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.

The Copy-holders Actions and Remedies against Stran∣gers, and where.

A man grants all the Coals and Coal-Mines within a Manor (and parcel was Copy-hold for

Life) to J. S.* 1.1 Lessee enters into the Copy-hold and digs a new Pit in the Copy-hold Land, during the Life of the Copy-holder, and takes the Coals and converts them, &c. And Lessee of the Coal-Mine brought Trover against the Lessor; Per Curiam, he may do it, for when the Lessor or Lessee of the Coals, or a Stran∣ger enters and digs the Coals out of the Pits, these belong to the Lessee, and if any one else take the Coals, he shall have Trover, Jones Rep. 243. Player and Roberts.

Lessee of a Copy-holder for a year,* 1.2 shall main∣tain an Ejectione Firmae, for in as much as his Term is warranted by Law, by force of the general Custom of the Realm, it is but rea∣son if he be ejected, that he shall have Ejecti∣one Firmae; and it is a speedy course for a Co∣py-holder to have the possession of the Land against a Stranger, 4 Rep. 26.

As to the Declaration in Ejectment, Vide Tit. Declaration.

In Cro. El. p. 224. It is said to be adjudged,* 1.3 Per tot. Cur. That an Ejectione Firmae doth not lye of a Copy-hold Estate: But it was agreed, That an Ejectione Firmae doth lye of a Lease made by a Copy-holder, but not of a Demise made by the Lord of a Copy-hold, by Copy of Court Roll, Cole and Wall's Case.

A Copy-holder had Licence from his Lord to let his Land for 21 years; he lets it to the Plaintiff for three years, who entred, and be∣ing Ejected, brought Ejectione Firmae.* 1.4 Per Cur. he may maintain this Action at Common Law, for it is a good Lease between the Pa••••••s, and against all others but the Lord; and as this Case is, it is good against him, because it is done by his Licence, and it is a good Lease

and well warranted by the Licence, Cro. El. 535. Goodwin and Longhurst.

A Copy-holder made a Lease for one year excepting one day, which was warranted by the Custom. Lessee being ousted by a Stranger, brings Ejectione Firmae, it well lyes; and if there were not any Custom, yet it shall be good against all but him who had the Inheritance and Freehold. So if a Lessee for Will at the Common Law had made a Lease for years; for the Tenant at Will is only a Disseisor, and the Lease is good against him, Cro. Trin. 41 El. p. 676. Spark's Case. So 717. Erish's Case, Moor, n. 709. Stoner and Gibson.

* 1.5If customary Lands do descend to the young∣er Son by Custom, and he enters and leaseth to another, who takes the Profits, and after is Ejected; he shall have an Ejectione Firmae, with∣out any Admittance of his Lessor, or Present∣ment that he is Heir, 1 Leon. p. 100. Rumny and Eves, n. 128.

If a Copy-holder had Common by Prescrip∣tion in the Waste of the Lord, and the Lord stores the Waste with Conies, every Copy-holder may have Action on the Case against the Lord, averring, That by this the Common is impaired, 1 Rolls Abr. 106. Clayton and Sir Jerom Horsey.

* 1.6Copy-holder prescribes to have Common in the Waste of the Lord, and brings Trespass on the Case against a Stranger, for his Beasts de∣pasturing on the Common there. The Questi∣on was, whether this Action lyes? for 15 H. 7.12. its agreed, a Commoner cannot maintain an Action of Trespass, nor no other, but the Owner of the Soyl, 12 H. 8.2. And the Com∣moner hath no right till he hath taken it by the mouth of his Beasts, and the Damage is

to the Tenant of the Land, and then every other Commoner may have Action of Tres∣pass, and so the Stranger shall be infinitely punishable. Per Coke, If a Commoner may distrain Damage feasant (doing Damage) which proves lie hath wrong, then by the same rea∣son, if the Beasts are gone before his coming, he may have Action on the Case; otherwise, one that hath many Beasts may destroy the Common in a night: And its not like a Nu∣sance, for that is Publick, and may be pu∣nished in a Leet: But the other is private to the Commoners, and cannot be punished in another course; he cited one Whitehand's Case. Many Copy-holders prescribe to have the Lop∣pings and Toppings of Pollards; the Lord cuts them; every Copy-holder may have his Action, and also Hill. 5. Jac. Rot. 1427. Geo. England's Case, and Warburton of the same Opinion, 2 Brownl. p. 146. Crogate and Morris.

If a Copy-holder by the Custom of a Manor had used to have Common for all his Beasts,* 1.7 Levant and Couchant upon his customary Te∣nements, in a certain parcel of the Manor, and a Stranger digs Turffs there, and takes them away, by which his Common, is impai∣red, Action on the Case lyes, declaring, That the Defendant digged so many Turffs there, and then with his Horses and Carts, Herbam tunc & ibid crescen' predict. ambulando & conculcando,* 1.8 from the place aforesaid, minus rite ceperit & abcarriavit, per quod quer' communiam suam predict. pro averiis suis, &c. in tam amplo & beneficiali modo prout & antea habuit, &c. habere non potuit. This is a good Declaration, though the Com∣moner cannot have any Damage for the ta∣king and carrying away the Turffs; yet the coming on the Land with Horse and Carts,

is a prejudice to the Common, and the per quod, the Common is impaired, is the cause of Action, and the carrying away a means to impair it, 1 Rolls Abr. 89. Terry and Goodier, and good, tho' Damages were entire.

