a Stranger the Heir may enter and upon a re-entry maintain Trespass without Admittance Noy p. 172. Simpson and Gillion Vide Admittance For non-Admittance no Action by Surrendree Action on the Case against the Lord lyes not for non-Admittance A Copy-holder in the Eye of the Law is but Tenant at the Lords Will and if the Lord will not hold Court he hath no remedy to compel him but by order in Chancery Cro. Jac. p. 368. Ford and Hoskins No Action on the Case by a named Successor By Surrendror Surrendror may have an Action on the Case for not admitting but not the Surrendree 2 Keb. 357. Quaere Remedy in faux Judgment The Demandant in a Pleint in nature of a real Action recovereth the Land erroneously with remedy for the party grieved for he cannot have the Kings Writ of faux Judgment in respect of the baseness of the Estate and Tenure being in the Eye of the Law but a Tenant at Will and the Freehold being in another yet he shall have Petition to the Lord in nature of a Writ of faux Judgment and therein assign Errors and have remedy according to Law Co. Lit. 60. And if there be cause the Judgment may be reversed Assise Tenant by Copy shall not have Assise against his Lord as Tenant in ancient Demesn shall have because he hath no Frank-Tenement 4 Rep. 21. but he shall be relieved in Equity Tothil p. 108. The Copy-holders Actions and Remedies against Strangers and where A man grants all the Coals and Coal-Mines within a Manor and parcel was Copy-hold for Life to J. S. Where Copy-holder shall have Trover for Coals digged out of his Copy-hold Land Lessee enters into the Copy-hold and digs a new Pit in the Copy-hold Land during the Life of the Copy-holder and takes the Coals and converts them c. And Lessee of the Coal-Mine brought Trover against the Lessor Per Curiam he may do it for when the Lessor or Lessee of the Coals or a Stranger enters and digs the Coals out of the Pits these belong to the Lessee and if any one else take the Coals he shall have Trover Jones Rep. 243. Player and Roberts Lessee of a Copy-holder for a year Ejectment shall maintain an Ejectione Firmae for in as much as his Term is warranted by Law by force of the general Custom of the Realm it is but reason if he be ejected that he shall have Ejectione Firmae and it is a speedy course for a Copy-holder to have the possession of the Land against a Stranger 4 Rep. 26. As to the Declaration in Ejectment Vide Tit. Declaration In Cro. El. p. 224. It is said to be adjudged Ejectment Per tot Cur. That an Ejectione Firmae doth not lye of a Copy-hold Estate But it was agreed That an Ejectione Firmae doth lye of a Lease made by a Copy-holder but not of a Demise made by the Lord of a Copy-hold by Copy of Court Roll Cole and Wall 's Case A Copy-holder had Licence from his Lord to let his Land for 21 years he lets it to the Plaintiff for three years who entred and being Ejected brought Ejectione Firmae Ejectment by Lessee upon a Lease not warranted good against a Stranger Per Cur. he may maintain this Action at Common Law for it is a good Lease between the Paâ—â—â—s and against all others but the Lord and as this Case is it is good against him because it is done by his Licence and it is a good Lease and well warranted by the Licence Cro. El. 535. Goodwin and Longhurst A Copy-holder made a Lease for one year excepting one day which was warranted by the Custom Lessee being ousted by a Stranger brings Ejectione Firmae it well lyes and if there were not any Custom yet it shall be good against all but him who had the Inheritance and Freehold So if a Lessee for Will at the Common Law had made a Lease for years for the Tenant at Will is only a Disseisor and the Lease is good against him Cro. Trin. 41 El. p. 676. Spark's Case So 717. Erish's Case Moor n. 709. Stoner and Gibson Ejectment by the Heir without Admittance to presentment If customary Lands do descend to the younger Son by Custom and he enters and leaseth to another who takes the Profits and after is Ejected he shall have an Ejectione Firmae without any Admittance of his Lessor or Presentment that he is Heir 1 Leon. p. 100. Rumny and Eves n. 128. If a Copy-holder had Common by Prescription in the Waste of the Lord and the Lord stores the Waste with Conies every Copy-holder may have Action on the Case against the Lord averring That by this the Common is impaired 1 Rolls Abr. 106. Clayton and Sir Jerom Horsey Trespass for Beasts depasturing his Common by every Commoner Copy-holder prescribes to have Common in the Waste of the Lord and brings Trespass on the Case against a Stranger for his Beasts depasturing on the Common there The Question was whether this Action lyes for 15 H. 7.12 it s agreed a Commoner cannot maintain an Action of Trespass nor no other but the Owner of the Soyl 12 H. 8.2 And the Commoner hath no right till he hath taken it by the mouth of his Beasts and the Damage is to the Tenant of the Land and then every other Commoner may have Action of Trespass and so the Stranger shall be infinitely punishable Per Coke If a Commoner may distrain Damage feasant doing Damage which proves lie hath wrong then by the same reason if the Beasts are gone before his coming he may have Action on the Case otherwise one that hath many Beasts may destroy the Common in a night And it s not like a Nusance for that is Publick and may be punished in a Leet But the other is private to the Commoners and cannot be punished in another course he cited one Whitehand's Case Many Copy-holders prescribe to have the Loppings and Toppings of Pollards the Lord cuts them every Copy-holder may have his Action and also Hill 5. Jac. Rot. 1427. Geo. England's Case and Warburton of the same Opinion 2 Brownl p. 146. Crogate and Morris If a Copy-holder by the Custom of a Manor had used to have Common for all his Beasts Action on the Case for digging Turffs on the Common Levant and Couchant upon his customary Tenements in a certain parcel of the Manor and a Stranger digs Turffs there and takes them away by which his Common is impaired Action on the Case lyes declaring That the Defendant digged so many Turffs there and then with his Horses and Carts Herbam tunc ibid crescen ' predict ambulando conculcando Declaration from the place aforesaid minus rite ceperit abcarriavit
