if qU--.g v? W Jrf t^l ■^ommi'^ ^okmmi^ -^mwm'^ '^/sa3Al^ ^HIBRARYQ^ A;QFCAllFO% .^MEUNIVERy/A 1 f^ ^s>^llIBRARY(?/r. -^IIIBRARY^?/ ^OFCAIIFOW^ ^tfOinvDJo^i^ ^MFDNfVERS'//i 01 i O ^OFCAIIFO^^ ^5jt\rUNIVE1?y/^ "^c^Aiivaan^ >&Aavaan# &AavHanii^ aMFIINIVE1?% ^lOSAHCn^> CO ^.ffOJnV3JO>' &A«va8ni^ %03IT ^OF-C/W ^ »-•»". v\IUo*Aj xf^Tit lur^iiLif;! %^^^%i(7{ ilirfl mi i . ^ ^^A«v8an# -^tUBRARYf feuoai 0^ tenants temporary, or at the will of their lords. ■* When the barbarous nations had in- vaded the Roman empire, the vaflal's ellate became certain for life, then to all his defcendants. Oppofite to feudal pro- perty is allodium^ which feems to be the old patrimonial property revived by the chriftian clergy among the barbarous na- Ld. Raym. tions. -f- This obtained among our Sax- 1024, 1292. ^j^^^ ^^^ g^^^ j^j^^j^ j^ gavelkind. Salk. 243. + Feuds are hereditary, or for life. In hereditary feuds the word heirs is required * Deinde Jiatutum eft ut ufque ad vltam Jidelis produceretur. Feud. lib. i. tit. i. f Somner's treatife of gavelkind, p. 8, 9, 115, 172. X There are feveral divifions of feuds, vhc. Feudum nohile ^ ignobile. Crag, de jure feud, 56; Zafius in ufus feud. fo. 5. Feudum lig'ium iff non Itgium. Seld. tit. of honour, 38, 39. Francum & non francum. Crag, de jure feud. p. 79- Reale ^ perfonale, vel perpetuum ^ tcmpcrale. Za- fius in ufus feud. fo. 5. Ecclefiajlicum ^ feculare. Zafius, fo. 6. Antiquum feu paternum ^ novum. Feud. lib. 3. tit. 50. Dividuum i^ ind'ivlduum. Crag, dejure feud. p. 58. Mafculinum (jf famlneum. Zafius in ufus feud, fo. 120. to tommott latt) tmmts. 3 to diftinguifli it from the original feud that was for life only. In hereditary feuds the defcent is to be conlidered, where the ufage of other nations is to be compared with the feudal. The notion of regular property begun among the yews and Egyptians. The yews were taught from heaven, and the Egyptians by the inundations of Nile^ to fettle in regular neighbourhood j and from the Egyptians the notions of property came to the Greeks and Romans. Among the yews, Egyptians, Greeks and Romans, the father was the head of the family, and had the inheritance and the power of life and death over his chil- dren (fave that by the yewifh law it is tempered) ; for the father might not kill Deut.xxi. 18. his fon but in the prelence of the publick magiftrate. Among yews and Egyptians, inheri- tance defcended by fettled rules in their tribes and families ; and the will could only be made of acquificions. Then they Deut.xxi. 15, could not fo make a will as to dilinhe- *^* '7- fit the eldeft fon of his right of primo- geniture, which was that of a double portion. If a man died, the inheritance and ac- quifitions undevifed defcended to his fons .equally i only the eldeft had a double B 2 portion. £>f fettual oj The cldeft fon was to be fa- crificed, and fo was CO be redeemed from the prieft. Selden dc fuccefflon. apud Hebr^e- os, c. 23. oortion. This law arofe becaufe they ap- Phendca fuch fon *e X^^^ o be Lthe.;slVeng*- therefore he^w^^^ thought faced ^"^^°f ^j,^ honourable ''rP"'^S'otesof leLte; But-be- charges aiui omces ui luv- _ c.ufc the words of the law give the rea fonth.t the fon was the begmn.ng of ^f^d^ r-sffrength. therefore the prm- J was perfonal, and went only to the f Heft * So ■■■£ a man had iffue J. and B. ^ had iffueC. and D. and ^. had died, # ard D ft>ould have the double portioa nf heir fa'tl er, but C. had no greater (hare f than I) nor did the double portion ot It than JJ. ^^3 to ever prevail, wnere uie * TW,. r\^M Of reprefentatlon is not peculiar to * This rigi.t 01 ic^j ^uferved by the laws of raid, brought that cafe bef°« ''^^L^™' Veffion of sanded him to g|ve "" ° *^^^^ ^te^mined that commott laU) ttmms, the eldefl; but they were obliged to marry among the families of the tribes, that the inheritance might keep among the fame families. If a man had no defcendants, it went to the agiiati or kindred of the father's fide, and it never went to the cognati or kindred of the mother's iide, becaufe the father gave the denomination to the fami- lies. If a man died inteftate, his acquifitions went firil to defcendants, then to his fa- ther, as neareft relation ; then to brothers as reprefentatives to his father j only they had a law, that if a brother married the deceafed's wife, and had ifluc, fuch ilTuc bare the name of the deceafed, and had the inheritance, excluUve of all others. their father, as the eldefl: fon, by right of reprefen- tation. And this right of reprefentation was prac- tifed among the Romans^ and was the law of the twelve tables. Selden de fuccejf. apud Hebraos, c. 23. And this right of reprefentation holds in inheritances defcendible by cufl:om, as well as by common law, as in the cafe of gavelkind lands, borough Englljh^ ice. and there is a remarkable cafe adjudged in the C. B. in my Lord Bridgman's time, anno 1660, 1661. and entered Hil. 1655. rot. 779. between Hale and ; but it was never printed until my Lord RaymoncP^ time. See Lord Raymond's Rep. J025, 1026, ^f. B 3 if 6 £>t fetttiai oj If the deceafed had neither father nor mother, it went to the grandfather, and to the uncles and nephews, as his repre- fentatives, and for failure there, to the great grandfather and his reprefcntatives in infinitum in the fame order. Numb, xxvli. As to inheritance, that went to defcen- fromitou. dants, and then to collaterals; for that muft have pafled the afcending line before Lev. XXV. it could have fettled in the defcendants ; The Agrarian ^^ ^^^^ ^^fi^y ^hen he fpeaks of the laws lawamongthe of inheritance, doth not mention the fa- Romans was, j^gj. becaufe he muft have had it before to divide the . * ■> i r lands got by It could come to the Ion. conquert a- As a man could not devife the inheri- mongthefol- ^^ j^ j^ ^^^ ^^11 ^^^ fj.Qj^ jhe diers equally, r r y i • i • i i_ • u &c. time of fale to the general jubilee, which was once in fifty years ; then there was a rotation of all pofTeffion, and every man was inflated in his own, which was the yewiflj Agrarian law. See Hays Succejf. StO 11. The Roman law differed from the Jew- ifh in that the father had the power of hfe and death over his children without the magiftrate, fo that he might deflroy his fons, which was frequent in the an- cient Roman times ; for they ufed to ex- pofe their ifTue, if they had more than they could keep. From hence began the right of adoption: for to preferve chil- dren common laVo tetittrcsf. j dren from death, they were adopted into other families, and became children of that family to whom adopted. And as a Rowan had power to deftroy his children, fo he might difmherit them by his will in exprefs words. Bat if he only pre- termitted them, and gave them nothing, then the pretor introduced them to an equal portion with the reft. So that a Roma?! had an intire power over his chil- dren while he lived, and whatever they got was their father's, and at his death, he might difpofe of it as he plealed among his other children. If he died without fuch difpofition, it firft went among thofe of his own family, whether male or fe- male, by him begotten or adopted. If any of his fons died, the grandchildren fucceeded into his portion in ftirpes-, but the pretor brought in children emancipa- ted equal with the reft ; for though fuch were out of their father's family, yet the natural relation continued ; but if an adopted fon was emancipated, he took nothing. The children of daughters did not inherit the father, becaufe they were out of his family. If a man had no fui haredes, by the old Roman law it went to the agnati, as firft to brothers as reprefentatives of their fathers 5 to uncles ex refrafentatkne of B 4 their 8 4Df Utinta 0^ their grandfathers, in capita in infinitunty after the Jewijh model ; but the pretor brought in the cognati in equal degrees in capita in infinitum^ to inherit with the agnati. Becaufe by the indefinite liberty of devifing, they could not keep eftates in their tribes ; therefore the cog- nati entered in according to their natural relation. A fon emancipated, or a fon that had acquired a peculium, after they had al- lowed that privilege to fons in the life of their fathers, on failure of iffue was in- herited firft by the afcending line, and that failing, by the collateral, only bro- thers of the whole blood were called in in capita equal with parents and their children inftirpes-, for fuch brothers be- ing of both bloods, they were held equally dear as either parent. On failure of the afcending line, and brothers and fifters of the whole blood, it went to brothers and fifters of the half blood, and their chil- dren in Jiirpes, by the yuftinian confti- tution. On failure of them it went to thofe perfons that were next in degree in capita-, and thofe that were equally in degree inherited equally, as uncles on the father's and mother's fide. And the next in degree excluded the more remote, as ftn uncle living excluded the fon of an uncle common UVO ttnnvts, uncle deceafed ; and the degrees were computed up to the common anceftor, and then down to the perfon to whom the relation was made: therefore uncles are of the third degree, uncles fons in the fourth degree. But things delcended from the father defcend to the degrees on the father's fide, according to thofe rules, that things defcended from the mother de- fcended to the degrees of the mother's fide, according to the fame rules. The 22 £f 23 Car. 2. c. jo. has intro- duced this law into England^ in relation to inteftates efl:ates. Only one third is to the wife, two thirds to the children, the heir at law taking equal with the reft : and the portion of a child preferred to come in average with the reft. For want of children the wife is to have one moi- ety, and the next of kin the other. If no wife, the father is to have the whole, as next of kin. But by the ftat. i Jac. 2. c, 17. the mother is to inherit equally with brothers and fifters, and their re- prefentatives, according to yuftinian law: and by the ftat. of Car. 2. the fuccefiion is carried to brothers and fifters children in Jiirpes^ according to civil law, fave only that no diftin(5tion is made between brothers and fifters of the whole and half blood ; becaufe the lav^r fpeaks of brothers and lo £)f fetttiai 0? and fiflers children indefinitely, without diftindtion of bloods ; and the fpiritual courts had never diftinguifhed the bloods, becaufe the canon law, where the degrees of proximity were fettled in relation to marriages, had made no fuch diftindion. For want of brothers and fiflers, and their children, next of kin fucceed m ca- pita^ according to the afore-mentioned rules of civil law, where the next in de- gree fucceed both on father's and mother's Sde, and excluded the more remote. But in our law the inteftate is confidered as the original proprietor in whom the eftate is veiled. So no diflindion is taken be- tween things coming from the father's or mother's fide. The feudal fucceflion came in in this manner: * the lords gave lands to fuch perfons as behaved themfelves well in the war, for their lives only : fometimes they alfo married their daughters to them. Then by their feudal donations, they limited the lands to go not only to the feudary him- felf, but alfo to the ifiTue of that mar- riage j and this brought in the notion of * Deinde Jlaiutum ejl ut ufque ad vttam f delis producer etur. Feud. lib. i. tit. i. Po/lea vera eo ventum eji, ut ad recipientis vitam perduraret. Hanneton de jure feud. 139. fucceflion totnmoti laM) tenutes* II fucceffion among the northern nations that invaded the Ro?nan empire. The lands therefore in the elder times went to the immediate defcendants of fuch marriage, and oiiginally to none elfe : and firft they went to males, as the moft worthy of^ud-iu. blood, and moft capable of doing the fer- JJ^' ** ' vices annexed to fuch donations j for want of males it went to females, as defcen- dants of the fame marriage. * The feud was united in the eldeft male, becaufe he was obliged to do the duty in the wars ; and for every knight's fee, was to go out forty days with his lord s fo that the feud did not divide among the males, becaufe the duty could not be divided commodioufly. Becaufe, fecondly, the males were to keep up the grandeur of the family, therefore the in- heritance was not (hared nor broken. Hence it came to pafs, that among the males the eldeft was preferred as the moft * Ordain fuh que fee de chevaler deviendroit al eigne fits per fuccejfton de heritage^ ^ que focage fee fuit portable perenter les males infants. Horn's Mir- ror desjuf. lib. I. c. I. f. 3. Proles fceminei fexus^ vel ex fasmineo fexu defcen- dens^ ad fuccejjionem afpirare non poteji, nifi ejus con~ ditionis fit feudum^ vel ex pa£to acquifitum. Feud. Jib. 2. tit. 2. f. 2. tit. II, 30, 50, 104. worthy, 12 £)f fettnai 0? worthy, fince he was fooneft able to go to the wars, and do the duties of the te- nure. The eldeft fon was anciently married with the confent and approbation of the lord; for the lord always approved the firft marriage of his feudary and of his heir apparent ; and if the feudary died, the heir within age, the lord had the total Spelm. Rem. marriage of him ; and if he was of full *^' age, the lord gave licence to fuch mar- riage. Hence the defcent always fettled in the eldeft line, and the daughter of the eldeft fon was preferred before the fecond or third brothers, and their male defcen- dants, in order to encourage the bell: mar- riages with fuch eldeft fon 3 and this was the fettled courfe of the * feiidnin nobile. Whence our law took the pattern for their military tenures, and the focage te- nures, divided in Saxon times as -^ feudum igfiobile^ but afterwards came to imitate the military feud, in order to I'upport their families. The feudum jf there were no fons the feud came to dividable '^c daughters, who divided it, becaufe by among the the donation it was to go to all the de- fons. * Zajius in ufus feud. fo. ^. • f Stry. exam, jur. feud. cap. 3. q. 36, 37, fcendants ; common latt) unmts, 13 fcendants -, therefore the female defcen- dants could not be excluded, and one of the daughters could not be preferred be- fore the other, becaufe none could do the fervice of the feud in their own perfons- nor did any of them bear the name and dignity of the family. Therefore thefe were married by the lords among their te- nants J fo they kept the feuds in their fe- veral manors from being broken and di- vided ; as if tv/o daughters divided a knight's fee, the lords, by the marriage of fuch a daughter with one that had half a knight's fee, re-eflablifhed the feuds of their tenants. If in fuch feudal donations, the elder line had failed, it went back to the ilTue of the fecond fon of the fame (lock, to whom the firft donation was made, and to his defcendants, becaufe by the feudal donation it went to all the defcendants of fuch marriage, and fo the fucceffion was eftabliflied to the defcendants of the fame flock in infinitum^ but could not go to any other relations but to fuch as were defcendants of the ftock to whom the do- nation was made. In a long courfe of years thefe feudal donations were worn out, when it became impoffible to compute up to the firft feu- dal marriage when fuch donations were originally 14 €>f fettsai p? oiiginally fettled j and then they inverted the computation, and computed from the laft pofleffor, provided the heir that claim- ed was of the blood of the firft purchafer; and then the rule was taken quod feiziua facit ftirpem \ for fince the feudal dona- tion was loft, they could not regularly compute the defcendants from the firft feudal marriage ; therefore they computed from the laft feudary ; and fmce both bloods of the firft marriage were neceffary to any perfon that would claim under the firft donation, they required that a man {hould be of the whole blood of the laft feudary that would claim as heir to him ; for then of neceflity he muft be of both bloods of that remote feudal marriage, where the feud was originally placed. Thus half blood came to be excluded ; becaufe if it were admitted where feudal donation was loft, it might have carried it out of the line, where fuch donations were once fettled ; fo that in fuch cafe they put the perfon, claiming as heir, to ftiew that it was an ancient feud, and that the party claiming was of the whole blood of the laft pofleflbr, which formed the utmoft prefumption of the right of fuccefilon, where the feudal donation was loft ; which half blood did not do j be- caufe it was originally fettled in both the bloods common latb tmnus. 15 bloods ot the firft purchafers. Befides, lords had the marriage of the feudary; therefore all the iflue of the fecond mar- riage were excluded from the immediate inherif-^nce of the children of the firft marriage, fince the lord had not the mar- riage of the feudary more than once ; and therefore they could not come in as iflue of a fecond match ; but all that claim the inheritance mull make themfelves heirs un- der the fame feudal marriage from whence the laft feudary defcended, which half blood could not do. But where they can come in under any marriage prefumed to be made by the tcudal lord, they were admitted. Therefore a brother of the half blood was not heir to the brother, but might be hen :o the uncle. Hence they formed the rule, poj/effio frafris de feodo fimplici Jack fororem ejje heeredem. For when the old feudal donations came to be loft, the pofTeflion was the only indicium of who was feudary ; therefore any per- fon that claimed as his reprefentative, muft fhew a defcent from the fame ftock, and therefore the rule was taken as to lands in fee-fimple, and not as to lands in tail. For there a man muft claim as heir per formam doni, as they did in the old feudal donations de feudis novis ; fo of a remain- der after an eftate for life, that never feU in 1 6 £>f fetitiai 0? in poiTeiTion, a man muft: claim, by vir- tue of the contract, as heir to him to whom the remainder was limited ; for no man in fuch cafe can make himfelf heir to the laft feudary, fince the feudal pof- feffion was in tenant for life. So of a reverfion on an eftate for life, upon which no rent was referved j for a man muft make himfelf heir to the laft feudary be- fore the eftate for life was created ; but if a rent had been referved, it had been doubted whether he muft make himfelf heir to the laft pofteflbr of the eftate, or to him that laft received the rent ; and whether the receipt of rent make fuch a feudal pofleflion as may be laid as efplees in a writ of right. Certain it is, that if a reverfion be depending on an eftate for years, the pofleirion of the rent is a pof- feflion of the land itfelf ; and the fifter of the whole blood will be heir to the bro- ther J and the brother of the half blood, that is heir to the father that made the leafe, will have no title. There is fojfef- jio frairis of an advowfon or rent, after adtual receipt of rent or prefentation of the clerk. So of an ufe, bccaufe equity fol- Co. Lit. 14, lowed the rule of the common law. So ' Re 1 ^^ ^ copyhold, where the eldeft fon re- ceives the profits, and dies, though before admittance. * After- common latt) ttmns. 1 7 * Afterwards where the feud efcheated to the lords for felony or want of heirs, the lords were wont to reftore the feud to the old family, or grant it out again to another family ut feudiim a?2tiquum, and then the defcents were formed in fuch new feud, as if it had been feudum antiquum. Hence the lineal fucceffion, or fucceflion of the father -f- was totally excluded, becaufe no cafe could happen where the afcending line could be admitted infeudis antiqiiis-, for the father took before the fon, under the firft feudary in every ancient feudal donation ; and all above fuch donation were excluded, fo that in no fuch dona- tions could any father claim as heir to the fon. And this order of defcent, that exclu- ded the father, was the rather continued, becaufe the father was guardian to the fon ; and in thofe barbarous times they would not truft the father with any profit from the death of his own ifTue, fo that the father was totally excluded. Defeudis i ^3 to z(ii. But a feud purchafed by the fon * Revertltur terra ad domhium capitale?n, vel ad re Hum dominutn^ fell' ad ipfum de cujiis feodo ij}. BracSl. lib. 3. fo. 1 30. lib. 4. fo. 160. b. -f" Succejfioyus feudi talis ejl natura^ quod afcendentes non fuccedimt, verbi gratia^ pater filio> Feud. lib. 2. tit. 5O5 84. Lit. fee. 3. C fnall 1 8 £)f fcttoai 0? fliall defcend to the uncle, to whom the father may be heir, if the uncle be in ac- tual poffeflion of fuch feud ; becaufe he claims it then as heir to the lad feudary, according to the rule before eftabliflied, fince the firft: donation is not to be Gonii- dered, but the lafl poiTefTor. But if the uncle was not in adual poiieffion, as in cafe of a reverfion upon a leafe for life made of the lands by the fon, the father cannot be heir, becaufe the fon was lafb adually feifed. Other wife of a reverfion upon a leafe for years, for the pofleffioii of the tenant is the polTeffion of the uncle {lit ante), Ld. Raym. If a fon be infeoffed with warranty, and ^^' the uncle enters into the land after the death of the fon, and dies, it is doubted whether the father fliall take the benefit of fuch warranty, where the uncle hath not, as it were, aiftually pofTefTed it by Co. Lit. and voucher or lioarrantia char tee. Coke ex- Me upon it, eludes the father, as not reprefenting the fon, with whom the contra6: was made. Hale admits him \ for fince the uncle was pofTeffed of the land, he was in adual pof- felTion of all its appendices. * If a man purchafed \htfeiidum novwn lit feu dim antiquum^ and died without if- * Hanneton de jure feud, 30, fue tommon latt) tenures. ^9 fiie, it went firft to the father's fide, bc- caufe the lords in fuch feudal donations were prefumed to refpedl the father's fide, who had been the ancient tenant of the manor. For when it was eiven ut feu- {lum a7itiquum^ it mufl be prefumed to be meant as if it had been an ancient feud of that manor ; therefore it went to the father's fide ifi ifijinitimi, before it could go to any of the female blood. If the father's male line failed, it went to the female blood of the father j for the lords were prefumed rather to refpedl the fe- male blood of their former tenants in the blood of the mother, who was newly in- troduced into the family of fuch their feu- dary, becaufe the feud was given as an ancient one, and by confequence the blood of the precedent tenant was preferred to any other ; but the blood of the father's mother was preferred to the blood of his grandmother, being both female bloods, and both coming under the confideration of ancient tenants, the nearer tenant's blood was preferred to the more remote. But if the father's fide wholly failed, who were prefumed to be the ancient tenants of the manor, then the blood of the mo- ther was admitted, fince the lord mufl be prefumed to introduce the blood of the mother, when he had given an indefinite C 2 right 20 M fettuai, &c. right of reprefentation to his feudary, ana there was none of the ancient kindred on the father's fide remaining ; for then it muft be fuppofed his intention, that it {hould defcend as if it had been a mater- nal feud ; for otherwife he would have limited it to the feudary for his life, or to the feudary and his iflue, after the man- ner that was ufed in the limitation of new feuds. Baftards, or children born out of wed- lock, were totally excluded from all feu- dal fucceflion, though their parents had afterwards intermarried, becaufe the lords would not be ferved by any perfons that Greg. lib. 4. had that ftain on their legitimation, nor fe6t. 6. fuffer fuch immoralities in their feveral " ■^'* clans; though the civil law admitted them as adopted by the fubfequcnt mar- riage, and fo the canon law, becaufe the matrimony wiped off the precedent guilt. >«aaai>m>_aMa> m 21 ^f utttnts ttDi'cij uu albap entries. WHEN any man is diflcifed, the diffeifor has only the naked pof- feffion, becaufe the difleifee may enter and cvidt him ; but againft all other perfons the diffeifor has a right, and in this re- fpe6t only can be faid to have the right of polTcffion ; for in refpedt to the diffeifce he has no right at all. But when a de- fcent is caft, the heir of the difTeilbr has jus pojfejjiofiisy becaufe the diffcifee cannot enter upon his pofTeffion and evidt him, but is put to his real adion, becaufe the freehold is caft upon the heir. The notions of the law do make this title to him, that there may be a perfon in being to do the feudal duties, to fill the pofTeffion, and to anfwer the adions of all perfons whatever ; and fince it is the law that gives him this right, and obliges him to thefe duties, antecedent to any ad of his own, it muft defend fuch polTcffion from the ad of any other per- fon whatever, till fuch pofTeffion be evided by judgment, which being alfo the ad of law, may deilroy the heir's title. C3 Ip. 2 2 flDf oefcetitfi! ttlji'cD I.it. fea.386, In the cafe of fee-tail, the poffeflion Is ■S;, 8, 9 0"/> thrown upon the heir in tail, therefore the law conflitutes the jus poJJ'ejfionis to be in him. If a diffeifor, at the time of his death, has not the freehold in him, it cannot be caft upon his heir; for then there is no danger that the freehold {hould want a pofTeffor; therefore the law creates no title to fuch poffeflion in the heir at law ; for it were incongruous that the law fhould fuppofe the right of pofleflion in the heir, when the pofTefTion is in another at the death of the anceftor. The law will not afterwards create him a new title, in pre- judice of the perfon that has the right of propriety. If the diflTeifor therefore makes a leafe for life, he parts with the pofleflion, and cannot tranfmit it to the heir, fince he had parted with it at the time of his death, and the defcent of a reverflon will not make a right of pofl'eflion; for nothing defcends to the heir in reverflon but the right of the reverflon, and that is a right againfl: all other perfons but the diffeifee. For flnce only the right defcends, the heir can be in no better cafe than the dif- feifor was at the time of his death ; and therefore when tenant for life dies, he has only the naked poflTcfiicnj as the diffeifor haij had it. But if the difleifor had disd in polTeffion, the law, tor the reafon afgre- faid, cafting the pofleilion on the heir, makes it a right j for that is properly a right which a man comes to by the ad: of the lawj and fince the heir in fuch cafe would come to the poffeflion by the ad; of the law, it muft be called a right of poiTefTion ; and it could not be a right of pofleffion, if he could not defend it againfl all aggreflfors j therefore in fuch cafe the right of entry is taken away from all others j and hence the diftindion came to be made between jus pojjejjionh and ju^ fropricfatis. A fecond reafon why the 6dczx\t cre- ates a right of podefiion is, becaufe the diffeifee has not claimed daring the life of the difleifor, and the right of pojjejjion is prefumed to be derelid, if the party ceafes to claim it, till the law for the ne- celTiry caufes before-mentioned is obliged to cafl it upon another ; but the right of propriety is not prefumed to be dereiid:,. till the time allowed for the limitation of , thofe adions be expired. So that Coke fays, Anciently a feoffee that came in by title, though by his own ad;, after a year and a day, had a right of pofleflicn. C 4. A third / 24 iOf ttfttnts tt)l)tt3| Spelm. Feud. ^ third reafon why defccnt gives a right ^'* of poffeffion is, becaufe originally the re- lief was in nature of a new purchafe upon every defcent ; for then it did again fall into the lord's hands, till it was relie- ved out of his Hands by fuch payment. Now for fuch payment they immedi- ately diftrained upon the poffeffion as foon as ever the defcent was call 3 fo that the heir was forced upon fuch payment, in prefervation of his flock left on the ground by his anceftor; and being forced upon this purchafe, it is fit he (liould enjoy the right of poffeffion. But where a diffeifor makes a leafe for life, and dies, and the reverfion defcends on the fon, if he en- ters after the death of tenant for life, he {hall pay a relief; and yet fuch a defcent fhall not take away an entry, becaufe it was his own fault he entered and {locked the land himfelf, and made himfelf fub- je6l to the relief; for then the buyer muff beware, and take the title in the condition it was in at the death of the an- ccflor. Fourthly, The right of poffeffion is gotten by the defcent, that it may be an encouragement to the tenant to be bold in war ; for that none can enter and difpof- fefs his children of the ellate whereof he dies tafee atbap eittric*!. 25 di€S poiTefTed j but if another doth the duties of the feud at his death, then it is not reafon that fuch a defcent fhould give a right of pofTeffion to his heir. The efcheat doth not take away the Lit. fea. 390. entry, becaufe, though in refped: of a Granger's pracipe^ the law doth caft the freehold upon the lord, antecedent to his own ad; J yet the lord need not enter to take the profits and to do the duties, as the heir is obliged to do, but the lord may take the dilTeifee as his lawful tenant. And it is plain that the law doth not caft the freehold upon the lord in the fame manner as it doth upon the heir, becaufe the lord is obliged to anfwer the feudal duties to the lord paramount, in refped: of his feigniory, whether this poiTeflion was cafl on him or not ; fo that in this cafe there could be no failure of duty, though the lord doth not enter. In the cafe of a feoffment upon condi- ^.^"^ 2^^- tion, there is no diflindion between the 2. ' '^^^' right of pofTeflion and the right of pro- priety, but both rights are in the feoffee till the condition broken, and entry for fuch breach ; and afterwards both rights are in the feoffor ; therefore the defcent doth not take away the entry, fince the poffefTlcn and the propriety defcends in the fame manner, viz, under the condi- tion 26 i©f tittttnts tt)Ijfc|| tlon that it was at firft granted; and the pofTeffion is not cafl upon the heir while the propriety is in fome body elfe, as in the former cafes ; and it is the defcent of a naked poiTeffion to an heir at law, that forms a jus pojj'ejjionis^ diftind: and ab- llrad:ed from the jus proprietatis. But here both rights are united at the time of the defcent; and if the feoffor in this cafe could not alTert his claim by an entry, he could have no remedy, either for his jus pojjejjionis or jus proprietatis^ which are not here feparate or diftindi: ; for till he enters to take advantage of the breach of the condition, both rights are in the feoifee, becaufe the folemnity of the feoff- rnent cannot be determined but by an a6t of equal notoriety ; and becaufe the pof- feflion and right are not here feparate or diftind:, it is called by a different name, viz. not a right, but a title of entry. Xit. fea.393. * The law doth not cafl dower upon *" the wife, but fhe takes it by her own ad; but * We find no footfteps of dower in lands, until the time of the Normans. Bacon^s Hijiory of the Erg. gov. 104, 146. But amcngft the laws of the Saxon King Edmund, cap. ^i. we find a provifion made for the fupport of the wife that furvives her hu.fband. out of his ^Gods only. Not tafte aMjap tnttits. 27 but when Dciq is endowed, fhe is in from the death of her hufband j therefore flie has only the naked polTeffion her hufband had, not any jus pojfej/ionis at all ; fince it was not of abfolute neceflity (he fliould claim her dower ; but it is of abfolute necelTity that the law doth cafl the free- hold upon the heir. Now by the en- dowment the poffeffion is avoided that the law caft upon the heir, becaule Vac, as is faid, is in from the death of her hufband, and by confequence there is no right of pofTeffion, as to this third part, acquired to the heir at law; lince the law doth not place him in fuch third, after the death of the father; and though the reverfion belongs to him after the death of the mother, yet that is only the rc\Tr- fion of that which the mother poflelTcd, v^hich was a naked poffefiion ; and fo he has herein no right of poffeffion at all. Where the diffeifor infeoffs the fath.er, Lit. fca.sgs, k is prefumed to be done in order after- wards to come in by defcent, and the a6t of law fhall not give fandion to the Nor was there any dower in TVales^ until ft was annexed to the crown of England^ as appears by Stat. Walliis^ viz. ^lia 7nuUeres haSlenus tion cxtlte- rani dctates in fVallia^ rex concedit quod dotcntur. wrong ^8 iDf tttttnts M)|^fc|^ wrong of the party ; nor fhall any mati by his own wrong, however cunningly contrived, give to himfelf a right j for when the heir by the defcent gains a jus poffejjionis, he is fuppofed innocent of the wrong of his anceflor ; but here he is partner of the guilt. Lit. fea.396. When a younger brother enters in this ?! . cafe, he does not enter to get a poffefiion diftin6t from that of the elder brother, but to preferve the pofleflions of the fa- . ther in the family, that no body elfe abates. For fince this is the mofl: chari- table interpretation that can be made of this adion, and by fuch a conftrudtion it is juft and rightful, the law fhall not in- tend it to be a wrongful adt or difleifin, and by confequence the polTellion of the younger brother becomes that of the elder brother : and then if there be not a pof- felTion difiindl and feparated from the right, the defcent cannot make a right of pofTelTion diftindt from the right of pro- priety ; for it were incongruous that the anceftor fhould be conftrued to pofTefs in another's right, in order to do no injury, and the heir fhould be conftrued to pof- fcis in his own right, in order to do in- juftice to the elder brother. Bcfides, no laches can be imputed to the elder bro- ther, fince the younger entered and pof- feacd tafee att)ap tnttits, h fefTed for him. But if the younger bro- ther in this cafe had made a feoffment in fee, and the feoffee had died feifed, this defcent had taken away the entry, becaufe then the younger brother could not be in- terpreted to enter to prefer ve the eftate of the elder, but in order to make the ad- vantage of it for himfelf. So in the cafe Co. Lit. fo, Lift, puts, If the elder brother had en- 242- tered, then if the younger had entered upon him, this had been in deftrudion of the elder brother's poflefllon, and there- fore the younger gets a poffeflion diftindt from that of the elder brother, and his heir a diflindl right of poilefTion, and it is the laches of the elder brother, that he did not enter to reflore his poffeflion. If one coparcener enters into the whole, Lit. fea. 398; it is only in prefervation of the eftate of the other ; but if fhe diffeifeth the other after her entry, there fhe gets a poffeffion diftiniSt from that of her fifter, and the defcent will take away the entry, caufa qua fupra. The iffue of the baftard eigne not only Lit, Tea. 399, gains a right of poffeffion, but a right of 'i* propriety by the enjoyment of his ance- iior. Such iffue are held legitimated by the civil law, becaufe they are adopted by the marriage of the mother. So by the canon law, becaufe the matrimonium fub^ fiqiiens tollit reatum precedent ; but by the 100. I. 30 m Utunt^ Xi)\iid) the feudal law they were excluded, be- caufe fuch a ftain was thought to conti- nue from the crime of the parents, that they could not do the feudal fervice with honour to the feudal lords ; therefore they were anciently excluded ?j(/l jiominaiim ad feuda legitimmitur. But by our law,' if they had an uninterrupted enjoyment du- ring life, the iffue for ever inherited ; for fince there was no objection to their legi- timation, during their lives, the perfonal defedt muft die with their perfon, in as much as it were inhumanity to throw re- proach on them after their deceafe ^ and having done the feudal duties without ob- je(5lion, the objedion comes too late when the perfonal difhonour ceafes, and to the next perfon in pofTeffion no reproach can arife. If baftards could be any where alledged , in the pedigree after the deceafe of the parties, there would be no end of con- tention concerning them, and genealogies would be rendered perfedlly uncertain; for there being no eftabliflied regiftry of ge- nealogies in the feudal, as was in the y^wip law, they conceived that the great- eft evidence that could be of the legitima- tion of the anceftor, was the uninter- rupted enjoyment, and the carrying the fune by courfe of defcent to the iffue. Hencff uu aUiap entries. 3t Hence they would not fufFer this rule by any means to be fhaken, left all defcents iliould be rendered precarious; but if any part of the rule fails, then the right of polleffion is only gotten by fuch defcent, and not the right of propriety ; as if the pofTeffion be once interrupted by the mu- lier, if the baftard eigne re-enters, this only gets the pofTeffion, and by fuch de- fcent the iflue only acquires a jus fojjef- fionis. So if the baftard eigne leaves a child in 'ventre fa mere, this ftiall not inherit; for though there the anceftor had an un- interrupted pofteffion, yet there was no defcent. But if the mulier abates, the iflue of baftard eigne hath both right of pofteffion and right of propriety, becaufe of an un- interrupted pofteffion, and defcent com- pleat, the law cafting the freehold on the iftae, before his entry, or before the mu- lier can abate. Nay, this rule is preferred to the privilege of infancy, i^o that if the Ld. Raym: mulier were an infant, yet the defcent of ^74? the iftae of the baftard eigne ftiould bar fuch infant, becaufe it is by the laws of defcent that the infant himfelf inherits; and he himfelf could not claim, but by fiippofing that uninteriuptcd pofleftion of his anceftors, and the confequent defcent gives 32 £)f tdttnts Xciifitl) gives him a right. But II rrc perfon in the principal cafe were not legitimated, by the eccleiiaflical law, his entry gives him no title, but as another difTcilbr j for he is an abfolute ftrailger by all laws, and reputed jiuUius Jilius. Lit. feft. 402. As to infants, feme coverts, perfons 3. 4. 405. 6. no7t compos^ . the defcent to the heir of the ^^^■^^'difieifor doth not take away their entry, becaufe the infants, ZSc. had a right of pofTeflion, and the adt of law cannot take away that right, fince no laches can be imputed to them ; fince their negligence is not culpable, it were unjuft to make market of their titles ; and therefore the lord, v/hen he takes a relief, is not fup- pofed to transfer any Jus pojjejjionis to the heir of the diffcifor, fince the feud is not fuppofed, by negligence and want of a tenant, to fall into his hand, and from thence to be relieved to the heir of the difleifor, who hath title thereunto, fince if that were docftrine, a negligence were fuppofed in thefe uncapable perfons, which the law doth not allow. But the 72on compos in this cafe cannot alledge the difabilicy in himfelf, becaufe he cannot be fuppofed confcious of it ; nor is he allowed ever at any time to al- ledge it : For v/hen he is once non com- poSj there is no certain time when he can be tafte atba? mtxits. 33 be adjudged to recover that difabiliiy, unlefs whete he is legally committed, and then th(3 aifts during his lunacy will be fet afide and difcharged, and afterwards the commiffion fiiperfeded ; for in no other way can the m?: compos be legally reftored to his right, and to his capacity of a(^ing. If an infant diflelfes, this only giVes tit. fed. 407. him a naked pofleffion t for he has no !* • -1 * J J -r u r • Strange 939, privilege to do wrong ; and if he ahen in fee, his alienation is Voidable. If the alie- ree dies feifed, he may enter j for though the defcent gives a right of poirefTion againil the difTeifee, yet it gains no right from the infant. If then the infant reco- vers, he is a diffeifor as he was before, and being only in his former edate, he has no right of pofleffion againft the dif- feifee. If a difleifor, that has only a right of i-it. feil. 409, pofleffion, makes a feofirnerit in fee on condition, and the feoffee dies feifed, this gains a right of poflTeffion to the heir of the feoffee. But if the condition be bro- ken, and the feoffor enters, he deftroys the eftate, and the right of polTeffion an- nexed to it ; and he being bnly a diffeifof, is in his old eftate, v/hich is a naked pof- feffion, without any right at all. D A civil 34 €)f aefcenfsi mitt) Ut, feft. 410. A civil death, fuch as that of entering into religion, doth not take away an en- try J for this feems to be the voluntary ad: of the anceftor, or rather a contrivance between anceftor and heir, to acquire the right of pofTeffion j and a man that hath done v/rong, fhall not by his own aft ac- quire to himfelf a right. Ut. fea. 4ir. A leafe is a covenant real, that binds the pofTeffion of lands into whofe hands foever afterwards they come, if the lands be not eviifted by a fuperior title ; but the termor has not the freehold in him, but holds the poffeffion, as bailiff of the free- holder, nomine alieno, by virtue of the obligation of the covenant. Therefore if fuch termor be oufled, and the freeholder diffeifed, the diffeifor has the naked pof- feffion bound by the covenant -, and if af- terwards a defcent be caft, the heir of the diffeifor has the right of pofTeffion, bound alfo by the covenant 5 for the heir of the diffeifor has only the right of pof- ieffion which was in the diffeifee, and that was bound by that covenant, and therefore it muft be bound by the fame covenant in the bands of the heir of the diffeifor j and were it otherwife, the right of the termor would be intirely deflroyed^ for he cannot have a right of tafee avoav tnttits. 