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. XXVI. (Book 26)

What Statutes extend to Copy-hold Lands, and within what Statutes Copy-hold Lands shall be contained by construction of Law without express words, and what not.

HOW the Statute De donis extends to Co∣py-hold Lands or not, Vide sub. Tit.* 1.1 Of Copy-holds Intayled.

It is expresly provided,* 1.2 That a Copy-holder having Copy-hold Land to the yearly value of 26 s. 6 d. above all Charges, may be im∣pannelled upon a Jury, as well as he that hath 20 s. Free-hold. But now this is altered by latter Statutes.

Copy-hold Lands are within the words and intention of the Statute, 4 Hen. 7.24.* 1.3 of Fines with Proclamations and five years non-claim, and shall be barred; as a Lessee for years and his Lessor shall be barred; so the Copy-holder and his Lord:* 1.4 But if a Copy-holder by assent and covin to bar the Lord of his Inheritance, makes a Feoffment and le∣vies a Fine with Proclamations, such Fine shall not bar the Lord, no more than it shall the Lessor if it be levied by Lessee, for the reason in Fermor's Case, 3 Rep. f. 77.

If a Copy-holder for Life, or in Fee, be ousted and the Lord be disseised,* 1.5 and the Disseisor levy a Fine with Proclamations, and five years pass, as well the Lord as the Copy-holder is barred, and the Lord shall not in such case have five years after the death of Tenant pur vie; for the Lord may presently have remedy

by Action (viz. Assise, &c.) and recover the Land; and the Lord may without consent or commandment precedent, or assent subsequent, enter in the name of the Tenant by Copy, and his own Right, to save their particular Interests as his own Freehold and Inheritance; for the Lord is no Stranger, but is privy in Estate: But not if a Stranger who hath no Right enter, &c. 9 Rep. 105, 106. Margaret Podgers Case.

The Case was, A Copy-hold is granted to A. B. and C. for their Lives, suecessive; the Lord by Deed Inrolled, bargains the Copy-hold to A. in Fee, and levies a Fine to him with Proclamations. A. dies seized, this dis∣cends to M. his Son and Heir, who levies a Fine to Uses;* 1.6 after ten years B. enters; the Fine is no bar, for no Fine or Warranty shall bar any Estate in Possession, Reversion, or Re∣mainder, which is not devested and put to a Right, and the Lords Bargain and Sale doth not devest the Estates of them in Remainder; for the Lord doth that which he may do by Law, and A. was in by force of the Statute of 27 H. 8. And an Act of Parliament shall do no wrong.

Bicknal and Tucker's Case, Trin. 9 Jac. Rot. 3648. was, Whether a Fine with five years will bind the Copy-holder in Remainder? There was a Copy-hold granted to three for Lives, to have and to hold successively; the first accepts a Bargain and Sale of the Free∣hold,* 1.7 by the Lord of the Manor, and then he levied a Fine, with Proclamations, and five years pass, Whether he in Remainder is bar∣red or not? Those whose Estates are turned to Rights, either present or future, are meant by the Statute to be barred. If a Copy-holder

for years be put out of Possession, and a Fine levied, and no entry by him, he is barred by the Statute: By the Bargain and Sale he in Remainder is not put out of Possession. If a man makes a Lease to begin at Easter next, and before Easter a Fine is levied, and five years pass, this Fine will not bar, because at the levying of the Fine, he could not enter, for then his his Right was future: If the Lease had been in possession, and the Lessee had ne∣ver entred, he had been barred, 1 Brownl. 181. This Fine shall not be a bar to the Copy-hold Estate in Remainder for Life, for it is not turned to a right; the Estate is given by Custom, and is to have his beginning after the death of the first Tenant, and if the first Tenant commit Forfeiture, he in Remainder cannot enter; and by Coke, notwithstanding the acceptance of the Bargain and Sale, the first Copy-hold Estate for Life remains in esse, 2 Br. 153. mesme Case.

Custom that the Lord shall seize Copy-hold, after three Proclamations, and non-Claim by the Heir, shall not bind the Heir that is be∣yond the Sea, 8 Rep. Sir Richard Lechford's Case.

Statute 37 H. 8. Of Dissolutions,* 1.8 extends not to Copy-holds. A Copy-holders Estate is not within the Statute of Monasteries and Chan∣teries, to be avoided by any of the Statutes. So by Statute 1 Ed. 6. Cap. 14. it is expresly provided, That upon the dissolution of Abbies and Monasteries, Copy-holds should continue as they did before the Statutes, and should fall into the Kings Hands. A Copy-holder dissol∣ved by the Statute of Edw. 6. did between the Statute of 37 H. 8. and 1 Edw. 6. grant a Copy-hold Estate in Reversion; but the Sta∣tute

37 H. 8. extends not to them, 3 Bulstr. p. 15. Long and Baker, Vide 1 Leon. p. 4. mesme Case.

* 1.9Of making Leases of Copy-hold Lands, be∣longing to Religious Houses, for years, after Leases for Lives or Years in being, is within that Statute, 8 Rep. 7. Heydon's Case.