in Case of severance and that after the Lord granted over c. as on change of a Corporation in Lutterell's Case 1 Keeble 652. Davy and Watts The Case was The King was seized of a Manor Common appendant where there were divers Copy-holders for Life and was also seized of 8 Acres of Land in another Manor in which the Copy-holders have used time out of mind c. to have Common and after the King grants the Manor to one and the 8 Acres to another and a Copy-holder puts in his Beasts into the 8 Acres And in Trespass brought against him by the Patentee of the 8 Acres he prescribes That the Lord of the Manor and all those whose Estates he hath in the Manor have used time out of mind c. for them selves and their Copy-holders to have Common in the said Acres of Land And he farther pleads That he was Copy-holder for Life by Grant after the said unity of possession in the King and so demanded Judgment si actio Against which the unity of possession was pleaded The Defendant demurs Per Cur. as this Prescription was pleaded the Common was extinct but by special pleading he might have been helped and save his Common for this was Common appendant 2 Brownl 47. Vide James and Read Tirringhams Case 4 Rep. 38. Custom was alledged Sola separalis pastura That all the customary Tenements Habuerunt habuere consuever separalem pasturam c. it was excepted to this Plea That the Copy-holders have not shewed what Estate they have in their customary Tenements And 2dly It s not alledged that they have solam pasturam for their Beasts Levant and Couchant Per Cur. it s not material for be their Estates what they will in Fee or Life or Years Custom hath annexed this sole feeding as a profit apprender to their Estates and this they claim by the Custom of the Manor and not by Prescription As to the other Exception True it is if one claim only Common appurtenant to his Land he ought to say for his Beasts Levant and Couchant for in such case he claims but part of the Herbage and the residue the Lord is to have and therefore if he put in any Beasts that are not Levant and Couchant he doth a wrong to his Lord and the Lord shall have Trespass But here the Commoners claim all the Herbage and so exclude the Lord totally and so it s no mischief to the Lord 2 Sanders 326 327. Hoskins and Robins Estovers If a Copy-holder for Life had used to have Common in the Waste of the Lord or certain Estovers in his Wood and the Lord alien the Waste and the Wood to a Stranger and after grants certain Copy-hold Lands and Houses for Lives such Grantees shall have Common and Estovers in the Lands and Woods which were aliened notwithstanding the Severance But after such severance the Copy-holder shall not plead generally Quod infra manerium praed talis habetur consuetudo for after such severance the Waste or Wood is not parcel of the Manor but he may plead That before and until such time of the severance Talis habebatur a toto tempore c. consuetudo c. and then shew the severance as in Murrel's Case where the Lord severs the Freehold and Inheritance from the Copy-hold Co. 8 Rep. Swain's Case Where a Copy-holder prescribes for Estovers in the Soil of another and he saith That all Copy-holders Ejusdem tenementi usi sunt c. where he ought to have said Ejusdem manerij c. This Prescription was adjudged void 21 Ed. 4.36 b. 63. b. Prescription Pro ligno combustibili is good 2 Brownl 330. Trees A Prescription for a Copy-holder to cut Boughs of Trees is well laid by way of a Custom 2 Brownl 329. The manner of Pleading when a Lease is to be answered which is set forth in the Avowry In Replevin B. avowed for Damage feasant and sets forth That the Lady J. was seized of such a Manor whereof the place where c. and leased the same to the Defendant for years c. The Plaintiff saith That long time before King H. 8. was seized of the said Manor and that the place where c. is parcel of the said Manor demised and demisable by Copy c. and that the said King by such an one his Steward demised and granted the said parcel unto the Ancestor of the Plaintiff whose Heir he is by Copy in Fee and upon this there was a Demurrer because by that bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in bar to the Avowry ought to have concluded And so he was seized by the Custom until the Avowant pretextu of the said Term for years entred And so it was adjudged 1 Leon. p. 81. Herring and Badcock In Ejectment the Defendant pleads Ejectment That the Lessor of the Plaintiff was Copy-holder in Fee of that Land parcel of the Manor of H. which is in the Queens possession by reason of a Ward and that the Lessor surrendred to the Use of the Defendant in Fee who was admitted and that afterwards the Lessor entred upon him and expelled him and let to the Plaintiff prout in the Declaration and the Defendant re-entred as he lawfully might Lease as at Common Law and plead Lease of Copy-hold Land Custom or Licence must specially be shewed The Plaintiff dedemurs Per Cur. the Plea is naught for there is no confession and avoydance of the Lease let by the Plaintiff for the Action is brought as of a Lease of Land at Common Law and this proves that the Land was Copy-hold Land and a Copy-holder cannot make a Lease for years unless by Custom or by Licence of the Lord which ought specially to be shewed Cro. El. 728. Kensey and Richardson In Ejectione Firmae brought by the Lessee of a Copy-holder Lessee pleading a Licence how it is sufficient that the Count be general without any mention of the Licence and if the Defendant plead not Guilty then the Plaintiff ought to shew the Licence in Evidence but if the Defendant plead specially then the Plaintiff ought to plead the Licence certainly in his Replication and the time and place when it was made And if the Plaintiff replies That the Copy-holder by Licence first then had of the Lord did demise and did not shew what Estate the Lord had nor the place and time when it was made it s not good Per tot Cur. For the Licence is traversable for if the Copy-holder without Licence make a Lease for years the Lessee which enters by colour of that is a disseisor and a disseisor cannot maintain an Ejectione Firmae and the Defendant cannot plead That the Plaintiff by Licence did not demise for this is a negative pregnant also it ought to appear what Estate the Lord had for he cannot Lease for a longer time than he had in the
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
