Lex custumaria, or, A treatise of copy-hold estates in respect of the lord, copy-holder wherein the nature of customs in general, and of particular customs, grants and surrenders, and their constructions and expositions in reference to the thing granted or surrendred, and the uses or limitations of estates are clearly illustrated : admittances, presentments, fines and forfeitures are fully handled, and many quaeries and difficulties by late resolution setled : leases, licences, extinquishments of copy-hold estates, and what statutes extend to copy-hold estates are explained : and also of actions by lord or tenant, and the manner of declaring and pleading, either generally or as to particular customs, with tryal and evidence holder may recieve relief in the Court of Chancery : to which are annexed presidents of conveyances respecting copy-holds, releases, surrenders, grants presentmets, and the like : as also presidents of court rolls, surrenders, admittances, presentments, &c. / by S.C., Barister at Law.

CAP. XI. (Book 11)

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

A Manor may be granted by Copy, C••. Lit. 58. b. i. e. a customary Manor; and so a Manor may be parcel of another Ma∣nor.

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

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

The Lord granted to one and his Heirs, subboscum in M. Wood, annuatim succidend. by four or five Acres at the least, and then made a Lease of the Manor: The Lessee cut Trees. Copy-holder brought Trespass. Lessee justifies with averment, That he had left sufficient for the Copy-holder to cut down by four or five Acres yearly. 1. Per Cur.* 1.1 Underwood may be granted by Copy, if the Custom permit it. 2. That the whole Wood passed, and the words annuatm succidend. is an Order only ap∣pointed for the cutting it, and not to restrain the Grant, More n. 480. Taylor and Hoe, and Cro. El. 413.

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

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

Tonsura Prati, is grantable by Copy. So Her∣bagia, 1 Rolls Abr. 498.

Of Grants by the

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

Copy-holds come to the Lord by Escheats,* 1.2 or Forfeiture, or Purchase: What comes by Es∣cheat or Forfeiture, he may grant again.

H. 8. seized of a Manor in which are Co∣pyholds, Grants Copy-hold for Life generally: It was a Quaere, in March Rep. 206. Fulham's Case, and not resolved whether this be a good Grant or not; and Per Cur. The Grant is not void; it never recites in any Grant of the King

what is Copy-hold. But the great Question was, whether the Copy-hold was destroyed or not? It was not there resolved, but seems so. But Downcliff and Minor's Case is more full to the purpose, 1 Rolls Abr. 498. If the King be seized of a Manor, whereof Blackacre is parcel and demisable by Copy in Fee,* 1.3 and this comes to the King by Escheat or Surrender; and after the King lets Blackacre to J. S. for Life, not taking conusance, that this was demisa∣ble by Copy; this is a good Grant, though the King recites not, that this was demisable by Copy; and by consequence this will de∣stroy the power to grant this by Copy at any time after, M. 15 Car. 2.

Voluntary Grants by the Lord may be considered in respect of his

• ...Person.
• ...Estate.

* 1.4As for his Person, notwithstanding his dis∣ability, yet his Grants of Copy-hold shall be good and valid in the Law; as suppose he be an Infant, Non compos mentis, Lunatick, Outlaw∣ed, Excommunicate, yet he is capable to make a voluntary Grant by Copy. So a Feme Lady of a Manor takes Husband, and they two joyn in a voluntary Grant by Copy, this shall for ever bind the Wife and her Heirs, and the reason is, the Custom of the Manor being the main Foundation on which is built the whole Fabrick of the Copy-hold Estate, what the Custom doth confirm to the Copy-holder, the Law will ever allow and support it, notwith∣standing any such Imperfections in the Gran∣tors person, Co. Lit. f. 58. b. 8 Rep. 63. a. b. Swain's Case. Noy, p. 21. Grant by an Infant is good, as well as presentation to a Benefice.

If the Lord release to a Copy-holder in Fee, Habendum to him in Fee to the use of ano∣ther, this is a good use, for upon such Re∣lease a Rent may be reserved, 2 Rolls. Abr. 788. Sams's Case.

What voluntary Grants by the Lord shall be good or not, in respect of the Estate or Interest which he hath in the Manor, and what not.

