THE great injuries which are offered, and small remedies which are used in cases of Coppy-holds, which as it seemeth, doe grow by the obscure knowledge what Law & Custome judgeth in these matters of Coppy­hold: moveth mee to shew some part of my Travailes in these poynts, not thereby to animate Coppy-hold Tenants which would by too much advancing their Tenure, pretend only to be Tenants by Custome, and not Te­nants at Will, nor to encourage any Coppy-hold Lord, which could by too much abasing these Tenures, pretend to have such Coppy-holders [Page 44] onely Tenants at Will, and not regard their customes, but to proove unto you, that as their Title and name sheweth they are Tenants at will, and Tenants by Custome in their Land, and they consist both of their Lords Will and Custome of the Mannour in their degrees. And that this Will and Custome be contained within the Limits of Law and reason, according to such rules as shall be hereafter declared.

First I will shew what a Coppy-hold is, then whereof it doth consist, and what estimation the same is of, by the Antiquity of time, and by the Lawes and Statutes of this Realme.

Master Littleton in his first booke of Teuures, defineth a Tenant by Coppy of Court Role, and to be where a man is seised of a Mannour, in which is a Custome that hath been used time out of minde, that certaine Tenants of the same Mannour have used, to have certaine Lands and Tenements to hold to them▪ and their heires, in Fee Simple, Fee Taile, or for Life at the will of the Lord after the Cu­stome of the Mannonr: And that they have no other evidence but the Roles of the Court, by which difinition, and by certaine other observations of the Law it may bee gathered, that a Coppy-hold doth consist of these sixe principall grounds, or Circumstances. (viz.)

[Page 3] First, there must be a Mannour, for the main­tenance of Coppy-hold.

Secondly, a custome for the allowing of the same.

Thirdly, there must be a Court holden for the proofe of the Coppy-holders.

Fourthly, there must be a Lord to give the Coppy-hold.

Fiftly, there must be a Tenant of Capacity to take the Tenement.

Lastly, the thing to bee granted which must bee such as is grantable, and may bee held of the Lord according to the Te­nure.

But first before I speake of these Circum­stances, I will briefly declare unto you the Dignity and Estimation of Coppy-holders, by the Antiquity, and allowance of time, and by the Lawes and Statutes of this Realme.

It appeareth by a certaine booke intituled De priscis anglor: legibus: Translated out of Saxon Tongue by Master Lambert of Lincolns Inne; that Coppy-holds were long before the Conquest, and then called by the name of (Bookeland) as you may see in the beginning of the Booke, in the Treatise De rerum & Verborum explicatione; and by Master BRACTON an Ancient Writer of the Lawes of ENGLAND, who in his Booke VVriteth divers presidents [Page 4] and Records of King Henry; of allowance, Copi-holders or Customary Tenants that do their due services, the Lords might not ex­pell them; according to the opinion of the latter Judges, in the time of Edward the 4. and Edward the third: And it appeareth by Master Fitz-Herberts Abridgements, they were preferred by a speciall writ for that pur­pose, and the Lord thereby compelled to do right. And in the time of Henry the fourth, Tenants by the Virge, which are the same in Nature, as Copy-holders be, were allowed by the name of Sokemaines in Franktenure; as in the time of Henry 7. were allowed, and of the King, for defence of their estates. So that in every Kings time Copy-holders have had their allowances according to their na­tures, unto this time present, wherein our Justices are of opinion, as the said grave Sa­ges have beene in times past. Now I will further proceede in some perticuler use of these Tenures, according to the Lawes and Statutes of this Realme: And because I finde none that doth so much deface the estimation of Copy-holders, as Master Fitz Herbert doth in his Writ Derecto Clauso. I will begin with his words and judgement in the same, and proceed to other Authorities.

Master Fitz-Herbert, saith that this Terme Coppi-holders is but a new Terme, newly [Page 5] found out, & that in old time they were called Tenants in Uilenage, or base Tenure; and this saith he, doth appeare in the old Tenures, for no Coppy-holders are there spoken of, al­though there were at that time such Tenants. But then saith, they were called Tennats in Vilenage and saith, as appeareth 44. Henry 4. If a false judgement be given against them, in the Lords Court, they shall have no remedy, but sue to their Lord by petition, because to hold by Coppy of Court Role, which is as hee saith base Tenure, is to hold in Vil­lenage, which said opinion of Fitz-Herbert, have beene by divers wrested, to make no diuersity betweene Tenure in Villenage, and Tenure, by Coppy of Court Role or base Te­nure, wherein whatsoever interpretation may be made, Master Fitz Herberts meaning is very plaine, and the Booke of the old Te­nures, is to be farre otherwise understood: as also I suppose, all other Authorities in our Law doe make and appoint difference be­tweene the Tenures. And first touching the Booke of the old Tenures it is plaine, that the Booke maketh a plaine distinction betweene Tenure in Villenage, and Tenure in Fee Base, which is understood this Tenure by Coppy-hold, and calleth it a Fee although a base Fee, and maketh diverse distinctions betweene them, and sayth, that the Tenants [Page 6] in Villenage must doe all such things as their Lord will command them. But otherwise, it is of the Tenants in Base Fee. And this it see­meth the sayd Booke of olde Tenure; to be by M ^r. Fitzherbert mis-recited, which I am the bolder to affirme, saving the due reverence to his Learning: because one Mr. Thornton of Lincolns Inne, a man very learned in his late Reading there upon the Statute of Forger facts: Speaking of Forging Court Roles, did playnly affirme the Booke of the olde Tenures to be mistaken by Mr. Fitzherbert in this poynt. And besides, for the further credite of Cop­py-holds, we ought to consider the great Au­thority of Mr. Littleton, who amongst the rest of his Tenures, doth make a divided Chapter thereof, differing from his Tene­ment in Villenage, shewing there the Suites and Plaints of Coppy-holders, saying that they haue an Estate of Inheritance according to the Custome: And delivereth his owne opinion, that if a Coppy-holder doing his Services bee compelled by the Lord, he shall haue an Acti­on of Transgression. And sayth, that Danby and Brian 21. Ed. 4. were of the same Minde, according to which is Bracton, and the sayd Presidents of Hen. 3. and the Writ vsed in Tempore, R. 2. besides many other reasons at the Common-Law, &c. prooving that by use and circumstance things may alter and [Page 7] change their originall nature.

As for example, the service of Socage Te­nure was at the beginning, (as Mr. Littleton sayth) to Till the Lords Land, &c. And yet now by consent of the Lord, and by conti­nuance of time are turned into money, and o­ther Services in lieu thereof. Even so may be sayd of Coppy-holds, as long as the Tenants themselves be free, though their Tenure were at beginning never so bound and base: yet by course of time, they may gayne more liberty and freedome, and grow to more estimation and account. An other reason and Rule there is at the Common-Law, to this intent, that some things there were which in the beginning were but voluntary, and yet in the end by continuance became Compulsary, as appeareth 27 Ass. praescript. Bract. That a man that did at the first of his owne meere benevolence re­payre a high way or a Bridge by often using, was afterwards compelled volens nolens. Even so it may be sayd of the Coppy-holders, who at the first held but at the free will of the Lord; yet now by usage and continuall gran­ting time out of minde, they haue gotten an estate after the Custome, that doing their Services, and behaving themselues well, they cannot by Law or Reason be put from them. Thus much for the allowance of Coppy-hol­ders by the Common-Law, now let us consi­der [Page 8] the Reputation of them by the Statutes and Parliament Law.

It appeareth by the Statute of 1. Rich. 3. Statutes and Parliament Lawes. 4. & 19. Hen. 7. 23. That a Coppy-holder that may dispend twenty sixe shillings eight pence by the yeare shall be Empanelled on a Iury, as hee that may dispend twenty shillings by the yeare of Free Lands. And by the Statute of the 2. Ed. 6. cap. 8. the Interest of Coppy-hol­ders are Reserved, being found by Office after the Death of the Kings Tenants, as well as other Estates at the Common-Law, and so doth the Statute of Monasteries. 31. Hen. 8. cap. 13. & 1. Edw. 6. cap. 14. preserue Coppy­holds from dissolving. And it will seeme that Coppy-holders are for the Common-wealth, and therefore to bee maintayned, for that some haue beene erected and established by Parliament, which were not de visible by Coppy before, as appeareth by the Statutes 32 Hen. 8. 2. 2. Ed. 32.

What shall be sayd, a Mannour and a Man­nour as will mayntaine a Coppy-hold. A Man­nour consisteth in two parts (viz.) Demeasnes and Services, and neyther of these two parts hath the name of a Mannour without the o­ther: for as a Messuage or Lands cannot be called Demeasnes without Tenements there­unto belonging, to pay Rents and do Servi­ces, but doth still beare the name of Messuage [Page 9] or Lands: So on the other part, though a Man have Tenements to pay him Rents, and doe him Services, and no Messuage or Lands whereupon to keepe his Court, and to receiue his Rents and Services, this cannot be called a Mannour, but onely a Signiory in grosse. Fitz. na. brev. s. 3. &. 8.

Demeanes are so called, for that the Lord himselfe occupieth and manureth them In son maine Demeasne. But all Lands that have been in the Lords owne hands, bee not called De­meanes, for all Free-holds and Coppy-holds were in his owne hands at the beginning. But Demeanes is that which is now, and time our of Minde have beene in the Lords hands, or occupation of his Bay liffe or Servants: And that also which auncient Coppy-hold may be to some purpose called Demeasnes, because in every Surrender in Manus Domini, and every grant extra manus Domini, the Lord hath a medling with it, and may thereupon keepe his Court, and for the most part cut downe Timber, and such like: And that it is also called Demeasnes, which now is in the Lords hands by any new Escheate or Forfeiture. And also the Lands which are in the hands of the Coppy-holders, is such a Demeasne as with other Services will make a Mannour, [Page 10] though the Lord hath none other demeanes there in his owne hands, nor in the hands of his Bayliffe, or servants Services, as with a Demeasne shal make a Mannour to maintaine: Coppy-holds is where a man holdeth Lands or Tenements freely to suite to the Court of the Lord of the Mannour within the sayd Fee: But yet euery kind of Service will not make a Mannour, for Services are of two kinds, viz. That is by Tenure and by covenant; Service by Tenure is also of two sorts, as if a man at this day giveth his Land in tayle, or lea­seth it for Life or Yeares, saving the Rever­sion: here is a Service of Fealty incident to this Tenure, betweene the Doner or the Lessor, and the Donee or the Lessee. And yet though this be a Service by Tenure, yet is it no such Service as will make a Mannour. For if a man at this Day be seised of twenty Acres of Land, and Enfeffeth nineteene se­verall persons of nineteene of these Acres, sa­ving the twentieth to himselfe, and reserveth of every of his Fcofees suite of the Court and other Services to be done to this Court, to be held on the twentieth Acre, though the Feofments be by Deed indented, or in tayle or of Lives, yet all is voyde, and avayleth not to make a Mannour. But it maketh onely a Tenure in grosse, for a Tenure may by di­vers [Page 11] meanes be created at this Day; but a Mannour by no way, by a Common person. Plow. Com. 2. 693.