35 of pofTeflion diflind from the right of propriety. Now then, if the termor enters before Ld. Raym. the defcent, he reverts the freehold in the ^53- dilTeifee, who has the right of pofTef- fion ; but if he enters after the defcent, then he can only hold in the name of the freeholder who has the prefent right of poffeffion, which is the heir of the dif- feifor. In the times of domeflick wars, when Lit. fea 412, the courts of juftice are not open, the de- fcent gives no right of pofTciTion, though the difleifin was done in time of peace. For it were in vain for a difleifee to exert his right of pofTeffion, when the courts of juftice are not open j nor can there be any fuch thing as the adl of law to give a right of polTeffion, when the law itfelf is lilent j but in times of foreign war, when there is juftice and peace at home, a defcent will give a right of pof- feffion ; for to encourage enterprizes in fuch war was fuch privilege given to the heir of the diffeifor. A fucceffion doth not give a right ofLit. fea.413. poffeffion, as a defcent doth ; for a fuc- celTor is in by his own a3: ; for it is by his own concurrent adl that he comes to be inftalled into the rights of his prede- D 2 cefibr. 35 £)f neftentsi, &c. ccfTor, and therefore he can have no more than he had ; but iince the predeceffor had a naked polTeflion, and not the jus pojjeffionis, the fucceflbr can have no more. Co. Lit. 84. Befides, the fuccefTor pays no relief, un- lefs by grant or prefcription : for eccle- fiaftical lands were not relieved into the hands of the lord for want of a tenant, being given in free alms, or to do fervice by proxy ; and fince the lands are not relieved into the hands of the fucceflbr for a confideration paid, he doth not acquire a right of poileflion. Befides, there is no reafon to encourage the predeceffor to dare in war, who either went not at all, or elfc by proxy ; and therefore no reafon fuch fucceffion fhould get a right of pof- feflion. m ZT £)f cotttinuai claim. IF a man be difTelfed, and the diiTeiror Lit. fea.414, die in peaceable pofl'effion, immedi- 4-'S- ately after fuch diffeifm the heir acquires Jus pojjeffionis^ if the diiTeifee fufFered the ancellor quietly to enjoy ; for then the prefumptive right is in the heirj but if the difTdfee has re-entered within a year and a day before fuch defcent, then the heir doth not acquire the jus pojjejjionls, , Firft:, becaufe there is no laches in the diiTeifee, and the ad: of law would do wrong and injury (which it cannot do) if it fliould alter the right when the dilleifee has done what in him lay to continue the right of pofleflion. Secondly, becaufe there is no prefumption that the diiTeifor had right, if the diiTeifee continue the claim J for the law cannot prefume the right of pofTefTion to be derelidl, contrary to the manifeft a6l of the diiTeifee. Third- ly, the lord ought not to take the heir for his tenant; and there is fufficient warning for the anceftor in his life-time not to do the voluntary fervice, nor for the heir after his deceafe to pay the re- lief. P 3 * If 38 £>f conti'nttai tUim* I.it. fea.416. * If the vaflal renounces the feud, this is a caufe of forfeiture by the old feudal law, becaufe it was faying they would not do the feudal fervices that were the perpe- tual confideration for fuch pofTefiion, nor keep within thofe reftridtions required by the feudal contradt, which were the ori- Digeft. Feud, gi^al defign of the gift. F^J/allus, fifeu^ lib. ?. m.26. dum "oel feudi partem aut feudi conditionem °'^^^' ex certa fcientia inficiatur^ & inde con- viBiis fueritj eo quod abnegavit feiidum ejufq; conditionem^ expoliabitiir. But when Ld. Rayir.. diftrefles were invented, then the land it- 120. felf was not fcifed for negled: of fervices, becaufe they had this method of compul- lion. But if tenant for life had aliened in fee, there was no redrefs but by a feizure of the land itfelf j and therefore this caufe of forfeiture in our law was reflrained in ^ the alienation of tenant for life. If tenant for life makes a feoffment, or levies a fine, it is palpably contrary to his oath of fidelity to the reverfioner, and therefore that is a plain renunciation of the feud. So in the cafe of the remainder, * Revertitur terra ad damlnum capitalem, vel ad reifum dominum^ fcilicet ad ipfum de cujus feodo eft, Glanvil. lib. 7. c. 17. p. 59. Reafccndit ad capitales dominos a quibus pri?Jio pre- cejfit, Bia^^on, lib. 5. c- 6. fo. 375. the !©f contmwai claim. 39 the eftate for life is drowned in the fee j therefore the eftate for life is renounced, and the remainder commences. So if te- nant for life of a rent levies a fine, this is a forfeiture ; for though the fine being of a rent, palTes no more than it lawfully may ; yet being a publick and folemn re- nunciation of the eftate for life in a court of record, it is within the reafon of the law, and amounts to a forfeiture, and the remainder man anciently was to claim within the year. The entry is the fame thing as the 'U^w- Lit. feft, 417, dlcatio o": c alumni a in the civil or feudal* ^' law ; and this entry was of equal folem- nity with the feoffment : for as the feoff- stra. 1086. ment was anciently made on the land co- ^^- ^^>''"' ram paribus^ who fubfcribed the feudal ^^^' inftrument in the hits teflibus-, fo it feems the entry was made upon the land, and afterwards the claim was recorded in the lord's court, and hence called clajneum, or calumniam apponere vel advocare. Vid. Digeft. Feud. lib. 2. tit. 8. But afterwards they allowed the feoff- ment to be good, though it was attcfted per extraneoSj and not coram paribus ; and the entry was allowed to be good, if made upon the land, though it were not re- corded coram paribus; but the manner of recording the claims of liberties before the D 4 juftices 40 £)f cotttt'tittai tWml juftlces in eyre remained long after, as appears by the Regi/Ier 19. 1?, which fetms to be a continuance of the ancient prac- tice. See Spehn. Glojf. tit. Calumnia^ fo. 97. But vyhen the feoffments were not attefted by the pares^ yet they were attefted and X^.Raym. tried by iht pares comifatus-y and therefore ^^^' if the land lay in two counties, there muft be livery in each of them : So if the land lies in two counties, the entry muft be in each, becaqfe the atteftation of both fads, if controverted, muft be by the pa- res coip'ttatus. Lit. Tea. 419, Livery within view, and entry after- 4^0- w^ards, is equal to a livery on the land itfelf ; and if a mgn cannot enter for fear of outrage, yet it is good} fo alfo is a claim within view good, when a man fears to enter; for in both cafes a man ought to take pofl*eftion where he can, becaufe it is the change of pofTeflion makes the notoriety in both cafes. But if the diffeifor menace war to the perfon that hath right, then the law, which doth not compel to impo0ibilities, allows him to make his claim as near the land as he durft come. Lit. fea. 4.ZI '^^^^ notion of the laches, in not claim- s, 3, 4, 5. ing for a year and a day, is taken out of the feudal law; fo is the exprefs words of Fr;ederick, touching the tenant's claim of JDf cotifittttai tUim: ^t his lands from his lord. Prater ea /Iquis vifeudatus tnajor quatuordecim amtis fua incuria vel negligentia per annum & diem fieterity quod feudi invejiuram a propria domino non petierit, tranfaBo hoc Jpatio feudumamittat, Digeft, Feud. lib. 2. tit. SS^ fo. 543, Vigelius 241, 255.-478. And the reafon why this time of a year and a day feems to he fet by the feudal law is, becaufe the fervices appointed feem to be annually compleated j and therefore that was the time for the valTal to claim from his lord j and the fame time that he had to claim from his lord, he had to claim from any diffeifor for the unifor- mity of the law j and that the lord might know who was the perfon that he might take for his tenant, and that the lord might receive his feudal fruits from the heir, in cafe the diffeifor died. And if the tenant loft the whole feud, in cafe he did not claim within a year and a day, it is fit he {hould lofe the right of pof- feflion, in cafe he negleds his claim upon the diffeifor in the fame fpace, that the heir may be in peace, and that the lord may receive him as his tenant. For that was by the Ancients thought to be a vio- lent prefumption of derelidlion, both in the one cafe and the other. But our law, iince it gives a diftrefs for all feudal du- ties, doth not prefume the feud derelid:, in 42 j©f cottti'tiuai tUintl In cafe feudal fervices are not paid, fince the lord has a power to compel the pay- ment } and therefore the law doth not in- duce any forfeiture in that cafe. But the law gives the right of pofTeffion to the heir, in cafe the diffeifee doth not claim within the fpace mentioned, becaufe there the prefumption remains of the derelidion of the dilTeifee, fmce the entry or adion is the only way that he has to obtain pof- feflion. But if the diffeifee enters within a year and a day before the defcent caft, though there were twenty mean diffeilins, yet the entry is not taken away; for there can be no jus pojjejjionis in the heir, if the diffeifee has continued the pofTeffion by thofe folemn ads that the law requires, and within the time that the law builds a prefumption of a derelidion, if the dif- feifee negleds his entry. But if the dif- feifor at common law had kept pofTeffion forty years, and the difTeifee had entered but half a year before his death, yet in that law, as Litt. remarks, the heir had not gained the right of pofTeffion, becaufe no derelidion can be prefumed, if the difTeifee claims within the time prcfcribed by the law. And if the law cannot pre- fume that the difTeifee has deferted the right of pofTeffion, it cannot be transfer- red to the heir of the difTeifor^ nor ought jSDf tonft'nttai tWm", 43; the lord, in fuch cafes, to accept of his fervices from fuch heirs. Nay, Coke fays that the feoffee of the diffeifor that comes in by title after a year and a day was ex- pired, was anciently held to have right of poiTeffion, and to put the dilTeifee to his writ of entry, becaufe they come in by title; and for quiet of purchafers, this non-claim for a year and a day was held a derelidtion. Hence writs of entry againft the feoffee in the per ^ cut. Bat this was not held fo in refpedl of diffeifors, becaufe they themfelves being the wrong doers, had no law in their favours, left it fhould encourage fuch injuries. But af- terwards, as feoffments became more fe- cret, and nothing paid to the lord, then they thought it too hard fuch feoffments fhould alter the right of polTeffion, and therefore they conftrued the feoffee that came in by his own ad, to be a wrong doer, and not to alter the right of poffef- fion ; but the heir, for the reafons afore- f^id, was left as before. If the diffeifor dies feifed within a year Lit. fea.426. and a day after the diffeifin, and before any entry by the diffeifee, this gives a right of pofieffion to the heir, becaufe when the diffeifee yields up the poffefhon peaceably, the prefumptive right is in the diffeifor j for it is to be prefumed that the diffeifee 44- ^f tontfttttfti cUim diffeilee would return again to his poflef-' fion, if he were not confcious that his adverfary had the rights wherefore there is no time given after fuch difTeifin, for the diffeifee to affert his right; for it is to be prefumed he would do it immedi- ately, if he has the right of poffeffion in him, and the rather, for that men have the quickeft fenfe of injuries immediately after they are committed. So that the giving up the pofleffion tamely, and yield- ing to the difTeifin, makes a ftrong pre- fumption for the dilTeifor's right, and by confequence the law muft take the right of pofleffion to be in the heir of the dif- feifor, and the lord is bound to accept him as tenant, and to relieve the tene- ments into his hands. But if the diflei- fee had re-entered, then he had aflerted his own right of pofleffion by fuch his entry ; for affeSlio impojttt nomen operi ; for the law cannot fuppofe the difleifee to have relinquiflied his right again ft his own exprefs adt to the contrary. And if the difleifee has not deferted his right, the lord ought to attend to the folemn claim made by him, and not relieve the tene- ments into the hands of the heir of the diflTeifor ; and if he doth, it is null and void, and cannot give him any right. If M continual claim, 4s If a man be difleifed, he may have an Lit. feft. 450. aaion of trefpafs againft fuch difleifor for ^-^"'f^^ the ad of en try, becaufe the dilTeifee be-"^^""^'^ ing in ad:ual~poireffion, and taking the 5^'^ ' profits, violently to enter and take them away muft be a tranfgreffion, and the de- ftrudtion of a man's goods and chattels is punifhed in this aa:ion. But after fuch dilTeifin he can have no trefpafs for the mean profits, for the mean profits follow the pofTeffion ; and the perfon that re fides in the feud is intitled to all the profits of it; becaufe the burthen of the feudal du- ties is laid on him while in poflefilon, in defence of his flock on the ground ; but n Co. 5f: when the difleifee enters, the dijGTeifor is a ^o-^"- 257- trefpafTer aif initio -, for from the time of 27. s. 9. his entry the diffeifee is in of his old title, 2 RoJ- Abr; and feated in his rightful feud as he wasl^^' g^ before ; and therefore for all the interme- diate time it was a violation done to the profits of his feud, fince it was originally {o, and he is in as from the beginning. If a man has the frank tenement in law Ld. Raym; cfe/^y<"<' in him, yet he fliall not have an adion "9. 476-^ ^7/-/^/ or trelpals betore entry; as the heir mail ^/.Cv«/>//5r.v,^^^^^^ not have an adlion of trefpafs againft the ^j^/>y^s<^cx/,,Tsse^^^, abatorbefere mw; for^he poffeffion of i;y.':^J'i:^rf^ the heir canBot be abated before he is ac- ^'^'^: ^^«;^-^.^ tually pofTefTed^j^if^no man can be faid .IpT.r.fe' S:! adually to enter, till the adtual pofTeflion '^/^^^^^-^a^^ 46 M conttttuai tWml is in him, and no man can be a trefpaffer to that poffeffion the law cafts upon him, which is only a poireffion de Jure, and is not capable of an adual violence. Belides, no chattels by our law can defcend, and therefore he has a right to the grafs upon the ground only as it is part of the free- hold ; and fince he never entered on the ground till the chattels are fevered, he can have no right to them at all, becaufe he cannot fhew that the poffeffion of them was ever in him, or any perfon from aRol.Abr. whom he can claim them; and therefore 553- no violation cari be done to fuch poffef- •'9 • • 2 • j^Q^ i^y, jai^ii^g them away. But if a man' be diffeifed, and his entry be taken away, he can never recover the mean profits;, for then the right of poffeffion is out of^ him. The heir of the diffeifor is feudary! to the lord, and has a lawful poffeffion, and the diffeifee can never re-enter to make him a diffeifor ; and if the diffeifee' has no right to enter on fuch poffeffion,' he can have no right to the profits of fuch poffeffion, but the right is in the heir to 2R0I. Abr. undergo the duties of the feud. But if a' ^^°* man were diffeifed, and the diffeifor made a'feoffment in fee, and afterwards the dif- . feifee had entered, he might have had ari^ adion of trefpafs again fl the feoffee, be- ' caufe this, is a continuation of the fame violence violence to the iflues and profits that be- long to him, that was firft begun by the diileifor. Cro.EHz. ^4.0. M?. 461. 2 Roi. Abr. 554. Licet 10 Co. ^i. i Afid. 352, Hob. 98, I RoL Rep. loi. GoS. 388, are to the contrary. It feems not doubted that the old law was otherwife, of which I fhall deduce a brief hiftory. In Saxo?2 times the right of propriety feems to have been only recoverable by a writ of right, as the right of poffeffion was recovered by a writ of entry ; and Sir William Herle himfelf tells us, that the particular writ of entry of cui in vifa was not anciently known, but they reco- vered in that cafe in a writ of right. 5 Ed, 3. 58. 2 L2/I. 343. The procefs in both thefe adtions were alike, viz. by fum- mons, grajid cape before appearance, and by petit cape afterwards. But the battail was in the writ of right, where the pro- perty was doubtful; but in matters of plain and obvious right, as were thofe of poffeffion, they did not appeal to provi- dence. And it is to be noted, that the procefs and proceedings in thofe adions were not then fo tedious, where the courts were held from three weeks to three weeks, and the procefs iffued at every court day. But after the conqueft, all caufes were drawn into the king's courts to create the greater ii^8 -Df cotttt'nnai tUini: greater dependance ; and then the procefs ifTuing from term to term was found very dilatory. Hence the aflife was invented to do juftice to the people in their proper lU.Raym. counties, by the king's judges, and to dc- ^' termine the matter at once. From thence it is faid by Glanvil^ BraSlon and Fletay to be a new-invented remedy, Glanv. lib, 2, c.y, Fleta 214, 215. And that it was of Norma?! original, appears by the Cujiomier 16. b. But the writ of entry retained its old procefs, and therefore fell into difufe, as brought againft the difleifof himfelf ; and when it became thus obfo- lete, the writ was called a writ of entry, in the nature of an afTife, as though that had been the elder adlion ; or rather be- caufe both being of the fame kind, the affife was a bar to the writ of entry, G? n^ice 'verfa ; for both, as brought again ft the diffeifor, fuppofcd a right of entry in the dilTeifee, and no aftion could be brought above once by the law for the fame thing ; wherefore one a6lion was gi^ ven once only for the right of pofTeffionj and once for the right of propriety. But a man might bring one adtion for his own tlid.Raym. right, and another for his anceftor's right; *73« for fuch rights of pofTefTion were diftindt and different the one from the other. 6 Co. 7.b. When the feud became farther to be con- iidered £)f cottttttttai claim. 49 (idercd as a civil riglu^ from henceforth it was not thought neceiTary that the fcu- dary il)ould caft hiiiilelf on providence, and defend his military pofTcffion by hat- taih Then it was thought tit to make a change in the aftion 3 and for three de- fcents and three alienations a man was al- lowed his writ of entry j becaufe the dif- feifee, being the rightiul proprietor, fhould not be forced to a combate j but after three defcents it was thought that more than half the right was paid for by fines and reliefs to the feudal lord ; and there- fore the dilTeifee was put to his writ of right, to adert his right of propriety; and every body knows that the writ of entry zlnfl. 153, in the pofi came in by the ftat. Marlb. c. ^o. Whether the other emendations in thefe 2 Inll. 248. actions were made by the jufticiar, chan- cellor or parliament, is uncertain, but no damages were recovered but againft the difleifor himfelf, either bv affife or writ of entry, till the ftat. Glocefl. c. i. becaufe the dilTeifor received the purchafe money, and ought to anfwer the damages, and becaufe the feoffee came in as an innocent man, and paid his fine to the lord, and even came in in default of the diifeifee himfelf, he not preventing it but by his entry ; therefore no damages were allowed till the faid ftatute. F When 50 )©f cotttfnuai claim. When the fines for alienation were wore out, and they found the prejudices of fe- cret feoffments, v/hich were made anci- ently, as is faid, to acquire a right of pof- fefHon, and before that flatute to excufe damages. 2/7?/?. 2S4. Hob. ^fi. And here it is to be known that the difTeilor hath the naked pofTeffion. The feoffee has a colourable poffeffion coming by title, and the heir has the right of pof- feffion. The reafon why the feoffee's title was formerly allowed, though he came in by wrong, is, becaufe he anciently paid a fine to the lord j and therefore anciently, if he continued in poffeffion a year after fuch parchafc, the feoffee of the diffeifor gained the right of poffeffion : the hiftory whereof will be proper here. * By the ancient feudal law, no man could alien without a licence from the lord of the fee, and this licence was part of the notoriety on fuch alienations. And if they alienated without fuch licence, the feud was forfeited. Nor could the lords part with their manors and fervices without * Ex jure feudall non minus dominus prohlbetur ah oUenatiom Jul domin'ii direSie fine confenfu fut vajfalli, qiiam vajfallus ab alienatione feudi, iff utroque cafu pari poena (s* hie £3* ilk punitur^ ille amijjione direife 'd:rninii, hie, uiiiis. Feud, lib, I. tit. 22, the Df conti'ttuai claim. 51 the attornment of their tenants, left they fhould fabjel xtltaks. WHEN a difTeiiin is committed, ^«- ^^a 444, the pofleffion and right is fepa- ^* rated ; but they may by a lawful convey- ance be again united. Now when a man has the right and pofreffion in him, he muft f onvey by feoffment, which rrade a notoriety among the tenants, by the feoffment coram paribus. When a man was out of poffeffion, he might convey by releafe only ; for the diffeifor had the poffeffion, which of itfelf made the noto- riety, and the releafe transferred the right; fo that a releafe is a conveyance of right to a perfon in poffeffion ; and this comes inftead of a feoffment ; for a man cannot be put in poffeffion, which is the opera- tion of the feoffment, when he is in pof- feffion before. A releafe of all a man's right fuppofeth Lit. feci. 446. that he has right, for he cannot transfer ^g^ ^^y*"* a right which he has not ; for if he has Ld. Raym. nothing, nothing can pafs by the con- 1306. veyance; and they thought it countenan- ced maintenance to transfer poffibilities. But if the heir releafes with warranty, it bars him when the right defcends ; for the warranty is a covenant for the defence E.;3 of 54- 4>£ tcleafes- of lands by a man's own a6t made equal to a feudal contradt, and therefore re- ^^ pelled the piirty himfelf or his heirs from claiming it, fince he was bound to defend it to another ; of which fee Hales Siiccejl 57. and tit. JVarranty. But though a man cannot transfer a right that has no being, as he cannot releafe to the bail be- fore judgment, or to the conufor of a flat. Jill his right in the land before exe- cution ; yet when that which was eileem- ed a poffibility takes the being of a right, as the remainder of a term of five hun- dred years, it may be veleafed, becaufe the notion of the poffibility has vanifhed by the certain eftablirnment of the term. 10 C$. Lamperfs cafe, 47, 48. Lit. Tea. 447, A man cannot releafe but to the tenant ®' of the freehold ; for the prefumptive right is in the freeholder (though he comes in by diffeifin) during his poffefTionj and the lefTce for years takes and retains the pof- feffion but as his bailiff j and fmce the nsflion and entry is only on the freeholder, he only is capable of a releafe, and the leffee for years is a ftranger. But if a man has a freehold in law I may releafe 5 for then the law cafts the poffeffion upop upon him, and he has the prefumptive right. Vide pJi.feB. 510. o Releafes Releafes are fourfold, either enuring by Lit. fea. 449. way of mittre le droit, extinguifhmenr, *^^°' *' ^*'^' enlargement of eftate, and mittre le ejiate. Firft, by way of mittre le droits and this cither to the dilTeifor himfelf, or to the feoffee coming in by tide, or to the heir of the diffeifor. Where a man relecifes to the diffeifor himifelf, it alters the right j but where to the feoffee, it does not alter his titles for the diffcilur coming in by wrong, the poffeffion is only in him, and there is no notorious title, but only the bare poffeflion ; and therefore a releafe makes good that poffeflion, by making of it rightful. But the feoffee comes in by title, and therefore the releafe cannot alter the title ; for the feoffment being a noto- rious adl, muff be defeated by an ad of equal notoriety, before any alteration can be made in fuch title. Therefore if there be two diffeifors, and the diffcifee releafe to one of them, he (liall hold out his companion, becaufe the diffeifor comes in by no lawful or eflablidied a6t of noto- riety, which ought to be defeated before the manner of poffeliing can be altered; and therefore though he poffcffcd as a joint- tenant before the releafe, yet after the releafe he fliall ouft his companion, becaufe he was poffeffed of the whole be- fore by wrong, and now being poffeffed E4 t)y 56 ^f reitafes. hy right, it follows that the pcirtfTion of the oth.LT wrong doer is no pOir-llion at Lit. rea.4~z. all. Bat if a dilTcifor had iiifcofFed two, the releafe cf the diffeifee to one fhould enure to both, becaufe conning in by the legil notoriety of a teotinient, that muft be defeated by an adt of equal notoriety, before the title can be altertd, bccaufe the feoffment mu(l (land good, as an adt that gives warning to all perfons in whom the iVeehold fubfifts, till by fome ad of ^qual folemnity it appears that the freehold is in another. Now fince the freehold is not defeated in^his cafe, the feoffment continues, and the releafe enures to them both. Another reafon given by the Lord Coke is, that they may have opportunity to take advan- tage of their warranty, wliith will happen if they be defeated by adion or entry j for then if the diffeifor refules to give a plea In ivarraiitia char tee ^ they fhall re- cover in recompence, which cpuld not be pra(!fifed, If the feoffment were defeated by the fecret operation of the releafe. By the fame rule of reafon, where a diffeifor makes a leafe for life, the remainder in fee, and the diffeifee releafcs to the tenant for life, or to the remainder-man, this enures to them both, becaufe coming in by feudal conveyance, it cannot be altered, 3 ' uniefs £>f releafest. 57 unlefs it were defeated by an afl: of equal notoriety. If a diflcifor makes a leafe for life, and the difieifee releafes to tenant for life, this fliall enure to him in reveriion, becaufe the releafu cannot alter the eflate that pafled by the feudal feoffment, without lome adl of notoriety by which that feofi*- n^ent is deflroyed ; fo if there be two difTcifors, and they make a leafe for life, and the diffeifce releafes to tenant for life, this fliall enure to them all, becaufe the releafe cannot alter the feudal feoff- ment. If there be tenant for life, the remain- Co, Lit. 276, der in fee and tenant for life is diffeifed by two, and he releafes to one of them, he fhall not hold out his companion ; for if he had a rightful eflate for life by the releafe, then the remainder would be re- vefted : but the lemainder cannot revefl without fome ad: of notoriety j for where there is a notorious poffcffion by wrong, that may receive a releafe of the right, without any ad: of notoriety, becaufe the poifciTion is in itfelf a notoriety, but the ©ftate cannot alter without fome ad of notoriety, fo that men may know in whom the fee is lodged ; and therefore one of the dilTcifors doth not take an cflate for life, and reveft the remainder; for 53 m teieafes. for he to whom the releafe is made hath a longer eftate than the releafor ; and fo Ihould he be tenant for life, the releafe would enure by way of grant of his eftate. So if the remainder-man had re- leafed to one of the difleifors, he fhould not hold out his companion j for if the releafee might hold out his companion, the eftate for life gained by wrong would be left in both, during the life of tenant for life, fince the remainder-man could not by his entry overthrow it during the continuance of the eftate for life} and whatever right is acquired during the continuance of the unlawful pofteffion, is acquired to them both : for if one were to acquire the whole right in remainder, there would be no notoriety of the be- ginning or determination of the eftate for life in the other difleifor. But if tenant for life, and he in remainder, join in a releafe to one difleifor, he ftiall hold out his companion, becaufe when the poft^ef- ilon is notorioufly in them both, each of them are capable of a releafe ; and when one has obtained a releafe, it makes his poftellion rightful ; and his holding out his companion makes it immediately no- torious, that the eftate is in him alone. Nay, if the difl^eifors make a leafe for years, and the difieifee releases to one of them, M telcafeji. 59 them, this fliall enure to them both^ be- caufe he cannpt make it notorious that the eflate is in him alone, becaufe he can- not hold out his companion during the continuance of the leafe for years. So if two joint- tenants are diifeifed by two, and one releafes to one of them, he fhali not hold out his companion, becaufe he cannot hold him out of the whole, be- caufe he has not the whole right ; and fo there can be no adt of notoriety, whereby the eftate may appear to be in one diffeifor. If the king's tenant for life be diffeifed Co. Lit. 275. by two, and releafes to one of them, this ^"^ enures to both, becaufe he can only be diifeifed of an eftate for life, fince the re- verlion in the king cannot be devcfted. If there be tenant for life, remainder for life, remainder in fee, and he in remain- der for life diffeifes the firft tenant for life, and the firfl: tenant for life dies, the diffeifin is merged ; for fmce it appears by the notoriety of the feudal contraft, that he is in his remainder for life, it mull follow that he cannot be to himfelf a dif- feifor of fuch remainder i and if he can- not deveft the remainder, the diifeiiin muft ceafe v/ith the poITefTion of the firft tenant for life. Littleton 6o £)f releafcs. Co. Lit. 276. Littkto}! alfo fays in thefc fcftions, that if there be tenant for life, the remainder in fee, and they are diffeifed, the tenant for hfe cannot releafe to him in remain- der, becaufe the naked right cannot be transferred. Having confidered how this releafe fhall operate, as to the dilleifor' himfelF and his feoffee, the third thing to be conlidered is, how it (hall operate as to the heir of the difleifor. The diffeifor has the bare poffcffion, and the feoffee has the bare poflelTion, but he hath it by title, and therefore the re- leafe to them ferves inftead of the delivery of the pofTefiion by feoffment; but fuch releafe pafles the right of pofTcflion as well as the right of propriety ; but the heir of the difleifor has the right of poffcffion in him J therefore the releafe of the difTeifee only paffes the right of propriety. If- therefore the heir of the difleifor be dif- feifed, and the diflrifee rcleafes to fuch difleifor, and after the heir recovers againft fuch diflTeifor, the right of propriety goes along with it, becaufe when the heir re- covers, he defeats the poirdiion of the dif- feifor, as if it had never been, and then- can he never recover in any adtion ; for in' the writ of right he muft: lay the pofl[ef- fion in himfelf, or fome of his anceflors, and this he cannot do in this cafe 5 for her© here never was any poflellion in him, but what was totally defeated and deftroyed ; and he cannot recover by the old polTef- iion of the difTeifee j for that v^-as turned into a naked right, which could not be transferred but to a real and true poflef- fion ; and here being no poffeffion but fuch as {lands defeated, it is the convey- ance of a naked right, which cannot be ; and were it allowed^ w ould be a particu- lar caufc of mainten a nce in thefe cafes . But if donee in tail difcontinue in fee, the reverfion in the donor is turned into a right : now, if the donor releafes to the difcontinuee, and the tenant in tail dies, and the iffue in tail recover againft: the difcontinuee, yet he leaves the reverfioQ in the difcontinuee of neceflity; for the iflue in tail can recover but an eftate- tail J and as the donor might have granted the reverfion while the tenant in tail was in pofleffion, fo he may releafe it to the difcontinuee, who has the right of pof- feffion. But diffeifee enters upon the heir of difleifor, and infeofFs A. and the heir recovers againft A, he hath gained the .right of propriety j for y4. cannot recover back againft him, caiifa qua fiipra. But if the difTeifee diffeife the heir of the dif- feifor, this doth not get the right of pof- feflion ; 62 £)f nitntts: feffion ; but if the heir recovers the right of pofTeffion, it leaves the right of pro- priety in him as before ; for there is no reafon, in this cafe, the right of propriety fhould be carried along with it : for fince the right remains in him unmoved, and not transferred over to any perfon, he can recover by virtue of the old feifin, that was lawfully in him, though this new- wrongful poiTeflion be defeated and de- llroyed. Therefore alfo if the heir of a difleifor be diffeifed, and the fecond dif- feifor infeofFs the heir apparent of the dif- feifee at full age, and the difleifec dies, and then the heir of the diffeifor reco- vers again ft the heir of the dilTeifee, yet the right of propriety continues, becaufe though the new and wrongful poflefiion be defeated, yet he may recover the right of propriety by force of the ancient right- ful feifin that was in his anceftor. If the heir of the difleifor be diffeifed, . and the difTeifee releafes to the diffeifor, upon condition, and the condition be bro- ken, this revefls the naked right in the difTeifee, becaufe when the condition is broken, the releafe is as if it had never been, and therefore the difTeifee may re- cover by virtue of his ancient feifin. If £)f reicafcg. 63 If diffeifee difleife the heir of the dif- fcifor, and make a feoffment in fee, on condition, if the heir enter before the condition broken, the right of the diffei- fee is gone for ever ; for when the feudal eftate that pafTed by the feoffment is de- feated, the condition thereunto annexed is dcftroyed, and is incapable of being per- formed or broken, and the right can ne- ver reveft in the diffeifee, but upon breach of the condition, which is now become impoflible j therefore the right can never reveft in him at all, and therefore he can never recover by virtue of his old feifiin, and the feoffee cannot recover, caiifa qua fupra. But if the condition had been broken, and the diffeifee had entered, the old right had been revefted j and if the heir had entered upon him, he might Co. Lit. 26G. have recovered by virtue of his ancient feifin. Secondly, £)f nleafejs tfjnt enute bp tonp of minguiiljment If a man be diifeifed, yet he remains Lit- fea. 4^4, tenant in right to the lordj but the dif- ^' ^' "' ^' 9- feifor is the apparent tenant in poffeffionj Ld^Raym.'"^* and the lord may^ if he pleafes, ftill avow S'S. 5'8, upon his rightful tenant j for before the ^^^' "^^' ftatute of %/^ etnptoreSj the lord was not obliged obliged to change the body of his tenant. StamJ. Prarog. 28. and now he is not obliged to change his tenant, but in cafe of lawful feoffments, and tender of ar- rears, and not in the cafe of a dilleifin. Therefore if a man be diffeifed, and the diffeifee puts on his beafts upon the land, and the lord takes them for rent arrear, the diffcifee fhall compel him to avow 9 Co. 21. upon him; and if the lord avows upon the diffeifor as his tenant, the diffeifee fhall reply, and fhew the efpecial matter, how he was tenant and was diffeifed, and fhall abate the lord's avowry, becaufe the feudal contradl has flill a continuance be- tween the lord and tenant, and the wrong- ful adl of the diffeifor fhall not deftroy it ; but if the tenant be diffeifed, and the lord accept rent from the diffeifor, and then the lord diftrains his beafts for rent in arrear, he may compel the lord to avow upon him, becaufe he may plead that any ftranger infeoffed him, and that the lord accepted rent j and the lord can- not, contrary to his own acceptance, tra- verfe the title that he has admitted by fuch acceptance. But what if after fuch acceptance the diffcifee ffiould put in his beafts, and the lord fliould diftrain theni, can the diffeifee compel him to avow upon him ? Coke is of opinion tl^t he cannot. cannot, becaufe it is the tenant's own laches he let the difTeifor continue till rent was thus due and accepted; but the opi- nion of the 48 Ed. 3. 9. feems to be con- trary, and that he muft avow upon the difleifee, becaufe when the tenant pleads the difTeifin, to compel the lord to avow upon him, it is ftrange that the lord, by his own ad: of acceptance, fliould main- tain his avowry, and deftroy the feudal contradl. ^cere, and fee the book of Ed. 3. For after acceptance, whofefoever beafts he take, by the book he feems to be obliged to avow upon them to main- tain his diftrefs. Co. Lit. 268. 20 H. 6. 41 Ed. ^. 2 a. 2 Ed. 4. 6. but very plain it is, that before acceptance he fiiall be compelled to avow upon the difleifee, if he puts in his beafts, and the dilTeifor cannot compel him to avow upon him, though he takes his beafts on the pre- mifles. So in the cafe of wardfhip or efcheat. He may take either heir or ei- ther title before acceptance, but after ac- ceptance he cannot enter for the efcheat of the diftei fee's right, becaufe he has ta- ken another tenant. It is alfo plain, that if the difleifor dies feifed, the heir of the difleifor comes in by title, and then the difteifee cannot compel him to avow upon F him : 66 £)f releafCiS. him ; for he has loft the right of poUci^ fion, and the difTeifce cannot put his beafts upon the ground, and therefore cannot compel the lord to avow upon him ; and therefore the lord muft take the heir who has fuch right of polTeffion, to be his rightful tenant J but becaufe the difleifee may enter and occupy the land before the defcent caft, therefore the lord may re- leafe to him, and difcharge the contract, which is to his benefit, and is ftill fo far fubfifting, that he may take advantage of it. So where donee in tail releafes to the difleifor all his right, yet if he in the re- verfion releafes to him afterwards, it (hall extinguifli the rent. So where tenant in tail makes a feoffment in fee, though the tail be difcontinued, becaufe the ftatute that foibids alienation continues the rela- tion of lord and tenant, notwithftanding Co.Lit.'269. the alienation. But if there be lord and very tenant, and the tenant makes a feoff- ment in fee, and afterwards the lord re- leafes, this releafe exdnguiihes nothing; for the feudi^l relation is not fubfifting after alienation, and the feoffor only of neceffity becomes tenant in the avowry till the lord procures his arrears. If there be tenant for life, remainder in fee, and they arc diffeifed, and the remainder-man releafes rcleafes to tenant for life, this releafe pafles no right, as is faid, becaufe the remainder-man is out of poiTcffion, and fuch a right cannot be transfered, but it ferves to extinguiili the right ; for he may extinguifli the benefit that accrues to him by the feudal contradt. Co. i Rep. It is here to be noted, that before the fiatutc of ^a'a emptor es J if a man had aliened, the feud was forfeited, but afterwards that was compounded for fines ; but the lord could then only demand a certain compo- sition J and becaule the tenant had fworn fealty, he could not withdraw himfelf out of the feudal fervice during life, but after the death of the feofror, the lord was enforced to take the feoffee for his te- nant J for the lord could not introduce the heir into the fend, contrary to the ajienation of the anceftor. And after the flatute of ^lia e?nptores^ the lord could avow upon the feoffbr till the arrears were tendered ; but both before and afcer the flatute, by acceptance of the feofice, he became his tenant j for it is a plain con- fent to the alienation. So in Terois ; if a termor afiigns, and the landlord accepts rent from the aflignee, he can have no a£lion from the termor, becaufe the rent is a fervice, which being taken from the F 2 aflignee. 68 £>f teltafesi. aflignee, eftablidies him in the term, and he cannot demand the fervice but from the tenant of the land ; but where there is no fuch acceptance, if the termor af- iigns in his Hfe-time, or the executor af- ter his deceafe, yet an acftion of debt lies for the rent againft the executor; for a term for years being the fmalleft eftate, is prefumed to continue in perfon, and the contrad is fuppofed to be performed by that perfon, unlefs he accept another tenant; and that perfon has a continuance to perform all contracts as long as there is an executor that reprefents him, and has aflets to perform his contracts. 5 Co, 24. I Sid, 266. But a man may have an adlion of covenant on the covenants in the leafe, after the acceptance of the affignee for his tenant ; becaufe though the acceptance discharges the tenant from the action of debt, becaufe it difcharges the fervice by accepting another, yet with- out legal words and a folemn contrad in writing, the covenant cannot be difchar- ged ; for Solvetur eo ligamine quo Ugatum eft. Cro. Jac. 309, 522. Cro, Car. 188. 465, 6, 7, 8, 9, 470. Thirdly^ ^f vtuatcs. 69 Thirdly, (Df relCiifcfi tfjat enure bp U)np of enlnrijeinent of r&c eftatu And here it is to be known that ail feudal eftates pafTed, as is laid, by feoff- ment, where the contradt was folemnly made cora?n paribus with the utmofl no- toriety, that all perfons that had right might have the utmoft notice againfl whom to bring their adions : but when the feud came to be inheritable, then it was neceffary that there fliould be con- veyances to pafs the eftate, where the feu- daryhad parted with the poflefTion for a limited time ; as alfo for the lord to pafs the fervlces of his feudal tenants. Now this could not be by feoffment, becaufe fuch perfons had not the poffeffion to transfer. Confequently it was neceffary that they fhould pafs by grant, where the parties had the utmoft notoriety that the matter was capable of, which anciently made a notoriety three ways. Firft, by attornment or confent of the tenant, which was required, left the lord that had often deadly feuds with his neighbouring clan&, fhould compound the matter by the alie- nations of fome of the feudaries, who might be forced into the fealty of another lord, with whom they had anciently con-^ F 3 tended. .7:° M tcleafcs. tended. Secondly, the notoriety was made by the payment of i'ervices, which being anciently corporeal, it was eafily feen who was the feudal lord, becaufe the military tenants attended the lord in perfon in the wais, and the focage tenants plowed and mannrcd the lord's grounds, fo that when granted it was eafily fecn where the fer- vicc was paid. Thirdly, a notorious pof- lUiion i the eftate of which may be en- larged. Fourthly, by fines for alienation, wiiich gave notoriety to fuch contravfl^, whiich grew obfolete by alienations to hold part of the feud j and afterwards by the llaiute ef quia emptores, that gave power at all timetj to alien, holding of the fupc- rior lord ; but the former caufes of noto- riety (Vill continue. Now a releafe to the particular tenant from the lord from whom he holds, is equal to a grant and attorn- ment, for the fervices go over to the fu- perior lord, and there needs no attorn- ment; for the tenant's accepting the grant is an attornment, and acceptance and con- fcnt is prefumed to a grant made to him- felf, unlefs the contrary appears. \{ A. makes a leafe for life, and lelTee for life makes a leafe for years, A. releafes to the Icffee for years, and his heirs, this js void, becaufe here is not the confent of the tenant for life, who is immediate te- nant nant to the reverfioner, and ought to at- torn, and therefore this eftate ought to pafs by grant and attornnient : fo it is if a man leafes for twenty years, and the leffce afiigns for ten years ; but if a man makes a leafe for years, the remainder for life, and afterwards releafes to the tenant for years, this is good, becaufe the tenant for years holds of the reverfioner, and pays him the fervices, and ought to at- torn to bis grants, and not he in the re- mainder for life J and therefore where te- nant for years accepts a releafe of the reverlion, it muft in confequence be good; but in that cafe a releafe to him in the remainder for life is good, becaufe the lef- fee, in the original infeudation, took the eftate for years, fubjedt to fuch remainder for life, and therefore there need^ no con- fent from the leffee for years, to enlarge the eftate into a fee. But a man muft not only have an immediate relation, but he muft have the notorious ooffeirion of the eftate, as tenant for life has by the feudal contract ; for if he bath not the pofleffion, but has afligned it over to ano- ther, there can be no fuch notorious pof- leffion upon which a releafe ftiould enure; for it would deftroy the folemnity of con- trading, if the releafe fhould pafs the eftate, and charge the tenant, when the F 4 party 72 £)f reieafes. Af^2iX\.'