Voluntary Grants of Copy-hold Estates, are of such as come to the Lords hands by Escheat or Forfeiture, and the Lord may grant them by Copy again. It was adjudged in Harris and Jay's Case, Cro. El. 699. M. 41 El. B. R. That a Copy-hold Escheated, and which hath been kept in the Lords hands divers years, may be granted over by the Lord himself, or by his Steward.

This may be considered in respect of the

• Quantity and
• ...Quality

of his Estate.

He must be Legitimus Dominus, a lawful Lord at the time of his voluntary Grant; and then as to the quantity of his Estate in the Manor, be it great or little, is not material, whether he be seized of, or interested in the Manor, in Fee or Tayl, Dower or Curtesie, for Life or Years, Tenant per Statute, Elegit or at Will, or on Condition, he may grant any Copy-hold Escheated to him, for as long time as the Custom doth allow, the Rents and Services being truly reserved, and these Grants shall bind them that have the Inheritance or Freehold of the Manor; the Reason is well delivered in Coke For a Copy-holder upon voluntary Grants made by Copy, doth

not derive his Estate out of the Lords Estate only; for then the Copy-holders Estate should cease when the Lords Interest determineth, but the Life of the Copyholders Estate is the Custom of the Manor; and therefore whatso∣ever befalleth the Lords Interest in his Manor, be it determined by course of time, death, for∣feiture, or other means, yet if the Lord were Legitimus Dominus pro Tempore, though his Estate in it be very small, yet that is enough; for the same Custom that fixeth a Copy-holder instantly in his Land upon his Admittance, will likewise protect and support his Interest to the end in such manner, that though the Lords Interest faileth, yet the Copy-holders Interest shall not fall, being upheld by such a Pillar, unless he forfeit it by his own act.

* 1.5Where Copy-hold Land comes into the Hands of the Lord, by Escheat or Forfeiture; the Lord may grant this Land by Copy, rendring greater Rent, but not when he admits a Tenant

Blewet Lord of a Manor, wherein are ma∣ny Copy-holders, grants the Stewardship to S. for Life, and after becomes a Lunatick, and found upon Inquisition, and thereupon commit∣ed W. to E. C. and others, under the Seal of the Court of Wards,* 1.6 &c. The Question was, whe∣ther the Committees by their Steward may grant Estates by Copy, according to the Cu∣stom? Per Cur. they cannot, for by the Law they have no Estate in the Manor, nor are Lords thereof for the time being; but the Lu∣natick by his Steward may grant Copy holds and so it was decreed. But it was ordered that the Steward should grant none without the pri∣vity of the Committees, and warrant from the Court, but this was only for caution, Sir James Ley's Rep. f. 47. Blewit's Case.

Therefore if the Lord sever a Copy-hold from the Manor,* 1.7 by granting the Inheritance to a Stranger; now though one of the chief Pillars of a Copy-hold Estate is wanting, viz. to be parcel of the Manor, yet because the Land at the time of the Copy-holders admittance was customary, and had this necessary incident, this severance being a matter ex post facto, and be∣ing the Lords own act, shall not amount to the destruction of the Copy-hold.

There is this Custom in a Manor, That every Copy-holder Tenant for Life, had used to take all Trees growing upon his Land to be employed for Fuel, and Repairs, and Esto∣vers. Queen Eliz. being Seized of this Ma∣nor, demiseth it to J. W. except Omnibus boscis subboscis arboribus & maremiis, Habend. (except pre-except) for twenty one years; who assigns all his Interest to J. P. and others. Queen Eliz. dyes, King James grants reversionem praed. ac premissa sic ut prefertur except. to A. F. R. S. and P. W. and their Heirs, the Lessees Attorn; A. F. and P. W. release to R. S. and his Heirs. Lessees and their Steward, &c. grant to W. B. Def. a Messuage and a Vierge of Land whereon the Trees grew, for term of Life, secundum con∣suetudinem Manerij; The Question was, inas∣much as the Lessees hold the Court by virtue of the said Lease of the Manor (out of which Lease the said Trees were excepted) if the Def. (the Grantee of the Lessees) may take the Trees. Per Cur. he may, notwithstanding the Severance by the Exception, and notwith∣standing he comes in by Voluntary Grant and not by Surrender; for the Estate of the Co∣py-holder which comes in by Voluntary Grant, is not derived out of the Estate or Interest of the Lord of the Manor, for he is but as an In∣strument