A Mannour must be by Prescription, and the Services by Continuance, time out of minde.

But although a man at this Day cannot make a Mannour, yet hee may in some sort enlarge a Mannour by adding more Services unto it. 9. Ass. A man seised of a Mannour did give parcell of the same to hold of him by Suite to his Mill within the same Man­nour, for this Service the Lord may di­strayne, and it is their held to be accounted parcell of the Mannour.

In like manner, a man may by reserving upon a gift, Intayle, or Lease for Life: Ser­vices ingrosse, In the case of Mounson on Aston. increase the Services of an an­cient Mannour. Signior grant le Demeasnes & Services del son Mannour de Norkelsey &c. By the Report of Denham of LincolnsInne extend en auter Towne per le melior opinion des Iustices de Common Banck le grantee, &c. keepe a Court there, and so a Mannour to be created at this Day.

What shall be sayd, a Mannour or a Tenure in his proper nature or Common-Law, and [Page 12] what in respect of Usage or Custome to maintaine Coppy-holders.

It is to bee noted, that although a Man­nour of his proper ought to consist of demeanes and services, yet in some cases that may bee a Manour, and maintaine Coppy-holders, and a Court Baron, by usage and custome, which otherwise by Common Law is no Manour, nor cannot so be called, &c.

A man seized of a Manour, whereunto bee divers free Tenants, divers Coppy-holders, and divers speciall Customary Tenants, and the Customary Tenants, do hold to give a­tendance on the Free holders at the Lords Court. All the Free Tenants dye saving one, the Lord doth bargain and sell the Manour to an Estranger▪ This is now in respect of the Free Tenements, a Tenure, and no Manour, in respect of the Coppy-holders, both a Ma­nour, and Tenure, and in respect of the Custo­mary Tenements, neither Manour, nor Te­nure.

If divers do hold Lands, to dine with the Lord every Sunday in the yeare; this maketh neither good Tenure, nor Manour.

[Page 13] But if they hold to wait on the Lord every Sunday at dinner, and to dine with him; this maketh a good service, but no good Tenure.

If divers doe hold Lands by Coppy of the Mannour of D. and so have done time out of minde, and by the like time there hath beene no Free holders to the said Mannour, Although this be no Mannour in his proper nature, yet by usage it is a good Mannour to maintaine Coppy-holds.

A man seised of a Mannour, which time out of minde hath beene called by the name of the Manour of S. and doth demise the same by the name of the Mannour of S. this is good.

If a man seised of a Mannour, whereto be six Free holders, and six Villaines Regardants: The sixe Free holders dye having Issue sixe daughters, the Villaines enterrary with them, yet the same is a Mannour, and the villaines thereto regardant.

If a man seised of a Mannour, whereto hee hath Leet, and wrecke of the sea by prescrip­tion, all the Tenancyes Escheate, yet the Leete and the wrecke still remaine, and it is a Man­nour to that purpose.

[Page 14] If divers doe hold Lands by prescription to finde the Lords mans meat, and hounds meat, when hee commeth to hunt the Fox in the said Lands; this maketh a good Tenure, but no good Mannour: If divers do hold Lands to doe suit and service at the Lords Court, This is most properly such service as maketh a Mannour: but if it be to doe suit and service at the Lords Couri, when it pleaseth them­selves, this is neither Mannour nor Tenure. If divers doe hold Lands to repaire a High way within a mile compasse, without the bounds of the Lord of the Mannour, this makes a good Tenure, but no Mannour. But to repayre or mend the wayes within the Precinct of the Mannour, is good to enlarge the Mannour.

If divers doe hold Lands to pray for the prosperous Estate of the Lord and his Heires; this maketh a Tenure, but no good Mannour.

If divers doe hold Lands of the Lord to wayte upon him at twenty dayes warning, twenty miles distant from the Mannour, this maketh a good Service, but no good Tenure. But if it be to wayte upon the Lord with­in the sayd Mannour, by certayne space, [Page 15] this maketh both a good Tenure, and a good Mannour.

If divers holde Lands to beate or kill the Lords Tenants that shall doe Trespasse on the Lords Demeasnes, this is neyther good Tenure nor good Mannour. But if it be to beate and kill the Kings enemies, that shall doe so, this maketh both a good Tenure, and a good Mannour.

If Divers hold Lands by Prescription to do Service to the Lord, to his Court of the sayd Mannour, twenty miles distant at a place certaine. This is both a good Tenure and a good Mannour. But if it be to do Service to his Court at another Mannour, this without Prescription, cannot be severance from the first Mannour.

If Divers doe hold to come to the Lords Court, and there to doe nothing, this ma­keth neither good Tenure nor good Mannour. But to come to the Court, though not to be of the Homage; yet to offer Amersements, or make Certificates, or any other Service to the Lord, this maketh a good Tenure and a Mannour.

If any do hold Lands to do Divine Service [Page 16] before the Lord and his Tenants in the Court-house, before the beginning of eve­ry Court, this maketh both a good Tenure and a good Mannour. What shall be sayd, a good Custome to be able to maintaine Coppy­holds.

A Custome to make a Coppy-hold, must be of necessity in the same Mannour, where the sayd Coppy-holds are so granted, viz. That the same Lands are, and time out of minde haue beene onely Demised and De­misable by Coppy of Court Role: for other­wise the Lord cannot grant it by Coppy, be­cause hee cannot beginne a Custome at this Day. But if it have beene by like time gran­ted by Coppy, though sithence it came to the Lords hands; yet if the Lord never Demise the same by Free Deede nor otherwise, but by Coppy, then he may well grant agayne the same by Coppy, for it is neyther the person of the Lord, nor the occupation of the Land, that eyther maketh or marreth the Coppy-hold. But onely the usage and manner of Demising the same, for the prescription of a Coppy-holder consisteth neither in the Land, nor in the Occupier, but onely in the Usage of the Demising.

viz.

• Customes.
• Prescriptions.
• Vsage, and
• Limitation.

THese foure though they be in some con­founded The division of Customes. together, and indeede are of great Affinity; yet there be divers differences in their severall natures betweene them.

Custome is where by continuance of time, a Right is obtayned concerning divers per­sons in common.

Prescription is where by continuance of time one particular person obtayneth Right against an other.

Vsage is by continuance of time the effici­ent cause of them both.

[Page 18] Limitation is where a right may be obtai­ned, by reason of a non claime, by the space of a certaine number of yeares, differing in the Accoumpt of time, from custome and pre­scription.

But what measure of time shall make a Custome; divers have differed in opinion; some judging the same to bee according to the Computation of yeares, from the time of K. Ed. 1. untill the Statute of M. 1. which appointeth the limitation in a writ of right: The accompt of which time unto the said Statute, from the said K. time is 76. yeares, others have thought a hundred years maketh a prescription, because in old time an hundred yeares was accompted a Fee simple.

But the true measure thereof according to Master Littletons Rule, is where a Custome, or Usage, or other things have beene used, so long as mans memory cannot remember the contrary. That is, when such matter is plea­ded, that no man then in life, hath not heard any thing, nor know any proofe to the contrary.

And by this it appeareth that Customes, and prescriptions, resteth onely in the memory [Page 19] of man, & limitation consisteth onely of a cer­taine time, which hath a certain beginning and of certaine ending, and is not directed by mans memory, wherein is ment limitati­on of time, and not limitation of estates.

If Lands have been demised by Coppy by the space of 60. yeares, and yet there be some alive, that remembreth the same occupied by Indenture, this is not a good Coppy-hold.

And if Lands have beene demised by Cop­py but 40 yeares, and there is none alive that can remember the same to bee otherwise de­mised: This is a good Coppy-hold, for the number of yeares makes not the matter, but the memory of man. And it is not 60. 80. or 100 yeares that maketh a Coppyhold or a custome, though it makes a limitation. But such certaine number of yeares makes onely a likely-hood, or presumption of a prescrip­tion; that is, that it commonly happeneth not that any mans memory alive, can remember alone such a number of yeares. But if any chance to be alive, that remembreth the con­trary, then such prescription must give place to such proofe.

Custome hath certaine speciall vertues in [Page 20] it selfe; which for the more estimation there­of, I will shortly shew according to certaine precepts and principals allowed by al Lawes, both by the Law of God, the Law of of Na­ture, and the Law of Nations, and by the private Law of every Countrey: as by the Law of GOD it is said: Si quis videtur con­tentiosus esse nos eiusmode Consuetudinē non ha­bemus, nec ecclesia Dei, which proveth that the Scripture, and the Church of God do atribute some what to good customes, though not to evill: And by the Law of Nature, Consuetudo est altera natura. And by the Law of Na­tions, Consuetudo est optima legum interpres. And by the Lawes of this Realme, Princes at their Coronation are sworne, as well to keepe the custome of this Land, as the Lawes of this Land, which Law doth attribute so much to custome, that sometimes it is ad­mitted to derogate from the Custome Law, for Consuetudo bona de clausausitata et appro­bata, privat Communem Legem.

CUstome although it doth chiefly con­sist of continuance of time and usage, yet it doth further require seven other necessary properties, accident for the main­tenance of a good Custome: Which are these.

FIrst, it must be reasonable, as it appeareth 1 2. Ed. 4. 24.

SEcondly, it must be certaine, as appeareth 2 3. Ed. 3. 13. Ed. 3. 4.

Dum fuit infra aetatem. 3. 14. Ed. 3. 4. 14. H. 4.

THirdly, it must bee according to Com­mon 3 right. 42. Ed. 3. 4.

FOurthly, it must bee on good considerati­on. 4 5. Hen. 7. 9. 42. Ed. 3.

FIftly, it must bee compulsary: 42. Ed. 3. 5. Avow 66.

[Page 22] SIxtly, it must be without prejudice to the King. 3. Hen. 6. Custome Fits. Hen. 2. 22. Ed. 3. Prescription. 40.

SEventhly, it must bee to his profit that claimeth the same. 31. Ed. 3. Prescription 40. et 28.

Usage is the efficient cause, both of Cu­stome and Prescription; for without usage, there can bee neither Custome or Prescrip­tion, for even as the minde is to man, so is usage to Custome. And as you see there bee divers varietyes of mindes in men, so are there many varieties of Customes as you see varieties of Countries, and yet all men perfect, and all Customes perfect: some say that have their mindes affected according to the Constitution of their bodies: And so have Countries their Customes, according to the Con­stitution of the place; as in Kent, and in North Wales, because those Countries have beene most subject to forraigne invasions, that euery man there, may bee of power for resistance. The inheritance for the most part descend in gavell kind (viz.) to every brother alike, and in other middle parts of the Realme for whom government. Least equalty is best.

[Page 23] The inheritance wholy descendeth to the eldest brother: And in Borough English which is in divers Boroughs, because their substance commonly is Lands, and in such Townes, Lands may bee the better preserved then goods, therefore their youngest sonnes shal onely have their Lands, and as it is in those great parts of the Realme, so it is in divers private parts and Mannours, and divers private and special customes. As some Mannours have Coppy-hold of inheritance, some for life, or liues: in some Manour the Copy-holders sur­ender in one manner, and in some in an other sort: In some the Fine is Ar­bitrable: And in some Certaine, et sic in similibus.