^ was not really in poffeflion. Thus ^/vtr/30oi. ^^ tenant bji^ the curtefy is tenant to the heir ^.^^y''^^^'^/^ By theTaw, which he cannot alter by his ''^u£ /jo^^ , Ae f ttUAtts: prior feudal contradl; and if any of them difclaim, the reft muft defend for the whole, or lofe their intereft. But if there Booth. 33. be two tenants in common, they cannot releafe to each other, but they muft pafs their eflate by feoffment j becaufe this eftate being eftabliQied by different noto- rieties, each having paffed by diflind H- verieSj they muft pafs to each other by a diftioguifliing hvery, or elfe it cannot be known in whom fuch parts are, which formerly had paffed by a diftind livery. eo.Lit.273.b. A^. B. That releafes that enure by way aoo.b. 169. Q^ fjiittre le ejiate, need not have the word heirSy becaufe the parties are not in by fuch releafe, but by the former feudal contract, which paffed an inheritance, and the re- leafe only difcharges the pretenfions of one ©f them. m £)f confitinatiott. Confirmation is the approbation or af- Lit. fe£i. 515; fent to an eftate already created, ^^- ^^y*"- which, as far as is in the confirmer's power, makes it good and valid : fo that the confirmation doth not regularly create an eftate ; but yet fuch words may be mingled in the confirmation, as may cre- ate and enlarge an eftate j but that is by the force of fuch words that are foreign to the bufinefs of confirmation, and by their own force and power tend to create the eftate. A releafe pafies away the right from the Sea. 516, releafor, and by that means may conle- quentially ftrengthen the eftate; but a con- firmation primarily ftrengthens the eftate, and confcquently fo far as the eftate conti- nues, makes it good againft the confirmed If my tenant for life makes a leafe for years, I cannot releafe to the leflee for years, becaufe there would want the attorn- ment of tenant for life, and therefore the right muft pafs, as is faid, by grant and attornment, and not by releafe; but I may confirm the eftate of tenant for years, for there w^ants nothing but my afiTent to cor- roborate the eftate already in being. I cannot iW- 7^ i©f confiriuation. Sea. 518. I cannot releafe to the termor of the diffeifor, becaufe he is a perfcdt ftranger to the freehold ; fo that the releafe is to one that has no right or poffeflion of his own, and therefore it is to him a releafe of a naked right ; but I may confirm that eftate which is already in being in him. Sea. 519, If ^ nian confirm the dilleifor's eftate for 520. an hour, this paiTes the fee, even without the word heirs, becaufe the difiTeifor has the fee j and when that eftate is aflented to, the difl'eifee can never afterwards de- ilroy it. So if he confirm the term of the leftee of the difteifor for fome part of the years, he cannot defeat it during the whole term, becaufe the term is confirmed j and the laft words being derogatory from his own grant, muft be rejected 3 but if he confirms the land to the termor, for part of the term and no longer, this is good, becaufe the party that had right, did not totally aftent by exprefs words, as he did in the two former cafes; for if he did, no derogatory claufes from fuch aftent could be admitted ; but his aftent was originally but partial, and not to the whole eftate, and therefore it cannot, contrary to the exprefs words, be carried any farther. c.n , If a man releafes to tenant for life all beet 5zr. t ♦ • 1 1 • 1 • • 1 his right, this enures to him in the re- mainder, becaufe he parts with his whole; and M cottfitmati'on. 77 and he that has but an eftate for life by the feudal conveyance, cannot have the whole fee, as is faid. But if a man con- firms the eftate for life, it is an approba- tion and affent to that eftate only, and therefore the aft*ent being no farther than to the eftate for life, it cannot be carried to ftrengthen the remainder; but if he had confirmed the remainder, that had confirmed the eftate for life by implica- tion ; becaufe the remainder cannot be without a particular eftate to fupport it, therefore the confirmation of the remain- der muft imply an aflent to all means ne- cefl^ary to fupport it. If a man confirm the eftate to one of Seft. 522. the difleifors, he only has the eftate as he formerly had it, which was jointly with the other difleifor ; but if he confirms the eftate of one difixifor in the lands, to have and to hold the lands, or his right to him and to his heirs, then fuch difi^cifor (liali hold out his companion ; for fuch ba- bendum explains the manner of his con- firmation, njiz. that he ftiould not hold the eftate meerly as it is, but in a manner more beneficial for him, that is, that he fhould hold the pofiTefiion that he has per my ^ per tout to him only; for the ha- bendum explains the afl^ent, viz, that he fliould hold the pofleffion fole ; fo that ^ the 78 £Df confiVmatfott. the poffeffion in the whole being con- firmed to him only, he has the total right to fuch pofTefTion, and therefore may hold out his companion. Sc£l. 523. If one joint-tenant confirms the land to the other, this makes no alteration, for he confirms the eftate in the fame manner as it is J but if it be to have and to hold fuch lands to fuch joint-tenant only, he has a fole eftate ; for then he exprefles a defign of confirming the pofleflion to him alone ; fo that the confirmation goes to the pofieflion itfelf, by the explanatory words in the habendum^ and not to the manner of pofiefling ; and the words of the ha- bendwn make the confirmation enure as a new grant of fuch his moiety. Sea. 524. Where a man has an eftate but for life, and he in the reverfion confirms the eftate to him and his heirs, the confirmation as to the heirs is void, becaufe the eftate is only confirmed, and nothing new is granted by fuch confirmation, and the eftate can continue but for life only ; but if it had been to have and to hold the land to him and his heirs, that had amounted to a grant of the fee ; for then there appears to be a farth^ intent than meerly to confirm the eftate, viz. to enlarge it to him and his heirs'; and taking the grant ftrongeft againft the grantor, it muft pafs away the fee- fimplc. So £)f cottfitmatiott* 79 So where I let lands for life or years to Seft. 525, 6, a feme fole, who after marries, and I con- firm the term to the hufband and wife for their lives, this amounts to a new grant of the term for the Hfe of the hufband ; for I not only confirm the old term, but ere6t a new one, fmce the words import more than a confirmation of the old term; for in that the hufband has nothing in his own right. If my difTeifor, or my tenant for life, Seft.j 27,8,9; charge the land with a rent-charge in fee, ^^°' and I confirm it, I fhall for ever afterwards hold it charged, becaufe I have aiTcnted to the eftate, which has a being from fuch difTeifor or tenant for life; and therefore I cannot afterwards deflroy it. If I only ufe the words Je£ &' concejfi^ Sea. 55 1,2,3; that is as flrons; as the word confirmavi ; ^^y"^- . 49» S^« for it amounts to a grant of the right to the perfon in pofTeiTion ; and if he has my light, I can never after impeach his eflate. Here the heir of the difTeifor grants theSeft. 534; right of pofTeflion, and the difTeifee the right of propriety ; for every one grants what he lawfully may. The lord by confirming the eflate doth Sea.535,6,7.. not pafs his right to the feigniory, becaufe the confirmation or afTent to that eftate cannot be interpreted to pafs that other diftin during the continuance of the eflate for ^'^' ^' life, as to all the poffeffory fruits of fuch tenure; for the tenant for life cannot hold of the reverfioner, and yet the re- verfioner holds of him ; for he cannot ex- ercife the prerogatives of a lord over one G4 to 38 0f attommettt. to whom he owes fealty, * and therefore he can have no wardihip, marriage, -j- or relief of the reveifioner j but if the rever- iioner dies without heir, it fliall efcheat, J becaufe the tenure of the reveifioner is gone by his dying without heirs, and therefore the caufe of the fufpenfion is taken away i and therefore the tenant for life may have the fee without prejudice to any one -, but the tenant for life may not grant the feigniory during the fufpenfion, becaufe the feigniory is drowned in the lands, and he has not an eftate in the feigniory diftindl from the land j fo that the grantee can make no title during fuch fufpenfion, becaufe there are no fervices due from the reveifioner during the con- tinuance of the eftate for life. But if the very tenant in fee make a leafe for life or years to the lord, yet the lord may grant the feigniory, becaufe the fervices conti- nue, notvviihflanding the leafe j for the tenant holds the reverfion of the lord as he did before ; for the taking the leafe (hall be never interpreted as a defl:rudion * Crag, de Jure feud. 45, 46, 47. t BraSlon^ lib. 2. c. 36. Fleta^ lib. 3. f attornment. 89 of the fervices that were before due to the lord, while the tenancy of the fee- Umple has a continuance; but if the lord dilTeife the tenant, or the tenant make a feoffment to the lord, then he cannot grant the feigniory ; for the lord by the common law, in the firft cafe, and the Co. LH. 314, llatute of ^lia e??iptores in the fecond, 564- holds of the next fuperior lord, and he fea. 582.* has no feigniory diflind: from the land Lit. feft. 565. itfelf. If a tenant gives a penny as attorn- ment, this v/ill not found an affife, be- caufe it is no feifin of the rent, unlefs he gives it in the name of feiiin ; but the grantee may have a writ of refcous, be- caufe the diflrefs is lawful, being annexed to the fervices that pail by the attorn- ment, and therefore the refcue is tor- tious. The attornment of one joint-tenant is sea, 566. good, for both are tenants of the whole Ld. Raym. land, and the fervices are due for the whole ^'^* land ; and fince the whole fervices are due from both, either may confent for the whole, and the diftrefs grows to be noto- rious on the land for the whole. The attornment muft be during theSea.567,8,9. life of the grantor, becaufe otherwife the jeverAon defcends to the heir of the gran- tor. go £)f utommmt. . tor, who has the right in him, and never granted it out of him. FiJe pofi. Sea. 570. If either the tenant for years cr for life 1 epo S"'in this cafe attorn, it is good, becaufe the tenant for years holds the eftate for years of the reverlioner, and pays the fervices to him, and the tenant for hfe holds the freehold of the reverfioner; fo that both in different refpeds hold eftates of him, and his releafe to either, as is faid, is good enough. But here it may be afked on fi^> 569. If there be tenant for life, re- rriainder in fee, if he in remainder grants the remainder, why tenant for life muft attorn, when he does not hold of the re- mainder, but of the very lord, as is faid before, by force of the ftatute of ^ia emptores ; and the attornment muft be made according to the tenure, by the rules aforefaid laid down. But though there be no tenure of the remainder-man, yet the attornment of the tenant for life is required for two reafons. Firft, be- caufe the remainder-man came in by the feudal feoffment, and therefore could not pafs without the utmoft notoriety, and this was by attornment coram paribuSy and pofTibly fuch grants and attornments might be anciently made in their courts -, but however fuch notoriety was attributed to £)f attornment. 9.1 to the attornment, that the feudal feoft- ment could not be altered without it. Se- condly, becaufe the a(^ion of wafte, and the forfeiture of tenant for life, was to him in remainder j and fince he lay liable to feveral adions to the remainder- man, it is fit that he fliould attorn to the grant, being to fome purpofes attendant to him ; though by the flatate the feudal fervice was to be paid to the very lord. But when fecret feoffments were al- Sea. 572, 3, lowed before two or three perfons, with- ^' ^' out being coram paribus, fo were alfo fe- cret attornments before two or three per- fons, without being cora?n paribus-, and by the fame reafon, if there was tenant for life, and he in reverfion confirmed the eftate to tenant for life, with the remain- der to another in fee, this was good to veft the remainder ; for the accepting of this confirmation implied an aflent to the remainder that was thereon limited ; but then it was neceflary that it fliould be by indenture, and the remainder-man fliould have one part ; becaufe otherwife the re- mainder-man would be never able to fhew this grant, and the affent of tenant for & life ; for the aflent could not be {hevvu unlefs he had the deed to which he was party, and whereby his acceptance would appear to the court. If 92 )l)f mtomtntnu If two joint-tenants make a leafe for life, they may afterwards releafe to each other without any attornment of tenant for life J for lince both of them have the reverfion, the tenant for life is tenant to them both, and confequently there is no need of any fubfequent confent to create a new tenancy ; and paying the rent, and doing the fervices to one only, is a fuffi- cient notoriety, that the whole fee is in one only. So if there be tenant for life, the remainder for life, he in reverfion may releafe to him in the remainder for life ; for there needs no notoriety to the firft tenant for life, becaufe he already af- fented to the limitation of the remainder in the original creation of the feud j and therefore there was no danger that he Ihould be fubjedted to his enemy, and there is fufficient notoriety to all ftrangers by his holding of him in the remainder, as there was a fufficient notoriety in the firft cafe of the confirmation, by the tenant's holding over of the feudal lord. Lit. fca.576, Thefe fedions ftand upon the moft evi-. 7' dent property of a feudal feoffment ; for fuch feoffments cannot be defeated but by adls of equal notoriety to the feoffment; fince the feoffment paffes the fee by a no- torious ceremony, it cannot be deftroyed but by an adt of equal notoriety, that is, by £)f attornment. 93 by fuch an entry as defeats the whole fee; therefore if a man makes a leafe for life or years, and then enters and oufts his termor for years, or diffeifes his tenant for life, and then makes a feoffment ; if the tenant for life or years re-enter, he leaves the fee-fimple in the feoffee without attorn- ment ; for the tenant for life or years by his re-entry cannot defeat the whole feoff- ment, becaufe he has only a right to an eflate for life or years; and if his adt of entry cannot deftroy the intire operation of the feoffment, then mufl fome part of the eftate that palfed by the ceremony of this feudal conveyance, be left in the feof- fee. So it is if tenant for life or years recovers by ejedment or aflife, yet he leaves the fee in the feoffee ; for the intire operation of this feudal conveyance is not deftroyed by this recovery ; and if it be not deflroyed, the fee muft refide in him. But it will be objedted, by this method a man may be forced to attorn to his enemy: Anfwer^ It is better the tenant (hould re- ceive fome fmall prejudice, than the rules of feoffments, upon whofe notoriety every man's eflate depended, fhould be broken. Secondly, It is the tenant's own laches, that he fuffered himfelf to be oufled or dilTeifed ; and therefore it is to be prefu- med that he was fatisfied of the feoffee. But 94 i)f attommettf. But then how if they had entered vi ^ armisy and ejedted him. Anfiver^ It feems that then fuch fubjecting to another, con-^ trary to his will, lliould be confidered in an adion of trefpafs, and the tenant (hould be recompenfed for it in damages. If a leffee for twenty years makes a leafe for ten years, the fecond leiTee cannot at- torn to the grant of him in reverfion, be- caufe he holds of him j but if the rever- lioner enters upon fuch leffee, and makes a feoffment in fee, and the leffee re-en- 6 Rep 69, terSj this leaves the reverlion in the feoffee without attornment. So if a man makes a leafe for life, and then grants the reverlion for life, in this cafe, if he were to grant the reverlion in fee, the grantee of the reverlion muff at- torn, becaufe he immediately holds of the reverfioner in fee ; but if the reverfioner in fee diffeifes the tenant for life, and makes a feoffment, and tenant for life re- enters, he re-fettles himfelf and the gran- tee for life in their ellates, and leaves the reverfion in the feoffee j for the leffee for years, in the lirft cafe, and leffee for life in the fecond, by their entry, re-fettle themfelves and their reverfioners in their ellates ; but they leave the remaining part of the eftate in the fecffee, becaufe as much of the fsoffee's effate, as is not defeated £>f attornment 9S defeated by their entry, muft be left in him. If two joint-lefTees for years or life be oufled or difleifed by the lefTor, who makes a feoffment, and one re-enters, he leaves the fee in the feoffee, cmifa quafu^ pra. If leifor diffeife his tenant for life or years, and makes a feoffment, and the leffee re-enters, the rent thereon referved is revived, and ought to be paid to the feoffee, becaufe when the leffee enters, he mufl hold the particular eftate of fome body ; and if he be in of the fame eflate he mufl hold of the fame fervices; and fince the feoffee is in by feoffment, he mufl hold as of his reverfion. But if the grantee of a rent-charge dilfeifes the te- nant of the land, and makes a feoffment in fee, and the tenant re-enters, this can never be revived, becaufe the feoffor can- not have it again, contrary to his own feoffment, and the feoffee can never have it, becaufe he was only feifed of the land, and not of the rent, and the rent was ne- ver transferred to him. Where a leafe is made for life, the re- Co. Lit. 315 mainder in tail or for life, the remainder ^^^' 578- to the right heirs of tenant for life, te- nant for life has the remainder in him, and he may grant it ; otherwife it is where there is a leafe for years, the remainder in tail £)f attomnent. tail or for life, the remainder to the right heirs of tenant for years, then the tenant for years cannot grant it ; for the remain- der is vefted in the right heir as a pur- chafer. The reafon of the difference is, that in the firft cale the tenant for Hfe is tenant to the lord, heing properly Jcoffa- ins within the ftatute of ^ia emptor es terrarum, as is faidy^^. 554. And there- fore when a remainder is afterwards li- mited to the right heirs of tenant for life, fuch tenant fhall be * in the ho- mage of his lord, becaufe he has an in- heritance for which he ought to vow to venture his life, and the lord fhall have the fruits of fuch feudal inheritance ; for if the intermediate eftate be extinct, du- ring the minority of the heir, the lord (hall have the wardfliip and marriage of him, and fhall have the heriot of fuch tenant dying feifed. Fide Hale fur Fitz- * As to the antiquity of homage, it is very re- markable, that William the Firft (commonly called the Conqueror) about the twentieth year of his reign, juft when the general furvey of England^ called Doinefday Book^ is fuppofed to have been fi- nifhed, and not till then, fummo/icd all the great men and landholders in the kingdom to London and Salijbury^ to do theij homage to him. Hale's Hiji. of the com. law 1 09. Madox's HiJi. excheq. fo. 6. in marg, herberf flDf attomment. 97 herhert 143. And by confequence the inheritance muH: be fuppofed to redde in tenant for life; and were the conftrudtion otherwife, it would apparently tend to the weakening the tenure and ftate of the whole kingdom. Therefore fuch inter- pretation ought to be made, as b.;ft fup- ports the tenure, when the words w^ill bear both fenfes. But in the fecond cafe, the tenant for years is not k.\\q feojffatus ; for the perfon properly that takes by the feoffment is the freeholder, and the te- nant for years is but the bailiff to the freeholder ; and it is the freeholder that is attendant to the fuperior lord, may be in his homage, and that holds of him, and from whom the fervices are due. Therefore this remainder to the right heirs is not immediately vefted in the tenant for years, becaufe the heir is the firft that can have the freehold, as feudal tenant to the lord ; and therefore, by the words of the grant, he muft be the hrft purchafer of fuch freehold j and becaufe the tenant for years cannot hold of the lord, or the lord avow upon him, no other interpre- tation can be made. Co. Lit. feB. Therefore if a leafe be made to A. for years, with livery, the remainder to the right heirs of A. this is a void feoffment, not only becaufe the freehold v^^ould be H iQ 98 £)f attornment* in abeyance, and there be no perfon for the flranger's pi'cscipc -j but alio becaufe there would be no perfon in the mean time for the lord's avowry, and to anfwer his fervices ; and therefore fuch remainder muft be void in the very creation of it; becaufe there is no perfon in whom, the freehold can vefl ; and if the adt of no- toriety doth not deliver over the pofTeflion of the freehold, it is a nullity in the very adl of delivering polfclfion, and altogether impertinent. So it is if fuch eflate were limited by way of ufe executed; becaufe if the feoffor does not part with the ufe out of him, the old ufe is executed on the feoffment ; for the freehold cannot be in abeyance till tenant for years dies, and it does not execute in the feoffee without confideration ; but it feems it w^re good Ld. Raym. by way of executory devife, if the con- 314, 3 » 6, tingency avoids a perpetuity, by happen- ^^^' ing during a life; becaufe then there is no immediate transferring of the freehold, but it vefls in the heir to anfv/er the flranger's prcecipe and the lord's fervices, until the contingency happens ; and it feems it fliould be a good limitation in the cafe of a chancery trufl, where the Stra. 969. legal eflate is in the feoffee. But if te- Ib. 996. n^nt in fee makes a leafe for years, life, or gift in tail, the remainder to his own ri»ht tut, 99 right heirs, or executes fuch limitation by way of life, he is in his old rcverficn, becaufe he never put himfelf out of the homage of his fiiperior lord ; for it iliaU riOt be conftrued a contingent remainder in the right heirs, becaufe he has not parted with any thing in the reverlion, but to his heirs, to whom a man cannot make a limitation ; for he mull have the fee in him in the mean time, till the con- tingency happens, -and therefore mud re- main tenant to the lord, as he v/as be- fore 5 and then it were a very hard con- ftrudion to miake this a contingent re- mainder only to dellroy the fruits of the feudal tenure, when ilic anceflor held as very tenant to tl:e lord during his life. Co. LiL 22. and Hale upon it. Cro.'Jac. 590. 2 Roll. Rep. 196, 216. 3 Leo. 64. Dyer J. Foph.i^. i Co. 130. Moor 118, 119, 284, 5, 720. 2 Cb. 91. 1 Co. 104. Cro. Car. 24. Hob. 27, 30. i Mod. 96, 98, 121, 122. iVent.'T^jiy 382. I Roll, Abr. 827, 841. 2 Roll. Rep. 196, 216. Bro. Feoffment to iifes^ 338. Dyer 156, 237, 362, 235, 308. It is here to be noted, that by fine the Sea. 579, eftate paflcs before attornment, and the 5^^' '' ^^ 2' grantee by fine fliall have the wardfliip, or enter for an efcheat or for forfeiture, before the atcornment in the quid juris H 2 daniat \ loo £)f attomtntttt* clamat ; but be cannot diftrain or have an adion of wafle, writ cf entry ad commu- iieyn legem in confimili cafu, or in cafu provifo^ or a writ of ward, or of cuftoms and fervices, the grantee cannot have be- fore attornment ; but what the lord may feife he is intitled to before attornment, as the heriot, wardship, &c. Now to underftand this, we muft go into the an- cient manner of conveyancing, which was of two forts ; either by fine or feoff- ment. The fine was in the lord's court, and by this they pafTed all feudal right which was in poffeffion ; and there are inftances as low as the time of H. 2. and Ed. 2. of fines in the court of the lord, Maddx 15. and they were called fines, becaufe a fine was paid to the lord for fuch agreement, becaufe it transferred the feudal riffht held of the lord. Now in fuch courts they pafi'cd all the right the tenant had in poircifion ; but the right of adion could not be transferred, becaufe that would have encouraged maintenance; therefore whatever fuch grantee could feife paft by this feudal conveyance, but the right of diftrefs and of adion did not pafs without attornment. The feoffment con- veyed the feudal pofTeifion cora?n paribus^ ©ut of court ; for it was necefTary to con- vey fometimcs before the court was held, 3 and £>f attojnmmt. lor and then the pofleffion was delivered over coratn paribus; but as there were two conveyances of copyhold, one in the lord's court, and the other to the cuflcmary te- nants ^ fo in freehold, where the imme- diate grant was to the feoffee, and not to the lord, as in the copyhold j yet there were two forts of conveyances, one by fine in open court, the other by feoff- ment coram paribus: the right only paffed by fine, becaufe the poffeffion being in the grantee, they might well ftay till the next court to transfer the right j but where the poffeffion was to be parted with, or fervice to be done, or money paid, there the ufual way was coram pa- ribus^ that the feoffee might not lofe the profits in the mean time, or the poffef- fion be delivered before the contrail could be compleated. Thus it ftood fome time after the conqueftj but the after kings endeavouring to retrench the privilege of the great lords, * they firft in Magna Charta, and after by the ftatute of ^ia emptores terrarum^ began to admit of alie- nations without fine to the lord j and the * Stamf. de Prarog, regis iS.a, H 3 adls 102 £)f amimmnu ads of the court-baron were only edeemed to create notoriety among the tenants of the iiianor. From hence grants in the lords courts were omitted, and the at- tornments in pais were the only notorie- ties of fuch grants, no fine being paid to the lord ; and the king's courts creating a notoriety all over the land, the ufual way was to make the grant in th.e king's court in this manner. Thevufed to fup- pofe that tl^e parties had covenanted to alien; and all writs of covenant, as being an adlion of publick concern to the ju- ftice of the kingdom, were fueabie only in the king's court ; and by confeqiience this covenant to alien was fueabie there ; and that court being poffefied of the mat- ter, as an adverfary caufe, they were ad- mitted to make all manner of agreement touching fuch fait depending ; and thefe agreements being ati'sicably made by way of compofition before the king's court, it became the iuftice of the king's court to fee them performed; and therefore d.fcire facias ilTued to execute the fine, and a guiJ juris clafjiat to the tenant ; but by \i',^^^'^' th^ ^^^s nothing pclTed but what the gran- tor could feife, and not the right of ac- tion, for the danger of maintenance; but in the quid juris clamat the tenant was compellable 7&2 Utoinmtnt 103 compellable to attorn, unlcls he could ihew that he was fubmitted to his enemy; fo that here the provifion made by the quid juris clamat was for the intereft of the tenant; but the tenant was not com- pellable to attorn in two cafes. Firft, if the tenant were tenant in tail; for he claiming fuch a right, as by poffibility may continue for ever, is looked upon as mafter of the eftate, and not buund to transfer the reverlion according tu the pleaiure of the grantee. Befides, the iic.- tute law is, that the will of the donor be obferved, and therefore they cannot com- pel him to transfer the tenure; but if he attorn gratis^ it is good, becaufe then it cannot be prefumed to be to the prejudice of his illue. Secondly, the tenant fliall not be compelled to attorn, if the gran- tee will not allow the privileges belonging to the eflate ; as the tenant fliall not be compelled to attorn to the mefne, unlefs they allow his privilege of acquittal againU: the fuperior lord. Nor the tenant for life, where he is not impeachable for wafte, unlefs they allow that privilege, becaufe this being a final agreement, with, the utmoft notoriety in the king's court, the tenant can have no new privilege, but what appears of record. So if grantee fue H 4 d^Jcire 104 ^f attommtnt* a fcire facias againft the tenant, and has judgment to execute the fine for any part of the fervices, it is an attornment for the whole j for the tenant had opportunity to plead in the /lire facias^ why he fhould not be compelled to iittorn. Sea. 585, 6. There needs no attornment to a devife, becauie thefe are by the cufloms of towns and boroughs for the promoting of trade, and do not require the notoriety of a feu- dal conveyance; and as no livery is re- quired, where it is an eftate in pofllffion, Stra. 166. fo no attornment is required, where it is a reverfion. Sea. 587,8, 9, Of a right a man cannot properly be S9°> I- difleifed, though he may of his pofTef- iion ; for it is a contradiction in terms, that a man by wrong fhould have my right; therefore I cannot be diffeifed of a reverfion, while my tenant remains in pofTeliion ; for though my tenant (hould attorn to fome body elfe, that would not put me out of pofTefTion of my reverfion, becaufe the right being in me, it could not be transferred to any body elfe, but by fome a6t of my own ; and the pay- rnent of my tenant is but a wrongful pay- ment, and doth not give him my right. So it is if I am feifed of a rent-charge, and the tenant of the land pays it to an- other. £)0 attotnmtnt 105 other, this does not deveft me of my right, becaufe the wrongful payment of my tenant cannot alter my right ; it is therefore a payment in his own wrong, and it ftill remains in arrear to me; but if I am diireifed of the demeans of my manor, the fervices yet remain in me, be- ^^- Raym, caufe the right to the fervices, by the feu- dal contract, is not devefted out of me by the wrongful pofieflion of the demeans of my manor; but becaufe all the feudal fervices are to be done in fupport of the manor, the knights fervices being the at- tendances of fuch tenants in the general Hale's HiU defence of the realm, imbodied under the ^' ^^^* P* . 107. lord of the demeans, that canied provi- iions to fubfift them ; and the focage fer- vices were the actual plowing in the de- means of the lord ; therefore if the te- nants attorn to a diffeifor, it puts him into the poiTeflion of fuch fervices, as accef- fory and belonging to the demeans of the manor; and if the diffeifor die feifed of fuch demeans as the principal after attorn- ment, then the diffeifee, as it feems, can- not diftrain for the acceffory right of the fervices; but though the tenant doth at- torn to the diffeifor, yet he may after- wards refufe, to avoid the double charge, becaufe this does not take away the right of io6 £>t attornment. of the difleifee, but that he may enter into the demeans, or diftrain for the fer- vices ; for till the right of pofTcfTion is gained by a defcunt, the difl^-iiee may re- continue which part of tliC manor he pleafes. If a man Ic: parcel of the de- means for hfe, he is flill lord of th.e ma- nor, and the reverfion is fllll pafccl of the manor, becaufe held of him as lord of the whole demeans, and therefore ll^iall pafs by a grant of the manor ; but if a manor be leafed for life, exceptirig black- acre, black-acre is not held of the manor; for it does not hold of fuch tenant for life, but is fevered from the manor, and therefore will not pafs by a grant of fuch manor ; otherwife it is, if fuch leafe had been made for years j for then the free- hold had been intire, and one and all had therefore pafTed by the grant of fuch manor. fi?£ 107 £)f oiXcotttinuance* IT is an alienation of the pofTeffion, Sea5g2, 3, where the right of adion is left in an- 4» S» ^> 7- other; and it began in the cafe of the hufbands alienations of their wives lands. By the civil law, the father gave the dos, which was the eftate of the wife, given on the marriage ; and if it confificd of matters moveable, the hufband had the poffeffion, but was bound to reftitution at his death ; and even an adion was al- lowed to the wife, in cafe the hulband fell to decay, to recover during his life. if it confifted of things immoveable, the Ld. Raym. hufband could not alien without the con- 72» 1584- fent of his wife, by the "Julian law ; and hy yujlijii an s reformation, he could notStra, 625, alien, though with her confent. Conftante matrlmonio rei dotalh dominium civile pe^ 7tes marltum ejl, naturale penes uxorem. Dig. lib. 23. tit. 2. De jure dotium. Ibid, tit. 5. Dejundo dot all. When the feudal law allowed the in- heritance to defcend to women, then be- gan the rights of the hufband to be fet- tled. Now, fmce til the feudal eflates were reckoned civil rigbts, therefore there was no room for the diftindion of the civil io8 £)f oifcontinuance. civil law, that placed the civil right in the hufband, as the head and governor of the family, and the natural right in the wife, the legitimate owner. The German and Northern nations were the ft r idled obfer- vers of the rules of marriage, tying only one man to one woman, and enjoining ftridl obedience to the hufband, even be- fore their receiving chriftianity, and much more fo afterwards. Then when the wo- man was allowed to fucceed into the feud, when (he took hufoand, fiie had no fepa- rate property, but the whole power was lodged in the hufband, and they were Stra.22g. reckoned as one in intereftj therefore the hufband had the right of pofTeflion, and the wife the right of propriety ^ or in other words, the hufband was feifed in the right of his wife ; this diflindion was before known in the feudal law; for every perfon that came in by defcent, or by lawful alienation in manner before-men- tioned, by the ancient feudal law, had the right of pofTcfuon ; therefore the hufband being pofTefTed of the wife's lands by the Ld. Raym." marriage contract, was fuppofed to have 521. the right of pofTcflion j and by confe- quence the hufband .having aliened fuch right of poflcfTion, fhe was anciently dri- ven to her writ of right, by the opinion of Sir William Herle^ as I think by the better £>{ uffcontinttatite. 109 better opinion, 5 Ed. 3. 5B. 2 Lijl. 343. for the wife could not complain of dif- fcifin done to the huiband, becaufe they were one in eftate and intereft, and the huiband could not do her wrong ; and it would be very abfurd for the law to have allowed to complain on the memory of her hufband, as though he had been guilty of a violent diffeifin ; therefore the ancient law gave no poiTeffory action , which com- plained of a violation of pofTeffion, but only allowed her to controvert the right .; but when the writs of right grew fo te- dious, and the trial by battail grew out of repute, the law gave her a recovery by the writ of entry cf an in vita ; and the hufband was the rather fuppofed to have the right of pofTeffion in him, for that being the fuperior and governing power, he might defend the pofTeffion by all ac- tions ; and therefore if the hufband lofl by dslauk in a pofTcfTory ad:ion, this put the wife to a writ of right, as before, till the flatute of JVeft, c. 3. but now an ac- tual entry is given to the wife and her heirs, by the 32 H. 8. f. 28. The prelates, abbots, and other eccle- fiaflical perfons that attended the courts of the northern princes, received great fa- vour and donations from them j and to aggrandize the church, and other political reafons. no ^f mfcottti'mtance* reafons, the ceUbacy of the clergy in thofe things was introduced j fo that according to the fuperftition of that age, fuch ab- bots and prelates were fuppofed to be mar- ried to the church, in as much as the right of propriety was vefted in the church, the eftate being appropriated; and the bi- fhop and abbot, as hulbands and reprefen- tatives of the church, had the right of poffeflion in them ; and this the rather, becaufe they might maintain the adlions, and recover, and hold courts within their manors and precindfs^ as the intire owners; and that crowns and temporal ftates might have no reverfions of interefls in their feuds and donations. Therefore, fince they had the pcireffion in fee, they might alien in fee; but they could not alien more than the right of poiTeflion that was in them ; for the right of propriety was in the church ; therefore the biihop could not alien without the confent of the chap- ter, who reprefented the clergy of the dio- cefe. Nor could the abbot alien without the confent of his houfe; but the parfon had an eftate only for life, and the fee was in abeyance; yet anciently he could alien with the confent of patron and or- dinary. Now to underfland thefe matters aright, as dXio JeB. 643, 4, 5, 6, 7, 8. it will be neceflary £)f mfcotttfnuante; m neceffary to take a {hort view of the an- cient ftate of the church. We find by the fcriptares, that Chrift inftituted the apoftles, and the apoftles the bifhops, and the bifhops the prelbyters and deacons, (firft chofen by the church) the prefby- ters to preach in the villages, and the deacons to gather the charities of chri- ftians. When a bidiop died, the church chofe out of the prelbyters a fit-perfon, who was confecrated by the neighbouring bifhops. Burnefi Rights of princes, 5, 6, 7, 8, 9, 10, II. They lived alfo upon the voluntary oblations of chriftians, which they diflributed among themfelves and the poor, and being fuftained by the people, were therefore eleded by them. Ibid, 15, 16, 17. But in the time of Conjiantine^ there was a felef DffMinti'ttttattte. 121 pafs a right from tenant in tail, and there- fore work no difcontinuance. If tenant in tail makes a leafe for life, Sea.619, 20, this works a difcontinuance during the 2i>22,23,24, eftate for life, becaufe he parts with the freehold out of him, and gains a new re- verfion to the tenant in tail. Now if he grants this new reverfion in fee, and te- nant for life attorns, and tenant in tail dies during the life of tenant for life, and then tenant for life dies, the ilTue in tail may enter, becaufe this the difcontinuance is at an end, by the death of tenant for life; and the grant of the reverfion being fecret, mufl be intended to pafs no more than it lawfully might pafs, unlefs it were executed by entry into the pofTeflion ; for lince it operates only as a grant, it mufl: be only intended to pafs the reverfion du- ring the life of tenant in tail, which he had a lawful power to grant, and not , eflablifh a right of propriety diftindl from the right of pofTeflion. But if a man had thus granted the reverfion, and te- nant for life had died, and then the gran- tee had entered by force of the grant, and the tenant in tail had died, this had worked a difcontinuance ; for the grantee's entry works a fecond notoriety, which plainly manifefls a difcontinuance of the intire fee-fimple, But it may be afked, why fuch 122 £)f mtcontr'nttance* fuch grant operates by the fubfequent en- try, to pafs more than it lawfully may pafs; for if the grant and attornment only operates to pafs a rightful eftate, why doth the fubfequent entry, in purfuance of fuch grant, make it pafs a wrongful one ? The anfwcr is plain j the grant and attornment of tenant for life pafTes the new reverfion depending upon that eftate for Hfe. Bat fince grants in their own nature are fecret, and therefore pafs no more than they lawfully may pafs, it fol- lows that this grant and attornment alone cannot pafs the rcverfion, fo as to dilin- herit the tenant in tail : But if it be ex- ecuted by entry, then it will ; for the en- try is a notoriety, that the grantor in- tended to perpetuate the difcontinuance, and to continue a right of poffeffion di:- ftin(fl from the propriety, and muft be equal to a fecond feoiFment, which he might make when tenant for life dies, during his life ; but if he had died before tenant for life, he had not been capable of fuch feoffment, and confequently of no difcontinuance that is tantamount ; for the grant and attornment of tenant for life fliews an endeavour to pafs the new reverfion, and the entry in purfuance thereof muft be to all manner of purpofes tantamount to a new feoffment, and there- fore £>f oitcottti'ttttante. 