to make the Grant,* 1.8 but the Custom of the Manor (after the Grant made) hath sta∣blish'd and fixed this firm to the Grantee. So if the Copy-holders for Life used to have Com∣mon in the Lords Wastes or Woods, and the Lord aliens the Wastes or Woods to another in Fee, and after grants certain Copy-hold Lands or Houses for Lives, such Grantees shall have Common of Pasture or Estovers, notwithstand∣ing the Severance, for the Title of Copy-hold∣er is paramount the Severance, and the Custom unites the Common or Estovers, which are but accessories and incidents so long as the House and Land, being the principal, is maintained by the Custom; which customary Appurtenants are not pertaining to the Estate of the Lord, for he is Owner of the Free-hold and Inheri∣tance of the whole Manor, but they are apper∣taining to the customary Estate of the Copy-holder, after the Grant made. 8 Rep. 63. Swain's Case.

* 1.9Feoffee of a Manor upon Condition grants Land by Copy, and afterwards the Manor becomes forfeited, and the Feoffor entreth, yet the Copy-hold Estate remains untouched; so if Feoffee of a Manor on Condition to En∣feoff a Stranger, and the next day makes a vo∣luntary Grant by Copy, this shall bind, Coke Cop.

* 1.10Nay, though the Estate of the Lord in the Manor, by Relation happen to be void, ab initio, yet if he grant by Copy during the continuance of his Interest it is good. So Co∣py-holders Estates granted before a Divorce causa praecontractus, shall be good. So if a man espouseth the Lady of a Manor, under the Age of consent, and after she disagree∣eth, though the Marriage by relation was void ab initio; yet Copy-holds granted before dis∣agreement

shall never be avoided. So by Pop∣ham in Rowse's Case, Owen 28. If a Manor be devised to one, and the Devisee enters and makes Copies, and then the Devise is found to be void, yet such Copies of Surrenders are good. Aliter where such Devisee makes new or voluntary Copies.

If the Lord of a Manor commits Felony or Murder, and Process of Outlawry is awarded against him; after the Exigent he granteth Copyhold Estates according to the Custom and then is Attainted; these Grants are good though by relation the Manor was forfeited from the time of the Exigent awarded. So if the Lord had been Attainted by Verdict or Confession.

If the Lord of a Manor acknowledgeth a Statute, and then granteth Lands by Copy,* 1.11 and after the Manor is delivered to the Co∣nusee in Extent, the Grant cannot by this be impeached.

Lease for years is made of a Manor, and to be void upon breach of a Condition; Con∣dition is broken, and Lessee before entry of the Lessor, grants Estates by Copy; these Grants shall never exclude the Lessor, for upon breach of the Condition the Lease is void. But in case of a Lease for Life, or Grant in Tayl, or Fee of the Manor on such Con∣dition, the granting Estates by Copy, before Entry of the Lessor, &c. may be good; for before his Title be executed by Entry, the Tenant, &c. hath a lawful Interest to grant by Copy, Coke Cop. p. 100, 101. Sect. 34. But if a Parson before Induction grant Lands by Copy, being parcel of a Manor which is Glebe Land, this admitting binds not, though he be afterwards Inducted, Ibid.

* 1.12If the Lord of a Manor taketh a Wife, and after that granteth Copy-hold Estates, accor∣ding to the Custom, and dyeth, and the Feme hath this Manor assigned to her in Dower, yet she cannot avoid these Copy-hold Estates, because the Copy-holders are in by a Title paramount to the Feme, viz. by Custom, Coke 8 Rep. 63. b. Swain's Case. But if the Lords Heir make such assignment of Dower, she may avoid them.

But in all these Cases before put, observe these three Rules.

