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. XVIII.

Of Fines. Fines certain. Ʋncertain. Ʋpon Descent and Purchase. Of Fine Excessive. What Customs are good as to payment of Fines. Of Fines as to Admittances to Reversions or Remainders. What refusal to pay a Fine shall be a Forfeiture or not. How the Lord shall recover his Fine.

Fines.

FInes due to the Lord upon Admittance are not to be paid till Admittance, either up∣on a Surrender or Descent; for Admittance is the cause of the Fine, and the Parties being Admitted, intitles the Lord to the Fine, 4 Rep. 28. Sand's Case and Bacon's Case. Though some∣times they are certain, and by some Customs uncertain, yet they ought to be reasonable.

Of Fines certain.

It was the Opinion of Richardson Chief Ju∣stice, There is scarce a Copy-holder in England but the Fines are uncertain; for (saith he) If the Rolls make it appear that at any time a greater and lesser sum was paid for a Fine, this makes the Fine uncertain; the ordinary course to search it is by Bill in Chancery, Lit. Rep. 252. It was but his private Opinion, for Fines are certain in great numbers of Manors: And I suppose he means as to Evidence; for in the Case of Allen and Abraham, 2 Bulst. 32. there is diversity between proof in case of Descents

and Purchase: The Case was this. Upon not Guilty in Ejectment, the matter upon the issue was about the Custom of a Copy-hold Ma∣nor, whether the Copy-holders upon their Ad∣mittances have used to pay Fines uncertain at the will of the Lord, or certain, i. e. the value of two years Rent? To prove the Fines un∣certain, the Plaintiff shewed divers Court Rolls of Admittances upon Surrenders, and that the Fines taken by the Lord were not certain, but sometimes one, sometimes another: Per Curiam, To prove a Custom for uncertainty of Fines, and not to be certain two years Rent, there ought to be shewed Court Rolls, and that in Cases of Descents; and that upon such Admit∣tances, they used to pay two years Rent, the proof ought to be in case of Descents; for in case of a Surrender or Purchase, the Lord may take what Fine he will: But such Fines are no proof to prove the taking uncertain Fines by the Custom, but the same ought to be in cases of Descents.

Of Fines reasonable.

But where the Fines are uncertain, yet the Lord cannot exact excessive Fines; and if the Copy-holder deny to pay it, it shall be deter∣mined by the Opinion of the Judges before whom the matter depends, Hubbard and Hamon's Case, cited 1 Brownl. 186.4. Rep. 27. mesme Case, Co. Lit. 59, 60. To this purpose is Denny and Lemon's Case, Hobart, p. 135.

Copy-holder brought Trespass against his Lord. Defendant pleads he had admitted the Copy-holder, and had assessed a Fine of twen∣ty Nobles, and had appointed him to pay it to his Bayliff, at his House within the Manor

three Months after, and alledged he had not paid it. The Plaintiff demurs, for that the Lord had not averred the Fine was reasonable. But Per Cur. the Lord is not bound to aver it, but it must come on the Copy-holders side, to shew the circumstances of the Case, to make it appear to the Court to be unreasona∣ble, and so to put it upon the Judgment of the Court; for the Fine in Law is arbitrary, and is due to the Lord of common Right, and it is only in point of excuse to the Te∣nant, if it be unreasonable, and the Court shall judge the unreasonableness of it. The Copy-holder if he be Defendant, may plead not Guilty, and then it shall come in Evidence whether the Fine were reasonable or not; and so is the Opinion of my Lord Coke, Comment upon Lit. Sect. 74. The reasonableness (saith he) shall be discussed by the Justices upon the true circumstances of the case appearing unto them, and if the Court where the Cause de∣pendeth, adjudgeth the Fine exacted unreaso∣nable, then is not the Copy-holder compella∣ble to pay it, for all excessiveness is abhorred in the Law.

It was argued in Wheeler and Honor's Case, That all Fines are reasonable, unless the con∣trary appear, 1 Keb. 154.

What Customs are good as to payment of Fines.

Of Fines due by the Copy-holder to the Lord, some be by change or alteration of the Lord, and some by change or alteration of the Te∣nant.

If the Fine be due by the alteration of the Lord, such alteration must be by act of God; for if the Lord do alledge a Custom within

his Manor, to have a Fine of every one of his Copy-holders, at the alteration or change of the Lord of the Manor, be it by alienation, demise, death, or otherwise, this Custom is against the Law, as to the change of the Lord by the act of the Party, for by that means the Copy-holders should be oppressed, by the multitudes of Fines by the Lords own act, but when the change groweth by the act of God, there the Custom is good, as by the death of the Lord, Co. Lit. 59. b.