123 fore continues the right of pofleffion dU Hind: from the propriety, and is by the law conllrued not to operate as a grant meerly, but taking the adls moft flroiigly again ft the parties, it is interpreted to ope- rate as a feoffment. If tenant in tail infeoffs him in the im-^^^- ^^S*^* mediate feveifion or remainder, this ope- rates as a furrender, and therefore paffes no more than it lawfully may pafs, and c(infequently works no difcontinuancej but if the feoffment were to the more remote reverfioner, or to the immediate reverli- oner with any other, it is a difcontinu- ance, becaufe it cannot be interpreted to operate as a furrender. Are all inftances in grants that work 56^.627,8,9, no difcontinuance, can/a qua fupra, Jl'B. ^°' ^' 633, 4, 5. If an infant hufband aliens the wife's lands, this works no difcontinu- ance, but the wife after the death of her hufband may enter; for the infant had no difpoling power, and therefore could not part with the right of polTeffion, but (o as he might lawfully affume it whenever it appeared to be for his benefit; and if the right of pofTeflion was never parted with, after the death of the hufband it is in the wife, and fhe may enter and defeat fuch alienation, fince it was never ablblutely parted with at the time of fuch alienation. My 2. 12+ £)f Dtfcotttiiittance; Sea. 636. My Lord Coke is of opinion in this cafe, that by fuch furrender to the fecond huf- band the difcontinuance is taken away ; for by the furrender the eftate for life is drowned, and then there is no alienation in being to work a difcontinuance ; for the furrender of the eftate to the fecond hufband is a giving up the eftate, and not an afiignment of it over. Sea.637,8,9. It is to be known that tenant in tail has the right of polTcffion inheritable, and therefore he may difcontinue the fame in fee by his feoffment, becaufe fmce he has an inheritable pofleffion, it follows of con- fequence, that he may alien it without any diffeiHn to any perfon ; but if he only makes a leafe for life, he executes but part of his power: for fince he had a poffef- fion inheritable, he from that pofleflion has privilege to alien in fee without dif- feifin to any one ; and therefore after fiich leafe for life he grants the reverfion in fee, and tenant for life attorns j and after te- nant for life dies, and the grantee of the reverfion enters in the life of tenant in tail, this is a difcontinuance of the fee for fince he had originally an inheritabk pofTeflion, this is an execution of the far- ther remaining part of his power, anc amounts to an alienation of the fee by : fecond feoffments for having originall; ai i©f DiTcotttittuance; 125 an inheritable poffeffion, he might dif- continue the fame in fee ; and when he executes but part of his power, the reft remains in him j and therefore, if he has afterwards opportunity in his hfe, he may txecute it by a fecond ahenation. But if tenant in tail makes a leafe for life, and dies, and the iffue grants the reverlion, and the tenant attorns, and then tenant for life dies, and the grantee enters, and the iffue in tail dies, leaving a fon; this is no difcontinuance, but that the fon may enter; for the iffue in tail had no in- heritable poffeffion in him, in as much as the right of the intail only defcended on him, and not the poffeffion; and there- fore he couid not have any power to alien a right of poffeffion that was never in him; and confequently his grant, when he never had any original right of poffeffion, by virtue of fuch entail, doth not difcontinue the right of poffeffion, fo as to bar the fon from his entry. So if tenant in tail makes a leafe for life, and then grants over the reverfion, and the tenant for life attorns, and then the grantee grants over, and the tenant attorns to the fecond grantee, and dies, and the fecond grantee enters in the life of tenant in tail, and then the tenant in tail dies, this is no dif^ continuance to bar the iffue, but that he may 126 £)f t)i'fconeinttance; may enter ^ becaufe, though the tenant in tail had an original right to difcontinue during his life, becaufe he had the right of pofTeffion in him j yet the firft grantee had no right of pofleffion in him, nor ever was feifed of the land by virtue of the entail, or othervvife; and fince he never had the right of pofleffion in him, he cannot alien the right of poflfeflion,. fo as to work a difcontinuance. Alfo 'tis to be noted, that if a man has the right of pofTeflion, and is not poflef- fed by virtue of the entail, there he can- not work a difcontinuance, unlefs by war- ranty ; as if there be grandfather, father, and fon, and the grandfather is feifed in ,tail, and the father difleifes the grand- father, and makes a feoffment in fee, and dies, this works no difcontinuance, becaufe the father was not poffeffed of the entail, but of a fee-fimple by diffeifin, which was fubjedt to the entry of the tenant in tail, and confequently the alienee is fub- je(ft to the entry of the iffue in tail, in as much as the father, that made the alien- ation, had only the naked poffeflion by the diffeifin, and not the right of poffef- ,fion by virtue of the entail; but if the father had enfeoffed with warranty, this had been a bar, becaufe the heirs in that cafe had been bound by contract to defend that M niUontimnntt^ 127 that poffeffion, and therefore ,had been ever afterwards repelled from claiililng if, if affets defeended. But if tenant in tail makes a leafe for life, and, dies, and the reverfion defcends to the iffue, and the iflue grants the reverfion with, warranty, and tenant for life attorns and dies, and ..the grantee enters, and the ifTue dies lea- ving a fon ; this is no difcontinuance, but the fon may enter ; for he is not barred by this warranty ; for the ifTue in this cafe only transfers the reverfion, and not the pofiTeffion, or right of pofifeflion; and therefore the ifTue in this cafe is not repel- led from claiming the pofTeffion, which was never transferred to the grantee, and to which the warranty was never annex- ed ; for it were abfurd to conftrue the warranty to extend to the pofTefllon of that which never was in pofTeflion, at the time when the contracft was made. Thefe are fpoken of in the Sedc, next Sea. 640, foregoing. Se^. 643, 4, 5, 6, 7, 8. Fide ^^'^' in the Comment on Se5i, 595. If tenant in tail be difTeifed, and he ^^^- ^49» releafes to the difTeifor all his right, this, as is faid, puts the eflate-tail in abey- ance; becaufe having paft away all his right, he cannot have right contrary to his own releafe. If there be tenant for ^'^^ ^^X"^- life, remainder in tail, and the tenant in ^'^' tail 128 Df u^fcotttt'tiuance. tail releafeth to the tenant for life all Stra. 969. his right, this had put the tail in abey- ance ; fo that he could not afterwards have maintained an adion of wafle; but if the remainder had been in fee, and he in remainder had releafed all his right, the remainder flill continues in the tenant in fee, and he may have an adion of wafle. And the reafon of the difference is this, that when the tenant in fee re- leafes all his right, he only confirms the eftate to tenant for life, during his life; ^and for want of words of inheritance, it pafTes no farther intereftj and therefore he has ftill a remainder depending on an eftate for life, to which an adion of wafte belongs. But tenant in tail ^cannot, by the releafe of all his right, pafs an eftate during the life of the releafee, but only pafles an eftate during his own life ; and therefore having put all his right out of him, he cannot bring an adtion relating to fuch right. 129 ^f remitter. THE notion of remitter ftartds on the principles we have ah-eady laid down ; for either there is a naked pollef-s- lion diftindt from^ the right of pofTeffion and propriety, or elfe there is a right of poffeffion diftinc^ from the right of pro.- priety. Now where there is a naked pof*- iefiion, diftind from the right of pollef- fion and Propriety, as between diiTeifor and diffeifee, where the entry is conge- able ; there if the diffeifce takes back the poflelTion from the difleifor, he is remits ted. For it cannot be other wife,- that when he has taken back the poffeffion j he fliOLild be feated in his old right ; for he who has really the title, cannot claim from a diffeifor that has no title at all ; and it would be very abfijrd and unrea- fonable, that the diffeifee by accepting his own poffeffion, fliould transfer back any t'ight to the diffeifor. But where the diffeifor transfers it back for life, or years, by deed indented, or by matter of record, there the diffeifee is not remitted ; for if a man by deed indented takes a leafe of his own lands, -it fliall bind him to the rent and covenants; becaufe a man can never K be ijo £)f umitttv, be allowed to affirm that his own deed is ineffedtaal, fince that is the greateft fecu- rity on which men rely in all manner of Ld. Raym. contracting. The iluiie law, if it had been '3' ' * * ' 'by matter of record ; for that is of its own nature uncontrolable evidence, which a man cannot be allowed to controvert. Sea. 693, Where the right of poiTeffion is diftindt ^* 5* from the right of propriety; there, if the proprietary reobtains the right of poffef- iion by agreement, he muft hold it under fuch agreement ; for the other having the right of pofleffionj and transferring it ta the proprietary, fuch proprietary muft take the right in the fame manner as the other has conveyed. For 'tis his own folly and laches, that he would contract about fuch right of poiTeffion, and not affert his propriety in a proper action; but when he has contra(Sted for fuch right of pofTeffion, and fuch right of pofleffion is transferred, he muft keep to the terms of the bargain, and he leaves all the right in the feoftbr he has not contraded for ; therefore if tenant in tail enfeoff" his heir of full age, and dies, he muft hold it ijnder the feoffrnent, becaufe *tis his own folly that he would take the right of pof- fefiion in this manner, when he was enti- tled to the right of propriety after the death of his anceftor. But £E)f vtmitttt, 131 But where the proprietary comes to the Se^. 664. right of pofTcffion, without any fliult or^ folly of his own ; as where the right of pofTeffion is caft upon him by the hnv, or he or {he comes to the right of poiTeffidii by feoffment, under age, or during co- verture, where no folly can be imputed ; there fuch proprietary is remitted and feat- "^ ed in his ancient and former right. For the eldeft title being the more ancient, is the leaft fubjed to difpute ; and therefore when the proprietary has in fuch manner acquired the right of pofTcffion, 'tis efteem.- ed, for the repofe of mens inheritances, to be only a reftitution of the old title, and not the acquiring a new one; and the rather, becaufe there is none againfl whom the adtion may be brought to regain the propriety. And when any perfon has thus acquired the right of poffcffion, if any perfon will controvert it in any elder ac- tion, 'tis fit he ihould fet up an elder title, that the meer right may be decided, Thus if the heir of the dilTeifor be dilTei- fed by the dilTeifee, he by fuch wrong and injuftice cannot regain the right of polTeffion ; for an ad: of wrong can never gain any right; but if fuch diffcifce die feifed, then the heir has the right of pof- fcffion ; and having then both the right of pofTeffion and of propriety, he is feifed K 2 in 132 €)f remitter;. in his ancient right for the reafons above- mentioned. Seft. 659. If a man enfeoff an infant or feme co- vert, that has right of propriety, for life, for years, or on condition, they are re- mitted to their r.ncient right, and all fuch conditions vanifh. For to a feme covert or infant no folly or laches can be impu- ted, nor can their ads turn to their pre- judice; fo that when they have acquired the right of poffeflion, they are reftored to their ancient right of propriety ; and being not capable of contracting, the terms and conditions of the feoffment do not bind them. But if they were of full age, or difcovert, then they leave all the right of poffeffion in the feoffor, that is not transferred to them by the contrad, and muft hold the right in the manner transferred to them. For lince they haVe no right of poffeffion but from their bar-* gain, 'tis fit that they fhould hold accord- ing to fuch their contracts but in the other cafe, 'twas the folly of fuch parties to transfer the right of poffeffion to fuch infants as were the proprietors, to hinder them from their adions. And this the turn of the chapter. ©f 133 M vonnmtv^ WArranty, according to Spel/nan, is derived from the Saxon word fFar^ as the French word Guarranty is derived from the word Giie?\ of the fame.^- Raym 35. fignihcatlon 5 which plainly imports an* undertaking to defend, and properly by arms, as in a writ of right they anciently defended them. For the warranty was an exprefs undertaking to do the fame thing, as the feudal lords ufed to do to their tenants, and under the fame penal- Stra. 414; ties. And fo this exprefs contradl; was to be of the fime import, and to amount to a feudal contrad ; and for this the parties received a recompence, and that was ge- nerally in other lands by way of exchange, which defcended to their heirs. Thefe warranties were introduced by the liberties of alienations that happened, according to Spelma?i^ about the time of Hen. 3. when the Saxon liberty of alie- nation was revived J for then they ufed to alien to hold of themfelves ; and then they annexed a warranty, and thereby were called in to dereign the warranty of fuch feudal lords, in whofe homage they were, and did not permit them to alien. K 3 Alfo ^6o 134. £)f Mjattatit^. Alfo fuch exprefs warranties were ufed to be given when the lords aliened their feignory ; for where the old lord was bound by his old feudal contradl to war- rant, this did not extend to an affignee, without it had appeared to have run in that manner in the old deed, which was often worn out and loft, fo that the feu- dal tenure did totally fubfift in prcfcrip- tion ; and therefore the tenants would not attorn to deftroy the warranty on which their homage anceftrel was founded, with- out a new exprefs warranty from their new lord. After the Stat, of ^lia empforeSj they ufed to continue this way of conveyance L. Raym. by warranty, 'till they came up to the old tenants that held by the homage anceftrel; fo that warranty became frequent in all conveyancing. And they were contracts that had all the import and efFed: of a feudal cor/tra(ft, which were anciently made between the lord and tenant for their mutual defence. For, Jirft, they rebutted fuch warrantor and his heirs from claiming any right in the land ; and as in the homage anceftrel the rule was homoghim repellit perquifitiim^ fo the exprefs warranty repelled the anceftor from claiming, and not only him, but the heir, though the right were not in the anceftor. anceftor. And as in homage anceftrel, where the heir received homage, he could never fet up a title to the land itfelf ; ib here in the exprefs warranty, the heir was prefumed to receive a recom pence, and therefore was barred if he did not claim during the life of his anceftor ; and this was the more reafonable, becaufe fuch recompences were anciently in lands, which did of right defcend to the heir ; and if the anceftor did alien them, the heir muft claim his own during the lite of the anceftor j otherwife he could never claim it, in as much as this v/as the whole time of limitation for the heir to chal- lenge his own in this cafe. And if he flip'd that time, he was barred for ever, in as much as there might be fecret conveyances to alien the recompence for the benefit of the heir, which might turn to the preju- dice of the purchafer. But tho' the warranty barred the right of entry or right of adion in the heir, yet it did not bar a title of entry for a condition broken, mortmain, forfeiture, efcheat, or the like. For the feudal contradl only barred all the right to the lands themfelves, in the lords themfelves, as is faid in the homage anceflrel ; but it did not bar his title of entry for condi- tion broken, forfeitures, efchcats of fuch K 4 tenants. 136 tenants, or the like. And the exprelB warranty could 2:0 no farther than the warranty inoplied in the feudal contrad:, iince it came in the place of it. If the warranty attaches in the heir that has right, during the continuance of the eftate warranted, he is for ever baried to claim it, not only againil: the warrantee him- felf, his heirs and afiignSj but againft a difleiibr, abator and intruder, recoveror, cefiuy que iife^ lord of the villain, lord by efcheat, or any other perfon coming-in in the Fofi-^ becaufe the heir is prefumed to have received a recompence, and there- fore cannot have the land it felf, no more than when he has received homage from an heir that holds by homage anceftrel, can he claim the land it fell: But if the warrantee's eftate be recovered by elder title, then the heir may recover againft luch recoveror, though the warranty were attached in fuch heir ; an example of which fee fe6i. 741. becaufe the recom- pence defcended to the heir ftands preca- rious from the time that the recovery was had ; for the warrantee, if he purfued his v/rit of nDarrantia chartce^ might re- cover the lands defcended to the heir, and therefore the heir is at liberty to purfue his adion againft the recoveror. Put if the eftate of the warrantee be de^ featec| •IJJ feated by any perfon that comes-in in the Fo/i, before fuch warranty attaches in the heir, there the heir may enter upon fuch perfon in the Pojl ; as if the lord by ef- cheat, or the lord of the villain enters before the defcent of the warranty, there the heir may enter on fuch lords; lor when the eftate warranted is taken away, before the recompence defcends on the heir, the heir has title, becaufe when the eftate warranted is deftroyed, the ancef- tor is not obliged to continue the recom- pence to defcend to the heir, but he may alien it ; therefore it is not necellary to be prefumed, that any recompence defcends to his heir, or confequently that the heir fhould be barred in this cafe, no more than a lord is barred from entring on a difleifor of his tenant before he has ac- cepted the homage from him, which is the recompence for the land it felf. But if the fame eftate continue, to which th^ warranty was annexed, though in other lands^ yet the heir is barred ; as if a man makes a warranty to A. and his heirs, and he aliens to B. and then the warrantor dies, the heir is barred from entring on B. becaufe the fame eftate con- tinues, though in other hands^ to which the warranty was firft annex'd; and there- fore it is prefumed in juftice that the war-^ r^ntor 138 £)f xbatvantp. ran tor left a recom pence to defcend to the heir ; for B, may have a warranty, and vouch A. who may vouch the warrantor and his heirs to recompence. So ce/iuy que ufe feems to continue the eftate of the feoffees, and the warranty transferred by the llatutc, and therefore a recom- pence is prefumed to defcend to the heir to anfwer it. The fecond operation of the warranty was by way of voucher ; for, as in the feudah contrad the tenant vouched the feudal lord to defend his poffeffion ; fo in the exprefs warranty, the purchafer vouch- ed his warrantor, who took the defence of the eftate upon himj and as no man could vouch the lord but the tenant, fo no man could vouch the warrantor but he that brought himfelf within the words of the contract, becaufe there was no contract to defend the poffeffion to any body elfe. But as the lord, by acceptance of homage from the diffeifor, was barred from claim- ing the lands; fo the warrantor, having received a recompence, was rebutted from clainnfing the land itfelf. The third is by writ of warrantia chartcey which alfo could only be brought by the party to fuch contradt; for the te- nant by homage anceftrel might have had his warra?ttia chartce againft his lord, to £)f tbattantp^ 139 to fabjed the lands of his lord to anfwer the feudal contract. And when the affife was invented, in w^hich a man cduld not vouch j and when alfo by Wefl. I. c. 40. a man could not vouch out of the degrees, unlefs in both cafes the party was prefent ; vide Booth 278. then this writ came more into ufe^ and upon fuch adions, where they could not vouch and have procefs ad warrant izandiW2, they requefted a plea, and the fame was done in the cale of exprefs warranty. But it is to be noted, that in cafe the warrantee is impleaded, he muft requefl: a plea; and when he has fo done, he may bring his ijoarrantia chartce^ and recover at any time till execution actually executed. But if he be turned out of pofTeffion, then he can have no warrantia chart ce \ for the warranty in the feudal contrad: is to the tenant, and in tefemblance thereof, the exprefs warranty is only to the tenant of the land. Hales Fitz. 135. The words that create a warranty were firft anciently the refervation of homage, for the reafons given in ho- mage anceftrel, as plainly appears by the ftatute of Bigamis. Vide 275, 276. Se- condly, the word Dedi, to hold of the donor and his heirs ; for when fuch te- nure was ereded by the faid words, it was was fuppofed that the fervices refervcd were a perpetual recompence for fuch te- nure, and therefore fuch warranty was perpetual. Thirdly, Dedi^ to hold of *he lord of the fee, was fettled by the fliatute cf Bigamis^ c. 6. to contain a warranty, during the life of fuch donor; becaufe the lord mieht avow uoon his old tenant that was already in his homage, during life; and therefore againft the tortious entries and dhf reiles of the lord, it v/as necelTary that he fhould be proteded ; and it was' slfo thought then a point of honour that no man fliould fee his own gifts invali- dated without entring into the defence of them ; and anciently perhaps being taken into the lord's homage created warranty. Fourthly, By the word warrantizo, which .contains as exprefs a warranty, as if there had been an homage referved to the war- Ld.Raym. rantor, Je£t. 733. Warranties at common 3^°* law are of two forts ; firft, thofe com- mencing by dilTeiiin or wrong; and fe- condly, binding warranties. The firft are where the ancellor that makes the war- ranty is partner to the wrong, and fuch warranties are not obliging ; becaufe it cannot be prefumed that one who is fo unjuft as to do wrong, willbe fo jufl as to leave a recompence to his heir ; where- fore fuch contracts are wholly rejeded as collufive. 141 collufive, and founded on no confidera- tion. All other warranties were binding Sea. 698, 9, at common law 5 for a recompence was 7^o» »» ^\ prefiimed to be given, which was then ei- ther in land, by way of exchange, or in money, which was turned into land, and defcended to the heirj and therefore the time of limitation for the heir to claim was during the life of the anceflor; other- wife the eftate of the purchafer, which fublifted on the warranty of the anceflor, fliould never be defeated by fuch heir that ought to defend it ; and if fuch warran- ties were not binding, there might have been many fecret conveyances for the be- nefit of the heir, to defraud the purchafer. And in that age, when the building up of families, and eftablifhing them in feats and tenures was the whole bufinefs of the times, they prefumed that no man would deftroy his heir*s right for his own prefent advantage. As to thefe binding warran- ties, there are fome altered by the flatute: The firft ftatute is that of Gloceft. f. 3, which fays, that tenant by the curtefy fliall not, by his deed with warranty, bar the heir of the land defcended to the mo- ther, further than aflets defcend from fuch father; for the eftate being created by the law only for life, it was fit to pre- vent fuch father from grafping; the fee. If 142 £>f ibarrantp^ If affets defcend from t'lie father, by the exprefs meaning of the adt, the purchafer fhall retain fo much of the land of the mother. But if lands afterwards defcend, fuch purchafer muft plead the v/arranty, and may have a fcire facias for fo much of the fame land, as aflets fliall afterwards defcend, in lieu thereof. The next ftatute was that of JVeJlm. 2. JOe cio?2iSy which took from tenant in tail the power of alienation. Now this firfl formed the diflindion between the lineal warranty and collateral ; for before that ftatute all warranties were binding to the heirs at law, as well where a man had title to the lands, as where he had not; for after fuch warranty and acquiefcence, a recompence was prefumed to defcend, inftead of the land itfelf. But the ftatute De donis only barred the alienation of tenant in tail ; therefore the lineal warranty was within the ftatute, but the collateral warranty was left as it was by the common law ; but the diffi- culty is to obferve how the diftindion arofe between the lineal and collateral warranty ; and for this we muft go back to the confiderations already mentioned, touching the alienations. Firft, Origi- nally the perfon aliening confulted his lord, and a fine for alienation was paid, 3 and and the alienee was received into the ho- mage, and confequently into the warranty of the lord of the fee. Secondly, To- wards the latter end of the barons wars tenants began to alien to hold of them- felves, to fave the fine, and then they made exprefs warranties in fuch convey- ances, to bring the feoffor into the de- fence of the land, who brought in the lord of the fee ; and this was confirmed by Magna Charta^ fo there was enough to anfwer the lord's diilrefTes; but fome- times they then aliened to hold of the chief lord, and then the lord might have taken the feoffor that was in his homage, for his tenant during life; but afterwards could not avow upon his heir that never was in his homage at all ; and therefore was obliged to take the alienee after the death of the alienor. But, before they were taken into fuch lord's homage and warranty, they ufed to agree for the fine; and therefore in fuch cafes the warranty by "Dedi was during ^he life of the war- rantor. Thirdly, To quiet difTeifins, that were ufually very frequent in thofe unfet- ^tled times, between neighbouring feuda- des (and from thence called deadly feuds) it was ufual for fuch difleifors to purchafe warranties from fome anceftor of the fa- jnily J and this gave a right to fuch dif- feifor 5 144 M VOMUnf^, feifor ; for it might be ealier to compounci with the anceftor, than with the party to whom the wrong was actually done j and then to quiet mens pOiTeflions fuch war- ranty bound, if the owner acquiefced un^ der his expedtations from fuch relations. Fourthly, The next ftep was on the fta^ tute of ^ia cmptores^ when they aliened to hold of the chief lord, and the lord being then compellable to receive fuch perfons into his homage, was not obliged to warranty. Upon the firffc three points the law had flood at the making the fta- tute De donis, which was only a general appointment that the will of the donor fhould be obferved j fo that the tenant in tail iliould not alien to the difinheritance of the ilTue, and of him in reverfion. But it was left to the king's courts to mould fuch eftates, and to make rules and orders to prevent fuch alienations, and none were riiore necelTary than to re- train thefe warranties. The firft order or rule that was taken in this cafe was, that the warranty of tenant in tail, or of any perfon in title under the tail, fhould be no bar, unlefs affets defcended. This was made according to the platform of the flatute of Glocefter^ for they thought it was equal to make the fame rule as to tenant in tail, as they had made in par- liament £>f H)arrantj>. 145 Ilament for tenant by the curtefy, luz. That the warranty fhould be no bar, iin- Jei's the warrantor left an equivalent eftate to defcend j but if no aiTets defcended in the cafe of tenant in tail, they might have a fare facias for the alfets, and not for the land intailed. But in the cafe of tenant by the curtefy the fcire facias was for the land, on the part of the mother, which was the very land aliened, and not for the aflets defcended ; and the reafon of the difference was, becaufc if thtfcire facias had been for the land intailed, then if the affets had been aliened, the iflue in the next defcent might have come again with his formedon, i hifi. 366. and not only tenant in tail himfelf, but all other perfons lineal in that title were debarred from making fuch warranties ; for the eftate-tail was defigned by the adt to con- tinue to all generations ; and if they had permitted the next heir, though he was not in poflefTion of the tail, to have barred it by his warranty, then might the father and fon by their warranty have barred the tail, and deftroyed the perpetuity the fta- tute defigned. The fecond order was, that the collateral warranty was not within the ftatute; for the ftatute only appointed that the will of the donor fliould be obferved, L that 146 0i VoattAntV' that the tenant in tail rhould not alien to difinherit his ifTue, which they extended to all lineals, for the reafon aforefaid; for Ld. Raymond oiherwife the will of the donor could not ^ * be obferved. But they could not in any manner of reafon extend it to collaterals that were not to take by the gift, and therefore could not be forbidden to bar by their warranty. Again, It w^ould be very hard to appeafe the feuds and diffei- fins touching ellates-tail, if the anceftor could "not bar it by collateral warranty, which of old commonly ended fuch con- tentions. Nor could there be any ex- changes by any anceflors of the family, in order to better the eftates of the iffue, if fuch collateral warranty were not a bar. And they did not in this cafe ob- lige the tenant to fhew ailets ; for affets were prefumed, as it was before, if the whole matter was tranfaded during the life of tenant in tail ; and he did not enter to difannul it j therefore according to the text, Jeof. 708. if the tenant in tail difcontinue the tail, and die, leaving three fons, and the middle fon releafcs with warranty to the difcontinuee, this is a collateral warranty to the eldeH: fon, and lineal to the youngeft, cauja qua If If land be given to a man, and the heirs male of his body, and for default of fiich iffue, to the heirs female, and hath ifTue a fon and a daughter, the fon may bar the daughter by his warranty, fe^. 719. becaufe the fon is not lineal in the tail, quoad the females. And the rule of the court only extends to lineals bar- ring their fubfequent heirs j and they made no rule in relation to collaterals, but they were left as they were at common law ; for they thought that the alienations were fufficiently prevented, if all perfons that came in of the fame tail were prohibited from barring their iflbes, or joining in any warranty to defeat fuch tailj but as to thofe that were not feifed by force of that intail, there was no reafon to nul- lify their warranties to maintain the will of the donor, fince they had no interefl in fuch gifts, and therefore were not obli- ged by the words thereof to maintain it ; and therefore the fon, that had no intereft in the intails quoad the females, might bar it by his warranty. Now in the holnage anceftrel the lord was obliged to defend his tenant, and find him a champion, if he were impleaded -, for if it had not been fo ordained, all thofe tenures would have been precarious, h 2 becaufe bccaufe the tenant having no feudarics, could not himfelf have defended it. So in the exprefs warranty, in refpedt of the recompence given, the warrantor and his heirs are obliged to defend the land, and to find a champion where the trial was by battail. It is alfo to be noted, that if an infant be difleifed, and the anccftor of the in- fant releafes to fuch diffeifor with war- ranty, and dies during the nonage of the infant, this is no bar j but if fuch ance- ftor releafes during the nonage, and after the infant comes of full age, and then fuch warranty defcends, then is the in- fant barred; becaufe where the infant has the right of pofTeffion, no laches can be imputed to him, nor is he a competent judge of what is a fufficient recompence ; and therefore his acquiefcence cannot be conftrued to his prejudice ; and therefore he ought not to be barred, if he doth not enter during his minority. But if only a right of acftion defcend to the in- fant, then he is barred by the collateral warranty of his anceftor, though it de- fcends during his infancy, becaufe then the infant has only a right of propriety ; and fuch rights are recovered in real droi- tural adtio;is, where battail is joined, and then then the parol muft demur till the infant comes of full age, becaufe the infant can- not fight himfelf, as the method was an- ciently among thofe barbarous nations. Nor can he appoint a champion during his nonage; and when he comes of full age, he mufl be barred, becaufe he ought to defend the lands to the tenant, and to procure him a champion; and therefore to fuch rights of propriety the warranty is a bar, though it deibend during his in- fancy. Se^. 726. Co. Lit. 380. If an anceftor devife lands devifeable with war- ranty, aft mJeB. 734. fuch warranty doth not bind, becaufe the eftate begins after the death of the anceflor, and confe- quently there can be no laches in the heir, fince the warranty did not commence till after the deceafe of the anceflor ; and therefore there is nothing to be prefumed from fuch acquiefcence. Secondly, There can be no recompencc given by the anceftor, fmce the eflate be- gins after his deceafe. Thirdly, There are no parties to fuch contract; for the anceflor is not in being at the time whea fuch contradt has force, and the heir is not party thereunto. But if a man war- rants the land in fee, and takes back an eilate for life, as in fe^. 744. this doth ■' " L 3 not I50 £)f Xbatcatitv. not deflroy the warranty, becaufe here a recompence is prefumed to be given for the whole feej and there was laches in the heir for not claiming it during the life of the anceftor, and there was a party to fuch warranty, at the time the contract had its being. The warranty, like all other contrads, may be releafed and dif- charged ; and if the warrantor be attaint- ed, fo that he can have no heirs, no man can be barred by force of fuch warranty ; becaufe in thefe cafes there can be no re- compence prefumed to defcend to the heir. m 151 €)f Ijomase aitceftrei. TH E old authors, that have befl ex- plained our 'Englijl:) law, tell us, that there is a mutual bond between lord and tenant. Ta?jta and talis connexio- inter Dominiim & tenentem quod tantum debet Domijms tenentiy quantum tenens Domi'nOy prater foJam reverentiam. So that as the tenant was bound to defend the lord, fo alfo the lord in his turn was bound to defend his tenant. And an- ciently, when their way of trial was by battail, fuch a connexion was abfolutely neceffary ; becaufe if the lord was im- pleaded, it was neceffary he fhould have champions in the trial by battail, to make out his right ; and therefore the tenants were the lord's champions, who were obliged to be freemen ; for the ancient form was, that they fl:iould defend per corpus liberi hominis. Now when the tenant was imDleaded, who did not thus retain champions, he ufed to vouch his lord to defend him by his other freemen. Now this warranty, in the ancient tenures, had three efFedls. Firft, To rebut the lord and his heirs from claiming any right to the land j for the homage in thofe L 4 times 152 £>f Domase anceftrcl; times was thought an equivalent to the land itfelFj becaufc the lord had fuch an addition of flrength and honour from the fervice of his tenant, that it was more to their reputation and defence, than the ha- ving the polleflion itfelf^ and therefore the ancient maxim was quod homagiimi rcpellit perquijitum. So that if the elder brother had enfeoffed the fecond, refer- ving homage, and had received homage, snd then the fecond brother had died without illue, it fliould have defcended to the youngeft; for nemo pot efi effe tenens & Dominus^ & bomagmm repel lit perqui- jitum. And the law feemed to incline that the lords, upon no pretence of right, might enter upon their tenants, and ufe the great power they then had to their oppreffion. So that if the lord had ac- cepted rent from the dilTeifor, he could not afterwards enter for an efcheat, tho* the diffeifee died without heirs. But if a dilTeifor comes in above fuch tenancy, and without fuch acknowledgment to the lord; then it feems the lord, if he hath right, may enter, and is not repelled by his own homage from allerting fuch right -, but though the lord's accepting homage from the dilleifor barred him from any right to the land, yet it did not bar his titie of entry for a condition broken ar forfeiture £)f Ijomase anccfttti. 153 forfeiture, or on the efcheat of fuch dif- feifor ; for he took it under the fame feu- dal conditions as the dilTeifee had it, of which fee more in title Warranty^ and title Releafes^ that enure by way of ex- tinguifliment. Secondly, As the feudal contrad: repelled the lord from claiming ; io in cafe any ftranger claimed, the lord was vouched; and if he did not defend the tenant, he recovered in recompence againft him; and this was, that the tenant in the lord's homage might have a quiet pofl'effion, and the lord might not abet any third perfon to overthrow his title, and therefore the champions of the manor were brought in to defend the title of the tenant in queftion. Thirdly, By writ of *warrantla charta, and this the tenant by homage anceflrel had, as well as the per- fon that had an exprefs warranty. Fitz. Nat. Brev. 134. for the feudal charter was the foundation of fuch writ, and therefore the writ runs tmde chartam ha- bet at this day; and upon fuch writ he may give the homage anceflrel in evidence j for the prefcription fupplies the place of a charter lofl and worn out by age. And note, that in thefe adions of 'warrantia charted^ and by voucher, he (hall recover in recompence any land that the lord liad.; but otherwife it is an exprefs warranty ; for i54- ^f Domage ancefttel* for there he (hall only recover the land defcended ; and the reafon of the differ- ence is, becaufe when the old feudal con- tra(5ls grew to be immemorial, they could not diftinguifh which lands defcended from the anceftor that made the grant; and therefore all lands were liable to fuch feu- dal contract, left the tenant fliould be oufted of his defence. This fort of tenure has been totally deftroyed by the free liber- ty of alienation j for before the ftatute of ^ia emptores^ the lord ufed to licenfe an alienation, and they then feemed to fuc- ceed into the fame homage, and to have had the fame defence from the lord i but when the ftatute of "' - came that gave tenants a free power of alienatioOy the tenant ufed to alien with exprefs war- ranty, and fo they ufed to dereign the lord's warranty; and when the lord alien- ed, they ufed to have an exprefs warranty from their new lord ; otherwife they would not attorn; and if they did, it was reputed their own folly. Part ( 155 ) a 1 . .':» Part II. O F Cuftomary and * Copyhold TENURES. •j-^T^HO' a copyholder has but an 4 Co. 21. a. I eftate at will, yet it is in this different from other eftates at will ; that it doth not determine upon the cop)?-- holder's death, but defcends to his heir, if * Tenants by the verge, are but copyholders ; and have no other evidence but by copy of court roll. But they are fo called, becaufe when they furrender, they deliver a little rod into the fteward's hand, who fhall deliver the fame rod to him that takes the land in the name of feifln. It may be any other thing as well as a rod, according to the cuftom, as a fmgle penny, a glove, ^c. Copytenants, copyholders, or tenants per copy— d' ancient temps fuer' appelles tenants en villenage — et ceo appiert per les aunciennes tenures^ ^c. F. N. B. 12. c. Bio. tit. Villenage 63. Tenants 156 Df tttftotnat;? anti if it be any eftate of inheritance. The reafon of this feems to be, becaufe upon copyhold eftates villain tenures were ufual- ly referved, and thefe cflates were given Ld. Raymond to villains j therefore no other cllates t\N B.iz.c. could be granted to them but at will j for otherwife they had been enfranchifed, as it feems. But to prevent the frequent ending of thefe eftates, they granted them in fee, but yet at the will of the lord j and according to my lord Coke, notwith- flanding fuch grant, they were entirely at the will of the lord, who oufted them when he pleafed, without any reafon ; which being a very great inconvenience, it feems it was altered by fome pofitive law (though that does not appear) which prefer vcd their eftates to them, doing their fervices, but yet left them as it found them, to have eftates only at will. * Tenants at will, by copy of court roll, being in truth bondmen at the begiruiing, but having obtained freedom of their pcrfon!,-, and gained a cuftom by ufe of occupying their lands, they are now called copyholders, and are fo privileged, that the lord can not put them out, and all through cuftom. Bacon's ufe of the law 43. t The copyholder may juflify againft his lord, but fo cannot a tenant at will ; and he fhall have the aid of his lord in an aflion of trefpafs. i Leo. 4. . * Copyhold lands are parcel of the manor itfeU^ a«id not held of the manor, i Ld, Raym. 44. A toppDoiD ttmnts. 