* 1.10Copy-hold is not within the Statute of En∣tries for Conditions broken. Surrendree of Re∣version shall not enter for a Condition broken, its not within the Statute of Conditions, Hob. p. 177, 178. Swinnerton and Miller.

Copy-hold is not within the Statute of 32 H 8. Entries for Conditions. Copy-holder by Licence makes a Lease for 60 Acres, rendring Rent, and condition of Re-entry: Copy-hold∣er Surrenders to J. S. and he demands Rent, and enters for Non-payment. J. S. is not such an Assignee as the Statute intends, and Custom doth not trench to such collateral things; such Assignee being in only by Custom, is not pri∣vy to the Lease made by the first Copy-holder, nor in by him, but he may plead his Estate immediately under the Lord, Yel. 222. Brasier's Case. But Assignee of a Copy-hold is within the Statute to have Action of Covenant, 1 Keb. 356.* 1.11 Baker's Case. Quaere, if of Debt, Cro. Car. 21. Platt and Plummer.

Executors brought Action for Arrears of Rent of Copy-hold, of which Manor the Te∣stator died seized, Per Cur. Action doth not lye for Arrears of Copy-hold Rents, but on∣ly of Rents of Free Land, and Statute 32 H. 8. extends not to them, Yelv. 135. Appleton and Doiley, 1 Brownl. 102.

Tenant in Tayl of a Manor, wherein Co∣py-holds are demisable for Life, &c. for a certain Rent. Copy-holder for Life dyes, and

the Lord demiseth it for 21 years,* 1.12 rendring the ancient Rent, &c. its good within the Sta∣tute 38 H. 8. for its not any prejudice to the Issue as to the Rent, Noy, p. 106. The Lord Norris's Case, Vide infra hoc capite.

If the Lord of a Copy-holder for Life, de∣misable by 10 s. Rent, leaseth it by Inden∣ture to the Copy-holder and two others, for their Lives, rendring 10 s. Rent, by which it is within the Statute of 32 H. 8. and is not material though the Harriot be lost, because it is meerly casual, Noy p. 110. Banks and Brown, Vide Montjoy's Case, 5 Rep. Et supra.

Copy-hold is within the Statute 32 H. 8. 9.* 1.13 Of Maintenance; for the Word is, Any Right or Title, 4 Rep. 26. a. Vide infra hoc capite.

Copy-hold is grantable for three Lives.* 1.14 Dean and Chapter of London, grant this to H. G. for the Lives of J. R. and M. reserving the ancient Rent, but no Harriot; the Rent was payable at four Quarters, and by this Lease its payable half yearly; yet this is not void by the Statute 13 El. Cap. 10. For the Occupant shall be punish'd for Waste, and the Harriot is not annual, nor depends on the Rent; and as to the Rent its the accustomed yearly Rent, but in Mountjoy's 5 Rep. (yearly) was wanting, 6 Rep. 37 Dean and Chapter of Worcesters Case.

Copy-holds are within all the Statutes of Bankrupts by express words, vide supra.* 1.15

A Copy-hold is not within the Statute of Li∣mitations.

Debt for the Fine of a Copy-holder is not within the Statute of Limitations, 2 Keb. 536.* 1.16 Hodsden and Harris. Vide.

It is laid down for a Rule in Rowden and Mal∣ster's Case, Cro. Car. 44. When an Act of Par∣liament altereth the Service, Custom, Tenure,

and Interest of the Land,* 1.17 or other thing in prejudice of the Lord or Tenant, there the general words of such an Act shall not extend to Copy-holds. Therefore,

* 1.18Statute W. 2. Cap. 20. which gives Elegit, ex∣tends not to Copy-hold Lands, because it would be prejudicial to the Lord, and a breach of the Custom, that any stranger should have In∣terest there, without admittance and allowance of the Lord.

* 1.19Statute 27 H. 8.10. of Uses, toucheth not Copy-holds, because the transmutation of Pos∣session, by the sole Operation of the Statute, without allowance of the Lord, would be to the Lords prejudice.

* 1.20The Statute 31 H. 8. Cap. 1. and 32 H. 8. Cap. 2. whereby Joynt-tenants and Tenants in common are compellable to make Prohibition extend not to Copy-holds. And the

* 1.21Statute 32 H. 8. Cap. 28. Which confirms Leases for 21 years, made by Tenants in Tayl, or by the Husband and Wife of the Wives Land, touch not Copy-holds; for that Statute warrants only such Leases of Lands which are grantable by Deed; such are not Copy-hold Lands, though by the Lords Licence they may be granted by Indenture, yet in their own na∣ture they are only demisable by Copy.