The usage of every Custome doth not rest to be yearely, daily, or continually used, but as the equality, and the nature of the thing whereof the Custome is, doth require, as Cu­stome Harryots when they fall, of Shacts and Foldage, in their season of Common Esto­vers in their time, and for Coppy-holders, whose Fines are certaine, yet at one time to pay a greater Fine then at an other, and all these are good Customes, though they cannot bee used at all times, for Cu­stomes may bee sometimes used, sometimes [Page 24] not used, sometimes altered, and sometimes not, and therefore in Custome you may see there is (user, non user) Abuser and in­teruser.

User is, when according to time and occasi­on a Custome is used.

Non user is when for want of time and occa­sionor, through negligence, or forgetfulnesse a Custome is not used.

Abuser is that, which user doth nourish, a Custome and non abuser tolerate a Cu­stome, so doth abuser destroy a Custome, and yet in some cases, a Custome may bee some­times used in one sort, and sometimes in an other. And yet a good Custome, if there bee good considerations of the exchanging thereof all times, and this I call enter­user.

If there be a Coppy-hold, of an Ancient demeasne, and this Land is forfeited to the Lord by waste, and thereupon a seisure awar­ded thereof, and yet the Lord doth suffer the Tennant still to occupy it, by the space of 20. yeares, without receiving any rent for the same, and after grants the said Land [Page 25] to the Tennant by Coppy. This grant is good and a good User of the Coppy hold. But if after the said seasure awarded, an Estranger had entred and Disseised him of his Land, and made a Feofment in Fee thereof; And af­ter the Lord re-entreth, and grants the same againe by Coppy unto the first Tenant, this grant is not good, by reason of the User of this Land.

If the Lord have used at the admission of his Coppy-hold Tenants, sometime to take for a Fine two-pence, or sometimes fourepence for an Acre, somtimes twelve pence an Acre, this User is so uncertaine, that it maketh the Fine arbitrable at the Lords will.

If the Lord of a Mannour have used time out of minde, to admit his Coppy-hold Tenants without Fine, this usage shall binde the Lord, as well as a Fine certaine.

If the Lord have used to have certaine work­dayes of his Tenants, and that hath not been used by the space of twenty yeares last past; yet that Non-user is no discharge to the Te­nants, so that there be any in life that can re­member the same.

If the Tenants have used when they sow their Lands, to pay the Lord Rent-corne, and when it lyeth in Pasture, to pay their Rents in Money, this is a good Inter-user.

[Page 43] If the Tenants have used to pay to their Lord every fourth yeare a double Rent, and every sixt yeare an halfe Rent, this is a good Inter-user.

If the Tenants have used to have Common of Pasture in their Lords Woods, for their Horse-Cattle, and they put in their Neate-Cattle, and destroy the Woods, this is an abuser. But yet it is but Fineable, and no For­feiture of the Common, which they might have rightfully used: No more then if they have Common for a certaine number of Beasts in the Lords Soyle; and they will ex­ceed the number; this abuse by their Sur­charging, is onely fineable, and no For­feiture.

If a man have a Market to be used one Day in a Weeke, the Non-user thereof is not for­feiture. And if a man have a Market to be u­sed on the Fryday, and hee keepeth the same Fryday and Munday, the Mis-user of the Munday is no forfeiture of the Fryday.

If a Man have a faire to be used two day and he keepes it three dayes, this abuser is a Forfeiture.

If a man have a Faire for one Day, and hee [Page 27] will keepe it two dayes, and that is presen­ted in the Exchequer: If the party being cal­led by Processe, do clayme both dayes by Patent, upon sight whereof it appeares he ought to have but one day by his Patent, and the other by Prescription, though the Pre­scription be found against him, and that Day lost, yet he shall enjoy the other Day.

If a Man prescribe to have a Faire yearely upon Bartholmew day, and if the same doc fall out on the Sunday, then to keepe the same the next Day following, this is a good Prescription.

If the King doe grant to the Citizens of Norwich the Franchises and Liberties that London hath, and the Franchises and Liber­ties that Southampton hath: If the Citizens of Norwich doe abuse one of these Liberties that London hath; this is a forfeiture of all those Liberties that London hath, and of no other. But if the King doth Incorporate a Towne, and giue them by the same Pattent Speciall Franchises and Liberties, the abuser of the one of these, is a forfeiture of them all.

EVery good Custome is grounded upon good Reason, and that shal bee sayd in Reason a good Custome, that in reason is a good Law; for Law and Custome be of that affinity, as both doth allow like reason, and both doth forbid like inconveniences. And the finall effect of both to Discusse and to dis­cerne every mans true right, and to give to every man that which is his owne. For al­though Custome in some cases differ from Law, and doth admit execution of some Acts without some ceremonies and circum­stances as be required by the Law: yet the end and effect of Custome is to maintayne the like reason that Law doth, and to avoyde the like inconveniences.

And therefore if a Lord will Prescribe to [Page 29] have such a Custome within his Mannour, that if the Beasts of any of his Tenants do him any Transgresse upon any of his Demeasnes, and there be taken damagefezant, that then hee may detayne them untill the owner shall sa­tisfie him for his harmes, as himselfe shall re­quire. This is no reasonable Custome that he should be his owne Judge. But to Prescribe, that if any of the Coppy-holders Beasts trans­gresse, &c. That the same be presented at his Court, that there should be a forfeiture of his Coppy-hold, this may be called a reasona­ble Custome.

If Tenants of a Mannour will Prescribe to hold without paying any Rents or Services for their Coppy-holds, this is no good Cu­stome. But Prescribe to hold by Fealty for all manner of Services, is good and reason­able

If the Lord will Prescribe never to hold a Court, but when it pleaseth himselfe, this is not good. But to Prescribe never to hold a Court for the Speciall good of any one Tenant, except the same Tenant will pay him a fine for the same, is good and al­lowable.

THere is nothing more required in all Lawes and Customes, then certainty; for incertainty in all cases maketh confusion, and therefore Law and Custome doth also agree in this poynt, that without some kinde of cer­tainty, neyther Law nor Custome can be good: for in divers cases, where one thing may be taken to divers intents, and the circumstances of the case such as to which intent the thing was done, cannot be certainly judged, there the same thing so doubtfully done, shall to all purposes be judged voyde. And incer­tainty of Customes and customary causes, grows chiefly three manner of wayes. That is to say, sometimes of incertainty of the Per­sons: Sometime the incertainty of the things, and sometimes the incertainty of the cause: and in some of these cases, though there [Page 31] be at the first a Semblance of incertainety; yet by Circumstances and Contingents, the incertainties may be turned into Certainties. As if the Lord of the Mannour will pre­scribe, that whensoever any of his Coppy-holders dye without Heires, that one other of the Coppy-holders of the same Mannour shall Till the Land for the yeare following; and therefore this is no good Custome, because the intent neyther is, nor can be certaine, which of the Tenants shall performe this Service.

But if the Custome be, that if a Coppy-hol­der dye without Heire, that then the eldest Tenant of that name, of the sayd Mannour, shall have this Land; this is a good Custome, and contayneth in it selfe sufficient cer­tainty.

If a Coppy-holder doe Surrender two Acres of Land into the Lords hand, the one to the use of I. S. and the other to the use of I. N. and doth not name in certainty who shal have the one Acre, and who shall have the other, the limitation of this use is voyd, for this incertainty.

If a Coppy-hold be Surrendred to the use of I. S. and his Heires, untill hee shall [Page 32] marry A. G. and after the sayd marriage, then to the use of them two in taile speciall, if after they doe marry, then is the Surren­der to them in taile, and till then, to him in Fee.

If the Lord will prescribe to have of his Coppy-holders in the time of peace two­pence an Acre of Rent, and in the time of Warre foure pence an Acre of Rent, this is good Prescription, because there is a good consideration of the cause of this incertaine­ty: But to pay unto the Lord two-pence an Acre Rent when hee will, and foure­pence an Acre Rent when hee will, this is no good Prescription, because there is ney­ther good reason nor consideration heereof, nor can it ever be reduced into any cer­tainety.

CUstomes and Prescriptions, must be ac­cording 42. Henry 4. Avowry 66 14. Hen. 4. Behon. to Common right, that is to pre­scribe, that is to have such things as is their right, and reasonto have, and not by Custome of Prescription to claim things by way of ex­tortion, or thereby to exact Fines of other things of his Tenant without good cause, or consideration.

If the Lord will prescribe to have of every of his Coppy-holders, for every Court that shall bee kept upon the Mannour a certaine sum of money; this is no prescription accor­ding to common right; because he ought for Justice sake to doe it gratis.

And so it is if the Shriefe will prescribe [Page 34] to have a certaine Fee, for keeping his Turne, this is not a good prescription.

But if the Lord will prescribe to have a cer­taine Fee of his Tennants for any extraordina­ry Court purchased, onely for the benefit of one Tennant, as for one Tennant to take his Coppy-hold, or such like, this is a good pre­scription according to the common right.

If the Lord will have of any of his Tenants [...]om. Little. pla [...] 21. 2 et Yaxley 5. H. 7 19. B2. R. 3. 16 13. Hen. 7. 16. D. St. 47. 2. Ed. 4. 17. that shall commit a pound Breach, a hundred shillings for a Fine, this is good Prescription, but to challenge of every stranger that shall commit a Pound Breach a hundred shillings, this is no good prescription.

If the Lord will Prescribe that every of his Coppyholders within his Mannour that shall marry his Daughter without licence shall pay a Fine to the Lord; this is no good Prescripti­on according to common right.

COnsideration is a great effect in all Lawes and Customes, and hath as great an an operation, as any one thing belonging to the Law, for in most causes it onely guid­eth and directeth Rights, properties, uses, and estates, sometimes according to the limitation, and sometimes contrary to the limitation, as well in cases of Custome, as in cases of common Law; for consideration is the be­ginning of all Custome, the ground of all uses, the reason of all rights, and the cause of all duties: For without Consideration no Custome can have continuance; nothing is wrought by any conveyance, no interest transferred, no right remooved, no pro­pertie changed, nor duty accrewed. As if the Lord of a Mannour will prescribe, that who­soever passeth the Kings high way, which [Page 36] lyeth through his Mannour, shall pay to the Lord of the Mannour twelve-pence for his passage. This prescription is not upon good Consideration: But if hee prescribe to have a penny of every one that passeth over such a Bridge, which the Lord of the Mannour doth use to repaire, this is good prescription upon good consideration. If the Lord will prescribe to have a Fine at the Marriage of his Copy-hold Tenants, in which the Custome doth not admit the husband to bee Tenant by curtesie, nor the Wife to be Te­nant in Dowre, or have her Widdowes e­state; the prescription of such a Fine is not good: But in such Mannour where the Cu­stome doth admit such particular estates, there a prescription for a Fine at the Marriage of his Coppy-holders, is upon good consi­deration.

If a Coppy-hold surrender his Land to the use of I. S. so long as I S. shall serve him in such an Office; if I S. refuse to serve, his e­state doth cease.