157 A copyholder cannot transfer his eft;ate4Co. 2J'«> but by furrender 5 the reafon is, * becaufe he has only an eflate at will, -f* which is determined when he takes upon him to grant it overj J for that is a plain decla- ration of his intent, || that he defigns to hold the land no longer; fo that he mufl j Inft. 57. ». furrender to the lord, and then he may grant another eftate at will, which now the lord is compellable to do to him to whofe ufe the furrender is made. Becaufe the copyholder now has that fettled in- tereft and eftate in the land, that his heirs Ihall inherit the land, whether the lord be willing or not; and fo a copyholder hath power over his eftate, and not the lord ; therefore 2 1 Ed. 4. Brian faid, » In^- 60. h, that if the lord enter upon his copyholder, he might have trefpafs. So far is it now from being a determination of the copy- holder's eftate. * And another reafon of a furrender is, that the lord (hould not be a ft ranger to his tenant. f If a furrender be defe£live, a court of equity will relieve. Mich. lo Geo. 1725. Ch. Rep. 75, Ch. Cafes 254. I Vern. 6g. X The lord is not compellable to make a furren- der. Moor JoS^. Lord Grey" i cafe. H In what cafes copyhold cftates may be trans- ferred without furrender. Hctly 150. Winch 3, Copyhold cftates are within all the ftatutes of Bankrupt. Cro, Car. 550, 569. i Kch. 24. A 158 :©f cttftomarp anu 4 Co. 21. b. A copyholder in fee may furrcnder, referving rent, with a condition of re- entry for non-payment, and he may re- enter for non-payment; for having a fee- fimple according to the cuflom of the manor, he may referve what profits he pleafes out of it, by the fame reafon as he may difpofe of it as he pleafes. And fince by cuflom an eftate at will is de- fcendable, the defcent is ordered and go- verned by the rules of the common law. Crook Eliz. For thofe reafons that govern the defcents id' Raymond ^^ common law, are drawn from the na- 630. ture of defcent and difpofition of eftates lb. 1145. gftgj- (]^Q owner's death; and are grounded upon thofe reafons that feem to warrant fuch a difpofition of the eftate, and are not taken from the nature of the land or thing that is difpofed of, and therefore may as well, and with as good reafon, be applied to the difpoiition of copyhold as freehold eftates; fince it is not the nature of the thing difpofed of, that is to rule or govern either in one cafe or in the other. And therefore, where a copy- holder by licence made a leafe for years, and the lefTee entered, and the leflbr died, 4 Co. 23, 3. having iflue a fon and a daughter by one JA^^iardkn! center, and a fon by another, then the Dier 292. a. eldeft fon dies: Adjudged, that the daugh- Cro.Car,4u. ^^^ q£ ^j^^ whole blood (liall inherit; be- caufe coppDolD tenttws. 159 caufe the pofTefllon of the lefTee for yeare was the pofleflion of the elder brother, who may have pofTeffion before admit- 4 ^V- *'• tance; for in that cafe he was not admit- ted ; for if it be reafonable in fuch cafe at common law to keep the inheritance out of the half blood, fo it is in copyhold eftates. But if the brother do not get poiTellion, the lifter cannot inherit; for then he hath only a right to the lands as reprefentative of his father, which right {lie is not capable of having, becaufe fhe is not reprefentative of the father. But when he has gotten pofTeffion, he hath then an eflate in the lands defcendable to him and his heirs, and the fifler is his heir ; and though he has the lands as re- prefentative of his father, yet he hath them to him and his own reprefentatives. But when he never got pofTeffion, he never executed the power he had of taking the lands to him and his reprefentative ; fo that this power devolves upon the younger fon as reprefentative of his father; for the law gives the eftate to him and his reprefentative, who is reprefentative, of the dead perfon. Now when he that is reprefentative to the dead perfon, doth not get adual pofTeffion, and fo veil the eflate in him and his heirs, he hath.no power over the lands, and therefore can make i6o ;€)f cttftomatp ana make no leafe or difpofition of them by feoffment ; becaufe though he hath a right to be abfolute owner of the lands, yet is he not adtually fo till entry, becaufe till then in fadt he hath no pofleflion ; and therefore there is no reafon by a fidlion of law to create him a pofTeflion. And fo he never having had the lands to him and his reprefentative, he muft take that is reprefentative to the dead perfon, which is the younger brother ; and this alfo may be a reafon why he that claims by defcent, muft make himfelf heir to him that was laft adually feifed of the freehold. But though copyhold land be governed by the rules of the common law, concerning defcents, yet it partakes not of the nature of freehold land in other refpe(a;s. * For it is not affets in the heirs hands, neither ihall a woman be endowed, hufband te- nant per curtefy^ unlefs by fpecial cuftom ; 4 Co. 23.3. -j- neither fliall a defcent toll an entry. 30. b. rpj^g reafon feems to be, becaufe the eftates of copyholders were at firft only eftates at will, and at the abfolute difpo- * Nor are they within the ftatute of Wejlminjier^ the 2. c. which gives elegtts, Savil's Rep. p. Heydon'i cafe. + Nor are they forfeited by outlawiy. Lit. Rep. 234* fition fition of the lord 5 and there hath not iince been any provilion made for thofe particular cafes. For my lord Coke fays, 4 Co. 22. a. that copyholders have only a fee-fimple fecundum quid; that though they are te- nants at will, yet their eftates fliall defcend to their heirs, and not be determined by their death ; and not be fubjedt to the will of the lord, as other eftates at will are (which it feems was introduced in favour of them by fome pofitive law, tho' no footfteps of it appear now)} but not fimpliciter to have all the collateral quali- ties of eftates in fee-ftmple at common law, in which refpedts that pofitive law fcems to have left them at large as before. My lord Coke fays in his Copyholder, Co. Cop. 114. that if the ieafe for years determine, and the elder brother die before entry, that the younger brother fliall inherit ; for when he has once got pofteftion, which he had by the pofleflion of his lelTee for years, then it feems he has made the eftate defcendable to him and his heirs. But perhaps it will be faid, that the pofTeffion of the leflee for years is only the pof- feftion in law of the brother, and not in fa€t, becaufe he can get no poiTeilion ; and it would be inconvenient to carry the eftate to anodier family, if the elder bro- M ther 1 62 £)f tnttommv ann ther die before entry ; but when this eftate for years is ended, then fince he may get a poiTeilioii by entry, 'tis acquired by law. But then on the other hand, if by the podeflion of the leflee for years, he had an eftate defcendable to him and his heirs, how comes this eftate to be devefted by the expiration of the leafe for years ? *Tis . urged on the other hand, that poftTeftion was but feigned, and is now gone; * but Dyer 291. yet if the brother were once in poft;*eflion. Moor 371. ^^^ ^^^^ ^^j.g (jiffeifetj^ it feems the fifter fhould inherit, though the pofleffion of the elder brother were gone. But the pofteflion of the leflee was the brother's poffeffion only by fuppofition of law, to help him out where he could get no pof- feflion ; and therefore when that eftate for years is gone, the law removes the affift- ance it gave before, becaufe now he may get pofleffion, and fo fets the matter be- tween the brothers, as it would if there had been no leafe for years. Ideo qucere de hoc. 4 Co. 22. h. X. I'l-je i^ejj- before admittance may en- 23. * 2 Levlnz 107. Blackborn v. Greaves. Sed quxre 4 Leo. Cafe 226. i Ventris 260. 1 Mod. 102, 120. •\ Moor 596. 2 Cr. 105. 2 ter toppijolb ttmus. 163 tet and take the profits ; for perhaps there may not be a court holden in a great while afterwards. Such heir may furrcnder to the ufe of another before admittance, but not to prejudice the lord of his fine. ^are^ Whether the lord in fuch cafe i Leo. 1 74. muft admit before the heir has paid his fine, and if he do, what remedy there is for the fine. The admittance of tenant for life is the 4 Co. 22, 23,- admittance of him in remainder, becaufe ^^ ' ^^* they make but one eftate j but the lord 3 Co. 7. (hall have a fine for the remainder-man's intereft, but the remainder-man need not pay it till after the death of tenant for life, for then he becomes tenant to the lord. Mich. 8 ^. 3. in B. R. per Holt. The admittance of tenant for life is the admittance of him in remainder, fo as to veft the eftate, but not to prejudice the lord of his fine ; for after the death of tenant for life, he in remainder (hall be admitted again, ^are. 'Tis enadted by the 31 H. 8. c, 13. i Leo.4» That if any abbot, ^c, ihall make any ^°- '^^* leafe of lands, &c. in the which any eftate for life then was in being, then every fuch leafe to be void. A copyhold was let for life by copy, and then the re- ligioMS houfe granted a leafe of it to an- M 2 other 1^4 M cttftomarp anti other for ninety years ; and it came to h<^ a qucftion, Whether this was a void leafe? And the dcubt was, Whether a copyhold eflate for hfe were within the words of the a(5l, in which (any eftate or intereft for hfe, &c.)i and it was refolved, that the leafe was void, and that the copy- holder had an eftate or intereft for life. 1 Ld. Raym. And in the handling this cafe, fome gene- ^^^' ral- rules were laid down for the expofition of ftatutes, where they fliould extend to 2 Co. 7. copyhold eftates, and where not. When Uo. Car. ^ ftatute alters any intereft, tenure, cuftom, fervice of the manbr, or doth any thing in prejudice, either to the lord or tenant^ there the general words of an a<5t of par- liament will not extend to copyholds -, 25 3> but when an ad: is generally made for the good of the common weal, and no prejudice accrues to the lord, &c. there copyholders are often bound. And this vtafon, as it feems, was the ground the judges went upon in the refolution be- Stra. 516. fore; for there was an adt of parliament ^oS^^'^'"' ^^^^^^ ^^^' ^^^^ king's advantage, to pre- vent the alienation of thofe lands that were to come into the hands of the king ; and it was no prejudice to the lord to hinder granting future eftates, fa long as it permitted the granting prefcnt interefts. : '9 jnterefts. * And in this cafe was fome- thing touched concerning the great con- troverfy of entailing copyhold lands. And 'twas held per tot. curiam^ that generally copyhold lands could not be entailed; be- caufe if the ftatute of Wejim. 2. brings 3 ^'^' 3^ in a new eftaie, as an efiate-taii i:-, then it muft introduce a new tenure, '•jvz. the donee to hold of the donor, which comes within the rule before of a gener;-,; ', not binding copyholders in fuch ^ ea; Another reafon was, becaufe rhe words of the (latute de donis are quod 'voluntas doiiatoris^ &c, io that what may be en- tailed within that ad: of parliament, muil b- given by charter in tail ; and copyholds are not given by charter in tail, but by farrender and admittance. That a fur- Cro. Car. 45. render and admittance is no alienation by deed, fee Litt. feB. 74. For 'tis there faid, an alienation by deed is a forfeiture. Again, that copyholds cannot be entailed, Cro. Car. 43, * About the latter end of the reign of queen Eii- zsbath, the queftion was debated. Whether copy- hold lands could be entailed. Fide Cr. EUz. 308, 907. Moor 753. Godbolt 358, 367. Cr. Car, 131, 411. 2 Roll. Rep. 383. Wm. Jones 360. And in Hill and Morfe\ cafe, it was adjudged, that where a copyhold is entailed, it muft be by a fpecial cuftom fo to do. Moor 188, 637. iLcv. ^36. Raymond 164. S'ld. 314. M 3 was 1 66 £)f cttttomatp ano Was alfo refolved in the cafe of R&wden againft Malfler. In both thefe cafes 'twas objected againft entailing copyhold lands, that it would introduce a perpetuity, bc- caufe no fine or recovery could be fufferr- ed of them; and fo the owner cannot dif* pofe of them. Thus far then went the refolution of the courts in both cafes ; that copyholds are not generally within Cro. El. 717, the ftatute De donis. But then when Vco. 8. 'twas obje/ted by fome, that vv^here there Moor 358. Iiarh been a cuO-Gm for entailing copy- Lit. iec. 13. \.^^\^ eflates, there the ftatute De dojtis co-operatir;g with the cuftnm, fliould ex- tend to It. Bat the lord chief baron an- fwered that 'twas all one, and that no cuftom could make the ftatute extend to copyholds; becaufe all the eftates at com- N mon law were fee-fimple, as Litt. fays j and fo there could be no cuftom to entail copyhold lands before the Itatute ; and fince there could not be ; becaufe no eftate in copyhold is grantable, but what hath been grantable time out of mind; and the fla.ute De do?iis is within the time of man's memory. But this was not the refolution of the court, but only my prq. Car. 44, lord chief baron*s Opinion. In the cafe 5* of Rowdeii ver. Mal/ier, a copyhold was furrendred to the ufe of the copyholder's ^ill, who devifed it to J, in tail^ remain- der copp?)oiD ttnuttSi 167 der to H. in tail, &c. J. hath illue, and furrenders to the ufe of his wife for „ lifej 'twas adjudged, that fince the jury- found 'twas not the cuftom of the manor to have an eftate-tail in a copyhold, that y. had a fee-fimple conditional ; and that by his having of iffue, he had performed the condition, and the furrender to the life of his wife was good. One argument againft copyholds being ^'^ ^^- 39»< entailed was, that no fine cpuld be levied, ^ °' '°^" "' or recovery fufFered, becaufe a warranty cannot be annexed to an eftate at will. There's a cafe cited in Podgers cafe, where 'tis faid to be adjudged, that copyholds are not within the ftatute De do72is-y but it doth not fay, if they be entailed by cuftom, they are not within the ftatute. There is the cafe of EriJJj ver. Rives^ Cro.El. 717. where 'twas adjudged, that without a cu- flom copyholds can't be entailed by the. ilatote De do?2is. Thefe are all the cafes that I can find againft entailing copyhold lands, none of which go fo far as to fay, that if there have been an eftate-tail by cuftom, that 'tis not within the ftatuie De do72iSj but only the opinion of my lord chief baron, which will be but of little weight when we have feen the precedents againft this opinion, which I fhall now examine. And Firft, There is Littletons M 4 opinion i68 £)f tuftomatp anu opinion for the entailing of a copyhold ; *■ for he fays, that tenant by copy of court- roll is, as if a man be feifed of a manor, tit. Sea. 73. vvithin which manor there is a cuflom which hath been ufed time out of mind ; That certain tenants within the fame ma- nor have ufed to have lands and tene- ments, to have and to hold to them and their heirs, in fee-limple or fee-tail ; fo that there he fays exprefly, that eftates- tail in copyholds have been time out of mind, and therefore muft have been be- z'lx\ii.6o. fore the ftatute. But my lord Coke in his comment on Littleton^ in another place lays, that an eftate-tail may be, by the opinion of Littleton^ by the cuftom, the il:atute co-operating with it; for faith he, there can be no eftate-tail in copyholds by cuflom only, nor no eflate-tail by the ftatute only, but the flatute muft co-ope- rate with the cuflom. Now the queflion will be, How this can be reconciled Vv^ith what Littleton fays? For he fays. That an eftate-tail in copyholds was time out of niind of man ; and then if eftates-tail were before the flatute, the queftion is out of doors, whether a copyhold can be en- tailed by force of the ftatutej for if they Vvere entailed at the common law, then ^s tp them the ftatute is but in affirmance qf th^ comrnon law. ' It coppDoia ttmitts. 169 It feems the meaning is this, that C^""^- 22- eftates-tail were before the flatute, as to the manner of limitation by the cuftom of fome manors j as that an eUate was granted to a man and the heirs of his body begotten, the remainder over to an- other ; but that in other refpeds thefc eftates were not eftates-tail before the fta- tute, as that the tenant lliould no ways alien to debar his ilTue, or them in re- mainder ; or that if he made any difcon- tinuance, they (liould have a formedon in defcender or remainder ; but thefe things were introduced by ftatute upon the eftate, which was the fame in limitation by the common law; and fo the ftatute is faid to co-operate to make an eftate-tail ; and this obviate? the main obje<5lion againft intailing copyholds by the ftatute, viz. That every copyhold eftate ought to be grantable time out of mind ; and if an eftate-tail were introduced by the ftatute, then that eftate was not grantable time out of mind ; for if the eftate-tail were, before the ftatute, the fame in point of limitation of the eftate, as it is now fince the ftatute, then an eftate-tail hath always been grantable time out of mind, though fome other qualities are now annexed to that eftate by .'Ct of parliamen*", which '^ere not io before, and which may v^^ell be I70 £)f cttftomatp ano be faid to give the (latute fome ihare in the making thofe eflates, fince they are Co very confiderable. And that the qualities lliould be annexed to this eftate by the ftatute De donis^ is no ways unrealonable; for this adt was made to redrtls a wrong at common law, and was tor the general convenience and profit of the weal pub- lick; and the bringing an eftate-tail in copyhold lands within the ftatute De Jo- nis^ is no prejudice to the lord or tenant, alters no tenure, eftate or cuftom of the manor, which may any ways prejudice any body. It is no proof of a cuftom time out of mind to intail a copyhold, that an eftate hath been granted to a man and the heirs of his body, for that may be a fee- fimple conditional ; but it muft be Ihewn that a remainder hath been limited over and enjoyed, or that the iflue have reco- vered after the alienation of his anceftor, or the like. Thofe that are againft the intailing co- pyhold lands, fay that the eftate-tail of copyhold land mentioned by Littleton^ muft be underftood a fee-fimple condi- tional at common law, or elfe he con- 3C0. 8.b. tradidls himfelf; for he fays in another Lit. feft. 13. place, that all inheritances at conunsn law were fee-fimple; but it feems that may may be well enough underftood of free- hold eftates ; for one may lay a general rule for all lands, meaning freehold lands, which will not extend to copyhold lands. As that djftincftion about intailing copy- Cro. El. 907. hold lands is taken by my Lord Coke, and Tl* ST' r re 1 • • • r Manfel's cafe. lo or -^.reat authority, yet it is not a lin- 2Cro.El.717. ele ioritv, but the fame diftindion is^o°''>73» • • 188 taken and allowed in many other cafes, c^o.^i, .07 And fir ft there is the cafe of Gurfey ver. 149. gander fon, where it is doubted whether a » Leon. 175. copyhold may be intailed, no cuitom be- , sid. 268, ing found one way or the other; by 3'4- which it feems plain, that if there had °' ^^' been a cuftom found, there had been no queftion but that it might have b^^en in- tailed. But then there is the cafe of Erijh ver. Riles, that an intail may be of a co- pyhold by cuftom, but not without it. There are feveral other cafes warrant the fanie diftindtion, as in the margin. Thus you may fee the reafons both for and 3gainft intailing copyhold lands. It is made an objection againft intailing Cro. Car. 45. copyhold lands, that thereby the donee muft hold of the donor; and the donor being in the reverlion, muft hold of the lord; and fo the change of tenants will not be fo often ; and if the donee com- fnit any forfeiture, the donor muft take ^dv4ntage of it, which would be to the prejudice 1/2 ^f cttftoinatp atiD prejudice of the lord to have the tenure thus altered. To this objeftion I think it may be very well anfwered, That the truth of the cafe is not fo j for the donee in tail doth not hold of the donor, but of the lord, as it feems every tenant for life doth of a copyhold j and this feems to be very reafonable j for a copyhold in fee-fimple is not like other eftates in fee- fimple at common hw, but they are only cftates at will, and fo he that is the ac- tual tenant at will, is ten?nt to the lord ; for it feems to me, that becaufe they are but eftates at will, there is no divifi'jn of eftatss, but he that is adual tenant at will hath all the edate, and there is no part or parcel of the eftate left in any body clfe J and that a tenant in fee-fimple of copyhold lands is only he that hath fuch an eflate at will in the lands, as, by the cuftom of the manor, is not to determine by his death j but that after his death his heir (hall be tenant at will ; {o that when he grants away an eftate for life, he has no eftate in the lands left in him, but only a power of being tenant at will, ac- cording to the cuftom of the manor, when his tenant for life's eftate is ended. And 1 take it, that in the mean time the te- nant for life is tenant at will to the lord, and fhall do the fervices 3 and if he com- mit mit a forfeiture, the lord (hall take ad- vantage of it. And to this purpofe there is the cafe of Borenford ver. PackintotJi \ Leo. i^ where the cuftom of the manor was, that the widow (hould have her free bench j and it is there taken for granted that (he fliall hold of the lord, and be accordingly admitted tenant, and that the heir (hall not be admitted during her life, which plainly proves that the courfe of tenure of copyhold lands is not like the tenure of freehold lands at common law ; for in that cafe, at common law (he (hould- hold of the heir> and though in eftates at common law the donee holds of the donor by the fame fervices the donor holds over j becaufe the flatute creating a reverfion in the donor, the judges made expofiiion according to the common law, that becaufe a fee-fimple conditional was held of the feoffor by the fame fervices that he held over ; therefore the donee fliould hold of the donor by the fame (er- vices he held over; but at common law the tenant in fee-fimple conditional of co- pyhold could hold of no body but of the lord ; therefore they cannot hold of the donor that have now an eftate-tail in co- pyhold lands, but according to the rule in expounding the ftatute De donis ; viz, by the common law they muft hold of the 17+ £>f cttftomatp am the lord, becaufe the tenant in fee-fimpld conditional of copyhold lands at common law held of the lord, and not of the fur- rcnderor. In the fupplement to my Lord Cfo.Car. 44. Cokes treatife of copyholds there is a cafe cited between Lane and Hi/l, where it is faid, That when a copyholder makes a gift in tail, he hath no reverfion but a poflibility j and the lord fhall avow upon the donee for the rents and fervices, and not u}3on the donor ; and therefore it was there faid, that he in reverfion could have no formedon in the reverter. Hob. T 77. A copyholder, by licence of the lord, I Leo. 297. makes a leafe by indenture for twenty iBrown.^iTQ. Y^^rs, and then furrenders his eftate by the name of reverfion of one moiety to one, and another moiety to another ; and it was adjudged the reverfion pafied, for the leafe for years paffed out of the eftate- of the copyholder, as well as if the leafe had been made by furrender. It feems' that which occafioned the doubt in this was, that the leafe not being made by fur- render, the leflbr ftill continued tenant ta the lord ; and fo whether he might fur- render by the name of reverfion was the queftion. This cafe feems very much to- (hake the reafons I have before given why the particular tenant fliall hold of the lord, and not of him that created particular eflates > tOpvDOlD ttUttVtS; ITS eftates ; that is, that there was no rever- fion left in him ; but yet though fuch in- terefl may pals by name of reverfion (for any other name to give it will be very hard to find) j yet perhaps he hath not in ftriiftnefs fuch an eftate in him. How- ever that be, it feems the particular tenant holds of the lord j therefore if tenant in fee of a copyhold fur renders to one for years, it feems to me that the tenant for years {hall hold of the lord j for by ad- mittance the lord takes him for his te- nant ; but if the leafe be made by inden- ture, there it feems he holds of his leflbr; for he is not admitted tenant to the lord. It was held that no attornment was re- quifite, becaufe it is the lord that has the power of chuiing and admitting tenants, and not the leflce. It was held likewjfe, that the rent was to be divided by the halves according to the reverfion. Having thus examined the reafons and authorities for inlailing a copyhold eftate, after which there can be no great reafon to doubt, but that copyholds m^y be intaiied ; It is now reqaifite that we fee the me- Stra. 1197: thod for the avoiding fuch intails j ^i^^ T^^^^oy^ry {&n% firft I (hall {hew, that a recovery with flate^&7em- voucher doth not of common right bar biereaionable, the intail of a copyhold ; but that as to "'/"" ""^ I'M- 1 r> • -r r cultome que the iniauing them, cultom is requinte; fo bar freehold without ' fliall not take advantage of a condition cro. Car. 24, broken, by the 72 ii/. 8. nor by the com- 5» 44- 1 / f .A I- / Yd. 222. mon law, (of covenants they may, i Kef;. 350. Cro. Ca. 24, 253. tame?i queer e up- on Tel. 135.) for then by entry he might come in to be tenant to the lord without admittance ; and tho' he in the reverfion may enter by the common law, yet he was tenant before : The ad: gives remedy to aflignees, which he is not properly who comes in by furrender. When a copyholder enters for a condition broken, he is in Jiatu quo prius, and therefore fliall pay no fine 5 and if the grantee of the reverfion might enter by force of the ftatute, he would be in the fame place as his grantor, and fo would be in as tenant, and yet pay no fine. Copyholds are not within the 1 1 //. 7. 2 Sid. 41, 7^. c. 20. for thereby an entry being given to the next heir, he would come in to be tenant without being admitted by the lord, N 3 The i82 i©f cuftomarp anti The reafon they feemed to go upon in the rcfolution was, that the lands were copy- hold, and fo clearly out of the ftatute. But another reafon was mentioned by one judge, which was, that the eftate being Hniited to the baron and feme in fee, 'twas out of the liatute 1 1 H. j. which only mentions eflates-tail, and for lives. Cro. Car. Another reafon may be, becaufe copy- 550, 568. i^QitJs a^-e j^ot within the ftatute 27 H. 8. about jointures, and the copyhold lands are within the ftatutcs of bankrupts j for the ftatute 13 Ed, exprefly mentions them; and though the other ftatutes do not, yet they being m::de for further remedy in the matter aforcfaid, are not to be expounded by the former j efpecially fince that hath taken care that no prejudice fliould happen to the lord. The ftatute 27 H. 8. c. jo. for executing ufes to the pofteffion, ex- tends not to copyholds, which is plain from common experience ; for when a co- pyholder furrenders to the ufe of another, the poffefliv)n is not executed to the ufe; for the furrenderee hath noticing till ad- C'rQ.Car. 44. mitt^nce. For 'twas not the intent of the ftatute to execute the poffcflion to the ufe of copyhold lands ; for then a tenant would be introduced without the lord's confent. Neither doth the branch->of that ^(X concerning jointures extend td copy- holds J holds ; fo that if a jointure be made to a woman in copyhold, that will be no bir to her dower. The reafon is, bccaufe the words of the provifo being general and introduOive of a new law, to bar v/on:ien of their dower, where they were not barred by the common law, there's no reafon to extend them, fince an ellate in copyhold lands is very difadvantage- ous to the woman who muft pay a fine to be admitted, which Ihe may r^ot be able to do, and thereby will commit a forfei- ture ; bi^ides a woman is not dowable of comn:ion right of copyhold lands ; and fo it feems to have been out of the re- gard of the ftatute; and my lord Cc/('^ i Tnil. 36. b> defines a jointure to be competent hvely- ^^.J^ ^^^^j.^^' hood of freehold ; fo that it mud be an 4 Co. 30. eftate of freehold. And in another place he fays, a tenant by copy hath no free- hold ; but yet the ftatute of Merton that gives damages in a writ of dower, where the hufband died feifed, extends to copy- holds ; and yet feifed is properly applied to freeholds. And my lord Coke lays in ' ^"^- 5^- b. his treatife of Copyholds, that a freelvold is twofold in refped of the flate of the land ; and fo any body that has an eflate foj* life, in lands, is a freeholder; and io; copyholders may be freeholders. And the other fenfe of the word Freehold, as . N 4 'tis 1 84 £C)f cuftomatp auD 'tis oppolcd to copyhold land ; but queers; of this diftindion, for it feems not to be .ilnS. 43.b. law. For he fays generally in another place, that tenant in fee, tail, and for life, are faid to have a freehold, bccaufe it diilinguilLes it from terms for years and copyhold lands ; fo that he there plainly faith, that a man cannot have a f reel old in copyhold lands j for if he could, where would be the diftindtion. Therefore I take it, tho' a feme in a writ of dower of ccpvhold lands fliall reco- ver daniages by the force of the ftatute of 'Mertcn, yet 'tis by the equity of the fta- tute, and not by the words. 5X0.9.3. The ftatute of JVefl. 2. c. 3. in all its Cro^^Ca'^^i branches extends to copyholds j for 'tis an ilnrt. 369. b. adt made to redrefs wrong, and no ways prejudicial to the intereft either of lord or tenant. The 32 H. 8. c. 9. againft champerty, extends to copyholds ; for the words are, if any bargain^ bii)\ or fell, any right or title, fo that they are within the words J and the z€t being made to fupprefs wrong, is within the equity of it, neither lord nor tenant being prejudi- ced by it. Cro. Car. 43. 'Tis faid hy Teherton, arguendo, that the 32 H. 8. f. 28. which gives an entry inftead of the cui in 'uita, extends to co- pyhold lands 3 for the a^ was made to yedrefs rediefs a wrong, and it is no prejudice to the lord or tenant, that the wife {hall enter ; and the general words of the ad: ihat give a cui in vita^ have been allowed to extend to copyholds. The words of the ftatute 32 H. 8. are, beifig the inheri- tance or jrcehold of his 'wife. So if this aid doth in this branch extend to copy- hold lands, as it feems to me it doth, then one and the fame ad: of parliament, in one part of it, will extend by general words to copyhold, and the other notj for the firH; part of the ad of leafes to be Mo. 596. con, made by tenant in tail, extends not to copyhold lands. The 31 ©" 32 H. 8. about partitions, Cro. Car. 44; extend not to copyhold, becaufe the ad provides it fliall be done by writ of par- tition, and copyhold lands are not im- pleadable at common law. * The flat, of Weji. 2. c. 18. which gives the elegit^ extends not to copyhold, for if it did, the lord would have a te- nant brought in upon him without his admittance or confent. ¥ * Savil's Reports, Heydon's cafe, pag. 66. pi. 138. A copyhold not forfeitable by outlawry. £//. Rep* 234. I Lev. 99. Heil. 127. By 1 86 £>t cuftomarp ano By the 2 Eci, 6. c. 8. it Is cxprefly, that copyholders fliall have the hke traverfes and remedy, where his intereft is not found by the office, as freeholders and others have. By the i Ed. 6. r. 14. it is exprcfly provided, that no copyholds fliould come into the king's hands by the diflolution of iTJOnafteries, which claufe, it feems, was put in, that no prtjudice might be to lords of manors. The forging a court- roll is exprefly within the 5 EL c. 14. A recufant convidl that repairs not to his ufual home, or re- moving from thence itbove five miles di- fiance, forfeits his copyhold to the lord for the offender's life. The 16 i^. 2. c. 5. v^'hich makes it a forfeiture of lands to purchafe bulls, ex- tends not to copyholds, for the prejudice the lord fhould fuilain if the king {hould 4. Co. 126, b. have the lands. The 17 Ed. 2. c. 10. 9C0. loj.a. concerning the wardfhip of ideots lands, doth not extend to copyhold. The flat, of fines, becaufe made to avoid contro- «trerfi£s, and no ways prejudicial to tenant or lord. In the fupplement to my Lord Coke's treatife of copyholds, it is laid that the 3^ ii. 8. <7. 38. concerning remedy for arrears of rent, extends not to copyholds. Tb prove which, a cafe is cited in Leo. which I coppi)olo ttn\iu&. 187 which is this: A lord of a manor, whereof 2 Leo. 109. were divers copyholder?, granted a rent- charge for life, and afterwards made a feoffment of the manor to y. S. in fee, who granted a copyhold for life to B. y.S. died, and* the grantee of the rent died, and his executors diftrained for the arrears in B.'s copyhold lajids; and it is there faid it was held by the court, that the diftrefs Was not well taken j and the reafon is, becaufe the words of the ftatute are, claimitig only by and from him ; and the copyholder doth not only claim by his grantor, but by cuftom. This opinion, as it feems, was upon the firft hearing of the caufe ; for the very cafe is report- 2 Leo. 152. ed quite contrary by the fame reporter ; 3^^°- 59- J • • r-j -1 r\ J u u , Mo. 8 1 2. con. and It IS laid to be relolved by ay the judges but Fenner, that the copyhold fhould be charged with the rent-charge : for the cuflom is no part of his title, but only appoints how he fliall hold ; and fince it was charged in the lord's hands, it is plainly within the intent and meaning of the ad:, as well as the words, to be charged in the copyholder's hands ; and to this purpofe there is a cafe in Dyer ad- Dyer 270. b. judged. But if the cafe were adjudged, * ^^°- +• that the lands fhould not be charged in the copyholder's hands, on that reafon, that he doth not claiin only by and from, 1 88 iS>t cuKomarp atiD csrr. but by cuftom ; yet that would ne- ver warrant lb general a conclulion, that the ftatute in no other part (liould extend to copyholds ; and that if a rent were granted out of a copyhold in fee, and the grantee died, that his ex^utors fl^ould not have debt or diftrain. But turn the tables, and if the acTi of parliament doth in point extend to copyholds, as lands that are claimed by, &c. and that which in this cafe only doth make a doubt, is over-ru- led, then this is a ftrong argument, that in other cafes, where that is not which occalioned the doubt, the ftatute ftiall ex-^ tend to copyholds, cfpecially fince the adt was made to remedy an apparent wrong, and doth no harm either to lord or te-^ nant. »Leo. 97, 8. It Came to be a queftion, whether the Owen 37. 29 El, c. 5. of recufants, extended to co-. pyholds, and two feemed of opinion it did, and one took this difference j when a ftatute is made to transfer an eflate by the name of lands, tenements and here^ ditaments, copyhold is not within fuch ftatute. Copyholds are not within the 3 1 £/. c, 7. of cottages, i Bulf. 50. 2 Infi. 737. If the lord's feigniory, cuftom or fer^ vices are impeached (as it feems they muft be, by a ftatute which transfers an eftate in 3 coppDoio ttniitts. xH in copyhold land without the lord's ad- miffion) that ad extends not to them ; but if the cuftoms, &c. are not ahered, then the ftature doth, becaufe that adl doth not make another tenant to the lord; and it was urged by him, that by force of that ftatute the queen was only to have the profits, and no eftate, and fo the ad: did extend to copyholds. The ftatute fays, the queen (hall feife and take intp her hands two parts of the lands, tene- ments and hereditaments, ^c^re of this cafe. It was faid arguendo of this cafe, that the 13 £/, c. 4. for making accoun- tants lands liable to pay debts, extends not to copyholds ; which is a reafonable opinion ; for power is given by that ad: to the queen to make fale by her letters patent, which would be a very great pre- judice to the lord. I (hall now fbew what are difcontinu- 4C0. 23.3. ances of eftates in -copyhold lands. If-g^ *^' there hath been a cuftom in a manor, that Mo. 358. plaints (hould be profecuted there in na- ture of real adions, if a recovery be had upon fuch plaints againft tenant in tail, it is a difcontinuance ; for fince the cuftom warrants the recovery, it is an incident to fuch a recovery by the common law, that it {hould be a difcontinuance, which it feems is drawn from the nature of the thing \ 199 £>f tuCtomarp ana thing: that a judgment given in a court of judicature, ought not to be avoided, but by matter of as high a nature, viz» by a recovery in a court of juftice, and not by the entry of the party that hath right. 4 Co. 23; a. A man fcifed of copyhold land in right of his wife, furrenders to the ufe of another in feej this is no difcontinuance, but the wife may enter after the death of her hulhand ; for by the furrender he gives up no more than he had, and there- fore could not give away his wife's right ; though before entry (lie cannot be faid to be tenant, becaufe the furrenderee is by the lord's admittance made his tenant. Cro. El. 717. And this is not like a feoffment at common law, which being fo notorious a way of conveying eftates, the wife's entry was taken away, the whole eftate being paft away to the feoffee for the benefit of ftrangers, who could never have known whom to have brought their practpe again ft, if the eftate did not pafs by fo notorious a conveyance ; and then if fhe ftill might have entered, they could never }?.now whether {lie were a trefpaffer, or in whom the freehold was rightfully vefted. But in cafe of copyhold lands, as there is no fuch inconveniency, fo the nature of the conveyance will not admit of fuch expo- con tr. coppljoio tmutts, 191 expofitlon ; for a furrender is but a giving or yielding up that eftate one hath from another; and 'tis in the nature of the thing impOiTible to furrender more than one hath. Therefore if tenant for life ^^°- 7S3* furrenders to the ufe o( another in fee, 'tis no forfeiture, for it maybe feen by 4 Co. 23. the court-rolls who is tenant, and fo the flranger is at no lofs to fue ; and eftatcs Ld. Raym. at common law are guided by thofe rules {^^^I'^q that do not extend to copyholds, unlefs there be a particular cuftom for it. ■ It feems when a tenant for life makes a fur- render in fee, though nothing can pafs by the furrender but what he hath ; yet when the lord admits the furrenderee according to this furrender, then he hath a fee, for the lord hath an eftate to pafs a fee-fimple. Another reafon, befides that of pafling i Leo. 9^: the eftate by feoftment and livery, fot the benefit of ftrangers, why a difcontinuance fhould be made by fuch pafling of eftates, is, becaufe a warranty ufually is annexed to fuch eftates ; and if the rightful owner might enter, the benefit of the warranty would be loft ; and warranties cannot be annexed to copyhold eftates. Notwith- Mo.3?2,596. {landing this, there are cafes that a furren- ^g°- ^^- 7'7» der is a difcontinuance of an eftate- tail in Brownl. izi. copyhold lands, and my lord Coke fays, 1 1"'^- 60. b. that a farrender by cuftom may bar an \ Leo! 'l^^^ eftate- 192 £>f cttftfitnsitp an& J Inft. 248. a. eftate-tail : But thefe opinions for diicon-' ro. .148. tinuing by furrender do not Icem to be 4 Co. 25. grounded upon that reafon or authority^ as the contrary opinion is ; for there arc more cafes againfl: it than for it. An infant furrenders, 'tis no difconti- nuance, but he may enter. A copyholder in fee furrenders to the ufe of another iri fee upon condition ; at the next court the furrender is prefented as an abfolute one ; and the furrenderee being dead, his two daughters are admitted ; the furrenderor releafes to them, and then oufts them. In this cafe were two queflions : Firft, Whe- ther the prefentment was void ; and ad- judged it was 5 becaufe the warrant to ground it was not purfued, and fo as no warrant at all to make fiich a prefentment ; and then without queftion, the prefent- ment had been void : But if the liirrender were conditional, and the prefentment too, but the fteward had entered it upon the roll abfolutely, the roll being no eftoppel nor record, the admittance is good j and the party may plead it or give it in evi- dence, as the truth of the cafe was. The next queftion of the cafe was. Whether furrenders being the only way of convey- ing copyhold eftates, the releafe fhould transfer a right ; and it was adjudged it fhould; for the heirs being admitted, th^ lord toppIjolD ttmtts* 193 lord had a tenant to anfwer his fervlces ; and the releafe to that tenant operated to cxtinguifti a right ; but if a difTeiiin be made of a copyhold, the diiTeifee's re- leafe will fignify nothing, becaufe the difleifot- is no tenant, and the lord hath admitted no body to anfwer him his fines and fer vices. The lord hath only a cuftomary power 4 Co- 28,9. to make admittances according to the fur- render, and fo far as he executes that power, the admittance is good; bur where "^^^ Ray"- he goes beyond that power, he aas with- '^' out a warrant, and it is void. But if the furrender be abfolute, and the admittance conditional, the adrnittance is good, and the condition void ; if the furrender be conditional, and the admittance abfolute, that is void. If the furrender be to the Ijfe of J. S. and the lord admit J. N. this is void, and he may afterwards admit y. S. If he admit J. S. and a ftranger, y. S. takes all, for the Granger's admit- tance is void. The reafon of thefe diver- lities are, becaufe when lord ads contrary to his warrant or power, his ads are void j but when he adts according to his power in one thing, but beyond it in another, for what he ads according to his power be liath a warrant, but for what he ads O bevond 194 €)f tttCotttfttp atiu beyond it he hath no warrant, and fo it is void. I Inft. 52. b. If copyhold lands have been ufually 4 Co 23.^a^ granted in fee, grant to one in tail, for Co. 10. life or years, is good. Cro.jac. 21. -^pj^g admittance of tenant for life is an Mod 120. admittance of him in remainder, as to 3 Lev. 308. veft the eftate, but not to prejudice the Cm'^El/nS, ^^^^^ of his fine, faith my lord Cokey 149, 504. ' therefore upon the death of tenant for 1 Roll Abr. ijfg^ i^g (i^^w jjg admitted, and pay a fine> Stra. 1042. fo^ though his eftate of tenant for life vefts, yet he was never tenant to the lord for the admittance to which he pays his fine. But if a copyholder in fee furren- ders to the ufe of one for life, and the tenant for life dies, he may enter without any new admittance, or paying any fine j for he had his old eftate in him, and he was admitted tenant before j yet it was faid by Pcpham, in Guppin and Bunny^s cafe, that one fine is due in fuch cafe ; but it is but of little authority ; for the point of the cafe was. Whether the ad- mittance of tenant for hfe was the ad- mittance of him in remainder ; and be- eaufe it was made an objed:ion, that if it were, the lord would lofe the fine, which Fopham anfwers by faying. There is non^ due in fuch cafe ; which objection my lord Coke anfwers by faying, That though 2 ' the the eftate be vefted in the remainder-iiiari, yet a fine is due. The cafe of Z)^// and Higden^ as it is Moor 3 57, reported by Movr^ is alfo contrary to the cafes before -, for there it is faid but one fine is due ; but ctherwife it is oi a rever- fion, which diftindion is laid quite crofs to what it is in the cafes before, and feems to have been a miftake in the re- porter ; for as it is again ft the cafes before, fo it is againft reafon. The fame cafe is reported by my lord Coke^ and no fuch 4C0. 