Action shall be brought in a Copy-holder Lunaticks name; for though the custody of the Land was granted to one by the Lord, yet no Interest was gained by this commitment, and the Lord hath not power over the Lunaticks Lands, without a Custom, Hobart, p. 215, 216. Cox and Darson.

* 1.9Copy-holder of Under-Wood without the Soil, shall have Trespass, Quare clausum fregit, Moor, n. 480.

* 1.10Account lies not for an Heir Copy-holder for the Profits of his Copy-hold Lands, taken du∣ring his non-Age, where the Defendant hath not entred and taken the Profits, as Prochein Amy, but claims by Custom and Grant of the Lord, to the Use of the Assignee (which Custom is good,) 1 Leon. p. 226. n. 356. Ano∣nymus.

* 1.11Writ of faux Judgment lies not for a Copy-holder, Vide supra.

* 1.12Writ of Right Close, lies not for a Copy-holder, 4 Rep. 21.

* 1.13Lessee for years of a Manor, distrains a Co∣py-holder for Rent; he Replevins, Lessee Avows, Per Curiam, Avowry may be made for the Rent of a Copy-holder in the Kings-Bench; and there is difference between an Ejectione Firmae and this Case. For the Ejectione Firmae is brought for the Copy-hold it self: But this Avowry is for Rent due to the Lord, which is a duty at the Common Law, and therefore an Avowry may well be for it, Cro. El. p. 524. Laughter and Humphry.

A Copy-holder in Fee, by Licence, made a Lease for 21 years by Indenture, rendring Rent,* 1.14 wherein the Lessee Covenants for himself, his Executors and Assigns, That he will erect a, &c. The Lessor surrendred to the Use of the Plain∣tiff and his Heirs, who was admitted according∣ly; and the Plaintiff, as Assignee, brings his Action of Covenant. Whether the Assignee may maintain this Action by the Common Law, or by the Statute 32 H. 8. Cap. 34. was the Question? for the Defendant demurred upon the Declaration; it was adjourned in Cro. Car. 24. Plat and Plummer. But it seems by 1 Keb. 356. Baker and Berisford's Case, That the Assignee is not within this Statute to have a Covenant.

Action of Debt doth not lye for Arrearages of Copy Rents; for the Stat. of 32 H. 8.* 1.15 does not extend to them, but to Rents out of Free Land, Yelv. p. 135. Appleton and Doily. And so Executors shall not have Debt for Arreages of such Rents due in the Life-time of the Te∣stator.

The Lord of a Manor is, and Fines;* 1.16 for Ad∣mittances and Copy-hold Rents are Arrear, and then he sells the Manor; he is without Remedy, both in Law and Equity: He hath deprived himself of the Remedy by his own act, viz. the vendition, 1 Rolls Abr. 374. Serjeant Hitcham and Finch.

Copy-holder for Life becomes Lunatick. A.* 1.17 sows the Land. The Lord grants the custody of the Lunatick to B. A. takes the Corn to the Use of the Lunatick. B. Brought Tro∣ver in his own name; its ill brought. It ought to be brought in the Lunaticks name, and not in the name of the Committee, Noy, p. 27. Cox and Dawson.

* 1.18Custom is, when a Copy-holder dies seized of Copy-hold Lands or Rent, That his Wife shall have the one moiety, and his Issues the other moiety. A. B. so seized, takes Mary to Wife, and they have Issue John. A. B. dies, so that Mary is seized of the moiety for her Life, and John of the other moiety in Fee, and of the first moiety as his Reversion. Mary and John her Son make a Lease to J. B. for twenty one years, rendring fifty pounds Rent to Mary, and fifty pounds to John; and after the death of Mary, one hundred pounds to John. John marries Margaret, they have Issue three Sons. John dies, so that a fourth part comes to his Wife, and the other fourth part to his three Sons. Rent is behind. Mar∣garet brought Debt on Covenant for the Rent, Per Curiam, it was well brought by her sole,* 1.19 without joyning Mary with her. Te∣nant in Commonn shall joyn in Action so long as the privity of Contract remains, but when the privity is determined, as it is here, they may sever, and such Contract shall en∣sue the nature of the Land; and also there is a vesting by Custom, and express several Reservations, 2 Siderfin, p. 9. Baker and Beris∣ford.

Notes

• * 1.1

  Where Copy-holder shall have Trover for Coals, dig∣ged out of his Copy-hold Land.
• * 1.2

  Ejectment.
• * 1.3

  Ejectment.
• * 1.4

  Ejectment by Lessee upon a Lease, not warranted good against a Stranger.
• * 1.5

  Ejectment by the Heir, with∣out Admit∣tance to pre∣sentment.
• * 1.6

  Trespass for Beasts depa∣sturing his Common by every Com∣moner.
• * 1.7

  Action on the Case for dig∣ging Turffs on the Common.
• * 1.8

  Declaration.
• * 1.9

  Trespass, Qua∣re clausum fre∣git.
• * 1.10

  Account for Profits.
• * 1.11

  Faux Judg∣ment.
• * 1.12

  Writ of Right Close.
• * 1.13

  Avowry for Rent by Les∣see of a Copy-holder.
• * 1.14

  Covenant by Assignee of a Reversion.
• * 1.15

  Action of Debt for Rent.
• * 1.16

  No Remedy for Fines, Rents, &c. after venditi∣on.
• * 1.17

  Action of Trover to be brought in the Lunaticks name, he being a Copy-holder.
• * 1.18

  Covenant by Rent.
• * 1.19

  Joynder in Action.