and Judgment pro Quer for that the Replication doth not confess or avoid nor deny the bar to the Avowry Winch Entur p 997 998 999. Foster and Woodcock Eject Bar que W. seisitus de Manor grants custumar terÌ„es in Reversion al Def. auters pur vies Repl que W. demised ceo Manor al C. R. determinable pur vie del M. ilsÌ„ assigne al M. qui grant Reversion de terÌ„es al H. pur vie Rej. que D. fuit prius seisitus de Manor que descend al 3 Coheirs quas W. disseise c. Surrej ê‘ maintenance de Replic Traverse le disseisin Demur inde Co. Ent. 184. Replev Quod Reg. Eliz. seisita de manerio unde c. concessit terÌ„as custumar R. M. Vxori ejus hered Vxoris qui sursum reddider ad usum Def. Bar quod W. prius seisitus de maner concessit terras al J. de quo descend al P. qut sursum reddidit al A. qui sursum reddidit al M. pur vie qui dimisit quer Repl quod W. ante concession al J. concessit terÌ„as al B. de quo discend al M. qui sursum reddidit Def. travers grant al J. issue inde Co. Ent. 575. Quod J. seisitus de maner unde c. concessit Def. pro vita in Reversion terÌ„as custumar dimissibil pro 2 vitis tam in Possessione quam in Reversione Hern 724. TrnsÌ„ quod C. seisitus de manerio concessit terÌ„as customar in feod al B. de quo descend Def. Repl C. fuit sisitus de manerio unde c. quod discend quer traverse quod terÌ„e sunt custum U. B. 153. TrnsÌ„ Def. justif sub tenentur custum monstroit le Estate de Copyhold durante viduitate Tomps 395. TrnÌ„s novel assignmtur Def. dicit quod pmissa tempore c. parcel custmaria dimissibilia ê‘ cop cuicunque ê‘sone ill capere volent in Talliatur seu pro vita Et quod F. G. pd fuit seisitus ad cur tentur 26 Martij dimisit cuidam W. in feodo qui dimisit Def. pro Anno virtute cujus c. done Colour Repl quod pmissa sunt liberum tenementum quer sic manutenet narÌ„ationem traverse que pmisse fuer parcel manerij de L. Rej. exitus sur traverse Keb. 465 467. In Repl Copyhold in Reversion ê‘ copiam tenentur in possessione advocat captionem pur Damage fesant custom del Manor granter Estates en possession ou reversion Hern 777. CAP. XXXIII Evidence Tryal Issue What shall be a good Evidence to prove the Custom alledged or not Presumptive Evidence Where Copy of a Lease is good Evidence What shall be tryed by the Jury and what by the Court-Rolls Substance found in special Verdict Who may be admitted to give Evidence When Issue is taken upon a Surrender where to be Tryed Venue What shall be a good Evidence to prove the Custom or not THE Custom of a Manor was laid to be That if a Copy-holder hath two Sons and a Wife and dyes and the eldest Son hath Issue and dies in the Life of the Wife that the younger Son shall have the Land the Issue being upon the Custom the Jury found the Custom to be That the younger Son shall have the Land unless the eldest was admitted in his Life and paid the Lords Fine Per Curiam the Verdict is not sufficient to prove the Issue Moor n. 566. In Replevin If the Defendant justifies the taking as Damage fesant The Plaintiff in bar pleads by reason of a Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties were at Issue and it is found that part of the Beasts were Levant and Couchant Part found for the whole and part not this is found for the Defendant for the Issue is upon the whole and the contrary to it is found Trin. 17 Jac. B. Sloper and Allen. The Issue was in Kemp and Carters Case 1 Leon Case 70. p. 55. If the Lord of the Manor granted the Lands in question Per copiam rotulorum curiae Manerij praed secundum consuetud Manerij praed It was given in Evidence That within the said Manor were divers custumary Lands and that the Lord now of late at the Court of the said Manor granted the Land per Copiam Rotulorum curiae where it was never granted by Copy before Per Cur. the Jury are bound to find Dominus non concessit for notwithstanding de facto Dominus concessit per Copiam Rotulorum curiae Non concessit yet non concessit secundum consuetudinem manerij predict for the said Land was not custumary nor had the Custom taken hold of it Several Customs within several limits ought to be specially shewed It was shewed then That within the said Manor some customary Lands are demisable for Life only and some in Fee By Anderson Chief Justice He who will give in Evidence these several Customs ought to shew the several Limits wherein the several Customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for Lives only and the Lands in the other in Fee and he ought not to shew the several Customs promiscue valere through the whole Manor In an Action brought The Defendant alledgeth a Custom of a Copy-hold to be demised in Fee Tayl or for Life and made Title by a demise in Fee to himself The Plaintiff traversed the Custom and the Custom was found to be Substance found to demise in Fee or for Life but not in Tayl Per Cur. the Issue was found for the Defendant because the substance was found for him and the Tayl was but inducement Moor n. 490. Dorley and Wood. Wadsworth's Case before Judge Crawley at York Assises was upon an Intail of a Copy-hold within the Manor of W. and several antient Intails shewed in Evidence in Edward III. time and remainders limited over upon such Intails and Plaints in nature of Formedons brought there for such Remainders and Recoveries thereupon and several Issues after had taken their Admittances as of Fee simple Land as Heirs in Fee and for this cause Purchasers look at the Copies Presumptive Evidence and seeing Fee-simple in Admittances are secure the Estate is so and apply their Assurances accordingly the Jury found for the Plaintiff against this Intail and it shall be presumed the Intail hath been cut off some way when many Admittances have been in Fee simple The Custom of a Manor is Less Estate than the Custom That the Wife shall have it during her Life and on Evidence it appears that she shall have it durante viduitate this Evidence doth not maintain the Custom 4 Rep. 30. If the Parties be at Issue upon the time of the Surrender made or the Court holden The time of the Surrender or of the