If a Coppy-holder doth surrender his Land to the use of a stranger, in considera­tion that the same stranger shall marry his daughter before such a day▪ if the marriage [Page 37] succeeds not, the stranger takes nothing by the Surrenderer: But if the Surrender bee in consideration, that the stranger shall pay such summe of money, at such a day, though the money bee not payed, yet the Surrenderer standeth good.

If the Coppy-holder in consideration of twentie pounds to bee payd by I. S. doth make a Surrender of his Lands to N. R. this Surrender is to the use of I. S. because of the Consideration, expressed in the Coppy, and not to the use of N. R. But if in the Coppy the use be expressed to N. R. and no conside­ration mentioned, the use expressed shall stand against any consideration to be averred.

CUstome or Law must be Compulsary; and not at the liberty of a man, whether he will performe it or not; for then it were of no force; for all Customes and Lawes have their effect in two poynts. That is, in bid­ding that which is just, and in forbidding the contrary: So that Lawes and Customes are refrainers of liberties, and do demaund ex­ecution of Justice; not that every man should have, or doe what they would; but that which by Justice they ought, whereunto by duty of Law and Custome, hee is compel­lable; for otherwise it were Voluntary in him, which were to the infringing of the Law and good order: As the Poets,

[Page 39] If the Lord will prescribe that every of his Tenants shall give him ten shillings a moneth, to beare charges in time of Warre; this is no good Prescription. But to prescribe that they ought to pay ten shillings, a moneth, &c. this is good. For payment is compulsary, but gift is Voluntary.

If a Coppy-holder doe Surrender his Land to the use of S. so that the sayd I. S. do pay him twenty pounds at such a day. If I. S. please to pay the same, this is an abso­lute Surrender and not conditionall, because the compulsary.

But many Customes there are which at the beginning were Voluntary, and now by continuance are growne Compulsary. Accor­ding to the Civill Law. Quae initio fuerunt voluntatis, ex post fact fuerint necessitatis; which also agreeth with the Common-Law in many cases, as I have partly touched before.

THE King hath that Prerogative over his Subjects, that hee is not tyed to time as a common person is, for though a com­mon person may loose his right by non claime within a certaine time, the Kings right is still to be preserued, for Nullum tempus occurrit Regi. Yet in speciall cases where the King is not Intituled agaynst such prescription by matter of Record, there such Customes shall bind the King.

As for example, if a Coppy-holder pre­scribeth that he holdeth of the King by Cop­py, this is good, and by fine certaine, and not arbitrable: to have Waife and Strayes, and Wrecke (but not Cattalla feloni fugito­rum,) and vtlagatorum without Charters.

The Kings Advowson shall never fall into lapse for not presenting within sixe moneths.

TO those former parts whereupon I have declared a good Custome to consist, may be added to eyther parts, viz. That he which will claime by Custome, must have a suffi­cient and perdurable estate to prescribe; and also in his owne right, or in some others, a sufficient ability or capacity to prescribe.

Touching the first, it is to be understood that hee which will prescribe, must have a certaine and indefeazable estate, and not o­therwise. As if a Tenant at Will, or at Suf­ferance, after hee hath occupied the Land for ten yeares, will prescribe to have the same for ten yeares, this is not good. But a Tenant at Will after the Custome, although he came in at the first by the Lords will, yet doing and paying that which hee ought, hee may pre­scribe to hold the Land whether the Lord will or no: And although a Coppy-holder may prescribe in this forme against his Lord, [Page 42] yet against an Estranger, for a common or such like kind of profit, hee cannot prescribe, b [...]t in the right of the Lord: neyther yet can a Tenant for life, or for yeares, prescribe in the right of their owne Estate onely, because it lacketh continuance to make a custome or prescription (except) in some cases of necessi­ty, the Lord of a Mannour, or of a Patronage for yeares or life, may grant a Coppy in per­petuity or presentation for a longer time then the estate of the Grantor doth continue, and this is admitted, causa necessitatis, and not Iure prescriptionis.

To the second, Capacity must be in him­selfe that doth prescribe; which Ability and Capacity must consist in the person of him that doth prescribe: For as prescription may be sometimes in respect of estate, Mannour, Lands, or Offices; so may prescription some­times be in respect of person, which person is not to be understood of a private person; but of a body Politicke, not that many persons may prescribe, except the same be incorpo­rate; and to prescribe in respect of their in­corporate Capacity, and not in respect of their private Capacity. As if the Inhabi­tants of Dale will prescribe to have Common in the Soyle of S. this is no good prescription; [Page 43] for that they be not Incorporate, they must prescribe that H. Lord of the Mannour of Dale, for him and his Tenans within the said Mannour, have used to have Common within the sai Soyle: so is it for Coppy­holds, for they must prescribe in the name of their Lord, in such a case.

If a man prescribe that hee and his Ance­stors have had such an Annuity, this is not good: But if a Bishop doe prescribe that hee and his predecessors have had such an annuity this is good.

The pleading of Prescription must bee u­sed in forme of Law, as other matters that be pleadable, and forme must be used (like­wise) in pleading of Coppy-holds, and other Customary Titles for avoyding of confusion and discord, as well as in other cases of the Common Law, the forme of pleading pre­scription doth differ as the quality of the thing, whereof prescription is made, and som­times doth differ, as the persons doe differ which make the prescription: As if a Coppy­holder makes his Title to his Land by prescrip­tion; he must plead that the same Land is, and hath bene time out of minde Demised and De­miseable, by the Coppy of Court Role; ac­cording to the custome of the Mannour wher­of it is holden.

[Page 44] If two men as yonger brethren will make their Title to Land in Gavell-kinde, they must say, that the same Land is of the Tenure and Nature of Gavell-kinde, which time out of minde, have bin parted and partable between Heires males.

So if the yongest Sonne maketh his Title to Land in Borough English, he must plead, that time out of minde, the Custome of the said Mannour hath bin, that when, or at what time soever, a Coppy holder dyeth Seised of any Coppy-hold Lands in the same Mannour, ha­ving divers Sonnes, that the same hath used Iure Hereditario, to descend unto the young­est Sonne, &c.

And as the forme doth differ in the things wherof the Prescription is commonly made; so doth it differ as the Persons do differ, which prescribe as a private person shall prescribe in him and his Ancestors, whose estate he hath. An Incorporate person in him and his Prede­cessors. A Lord of a Mannour in him and them which were Lord of that Mannour.

A Sheriffe, in him and those which have beene Sheriffes of the same County.

A Steward of a Mannour in him and those which have beene Stewards there.

[Page 45] A Free holder in him and them which have beene Stewards to the said Lord.

A Coppy-holder shall Prescribe against an Estranger, that the Lord of the Mannour, for him and his Tennants at will, have used the like, &c.

EVery Mauour hath a Court Baron inci­dent to it, of common right, and com­mon necessity, and this Court Baron con­sisteth of foure speciall parts viz. The Lord, the Steward, the Tennants, and the Bayliffe.

A Court Baron is defined to bee an assem­blie of these partes together, within the [Page 46] said Mannour, to take Councell, care, and en­quire of causes concerning the same Man­nour: to see justice duely executed, the acts and ordinances there done to bee recorded in the Roles of the same Court, which Roles are the evidence of all ordinances du­tyes, customes, and conveyances, the Lord and Tennants of the said Mannour, and are to bee entred by the Steward or an Officer indifferent betweene the Lord and his Ten­nants, and the same Roles to remaine with the Lord, thereby to know his Ten­nants, his Rents, and his Fines, his Customes, and his services.

And the particular grant of every Coppy­hold, to bee coppyed out of the Roles, the coppyes thereof to bee delivered to every particular Tennant, neither can they make any other Title to their said Ten­nements, but by their said Coppy.

If the Lord of the Mannour having Coppy-hold Lands Surrendred into his hands, will in the presence of his Ten­nants out of the Court, grant the same to an other, and the Steward en­treth the same into the Court Booke, and maketh thereof a Coppy to the [Page 47] grantee, and the Lord dye before the next Court, this is no good Coppy to hold the Land.

But if the same Surrender, and grant bee presented at the next Court, in the life of the Lord, and the grantee admitted Tenant, and a Coppy made to him, this is good Coppy.

If the Lord of a Mannour having ancient Coppy-hold in his hands, will by a deed of Feofment, or by a Fine grant this Land to one to hold at the will of the Lord, according to the Custome, yet this cannot make a good Coppy-hold.

If the Lord in open Court doth grant a Coppy-hold Land, and the Steward maketh no entry thereof in the Court Roles, this is not good, though it bee never so publicke done, nor no Collaterall proofe can make it good.

But if the Tenant have no Coppy made unto him out of the Role, or if hee loose his Coppy, yet the Roles is still a sufficient tytle for his Coppy-hold, if the Roles bee al­so lost, yet it seemeth that by proofe [Page 48] hee can make this good.

If Ordinances or by Lawes bee new­ly made, and Recorded in the Roles of the Court, if the Court Roles bee lost, the by Lawes be set at liberty, yet if there be any an­cient customes or priviledges by Prescriptions not entred in the Roles, &c. though the Roles be lost, yet they remaine good.

A Lord to grant or allow a Coppy-hold, must be such a one, as by Littletons defi­nition is seised of a Mannour, so that he must be in possession at the time of the grant, for although hee have good right and title, yet if he be not in possession of the Mannour, it will not serve: and on the other side, if hee bee in possession of the Mannour, though hee have [Page 49] neither right nor title thereunto, yet in ma­ny cases the grant and allowance of such a Coppy, is good as Donus de facto, sed non de­iure. And in some cases a Coppy-hold shall be adjudged good, according to the largenesse of the state of the Lord that granted the same, and in some cases shall continue good for a longer time then the estate of granter was at the time of the grant. But that is to be understood in case of necessity, otherwise it will not be allowed.

If a man seised of a Mannour, in which are divers Coppy-holds demisable for lives, is deseased, and the desessor granteth a Cop­py-hold, being voide, for three lives; this is not good to binde the Des­seased, otherwise it is of a Coppy­hold of Inheritance, because it is neces­sary to admit the next heire.

If a man have a Title to enter into a Man­nour for a condition broken, and he granteth a Coppy-hold of the same Manour (being void) at a Court Baron, this is a good grant, for the keeping of the Court amounteth to an entre in the mannour.

A man seised of a Mannour for life, [Page 50] whereunto bee Coppy-hold Inheritance belonging, and one Coppy-holder Sur­rendereth to the use of a stranger in Fee, the Lord may grant this in Fee, and this Grant shall binde him in the reversion, but the Coppy-holds being demisable for lives, it is otherwise, for then hee cannot upon Sur­render grant the same, longer then the life of the Grantor. But if the Lord of a Mannour for yeares, or during the minority of a Ward, of which the Coppy-holds are demisable for three lives successively, and not servingly, in this case if the Coppyholder dyeth, the Lord may grant the same, being voide for three lives, at his pleasure, and this shall binde him in the Reversion, or the heire at his full age.