1. These Grants must be according to the Custom of the Manor, and Rents and Ser∣vices customary must be reserved.

2. Though it is not material what Estate or Interest the Lord hath,* 1.13 yet it must be an Estate or Interest, and therefore Tenant Pur auer vie of a Manor is, Cesty que vie dyes, the Tenant continued possession of the Manor, and held Courts, and made voluntary Grants by Copy. Per Cur. This shall not bind the Lord, for he was but Tenant at sufferance, who had not any Interest, and so he was a Disseisor of the Manor, More, n. 369. Rouse and Artois.

3. As to the Lords Grant of the Copy-hold Estate in respect of his Estate in the Copy-hold, there the quantity of the Lords Estate is to be regarded; for if a Copy-hold∣er in Fee surrender to the use of the Lord for Life, the remainder over to a Stranger, or re∣serving the reversion to himself, if the Lord will grant this by Copy in Fee, whatsoever Estate the Lord hath in the Manor, yet having but an Estate for Life in the Copy-hold, no larger Estate shall pass than he himself hath, Coke Cop. 96.

What acts of the Lord in granting Copy-holds

are not confirmed by Custom, but only strengthned by the Power, Interest and Autho∣rity of the Lord, have no longer continuance than the Lords Estate continueth. Therefore if a Tenant for Life of a Manor, granteth a Licence to a Copy-holder to alien and dyeth, the Licence is destroyed and the power of Alie∣nation ceaseth.

Now as to the Quality of the Lords Estate, he must be Legitimus Dominus, he must have a lawful Estate in the Manor.

The Rule in Cokes 4 Rep. Clark and Pennyfea∣ther's Case, is universally true.* 1.14 If a Disseisor or Feoffee of a Disseisor or any other who had a tortious or defeazable Estate or Interest, subject to the Action or Entry of another, hold Court, and make any voluntary Grant upon Escheat or Forfeiture of a Copy-hold, such vo∣luntary Grant shall not bind him that hath right, when he hath re-continued the Manor by Action or Entry, for to this intent the said Custom shall be understood of a Lord, who hath a lawful Estate or Interest. A Grant up∣on an usurped Title shall never bind the right Owner, but that by Action or Entry he may avoid them; for the Law will not support a Custom which shall work or tend to the dis∣herison of the right owner. If the Heir of a Disseisor (who comes in by descent) Grants any Copy-hold Estate, it may be avoided by the Disseisee. So of a Feoffee of a Disseisor who comes in by Title.

If Tenant in Tayl of a Manor, discontinu∣eth the Tayl, and after the discontinuance granteth Copy-hold Estates, and dyeth; now the Discontinuee comes in under a just Title, and shall enjoy against all the World, during the Life of Tenant in Tayl, yet his Interest being deter∣mined

by the death of Tenant in Tayl,* 1.15 the continuance of the Possession is a Tort to the Heir, and upon his rcovery in a Formedon in the Descender, he shall avoid these Grants. So in cases of alienee of a Manor, whereof a man was seized in jure Uxoris, making Grants, may be avoided after his death by the Feme. So Lessee for years of Tenant for Life, of a Manor: So by a Tenant at sufferance, as Te∣nant pur auter vie, who continues in after the death of Cesty que vie. Vide supra. Rous and Ar∣tois Case, 4 Rep. 24. mesme Case.

* 1.16Lessee for years of a Manor grants a Copy-hold in Reversion, and before the Reversion happen, the Term is expired, the Grant is void. So if such Lessee surrenders his Term, and then before his Lease should have ended in point of Limitation, the Reversion falleth, yet the Grantee shall not have it.

* 1.17One that hath in present a Lawful Estate or Interest in a Manor, defeasable upon breach of Condition, Enters, he may make Grant by Copy before such Entry, and it shall be good: If Infant infeoff me of a Manor, though he may enter upon me at his pleasure, yet Grants made before his Entry, shall not be avoided by any subsequent Entry; vide supra.

* 1.18A Guardian in Socage may hold Courts in his own name, and may grant Copies, for he is Dominus pro tempore, and hath interest in the Land; but a Bayliff of a Manor hath no in∣terest, therefore he cannot make Grants and Copies, but the Guardian hath interest Provi∣sione Legis, but so as to be accountable for Fines, Owen, p. 115. Shopland and Radlen.

