Reports of diverse choice cases in law taken by those late and most judicious prothonotaries of the Common Pleas, Richard Brownlow & John Goldesborough ; with directions how to proceed in many intricate actions both reall and personall ... ; also a most perfect and exact table, shewing appositely the contents of the whole book.

Pasch. 9. Jacobi 1611, in the Common Bench. John Reyner against Powell. See Hillary 8. Jacobi, 136.

HAughton Serjeant argued, that there shall be a good Estate tayl of a Copy-hold, and that by the custome after the making of the Statute of Westminster 2. And he agreed that at the Com∣mon Law, all estates were Fee simple absolute or conditionall, and that the estates tayl were created by the Statute of Westminster 2. And do not exclude customary estates, as it appeares by Little∣ton, who saith, that Tenant at will by copy of Court Roll by custome may be in Fee simple, and so of estate tayl, and with this agrees many other Authors, 15 H. 8. b. Tenant by Copy-hold of Court Roll resolved in the point, and that a Formedon in the discender lieth for

that, and as the Statute of Westminster 2. divides estate tayl and Fee simple, So may custome of a Mannor as well as custome make an estate at will, which is personall and determines by the death of any of the parties to discend, and as well as the custome of Lon∣don (of not moving things fixed) is created by custome, as well may Formedon be created by Custome, and also the Statute is, that gives Cui in vita, extends to a Copy-hold, so the Statute of Li∣mitation, as it appeares by Brooke, Limitation, 5 Ed. 6. And with this agrees also Heydons Case, and though that the words are, Vo∣luntas Donatoris in the Charter, &c. Yet the estate tayl may be created by devise. So that the Statute shall not have such literall construction, and as well as a Lease for a hundred yeares may be within the Statute of 11. H. 7. Which speakes only of discon∣tinuances, as it appeares by Sir George Brownes Case, 3. Coke, So may a Copy-hold estate which is but an estate at will be within the Statute of Westminster 2. and it is confest by the other part, by pleading that he was seised in tayl according to the custome of the Mannor, and it is not pleaded that he had Issue at the time of the Alienation, and the other party claimed by the Alienation, the which was not good, if he had no Issue at the time of that if he had but Fee simple conditionall, and so concluded and praied Judgement, &c.

Dodridge Serjeant of the king saith, that the reputation of the estate consists upon two parts, first the name, secondly the nature of the estate tayl, and for both the makers of the Statute of West∣minster 2. bad no intention that this should extend to Copy-hold, and first for the name, which gives the being, he cited Fitz. Na∣tura Brevium. 12. C. where it is sayd, that Copy-Tenants, or Co∣py-holders, or Tenants by copy, is but a new Terme found, for of auncient times they were called Tenants in Villenage or of base te∣nure, as this also appeares by the old Tenures, by which it ap∣peares that then they were called and named Tenants, which held in Villenage or of base tenure, and Bracton, booke 2. chap. 8. in the end speakes of that, and calls them Villaines, Sokemaines, and that if such a Tenant will transfer his Tenement, let it be de∣livered into the hand of the Lord or his Steward, and he wrote immediately before the Statute of Westminster 2. and agreed with Fitz. Na. Bre. And also Bracton, booke 4. fol. 209. Saith, that such Tenants have used to Plow the Demesnes of the Lord, and calls and names them as before; and 4. Ed. 1. He is called Custo∣marius; So that Custome doth not make the certainty of his estate if he hath any, and he said that 42. Ed. 3. 25. is the first in Law; in which is any mention of these Lands, and there they are called Neists Lands, and 14 H. 4. 323. a. they are called Sokemaines by

base Tenure, and Lambert calles it Folkland, by which and severall names he saith, that the basenesse of the Estate appeares, And to the estate he saith that originally it was but at the will of the Lord, though that it be according to the Custome of the Mannor, So that the Lord cannot put him out if he performe the services. And the Register doth not respect him, for he hath not framed any Originall for him, to give him remedy by the Common Law, but only in the Court of the Lord, though that erronious Judge∣ment be given: Also he cannot prescribe but in the name of the Lord, as it appeares by 18. Ed. 3. Fitz. prescription, that such estates which are incident to Fee simple, as Dower, not Tenants by the Curtisie cannot be derived out of this without Custome, nor that warranted. So that his reputation appeares by his name and also by his nature: Also he intended that the makers of the Statute of Westminster 2, did not intend that the Statute should extend to this, for it is, Oppositum in Objecto, for Custome is without time of memory. And the Statute of Westminster 2. was made 13. Ed. 1. the beginning of which every one knowes. Also the Statute of Westminster 2. doth not extend to any Lands, but those which the Tenant might have aliened before the Statute. But the Copy-hol∣der had not any power to alien, for the Lord ought to be his In∣strument and hand, as Bracton saith, to alien, transfer he cannot, but by the hands of the Lord, and it must be restored to the Lord, the words of the Statute are, The will of the giver in the Charter, &c. So that the Statute intends such Lands which may passe by Deed and Fine, and devise his Deeds, and the Deed extends to them, for a Fine is Chirograph, and devise to be made by copy of Court Roll is not so, for that is only of Acts made in the Court of the Lord, it cannot be within the Statute, for Copy-hold ought to be held of the Lord, and Tenant in tayl shall hold of the giver, and so cannot a Copy-holder, which hath so base an estate. And if this shall be so, these mischeifes will insue. That is, that this base estate should be of better security, then any estate at the Com∣mon Law, for Fine shall not be a Barr of that, for it cannot be levied of that, also Recovery cannot be suffered of that, for there cannot be a Recovery in value neither of Lands at the Common Law, neither of Customary Lands, for they cannot be transferred but by the hands of the Lord.