At the Court Baron of the Honour of Hampton J. S. and J. D. Tenants of the Honour of Hampton do present An Honour That J. R. did Surrender into the Hands of two Tenants of the Honour Per Jones This being a Court of the Honour and into the Hands of the Tenants of the Honour it s not good but by the other three Justices its good enough For Toddington being in the Margent it shall be said a distinct Court by it self For an Honour consisteth of many Manors yet all the Courts for the Manors are distinguished and have several Copyholders Cro. Car. 366. Seagood and Hone. Special Verdict was That Copy-holder of Inheritance bargained and sold his Copy-hold Land c. to the Lessee of the Manor and this was by Indenture and the Indenture was to this effect Verdict found not according to the Indenture That he bargained and sold all his Lands and Tenements as well Copy-holds as other Lands bought of John Culpepper in such a Town but it is not found by the Verdict nor averred by the Party That the Land was bought of John Culpepper and so ill Winch Rep. p. 67. Hasset and Hanson Custom not well found A Copy-holder of Inheritance made a Letter of Attorny to two Joyntly and severally to Surrender his Copy-hold Lands in Fee to certain Uses after his death but the Verdict doth not find that the two Attornies were custumary Tenants nor doth it appear that they were customary Tenants at the time of the Admittance and the primier possession will make a disseisin by the Defendant if the Custom be not well found It is not found that the two Attornies were customary Tenants but it was objected here is so much found as shall make it to be presumed that they were Tenants of the Manor for it is found that the party is admitted secundum consuetud Manerij which cannot be a good Admittance if they were not Tenants But Rolls answered to be admitted secundum consuetudinem goes to the Admittance not to the Letter of Attorny the Custom is not good neither is it found that the Land is demisable at the will of the Lord c. and so it may be free Land and the Custom reaches it not Stiles p. 311. Wallis and Bucknal The Plaintiff entitles himself to have Common of Pasture c. to his Copy-hold and the Custom was traversed it was found he ought to have the same Common but that every Copy-holder used to pay time out of mind c. pro ead communia unam gallinam quinque ova annuatim upon this Verdict the Plaintiff shall have Judgment Failure of Custom found this is not a common sub modo for the Ter-Tenant had remedy for the Hen and Eggs by distress and it is not parcel of the Issue but had the Jury found that the Plaintiff shall have Common paying so many Hens and Eggs the Issue had been against him and it had been parcel of the Custom it s not Modus Communiae but collateral recompence One prescribes to carry Water out of the River the Jury find he ought to have this paying 6 d. yearly Failure of Prsecription found Per Cur. he hath failed of his Prescription for he had prescribed absolutely and the Jury found it conditionally or sub modo and the Ter-Tenant in this Case hath no remedy but by disturbance 5 Rep. 68. Gray's Case If the Issue be whether Jury must find directly and not argumentatively where a Copy-hold is granted to three for the Lives of two he who dies seized c. ought to pay an Harriot Custom and the Jury find there never was a Grant of such Estate within the said Manor This is not well found for this is but an argument that no Harriot ought to be paid but they ought to have found it directly M. 15 Jac. B. R. Ven and Howel If the Issue be whether by the Custom of the Manor a Copy-hold may be granted to three for the Life of two and they find that by the Custom it may be granted for three Lives this is not well found because it is only by Argument because if a greater Estate may be granted a lesser may be So if the Issue be whether a Copy-hold may be granted in Tail and they find it may be granted in Fee mesme Case What shall be intended by the Juries finding if c. then for the Plaintiff Special Verdict upon a Patent from King H. 8. which Patent was adjudged void to pass the Estate the Jury find if it were a good Patent then for the Defendant if otherwise they find for the Plaintiff It is intended there is a sufficient Title found for the Plaintiff unless by this Patent it be defeated If Jury be satisfied the Plaintiff hath Title the Court ought not to doubt thereof so that if the Jury be satisfied that the Plaintiff hath any good Right by any other manner of Title the Court ought not to doubt thereof and so is Goodal's Case 5 Rep. 97. Cro. Car. 21. Castle and Hobbs Custom was pleaded by the Defendant That if a Copy-holder in Fee hath a Wife at the time of his death and two Sons or more that the Wife shall have her Free-Bench during her Life and that if the eldest Son dye living the Wife though he hath Issue his Issue shall not have it Custom must be found in the manner that he pleads it but the second Son The Jury found the Custom that the youngest Son should have it unless the eldest Son was admitted thereto as to the Reversion or made a Fine for it with the Lord in his Life-time Per Cur. The Custom is not found in that manner that he pleaded it therefore it is found against him that pleaded it for he pleaded a general Custom without exception and the Custom found is with an exception and special as the Case is in Dyer 192. Where a Custom was pleaded That a Feme should have it and it was found she should have it Verdict not aptly concluded durante viduitate but in this Case there was not any Verdict upon this Issue for they concluded their Verdict Si c. they found the Defendant guilty if otherwise not guilty and so there is not any conclusion of the point in Issue Per Cur. a gross fault and a Venire Facias de novo was awarded Cro. El. 415. Boraston and Hay In Trespass the Plaintiff in his Replication makes Title That this Land is parcel of the Manor of D. and demisable c. by Copy in Fee in Tail for Life or years c. and the Land was let to him by Copy in Fee Substance found the Prescription was traversed and found that it was demisable c. in Fee but never in Tail and that it was granted to the Plaintiff in Fee this was found for the Plaintiff for the Allegation That the Land was demisable in Fee or in Tail