23. a, refolution is mentioned in his report of it ; and it is obfervable, that nothing in that cafe, as reported by Movr^ feems to have been either upon reafon or authority, but one point, which is the fmgle refolu- tion, as the cafe is reported by my lord Coke. A copyholder furrenders to theufe of his laft will, the copyhold eftate ftill remains in the furrenderor ; for all the dcfign of the furrender was, that he might difpofe of it by will, not to veft any in- tereft in any body, or to give away the power of difpofing of it ; therefore when a copyholder furrendered to the ufe of Cro. EI. 441, himfelf for life, then to his fon for life, then to the ufe of his own laft will, and the fon died, and the father furrendered to the ufe of another in fee j held, that the copyholder mi(^ht difpofe of it in his b 2 ' life- 196 £)f cttftomatv ano life-time, notwithftanding the furrender to the ufe of his laft will. 4 Co. 23. b. Every lord of a manor that hath a lawful eftate in the manor, whatever it be, either fee, tail, life, years, or at will, may make voluntary grants of copyhold lands which come into their hands ; which grants fliall bind thofe that have the inhe- ritance of the manor, whatfoever defeds the lord that made the grant may lie un- der ; provided the ancient rent, cuftom and ftrvices be referved ; for if the eftate a copyholder hath in lands, be an eftate that hath been demifed, and demifable time out of mind by copy, by the lord, it is fufficient to fupport his eftate by the cuftom J fo that no eftate is required to be in the lord, but only that the copyhold lands ftiould be demifed, and demifeable time out of mind by the lord for the time being ; fo that be he but lord, it is enough; fo that the cuftom, which warrants thefe eftates, only requires that they fhould have been demifed and demifeable by the lord for tlie time being ; but it requires no eftate to be in that lord in particular, fo that he be but lord ; and cuftom is the life and foul of a copyholder's eftate ; for the copyholder doth not derive his eftate out of the lord's eftate, (for then it would determine with his eftate) but from the cuftom COpj>!jOlD tCtlttVCS* 197 cuftom, which only requires a lawful lord for the time being, and therefore no re- gard is had to the perfon of the lord j for if a voluntary grant be made by baron and feme, it fliall bind the feme, not- withftanding the coverture. So a grant made by an infant 7ioJi cofnpos^ (ic. {liall bind for ever ; fo if the queen be tenant for life of a manor, and a copyhold of inheritance efcheat, iTie may grant it by copy, and that grant fliall bind the king ; for the cuftom of the manor (liall bind the king, flie being domina pro tempore \ fo it feems of any body tlfe. My lord Coke fays, the fucceffors of bifliops, pre- bends, vicars, &L\ are bound by fuch a grant, by which it is evident, that eccle- Haftical perfons are not reftrained from making grants by copy. The ad: re- quires the leafes made Ihould be hy deed indented, which fliews the intent of the makers was not to reftrain grants by copy ; and a bifhop being lord, the co^ pyholder's eftate is more derived from cuftom than from him ; for it determines not with his death. So it feem?, if it be made without confent of dean and chap- ter ; for he hath a lawful eftate, and fo no defed; can vitiate the grant; fo when the temporalties come into the king's hand*?, 4 Co. 22. cl he is bound, which fliews that a grant O 3 by 1 98 C>f cuftomatf antj by him alone is good ; for if the confent of dean and chapter were requifite, and had, there is no queftion but that grant flioLild bind, if it were out of the ftatute, v/hich it muft be, to bind any body. 4 Co. 24, a. jf at-jy perfon that hath a tortious or 2^eo 45. ^efeafibie eflate of inheritance, as diffeifor, or feoffee of a diffeifor, tenant at fuffer- ance in a manor, make voluntary grants upon efcheats or forfeitures, theyfhall not bind him that hath the right ; for he is not domimis within the meaning of the cuftom, but he only that hath a lawful eftate; but admittances upon furrenders or defcents made by fuch as have defea- fible eftates, are good, and fnall bind hirn that hath right ; for that he was compel- able fo to do, and it was no more than the rightful lord muft have done. In fuch grants made upon forfeitures, ^c. the ancient fervices muft be referved, and the cuftoms alfo. The reafon of this feems to be becaufe there is nothing but cuftom to warrant the grant by copy, which ought to be ftridly purfued as to the eftates, cuftoms, fervices, and tenure, or elfe it is not the eftate that was demifed before. But yet if there be a copyholder in fee, it fcems the lord may reieafe part of the fervices, and not do any prejudice to the copyholder's eftate; for there is an eftate copplJOlD tmntts. 199 eilate there in being that appears to be the old eftate ; but when the lord grants a new eftate by copy, fince it is an eftate againft common right, and warranted only by cuftom, that muft be ftridly purfiied to bind the heir. Mv lord Coke fays, If the ancient caftoms and fervices be not referved, the grant by copy will not bind the heir or fucceflbr. This being fpoken io generally, feems to intimate plainly, that if the anceftor hath a fee in the manor, and he grants without obferving the cuftom, his heir may avoid it, becaufe it being a grant againft common right, the cuftom muft be purfued. {^^are, Cro. EI. 662. I RoL Abr. 499.) Befidcs, he puts heir in the fame equipage with fuc- ceflbr ; and if he means with the confent of dean and chapter, then a biihop had as much power as an anceftor ; if he means without the confent, yet it is not that ftiould avoid the grant, but the non- refervation of the ancient tenures. And fo ftridt is the law in this point, that if the rent be referved in filver, where it anciently was in gold ; or payable at two feafts, where anciently it was payable at one feaft j or if two copyholds efcheat, one ufually demifed for twenty lliillings, and the other ten fliillings, and he de- mifes both for thirty ; fo if three acres O 4 efcheat, ^Qo £>f cuftomarp ano tfcheat, held by three (hillings, and he grants one by copy, referving one (hilling, this is not good j tor the cuftom, whic)i is the only thing that warrants fuch grants, mud be purfiicd. ^Cp. 23.1?. If tenant in tail have a copyhold efcheat to him, qttare, if he may not grant it by copy again, fo as to bind the iiTue. He may ; and thefe cafes of refervations are like the refolutions in my Lord Montjofs cafe, ^ Co. whei^ the fame points were refolved upon a particular aft of parlia- ment, reftraining the alienation of tenant in tail, other than for three lives or twen- ty-one years, referving the ancient rentj for there it was adjudged the aft ought to be ftiiftly purfued ; and fo here the cu- ftom, being a particular authority, ought to be fo too. But yet fuch grant by copy fliall bind the lord during his life, and he having admitted the tenant as a copyhol- der, (hall be fo to him, though his heir may avoid the grant. There are many cafes of grants by the lord for the time being, that are good and binding, and they i&txn to depend upon the fame reafon with the cafes before. If a man makes a feoffment in fee of a manor, upon con- dition, and the feoffee grants eftates by copy, and then the condition is broken, ye^ the grants by copy (hall (land good 5 far toppDoiD ttmtts. zQi for he was legitimus dom'mus pro tempore ; 2nd yet it is a rule, that when a man en- ters for a condition broken, he iliall be in of tiie faipe eftate he was in before j and therefore fhall avoid all mean charges Dyer 344. a. and incumbrances. But the copyholder ^ ^' ^^' *** doth not claim his eflate out of the lord's grant, but out of the cuftom ; and if the graots were made after the condition bro^ ken, yet it is all onej for before entry the feoffee hath a lawful eftate, and the feoffor may wave the advantage of the condition broken. But if a leafe be made of a manor for years upon condition to be void upon the breach of a certain condi- tion, and the condition is broken, no vo- luntary grants made afterwards fliall bind ^he leffor, becaufe the eftate of the leffee is void; but if it were for life, &c. then the grants were good. If an infant in- feoff one of a manor, and the feoffee makes voluntary grants, the entry of the feoffor fliall not avoid them. In this cafe, ^nd in cafes of grants made after the con- dition broken, the grantor hath a defea- fible title j and yet the eftates are good that are granted to the copyholders ; yet piy Lord Coke fays, that if any one has a tortious or defeasible eftate, fubjed: to the ^(^ion or entry of another, his voluntary grant?, fhall not biiid. To reconcile this, it 202 M mftommv ano it feems my Lord Coke muft be under- flood, that when any one hath an eftate, to which another hath right at prefent, that the owner of fuch a defeafible eftate cannot make voluntary grants. But the infant and the feoffor have no fuch rights ; for the feoffees, in both cafes, have law- ful and rightful eftates in the land, till they are defeated ; and before they are de- feated the feoffors have no risiiht. A man feifed of a manor in fee hath iffue a daughter, and dies, his wife privement enfeint with a fon ; ftie makes grants by copy, afterwards the fon is born. Feoffee of a manor, on condition to infeoff ano- ther, the next day, makes voluntary grants by copy. Lord of a manor commits fe- lony, and after exigent granted he paffeth away copyhold eflates, and then is at- tainted ; if he were convift by verdiifl or confeffion ; in all thefe cafes voluntary grants by the lord are good j for he was dominus pro tempore. My Lord Coke fays, that if a lord acknowledge a flatute, and then makes a voluntary grant, the lands Moor 04. ^re not chargeable. But Moor is againfl this, and there are cafes where the grant of a rent-charge, in fuch cafe, (hall bind the copyholder ; but there is fome diffe- rence between the two cales ; for in cafe of a rent, the lands were charged with it coppl)oit) tetitttes. 203 it by the grant, but in cafe of the fta- Brown. 208, tute, the lands were only chargeable, and l^^^' * ' before the actual charge, were granted 4 Co. 24. a. over ; {vide Aloor 8 n .) and therefore may be compared to the cafe where a man makes voluntary grants, his wife (hall not be endowed of thofe lands, becaufe the copyholder is in by the cuftom, which was long before the title of dower ac- crued to the woman. It feems the rea- fon of this cafe is, becaufe the woman had no title of dower to thofe copyhold lands while they were in the hands of copyholders; and the cuftom warrants 8 Co. 63. b. the granting them again, fince they have ' ^^°- '^^• been always grantahle by copy ; and the ]vioor 236, 7, eftate would be deftroved, if (he were dowable of them : ^are of the cafe of the ftatute. But if the heir, before af- iignment of dower, grant lands by copy, then it feems (he may avoid that ; for {he had then a perftdl title of dower to thofe lands. Thofe things that take their efTence by the lord's g'ant and intereft, have no longer continuance than his in- tereft has ; therefore if the lord, tenant for life of a manor, licenfc ihe copy- holder to alien, and dies, the licence is gone. Lord of a minor dcvifeth by will, , jnj^ .g ^^ that his executors fliall make voluntary Dyer 151.3. grants of copyhold eftates to pay debts ;^^°- ^4- a. they 1,9."'*^' 20+ 4)f cttftomarp and they have no intereft, nor are they do- mini pro tempore ; yet the grant is good. Tenant by fuffcrance can make no volun- tary grants to bind the owner. Grants made after ahenation in Mortmain^ and before the entry of the lord, are good. Grants by '> parfon before induction, are not good. So if after inftitution and in- duction, he reads not the articles, the grant is void to bind the fucceilor j tamen qucsre. Guardian in focage may grant topics, but not a bailiff. My lord Coke fays, that if there be kflee for years of a manor, and he grants lands by copy in reverfion, that nnlefs the revcrlion happen in pofleflion before the leafe for years expire, the grant is void. The reafon feems to be, becaufe now he makes a grant, which is only to take effedt after his eftate ended in point of poflcilion, and fo will bind the future lord's intereft, but let his own be at large, without any grant by copy, which by conftrudion they will not admit, but take the rule ftridly, that he that is Dominus pro tempore of a particular eftate, muft Moor 95. grant in poffcftion. And to this purpofe ^'^m^'au'' is niy lord of Oxford'^ cafe; but it is 1 Roll. Abr. J n L J V -r •. 499. agreed on all hands, that ir it come in Hetiy 54. pofllffion during the continuance of the MQor 147. j^^.^^,g ^^^^^^^ jj^^^ ^^^^ |g g^Q^^ ^^^ jj^gj.g is is the cafe of Gay ver. Kay^ where it was held good notwithftanding it did not come in polTeflion ; and there it was faid that it was cuftom only warranted the grant, which might as well warrant a grant in reverlion as pofleffion ; and if the cuftom will warrant the grant of a fee-fimple in polTeflion by fuch particulat tenant, why not a reverlion in fee ? And the like refolution was made in Sir Peier Careivs cafe. It feems the firfl ground of this law, That the lords for the time being might grant copyhold eftates, was, becaufe copyholders were only tenants at will ; and fo, though the lord pro tempore had but a particular eftate, and yet granted the lands in fee, yet that was no prejudice, but rather an advantage to the lord that was to have the manor, in rerpe(ft of the fervice he was to have done him afterwards; and if he had a mind he might put out his te- nant at his own pleafure. But this uncer- tainty of the copyholder's eftate being found inconvenient, it was afterwards ad- judged, that he fhould retain his land, and not be fubjedl to the pleafure of the lord ; but the other part of the law was left as before ; liiz, that lords for the time being might grant lands in fee, though they themfelves had bat a particular ellate ^ 2o6 £)f cwftomarp ana ellate ; and this cuftom being continued to this day, is what warrants the grants by copy. For it is moft certain, thofe eftates that are granted by lords that have a particular intereft, cannot be derived from the interefls of the lords j for if they were, they muft determine when the lord's eftate determines ; for nemo plus jii^ ris dare^ &c. therefore where there hath been a cuftom that fuch lands have been granted time out of mind, by copy in fee by the lord, there the cuftom gives the eftate, and the lord is but cuftom's inftru- ment to convey even where he hath them in his own hands, and may, if he pleafes, 8 Co. 63. retain them. And to this purpofe is the cafe of SwaWy which feems to be a ftronger cafe than before. Queen Eliza^ heth feifed of a manor in fee, parcel of which manor was a rod and a half copy- hold land, and demifable by copy for one, two, or three lives, and then the queen demifed the manor to one for twenty-one years, exceptis omnibus bofcisy &c. who affigned his intereft to one J. P. the queen grants the reverfion to S. and his heirs, the leflee attorns and then holds a court, and grants a houfe and the faid rod and a half of land by copy for life, upon which fome trees grew ; and within the manor there is a cuftom that every copy- holderj coprDoiD ttnnnSi 207 holder, tenant for life, had ufed to take all trees growing upon his copyhold land for fuel in his copyhold houfe, &c\ and the copyholder cut down the trees in that rod and half for that purpofe, and he In the reverfion brought trefpafs ; but i: was adjudged for the defendant, that nctwiih- (landing the feverance he might take efto- vers J for when he was in by copy, he claimed by cuftom, which was above the feverance. Therefore if copyholdeis have ufed to have comnion in the lord's wafte, or eftovers in his wood, or any other profit apprender in any other part of the manor j and the lord alien the wafte or wood by feoffment or fine, and then grant an eftate by copy, the copyholder may take the profits in the hands of the alienee ; for the cuftom, unites the incident to the principal, as to the copyholder who claims paramount the feverance. If the aliena- tion be by fine, and he doth not claim within five years, it feems he is barred. , This proves that the copyholder claims by cuftom, not by the lordj for if he did, the feoffment would bar him of his com- mon ; the fame cafe is reported by Moor, ^^ow 81 ti Queen Elizabeth feifed of a manor in fee, grants copyholds, parcel of the manor, to one in fee by copy, and then grants the inheritance of thofe copyhold lands to 2o8 0t cuftoniatp atitj to another in fee ; the copyholder makes his will, and devifes his lands to Murrel 4 Co. 24. b. the plaintiff in fee, and then furrenders his copyhold land to the ufe of his laft will, into the queen's hands ; and betvveen the heir of the faid copyholder, claiming by defcent, and the devifee, it came to be a queftion, Who (hould have the land? And it was refolved, that though the copyhold was fevered from the manor, yet it ftill remained copyhold land ; for it would be very unreafonable that it fhould be in the lord's power to deftroy the co- pyholder's eftatej and the granting the Cro.Jac. 572. inheritance over to another, cannot vefl ^ °* ^ ' ' any greater intereft in the copyholder, fo as to make his land free, any more than it can deftroy the grant by copy : And it was further refolved, that the copyhold defcended to the heir, notwithftanding the furrender ; for that was void, becaufe the lands were not parcel of the manor; and the devife only will not pafs copy- hold lands ; and the copyholder (hall pay all thofe fervices to the feoffee of the in- heritance, that he ufed to pay, without keeping a court ; for all thofe fervices that arife bv reafon of a court, he is excufed from, becaufe the feoffee can keep no court; therefore fuit of court, and fines for alienation and admittance are gone j for topi>I)olD ttnmts, 209 for now the copyhold cannot he fold, nor the feoffee cannot make admittance or grant hy copy 3 for he is not dofninus pro tempore, the land being fevered from the manor ; but all thofe things that were forfeitures before, are fo ftill, if the co- pyholder be obliged to do them, as wafle, making a feoffment. So if the land were f/°- EI. 499* D ., , . . Moor 393. of the nature of Borough Englifh, o^c. it ftill remains fo. There is no way for fuch a copyholder to alien, but by decree in Chancery agiinft him and his heirs. As this cafe is reported by Croke, it is Cro. EI. 252: faid the copyholder's heir (hall pay a fine, as before j but how can that be, when there can be no admittance : And Coke is againft this ; the cafe is but fliortly reported by Croke. When the lord grants the inheritance of all the copyhold lands, the grantee of all fuch may hold a court, take furren- ders, and make admittances, though the grantee of one copyhold cannot; and this diverfity is taken by my lord Coke, in Neal A Co. 26. b.^ and Jack/on s cafe, reported alfo by ^'^' ' ^^^" Croke-, and the fame point is alfo refolved in another cafe of my lord Coke'^ ; for though it be not a manor flridly, becaufe there are no freeholders ; yet as to the granting copyhold eflates, it is a manor ; for in truth every manor, conlifting of P free- 210 £)f mftomatp ano freeholders and copyholders, hath two courts, one a Court-Baron^ and the other a Court for Copyholders^ whereof the ilnft. 58. a. fteward is judge; and therefore what rea- (on is there, fince thefe are in efFt(5t two feveral courts, and there are feveral judges of them, that the want of freeholders fhould hinder the grantee from keeping a court for granting eftates by copy, efpe- cially, lince the confequence is fo fatal ? and therefore if the lord releafes the fer- vice and tenure of his freeholders, yet Cro. EI. 39. the lord may keep a court for his cufto- cont. mary tenants: And fo though the lord cannot make two manors of one, con- fiding of demeans and fer vices, yet by his own a(ft, he may make a manor of copyholders. This feems to be but a di- vifion of the courts, which before were in one j for a manor feems to be fo to two intents, as to the freeholders, and as to the copyholders ; and fo in effedt feems to be a double manor ; and therefore are there feveral courts in effedl, and feveral judges, according to the matter that is before them ; and fo it is no new making of a manor to grant the inheritance of the copyholds, but only to put that into the hands of two men, which before was in one 5 and yet was as much two manors then as now. But notwithftanding all ihis. 211 this, there are precedents that fuch gran- tee of the inheritance of copyhold lands, cannot keep court, no more than the grantee of the inheritance of one copy- iiold. And it is faid, that a writ of error Cro. EI. 103,- was brought upon the aforefaid judgment; and becaufe the opinions of the jnftices and barons were, that the judgment was erroneous, the party compounded, and the plaintiff in error had the land, and the defendant the corn upon the ground. There is the cafe of Bright and For th^^To. El ^^t: where a recovery was fuffered of a irsanor, excepting the land in Bradivay^ in which were divers copyholders for life ; which part in Bradway was afterwards conveyed to the countefs of Darby ^ who granted a copyhold for life. In this cafe it was re- folved, that the grant was void, becaufe there was no manor; and though it was infifted on, by one of the counfel, that there was a difference betwixt copyholds of inheritance and copyholds for life only; for when they were for life, they could not be granted again ; yet it was anfwer- ed by Anderfon^ that it was all one ; and indeed what reafon can there be for a dif- ference why one ftiould not be granted again as well as another ; and why a court may be kept in one cafe, and not in the other? This cafe was Mich. 37^ 38 Cro. El. 39s. P 2 El 212 3©f cttftomat? auD EL and in Tritt, 36 El. Anderfon was of a quite contrary perfwafion, and held that a lefTee of the freehold of copyhold lands irjght hold a court and grant copies; which (hews there is a material difference between the two cafes; or elfe Anderfon was of a very variable temper. And in- deed, this cafe doth not feem to eontra- didl the cafes before ; for there the grant was of the inheritance of all the copy- 4 Co. 26. b. hold lands ; here but of part ; and a man cannot, by his own a£t, create two feve- ral courts and manors ; but when the grant is of all the copyhold lands, there is ftill but one court for copyholders, which there was in effedl, when the ma- nor confided of freeholders. But be it an authority againft the granting lands by copy, it feems to be but weak, being both againft reafon and feveral other cafes ; for Do. EI. 662. ^^^^^ ^^'^ ^^ '^^s held, that where a woman was endowed of the third part of a ma- nor, and among the reft of a copyhold tenement, that fhe might grant it by co- py; and for what appears, this was the only copyhold tenement was granted her. But this being done by a(5l in law, no pre- judice could accrue to any body. 4 Co. 26. a. The leflee of a copyhold for a year Cro.EI. 461. ^^11 (maintain an ejeBione firmcs-, for the common law warrants his term, and there- fore topy!)o!!) temtreiS. 213 fore gives him reaiedy in cafe he be oiifted. So if the lord gives licence to make a leafe, the leflee (hall have an eiedtmcnt. There is the cafe of Stephens and Eliot ^ ^'*'- ^^- 483* where it was held, the IcfTee of a copy- , Lgg ,28. holder could not maintain ejedtment at Cro. El. 53 j^ common law^; and this is generally fo ; ^5. 676. but then this mufl be underflood of a 539,679,30(1 leafe without licence, and for more than 271, com. a year ; for by the licence, the lord gives _[°"^ '^^ ^* up his power of adjudging about the lef- 1 Leo. joo, fee's eftate, becaufe when he hath given '^' licence, it feems he hath an eftate at com- mon law, though of copyhold lands. It is held alfo, in fome cafes, that if a leafe be made without licence, the leflee may maintain ejedment at common law ; for the leafe is a good leafe againft any body but the lord. If a copyholder may by cuftom make a leafe, fuch a lefTee may by common law have ejeBioneJinncej making mention in his count, of the cuftom, yet this muft come on the other fide, by fome. In this diverfity of opinion, it will be good to fee what is plain, that fo we may more eaiily determine and know what is uncertain. And firft, it feems plain that a leflee for a year of copyhold land, may have an ejeSlione Jirmce : And it is very plain alfo, that where a copyholder may make a leafe by cuftom, fuch leflTee may P 3 have 214 £>f cuftomarp auD have cjedment. But the queftion is. Whether fuch leffee need mention the cu- ftom in his count ? It feems alfo to be plain, that lefTee by licence may maintain Mo. 272. the adion for the reafon before. But the com. main doubt of the cafe is, Whether a lef- fce, without hcence, may n^aintain eject- ment upon that reafon that the leafe is good again ft every body but the lord. And firft, there is the cafe of Goodwin Owen 17. ver. honghurft^ where it was held, by all Cro.El. 535- ^}^e j.j^ggg^ that fuch a lefTee might; but the caie itfelf was upon a leafc that was licenfed. And it is faid, in the cafe of Haddon ver. ArroJ'm'ith, that fuch a lefTee Cro. E!. 461, may have cjedment. In the cafe of CoU Mo' 50 ^''^^ v"^. Harding^ it is faid, that ejedfione firmed lies of copyhold lands; but it is not faid upon what leafe. In the cafe of Spnrk^ it is faid by Popham^ that it lies in • fuch cafe: In the cafe of Stopper vtr. Gib' Jon, it is adjudged, that the lefTee of a copyholder fliall maintain an ejeSfione jirmce ; but it is not faid, whether upon a leafe for a year by caflom, or licence; fo that here is no cafe when this was the point of the cafe, and but one cafe where the judges were of that opinion. Cro. El 394, On the other fide there is the cafe of 4 3*5H- Stephen and Eliot, where it was \\t\A per cur, that a Copyholder could not have cjed- ejedment; and it is [aid fo in Laugbfers cafe, and in Harrifons cafe, that ejed- ment lies not of it, unlefs the plaintiff declare on the cuftom; and all thofe cafes ^^ ^79- that are for declaring upon the cuftom are^o. againft it. And this opinion is fupported » Inft. 57. a. by thei^i-* reafons, that when a copyholder rnakes a leafe, he deteraiines his will, therefore may the lord enter j and if the lefTee enter, he is a diffeifor. And my lord Cokes faying, that a leiTee for a year may have ejedtment, excludes others from having it. . A cuftomary manor may be held by * "^^l^- 57* copy of court-roll, advohmtat. (^c. and ^,0, ja. 260 fuch a lord may grant copies; but it com. 327. feems it muft of fach things as have been ^^^^^' *90' ufually demifed by him ; for it feems he xhefe cafes cannot grant all his demefnes by copy, are thus re- without they have been ufually demifed : ^^^^J^J^'J^^* For though they have been demifed time court may be out of mind by the fuperior lord by copy, ^^^^^^^J^ . that will not warrant his demife by copy ; a manor, but becaufe the cuftom muft be, that time out not a court- of mind they have been granted per Do- "°"* mimm Manerii; now they have not been granted by him that is lord of the manor, though they have by the fuperior lord. This cafe feems to prove that a cuftomary manor to hold courts, ^c. may be with- out any freehold fervices ; and it may as P 4 well 2i6 £)f cttftomat? ano well be objeded againft fuch a lord's hold- ing courts, that he hath no manor, be- caufe no freehold fervlces ; but it feems he may have freehold fervices. A copyholder may funcnder by attor- ney in full court; for of common right a copyholder may furrcnderin court-i which is common law ; as he may make a leafe for a year without licence ; and as an in- cident to this power, the law allows him to do it by attorney ; and a copyholder may be admitted by letter of attorney ; but tiiis is not of common right ; for every copyholder is to do fealiy, which the at- torney cannot do for him ; therefore the lord may refufe to admit by attorney 5 but if he do admit him, it is a good admit- tance. But where there is a cuftom for a copyholder to furrender by the hands of two cuftomary tenants into the lord's hands, there he cannot furrender by at- torney into the lord's hands, by the hands of two cuflomary tenants ; for fuch a fur- render is warranted only by the cuftom ; and therefore unlefs there be a cuftom alfo to do it by attorney, the common law cannot give that as an incident, for it allows of no fuch furrender. 400.26,27. The lord himfelf may make admit- tances or graifits at any place out of the nianor, for he is not confined any more • than coppliolD tctttttes. 217 than any other perfon, to grant an eftate at will where he pleafes ; but there being Ld- Raym. only cuftom which enables the fteward to f^'^ make Inch admittances or grants, that which he does he muft do upon the ma- nor, unlefs there be a cuftom to keep a court but of the manor, which will ena- ble him as well as the cuftom to do it up- on the manor. It is laid, that a fteward may grant co- Cro. EI. 103. pies as well out of court as m ; Jed qi'O're. Feme copyholder for life takes liuft)and Ld. Raym; who doth wafte, this is a forfeiture of the *^9* woman's eftate; but if a ftranger do it without the aftent of the huft^and, it is 4 Co. 27. no forfeiture. If a copyholder be feifed, by force of feveral copies, of feveral parcels, by leve- ral tenures, if he commit a forfeituie in one, it is no forfeiture of the reft : As if he commit wafte in part of black acre, it is a forfeiture of all that acre; and by the fame reafon, if wafte be committed in one acre, it is a forfeiture of twenty acres, if held by one tenure ; for the condition ir> law annexed to the whole eftate is broke; and fo the lord may enter for the forfei- ture : But where there are feveral tenures, though they be in the hands of one copy- holder, there are feveral conditions in law annexed to the feveral parcels, and there-* 21 8 ilE>f cttftomarp atiti therefore the breach of the one is not fo of the other. If fuch a copyholder fur- renders to the ufe of another, and the lord admits him by one copy tenend' per antiqua fervitia^ the feveral tenures re- main > but if the admittance were by one tenure, then it feems a forfeiture of part would reach the whole, becaule the con- dition in law is but one. So if feveral copyholds efcheat to the lord, and he grants them again tenend' per antiqua fer- vitia to A. and he commits a forfeiture in part, this extends not to the whole. He, that comes in by admittance upon another's furrender, is in by him that made the furrender, and (hall fuppofe himfelf in the Per by him. 4X0.27,28. Where a copyholder hath feveral par- cels of land by feveral tenures, the lord ought to aflefs and demand his fines feve- rally 5 for the fine for one may be reafon- able, for another unreafonable : And if fuch a copyholder fur renders to the ufe of another, and he is admitted tenend' per antiqua fervitia^ the fines muft be feve- rally afT.fT^d. 83 Co. 2 ^° ^"^ ^^ ^"^ either upon a defcent or furrender, till admittance, for that is the Stra. 447. caufe of the fine ; and therefore if after that the tenant deny to pay, it is a forfei- tures but if the fine be uncertain, the te- nant copyljoij) unnxts. 219 nant is not bound to pay it prefently, be- caufe he could not tell what it would be; but he muft pay it in a convenient time, or elle the lord may appoint a day for him to pay it on j but a fine certain he muft pay prefently upon admittance. Note; The lord ought to alTefs a certain time and place for payment of a fine uncertain; for Hob. 135. the tenant cannot carry it always about him, and he ought to demand it. When the fine is uncertain, it ought to Cro. El. 779. be reafonable, or elfe it is no forfeiture if ,3 co°3.^* the tenant do not pay if. As this cafe is Two years reported by Croke, it is faid, when a fine fy",g"J°"i^y is certain, the heir ought to tender it upon unreafonabte. his prayer to be admitted. As it is report- ed by CokCj it is faid no fine is due until admittance, and that admittance is the caufe ; and as Croke reports it, fo has Moor, 623. and if he do not pay i% it is a forfeiture. This feems to contradi(5t what he faid before ; for if it cannot be a for- feiture until admittance, the demand of Hob. 135. the fine muft be of the perfon of the te- ^Co. 29. b. nant to make a forfeiture. So of rent. When a furrender is made to the ufe of one, without exprefling what eftate the cejhiy que ufe fliall have, he ftiall only have an eftate for life, except there be a par- ticular cuftom to the contrary ; as if there be a cuftom that he that hath an eftate 3 W^ 2 20 ijDf cttftomatp ana fibi & fuis, he fliall have feej this cuftoni is good, and fo of the Hke. The Hmita- tion of the eftate is always added to the ufe, not to the furrender into the lord*s hands ; for a furrender of the eftate gives up all the copyholder hath to the lord. Put the cafe then, that the furrender was made to the lord for life, to the ufe of another for life, what eftate would the lord then have, and what could he make over ? Or, qucere^ Whether the words ^or Ufe would be of any fignificancy, though he that is admitted be in by the furren- Stylei4j; deror. Yet may a man furrender to the 4 Co. 29. b. ufe of his wife, for flie takes the eftate from the lord, as an inftrument to convey the eftate to her; and fo it comes not within the reafon of other cafes, that they being but one perfon cannot contra<5tj for he gives the eftate to the lord, and he ad- mits the feme to it. If one furrenders, and dies, if the fur- render be prefented according to the cu- ftom, it is good ; otherwife void. So if the cuftomary tenants, by whofe hands the furrender was, die, yet if the fur- render be prefented upon good proof, it is fufficient. If he, to whofe ufe the furrender was, die before admittance, yet his heir fhall be admitted j for upon admittance the eftate coppljolD tcttttveiS, 221 cftate is in the cejiuy que ufe from the fur- 2 Sid. 38,61. render by relation. Where grants have been made by copy 4^0.25.3. for life, a grant durante viduitate is good, Dyer '4. but not vice verfa. Co. 30. A fteward is a good fteward to all in- tents and purpofes, that is retained by pa- rol either to take furrenders, or make ad- mittances upon voluntary grants : But the lord may difcharge fuch fteward when he will, that is, if he retain him generally ; yet a retainer generally by patent feems to be for life. The king's auditor or receiver hath no power by parol to re- tain a fteward to hold the king's courts j"^^'^^'"' but he ought to have letters patent of the flewardQiip of the manor, to make voluntary grants. The king's fteward ex officio may make voluntary grants, much more may the fteward of a com- mon perfon, if he do not diminifti the ancient rent. The cafe of Shaw ver. Tloomfo7i, as it is reported by lord Coke^ is an authority Cro. El. 699. that debt lies not in the king's courts for J|o°.?o_' damages above 40 s. but the remedy was Cro. El. 426, in chancery, or in the court of the ma- 4 Co. 31. nor ; as it is reported, it is adjudged, that debt doth lie in the king's courts, becaufe the court-baron doth not hold plea of Stra. 786. things above 40 i, As it is reported by Cro. the 22 2 iDt cttSomatp anti the queftion was, Whether the damages were well aflefTcd to 50/. when the court- baron cannot hold plea of above 40 J. and it was held they were. 4 Co. 31. Under-wood may be granted by copy, or any other thing, parcel of the manor, as a fair appendant to the manor. Cuftom for one copyholder to hav^ common, &c. in his lord's foil, is good ; for all the other copyholders may have forfeited their eftates or intereft therein. 4 Co. 31. If copyholds come into the lord's hands, if he make a leaf^ of them for life or years, by deed or without deed, the co- Carthew 428. pyhold is deftroyed 5 becaufe during thofe eftates it was not demifed, or demifeable 3 Leo. 108. by copy. So if he make a feoffment in fee upon condition, and enter for the condition broken, yet it is not grantable by copy J but if he keep them in his hands never fo long, or grant them at will, they may regrant them again by copy; fo if the interruption be tortious, as if the lord be difleifed, and the difteifor dies feifed, and after the lord's eftate is recontinued, the lord may grant by copy ; fo it feems if the diffeifor had made a feoffment in fee. But if they be extended in the lord's hands, or his wife be endowed, though the interruptions be by a6t in law, yet they (hall never be granted again. If copp^oiD tmmtS; 223 If the copyholder accept a leafe foraCo. 17. a. years from the lord, the copyhold is for ever gone ; * and by the fame reafon a releafe upon that leafe will pafs the free- hold and inheritance to him: But if a Cro.Car.521. leafe be made of the manor, and of a C9* * Qo.izb h. pyhold tenement by exprefs name, yet Hob. 21,5. this will not extingiiiOi the copyhold. l^*- If the copyholder takes a leafe for years of the manor, his copyhold hath no . continuance, but he may grant it by copy to another : If after the copyhold comes to the lord's hands, he aliens the manor by fine, &c. the alienee may regrant it. The lord fhall not have the cuftody of lunatick perfons lands, unlefs there be a cuflom for it; neither (hall the king have it, for the prejudice that would enfue to Ut fupn. the lord. In cafe of a widow's eftatd, it is faid ^^"°"^bf to be refolved and agreed in Lex Cuji, 156. 592. ' that no fine is due. ^are of this ; for Noy 29- though the eftate be adjudged ia the wo- * If copyhold lands be in the hands of a fubjefl^, who is after preferred to dignity royal, the copy- hold is extinft ; for it is below the majefty of a king to perform fervile fervices. And yet after his de- ceafe, the next who hath right Ihall be admitted, and the tenure ihall be revived in him, 2 Sider/in 82. man. 224 €)f mftomatp anD man, yet that is no argument fhe fliall pay no fine, for the eftate is in the heir by defcent, and yet he (hall pay a fine, and both are compellable to be admitted ; and then why fhould they not pay a fine? The like of dower and curtefy. Hob; '190. A copyholder had common in his lord^s Cro. Ja^2 5^. ^^g the lord grants and confirms the Nov 136. copyhold lariid to him and his heirs, cum 2 Rol. Abr. pertinentiis; 2id]uQ2^Qd the common was zBrownl. extindl, being annexed to his cuilomary 210. eftate, by the euftom, which eftate being Mo. 667. determined, the comn:!cn alfo is, and Cro. El. 794. ' . . , , ' -. ' ' 2 Vernon Cannot continue without words to that 250. intent, and cum pertincrJ' will not do; for the common was not appurtenant to the freehold eftate granted by the lordj therefore care ought to be taken in infran- chifing copyhold eftates, to add words to continue common and other profits- ap- Pofl. Carter's py^ji^f^ to the copvholder after the infran- Rep. 6, 7,2?.-^^, . , * 1 Vernon 393. chilement. Cro. Ja. 253. I" ^^^Js cafe is cited the cafe of Ford ver. Ward^ where the lord granted to his copyholder the freehold of his copyhold, by the words of (Grant unto him all the lands, tenements and hereditaments there- to appertaining, and thereto ufed and oc- cupied) ; and it was held he loft his copy- hold; the reafon feems to be, becaufe the common was nothing appertaining, 6?r. to coppIjoID ttnnu&. 225 to the freehold he granted : But as this cafe is reported by Moor ^ no other words ^^o. 667. are put in all commons, &c:. appertaining to the faid melluagej and there another reafon is added, viz. now he claims by the lord who cannot have common in his own ground. Bat this is a reafon only where the common is in the lord's foil ; but the other holds where it is in another's ^ Brownl. foil, which is a much ftronger cafe; for zMd. 168. as it feems in fuch cafe there is no way to continue the common: For by the grant of the freehold it is gone, and the lord can make no new grant of it, but in his foil he may. My lord Coke^ in his treatlfe of Copy- Co. Cop. 162. holds, faith, that if the lord demand his ^°' ^^"'^ rent of the copyholder, and he faith that he wants money, and intreats the lord to Stra. 447. forbear until he be provided 5 that this is a forfeiture. And that if the lord make a continual demand upon the land, and the copyholder is not there, this is a for- feiture J but if he demand once, and no body is there, this is no forfeiture. Now as in other refpedls, fo in this, viz. copy- hold cuftoms are not to be expounded by the ftridt rules in law, which appears from what Coke fays, who owns that if the copyholder be. aot there upon the land, it is no forfeiture j yet in cafe of Q^ a corw- 2 26 £>f cttftomacp atili a condition for re-entry, that had been a forfeiture to entitle the feoffor to an en- try. But the condition annexed to copy- hold eftates, is a condition in law ; for the eftates of copyholders are but an eftate at will, and yet the law makes an inheri- tance of it, and puts it out of the power of the lord to determine their eftates, fo long as they do their fervices. But when they fail doing this, the lav/ no longer proteds their eftates, but fuffers the lord to enter ; but then this refufal to do their fervices muft be wilful, as it feems, which will amount to a determination of the will of the copyholder, and not any other refufal, if he fignifies his defign to pay, and fo to continue his will ; and there- fore the cafe above, where the copy- holder intreated the lord to forbear, i^ not law. To prove which, there is the Moor 623. cafe of Crifp and Fryar, where that was 50^!"" ^^'' ^^^^ "o forfeiture -, but the cafe it felf was upon a demand upon the land for three years rent, no body being there, whether it were a forfeiture or no; and Cro.EI. 505. as the cafe is reported by Croke, one judge was of opinion it was no forfeiture, be- caufe it was only a denial in law j and that the condition in law was not annex- ed to the non-payment, but to the wilful refufal: But two other judges held it to be coppljoia tmnvts: 227 be a forfeiture, and that a denial in law is a forfeiture, as well as a denial in deed ; fed adjtiniatur ; and no more of it is faid in that book. But the cafe is alfo reported in Moor j and there it is faid ^°^' 35°' to be held a forfeiture by the fame two judges; but the reafon given was, becaufe fo long a non-payment amounted to a wilful refufal. My lord Coke fays, that a demand up- on the land is no forfeiture, if the tenant be not there, unlefs it be a continued de- mand: And there is the cafe in Hobart,^?