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.

Of Copy-hold Estates being Entayled.

AS to Copy-hold Lands being Entayled, whether there be any such Estate Tayl by any particular Custom to be allowed, and how such Entayls arose, it hath been vexatio quaestio. This Question hath been curiously de∣bated in our Books, and therefore I shall be the larger upon it.

It is clear, That the Statute de donis per se doth not create an Estate Tayl in a Copy-hold, 9 Rep. 105. the Case of Thornton and Lu∣cas, there cited; for the Statute de donis doth not extend to such base Estates at will.

The Question is, if the Statute may co-op∣perate with the Custom as to make an Estate Tayl. Coke in the Case of Warn and Sawyer, 1 Rolls Rep. 48. cited one Haslerick and Grays Case to be so adjudged; and in one Hills Case a Custom was pleaded that a Copy-hold might be granted to one and the Heirs of his Bo∣dy, with remainder over; but (saith he) we of the other side durst not hazard the matter

upon this, but we devised a Plea, That there was another Custom there, that if a Tenant in Tayl alien, this shall be a bar to the Re∣mainder; and upon issue that Custom was found; for it was agreed, Per totam Curiam, That if an Estate Tayl may be of a Copy-hold by Custom, that by a Custom it may be dock'd and destroyed.

It hath been often moved in our Books, When a Copy-holder in Fee surrenders to the Use of one in Tayl, there being no Custom to warrant such an Entayl, whether it be an Estate Tayl, by the Statute of De donis condi∣tionalibus; or a Fee-simple conditional at the Common Law. This point is well argued and setled in Rowden and Malster's Case, Cro. Car. p. 42. Yelverton held, That it was an Estate Tayl by the Equity and intent of the Statute de donis, but Hutton, Harvy and Croke, That it was not an Entayl, but a Fee-simple conditi∣onal at Common Law. 1. Because it would be prejudicial to Lords, for by this means the tenure would be altered, for the Donee in Tayl without a special reservation, ought to hold of the Donor, by the same Services that the Donor holdeth over, and he who comes in by Surrender and the Admittance of the Lord, to hold to him and the Heirs of his Bo∣dy, cannot hold of him who surrendred, but shall hold of the Lord, and is Tenant at will unto him, and shall do the Services unto him as Lord. 2. In respect of the baseness of their Estate, the Statute never intended to provide remedy for them nor their Alienations; for the words of the Statute are, Quod voluntas donatoris in Charta sua manifeste expressa de caetero observetur, which proveth that the intent of the makers of the Statute was, That no Heredita∣ment

should be intayled within this Statute, but such as either was or might be given by Charter or Deed, and other Reasons out of the words of the Statute, Carters Rep. 8. But Copy-holds are no such Hereditaments, and therefore not within the meaning of the Act. 3. If Copy-holds might be Entayled, then the perpetuity of such Estates might be maintain∣ed, for a Fine cannot be levied of Copy-hold Lands to bar the Entayl, nor can a Recove∣ry in value be intended of such an Estate where warranty cannot be annexed to it. Ceo reason come jeo pense ne vault rien pas. Car est agree per touts que poet estre dock't per recovery en curia del Baron, Vide apres. They held also, That neither Estate Tayl, nor Estate after possibility of issue extinct (which had a necessary dependance upon an Estate Tayl) can by any particular Custom be allowed. Cave Lecteur; for its agreed by all, That a Custom co-operating with the Statute may create an Estate Tayl. Observe Plowden in Manxel's Case is no Law, 2 Rolls Rep. 383. mesme Case

Co. Lit. 60. As there may be an Estate Tayl by Custom with the co-operation of the Sta∣tute of W. 2. Cap. 1. So may he have a Formedon in discender, i. e. a Writing in the nature of a Formedon in Descender, in the Lords Court: But as the Statute without a Custom extendeth not to Copy-holds, so a Custom without the Statute cannot create an Estate Tayl. Now it is not a sufficient proof, that Lands have been granted in Tayl; for albeit Lands have anciently and usually been granted by Copy to many men and to the Heirs of their Bodies, that may be a Fee-simple conditional, as it was at the Common Law; but if a Remain∣der hath been limited over such Estates and

enjoyed, or if the Issues in Tayl have avoid∣ed the alienation of the Ancestor, or if they have recovered the same in Writs of Formedon in the Discender; these, and such like, are proofs of an Estate Tayl: But if by Custom Copy-hold may be Entayled, the same by like Custom may be cut off, Plow. Com. 240.

This was the first Opinion, and by Clench and Gaudy agreed to in Grovener's Case, Pop∣ham 32. The other Opinion is, That an Estate is wrought out by the Equity of the Statute de donis, for otherwise it cannot be that there should be any Estate Tayl of Copy-hold Land; for by Usage it cannot be maintained, because that no Estate Tayl was known in Law before this Statute; and after this Statute it cannot be by Usage, because this is within the time of limitation, aftet which an Usage cannot make a Prescription, for a Custom can∣not be made after the Statute de donis. And it appeareth by Littleton and Brook, That a Plaint lyes of Copy-hold Land, in the nature of a Formedon in Discender at Common Law, and therefore the Statue helps them for their remedy for Entayled Lands, which is but custo∣mary by Equity; and if the Action shall be given by Equity for this Land, why shall not the Statute by Equity work to make it an Estate Tayl also of this nature of the Land? Popham's Rep. 33. Gravenor and Brooks; so Bullen and Grant's Case.