c. is but a Conveyance to his Title and for that it was found that it was demisable in Fee and that it was demised unto him in Fee this is the substance of his Title and so sufficient Cro. Eliz. p. 431. Doyle and Wood. In Eject Fir. If the Jury find a special Verdict That J. S. was seized of the Manor of D. in his Demesn as of Fee in which Manor was a Copy-holder of the place where c. and commits Waste by cutting down an Oak and that after J. S. dies and the Lessor of the Plaintiff being his Cousin and Heir enters in the Manor in the place where c. for the said Forfeiture and was of this seized in his Demesn as of Fee and concludes si super totam materiam c. This is not a good Verdict because it is not found that J. S. died seized of the Manor and that this descends to the Lessor Seisin and descent as Cousin and Heir as his Cousin and Heir for it may be that J. S. aliened the Land and that the Father of the Lessor or the Lessor himself re-purchased this and that he was also Cousin and Heir to J. S. and although it be in a Verdict it shall not be intended that the Fee continued in J. S. at the time of his death and that he died thereof seized without finding it 2 Rolls Abr. 699. Cornwallis and Hammond Part found the Issue upon the whole not good In Replevin The Defendant justifies by reason of Common to such a Copy-hold for all Beasts Levant and Couchant and avers that these Beasts were Levant and Couchant c. upon which the Parties are at issue and it is found that part of the Beasts were Levant and Couchant and part not this is found for the Defendant for the whole for the issue was upon the whole and the contrary is found 2 Rolls Abr. 707. Sloper and Allen. Presidents in Special Verdicts Quod Tenementa sunt custumaria dimissibilia per Copiam dimissio per Dominum ex traditione propria 1 Rep. 117. Chudleigh 's Case Sursum redditio admissio in feodo Co. Entr. 207. Simile in Tallio communis recuperatio inde Co. Entr. 206. Tenementa concessa per copiam la A. B. super vixit Co. Ent. 273. Consuetudo infra manerium de devisatione devisatio in haec verba Co. Ent. 124. Littera Attornat ' ad sursum reddend ' tenementa custumaria sursum redditio admissio superinde Coke Entr. 576 577. Et si sit sufficiens in Lege Manerium Tenementa ab antiquo discendebant 2 percenariis qui fecer ' partitionem de terris dominicalibus ac Tenementa Custumaria servitia remanser ' in communi Coke Entr. 711. Officium Seneschalli manerij execut ' per deput ' contentio inter 2 Seneschallos de Cur. Baron Tenend 9 Rep. 45. In Ejectment Jury find that the Lands are demisable by Lives in possession or reversion and that the Widow in possession held the Lands so long as she remained sole and chaste and that M. C. Widow was seized for Life durante viduitate the Lord grants the Reversion of the said Lands by Copy to R. C. the Son of M. for Life to commence after the death forfeiture or surrender of M. M. surrenders one moiety of the Premisses to R. The Lord dies discent of the Manor to C. S. his Cousin and Heir R. Tenant for Life of one moiety and M. Tenant in Free-Bench of the other moiety the Lord by Indenture demiseth to the Lessor of the Plaintiff for 99 years if he and J. and B. his Sons shall so long live to commence after the death and determination of the Estates of the said M. and R. and of the viduity of such person as shall be his Wife at the time of his death M. surrenders her moiety to R. R. dies seized of both moieties P. C. the Defendant his Wife is admitted she commits Fornication and had a Bastard Jury find the entry of the Lessor If the Lease shall commence before P. dies was the Question Winch Ent. 455. Jury found that the Messuage and Lands tempore quo c. tempore hors memory were custumary part of the Manor of B. a Prebend of S. demisable by Copy of Court Roll for one two or three Lives and that by the Custom of the Manor every Tenant for Life sole seized of any customary Estate for Life in possession may nominate one to succeed him to be Tenant to the Lord for Life and that the party nominated used to require his Admittance and pay such Fines as were taxed by the Homage Another Custom was That every customary Tenant sole seized in possession may cut Timber Trees c. and that Mason the Defendant being Copy-holder for Life 1 May 40 Eliz. named R. P. to be his succeeding Tenant They also find that Robert P. being Prebendary of the said Prebend and seized in Fee of the said Manor 20 March 40 Eliz. demised by Indenture the Manor of B. to Peter Hoskins for three Lives and by the said Indenture Bargains and Sells to him all the Timber Trees c. by which Indenture is a Letter of Attorny to make Livery and they find the Indorsement on the Indenture to this effect Midd. That J. B. one of the Attornies entred into part and made Livery Midd. That J. G. the other Attorny entred into part and made Livery The Livery made in the House of the Lord was Endorsed but it is not mentioned to be part of the Manor The Jury find the entry of Peter Hoskins and seisin for three Lives according to the Lease which aids the other Imperfections Verdict aided 1 Jan. 43 Eliz. Peter Hoskins demiseth to J. Hoskins Masons Tenement and Lands for 99 years March 3 Jac. Mason continuing customary Tenant for Life after his nomination aforesaid cut down 20 Trees off his Copy-hold upon which J. Hoskins 6 Jac. entred upon the Land and demised to the Plaintiff who enters upon Mason who re-enters and if his re-entry be lawful they find for Mason After non-suit one of the Defendants was dead this suggestion must be entred on the Roll. and if not lawful they find for the Defendant Winch Ent. 440. Rowls and Mason In Ejectment to try the Custom of E. of Copies for three Lives the Plaintiff was non-suit and one of the Defendants being dead Hales Chief Justice advised to enter a Suggestion on the Roll That one was dead or else the Judgment for the Defendant on the non-suit will be erroneous as to all 2 Keb. 832. Hawthorn versus Bawden CAP. XXXV Copy-holders relieved in Chancery or what things in respect of Copy-hold Estates are relievable in Chancery or not NOW I conceive it will not be impertinent but rather a thing well approved of to cite some Cases Resolutions and Decrees wherein Copy-holders have been relieved and what remedy the Chancellor will give in respect of Lords
