A supplement by way of additions to and amplifications of the foregoing treatise, concerning copy-hold and customary estates wherein the grounds laid down in the said treatise are made good and confirmed by several resolutions and judgements given in the courts of common laws of England in divers cases.

SECT. XXI.

What Statutes and Acts of Parliament do extend to Copy-holds and Copy-hold-e∣states, what not.

SOme things concerning this Division being spoken of in the former part of this Treatise, and some particular Sta∣tutes there being mentioned within which Copy-holds are included, and in what not, I shall refer the Reader thereunto; adding onely a few Cases upon some par∣ticular Acts not therein mentioned, with the Authorities and Resolutions of the Ju∣stices therein. And as concerning with∣in what Statutes Copy-holds are, I shall take and relie upon the general Rule which is put in Sir Edward Coke's 3. part of his Reports, in Heydon's Case,

viz. When a Statute or Act of Parlia∣ment doth alter the Service, Tenure, In∣terest of the Estate, or other thing in prejudice of the Lord or of the Custome of the Manor, or in prejudice of the Tenant, there the general words of such Statute or Act of Parliament do not extend to Copy-holds or Copy-hold-estates: But when the Statute or Act of Parliament is generally made for the good of the Commonweal, and no prejudice can come thereby, by alteration of any Service, Tenure, or Interest, or Custome used within the Manor, there Copy-holds and Copy-hold-estates are within the pur∣view of such Statutes or Acts.

Proofs.

It was Resolved by all the Justices, That no Tenure shall pay for a reasonable Aid to make the eldest Son Knight, or to marry the eldest Daughter, but Te∣nure by Knight's-Service or Tenure in Socage. Now Littleton saith, that all Te∣nures are either Knight's-Service or So∣cage: And the Statute of Westm. 1. cap. 36. of reasonable Aid extends onely to such Tenures. The Question then is,

Whether a Copy-hold-Tenure be with∣in that Statute. I shall not determine the Question, for that I do not find it moved in any Book of the Common Law: But although I humbly conceive Copy-holds be within the general words of Mr. Littleton, (all Tenures in So∣cage;) yet that the said Statute of Westm. 1. cap. 36. doth not extend to Copy-holds. Quere of it.

The Statute of Westm. 2. de Donis con∣ditionalibus I conceive doth not extend to Copy-holds within the general words thereof. The words of the Statute are of Gifts per Chartam datis; and Copy-holds do not pass by Deeds, but by Surren∣ders. But yet it is conceived, that al∣though they be not within the general Words of the Statute, yet they are within the Equity of the said Statute, if there be a Custome to warrant such Estates.

The Case was, A Copy-holder in Fee surrendred his Copy-hold-lands to the Life of his Will; and having a Daugh∣ter born, and his Wife with Child, he devised part of his said Lands to his Son or Daughter which his Wife went with, & Haeredibus suis legitimè procreatis; and the residue thereof he devised to his

Daughter born, to have to her and the fruit of her body. One Point in this Case was, What Estate the Daughter born had in the said Copy-hold-lands, if in Tail or not. It was said, It was a Fee-tail in the Daughter born. But it was much doubted if it was an Estate within the said Statute de Donis, &c. But in that Case it was agreed, That Co∣py-hold might be entailed by Custome co-operating with the said Statute, and if not within the words, yet within the Equi∣ty of the said Statute.

The Statute of Praerogativa Regis, cap. 9 and 10. gives the Lands of Idiots na∣tural to the King, he finding them con∣venient Maintenance out of the Profits thereof: But if the Idiot hath Copy-hold-lands discended unto him, the King shall not have the Wardship of those Lands therewith, out of the Profits there∣of to maintain the Idiot, because the same would be prejudicial to the Lord of the Manor, of whom the Lands are holden by Copy. But yet all Alienations made by an Idiot of his Copy-hold-lands, af∣ter Office found, shall be avoided by the King.

Copy-hold-lands are not within the Statute of Westm. 2. cap. 20. of Exe∣cutions.

For if a Judgment be had in a Court of Record against a Copy-holder for Debt and Dammages, although the Plain∣tiff may have Execution by Fieri facias against his Goods, or a Capias against his Body; yet he cannot have Execution of the moyetie of his Copy-hold-lands by Elegit, for that Copy-hold-lands are not within that Statute. And so it is, if a Statute-Merchant or Staple be acknow∣ledged by a Copy-holder for the pay∣ment of Money at a day certain, which is not payed, his Copy-hold-lands are not extendable for the same. And the rea∣son of these Cases is, because no person can come to Copy-holds but by Admit∣tance of the Lord; and the Lord should thereby lose his Fine which is due upon Admittance, if the party might have the Lands upon Extent delivered unto him.