A Copy-holder Surrendred to the Use of J. for Life, the Remainder to H. and the Heirs of his Body: it was a Question if this Estate limitted to H. was an Estate Tayl, or a Fee-simple conditional; for if it were a Fee-simple conditional, then there cannot be an other Estate over, (but yet in Case of a De∣vise,

an Estate may depend upon a Fee-simple precedent, but not as a Will, but as an exe∣cutory Devise.) Per Wray, it is an Estate Tayl. Coke then said, They who would prove the Cu∣stom to Entayl Copy-hold Lands within a Ma∣nor, it is not sufficient to shew Copies of Grants to persons and the Heirs of their Bodies, but they ought to shew that Surrenders made by such persons have been avoided by such mat∣ter. But by Wray, that is not so, for customa∣ry Lands may be granted in Tayl, and yet no Surrenders have been made within time of memory, 1 Leon. p. 174. Bullen and Grant, Cro. El. 148. mesme Case. Heyden's Case in 3 Rep. 8. is clear, That neither Statute without the Custom, nor the Custom without the Statute, but both co-operating may create Tayl. And as for Custom, if the Custom be to grant Lands in Fee-simple, this without question may be granted to one and the Heirs of his Body by Copy▪ for omne majus includit minus.

My Lord Chief Justice Bridgman seems to argue this point very accutely and succinctly in Carters Rep. 22. Taylor and Shaws Case. First (says he) a Copy-hold may be Entayled; not Entayled, as within the Statute of W. 2. nor by vertue of any Construction of the Statute W. 2. but there may be such an Estate before W. 2. of a Copy-hold, which is a kind of base Estate, and which might be grantable to one and the Heirs of his Body, according to the Custom, and if he dyed without Issue, it might be aliened again; and that a Copy-holder could not bar his Issue, unless by a Recovery; such an Estate might be by Custom. I hold (saith he) That the Evidence may fall out to be such that we may take it for granted, that Lands granted by Copy to one and the Heirs of his

Body, the Remainder over may be a good Remain∣der, and the Reversion may continue in the Copy-holder, the Donor may have a good Reversion, and all this without the help of W. 2. That which confirms me is the constant practice of most Co∣pyholds, to have Estates over. As for the reason of it, if we shall give in Evidence (for the pur∣pose) a Surrender in H. 7ths time, wherein Lands are limited to one and the Heirs of his Body, the Remainder over; this is an Evi∣dence that it was so in H. 7ths time, and we have reason to think so it was past time of memory of Man. And as your Evidence is for Custom, so may your Case be to make an immemorial Custom. Then all the Question is, whether it will bear it or not? In this Case of a Copy-hold being an Estate at will, you may have it at will, according to the na∣ture of the Custom; it is not against the Ana∣logy and Reason of the Law, and it may bear it; the Evidence may be such. If in H. 7th or E. the 4ths time it appears so, it is a good warrant for matter of Evidence for a Jury to find, That there were such Copy-hold Estates with limitation over. Now before the Statute of W. 2. it had been a good Custom to grant Copy-hold to one and the Heirs of his Body, the Remainder over; or to grant the Land by the name of a Reversion; for here is no alteration of Common Law Estates: The reasonableness of this Custom appears by the Statute of W. 2. That Act doth not create the Estate, neither a Remainder nor a Reversion; but the Act prohibiting Alienations, Quo mi∣nus ad exitum illorum, quibus tenementum sic fuerit datum remaneat post obitum illorum vel ad dona∣torem (si exitus ejus deficiat) revertatur, by ope∣ration of Law, it comes to a Remainder or

Reversion; if by Custom such Estates may re∣main or revert, so may Copy-holds by Custom, because they are Tenants at will. Now as by that construction W. 2. did make a Remainder or a Reversion, so the Custom of prohibiting Alienations by Copy, may make Reversions or Remainders of Copy-hold Estates.

If the Reader hath a mind to see other Cases about the Entayling of Copy-holds (though they are all reduced to what is be∣fore cited) he may peruse 2 Brownl. 42, 76. Keymer and Poel 121. Hill and Upchurch, 1 Rolls Rep. 48. Warn and Sawyer. Cro. El. 717. Erish and Rives, &c. 2 Brownl. 121.

The Law about Entayling of Copy-holds is setled and agreed by the Judges, B. R. 17 Car. 2. Newton and Shaftoe's Case, That it is by Custom and not by the Statute, so agreed M. 18. Car. Pilkington and Stanhop's Case, queux vide apres.

Notes

• Copy-hold cannot be En∣tayled within the Statute de donis.
• Proofs of an Estate Tayl.