else non-payment is not a Forfeiture 198 Surrender by a Copy-holder for Life to one in Fee is no Forfeiture What is a present Forfeiture without presentment 199 Heir beyond Sea shall not forfeit for not coming in upon Proclamation in Court 202 Wilful Forfeitures not relieved in Chancery 320 Where the Wife shall suffer for the Forfeiture of her Husband or not 211 Forfeiture as to cutting of Trees by Tenant for Life 207 208 Where Admittance is a Dispensation of a Forfeiture 217 Where Amerciament is a Dispensation of a Forfeiture ibid. Forfeiture purged by Release ibid. Where and what Acceptance is a Dispensation of a Forfeiture and where and what not 218 Where the Heir shall not take advantage of a Forfeiture in the Life of the Ancestor 219 The Lords Remedy for a Forfeiture 220 Bill in Chancery to reverse a Faux Judgment given in the Lords Court 326 What alienations shall be a Forfeiture 206 Forfeiture in Waste 207 By Rescous 216 By Inclosure 210 After a Copy-hold is dismembred from the Manor of what Forfeitures the Feoffee or Grantee shall take advantage 212 Where the Forfeiture of one Copyholder is the Forfeiture of another where Forfeiture of part shall be of the whole 214 215 G. By the Kings Grant of all his Demesn Lands Copy-hold shall not pass aliter in the case of another What things may be granted by Copy 78 Of voluntary Grants by the Lord 79 80 Disability of the Lords person no hindrance of the Grant 80 What Estate the Lord must have to enable him to make Grants 81 82 Voluntary Estates granted during the time of the Lords Interest shall be good though the Lords Estate be avoided ab initio 84 Grants by Tenant at sufferance or one that has a tortious Title not good 86 87 Copy-hold not to be granted by parcels 89 What amounts to a Grant 90 How Grants of a Copy-hold to be expounded 90 91 92 What shall pass in a Grant by the words cum pertinentiis 92 94 By what words in Grants Copy-holds shall pass or not 92 93 H. Honour what 311 Where the Heir shall be in by discent or Purchase 123 Heir before Admittance is not a compleat Tenant to all purposes Hariot Service and Hariot Custom the difference 237 238 What Custom for Hariots shall be good or not 239 Where and how Hariots shall be apportioned or not 240 Who shall pay an Hariot and when and when not Who shall have an Hariot 241 Pleading as to Hariot vide Tit. Pleading What shall be a good Avowry in conuzance for an Harriot in Replevin or a good justification in Trespass or not and how to be pleaded 244 I. Infant not bound by many Customs 21 If Infant Surrender he may enter at full Age 21 Infant may make a Lease without Licence and not forfeit 21 Surrender by Infant at five years old Custom to assign one to take the profits of a Copy-hold Infant Interruption in the Possession and in the Right 32 42 Faux Jugdment given in the Lords Court where relievable Copy-hold Lands are not within the Statute 11 H. 7. cap. 20. Of Joyntresses 254 The Lord to have the custody of an Ideot 17 K. Kings Grants favourably construed 32 King need not recite in his Grant that it is Copy-hold 23 Surrender to the King without other matter of Record where good 24 L. Lease 108 181 Custom to Lease without Licence may be good 51 52 Lease made before Admittance in what case good 54 What Leases made by a Copy-holder for years are a Forfeiture or not 203 When a Lease shall begin in point of eomputation and not in point of Interest 184 Lease of Copy-holds made by Tenant in Tayl ibid. Lease of Copy-holds made by Ecclesiastical Persons 186 Lease affirmed by acceptance 187 Lease of Free-hold and Copy-hold the Rent issues out of beth 187 In what respect a Lease not warranted by Licence or Custom is yet good in Law 189 Lease void in Interest and good by way of Estoppel 192 What shall be said a Covenant and no Lease and so shall not be a Forfeiture 206 Lease for years not warranted is no disseisin to the Lord 182 Licence Once a Licence to make a Lease and always a Licence What Licence and by whom granted shall be good or not 191 Licence taken as a confirmation 193 Licence pleaded vide Pleadings Copy-hold not within the Statute of Limitations 251 M. Manor the Original and Nature of it 6 Customary Manor what 7 What shall be said parcel of a Manor and what shall be said a severance 2 Manor not to be created at this day 4 A Manor in reputation 5 A Manor in gross 7 How the Lord may create a customary Manor 8 Severance of Copy-hold from the Manor what it operates What shall be said time out of memory 30 Copy-hold is within the Statute 32 H. 2. cap. 9. of Maintenance Manor by reputation how it will pass 7 How Copy-hold may be severed from the Manor and how not 11 N. Notice There must be notice of the Alteration of the Use and Estate or else there can be no Forfeiture for denial of Rent 197 No notice need where a Fine is certain aliter where it is uncertain 191 P. Priviledges of the Lord 17 Priviledges of the Copy-holder 17 18 Difference between Priviledges annexed to the Seigniory and Priviledges annexed to the Tenancy 19 Pleading vide Traverse Uncertainy in Pleading vide sparsim Pleading by an usitatum fuit where good or not 64 How a Copy-holder shall plead in making Title to a Copy-hold 271 272 Whether in Pleading the reasonableness of the Fine must be avered When and where a Licence is to be pleaded specially and when and where not 193 Grant of Copy-hold Land in Reversion must be pleaded as a Grant in Reversion and not as a Grant in possession nor by a per nomen 271 The Manor of a Copy-holders pleading Custom or Prescription 275 How a Prescription must be made by a particular Tenant at will ibid. The manner of a Copy-holders pleading Custom or Prescription for Common 32 Special Prescription to be pleaded in case of severance of the Copy-hold Tenement from the Lord 278 The manner of pleading when a Lease is to be answered which is set forth in the Avowry 280 Where the Action is brought as of a Lease at Common Law and one pleads a Lease of Copy-hold Land 281 Custom or Licence must be shewed specially ibid. How Lessee is to plead a Licence ib. How a Surrender is to be pleaded Pleading of Prescription by a Copy-holder to be discharged of Tythes 282 The Forms of pleading a Surrender vide Surrender 290 Grant 291 Common 292 Trees ibid. Way 296 Forfeiture 297 Pleading Custom or Prescription 273 Bar that the Lands are customary Lands 299 Pleading as to Harriots 242 Presentment 136 When to be made 137 If Surrendror or Cesty que use or customary Tenants dye before Presentment yet Presentment and Admittance may be afterward 138