So Statute 32 H. 8. Cap. 34. And for the same reason which gives an Entry to the Grantee of a Reversion, upon the breach of a condition, by the particular Tenant, toucheth not Copy-hold.

In all Statutes made for the good of the Common-wealth, and wherein no prejudice accrues to the Lord or Tenants, by reason of the alteration of any Interest, Service, Tenure, or Custom of the Manor, there the general

words of such acts of Parliament do extend to Copy-hold Lands, as

Statute of Merton, Cap. 1.* 1.22 which gives Da∣mages to a Feme Covert upon a Recovery in a Writ of Dower, where the Baron dyed seized, extends to Copy-holds. And

Stat. W. 2. C. 3.* 1.23 And the three several branches of that Stat. the one which gives a cui in vita, upon a discontinuance made by the Husband.

The second which gives the Receit to the Wife upon her Husbands refusal to defend the Wifes Title.* 1.24

And the third which gives a Quod ei deforceat to particular Tenants, extends to Copy-holds,* 1.25 And

The Statute 32 H. 8. Cap. 9.* 1.26 against Cham∣perty and litigious Titles; which gives an Entry in lieu of a Cui in vita, extendeth to Copy-holds, Cro. Car. 43. Rowden and Malster; Vide Plowd. f. 371.

The Statute W. 2. which gives Elegits,* 1.27 extends not to Copy-holds, for that would be a pre∣judice, and the Common Law would break the Custom, Savil's Reports, Heydon's Case, vide supra.

Copy-hold Lands are liable to the Statutes of Recusants,* 1.28 and the King shall have the profits of the Lands only, but no Estate; and such Statute doth not make a Tenant to the Lord, and though the King hath the Copy-hold Land, yet the Lord shall have the Rent during the possession of the King, 1 Leon. p. 98. Sali∣ard and Everat's Case. Owen, p. 37. mesme Case.

Copy-hold Lands are not within the words of that Statute; but by Anderson,* 1.29 the Equity of that Act doth extend to Copy-holds, 1 Leon. 83. in Skipwith's Case.

* 1.30Copy-hold is not within that Stat. 1 Bulstr. 50. Brock's Case.

* 1.31Copy-hold Lands are assured to the Wife for her Joynture, and she aliens them, its no For∣feiture within Statute 11 H. 8. Cap. 10.

Copy-hold Land is not within that Statute, 2 Siderfin, p. 41, 73. Harrington and Smith.

Notes

• * 1.1

  West. 2. c. De donis.
• * 1.2

  1 R. 3. c. 4. Of Juries.
• * 1.3

  4 H. 7. c. ••4. Of Fines and non-Claim.
• * 1.4

  Covin.
• * 1.5

  Disseisin.
• * 1.6

  Fine, when it shall bar or not.
• * 1.7

  Whether a Fine and non-Claim shall bar a Copy-holder in Re∣mainder.
• * 1.8

  37 H. 8. Of Monaste∣ries.
• * 1.9

  31 H. 8. Eccles. Leases.
• * 1.10

  32 H. 8. Of Conditions, Entries, As∣signee.
• * 1.11

  Arrears of Rent.
• * 1.12

  38 H. 8. Rents of Leases in Tayl.
• * 1.13

  32 H. 8. Cap. 9. Of mainte∣nance.
• * 1.14

  13 El. Cap. 10.
• * 1.15

  Statutes of Bankrupts. 1 El. and Jac.
• * 1.16

  Statute of Li∣mitations.
• * 1.17

  Rules when Acts of Par∣liament ex∣tend to Copy-holds or not.
• * 1.18

  W. 2. Cap. 20. Elegit.
• * 1.19

  27 H. 8.10. Stat. of Uses.
• * 1.20

  31 H. 8. and 32 H. 8. Of Partition.
• * 1.21

  32 H. 8. Cap. 28. Leases by Tenant in Tayl, or by Husband of the Wives Land.
• * 1.22

  Merton, Cap. 1. Of Damages sur Recovery en Dower.
• * 1.23

  W. 2. Cap. 3. Cui in vita.
• * 1.24

  Resceit.
• * 1.25

  Quod ei defor∣ceat.
• * 1.26

  32 H. 8. cap. 9. Champerty.
• * 1.27

  Elegit.
• * 1.28

  13 El. cap. 4. Of Recusants.
• * 1.29

  34 H. 8.5. Of Wills.
• * 1.30

  31 Eliz. cap. 7. Cottages.
• * 1.31

  11 H. 7. cap. 10. Joyntresses.