* 1.19The Lord of a Manor for Life, or a particu∣lar Tenant having interest in the Manor might grant Copies in Reversion, although they were

not executed in the Life of the Grantor, More, n. 292. Sir Peter Carew's Case 236. contra. So a Tenant in Dower of a Manor may grant Copy-hold, parcel of that which she hath as∣signed in Dower in Reversion (Habend, post mor∣tem A. P.) though it was doubted in the Earl of Arundel's Case; and the reason is the Custom. For it is said in Gay's Case, Cro. El. p. 661. There is a Custom alledged, That Dominus pro tempore, may demise for one, two or three Lives,* 1.20 in Possession or Reversion: But one who hath a particular Estate in a Manor, cannot grant a Copy-hold by parcel, or demise part, and retain the residue himself. If a Feme be in∣dowed of several Copy-hold Tenements, she cannot grant part of them by Copy in pos∣session, or Reversion, per Popham, ibid. Vide mesme Case 1 Rolls Abr. 499.

In some special Case, an Estate may be granted by Copy,* 1.21 by one that is not Domi∣nus pro tempore, nor that hath any thing in the Manor; as if the Lord of a Manor by his Will in writing deviseth, That his Executors shall grant the customary Tenements of the Manor, according to the Custom of the Manor, for the payment of his Debts, and dyeth; (the Ex∣ecutor, though he hath nothing in the Manor) may make Grants according to the Custom of the Manor, Co. Lit. 58. b.

At what place the Lord may Grant.

The Lord of a Copy-hold Manor may him∣self grant a Copy-hold at any place out of the Manor, 4 Rep. 26. b. Melwich's Case.

What amounts to a Grant.

The admittance of the Lord amounts to a Grant to him who had a Title; Aliter, if it is to him who was in by wrong, as by dis∣seisin, 4 Rep. 22. Winch Rep. 67. Hasset and Hanson.

Grant by the Copy-holder to the Lord.

Though a Copy-holder may not convey his Copy-hold to a Stranger, without Surrender and Admittance; yet he may grant his Estate out of Court to the Lord of the Manor, by Bargain and Sale; for the Custom is not be∣tween the Lord and his Tenant, but between themselves only, Winch Rep. p. 57. Hasset and Hanson.

A Copy-holders Release to the Lord is a good Release, 1 Keb. 808.

Notes

• * 1.1

  Order of di∣rection, not of instruction.
• * 1.2

  Note.
• * 1.3

  Grant by the King good, tho not recited to be Copy-hold.
• * 1.4

  Disability o•• person no hinderance to the Lord to grant.
• * 1.5

  Where Lord may augment the Rent, and where not.
• * 1.6

  The Lord Lu∣natick by his Steward may grant Copy-holds, but the Committees by their Stew∣ard cannot.
• * 1.7

  Severance from the Ma∣nor, what it operates.
• * 1.8

  The Estate of the Copy-holder who comes in by voluntary Grant, is not derived out of the Lord.
• * 1.9

  Voluntary Grants made by Feoffee of Manor on Con∣dition, good.
• * 1.10

  Voluntary Estates granted during the time of the Lords Interest shall be good, though the Lords Estate be avoided ab initio.
• * 1.11

  Grant after Stat. acknow∣ledged, and the Manor extended, yet shall be good.
• * 1.12

  Tenant in Dower shall not avoid such Grant.
• * 1.13

  Tenant at sufferance Grants, &c. shall not bind.
• * 1.14

  Grant by one that hath a tortious Title, not Good.
• * 1.15

  Grants made, by whom shall be avoided.
• * 1.16

  By Lessee of a Manor.
• * 1.17

  Infant.
• * 1.18

  Guardian in Socage may hold Courts and grant Co∣pies, not the Bayliff of a Manor.
• * 1.19

  Grants of Co∣pies in Rever∣sion.
• * 1.20

  Copy-hold not to be granted by parcels.
• * 1.21

  Where a Grant may be good by one who is not Do∣minus pro tem∣pore.