^' y5- 1 • Till ^ r •^'^OOr 023- Where it was adjudged, that a demand for Cro.jac.617. rent or fine muft be of the perfon of the*^°"- copyholder, which proves that a denial"^ 0.27,28. in law will not make a forfeiture. The cafe was, the lord affeffed a fine of twenty nobles upon his copyholder, and appointed him to pay it to his bailiff at his houfe within the manor, three months after; and the fine being not paid at the time appointed, he entered without any demand. The cafe of Williams was this; the ^^^^^ "^* lord demanded the rent of the copy- holder ; he anfwered, he had it not with him then, but that he would pay it as \ foon as he could ; the lord faid, pay it at my houfe at fuch a day, which houfe was within the manor. Adjudged, firft, that f cttftomarp anu the copyholder's words (though a denial in law) was no forfeiture, but his non- payment at the day afTigned was a forfei- ture, becaufe it amounted to a wilful de- nial, for he promifed to pay it, and failed ; but had the place afligned been out of the manor, it had been no forfeiture. This cafe is apparently different from that next preceding ; for here was a demand of the copyholder himfelf ; there was no demand L«-K«P- at all. There is the cafe of CaJI on znd Utberty where a widow had copyhold lands, and divers perfons came for the rent, whom (he put off with delays ; at lad comes a young gentleman and de- mands it ; file anfwercd that fhe did not know him, but if he would dance before her, if (lie liked his dancing, fhe would pay him ; this denial was adjudged no for- feiture, not being wilful. 8 Co/92. If the eftate of the lord ceafe by limi- tation of ufe, and the ufe and eftate of the manor is transferred to another, who demands the rent, and the copyholder denies to pay it ; no forfeiture without notice to him of the change of the ufe and eftate. The like law of a bargain and fale of a manor inrolled, &c. It feems the law is the fame concerning leafe and releafej but if the manor be in poffeffion of the lord himfelf, and not in the copplJDiD tenures. 229 the hands of any ielTee, and he makes a leafe, and then releaks, the lefTee having pofTeflion; queer e^ if the copyholder de- nies paying, if this is not a forfeicure, becaufe the entry of the IcfTee is notice as much as Hvery, ^c. Non-appearance at court after fummons ^°°' 3SO- is a forfeiture of the copyhold ; but with- \ rqI. Rep*, out warning it is no forfeiture, but only 256, 429. negligence J and after fummons it is a for- r°^lj feiture, without an cxprefs refufal, as in cafe of rent : For the confequence is more fatal in this cafe, becaufe without the copyholder's attendance there can be no court. It is held per tot. cur. in Sir y. Eraunche\ * Leo. 104. cafe, that a general warning within* the parifli is fufficient; fo that if the copy- holder doth not come, let him live where he will, it' is a forfeiture, becaufe his te- nant may fend him word: It was there likewife held, that ficknefs, or a great office, may excule the copyholder's atten- dance, and that ferviccs could not be done by attorney, but an attorney may eifoin. But as to the point of general warning, four days notice has been adjudged fuffi- cient time ; and how can a copyholder be fummoncd in that time that lives 200 miles off} therefore it was held in the Q_3 ' c^^« 230 £)f cttftotnatp ana Cro. EI. 353, cafe of Taverner ver. Cromwely that gene^ 505,506. j.^j notice is not fufficieni, but a perfonal lummons : The like in Crifp and Fryars cafe. This opinion feems mod reafon- able. If a copyholder be in debt, and is afraid of being arrefted, or is a bankrupt, Co. Cop. 159. and keeps houfe, thefe are good excufes. Vide 3 Leo. 107. The lord comes to the copyholder, and requires him to do his fervices, and the copyholder anfwers, if they are due, he LatcTii22. will do them, but it fliall be tried at law Style 141. firft^ whether they are due bylaw; this is no forfeiture, being no wilful refufal. If the copyholder fay, if it be a court, 'he will appear at it, if not he will nor, this is no forfeiture; but if there were no controverfies about the court, but that is only ufed as a fhift, then it feems it is a forfeiture. Style 387- If a copyholder refufe to be admitted, ^^V°°'^^ it is a forfeiture. If a copyholder come 1 Leo. lop. not to be admitted where the cuftom of 4 Leo. 30, ji^g manor is that every heir {hall come ^** to court to be admitted ; and if he do not, proclamations fhall be made for him to come in ; and fo in the two next courts, or elfe that the lord (hall feife ; this is a forfeiture, for the cuftom is a good cu- ftom, being only to compel the tenant to come in and be admitted. But if the heir toppljolD tenures!; 231 heir be beyond fea at the time of the, de^ fcent, or within age, ?iq?i compos^ or in prifon. But it leems fuch cuftom would bind a feme covert, being like to th^ cafe of fines at common law ; in which cafe they only were not bound who could pot make claim; but a feme covert ha- ving a hulband, may claim by him, and therefore fbe was bound. But if fuch heir be within England^ at the time of the firfl proclamation pafled, and then i go beyond fea, he (hall forfeit; for he had warning, and ought to have come in, and not have difabled himfelf from ma- king claim. But if he had gone beyond fea, after the defccnt, and bt-fore the firft proclamation, this had been no forfeiture ; for at the time of the court he is to make claim; fed quare. It was faid by ^//- Cro. Jac.ioi, lia?ns^ that becaufe the lord cannot have^^^* any fervices done him in the mean time, that the lord may feife the lands and take the mean profits, and fhall not be anfwer- able for them. Sed quare. If a jury or homage refufe to prefent I>yer2ii.6. the articles, according to their oath, this j.^°^ |j^' is a forfeiture of their copyholds, for the 676. prejudice thereby enfuing. If the copy- holder make a leafe, it is a forfeiture, yet it is no diffcifin to the lord, which is plain from the cafes that fay fuch a leafe 0^4 is 232 0f tiiftomarp ana is good againft every body but the lord j for it could noi be a leafe at all, if it were a diflfeifin. It is a forfeituie, becaufe the copyholder has broke the cuftom of the manor, by bringing in a tenant without any admittance ; but it is no diffwifin in favour of the lord, lif.ce the copyholder hath fuch eftate as may laft much longer than the leafc, and not a bare leafe at will. iBulft. 189. A leafe that will make a copyholder forfeit his eftate, ought to have a certain beginning and end, or elfe it is a void leafe, and can convey aj: moft but art eftate at will, which is no forfeiture. A Jones 249. copyholder for life makes a leafe for a I Rol. Abr. ^^^ ^^^ ^^^^ makes a leafe to the fame 1 Bulft. 215. party for another year, to commence one day after the firft year, and then furren- ders his copyhold to the lord ; it was ad- judged the fecond leafe was a forfeiture ; for it is not warranted by cuftom, and fo being out of the x^nftom, it is, as every other leafe for years, a forfeiture ; for though it be not to commence till after the firft leafe ended, yet the land is char- ged with a double intereft, one tn pra- J'enti^ the other injuturo ; which is againft the cuftom, and fo a forfeiture. Se- condly, It was adjudged this leafe was void againft the lord^ who had the land by copp!)oio tetttttes. 233 by the furrender, and when the lord en- > Rol. Abr. ters by force of the furrender, he is in 5'^' by title -paramount the leafe. But it feems the fiift lelTee (hall enjoy his leafe, or elfe it were in the power of the lord to defeat his own grant. There is nothing faid of this; but the cafe in Rolls is, That the ieafes were executed at one and the fame time; and then the leffee, being /j * ^°'^- Abr. criminis^ may perhaps forfeit ; and as the ^ cafe is reported by the reft, the leafe was made to him to commence in reveifion; and fo he is as much party to the wrong as in the other way; and fo it feems the lord may enter prefently. The fame point Cro.Jac. 308. of a leafe for a year except a day, adjudged a forfeiture. A. makes a leafe of his copyhold to Cro. Jac. jof . one for a year, and then covenants the kffee (hall enjoy it de anno in annum. No forfeiture, only a covenant and not a leafe. ^cere^ and fee the book; for the words Covenant and Grant make a leafe, ^c. But in another cafe it was held that Cr0.Car.io7. tbefe words by conftrudion might make^''°*-^*^'^^* a leafe, where the lands might be letj but otherwife where the lands could not be let; which diftin6tion feems very rea'^- fonable; for the words themfelves do not import a leafe ; and it would be a very jni urious conllruftion to make them a leafe, 2 34 ^f CUftDlUatP ^ttO 3 Keb. 267. leafe, and lb a forfeiture, when they onl^ import of themfelves a covenant. ^."^^j, Cro. El. 499, A leafe for years by parol, to cofti^ ^ R 11 Ab "^^"cc ^^ futuro, is a forfeiture, becaufe 508. * of fhe unlawful contrad made to the Moor 392. lord's diflierifon. Moor 184. : The lord gives licence .to his copyholder to make a leafe for twenty-one years, to begin next Michaelmas ; the copyhqlder makes a leafe accordingly; but before Michaelmas makes another kale by inden- ture to another for twenty-one years to begin at Michaelmas next ; it was held by Anderfon that this was. a forfeitur^.5 fed quare ; for the leafe was void in point of intereft, and only worked by way of eftoppel betwixt the parties ; and if no iiltereft paffed, how could it be a forfei- ture : Yet had the firft leafe been furren- dered, the fecond leafe would have taken cfFed:, and then the land had been char- ged with a leafe without licence ; but till that happened, the land was charged with — ' trO oO liothing in point of intereft. And this . ^ -J •:") not like the cafe of a future leafe; for there the land is bound prefently; and ihough this may happen to be a charge, yet the fuppoHtion is foreign, and ought not to be intended to work a forfeiture. ,^f a man make a deed of feoffment of his copyhold, or a demife for life with- out copvljoiu teutttes. 235 out livery, no forfeiture, becaufe with- out livery nothing pafles ; but by a Icafc for years an intereft pafles by the delivery of the deed, and therefore that is a for- i Inft. jg. a. feiture. . My lord Coke fays, if tenant for life of ^°-.^P' \^3- a copyhold fufFer a recovery by plaint in the lord's court, as a copyholder of in- heritance, this is a forfeiture, but Lex Ciifi. page 206. fays it was other wife ad- judged in the cafe of Bird and Keck. Ideo qucere. If a copyholder ere(ft a new houfe upon the land without licence, it is no forfeiture, becaufe it is for the meliora- tion of the ftate of the land 5 but then it feems this houfe mufl: be fubjed: to all the cuftoms of copyhold land; therefore if he iRolI. Abr. pull it down again, it is a forfeiture. ^°''' Wafte, either voluntary or permiffive, * ^"'^' ^o- is a forfeiture of copyhold lands, unlefs , roIi. Abr.* there be a cuftom to cut trees, &c. It S08. feems if a ftranger doth wafte in the ^^°-^^^' ~^"^'; copyhold lands, it is no forfeiture, be- caufe not the copyholder's ad:. My lord Coke, in numbring permiflive wafte, doth not reckon the wafte done by a ftranger. And further it is refolved in Cliftoii^ cafe, 2 toll's Rep* that if the hufband commit wafc in lands ^'^^* pf his wife's, it is a forfeiture 3 but if a4Co. 37. a. ftranger commit wafte, it is no forfei- ture i and it feejns every forfeiture ough^ to 236 £)f cttftomarp atiD to be the wilful aiTk of the copyholder, fo as it may amount to a determination Lit. Rep. of his will. Turning plowed land to 267,2 8. i^Qp ground or a pifcary is a forfeiture. Cro. El. 5. It is faid to be refolved in my lord Mon- 13 Co. 6 . fague's cafe, that a copyholder by com- Cro.* EI. 498. mon law, cannot take houfe-bote, &c, I Roll. Abr. but mull have a fpecial cuftoin to Vv^ar- ^^ * rant it. There is the cafe of Eaft and Harding, as reported by Croke, that a copyholder cut down timber-trees, and let them lie five years, and after the ac- tion brought employed one of them ; but the jury found he cut down the tiees for the reparation of his houfe ; and even in this cafe two judges were of opinion that it was no forfeiture, being cut down to repair ; and yet in the putting this cafe, there is no cuftom faid to be found for the cutting down timber for reparation. But Moor, in arguing fays, that it was found fo. Here the trees were not em- ployed in five years, and then but one employed^ and that too after the adtion Moor 352. brought. Moor, in reporting this cafe in the former part fays, the copyholder cut — - down two trees, no cuftom being found one way or other, for the cutting to be a forfeiture or difpuni (liable. And then a little further he faith, that the jury found the cuftom for cutting trees for repar copi>l)oiD tctttttes. 237. reparation 5 and then afterwards he fays, that it was refolved, Doing of reparations as it is found, though it be five years after the cutting, and after entry for the for- feiture, and adtion brought, is a difpen- fation for the forfeiture. The opinion of Popham was, that a copyholder may cut timber for reparation, without cu- ilom. It was adjudged between Daw- Cro. El. 292, bridge 2iV\d Cocks ^ that a copyholder may *^"g 5°^- lop off the under boughs without a fpe- cial cuftom, but not the top boughs, be- caufe that would caufe a putrefadion in the timber. It feems reafonable that a copyholder fhould have timber to repair, &c. fed quare. In Swains cafe a cu- 8 Co. 64. ftom was found to take houfe-bote, fire- jy*"^^'- bote, &c. Cuflom that every copyhold cIo! Car! tenant may cut down trees at their will 220. and pleafure is unreafonable and void ; for \^^^^ ^^' then a tenant at will might do it. So it i Roll. Abr. is for a copyholder for life to do it; and 650. 660. one of the reafons given is, that the fuc- ceeding copyholder would not have where- withal to maintain the houfe and the plough, which plainly intimates that a co- pyholder may cut timber to make repa- rations ; and the rather, becaufe permif- five wafte is a forfeiture in him. If there is a copyholder for life, who by cuftom max name his fucceflbr for life, and fo ■ ^= • .4......,; for 238 ^f cttllomarj> atiD for that copyholder to name his fucceflbrj fuch a tenant for life cannot by cuftom cut timber. But if he had been a copy- holder of inheritance, fuch cuftom is good. And my lord Coke fays, that if a copyholder do wafle, it is a forfeiture, unlefs there be a cuftom to the contrary. If there be a cuftom for a copyholder to take timber for reparations, fuel, Gfc. SCo«54. fuch a cuftom is good, though the copy- holder have but a particular eftate, though he cannot do what he will with the tira- iDer. If tlie copyholder take the (hrouds of trees by cuftom, if the lord takes the body, an al)olO tenures; 245 of tenant for life would not prejudice the eftate of him in remainder, unlefs there be an exprefs cuftom for it. So if there be a cuftom, that if upon a furrender Ci^-Pl- 879* made, the cejiuy que iije doth not come to be admitted before three proclamations pafs, that he fliali forfeit his eftate. \i in that manner a furrender be made to the ufe of A. for life, the remainder to B. in fee; and A. fuffers three proclamations to pafs, and B. makes no claim j yet fliall not B. forfeit his remainder, for the cu- ftom fhall be taken flrictly ; but the rea- fon of the refolution of the cafe implies, that had the cuftom been laid to reach re- mainders too, it had been good, and the remainder had been forfeitec in that cafe. Then there is the cafe of Rajlal and Cro. El. 59?. Turner^ where tenant for life of a copy- hold, the reverfion to another in fee, con- trives to fell the copyhold to another in fee, which is to be done in this tnanner : The tenant for life is to commit a forfei- ture, and the lord is to feife, and g^^'ant it in fee by copy to the vendee 5 all ^^ Raym. which is accordingly done; it was adjud- ged, that the intereft of the rcveifioner was no ways prejudiced by the forfeiture. Thtrfe authorities are grounded upon the higheft rcafonsj for elfe he that bath but a particular interefl in copyholds, R 3 will 1000. 246 €)f cuGomav^ anfi will have cs good an intcieft as thcfe that have a fee ; for by fecret covin he may commit a forfeiture, and (0 give av^'ay th,Q fee. Bat notwithftr.nding ihefe authoii^ tits grounded upon fo gocd reafons, there Mo. 49. is a cafe in Mcct\ where a copyhold to two for lives to have Juccejjive^ and the fiift committed a forfeiture, and it waS adjudged that theicby the remainder was. forfeited. Co. Cop 164. It is held by my lord Coh^ that a pre- Cro. El. 499- fentmcnt is neceffdiy to make a forfeiture 3Keb. 641. i" thofe cafes, wlicre the lord cannot be prefumcd to have noiice of himfelf, as if the tenant cqmoiit felony. But it is faid per Cur. alibi, that prefentm.ent is not of necellity, but only for the lord's better inftru^lion, and he may take notice him- felf if he will. And indeed the re'afon given by Coke is of no cogency, that be- caufe the lord cannot by intendment have notice of them himfelf, that therefore he fliall take no advantage of them wiihout prefentment; for if he can take notice of them, why Ihculd he not, fmce prefent- iiient is not that which gives title, but only lets him know what he hath a title to: But however, it is fafe to get fuch things prefented i and if there be a:Cii- 4 Co. 27. ftonS for it, it muft be purfued. Where Cro. £1. 353. the tenure is feverul, ikcre the fulfv^iture ■ ■ r . . . , copvljoin ttmins, 247 of one. part is not a forfeiture of all. It is iaid by my lord Coke, that if th.e tenure 4 Co. 27. a. be one, that a feoffment of part is a for- ^ ^ • +^- feiture of the \\ hole : But it is fiid in Lex Cuflom. that only fo much is forfeited j but if wafte be committed in parr, that the whole by the fame tenure is forfeit ; for that goes to the deftrudion of the houfes, and fo of the whole copyhold eftates. But if there.be no building, queer e ; for it feems unreafonable then, that wafte in part fliould be a forfeiture of the whole J and fc3 it feems in cafe of feoffment of part. Copyholder by licence lets for years, » ^°^^- ^' the leffee makes a feoffment, he only for- ^°^" feits his leafe. It is faid to be refolved in Chancery, that if the father commits a forfeiture, and dies, and the lord admits Tothil 107. his heir, that this is no difpenfation with the forfeiture, becaufe the anceflor died feifed of no eflate, and io none could de- fcend to the heir. This cafe feems to be unreafonable, for it feems that the ance- ftor died feifed of an eftate ; for nothing removes the legal eftate and intereft out of him but the lord's feifure. There is a diftindlion. taken in i^e-^/^, 3 Keb. 341, that where after the death cf the tenant, the lord accepts a heriot-fervice, that is a difpenfation vyith the forfeiture, but not K A. where 248 £)f ciiSomarp ano where he accepts heriot-cuftom: This proves, that after the forfeiture the efltate is in the tenar^t, the the lord could not Vide Cro. Ca. have heuiot. The reafon for the difFe- i^Keb."i- rence feenis to be, becaufe in accepting of heriot-ferv.cs, he admits the heir te- nant j but in acceptir.g heriot-cviftom, he only admits the tenant died ftifed. Sed qucere ; for it feems to me to be a difpen- fation ; for he admits him to be tenant after the forfeiture committed j and there- fore if the lord accept of any fervices after he knows of. the forfeiture, it is a difpenfation ; for why (hould not the ac-r ceptance and acknowledgment of the te- nant to be tenant after a forfeiture, as ^tll diipenfe with a forfeiture, as acknow- ledgment of the heir to be a tenant ? But it was refolved in that cafe, that if the lord hath once entered for the forfeiture, no acceptance afterward fliall conclude him. .||:.eo. 104. If the tenant appear not at court -after perfonal warning, and the lord amerce him, thi^ is a difpenfation with the for- feiture. If a copyholder come to his eftate tortioufly (it feems it muft be by ad- mittance, elfe the releafe will not operate at all) and cqipmits a forfeiture, and then he that hath ridit releafes to him, this (hall hiqdcr the iorci's entry, becaufe now he cDp}>l)olti tenures* 249 he hath, as it were, another eftate, of < Brow, which he hath committed no forfeiture. ^^^' Sed queer e. If the tenant repairs before the lord ^°°5 393. r c r ■ ^ 1 • 1 r ^^'*=^ 227, enters tor lorreiture, this purges the ror- feiture. Cutting trees to repair, and em- ploying them five years after, purged the forfeiture. The fucceeding lord fliall not take ad- 2 Sid. 8. vantage of wafte done in the time of the preceding lord: But yet it was iidjudged, Ld. Raymond that if there be lord, and two coparceners '°°°- copyholders, and one makes a feoffment in fee of her part, and then the lord Pal. 446. makes a leafe of the manor, that though ^^" ^^''* the IcfTee can take no advantage of the forfeiture, that yet the heir of the Icffor may. The reafon of the diverfity feems to be, becaufe wafte is a prejudice to the lord only, for the time being, at leaft ; and is not fo great a prejudice as feoff- ments, (and fo it feems of other forfei- tures, as denial of rent, fuit of court, ^c, and a fortiori for thefe forfeitures, for the denial doth no way prejudice the fucceeding lord) but feoffment devefts the lord of his freehold and inheritance; which being ftanding prejudices to the lord, he ought to have remedies as lafting as the harm that is done him. ^cere, if the leffor 2SO ^f ctiftomatp atiD leffor outlives the leafe, whether he may take advantage of the forfeiture ? 5 Co. 116. Upon.entry for the forfeitures the lord Moor 512. fhall have the emblements; fo if it were '7 ^ '^' leafedj copyholder for life, remainder to another for life, the tenant for life accepts of a bargain and file of the freehold and inheritance of his lands, to him and his 9 Co, 106. heirs, and then of a fine : This does not difplace the remainder, but he has power to take at any time after the death of te- 9 Co. 107. a. nant for life. If the lord grant a rent- charge out of the inheritance of copyhold land, and then grants the freehold and in- heritance to the copyholder for life, he fhall hold the land difcharged during his life ; fo if there be a remainder over, it fliall not commence during the eftate for 4C0. 26, 27. life. A lord may make a grant or admit- ' ^°*^ ■ tance of a copyhold out of the manor, at what place he pleafes ; but the fteward cannot, at a court held off the manor, make any grants or admittances; and in Coke's I I»/i. 58. l)oiti ttnnus. 251 court-baron be held off the manor, it is void ; and he there fpeaks of a court- baron, as including the copyholder's court, where the ftsvvard is judge: But as hath been faid bcjfore, a lord may make admit- » Inft. 6i. b. tances or grants out of the manor, at Vv^hat phcj he pleafes, which are Cokes words, and muft be underfiood not at a court, but at foine o[her time, or elfe he contradi(!^s himklf It is held, that if the inheritance of copyholds be granted to one, he may hold courts where he will } for it is no longer a ccurr-baron ; and that the lord or his fteward may grant copies out of court, as well as in court: And as the cafe is reported by Croke, the ^'''*- El. 103 j grant was at a court held at another ma- nor. But as Coke reports it, though the grant be at another place, yet it is not laid to be done at a court ; io qui;ere^ Whether a ftewaid may make grants by copy out of court; but if a fl^^vvard can, Co.Cop. irS. an under flevvard cannot.- It feems a Reward (if fpecially impow- ^ Cro. 526. er'd) may take a fu.rrender out oi court, coTt '*^^* A copyholder may furrender to the lord j Cro. 273. by attorney in court, becaufe he may doJ,^^°-^^- / . ■ • J r 1 Co. Cop. 92. that commum jure., and 10 the common ^ co. 75. law gives him power to do it by attor- » Leo. 36. ney, as an incident to his eftate ; So a fur-*^°?^ J 111 r . ; ' ^"''- 59- 3. render to the lord out 01 court 15 de com- Ld. Raym. «»?«^/ 76,656,658. 25 2 £)f cttftomatif> auD muni jure y and therefore maybe by attor- ney. But if the furrender be by the hands of two cuftomary tenants, there it cannot be done by attorney without a fpecial cu- ftom. Admittance by the lord in court, and out of court, feems to be de communi jure^ and therefore it feems may be done by attorney. It is faid to be refolved, that a copyholder cannot furrender by attorney without deed, Pradf.Reg, 136. but that he may be admitted by attorney without deed, ^cere of this. s Leo. 36. If the copyholder be in prifon, and that he cannot come, the lord may appoint a fpecial attorney to go to him and take his furrender. 3 Bulft. 80. Any words fpoke by a copyholder in Hutton 8i. court, (hewing his intention to furrender into the lord's hands, amounts to a good furrender ; as if he come in court and fay, that he is weary of his copyhold, and defires his lord to take it, this is a furrender ; but to fay he renounces his copyhold, this is no furrender, becaufe he I Rol. Abr, limits it to no body. • So if he fay he is ^°^'^' content to furrender, it is no furrender j for that only exprelTes his inclination to do it, not that he actually doth it. ^are^ Whether words fpoke out of court will amount to a furrender. - ^ Sir Sir H. P. lord of a manor, whereof 1 Leo. 19^, C, was a copyholder in fee, and the lord pretended that his copyholder had forfeit- ed, and thereupon entered into communi- cation with him about it ; and it was agreed between them, that C. Ihould pay 5/. to the lord, and fliould enjoy the iaid cuftomary land (except a wood) for his life J and that C. (hould have eledion, whether he would have thofe lands afTu- red to him by copy, or by bill; and he chofe by bill, which was accordingly done ; adjudged this was a good furrender for life only, and that the lord had the wood difcharged of the cuftomary intereft. Now the communication in this cafe fecms to have been that which caufed the fur- render, for nothing elfe could ; and for ought appears, this communication was out of court. The acceptance by bill could not be the furrender in this cafe, for the bill was never made of that ; (6 that it could only be the communication that amounted to a furrender. Copyholder in fee comes into court, 3 Sulft. 80, and there accepts a copy to himfelf for hfe, remainder to his wife for life, re- mainder to his fon for life ; this is tanta- mount to a furrender to the ufe of him- felf, ^c. but he hath his old reverfion in hifh i for there is no ground to make a • furrender 254 €)f ctt(fomari> ano furrender of ihit by conftrucftioii, be- caufc he has made no difpofition of it. 1 Rol. Abr. 3jt as this cafe is ia RoUs^ it is faiJ, that ' '* it was no far render ; for that a copyhold cannot be furrendered by a furrender in law, but only by aflual furrender j yet 1 Rol. Rep. as it is in other places in Rolls ^ it is as in ^RI Ab Bi^lftf'ode, held to be a furrender, but :i7-i, "17.^.. ' that the reveifion was ftil.l in the copy- holder. A. covenants with J5. to aiTure him all his copyhold lands, and after he Surren- ders divers parcels by name, and fome by buttals and boundlngs ; at the next court the furrender is prefented and inrolled, ^ but vi^ith this .addition, by the name of Dyer 251. b. all his copyhold lands j there no more fhall pafs than what was named in the furrender. Kttch. 81. b. If a furrender be made to the lord ex- Cq. Cop. 95. preiTing no ufe, it fliall be to the ufe of \ the lord ; for it cannot be imagined that the furrender was made to no end or pur- pofe ; and a furrender may be made to the lord, and no ufe need be exprefTed, If a furrender be made to the ufe of an- other, without expreffing what eftate he fliall have ; a cuftom that the lord may grant it in h& to him to whofe ufe the Cro. El. 392. furrender is made, is a good cuftom, for he. i« a chancellor in I/is own courts and copvDolo tetttttcs. 255 (0 when the thing is left uncertain, it is no way unreafonable for the lord to de- termine what (liall pafs. If a man bar- gains and fells copyholds lands, it feems nothing pafTes but a ufe ; for copyholds are out of the ftatute of ufes, and there- fore fuch a bargainor may afterwards fur- render it to the ufe of the bargainee ; and no eftate pafling, it feems to me to be no forfeiture. Copyholder in fee furrenders to the^°P^-'^5» lord without declaring the ufe; at the.Cr0.j3. 434..' next court, it was regranted to him and his wife in tail, remainder to his right heirs. Now this fubfequent admittance explains to what ufe the furrender was made. A copyholder in fee furrenders to one4Co. 29. b; for life, the lord admits him in fee, yet the furienderor has a reverfion in him ; for the lord is but an inflrument, and cannot devefl the eftate of him that fur- renders. But if there be a copyholder Cro. Car. 205. for life, and he furrenders to the ufe of another for life, who is accordingly ad- mitted, and then dies, yet the furrenderor fhall not be admitted again ; for by the furrender he pafled away all bis eftate, and had no intereft left in him. If the furrenderor had died, it fe^ms that the eftate of tenant for life was not- ended, for 256 £)f cuftomarp atin for then the lord would have two deaths to depend upon, either of which would bring him to the eftate, and yet but one perfon that had an interefl. Mo. 8. n. 7. Cuflom that kifee for life may let for another's life, is void. It feems if there be a vifible inconvenience, that one copy- holder for life fhould change the lives by furrendering into the lord's hands to the I Rol. Abr. ufe of another for life, that the lord will 5®^* not be compelled to make admittances thereupon. Dyer 264. a. Feme tenant for life of a copyhold, took hufband, and the reverlion of the fame was granted to three for lives, and then the baron furrendered to the ufe of the firft reverfioner for term of his life, and fo he was admitted tenant, and diedj and then the fecond died ; and the third prayed to be admitted; and his copy was cum acciderit poft mort. furfu??ired. vel forisfac. of the woman ; and it was the opinion of the juftices, that he ought not to be admitted ; but the lord may re- tain it in his hands as an occupant. The reafon is, becaufe the interefl: of the feme was concerned, who had not furrendered : But there was this further in the cafe, that baron and feme would have relea- fed their right to the reverfioner, but the lord would not hold a court for it : Bat coppfjoID ttnuns. 257 But it was decreed in chancery that he fliould either hold a court cr quit the pofTeffion. It is relolved in my lord Coke's reports, that when a copyholder furren- ders to the ufe of another, and the lord admits him, that he is in by the Per by him that makes the furrender. This be- 4 Co. 27. b. ing fpoke fo generally, cannot by any fair ^9- b. conftrudion but extend to all furrenders, either by tenant for hfe or in fee. But in the cafe of King and Lord it is adjud- ged, that if a copyholder for life furren- der to the ufe of another for life, who is accordingly admitted, that he is in from the lord, and not from the furrenderor. Popham 39. ^are well of this matter ; for the tenant for life hath not fuch an Cro.Car.204^ eftate as to be allowed to grant for life to another ; but when a copyholder in fee Surrenders to the ufe of another for life, he is in qiiafi by the copyholder. This is againft my lord Coke^ and as it feems againft reafon, for the lord is but an in- ftrument to convey j therefore he is com- pellable to grant according to the furren- der; and no charge by him while it is in Oo. El. 36i» his hands, {hall be of any force j and he 442*5^2. that furrendered fhall pay the fervices ; and the words o^ Coke are general, that he (hall be in by the copyholder, in ad- S mittances 258 £)f cttftomarp anu Co. Cop. 108, pittances upon furrender : Yet Co^^ fays *°^* in another place, that by furrender tp the lord out of court, the eftate palTeth to the lord under a fecret condition, that it 1 Inft. 62. a. be prefented at next court. But it hath Cro°fa' 40? ^^^^ adjudged fince, that by furrender to O0.Car.t83. the lord by the hands of two tenants, Co.Cop. 103. nothing paffed, but the intereft remained in him that made the furrender 5 and there can be no difference where the lord takes himfelf by the hands of two tenants; and if it be in the lord, how can the copyholder pay the fervices, or take the Ld. Raym. profits after furrender, or make another ^^' furrender. 4 Co. 29. b. j\s well eftates as defcents of copy- holds are to be guided according to the rules of common law, as a neceffary con- fequence upon the cuftomary eftates. So that if a furrender be made to the ufe of one, he has but an eftate for life, unlefs there be a cuftom to the contrary ; for by Yelv. 16. cuftom a ufe limited to one & aj/tgnatis Jut's is good to pafs a fee. A furrender to one ^ tri^us ajjignatis fuis^ adjudged but an eftate for life j but in fome cafes ieftates in copyhold lands are not guided accord- ing to the rules of common law. As where a copyholder in fee furrenders to the lord, who regrants it in this manner ; Memo- copj>I)oio tctttttes. 259 Metnorandum^ ^od ]. W. cepit de domino ^'■°- J*- 434* • J • • J n', r • One named ceux terreSy an dominus tnde conce[lit Jet- ^^^^^ ^j^g Yiz. fmam habcnd. eidem J. & Eliz. uxori ejus bend, may i^ hcered, eorum in tailj adjudged that J^^^^^ ^°Py' EaUz. took by force of this copy, though poph. \z{. (he was not named before the habendum. 2R0II. Abr. But it was fald, that there was no more ^* grant to the baron than to the feme ; and yet there are the words cepit de domino cut dominiu concejjit feifmmn^ which feems to amount to a grant. But lince the judges thought that the baron did not take be- fore the habend. no more than the wife; this cafe doth not fully prove, that a per- fon may take that is named after the ha^ bend, when there is another only named in the premiiTesj for when both are named in the habend, only, the admittance would be to no purpofe, if both conld not takej and perhaps at common law, if there be ^ ^"^- 7- a- no body named in the premifTes, habend. to two, they fhall both take, elfe the deed could have no efFedl; but an admit- tance to one habend. to him and another, Co. Cop. 97. may be good ; fed qucere. An eftate-tail in copyholds cannot be Cro. Car. created by implication, any more than in \ Brownl. freeholds ; and if in furrenders there be at 127. firft good limitations of ufes, and *hen^°y^52-^ afterwards comes a vitiating claufe, fuch ^^, claufe (hall be rejected. S 2 If 2 6o £>f cttftomatp atio Cro.Car.367. If a furrender be to the ufe of J. S, Cro. EI. 255. jj^fj^fj^^ ^fjgc t};jg death of the furrenderor for life, this is a void furrender, being but one entire Hmitatbn ; but if the fur- render were to him generally, habetid. after the death of J. R. ^cere. If the Cro. Ja. 376. hahend, be void or not. But certain it is, ?s°an?'i7i. ^^^^ ^^ ^^^ furrender be habend. after the 1 Roll. Rep. death of the furrenderor, ad opus ^ ufum j!|5- of his child then in 'i^entre fa mere, fuch furrender is meerly void ; for a copyholder cannot furrender hahend. after his death, and fo referve to himfelf a particular eftate, no more than a freeholder can convey fo. There was a claufe in a furrender : And if it happen that the child die before his full age, or day of marriage, then I do furrender the faid lands to the ufe of my coufin y. «S. his heirs and affigns: This furrender was held to be void to y, S. becaufe the contingency did not happen in the life of the furrenderor ; and a man cannot furrender to take effed after his death ; it was not refolved abfolutely that a fee may be limited upon a fee. Fide the book cited in the margent, to explain I Rol. Rep. thefe matters. This cafe, as reported by 109, 138, fiQi/s (as it is faid in Lex Cuft. 120.) is an authority that fuch future ufe is good. This is the fame cafe as is reported by ' Croke, but diredly contrary, and as it feems coppKjoID tenttxts. 261 feems not grounded upon (o good reafon as the refolution in Croke ; for, as before has been (hewn, furrenders are not con- ftrued fo favourably as wills (though Coke ^°- ^°^- 97- fays they fliould be taken according to the intent of the furrenderor) ; neither is there the fame reafon j for a man may as well order a furrender in his life-time, according to the rules of law, as he may any deed to pafs away a freehold eftate ; fo that the intention of the party hath not fo ftrong an operation in a furrender, as in a will ; and therefore that reafon will not fupport a fee upon a fee in that cafe, as it doth in a will. And then it is not at all like a ufe or truft, in which a fee may be limited upon a fee, becaufe there the legal eftate was not by any limitation extended further than one entire fee-fim- ple, which would be to extend an eftate further than its original creation warran- ted. But a ufe, after a ufe in fee, was but only to give an equitable right to fomebody to have the profits, as long as the eftate in fee lafted ; which is highly reafonable, that a man that hath a legal eftate ftiould difpofe of the profits of that eftate as long as it fhould laft j for fo long had he a right to the profits himfelf, which right he may transfer to others, and there is no harm done to any body ; S 3 but 262 £)f cttftomarp atiD but to extend the legal cftate, would be to keep the* lord of the efcheat eternally OJt J and it is only allowed in a will, be- caufe of the want of counfel to advife with how to do it. But a ufe in a fur- render is not like this ufe j for he that hath a ufe by a furrender is to be admitted to the legal eftate, and is not feifed to ufe J and therefore if a fee might be limi- ted upon a fee, in fuch cafes the legai eftate would be extended further than its original creation warranted, and a great eflate be made out of a little onej fo that it feems that a fee upon a fee in copyholds, is not good. Cro. El. 361. A furrender was to the ufe of one in fee, upon condition that he pay 100/. to a ftranger ; and if he failed, it (hould be to the ufe of the flranger in fee j it was moved, whether this were a good limi^ tation, to add fee upon fee. The court directed the matter to be found fpecially ; and it doth not appear what became of it afterwards ; but B. conceived the li- mitation to be good enough, and com- pared it to a ufe upon a feoffment ; biit for the reafons before, it feems it cannot be compared to the cafe of a feoffment to ufes. Cfojac.374. A copy was granted to the father and his fon, he having but one fon j this is goo4 coppDolu tenures. 263 good for the apparent certainty. But if he had many fons, void. Yet Coke fays, that if a man furrenders to the ufe of his fon W. and he has more, fons of that name, this incertainty may be helped by averment. But if a man furrenders to ^<^- ^<>P* 95- the ufe of his friend or coufin, this \% void, and not to be helped by averment, for the uncertainty. So if the furrender be to the ufe of J. S. or J. N. Coke in his Copyholder faith, that a man may fur- render copyholds immediately to the ufe of an infant in ventre fe mere j for that a furrender is a thing executory, and no- thing vefts before admittance 5 and there- fore if there be a perfon to take at the time of the admittance, it is fufficient ; Mo. 637. which feems to be reafonable, and to car- ^ ^^jj ^^^ ry no inconvenicncy with it ; for it is not 109, 138, hke a grant at common law j for there if *°3' there be no body to take, the grant is void, becaufe the eftate muft be fome- where, and the grant puts it out of the grantor. But in cafe of a furrender, there is no inconvenience at allj for the fur- renderee hath nothing till admittance, but the eftate is in the furrenderor. But then it feems, that if the furrenderee be not in efje before the admittance, that the fur- render will be void j for this feems to be implied by lord Coke \ for he fays, S 4 that 264 £>f ciiftomarr ano that if at the time of the admittance the grantee be i)i rerum natiira^ that will krve; which impHts that the admittance is to be mqide after the ufual manner : Not that the admittance-time fhall be put off till there be fuch a perfon ; for then- it would have been to no purpofe to have faid, that if there be fuch a per- fon to take at the time of the admittance, ^c. for there is no qucftion but that it will ferve, if the admittance muft be fl^- ved off till there be fuch a perfon ; and no queftion but that the grantee will be in reriim natura^ if the admittance be to be ' put off; and fo he need not have made a queftion, If he be, ^c. And if he never come in ejje, then the admittance-time will be eternally put off, the old furrender ftand good, and no body be able to dif- pofe of the copyhold eftate. Cro.Jac. 376. In the cafe in Croke^ no queftion was ^ ?°!1* l^^' rnade but that the furrender to one in 'uen- 1 Roll. Rep. ^ . . ^ . . 