The nature and effect of a Presentment 139 Two Surrender and the second Surrender is first presented 140 What will make a possessio fratris so as to inherit a Copy-hold Priviledges of Copy-hold 18 19 20 R. Popish Recusant shall forfeit all his Copy-hold Land within 25 El. c. 10. 253 Copy-hold Rents apportioned 188 Action of Debt lyes not for Arrears of Rent within the Statute 32 H. 8. 250 One Lease of Freehold and Copy-hold the Rent issues out of both 187 Avowry for Rent by Lessee of a Copy-holder 262 S. Steward 75 Deputy acts done by him or his Servant shall be good so by a reputed Steward 76 77 Infant cannot be a Steward 77 Surrender 95 The nature of a Surrender ib. Where and in what respects Estates may pass otherwise than by Surrender 99 The Lord not compellable to make a Surrender 49 Where Surrender is sufficient without Admittance 102 Where Admittance is sufficient without Surrender 102 103 Of Surrenderss out of Court who may take them and what are good or not 105 In whom the Reversion after a particular Estate remains 104 Surrender by Attorny and form of the Entry 107 108 What shall pass and by what words in a Surrender 109 Construction of a Surrender where no use is limitted 110 Surrender passeth no Estate by Implicacition Where an Use is limitted in a Surrender how far the construction shall be according to the Rule of the Common Law 113 Surrender to an Use upon an Use ibid. Surrender to the Use of ones Wife 13 125 Where a Surrender is void for uncertainty 113 Surrender to the Use of a person not in esse 115 to the Use of one in ventre sa mere 116 Of a Surrender to take effect in futuro ibid. Construction of Surrenders and limitations in Remainder or Reversion 118 119 If a Surrender makes a discontinuance 217 Surrender to the Use of a Mans last Will and how to be construed 124 Surrenders upon condition or contingency 120 221 122 129 Where a Surrender before Admittance shall be good and where not 130 Surrender by Husband of the Wifes Land Surrender by Joynt-Tenants 127 131 Surrender by a Feme Covert 133 Surrender of the Wives Land 134 Surrender to the Steward to the Use of the Steward is good ibid. Countermand of a Surrender 135 What remedy to force a Trustee to surrender 135 Surrender not good till presented 136 Heir decreed to Surrender on Contract with the Ancestor 327 Relief in equity as to Surrender 323 Defendant decreed to Surrender according to Agreement ibid. hold shall not be extended 237 If the Copy-holder bind himself in a Statute the Copy Within what Statutes of Parliament Copy-hold Lands are contained and within what not 247 c. Services not to be performed by Attorny T. How Copy-holds are Entayl'd and how dockt and barred 165 166 c. How the Statute VV. 2. creates an Estate Tayl 166 167 In what cases Trespass may be brought by the Copy-holder against his Lord 257 Trespass by a Copy-holder for Beasts depasturing on the Common 260 Tryal The time of the Surrender or of the Courts being held to be tryed by the Jury and not by the Court-Rolls 307 When Issue is taken upon a Surrender where to be tryed 310 Traversing the day of the Grant Traversing the dying seized of the Copy-hold 246 205 Where a particular Custom is confessed in the Rejoynder he ought to Traverse the general Custom 228 V. Copy-hold not determined or forfeited by Utlawry Special Verdict 311 Custom not well found 312 Failer of Prescription 313 Jury must find directly and not argumentatively ib. Custom must be found in the manner that he pleads it 314 Verdict aided 318 Statute 27 H. 8. of Uses extends not to Copy-hold 252 Venue 310 VV. Surrender to the Use ef a Man's last Will 115 Copy-hold devised without Surrender executed by decree in Chancery 326 Customs as to Woods Underwoods 58 What Copy-holders may cut Trees and in what cases and to what purposes Custom to sell Trees 58 Copy-hold Lands are not within the Words of the Statute 34 H. 8.5 of Wills Quaere If within the Equity 253 A TABLE OF THE Precedents A Settlement before Marriage of a Copy-hold Estate where according to the Custom of the Manor there is a dead Year after the death of every Tenant grantable by the Tenant in his Life-time and his Widow enjoys the Estate durante castitate if he surrender or alien it not in his Life-time with permission That the Goods of the Wife shall remain at her disposal and that her Husbands name may be made use of to sue for her Debts but the Monies to be secured by the Trustees to her use 329 Covenant to Surrender Copy-hold Land after bargain and sale of Free-hold 334 Covenant that he is rightfully seized of Copy-hold Land 335 A Covenant to surrender Copy-hold Lands ibid. A Covenant in nature of a Mortgage upon a Surrender of Copy-hold Land to pay mony at a certain time 337 A Bargain and Sale of Copy-hold Lands by Commissioners of Bankrupts 339 A Surrender in Trust and the Trust declared Trustees covenant not to commit c. any thing that may amount to a Forfeiture 342 An Infranchisement of Copy-hold Lands made by a Lord of a Manor to his Copy-holder 344 A Lease of Copy-hold Land with the Lords Licence 348 A Release of Copy-hold Estate 350 Precedents of Copies of Court Rolls Presentments Surrenders Admittances Releases Proclamations for not coming in c. A Surrender 253 A Surrender of Copy-hold Lands for Life the Remainder in Fee taken by the Steward out of Court 355 A Surrender out of Court of a Reversion to the use of a Man and his Wife and the Heirs of the Body of the Husband the Remainder to the Heirs of the Body of the Wife the Remainder to the Husband of the present Tenant for Life in Tayl the Remainder to the present Tenant for Life in Tayl the Remainder to another in Fee with the Lords acknowledgment of satisfaction of a Fine The Surrendror surrenders all his Right c. to the Husband and Wife the present Tenant for Life to the Uses aforesaid 356 After abatement and intrusion the Lord seiseth the Lands and grants them to the Abator for term of Life the Remainder to the next Heir of the Disseisee in Tayl remainder in Fee 358 Surrender out of Court to several Uses upon a Marriage Settlement 360 Presentment of a Surrender made in Court with the Admittance of the Tenant next Heir 361 The finding the death of a Tenant and of the Lands and Heir with the Admission of the Tenant and a Presentment made in Court between the Heir and his Mother touching her Dower and the Mothers Release of her Dower 362 Presentment of the Copy-hold Customs of a Manor 376 367 Surrender by Baron and Feme 369 Surrender to the Use of ones last Will 370 Grant of the wardship of a Tenant ibid. Surrender of right Title and Interest