ALthough there seemeth some shew of difference betweene Coppy-holders, and Customary Tenants, yet differ not they so much in nature, as in name, for although some bee called Coppy-holders, some Customary, some Tenants by the Virg, some base Tenants, some bound Tenants, and some by one name, and some by another; yet doe they all agree in substance and kinde of Tenure, though differ in some ceremo­nies and kinde of serving, and therefore the name is not the matter, but the Te­nure.

Hee shall bee said a person sufficient to Infant Itin Covert Lunatte Nemy 13. Eliz. Dier 301 be a Coppy-holder, who is of himselfe able, or by an other to doe the service of a Cop­py-holder; as an infant may be a Coppy­holder for his Gardein, and prochein [Page 52] any may doe the service; so may a feme Covert, and her husband shall doe the ser­vice: But a lunaticke, or Ideot cannot bee a Coppy-holder, because they cannot doe the service themselves, nor depute any other: and the Lord shall retaine the Coppy-hold of an Ideot, and not the Queene.

A Bond-man or aliene borne may bee a Coppy-holder, and the King or Lord cannot seise the same.

But a man cannot bee a Coppy-holder unto a Mannour, whereof hee himselfe is Lord, although hee bee but Dominus pro termino annorum, or in Iureuxoris.

IT may bee said of Coppy-hold Lands, as is afore said of the Tenants; they may dif­fer in name, but not in nature: As some cal­led Coppy-hold Lands, some customary Lands, some bound Lands, some base Lands, some ancient Lands, some demeasne Lands, some encrease Lands, some Mollendes, some waste Lands, some warke Lands, some loose Lands, and some Vierge Lands.

And although Coppy-hold Lands be spe­cially so called, because it is holden by Cop­dy of Court Role; Customary Lands be­cause of some speciall Custome; Bond Lands because of the bond, Tenure, Base Lands be­cause of Base Tenure, ancient Lands be­cause [Page 54] of the old demise, demeasne Lands because of its new demise, and late be­ing the Lords owne Mannour; Increased Lands, because it is late purchased, and laid to the Mannour: Mollands, because it is hol­den by easie rents, or no rents at all, waste Land, because it hath beene lately approved out of the waste of the Mannour, Worke Lands, such as hath common appendant be­longing to it, Lose Land, because it is hol­den by uncertainty, Rents and Verge Land, because it is holden by the Veirge: Yet al the said lands are holden in one general kinde, that is by Custome and Continuance of Time, and their diversity of their names doth not alter the Nature of their Tenure.

It seemeth by Littleton, that onely Lands and Tenements are demisable by Coppy: And therefore if the Lord of a Mannour will grant the rent charge, or the office of Stewardship, or Baylewicke of his Mannour by Coppy, or a common in grosse by Coppy, these bee not good grants, because they tye not in Tenure, and also because the Cu­stome doth not extend unto them, but common appendent to a Tennant of Coppy­hold Lands may bee demised with the Te­nant by Coppy.

Demeane Lands which within time of me­mory [Page 55] have beene occupied by the L [...]rd himselfe, or his Farmour, is not good to [...]e granted by Coppy, because of the newne [...] of the grant, yet by continuance of time it may be good Coppy-hold, when the me­mory of the contrary is worne away, as hath beene said before. Neither can the Lord that granted such a Coppy, put out his Cop­py-holder during his life that granted the same, because hee should not bee received to disable his owne grant. If a Coppy-hol­der doe Surrender his coppy-hold into the Lords hands, meerely to the use of the Lord, I doubt whether the Lord may grant this againe by Coppy, as hee may where it comes unto him by forfeiture, or by escheat, because it is made percell in demeasne by his owne acceptance and not by the Act of the Law, quaere.

Note that neither the Statute of West. 2. de bonis Conditionalibus, nor any other Sta­tute, that hath not Coppy holds named in it, doth extend to Coppy-hold Lands, as the Statute Staple. 27. Ed. 3. nor the Statute of Heresie 2. Hen. 5. nor the Statute of Will 32. Henry the eight, nor the Statute of Limitation, made the same yeare as is [Page 56] how taken contra to Master Brooke in nov. [...]se 426.

But though a gift in Taile of a Coppy­holder, be not conteined in the same Statute of William the Second: Yet I thinke in such Mannour, were time out of minde they have used to make gifts in Taile of Coppy­hold Lands, there such gifts bee good at this day, and they may make protestation in the nature of Avy writ, as apeareth by Little­ton.

AS in the conveing of Free Lands there is required some ceremony and publick notice, so is there in the assuring of Cop­py-holds necessary some publicke Fact to bee done therein, which is the Surren­der. [Page 57] In which ceremonie there is contained two effects, the one what is surrenered and to whose use, the other that it be done with the Lords good will, and for that cause it is surrendered into his hands. And although of the meanes a Mannour of this surrender there bee divers kinds, as within some Man­nors to Surrender by the hand of another Coppy-holder, and in some other to sur­render into the Stewards hands, in some to the Bayliffes hands, and some by giving a yard to the Steward, in some by giving his hand, or his glove, which bee outward signes of his intent: Yet in all these kindes the words of Surrender must not bee divers, but one or to one effect, and must bee either words of Surrender expressed, or words of Sur­render implyed, and therefore if a Coppy­holder will bargaine and sell his Land to I. S. and this is found by the Homage, and I. S. praieth to bee admittted Tenant, yet the heire of the Coppy-holder shall avoide the Admission, because of the insufficency of the Surrender, taking by the words of Bargaine and Sale, and not by words of Surrender, opi. Sur. Dier 8. Eliz. Lou ill dit. & relees ne vault avrer Come un­surrender.

If a Coppy-holder commeth into the [Page 58] Court, and desireth his Lord to admit his sonne to bee Tenant in his fathers place, this seemeth a good Surrender to the use of the sonne.

If a Coppy-holder will in the presence of other Coppy-holders of the same Man­nour, say that hee is content to Surrender his Coppy-hold Lands to the use of I. S. this is no good Surrender: But if hee saith hee doth surrender into the hands of the Lord to the use of I. S. if the Lord will thereunto agree, this is a good Surrender, whether the Lord will or not.

If the Tenant will Resigne his In­terest in the Court, into the Lords hands, therewithall for the Lord to doe his will, this is a good Surrender if it be ac­cepted.

If a Coppy-holder will say he will bee no longer the Lords Tenant, though these words bee recorded, yet this is no good Surrender.

If a Coppy-holper for life take a new [Page 59] Estate for life by Coppy, this is a surrender of his first estate.

But if a Coppy-holder for life will take a Lease of the same by Indenture for life, this is not a good Surrender of the Coppy-hold: Quaere.

If a Coppy-holder commeth to the Lord, and telleth him, that for the preferment of his Sonne in marriage, with such a mans daughter; his will is to give his Land pre­sently to his Sonne, and desireth the Lord that he would be contented therewith, this is no good Surrender.

But if he had said these words in the Lords Court, and the same recorded, or found by Homage as a Surrender, and so presented, then this had beene a good Surrender with­out any other words of Surrender.

IF a Coppy-hold descend unto a married woman, and her Husband take the profits By S [...]rgeant Wal [...]ly 12. Eliz. 291 292. thereof, and suffer a Court day to passe with­out admittance of his Wife, and then the Wife dyes, the Husband shall not be Tenant by the curtesie, but in the 12. Eliz. Dyer 291. 292. it seemeth that the contrary should be the better opinion.

An entry before admittance is no forfei­ture, 30. Hen. 8, Dicr 42. 16. there without an especiall custome pleaded, but the heire may make a forfeiture for non payment of the Rent, as the Custome was there pleaded before admittance.

If a Coppy-hold be Surrendred unto the use of a stranger upon condition, and the [Page 61] condition be broken, the party that made the Surrender may reenter and bee a Coppy­holder to all Intents, without any new ad­mission, for he did depart with the Land but upon a condition.

Also if a Surrender of a Coppy-hold bee made to the use of a stranger for Life, and the Lord makes a grant thereof, to the same stranger in Fee, this shall not binde the heire of the Tenant, but that hee may enter after the death of the grantee, for hee tooke the Land by the Surrender, and not by the grant made by the Lord: for the Lord is but an instrument for the conveyance of the Land, for if I make a Surrender unto the Lord ea Intentione, that hee shall grant over unto such a man, if the Lord will not grant the same, I may then reenter, but the stran­ger hath no meanes to enforce the Lord to grant the same over unto him, but hee may maintaine Trespas against the the Lord, if hee doth suffer mee to reenter, and this is the opinion at this day.

The Lord of a Mannour hath that prero­gative in his Coppy-holders, that no stranger can bee his Tenant thereof, without his spe­ciall assent, and admission, and for that [Page 62] cause a Coppy-holder shall not bee lyable to any executions of Statutes, or recogni­zances, neither shall be Cassets, in debt or For­midon, neither are conteyned in any the Sta­tutes afore named, for if it were, then should the Lord be forced to have a Coppy-holder whether hee would or no, which is against the nature of a Coppyhold.

And therefore a stranger can never enter, though a Surrender made to his use bee accepted, except hee bee admitted Tenant, but otherwise of the heire, for hee may eater and take the profits be­fore the Admittance after the death of his father.

Admittance may be three manner of waies, an expresse admission, by the words entred in­to the Court Role, viz. unde admissus est Tenens, or by acceptance, or implication, as if the Lordwill accept the rent by the hands of a stranger, third by admitting one Copy­holder, in some cases the Lord shall ad­mit another by implication to some pur­poses, and to these three may bee added a fourth, which is by the entry of the Sonne, after the death of his Father, and the [Page 63] Tenant in Dower after the death of her Husband, which is Lawfull without ad­mission, till the next Court, and then they must pray to bee admitted, &c.

If a Coppy-holder doe surrender his Land to the use of I. S. and the Lord doth grant the same to I. S. accordingly, and thereupon hee enters, yet hee is no good Coppy-holder, till hee bee admitted: But if I. S. appeareth at the Lords Court, and passeth on the Lords homage, or the Lord accepts his Rent or his Fine for the same Coppy-hold, now is hee become a good Coppy-holder without any further Ad­mission.

If a Coppy-holder surrendreth his Land to the use of I. S. for life, the Remainder to the use of R. N. for life, and the Lord granteth the same accordingly, and admitteth I. S. it seemeth this is a good admission to R. N. that is in the Remainder.

A Coppy-holder in Fee dyeth seised, his In Trespas by Hagger against Felston. heire may make a surrender to the use of a stranger, without admission: quaere. But if a Coppy-holder surrender to the use of I. S. this I. S. cannot surrender to the use of a [Page 64] stranger, without being first admitted him selfe.

If a Coppy-holder Surrender all use of the joyntly, and they are admitted, if the one of them dyeth, the surviver needeth not t [...] bee admitted againe for the moytie: But if a Coppy-holder having Issue two daugh­ters, and they are admitted, and then the one of them dieth, the other must needs be admitted for the other moyty, for hee takes the same by discent.

L'heire dun Coppy-holder part prender profits avera accion de travers et Ferra, Post fratris sufficicum deveant admittance 12. Eliz. 291. et part faire lesses per ans. Denby et Bullock.