And to Littleton he agreed, and also, 4 Ed. 2. which agrees with this, where it is said that at Steben••eath, a Surrender was of Copy-hold Lands to one and the Heires of his Body, but he said, that that shall not be an Estate taile, for then the Estate hath such ope∣ration, that this setles a Reversion and Tenure betwixt the Giver, and him to whom it is given, but this cannot be of Copy-hold Land,

for this cannot be held of any, but only of the Lord, and to the others, this Estate doth not lye in Tenure, and yet he agreed that of some things which did not lye in Tenure, Estate Tail may be, but Land may be intailed, but Copy-hold Estate is so base, that an E∣state tail cannot be derived out of it, so that though that custome may make an Estate to one and the Heires of his Body, yet this can∣not be an Estate taile but Fee-simple conditionall, and also he a∣greed that they might have Formedon in Discender, but it is the same Formedon, which was before the Statute, as if Tenant in Fee-simple conditionall before the Statute, would alien before issue, but it was no Estate taile, with the priviledges of an Estate taile before the Statute, and to the other matter of Surrender, that is the ad∣mittance of the parties which is an Estate taile, that doth not con∣clude the Court, as it appears by the Lord Barkleys Case in the Commentaries, where the Estate pleaded severally by the parties is not traversed by any of them, and so concludes, and prayes Judg∣ment, &c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant, and he said, that there are three questions in the case.

First, If Copy-hold land may be intailed. Secondly, Admitting that it may be intailed, if Surrender makes discontinuance. Third∣ly, If it shall be Remitter; and to the first, he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that, he said that Littleton placed that amongst his Estates of Free-hold, and hath been time out of minde, and is a primitive Estate, and not derived out of the Estate of the Lord, and the Lord is not the Creator of that, but the means to convey that after that it is cerated, and what is created then shall have all the priviledges and Benefits which are incident to it, and shall be nursed by the custome, and is time out of minde, and the Law alwaies takes notice of it, and he cited, 24 H. 4. 323. by Hankf. Bracton, Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke, which is not simply an Estate at the will of the Lord, but at the VVill of the Lord according to the custome of the Mannor, and when it hath gained the reputation of Free-hold, then it shall be dircted accor∣ding to the rules of the Common Law, and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed, and he saith, That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue in∣taile, also a Copy-holder shall have a Cui in vita, also a Copy-hold is within the Statute of Limitation; and so upon the Statute of buy∣ing of pretenced rights: And it is alway intended when a Statute speakes of Lands and Tenements, that Copy-hold Lands shall be within that: And he saith, That all the Objections which have been

made of the contrary part are answered in Heydons Case, but he relyed upon that, that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land, 25 Ed. 3. 46. Estate tayle is of a Corrody and office, which proves, that Copy-hold is a reall Inheritance, and for that shall be within the Statute, 46 Ed. 3. 21. Gavelkinde Land may be intailed, 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament, 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled, and he said that the reason is, that for that it is Inheritance and time hath applyed them to an E∣state, and so concluded, and prayed Judgment for the Defen∣dant.

Hutton Serjeant argued for the Plaintiff, that Copy-hold Lands cannot be intailed, for that is but a customary Estate; and the Law doth not take any notice of it, but onely according to Custome, for there were no Estates tayle before the Statute, for then all were Fee simple absolute or conditionall; that is, either implyed, or by limi∣tation, which cannot be of an Estate tayle, which is not within the Statute of Westminster 2. for no Actions are maintainable by that, but those which are by the Custome, and a Writ of false Judgment: See Fitzherberts Natura brevium, 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents, which are incident to Estates at the Com∣mon Law without Custome, as Dower: See Revetts Case, and so is Tenancy by the Curtesie, and there shall be no discent of that to take away Entry, and so of other derivatives: And he seemed that it is not within the Statute for three reasons apparent within the Statute.

First, That it is hard that Givers shall be barred of their reversions; but in case of Copy-holds, the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent, but onely Subpena, and in this Case the Lord may releive himselfe for the losse of his services, for that the Statute provides no remedy for him.

Secondly, That the Statute doth not intend any Lands, but those of which there is actuall reversion or remainder, and those which passe by Deed; so that the will of the Giver expressed in the Char∣ter, may be observed, and of which there may be a subdivision, as Lord, Mesne, and Tenant, for there shall be alwayes a reversion of the Estate tayle, and the Donee shall hold of the Donor and not of the Lord.

Also it seems that the Statute doth not intend to provide for any, but those for whom the VVrit in the Formedon ordained by the Sta∣tute lyes, and agreed that for Offices and such like, Formedon lyeth, if the party will admit Estate tayle to be discontinued.

Also the Statute intends those things, of which a Fine may be levy∣ed, for the Statute provides, that (the Fine in his owne right should

be nothing) but by Copy-holder Fine cannot be levied, and for that he shall not be within the Statute, and if the Words do not extend to that, then the Equity of the Statute shall not extend to that, and he said that Copy-hold is not within any of the Statutes, which are made in the same yeare, as the Statute which gives Ele∣git, and such like, and to Littleton that an Estate by copy, is where Lands are given in Fee-simple, Fee-taile, and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned, shall be intended Fee-simple con∣ditionall at the Common Law, and the Formedon in Discender which was at the Common Law, for alienation before Issue: And so Littleton shall be intended, For the Estate is within time of memo∣ry; see Heydons case, that a Copy-hold Estate is an Estate in be∣ing within the Statute of 31 H. 8. And Manwood there said, that in∣somuch the Estate of that is created by custome, and the Estate taile is created by Statute, yet it shall not be within the Statute, and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon, for he saith, though that Forme∣don was given by Statute, and was no otherwise in Discender, yet now this Writ lies at the Common Law, and it shall be intended, that this hath been a custome there, time out of minde, &c. And so he concluded, and prayed Judgment for the Plaintiff.