Reversion expectant upon an Estate for Life In all Writs where a man conveys by discent there shall not be mention of any but those who had seisin And in all Actions and Writs where a man conveys by descent there shall not be mention of any but of those who took the Estate and had seisin and not from others who never had seisin the Law esteeming them as if there had been never any such persons and by consequence he may claim here as youngest Son by the custom as Heir in Burrough-English as if Charles had never been because he hath it in course of descent and this is true at Common Law but Jones and Croke held that William had the better Title for Charles being youngest Son at the time of the death of his Father that makes him Heir in Burrough-English by the Custom and when it rests in the youngest Son as Heir by the Custom the Inheritance is fixed in him and he only who is in esse at the time of his Fathers death shall have as by Custom this seems to be the better Opinion Crok Car. 410. Reeve and Malster Who may be said to be customary Tenants A Wife that hath her Widows Estate according to the Custom of the Manor is a good customary Tenant So Tenant per the Curtesie per the Custom In Gloucestershire there is in a Manor a Custom That Executors shall have the Profits for a year In some sense they are good customary Tenants Under-Tenant in what respect Custom was That for Waste to be amerced and to distrain for such amerciament the Beast of the under-Tenant as well as the Tenant is liable The under-Tenant is a customary Tenant to this purpose and no Stranger Transit terra cum onere he enjoys the Priviledge of a customary Tenant and he shall undergo the Charges March Rep. 161. Thorn and Tyler Note There is difference between customary Lands and Copy-hold Lands Freehold as well as Copy may be customary Lands as ancient Demesn may pass by Surrender in some Manors and by Copy and ancient Demesn may pass by Feoffment as Surrender Vide Peryman's Case Rep. Court The Nature of a Court Baron and who may keep Courts or not A Manor cannot be without a Court Baron Vide supra it is inseperably incident to a Manor without any Grant from the King to keep the same and this is not drawn from the Crown but is to be held de necessitate 1 Bulstr 6. The King and Stafferton The Court Baron must be holden within the Manor Where to be held for if it be holden without the Manor it is void unless a Lord being seized of two or three Manors hath usually time out of mind kept at one of his Manors Courts for for all the said Manors then by Custom such Courts are sufficient in Law albeit they are not holden within the several Manors Co. Lit. 58. a. There may be a customary Manor held by Copy and such a customary Lord may keep Courts and grant Copies 11 Rep. Nevil's Case Cro. Jac. 260. contra Now there are two sorts of Court Baron Two sorts of Court Baron one at Common Law incident to every Manor and is of Freeholders and the Freeholders are Judges There is also a customary Court consisting of customary Tenants for without them it cannot be and this Court may be holden without any Free Tenants or other Suitors except Copy-holders and of this Court the Lord or his Steward is Judge Co. Lit. 58. And when the Court Baron is of this double nature the Court Rolls contain matters appertaining to both Honour what An Honour consists of many Manors yet all the Courts for the Manors are distinguished and have several Copy-holders and though there is for all the Manors but one Court yet are they quasi several and distinct Courts One Court kept for many Manors and so it was usually in the time of the Abbots they kept but one Court for many Manors Cro. Car. 361. Seagood and Hone. When the Lord of a Manor having many ancient Copy-holds in a Vill grants the Inheritance of all his Copy-holds to another Customary Court how made and may be held the Grantee may hold Court for the customary Tenants and accept of Surrenders and make Admittances and Grants for although this is not a Manor in Law because there want Freeholders yet there may be holden a Court for Copy-holders and the Lord or Steward is Judge And as the other being a Court Baron may be called the Freeholders Court this may be called the Copy-holders Court so if all the Freehold do Escheat or if the Lord release the Tenure and Services of all his Free Tenants yet the Lord may hold a customary Court for his Copy-hold Tenants So if the Lord demise all his Lands granted by Copy to another for a thousand years such Lessee may hold Court for the Copy-holders 4 Rep. 26 Melwich's Case and Sir Christopher Hatton's Case cited in Neal and Jackson's Case 27. These number of Copy-holds may support a Custom but a single Copy-hold cannot hold a Court. Tenant at Will of a Copy-hold Manor may grant Copyhold Estates but cannot keep Courts Guardian in Socage keeps Courts in his own name and grants Copies its good and shall bind the Heir Vide Tit. Grants Cro. Jac. 55 98. Shopland and Rider The Lord himself may Grant or make Admittance out of the Manor at what place he pleaseth but so cannot the Steward 4 Rep. 26. Melwich's Case 27 Clifton and Mollineux Court may be held out of the Manor by Custom but by Custom the Court may be held out of the Manor and Grants and Admittances there made be good as divers Abbots Priors c. have kept one Court for many Manors Steward Every Steward of Courts is either by Deed or without Deed for a man may be retained a Steward to keep his Court Baron and Leet without Deed and that retainer shall continue till he be discharged Co. Lit. 61. b. 4 Rep. 30. And such Steward may take Surrender of customary Tenants out of the Court 4 Rep. 30. Holcroft's Case In all real Actions which concern Lands the Suitors are the Judges but in personal Actions under the Sum of forty shillings the Steward is the Judge Steward without Deed may take Surrenders out of Court but the Custom must warrant it Note Difference between a Steward of a Manor and the Steward of a Court. A difference between Steward of a Manor and the Steward of Courts Steward of a Manor may take Surrenders in any place 1 Leon. p. 227. Case 307. Blagrave and Wood. Steward appoints his Deputy to keep a Court ad tradendum Copy-hold Land to W. for Life Deputy the Deputy commands H. his Servant to keep Court and grant the said Land and the Custom found did not extend farther than the Deputy though a Deputy cannot transfer his Authority over being an office of Trust yet
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