But it is a good Custom that the Copy-holder had used to pay a Fine upon every alteration of the Tenant, either by the act of God, or by the act of the Party, Co. Lit. 59. b. Armstrong's Case.

The Fine is to be assessed by the Lord.

But in some places the Custom is, That the succeeding Copy-holder shall compound with the Lord for his Fine, and if he cannot com∣pound, then the Homage of the Manor shall assess the Fine, as was the Case of Ford and Hoskins, Cro. Jac. 368.

The Custom is not to pay a Fine till one come to Age; its a good Custom, 3 Keb. 90. agreed to in Champian and Atkinson's Case.

Fines as to Admittances to Reversions or Re∣mainders.

Copy-holder in Fee surrenders to the Use of another for Life; when Lessee dyes he shall not pay a Fine for his Admittance to the Re∣version, for this continues always in him, 2 Rep. 107. Margaret Podger's Case.

If Copy-holder in Fee surrender to the Use of one for Life, the Remainder to another for Life, the Remainder to another in Fee, there

is but one Fine due; for the particular Estate and the Remainders are but one Estate, 1 Rolls Abr. 505.

What refusal to pay a Fine shall be a Forfeiture or not.

If the Fine be uncertain, notice must be gi∣ven before there be a Forfeiture; aliter, if the Fine be certain; but yet Denny and Lemon's Case is good Law: Time and place must be ascertained, and refusal must be proved, 1 Keb. 154. 4 Rep. 27, 28.

The Lord assesseth a Fine of 12 l. to be paid by a Copy-holder, and appoints it to be paid at his Capital Messuage of the Manor, three Months after, and the Copy-holder pretending the Fine to be certain, viz. two years Quit-Rent, offered at the day of assessing the Fine, according to the Rent for two years, but at the day appointed for the payment thereof, cometh not thither to excuse his non-payment, nor makes any other refusal. Per Cur. this is in Law a forfeiture of his Copy-hold; but if he had come at the day assigned him for the payment, and had then tendred the two years Quit-Rent, being the Fine certain, (though not the Fine assessed,) it had been no forfeiture, Cro. Jac. p. 617. Gardner and Norman.

It is adjudged in the Case of Dalton and Hammond, More, n. 851. If the Fine be certain, the Tenant is to bring it with him to the Court, and pay it before Admittance; and if he be not ready to pay it, its a Forfeiture; aliter of the refusal to pay an excessive Fine.

Where a Copy-holder hath divers several Lands, severally holden by several Services by Copy, there the Lord may assess and demand

Fines severally, for every parcel which is so se∣verally held; for the Tenant may refuse to pay a Fine for the one, and so forfeit this, and yet pay the Fines for the others; and for every several Tenure the Lord ought to demand and assess a several Fine, as in Tavernor and Crom∣wel's Case, 4 Rep. 28. Hobart and Hamond's Case.

How the Lord recover his Fine.

Debt lyes for a Fine against the Copy-holder by the Lord, Siderfin, p. 58. agreed in the Case of Wheeler and Honor.

If Copy-holder in Fee dyes where the Fine is certain, and the Heir waves the possession and refuseth to be admitted, it seems the Lord shall not have an Action of Debt against him; and yet some hold he may not wave the pos∣session, because being Inheritance, Interest de∣scends, and for this reason praecipe quod reddat lyes against the Heir at Common Law before his Entry, Siderfin, p. 58. Wheeler and Honor.

Pled. Vide Presidents, infra.

Custome quod Dominus habeat rationabilem finem pro admissione, Co. Ent. 646. 13 Rep. 1.

Notes

• Evidence to prove uncer∣tainty of Fines.
• Fines upon Discent and Purchase.
• Excessive Fines how to be determi∣ned.
• Whether in pleading the reasonableness of the Fine must be aver∣red.
• Fines due by the alteration of the Lord.
• By the act of God.
• Due by the alteration of the Tenant.
• The Fine by whom to be assessed.
• Custom not to pay a Fine till full Age.
• Notice to be given if the Fines be un∣certain.
• Tendring the Fine certain though not the Fine as∣sess'd is no forfeiture.
• For every se∣veral Tenure, several Fines.
• Debt.
• Copy-holder, Heir waves the possession.