THE Tenant by Coppy standeth bound by his Tenure to the Lord, that if hee doth any thing to the Lords dis-inheritance; or in some cases if he doth transgresse the duty of a good Tenant, he shall forfeit his Coppy-hold: but because all offences are not equall, so likewise there are degrees of pun­nishment; for there is a difference betweene offences done wittingly and willingly, and faults ignorantly and unwillingly committed.

And therfore some offences are forfeitures ipso facto, some are onely forfeitures when they are presented and not before, and some are onely fineable.

Forfeitures ipso facto are offences that lye Mis-fesans. in mis-fesans; & be apparent forfeitures, when [Page 66] they are presented only, are offences that lye Non-fesans. in non fesans, and is not apparent nor af­firmatively to bee proved without present­ment.

Offences Finable, are offences of con­tempt, Fineable. and not of dis-inheritance.

As if a Coppy-holder will in the pre­sence, and sitting of the Court Baron, say [...] extort and exact un-due [...] his Tenants, or such [...], this is onely Fine­able.

But [...] and there say, being called forth to bee sworne of his ho­mage, that hee is none of the Lords Te­nant, this makes a Forfeyture of his Cop­py-hold.

But if hee will there say, that hee will shortly demise away that hee will bee no longer of any of the Lords Coppy-holders, this is neither cause of Forfeyture, not Fine.

If a Coppy-holder Sendente curia doe strike an other Coppy-holder, or any other [Page 67] stranger, this is onely Finable, and maketh no Forfeyture.

If the Steward sheweth forth a Court Role to proove that I. S. is a Coppy-holder and this not withstanding hee will in the Court say, that hee is a Free holder and sheweth forth a Free deed and claime there­by, and teareth in peeces the Court Role, and publisheth the free deed, this a cause of Fine and Forfeyture.

But if the said Tenant will there upon some Colourable doubt, and question which may arise, whether hee bee a Free holder or a Coppy-holder say to the Steward, because hee knowes not whether the rent that hee should pay, bee Free rent, or Coppy-hold rent, he will pay it with protestation that the rent may be recorded as it shall fall out, and with like protestation offer and do his service, though in truth hee bee a Coppy-holder, yet this deserveth neither Fine or Forfey­ture.

If a Coppy-holder cannot pay his rent, and will not doe his service, this offence is on the Negative, and maketh no forfeyture till it be presented.

[Page 68] Tenant per Coppie ne poet facere wast ne couper bois per vender mes pro reperacontantum 9 Hen 4. 12. 43. Ed. 3. 32.. 80.

But if a Coppy-holder doth Alien his Land by Free deed, or will commit waste, or demise his Coppy-hold contrary to the Custome, or will sue a replevin against the Lord, for a Distr. lawfully taken for his Rent or ser­vice due, or disclaime in the Land being summoned to the Lords Court, or will there claime it as his free hold, or will in any other Court untitle any other Lord unto it, or bee attainted of treason or felonie, or con­tinue out-lawd, or excommunicate, during the Lords Court, or refuseth to goe with his Lord or other commissionours for that purpose in the service of the prince, to suppres Rebells, riots, or unlawfull assemblies. All these offences be apparent mis-fesance and forfeiture ipso facto without any pre­sentment.

But if a Coppy-holder being of the grand Inquest at the Assizes or Sessions, shall indit his Lord of any manner of offence committed against the Prince or Lawes of this Realme, or shall upon proces Compul­sary give evidence against his Lord, which is [Page 69] in any cause betweene his Lord and an other Common person, or betweene the prince and his Lord without compulsary proces, or shall make any bodily arest of his Lord by the commandment of the Shriefe or other lawfull authority, or shall bring any Action or Suit against his Lord in any of the Queens Courts (except a Replevin case aforesaid) All these last recited, be cause of neither Fines or forfeitures of any Coppy­hold.

Also a Coppy-holder not claiming his Coppy-hold after the death of his Ance­stor within a yeare and a day, at the Court, if any bee, it is a forfeiture for ever per. opin Catline, Slowelle Case 372. ct c. il pesse dee bone custome in plusors Man­nors.

If Coppyholders being on a Jury will not finde the waste committed, or will not present things presentable, this is a forfeituer of their Tenures, if they be Coppy-holders; by the opinion of Catlin, Dier, and Bracton. 4. Eliz. Dier. 211. pe. 31. 6. et 7. Eliz. 233. b. 9. Hen. 6. 44. b.

If a Coppy-holder will not be sworne to [Page 70] present such offences as are forfeitures, this is a forfeiture of his estate; so if he alien, or make Coppy-hold free, for tenne pound, the Lord may enter, for they are willfull acts, for which the Lord may enter without pre­sentment, but for negligent offences, as for not doing of services, or not acceptance of a Coppy-hold after the death of his an­cestor, the Lord cannot seise without pre­sentment of the homage. And if an infant within the yeare after the death of his ance­stor, will not after the Court holden and pro­clamation made, pray to bee admitted, it is no forfeiture, unlesse the Custome of the Mannour be, that an infant ought to forfeit his estate by such negligence, for it is but a claime at Common Law, which bars not an infant, which hath not discretion. Betweene Hautrey and Buckshire and one of his Coppy­holders. 12. Eliz. Rot 96.

If thirteene Coppy-holders bee sworne in a base Court, and twelve agree to give Verdict, the thirteenth will not; it is not a forfeiture, for it is a good verdict without his assent, and perhaps it is not agreeing to his conscience, and therefore it is not properly a not doing, or deniall to doe his duty.

[Page 21] Quaere, If there be 12. and 11. agree, and the twelfth will not, for it is not a full Jury. Pasche. 20. Eliz. Co. Bank. ve. 3. Ed. 3. Verdict 10. ou. 11. 29. Ed. 3. ibid. 45. 12 Hen. 4. 10. Sherne.

ALthough the Lord, the Steward, the Free-holders, the Coppy-holders, and the Bayliffes of every Mannour, have an in­termixt and joynt office, and authority in some cases, and to some purposes: yet to o­ther purposes their office is distinct and di­vided, and every of them doth occupy se­verall places, persons, and parts.

[Page 72] The Lord is chiefe to command and ap­poynt to the Steward, to direct and record the Free holder, affirre and judge the Coppy­holders to enfirme and present, the Bayliffe to attend and execute, &c.

And all these together make a perfect ex­ecution of Justice and Judgements in a Court Baron, and without all these a Court Baron cannot be holden in his proper nature, in re­spect of all causes belonging to the perfect ju­risdiction of a Court Baron.

And yet a Court Baron may be held by use and custome, for some Coppyhold causes, though it want one of the said parties (viz) the Free holders, and there in Coppy-hold cases the Steward doth supply the place of a Judge: But no other of the parts aforesaid, except the Free holders, can be missed, or spared in a Court Baron.

But to make some more particular demon­stration of their distinct authorities and offices: And first the Lord as hee is chiefe in place, so is hee in Authority, and occupieth three severall Romes, the one of a Chancelour in cases of equity, the other of a Justice in a mat­ter of right, the third of himselfe in Cases [Page 73] proper and particular to himselfe.

The Steward doth occupie the parts of severall persons, that is to say, Judge and order in cases of Coppy-hold, and also a Minister, and Register to enter things into the Court Roles, and in both these to bee indifferent betweene the Lord and his Tenants.

The Free holders doe likewise fulfill two parts, that is, to effect, & judge amercemetns, and also to returne and certifie judgements.

The Coppy-holders also doe hold two se­verall roomes, viz. to enforme offences com­mitted against the Lord within that Mannour, and to present such things as shall be given Charge by the Steward.

The Bayliffe doth also occupie two parts, that is to say, to execute the proces and Commandments of the Court, and also to returne into the Court the Execution of the same proces.

6. Ed. 6. Bract. No. case. 84. pli. 387. the un­der-steward in Court, without authority of the L. or of the high-steward, may demise Copy-hold, [Page 74] & it is a good grant, for it is in full Court; but contrary it is if it bee out of Court. Quaere, if the high steward without authority may demise out of Court.

Finis Lecturae Calthrop.

A Coppy-holder being indebted, doth surrender to his creditor, upon trust that hee shall have the Land to satisfie himselfe of the debt, and then to be surrendred backe a­gaine unto him; And after the debt levied, the creditor wil not surrender, whereby according to the custome of the Mannour, the Tenant pursues an English Bill to the Lord in his Court, by which the trust is prooved by de­position; the Lord seiseth the Land to the use of the first Coppy-holder until &c. And Wray was of opinion, that hee may well so doe, for he hath no other remedy, for the Lord cannot imprison him, as the Lord Chancelour of England may doe; and that the custome of deposition is good, though some doe doubt: but Gawdy agrees, but hee saith that the Lord cannot retaine and keepe the Land, and if hee should so doe, the other shall have a Subpena; whereunto Wray a­greeth, that hee cannot retaine the Land [Page 75] but seise it and grant it over, which without seising hee cannot doe, 25. Eliz. B. up­on the motion of Cooke, who said that 14. Hen. 4. 39. and Fitz. B. 1 [...]. are accor­ding to their opinions: For a Coppy-holder shal not have a Writ of Error, not false judge­ment, upon a judgement against him in Court of the Lord; but hee shall sue by bill, and thereupon the Lord shall reseise the Land, upon false judgement given by the Steward, and shall make restitution.

If one recover a debt by plaint in Court Baron, those of the Court have not power to make execution to the Plaintiffe of the defendants goods; but they may distraine the defendant, and after the judgement re­taine the distres in their hands in safegard, untill the Defendant hath satisfied the Plain­tiffe of that wherein hee is condemned by the Court, 46. Hen. 6. 17. See the booke of Entrees Fol. 166. 7. Hen. 4. 27. In re­plevin the defendant said, that one Edward Besall brought a writ of Droit close against the plaintiffe, and one other in the Lords Court in ancient demeasne, and declared in nature of Assize, and it was found against the plaintiffe, and damages were taxed; whereby the defendant being then under-Bay­liffe, [Page 76] by the Stewards commandement, takes the beasts for execution of the damages, and takes and sells them, and delivers the mo­nies to the plaintiffe in Assize; this is a good plea, and yet this is but a Court Baron. And Fol 29. by Hull; A man recovers ancient Demeasne-Lands, and damages in a Court of ancient Demeasne, the Bay liffe may take the beasts of him against whom the recovery is &c. for execution of Damages in every parcell of the Land holden of the Mannour, although that Land bee Frank-fee, and it is not denyed 22. Assise. 72. agrees with 4. Hen. 6. mes Kitch. 115. where it is used to make execution by levari facias, that is a good Custome. 38. Ed. 3. Custome 133. upon a recovery in Court Baron, the defen­dants Cattle were delivered in execution.