If Tenant by the Curtesie, or Lessee for years, be of a Manor, and Copy-holds were in his hands by Forfeiture or

other determination, and he bindeth him∣self in a Statute, and afterwards he de∣viseth the Copy-hold again; the Co∣py-hold shall be liable to the Statute. But if a Copy-holder bindeth himself in a Statute-Merchant or Staple, his Co∣py-hold-lands shall not be extended upon the said Statute, because therein he hath but an Estate at will.

Copy-hold-lands are not within the Sta∣tute of 31 H. 8. cap. 13. of Monasteries.

The Guardians of the Colledge of Otlery, Lords of a Manor, granted Lands for 3 Lives by Copy, according to the Custome of the Manor; afterwards in 30 H. 8. they leased the Lands to J S, rendring the accustomed Rent, and af∣terwards surrendred their Colledge to King Hen. 8. And if the Lease, being within one year of the Surrender, was with∣in the Statute or not, was the Question. The Case is not adjudg'd, but a Quere made of it. But in that Case it was adjudged, That if there be Lord of a Copy-holder for life, and the Lord grants a Rent-charge out of his Manor, of which the Copy-hold is parcell, and then the Copy-hol∣der

doth surrender to the Use of another, who is admitted; he shall not hold the Lands charged: but if he dieth, so as his Estate is determined, and the Lord grants the Land to another de novo to hold by Copy, the new Tenant shall hold the Land charged.

Copy-hold-lands not within the Statute of 32 H. 8. of Rents.

The Lord of a Manor (of which there were Copy-holds) granted a Rent-charge for life, and afterwards made a Feoffment of the Manor to J S and his Heirs, who granted a Copy-hold for life: J S died, and the Rent was behind, and the Grantee of the Rent di∣strained for the Arrerages. It was Re∣solved in that Case, That the possession of the Copy-holder was not chargeable to the Distress, for that the Copy-holder was not in by him who immediately ought to pay the Rent, but in the possession of the Land by the Custome. But Quere that Case: and vide Hill. 18 Eliz. in Co. B. the Earl of Westmorland's Case. For there the Case was, That the De∣mesnes of a Manor were usually let for

lives by Copy, and the Lord granted a Rent-charge to J D pro Consilio impen∣dendo for life, and afterwards conveyed the Manor to J N in Tail: The Rent was behind, and the Grantee of the Rent died, and the Executors of the Grantee distrained for the Arrerages. And there it was adjudged, That the Copy-holder should hold the Lands charged.

Copy-hold-lands not within the Statute of 32 H. 8. of Conditions.

A Copy-holder by Licence made a Lease by Indenture for 21 years ren∣dring Rent: The Lessee covenanted to lay upon the Lands yearly 40 Loads of Dung: Afterwards the Copy-holder sur∣rendred his Lands unto another in Fee, who was admitted. The Point was, If he was such an Assignee as might have Covenant within the Statute of 32 H. 8. Quere; for the Case was not Resolved.

A Copy-holder by Licence of the Lord made a Lease for 60 years, if he so long lived, rendring Rent, upon Condition to re-enter: The Copy-holder surrendred to the Lessor of the Plaintiff in Fee, who demanded the Rent, which was not pay∣ed.

It was Resolved in this Case, That the Entry of the Lessor was not lawfull, for that Copy-hold-lands were not within the Statute of Conditions, nor the Lessor such an Assignee as the Statute inten∣ded: For the Assignee of a Copy-hol∣der being in onely by Custome, is not privy to the Lease made by the first Copy-holder, nor in by him, but may plead his Estate immediately under the Lord.

Note, That in no case, where the King claims a share in the Forfeiture of the Lands, (as in the Statute of 2 H. 5. which speaks of Lands forfeited for He∣resie, viz. that the King shall have An∣num, diem & vastum, as he hath for Lands forfeited for Felony) Copy-hold-lands are not within the general words of such Statute; for that in such case, if the Copy-holder committeth Felony, the Copy-hold is presently forfeited to the Lord of the Manor; and therefore out of the words of that Statute, and other the like Statutes.

The Statute of 12 Eliz. cap. 8. which speaks of Inquisitions or Offices found by Escheators, doth not extend to Copy-hold-lands:

for although the same are not found within the Inquisitions or Offices, yet the King shall not be entitled to any of the said Copy-hold-lands, but all such Copy-holders shall and may hold and enjoy their Estates and Interests in their said Copy-hold-lands as for∣merly they might have done; and the Interest of the Copy-hold is preserved by the said Statute, though it be not found by Office after the death of the King's Tenant.