NInth Eliz. Taverner was sued by the Lord Cromwel, for that he had committed waste upon his Coppy-hold; he pleads by the advice of Manwood, that he and those who before him had the house wherein hee dwelt, had such a Custome by Prescription, that they might fell Timber trees, &c. And many arguments were against that Custome, in as much as other Te­nants of that Mannour had not such a Custome, but were punishable, and had forfeited their Lands for such waste; also that Custome was against common right, and not reasonable; and after long deliberation of the Judges, it was adjudged, that a Tenant may plead a particular Custome, as if one prescribe to have a way in the Lords Land, &c. And 19. of Eliz. one pre­scribed that he & those of that Tenement his predecessors, had used to have Common of esto­vers in another Mannour, notwithstanding that the other Tenants have not such a Custome, and it was good by the advice of all the Justices.

FOurth Ed 6. Justice Dalisons Reports, Sanders and divers Justices; Tenant by Coppy of Court Role may prescribe to have Wood growing upon the Land. Montague, there is such a custome, and so used in the Counties of Mid. Northland and other pla­ces. Browne, it hath beene heere agreed of late, that Tenant by the Custome may prescribe to suffer their houses to fall, and to destroy their houses; so also here, wher­by this is a good Custome. Montague, I have heard a Fable, that a Tenant by the Custome may digge in the one part of his house, and burne the other part, by the Custome: But if you will agree that the Tenant by Custome shall have the Land against the Lords Will, to him and his heires by the Custome; why then may they not by the Custome cut downe Wood? Sanders, [Page 79] I agree to none of your cases. Montague, surely in the Chancery it will bee over-ruled against you without doubt, and it is neces­sary that an Act of Parliament bee made upon it.

A Stranger brings a writ of right against the husband and wife, in the same Court where the Land is by plea, and the husband and wife doe appeare, and the demandant doth Count against them, and the husband and wife doe defend, and say that they have more right then the demander, and offer to try it by Battell; and the demander and Te­nants doe Imparle, at which day the de­mander appeares, and the husband and wife make default, whereby finall judgement is given against them; and at the same Court [Page 80] the Recoverer Surrenders the same Land into the Lords hands, to the use of the Husband and Wife, and the heiros of their two bo­bodyes begotten; and it was said that this assurance hath beene vsed 1. Ed. 6. Dalisons reports.

Pell et Hikden: Trin. 36. Eliz. Rot 547. on the Kings bench: Tenant in Tayle, the In Mons [...]r [...] in Court Baron, may defeat an entayle B Re­gis 2. Coment. 21. remainder in Fee, Tenant in Tayle Surrenders to the use of I. S. in Fee; I. S. suffers a Recovery, and vouches the Tenant in Tayle, who vouches the common vouchee, and by speciall Verdict it was found that there was never any recovery before in that man­ner, and it is not yet adjudged. Gaw [...]y and Clinch, that the recovery can not be a Barre, for warranty can not be anexed to an estate at will; also he shall not recover in value, be­cause of the estate at will. Fenner and Po­pham chiefe Justice to the contrary, and that warranty may be annexed to Coppy-hold Land, though it bee an estate at will of the Lord; but as it is an estate in Fee, perfor­ming the services and duties, the Law will account them Tenants in Fee: Also recove­ry in value, being but a fiction in Law, le common vouchee shall bee accounted to have the Land in value of the Coppy-hold, within [Page 81] the Mannour: and the Vouchee 23. Hen. 8. Br. Recovery in value 27. that such a Recovery is used in ancient demeasne up­on a writ of right, and Voucher over, and that of a Free-hold there; yet enquire of such a Recovery upon a plaint, there of Land of Base Tenure, for that cannot bee war­ranted, &c.

But in the Common Bench, in trespasse Adjudged in the Common Bench, that a recovery can­not binde an entaile. brought by Comb, against Pears and Turner. Mich. 36. et 37. Eliz. Rot. 14. Bromeley Brittain Hall in Essex: Tenant in Tayle of a Coppy-hold suffers a recovery with Vouch­er, where no recovery was before; the les­ser enter, by the Court, that cannot be, but he shall have a Formdone in discender; for the recovery in Court Baron cannot availe, because a warranty cannot bee anexed to an estate which is at the will of the Lord. Al­so there can bee no Recovery in value, first because there can be no recovery in value of Lands out of the Mannour, and the Cop­py-land is at the Lords wil: Secondly Cop­py-hold Land is granted by Coppy only; and if by the Recovery the Tenant may have it, the course and Custome of the seignory would be destroyed, which shall not bee: Thirdly the Lord shall loose his fine, and Fealty also; for [Page 82] the Coppy is admissus est tenens, &c. et Dat. Duo de fine pro tali ingressu, &c. et fecit fidelitatem. Fourthly et Fiftly, Ph. et Mar. A Coppy-holder Surrenders to the use of his wife for Life, the remainder to the right heires of the husband and Wife; the Wife dyes, the Husband survives: The question is, who shall hold the Land; and it was said that if the Husband had no Issue by that Wife, then his Heire shall have it.

BUt it was said there, that if the Wife had Issue by another H [...]sband, it was there doubted. But it was holden by the better opinion in Dier, that the Husband and his heires shall have the Land; yet if the Hus­band had first two sonnes, the heires of the Husband, and the heires of the Wife, shall have the Land in Common, after the de­cease of the Wife, and for proofe there­of hee puts this case: If land bee given for Life, the remaynder to two men and their heires, they cannot have one heire in the case: if the Tenant for Life dye before them in remainder they shall bee J [...]e­tennants, and the Heire of the survi­ver shall have all: But if none in remain­der bee in life, when the Tenant for life dyes, then the heires of them in [Page 84] the remainder shall hold in common.

Thirty seventh Henry the eighth A Cop­py-holder to the intent to make an assurance to his Wife, suffers another to bring a Writ of right in the Coppy Court, and they joyne the Battell, and at the day the Husband and Wife make default, and finall judgement was given; and after the reco­verer Surrenders the same Land into the Lords hands, to the use of the Husband and Wife and their heires; and a good as­surance pur Cur.

A Coppy-holder makes a Lease at Will to another, who commits Waste, A Coppy-hol­der brings an action upon the case against lessee for wast and good. which is a cause of Forfeiture; the Lessor brings an Action upon the case against the Lessee: By Walsh, Weston and Dier, the Lord may enter, and have Trespasse against the Lessors his Tenant; and therefore it is reason that hee shall bee recompenced: But the Lord shall have a speciall Writ of Travers, and not vi and armis, because the entry was lawfull. 8. et 9. Eliz. ibid.

The Lord Dacres enters upon his [Page 85] Coppy-holder, and leaseth it to a stranger for yeares; the Lessee enters, and was e­jected by the Coppy-holder, and hee brings a Writ of Electione firme: The Coppy­holder pleads that the Lands are demise­able per Custome; and so they were at issue; and hee shewed in evidence a Cop­py made 13. Henry the eighth, by which a Tenant had surrendred the Lands, to have and to hold, &c. whose estate hee had, and by another Tenant rendring the yearely Rents, Customes, and Services; and also hee produced certaine Witnesses who proved the Land to bee Coppie by the space of 69. yeares. The plaintiffe, to destroy the Title of that evidence, shewed certaine Rentals that they were Free Lands, &c. 9. et 10. Henry 7. and not Coppy; and also another Rentall to that intent, in 12. Henry 6. which prooved that those Lands were leassee for twenty yeares: Per Cur. this evidence doth not disproove the Coppy-hold, for it was not within the time of memory; but if hee had shewed the Indenture of Leasse made within 50. yeares or 80. yeares, so that a man might remember it, then it had beene good, although the Statute of limitation extends not unto it, by the Justices, such evidence [Page 86] as prooves it to be within time of memory, is good.

Also by them, if those Lands bee in the hands of the Lord by forfeiture, Escheat, or Surrender, yet the Custome remaineth; for he may demise them againe, and the Custome shall bee revived; but by some men, if by Escheat it bee in the Lords hands, the Custome is extinct. 8. et 9. Eliz. Ibidem.

Addington Lord of Harlow in Essex, would encrease the Fines of his Coppy-hold The Lord can­not increase a fine which is certaine. Tenants, which were prooved to bee cer­taine: And it was holden that hee could not increase them, and it shall be a good prescrip­tion to say, alwaies ready to pay such a summe and no more. 18. 19. Eliz.

4. Eliz. It was mooved by Manwood Sergeant, if a Coppy-holder in Fee in right of his Wife doe Surrender, the wife being not examined by the Steward, but by some of the Tenants, the Custome permitting it, the Husband dyes: Whether the Wife shall sue by plaint in Nature of a Cui in vita, or may enter? And by him shee may enter, because it is no discontinuance, for that it is a [Page 87] surrender to the Lord who hath the reversi­on, for if a Tenant in Tayle enfeoffe him in the reversion; it is no discontinuance; but if she had been examined, she should have bin barred for ever.

And Dier, if a Coppy-holder in Tayle surrender to the Lord to the use of a stranger, the Issue may bring a plaint in Nature of a Formdone in discender, and purge the dis­continuance, for it is within the statute De donis Conditionalibus, Lit Fo. 16. Com 233. 15 Hen. 8 Br. tit. Tenant per Copie 24.

And by Manwood, no negative prescrip­tion may prevaile against a statute: And the Common Law is no other but an ancient usage throughout all the Realme; and a prime Custome may encounter with it, but not with a statute.

And by Dier, if after the Surrender the Lord admit the Wife againe, yet shee shall be in by her Husband in construction of the Law.

Coppy-hold of inheritance discends unto two sisters by two venters, none of them making entry, and before the Court and ad­mission [Page 88] one of them dyes, her heire shall have the moyty, and not the other sister, by Dier chiefe Justice in the Chancery.

Also if a Coppy-holder in Taile Surrender to another in Fee, who is admitted, this is a discontinuance, and so the Husband of his Wifes Coppy-hold: And h [...] said, that a re­mitter shall be of a Copy-hold, as it shal be of a Freehold and inheritance at the common Law. 13. et 14. Eliz.

In the Duch [...] it was in question; whether a Coppy-hold may be entayled or not? And by Wray chiefe Justice, and Manwood chiefe Baron; the Tayle was not Fee simple at the Common Law, if it did not appeare by the Custome, and that may bee prooved by the Court Roles, or by some other proofe that there is a recovery by plaint of Formedon, or the Lands had descended according to Land in Tayle, as possessio fratris shall not be of it, or that that the Daughter shall not inherit, before the sonne which is unckle to the same. Egerton was of counsell with this case, which was betweene Sherington and an other. 22. Eliz.

Hanchet and Rosse concerning land of Dicot in Stepping Hackney, a Coppy-holder of [Page 89] inheritance dies, the Lord grants the ward­ship of the Land, during the minority of the heire, to the Wife being sole; shee takes a Husband and dyes: It was demanded whe­ther the Husband should have it or not? And it seemed not, but if it had beene a thing in which he had intrest to his owne use, that he should have it, as a Lease for yeares, the executor shall have it without admittance of the Lord, so the Husband shall have a Lease for yeares made to his Wife, with­out admission.

By all the Justices. 17. Eliz. If a Coppy­holder in Fee take an estate in Tayle by Charter-hold, or take a Lease for yeares by Indenture, his Coppy-hold is con­founded.