The Statute of 13 Eliz. cap. 4. of Auditors and Registers of the Queen, doth not extend to Copy-holds, for that it should be a great prejudice.

Then for the second part of this Di∣vision.

Proofs.

Copy-hold-lands are within the Statute of 4 H. 7. of Fines.

If I levy a Fine of my Copy-hold-lands, and 5 years pass; not onely the Lord is thereby barred as to the Free-hold of it and the Inheritance, but I,

who am the Copy-holder, am also barred as to my Possession: For the intent of the Statute was to take away all Controver∣sies, & litibus finem imponere; and Con∣tention may as well arise and be about Copy-hold-lands as for Free-hold-lands at the Common Law.

Copy-hold-lands are within the Statute of 29 Eliz. and other Statutes of Recu∣sancy.

A Recusant being convict for not pay∣ing of 20 l. a month forfeited by the said Statute, a Commission issued out of the E••chequer to enquire and seize all his Goods, Lands, Tenements and Heredi∣taments liable to such Seizure: Upon the Return of the Commission it appeared, That some of the Lands returned were Copy-hold-lands. It was a Question if they were within the Statute. It was the opinion of the Court, That they were within the Equity of the Statute: for the words of the Statute are, Lands, Te∣nements and Hereditaments, which are for∣cible words; and the intention of the Statute was, That the Queen should have all the Goods, and the Recusant by

the words of the Statute was onely to have the third part of his Lands, which is all that the Law gives him: And if Co∣py-hold-lands should not be within the Statute, if a Recusant, who had great Possessions onely of Copy-hold-lands, should go unpunished, it was contra∣ry to the meaning of the Makers of the Act.

Copy-holds are within the Statutes of 13 Eliz. and 1 Jacobi.

It was Resolved by all the Justices, That Copy-hold is within the Statutes of 13 Eliz. and 1 Jacobi, because it is no prejudice to the Lord, for that there ought to be a Composition with the Lord and the Vendee of the Lands; and al∣though the Sale is and ought to be by In∣denture, yet the Vendee ought to be ad∣mitted by the Lord. 2. The words of the Statute of 13 Eliz. expresly are, That the Commissioners shall dispose of Lands as well Copy as Free; and the said Sta∣tutes shall be construed most beneficially for Creditors, i. e. suum cuique tribuere.

There are divers other Statutes and Acts of Parliament which extend to Co∣py-hold-lands, viz. 1. The Statute of 5 Eliz. cap. 13 & 14. of Forgery. 2. The Statutes of 5 R. 2. of Departure out of the Realm, and 14 Eliz. of Fugitives. 3. The Statute of 32 H. 8. cap. 9. of Buying of Pretensed Titles. All which Statutes ex∣tend to Copy-hold-lands; of which I might shew many Cases and Resolutions of the Justices in their several Courts. But because the same would make this Section to be long and tedious, and my Intention was to use much brevity in this Addition and Amplification of what in the former part of this Treatise hath been written concerning Copy-hold and Custo∣mary Estates; I shall here put an End to the Work.

FINIS.

Notes

• Coke 3. part▪ Heydon's Case.
• 6 Jac. in Co. B. Coke Select Cases 27, 28.
• Littl. 16. sect. 36.
• Statute Westm. 2. de Donis.
• H. 37 Eliz. in Co. B. Church and Wyatt's Case, Moore 637.
• Stat. Prae∣rogat. Regis, cap. 9 & 10. Co. 8. part, 170. in Tow∣erson's Case. Co. 4. part, 127. in Be∣verly's Case.
• Stat. West. 2. cap. 20.
• Pasc. 12 E∣liz. in Co. B. Moore 94.
• Stat. 31 H. 8. cap. 13.
• M. 25 & 26 Eliz. in the Exchequer, Leon. 1. part, 4.
• Tr. 27 Eliz. in B. R. Rot. 1201. Sands and Hemp∣strie's Case, Leon. 2. part, 109.
• Hil. 18 Eliz. in Co. B. the Earl of Westmor∣land's Case, Leon. 3. part, 59.
• M. 20 Jac. in C. B. Plott and Plomer's Case, Cro. 1. part, 17.
• Tr. 10 Jac. in B. R. Brasier and Beale's Case, Yelv. 223.
• Vid. 30 Eliz. in Scaccario, Leon. 1. part, 98.
• Vid. 30 Eliz. Leon. 99. acc.
• Vid. Coke 5. part, Sat∣tyn's Case.
• Tr. 30 Eliz. in Scacca∣rio, Saliard and Ever••t's Case, Leon. 1. part, 97.
• Tr. 15 Jac. in▪ B. R. Cris•• and Prat's Case, Noth. 34, 35, and 36.