7. et 8. Eliz. by Harpour and others; a Lessee for yeares of a Mannour may make Coppyes, (if the Custome be so) to a man and his heires secundum consuetudinem, &c. for if the Coppy-holder in Fee dye, his heire is in by descent, and ought to be admitted, or els he shall compell the Lord to admit him, for for it is of necessity. But Coppies for life or yeeres it is otherwise, for by the death of the Tenant, there is not any that can compell the [Page 90] Lord to make him a new Copy if he will not, but hee may retaine the Land in his owne hands, and therefore the grants of such Cop­pyes as are expired, made by a lessee for yeares, are void.

FIrst, Land Demiseable, by Coppy in the time of Richard the second, is perfect Cop­py-hold; so if it bee demised by Coppy 15. or 16 yeares.

Secondly, If the Lord purchase the Cop­pihold of his Tenant money, this is clearly a surrender, and an extinguishment of the Coppy, and it is not demiseable by Coppy af­ter: But if the Lord enter for forfeiture without presentment found, that is demise­able by Coppy againe.

Thirdly, If the Lord bring Trespas against a Coppy-holder, who pleads that it is Free [Page 91] hold, this is a Forfeiture, and the Lord may enter.

Fourthly, the Lord cannot seise, because his Coppy-holder was sworne to give evidence against him, for this is no forfeiture.

Fiftly, if a Coppy-holder disseise his Lord of other Land, that is not a forfeiture of the Coppy-hold.

Sixtly, if a Coppy-holder dye without heire, and the Lord enter by escheat, this is demiseable by Coppy againe; but if the Lord afterwards doe make a feoffment, or suffer a recovery, and after doe repurchase it, it is not demiseable; but if the Lord reverse the Judgement upon recovery by error, attaint, or deceit, and hath restitution, then it is demise­able by Coppy againe.

A disseisin doth not extinguish the Cu­stome, nor acts done by the disseisor.

Seventhly, if a Coppy-holder suffer a recovery by prescript at common Law by collusion, or make a Feofment, or bargaine and sale, and the Lord enters and makes a lease for yeares thereof; the Land is not de­miseable by Coppy againe.

[Page 92] Eighthly, if a Coppy-holder surrender his Land, to the intent that a stranger shall have the Rent out of it by Coppy; it is no good Coppy-hold Rent.

Ninthly, if there bee two joyn-tenants in Common of a Mannour; and a Coppy­holder surrenders to the use of one, this is not Coppy-hold Land.

Tenthly, if the Husband and Wife bee joynt-coppy-holders of the purchase of the husband during Coverture, and the Husband is attainted of Felony and dyeth, this is not a Forfeiture of any part of the Coppy-hold; but if the purchase was made before the co­verture, then it is a Forfeiture of the moyty.

Eleventh, If two Coppy-holders ex­change by licence, and after the part of the one is recovered by an elder title, he may enter in the Land which the other hath in ex­change.

Twelvth, If two Coperceners Coppy­holders make partition, and the one is im­pleaded and doth loose by just title, and the recoverer enters into the Land, shee can­not enter upon her sister, because she did [Page 93] not pray in aide for the rate. A feme Co­vert Joynt Coppy-holder with another in Fee, may surrender her moyty to the use of her Husband and it is good.

Thirteenth, the Kings Steward without ny patent of his Office seiseth divers Coppy­holds, and afterwards the Lord Treasurer and those of the Exchequer doe lease the same Land for yeares; and thereupon it was mo­ved, whether Coppies made by the Steward without patent were good? and the Lord Dier thought they were good Copyes; but in the Ex­chequer the Barons were of another opinion.

Fourteenth, a man seised of a Mannour, to which Coppy-holders for yeares and o­thers are belonging, hee deviseth by testa­ment the same Mannour to a ceraine person for payment of his debts, during which time divers Coppyes expire, and the devisees grant new Coppyes, and afterwards during the terme, the devisees grant in reversion, and a particular Tenant surrenders in Court to the use of the grantee, and after the wife of the devisor recovers in Dower part of the Man­nour, and hath execution of those Coppy-holds assigned by the Sheriffe for her Dower: And it was mooved, whether the Wife shall [Page 94] avoid those Coppyes made by the devisees? And Browne Justice was of opinion that no; to which Weston agreed, for they said, that those are ordinary things, and which must bee done of necessity by force of the Custome, and not any deede or new charge created by the devisees, who are but officers to execute the Custome which of necessity must bee done, for they cannot bee made by any others who have the possession of the Mannour; for it hath beene adjudged, that such Coppyes and ordinary things, as presentment to a Church made by a disseisor, or by a Lessee for Life or Yeares shall stand good, and shall not bee avoided by reason of the necessity: but other charges created by the Heire after the death of the Huband, as a Lease for yeares Rent charge in which there is no such necssity, the Tenant in dowre shall discharge them, and although the Wife shall bee adjudged in by her husband, yet shee shall not have those things which chance before assignment of her dow­er. If a wardship fall, or an avoidance of a Church, or a villaine regardant hath pur­chased, and the heire enters, or presents, these things the heire shall have, and not the Te­nant in Dowre, and it may be that the wife will never sue for her dower, or peradven­ture [Page 95] she shall have other Mannours assigned her for the same. And as to the reason, that it is not a thing of necessity to grant Coppies in reversion, yet they were of opinion that because the Custome doth allow it, it is Cu­stome ley, and therefore it may bee put in ex­ecution: for the Custome is annexed unto the Land, and not unto the interest of the Lord. But Wray said, that of estates that are to Coppyholders and their heires ac­cording to the Custome of the Man­nour, if such a Coppy-holder dye without heire, the Custome is determined. If such a Lessor for life or yeares of the same Mannour grant new Coppyes, they are not good, and so there is a diversity.

A man cannot devise that his friends shall make Coppyes or hold Courts, for none shall make Coppye: but he that is Lord of the Mannour, and hath an interest.

The Lord of the Mannour shall have the government of the Coppy-hold during the infancy of his Tenant: Executors shall have a Lease for yeares of Coppy-hold Land without any new admittance.

The Husband of a Wife that is Coppy­holder for yeares, shall not bee newly ad­mitted after the death of the Wife, nor bee tenant by the courtesie.

[Page 96] Where inheritance of a Coppy-hold descends, the heire may enter without admittance; but it was a doubt whether he should have an action of Traverse against a stranger before admit­tance; for before admittance he is not proper­ly Tenant; if such an heire will not come to the next Court, the Lord may make proces a­gainst him.

A Coppy-holder shall have Traverse against his Lord, paying his Services and customes.

If erronious judgement be given against a Coppy-holder in the Lords Court, the Lord in his Court may reverse it, for it is not amend­able in any other place or Court.

If the Lesse of a Coppy-hold commit waste and the Lord seiseth for forfeiture; the Cop­py-holder shall not have an action of waste a­gainst his Lessee, as if Tenant for life make a Lease for yeares, which Lessee maketh waste, and the Lessor recovers, the Tenant for Life shall not have an action of the Case, but is without remedy; for it was his folly that hee would not have a Collatterall covenant of the Lessee that he should doe no waste.

A Coppy-hold is not forfeit for heresie, by the last of 2. Hen. 5.

A Coppy-holder is not Ter-tenant, but is Tenant at the Lords will; and a Coppi-hold is not bound by the statute of Wills nor of [Page 97] Tines, nor of Limitations

A Coppy-hold shall not be extended by a sta­tute, Marchant or Staple.

The Husband and Wife being seised of a Mannour to them and the heires of the Hus­band; hee grants a Rent charge out of it, and dyes, the Coppy-holder surrenders, the Wife makes another Coppie and dyes, the grantee shall distraine upon the Coppy-hold.

If the Lord of a Mannour hath a great waste, and grants a rent charge out of the same, and the Coppy-holders have Common in the waste, and they put in their Cattell, the grantee shall distraine them, if they cannot make prescrip­tion.

If a Coppy-holder surrender to the use of ano­ther and the Lord will not admit him, nor make a grant unto him, the surrender is void.

If there be two Joynt Coppy-holders, and the one commits a forfeiture, he shall forfeit but the Moyty.

Lessee for yeares ofa Coppy-hold shall have an eiectione firme; by Plowden and others.

If there be a Lease for yeares of a Mannour, and one Coppy-holder purchase the reversi­on in, fee, this is a destruction of the Coppy­hold, and the Lessee of the Mannour may put him out, and occupy during his terme. 8. Eliz. adjudged.

A Coppy-holder purchaseth the Mannour to him and another in fee, the companion may occupy the Coppy-hold joyntlyp resently 14. Eliz.

[Page 98] Nota, it was agreed in the common Bench. 21. Eliz. that the Bay liffe of a hundred or of a base Court, may take goods upon levari facias, to give execution to the plaintife, as well as the Sheriffe; yet they agreed that divers Bookes are against it. 4. Hen. 6. 22.

Two Joint Copy-holders in Fee make a parti­tion, that is good, and no forfeiture, nor aliena­tion. 12. Eliz. agreed in duchie chamber.

If a Coppy-holder surrender, and then the Lord doth acknowledge a statute marchant, and after the Lord grants it by Coppy, the Coppy-hold is liable, for at the time of the knowledgment it was annexed to the free hold; but if a Coppy-holder acknowledge a sta­tute, that is not liable.

If a man enter with force upon a Coppyholder, he shall not have forceable entrey, nor indict­ment, but the Lord shall have it, and upon restitution to the Lord the Coppy-holder shall enter.

The Lord grants to a Coppy-holder his trees growing, or that shall be growing upon the Land, he may fell trees now growing, and no forfeiture, by reason of the dispensation, but he cannot cut the trees which shall grow in time to come.

If the disseisor of a Mannour make Coppyes for life, and the disseisee enter, he shall defeat them, but of Coppy-holds in fee before dissei­sin, and a new [...]nt of them upon Surrender in time of disseisin, it is otherwise per Plowden.

Popham in Case Ramsey vers. Arthurs. 29. [Page 99] Eliz. A Coppy-holder may prescribe to have common in the Lords Land.

If a Coppy-holder surrender to the use of ano­ther, and the Lord grant it to cesty que use, making no mention of the surrender, yet it is good, per Plowden in Batlands case.

If there be a Mannour consisting of de­measnes, Free hold and Customary Tenements; if the Lord grant certaine of the Coppy-holds in Fee, the grantee may keepe Court, and do homage, and the Coppy-holders by their othes may make presentments of their Customes, or of the death of any Tenant, and the gran­tee may make in Court a new estate by Coppy, as if it should bee a perfect Mannour; mes the stile shall not be, Curia Manerij, but Curia halimoti, id est, Convocatio tenentium, for when they are assembled, they may enforme the Lord of their Customes and duties. It was otherwise adjudged in the Com bench. 29 Eliz. between Dodington and Chaffin for par­cell of the Mannour of M.

It was adjudged in the common Bench 29. Eliz. that where Sir Peter Carew bein solely seised of the Mannour of M. in the County of Devonshire for Life; granted a Coppie in reversion according to the Custome of the Mannour, and dyed before the praticular Coppy-holder, this is a good Coppy in re­version against the Lord, in whose hands so­ever the Signory should come.