109, 131. tre ja mere, was good ; yet it leems it is 2 Roll. Abr. not fully fettled, whether a devife to an ^Bdft' ■ infant in 'Dentre fa ?nerey be good or no. zyS' I<^^o qiiare. However, in the laft cafe, there is no body to do the fervices till the birth, and in the former the eftate conti- nues in the furrenderor, &c. Co. Cop. 97. A copyholder furrenders to the ufe of I Leo. joi. ^]^g j-jgi^^ j^gjj-g q£ j^ ^^ j^g being alive, void 5 coprljoiu tmmts, 265 void; for it cannot take effe<5t inprcefentiy as he would have it. If a man lurrender to the ufe of his own right heirs, qucerCy Whether the lord {hall not hold it till his death. A copyholder by licence lets for fixty Lit- Rep: years, to commence at a time to come j*''*' but before that time the lefTee enters, and then the copyholder furrenders his reverlion, it feems the fur render is void, becaufe the entry before the time was a difTeifin. Copyholder for life, remainder to an- 1 Sid. 360. other in fee, the remainder-man furren- ders to the ufe of tenant for life, the remainder to another, though the eftate limited to tenant for life be void, yet the remainder over is good, and vefts pre- fently. It is made a doubt whether by Style 25U the deftrudion of the particular eftate, the remainder that is in contingency be deftroyed. As to this point we ought to diftinguifh ; for it feems fome are, and fome are not. As for example; If an eftate be given to a copyholder for life, the remainder to the right heirs of J. S. if the tenant for life die, living y. S, there it feems clear that the remainder is deftroyed ; for it cannot take effevft, as by the limitation it ought. But then if tenant for life in that cafe had committed a for* ^66 jDf cttftomat? mb a forfeiture, or made, a fur render, and then living tenant for life, J. S. had died, it feems to be very clear that his right heir ijiight take J for his eftate in remainder was not to take efFed after the determi- ?llol.Abr. nation of th^ intereft of tenant for life, 794- but after his death, and when that hap- ^' ' ' pened, he was able to take. Lane being married and feifed of a co- pyhold in fee, furrenders it to the ufe of Dixon and the wife of Lane for their lives, and after to the ufe of the heirs of the body of the hufband and wifej the wife and D. are admitted, to them and their heirs j and afterwards D. furren- ders his moiety to the ufe of hulband ^nd wife, and their heirs ; and then they fur- I Roll. Rep. render to the ufe of one Davis in fee ; 238, 3»7» then the wife dies, having iffue, and then aRol.Abr. the hufband dies, and the heir brings 4«5' trefpafs j it was held, that though the hufband and wife were admitted in fee, yet that did not alter the eflate, but they ihall be feifed according to the furrender^; and then when D. furrendered his moiety, this fevered the jointure; and then the great queftion was. What eflate the wo- man had, whether for life, or tail ? for if (he had only an eflate for life, then he that was to take the remainder by force of the limitation, being to be heir of the body copvljoiD tenutes. 267 body of the hulband as well as wife, could not take, becaufe the hulband was alive; and fo the remainder for a moiety was de- Aroyed. But then as the cafe is put in Lex CiiJ}. 122. though it be faid that the hufbiiid was dead alfo j yet nothing was faid as to his moiety. Ideo queer e of this. But then if a moiety were executed in the w^ife, her heir might take a moiety, as heir by her defcent. And it was held that there was no execution, but that the remainder was a contingent remainder, and gone for a moiety by the wife's death.^ This refolution does not at all thwart the diftindion before taken, that the remain- der fliould be deftroyed j for the eftate. Tenant for that it was limited after, being gone, and ^^}^' rernain- 1 • u • • u- if •.. ^ dcr for life, the time being come, in which it was tojjejn remain- commence ; if it could not commence der enters oa then, it never could. But it is not like ^^^"^ "^^°^J^^» the cafe where an eftate for life is forfeited, ders; nothing and the remainder-man cannot then take, paffea; for he but after the death of tenant for life he ;' ^'J,^ f^'^^ may. But let us now examine a little into the reafon of this refolution. And firft, it is very clear that the eftate could not be fo far executed in the woman, as to deftroy the jointure ; for that had been apparently to overthrow the delign of the fettlement. But this does not feem any good ground to conclude that therefore |ieirs 268 £)f cttftomarp ml) heirs in that cafe fhould be a name of purchaie. For if an eftate be limited to two, and the heirs of one, though the jointure be not fevered, and to that intent the fee not executed, yet beirs are there words of limitation, and not of purchafe. Then let us examine a little farther, and fee what could be the ground the judges went on to think that the rule, when the anceftor takes an eftate for life, &c. can have no operation. Indeed the cafe has this particular in it, That the heir, who is to take, is not only to be heir of the anceftor, who hath the tenancy for life, but to another perfon who took no eftate at all ; and fo it feemed the defign of the party to fettle one intire intereft in fuch a one: And there appears no footfteps of his intent, to make him take one moiety by defcent, and another by purchafe. But notwithftanding this, there feems to be a manifeft inconvenience in the refolution j for if it be conftrued a contingent remain- der, then we fuppofe a deed made, and an eftate given ; where, at the very firft it appeared, that for one moiety, the deed and eftate could have no manner of effedt, unlefs the huft>and and wife died both at one nick of time j for if the huf- band died firft, then the perfon who was to take, being to be heir of the wife, and (he copvDoifi teimreSv 269 (lie being alive, &c. and fo vice 'uerfa. But if we conftme it to be executed in the wife, fo far as to make it an eftate- tail, though not to deftroy the jointure, there the deed will have an operation ; for one moiety it will be executed in the wife, and when flie dies, the heir of her body by her hufband begotten will inherit to that moiety, as heir to her ; and as for the other moiety; it will be a contingent re- mainder to veft in the heir of the hufband, if he die living the particular tenant. And in this cafe the eftate being made over to him, and by him conveyed to another, nothing but an eftate for life could pafs by that furrender. But then if it were for the life of the furrendcree, and then the hufband died, the contingent remain- der was gone. By this conftrudion tha intent of the parties and the rule of law is fatisfied. And according to this con-3.Leo.4. ilrudtion was a cafe adjudged, where a furrender was made to the ufe of the wife for life, remainder to the right heirs of hufband and wife. Here the opinion of the court was. That a moiety was execu- ted in the wife, and that upon her death her heir (liould have a moiety; and that if the hufband had died firft, his heir fhould have had a moiety. This cafe is dired^ly contrary to that next preceding, « and 270 M cttftomatp anS and feems to be grounded upon better rea- fon. But quare well, Whether that cafe be reported as it is faid to be ; for he faithj that Coke held the eftate-tail to be executed in that cafe, but that the reporter concei- ved the contrary} and yet before, in Lex Cujl. 121) 122. he tells us, that Rolls con^ ceived that a contingent remainder was not deftroyed by the deftrudion of the particular eftate. The cafe before proves that the rule, where the anceftor takes an eftate for life, ^c, takes place as well in copyhold as freehold eftates; and indeed what reafon can there be why it (hould not J for if it be reafonable in freehold lands, why not in copyholds ; for the rule takes not its rife from the nature of the land ; and it is regularly true, that eftates and defcents m copyhold lands are to be guided according to the rules of common law. Style 249, -^. feifed of a copyhold in fee furren- 27 «• ders it to the ufe of his laft will, by 2- ° * ' which he devifes it to B. for life, and I Inft. 8. b. after his death to the heir of his body be- gotten, for ever ; it is faid to be adjudged {Lex Cuft. 124.) that B. had a fee execu- ted in him; but it feems that muft be meant of a fee-tail, becaufe the heirs are reftrained to the body of B. This cafe does not at all contradict Coke^ who fays, - that that if an eftate be given to a man and his heir, he hath but an eftate for life, for that is meant by feoffment, &c. for he himfelf fays, in the next folio, that if > Inft'9' a man devife land to a man in perpetuum^ it is a fee. And here the devife v\ras to a man and one heir in perpetuum^ which fure will create a fee, as well as where the word heir is left out; but becaufe it is ad- ded heir of his body^ it feems the defign was to give a lafting fee-tail. Neither is it like Archers cafe, where the devife wa& to one for life, and after to his heir male, and to the heirs male of the body of fuch heir male ; for there there wanted the words for ever, to give a fee-tail to the firft tenant for life ; and befides, there the inheritance is by exprefs words given to the iffue. Hulband feifed of lands in fee makes ^y^^ 99' a feoffment to the ufe of his wife for life, and after her deceafe, to the ufe of the right heirs of the bodies of him and his wife engendered; they have ifTue, and the wife dies ; and the quare in the book is. Whether the ilTue may enter in the life of his father, or after his deceafe. And then the book goes farther and fays, fi? co?ne femble nemy^ becaufe he cannot be right heir of the body of his father, li- ving his father. This cafe, as far as it is an 272 ^f cttftomarp atiD an authority, coming in only by a come femble of the reporter, is againft the opi- nion in the preceding page, and feems to be unreafonable ; for unlefs the limi- tation to the heirs be executed for a moiety in the feme, it is impofTible it fhould be of any efFed; for if the huf- band dies firft, the reverfion will defcend to the heir, which will be preferred be- fore the contingent remainder, that is to take efFedt upon the death both of him and his wife ; and if the wife dies firft, and then the hufband, the contingent re- mainder is destroyed, becaufe it could not take effedt upon the death of the tenant for life. iLeo. loi. When a copyholder furrenders to the ufe of himfelf for life, and then a limi- tation is made to his right heirs, thefe are words of limitation, and not of pur- chafe ; but when a ftranger takes an eftate for hfe, and after a limitation is to the right heirs of the furrenderor, there, ac- cording to Coke, heirs are words of pur- chafe, and not of limitation j and the rea- fon he gives is, becaufe the eftate is out of furrenderor ; which it feems from what has been faid before, it is not. But yet when the furrenderee is admitted, he is in by relation from the furrenderor. Idea, qucere. According to Coke, if a copy- holder coppDoia tenures. 273 holder furrender to the ufe of his own right heirs, the lord fhall hold the land during the life of the furrenderor. ^are of this. A copyhold, demifable for three lives, -^^o- N. 922. was demifed to one for life, the remainder to another for life, and then to the firft fon of the woman he (liould marry 5 thefe two remainders not being warranted by the cuftom, are void j for that warrants only one eftate with feveral limitations, but the firft eftate for life being warranted by the cuftom, is a good eftate. A man feifed of copyhold lands, de- vifed a certain parcel of them to his wife for life, the remainder to his brother and his heirs, and afterwards, in prefence of three perfons of the court, faid to them, 1 have made my will as I will have it, and here I furrender all my copyhold lands a Leo. i8. into your hands accordingly j not all his copyhold lands are furrendered, but only thofe mentioned in his will ; for he had refpedt to that, in making his furrender j and he faid he furrendered all his copy- hold lands accordingly; which ftiewed his intent was only to pafs thofe lands that were devifed by his will. Here was no queftion about the validity of the furren- der, which was only by parol, and into the hands of three tenants of the court ; T but 27+ £)f cttftomar? ano but it is not faid in court j and indeed the cafe cannot well be fuppofed to be in court J for then the furrender bad been 2 Bulft. 274. jQ tjjg Jqj.(] q,. fteward, and there can be no reafon why a furrender in court by words fhould be of more validity than a furrender by words out of court. Cro.Jac.19g. If a copyholder furrenders to the ufe of his laft will, and therein nominates and appoints that fuch a one fhall have the land for life, and after his death gives authority to fell the lands j in fuch cafe they may be fold without any new fur- render ; and the vendee (hall come in by the will, to which purpofe the firft fur- render is fufficient. Lit. R«p. zj. Copyholder in fee furrenders to the ufe of his laft will, which he faid he would leave with his partner Mojs ; Mofs dies ; he recites the furrender, and makes his will; it feems the devifee (hall have the lands; for thefc words, That he would leave in the hands of his partner Mofs^ are only words of demonftration, and no way operative or reftridive of the opera- tion of the furrender or devife. And it is a rule in law, when an adt is to be done, with reference to another thing, which is impofiible, illegal or variant, the adt fhall ftand, and the reference be void. coppljolii tmnns, 275 A copyholder in fee devifes it to his ^'°- ^^' ^^' wife for life, and that (lie fhould fell the reverlion for the payment of his debts ; and afterwards he furrendere'd the lands to the ufe of his wife for life, according to the will and deed. Adjudged (he might fell the lands, becaufe in his furrender he referred to his will, and afterwards fhe furrendered upon condition to pay 12/. this was held to be a good fale, according to the will. Two iointenants, one furrenders his ^^-.^•J^*^'*°°- moiety to the ufe or his lalt will, and dies before the furrender is prefented, but after he made his will, this is a feverance of the jointure ; for being prefented, it relates to the time of the firft furrender. A copyholder furrenders to the ufe of another, who, before admittance, furren- ^^'^- M4» ders to another, who is admitted ; no in- ^^^' tereft is hereby vefted in him ; for the firft furrenderee had nothing in him to give over ; and the admittance of the fecond furrenderee, amounted not to an admit- tance of the firft} but an heir may fur- * ^°" '^^'• render to the ufe of another, before ad- mittance ; for he has the legal eftate and intereft in him. A copyholder may fur- render to the ufe of another upon condi- 3 Bulft. 230. tion, that if the furrenderor pay fuch a ^°"^- fam of money, at fuch a day, the fur- T 2 render 276 £>f cttftomar? anu O0.Jac.36. render to be void. After the admittance I Roll. Abr. Q^ ^y^j^ furrenderee, if the furrenderor pay the money, he may re-enter, and (hall have the land without any new ad- mittance, or any nev/ fine j for he is in of his old eftate. So he may furrender, referving rent j and that if the rent be not paid, he may re-enter ; and there no fine or admittance is to be had. But in cafe where the day of payment of money by the furrenderor is paft i fo that he hath only an equity of redemption, there it feems he muft pay a fine, and be re- admitted. Cro. El. 361. A furrender was upon condition to pay 100/. to a ftranger, he tenders the mo- ney, and the ftranger refufesj the quefti- on was, Whether the condition be faved ? and it was the opinion of one juftice, that the condition Vv^as faved ; the other juftices directed it to be found fpecially. This cafe feems now to be beyond all doubt, that the condition is faved ; for it was the defign of the parties that the fur- rlnft. 209.3. renderee fhould retain the land; therefore if a feoffment be made in fee on condi- tion, that the feoffee fhall grant a rent- charge to a ftranger, if the feoffee tender the grant, and he refufe, the condition is faved. coppfjolo ttnnvts. 277 A copyholder furrenders to the ufe of y.S. paying his executor loo/. this is a prefent (brrender ; for otherwife it can be of no effed. A copyholder in fee fur- * ^^^^ VS- renders to the ufe of his fon in fee, up- on condition he keep the covenants in fuch an indenture, and pay lo/. The fon furrenders to the ufe of another in fee, but neither keeps the covenants nor pays the 10/. the father enters, and dies feifed, the fon enters as heir to him, and the fur^ renderee of the fon enters upon him ; but his entry was adjudged unlawful; for by Cro. EI. 239. the father's entry for the condition bro- ken, the whole eftates, both of bis fon and his furrenderee, were defeated. An infant furrenders copyhold lands, he may at full age difagree and enter j for in cafe where an infant makes a feoff- ment in fee, he may enter, much more in cafe of a furrender 5 for a feoffment is j Leo. 95. a conveyance, which will work a difcon- .p°P '^^l' tinuance, but a furrender will not. A Cro. El. feme covePt may furrender, being folely examined by the fleward: And if there be a cuitom for her to be examined before two tenants out of the manor, it is good. A furrender to the (leward to the ufe of the fteward'is good, to give the {lew- ard an interefl ; for the furren(^er is in truth to the lord, and not to the ftew- T 3 ard, 278 £)f cttftomatp ano ard. A copyholder furrenders to the ufe of A. in tiuft, that he (hall hold the land until he hath levied certain monies, and that afterwards he fliall furrender to the ufe of B, the monies are levied, A. re- fafes to furrender, B, exhibits his bill to . the lord of the manor againft A, who, I Leo. 2. upon hearing the caufe, decrees againft A, that he fhall furrender, A. refufes, the lord may feife and admit B. for he is chancellor in his own court. It feems that the prefentment of a fur- render in court, is only by way of in- ftru6tion, to let the lord know of-the fur- render, and accordingly he may admit; for it is apparent that a prefentment is not of neceffity, becaufe the lord may admit out of court J and any adl of the lord's confenting to the furrender will amount to an admittance, which plainly (hews that a prefentment is only to fhew there was fuch a furrender; for if it were of neceffity, then there could be no admit- tance out of court, nor no ad implying the lord's con fen t would be tantamount to an admittance ; and then if we go to the reafon of the thing, fince the eftate is only to be furrendered to the lord, and by him transferred to the furrenderee, if he accept the furrender, and grant an admittance, which is all that can be done, what cop^DolD tetittres. 279 what need is there of a prefentment, and of what ufe can it be, for the homage to prefent a furiender, in order for the lord's admittance, when the lord may take notice that there was fuch a furren- der, accept it, and admit accordingly. The eftate, as it was derived from the lord, fo it muft be furrendered to him, and the prefentment makes no part either of the furrendei or admittance: In itfclf, it is nothing but a notification that there was fuch a furrender, which if the lord takes notice of, without a prefentment, it fruftrates the end of a prefentment, and the prefentment is no ways of ufe. There- fore it feems, that if a furrender be made, and then a wrong prefentment be made of this furrender, and then admittance is made according to the furrender, that this is good J foi only the prefentment can be void, and then there is an admittance upon a furrender, without any prefent- ment, which, for the reafons before, feern^ to be very good. It is faid in Lex Cuji* 137. that a furrender muft be prefented by the fame perfons that took it. So fays Coke, but that this is not hterally ,true, will appear from what he fays in another place, that if he that took the furrender Co. Cop, 105, K' 'r r 1 J r •.. -^ CrO.Jac.403, die, yet if prefentment be made ot it, it ^ q^^ ^^ ^ is fufficient 5 and it is faid in Lex Cuji, T 4 to 2 8o Of aiftomarp ana to have been held by Wadham Windham^ that if a furrender be made to one tenant, and prefented to have been made to an- other, yet that is nothip.g to vitiate the furrender ; if the furrender be prefented by any body, and admittance thereupon made, it feems to be well enough j for it is known that there was a furrender ; and if the prefentment (hould be void, yet the admittance is good enough without it. Prefentment, by the general cuflom of manors, ought to be made at the next court-day } but by fpecial cuflom at the fecond or third court-day; the reafon of this feems to be to prevent difputes ; Co. Cop. 1C5. for if an old furrender might be trumped 7^ 257* yp g^ gjjy tiQ-ie^ it would defeat any after charges made by him that furrendered, which charges would appear to be good enough, fince he is tenenant, and con- tinues pofTeflion, and the furrender could not be known. But now let but the purchafer (lay a court or two, and thei> he may be fure to know whether there is any incumbrance ; for if the furrender is prefented, then it appears, and he need not meddle ; if it be not prefented, he knows it is void, and fo may proceed. Cro. Car. A furrender is made by a copyholder 273. 283. upon condition, for payment of money, Spurling, and tl^n he makes a fecond furrender, and cDppIjioiii tttmres. 281 and then a third; but between the fecond furrender and the third, he paid the mo- ney ; and the queflion was between the two laft furrenderees, Who fliould have the land, their two furrenders being only prefented, and not the firft ; no court be- ing held till after all the furrenders? And it was adjudg'd for the fecond furrenderee; for till prefentment he had the whole eftate in him; and it is faid in the cafe, that if the furrender had firft been pre- fented, all mean adts had been void ; but becaufe that furrender was not prefented, it was void. It feems this muft be under- ftood if the money had not been paid, or a court had been held before the money was due, and there the furrender had been prefented ; for it feems the prefent- ment of the firft furrender, after the pay- ment of the money, had been void, be- caufe the furrender was void then, and a void furrender cannot be prefented ; and until a furrender be prefented, it cannot bind the intereft of the land ; fed quare. If a copyholder die fcifed, and thesLeo-S'o. lord admits a ftranger, this is no difTeifin to the copyholder, but he is tenant at will. There are two cafes which feem to beydv. 144, 5. direftly againft admittances by implica- tion ; the one is, If a copyholder furren- ders to the ufe of another, and the cejiuy que 282 4Df ctittomatr ano gue life before admittance farrenders to the ufe of another, and ihe lord admits him, that this is no admittance of the i\:iicejluy Cro. Ja. 403. que ufe. The other is, A copyholder fur- renders to the ufe of another, and he enters and pays rent to the lord, that this is no admittance of cefiuy que uje\ and the reafon given is, becaufe the cufl:om (of furrendring into the hands of two cu- flomary tenants, and prefenting it at next court) is ftri(S and ought to be pnrfued. But however there are cafes of admittan- ces by conftrudlion and implication, with- out any exprefs admittance ; and as the J Rol. Abr. laft cafe is reported by RolU^ it is faid that 5°5- * the acceptance of rent out of court from the cefiuy que ufe (the lord knowing of the furrender) is an admittance in law j yet as the cafe is reported by Croke, j^^lg- ment is given for the lefTee of the heir of the furrenderor. If we look to the reafon of the thing, we may conclude, that any 3Bulft. 230, thing that exprelTes the lord's confent to 215, 216. the furrender, fhould amount to an ad- mittance ; for it is his confent only that is requifite after the furrender, to make the furrenderee a tenant ; and what mat- ter is it whether that be done by a dominus concejjit & admijfus eji^ or by any a(St that 1 Rol. Abr. amounts to as much. There is a cafe in 505. Rolls too, where the furrender of a per- 3 ^°" COpp][)OH) tCtttttCS. 283 fon before admittance, and acceptance of the lord of the furrender, was conftrued to be firft an admittance, and then a fur- render ; for the lord, by accepting the furrender, implies he admits him able to make one. And by the fame reafon, that the acceptance of a furrender before ad- mittance amounts to an admittance, the admittance of fuch a furrenderee's furren- deree is a good admittance of the firft fur- renderee. If a fine be accepted of one as 3 B"^- *37* a copyholder, this amounts to an admit- tance. Accepting rent from the hands of the two tenants into whofe hands the fur- render was made, doth not amount to an admittance of cefluy que ufe, becaufe the lord may receive it of them without de- figning thereby any thing to a third per- fon ; but if he takes it from them as from 3 Bulft. 215. cejiuy que iife^ it is an admittance. This is the fame cafe as that reported by Croke-, but Croke reports it, that acceptance of rent of ceftuy que ufe is no admittance ; RoUs^ that it is an admittance (the lord knowing of the furrender). Buljirode re- ports it as paid by the two tenants, into whofe hands, &c. ai.d then fays, it is no admittance ; but if he had (hewn that the lord had accepted the rent as of his copy- holder, then he faith it had been a good admittance. ^ Leflee 284 )©£ citftomari> ana rlnft.59. b. LelTee for life, years, or will, of a Cro.Car.5s6. jjj^j^Qj.^ accepts a furrender, and then bis intereft determines, the next lord fhall be compelled to admit. It feems if a flew- ard have his office exercend. per fe vel fuf-^ iLd. Raym. ficient. depttt. he may exercife by deputy, ^^* though there be no cuftom. Sed quare ; 1 Leo. 288. but if that claufe be not in, it feems he cannot make a deputy, becaufe it is an office of truft : But any adl of fervice may be done by one as fervant to the de- puty, a fortiori to the fteward, as to take furrenders, make grants by copy, and admittances. Poph. 127, 8. The entry of compertiim eji per boma- gium doth not make an admittance, for that only {hews there was a furrender, but implies no aflent to the furrender ; but the entry of dat domino pro fine & fecit domino fidel. ^ admif. that is the ad- mittance. It is faid that in this cafe the furrender was prefented, and the furren-^ deree accepted, and a copy granted him, and he furrendered again ; and this furren- der was prefented, and a copy granted, and he accepted as a copyhold tenant : In this cafe nothing is faid to be refolved, but the court faid that he, to whofe ufe the furrender is made, had not any eftate before admittance ; but they faid nothing to the point, whether he were admitted, or coppIjoiD tctttttes. 285 or not. But it feems that in that cafe there is a very good admittance j for he was accepted as tenant) and I (hould think, it was that made him tenant, and not the entry of it in the roll. If one who hath a tortious eftate takes a furrender, and his eftate end before ad- mittance j queer e^ Whether the right owner (hall not be compelled to admit, lince he is compellable to take fuch furrender. A copyholder furrenders to the ufe of 2 Sid. 37, 61. another and his heirs, the cejiuy que uje dies before admittance, his heir being be- yond fea J one comes and is admitted in the name of the heir, who confents ; this .is a good admittance. But it feems the lord is not compellable to admit by an- other, becaufe the corporal fervice of feal- ty is due to him. If a furrender be to the ufe of J. S. and J. N. is admitted, and y. S. confents, this is a good admit- tance j qucere of it. A copyholder in fee dies, his heir en- » Leo. ico, ters and makes a leafe, the lelTee may maintain ejeBion. Jinnee^ without the ad- mittance of his leflbr, or prefentment that he is heir. But it was held in the fame cafe, that thirty years having incurred between the death of the copyholder and the making the leafe, that being his own default, fhould hinder him of the power of 286 i©f mftomatp atiD of making the leafe, had he not (hewn good matter to have excufed the default. The reafon of this feems to be, becaufe the law cafts the eftate upon him by dc- fcent, and fo enables him to make a leafe, left otherwife there being no court held in a great while, he fhould lofe the profits of the lands J and fo the law cafts the eftate upon him, and helps out the de- feat of an admiffion -, but yet only pro tempore ; and therefore the heir muft be admitted ; for an eftate at will is not in itfelf defcendablej therefore where the heir is guilty of a fupine negligence, the reafon for the law's cafting the eftate upon him ceafes, and it will reckon no eftate in him, and confequently he cannot de- mife. That which excufed the admit- tance for nineteen years, was non-age in the heir ; for it was refolved that the heir during his non-age, was not bound to pray admittance, or tender his fine. And if the death of the anceftor be not pre- fented, nor proclamation made for the heir to come in, &c. he is not prejudiced, 4Leo. 30,31. though he be of full age. A copyholder of inheritance of a ma- nor of the king's is oufted ; no eftate is gained hereby to the wrong-doer, but Co. Cop. Qj^iy a bare pofleflion. My lord Coke fays, peradventure if a copyholder lan- gulftiing toppfjolD tenures!. 287 guifliing in extrewisy furrenders out of court to the ufe of his coulin, or to any other upon confideration of afFe<5tion, blood, or the like, and recnvers his health before prefeutment, this furrender is re- vocable ; but by his faying a furrender out of court, it feems, if it were made in court, that it were not revocable, for then he (hewed a more fettled defign j and by his faying before prelentment, it feems that if it were prefented, it were not re- vocable ; for then the land is bound. By 1 Leo. 100, Wray^ if a copyholder furrender in extre- mis to the ufe of himfelf for life, &c, this furrender fiiall ftand, becaufe of the eftate referved to himfelf. This feems plainly to warrant the aforefaid opinion of Coke. The lord may avow upon the heir for Co. Cop. 1 1 2. rents and fervices before admittance, h\i\. ^^^^^^^ he is not compleat tenant before admit- tance, for he cannot maintain a plaint in nature of an affife before admittance; but it feems he may have aflife of Mortdan- ceftor upon his anceftor's admittance. ^are. Whether a feme be fo feifed to make her hufband tenant by the curtefy before admittance, where the cuftom is for tenancy per curtefy. It feems reafon- Moor 172: able it fhould make the hufband tenant * ^^'^' *^** per curtefy, as well as the poffcflion of the ?88 £)f cuftomarp ano the brother before admittance make the fifter heir j and by the fame reafon the widow (hall have her widow's eftate, tho' her hufband was not admitted. iLdtkaym. ^^ there be a cuftom to furrender oat 76. of court into the hands of two cuftomary tenants, a furrender to the heir of a co- pyholder before admittance is good. If a copyholder of inheritance furrenders this to the ufe of another, and his heirs, and the furrenderee die before admittance ; quare. Whether his heir be in by pur- 2Sid. 37, 61. chafe or defcent. It was the opinion of 627° 807.'' juftice Newdigate^ that he was in by pur- i Mod. 102, chafe ; and according to this is Rolls. But ■62. t^je opinion of Glyn was, he was in in nature of a defcent j and fo are fame other Quaere, & vide opinions that are more late. Therefore 1 Rol. Abr. -^ ^^g j^gij j£ j^^j q£ jj^g nature of bo- C02. . rough Englijh be furrendered to one and his heirs, and he die before admittance, that the youngeft fon (hall be admitted ; 2 Ld. Raym. and this opinion feems to be very reafon- *°^ * ^ • able, for heirs were in the limitation cer- tainly as words of limitation, and not of purchafe ; and certainly there is as much reafon to adjudge the heir in by defcent I Ca 106. here, as there is to adjudge an heir in by defcent where a recovery was had againft the anceftor, but not executed till after his death i becaufe the ufe might have vefted coppijolD tenures^ 289 vefted during the life of the anceftor ; and becaufe the execution hath a letrofped ; and in truth the cafe of a furrender is juft the fame, for admittance might have been in the hfe of the anceftor j and when it was had, it had a retrofpeft. One jointenant copyholder releafes to^j"'^^?- his companion; this is good, becaufe both pygj 251, a. were admitted to the whole. A copy- holder in fee furrenders into the hands of the lord, to ihe intent the lord fhculd grant them de wco to him for life, and then to y. S. his wife, during the nonage of the fon and heir of D. the copyholder, then to the fon in tail ; the copyholder died, and then the lord granted the lands accordingly to the wife, during the non- age of the heir, he being then but five years old ; the wife took another hufband and died ; the hufband by the opinion of two judges was to have the land during the nonage of the heir, without any new admittance ; if fo, then it feems he fhall pay no fine, for a fine is due upon the admittance. By the fame juflices, if there be a copyholder for years, and he dies, his executors fhall have the term with- out any new admittance. But JVeJion to the contrary. But however the opinion feems reafonable, for they continue the U pofTefTion 2 go £)f cttftomarp anu poiieilion of the teftator, and have it only to his ufe. Cro. El. 349. Cejiuy que ufe cannot enter or have trefpafs againft any body without admit- tance, unlefs there be a fpecial cuftom for it. 'There is a cafe in Teh. 16. where it is faid upon motion to the court, it was agreed by the four juftices, that if a copy- holder furrenders to a ftranger, and the lleward will not admit him, and the ftranger enters and occupies the land, and the lord lets to another to try the title, and he brings ejedment, the occu- pier may plead Not guilty, and it fhall be found for him; and then the report of the cafe goes on, and it is faid, queer e rationem j for if it be in refpeft of the poiTeffion, it feems the title of the lord is elder, by reafon he has right and title to the freehold, ^c. and then it is faid, qucsre. Whether the reafon be not becaufe the lord is particeps criminis ; for it fhall be intended that he would not let the fteward admit. Then the report goes on and fays, Nota^ the furrender was but of a copyhold to him, & tribus ajjignatis fuiSy fo that by his death the eftate ill the copyhold determined, &c. This is a very ftrange report, for the quaeres and reafons of the cafe confound it. It feems to coppljoio tenures* 291 to me, that the reafon of the cafe was, becaufe that after the furrender, the eftate continued in the furrenderor, and not in the lord ; and fo the poflefilon of the fur- renderee was illegal againft the furrcn- deror J yet it was good againft every bcdy elfe, and fo againft the loid's leflee ; for when the lord refufes to admit, the way is to compel him in chancery; and no ac- TothiI6j. tion upon the cafe lies againft the i<^rd J^-" ,g/^' for non-admittance. It is faid in Lex z Bulft. 236. Cuft. 158. that an adion lies for the ^"r- ^[°->-^368. renderor ; fed qiicere ; indeed the reafon , And. 192. given was, becaufe the furrenderee hath 1 Sid. 58. no intereft which the furrenderor hath. It feems, if a man enter into his wife's lands, and makes a leafe, and fl:ie dies be- fore admittance, yet the kafe made is good. The ifiue in the cafe between Wheeler and Honor ^ was, Whether the fine to be paid by copyholder was certain or uncertain ; and the verdidt was, that they were certain. In this cafe it was held by two juftices, and denied by no body, that debt lay for the lord for his fine. It feems it lies in any cafe ; for the i Sid <;8. verdict finding that copyholders ovight to pay a fine certain, did not any more en- title the lord to his adion of debt, than he was before: And it feems to me, thatStra 44^. if upon demand he refufes to pav the fine, U 2 ' )i 292 €)f cuftomatj> anu it IS a forfeiture. It is made a qiicere In that cafe, Whether if a copyholder in fee die, and his heir waves the poffefTion, and refufes to be admitted, whether the lord iliall have debt for the fine j and the re- porter thinks he cannot wave the polTef- fion, which to me it feenis he may do in court of record, or in that cafe of copy- hold lands in the lord's court; and if he may do it, then no fine is due. J Inrt, 59. b. Coke fays, treating of fines, that fome be by alteration of the lord, and fome by alteration of the tenant ; but that a cu- ftom to pay a fine at every alteration of the lord is not good ; but a cuftom to pay upon the death of every lord is good. ^cere^ Whether a fine be due of com- mon right upon the alteration of the lord by death ; it fecms it is not, but only where there is a particular cuftom for it ; though my lord Coke'^ words are general, and may be interpreted either way. J Keb. 15. It is faid to be refolved in Keble^ that if the lord referve rent upon a leafe for years of the freehold of the copyhold, the refervation is not good. The mean- ing of this muft be, either that the lord refer ves a rent upon a leafe of the free- hold of the copyhold lands, or elfe that ' he referves the copyhold rents to himfelf, fo that the lefTee fliall not have them ; in both coppf)ol6 ttnnxtS; 293 both which fenfes the cafe fesms unrea- fonablej for in the laft knk I can fee no reafon why he Ihould not referve the rents as rents-feck to himlelf ; and in the other cafe furely the refei vation nuifl: be good, for it feems to be a grant of the re- veiiion for fo many years; for by force of Cm. EI. 4gg= fuch leafe the lefTee will have all the fei- ^ i-^°com. vices of the copyholder, and take advan- tages of forfeitures, in refpedf whereof a rent may be referved. Therefore, where it is adjudged that where a lord made a leafe for years, to commence after the determination of a copyhold eftate for three lives (where the cuftom was for a 2 Sid, 165. woman to have her widow's eftate) that the leafe fhould commence prefently in point of computation, though not in point of intereft ; it feems that mufl be under- ftood of intereft in pofTcfiion, for furely fuch a lefTee fhall have the fei vices, &c. Infant copyholder makes a leafe for 4 Co. 27. 1 1 • r 1. 1 . Cro. EI. 491. years, and at his full age ^tcceprs the rent, j^^y ^2. this makes the leafe good : Such a for- Latch 199. feiture rtiall not bind an infant, no more ^°'- ^^P- than if being tenant for life of freehold g Co. 44. lands, he n->akes a feoffment in kc, but if he accs^pts the rent after full rge, then the forfeiture Qiall bind him, as it feems. It feems the lord may enter tor the for- feiture during the nonage, and need not U 3 ftay 2 94- ^f cuftomarv auD ftay to fee Vv^hetheu the infant will accept the rent or do, for the particular preju- dice done to the lord j and if he (hould flay his acceptance of fervices from the intant, in the mean time it would be a difpenfation for the forfeiture. But then the infant at his full age, by difagrceing to the leafe, mav avoid the forfeiture. Cuftom that upon payment of ten years rent, the lord (hall licenfe to let for nine- zKeb. 344. ty-nine years; and if he will not licenfe, the tenant may let without : Adjudged a good cuftom ; yet the licence feems unne- ccffary here, fince it may be done with- out it. 2R0I. Abr. Lord of a manor grants a copyhold, ^^ ' rendering rent prcefat. domino & fervitia de jure debit a G? cofifueta. This rent (hall go to him, his heirs, and aiTigns j fed qiicere •, for in cafe of freehold lands it is ilnft. 47. a. extindt by the lord's death j otherwife if the refervation were generally made, and not to him. The reafon of the diverfity may perhaps be, becaufe of the claufe ^ fervitia priiis debit a & conjiietd, which feems to intend the coRtinuance of the fervices, during the leafe ; for elfe the grant of the copyhold will not bind the heir ; I nd it feems to be the defign of the grant of the copyhold to be good during the teirp, Ai.d thoDgh lefs fervices are referved cop^ljolti ttnnus, 295 referved than ufually were, that thereby the grant may be avoided ; yet the in- tent and purport of that claufe per jer- "oitia prius debita £s? confueta^ feems to be to continue the rent during the eftate, becaufe rent was a fcrvitium prius debit. & conjuet. though not lb Httle rent ; and if more be referved, then the rent muft be paid alfo, during the whole term, by force of that claufe, becaufe rent ufed to be paid ; and though not fo much, yet that being the only rent referved, and the old fervices being to be continued by force of that claufe, the whole muft be paid, for that feems the intent of the parties, and there is no ground for an ap- portionment. But then if no rent have been ufed to be paid, qiiare of that. But grants of copy and furrenders are not conftrued as deeds are, but have a more equitable conftrudion, and therefore it may be good in fuch cafe. This di- ftindtion is taken in Popham. Poph. 188. A copyholder made a leafe for years by licence, the leffee dies ; this fhall not be accounted affets in the hands of the executor j otherwife if the leafe had been for but a year, becaufe this is an eftate at common law, and the other but a cufto- mary eftate ^ fed qiicere, whether the ex- ecutor be not compellable to pay debts U 4 with 2^6 £>f tttftomatp ano with the profits j for though the eftate be not extendable, yet it is unreafonable he ihould take the profits to his own ufe, while debts go unfatisfied. It feems by this diftindlion, that a leafe for a year of copyhold lands is extendable j and indeed it may as well be in the hands of a credi- tor for a year, without the lord's licence, as in a lefTee's hands. It is true, copy- hold lands are not affets in the hands of the heir, for it is nothing but cuftom that makes an eftate at will defcendable > and therefore unlefs there be cuilom to make them alTets, they partake only of the qua- lities of an eftate at will, which is not to be aflets i and it is fufficient for the heir to plead riens per dij'cent j and therefore the profits of the lands fhall not be aflets in his hands, becaufe not defcendable. But though the term it felf cannot be aflTcts in the hands of the executor, for the reafon aforefaid ; and alfo becaufe it can- not be extended ; yet the profits when re- ceived may be aflets, for then they are chattels, and partake no more of the na- ture of cuft:emary lands j and therefore it feems reafonable they (hould be aflTets in the hands of the executor ; Jed queer e. Cro. Ja. 436. The lord licenfes the copyholder to Po°Vi^o- ^^^ ^°^ ^^^ years, and he lets for three, this is good} fo if the lord licenfe the copyholder coppDolu tenures* 297 copyholder for life, to let for five years, if the copyholder fo long live, and he lets for five years abfolutely, this is a good purfuance of the licence, for the liaiita- tion is implied by law, and fo need not be exprefTed j but otherwife it is, had the limitation been during the life of a ftran- ger, had the copyholder had a fee. A. hath Oo. El. 394. a licence to let for twenty-one years from ^^^^'^i^- Michaehnas laft, and he makes the leafe to begin from Chrijlmas next j this is not warranted by the licence. It was the opinion of my lord Dyer^ that if a leafe be made of freehold and copyhold lands together, rendering rent, that the rent (hail iffue only out of the freehold, be- caufe the leafe of the copyhold lands is void, and becaufe they are of no account in law, and fo may be compared to a leafe of lands and goods ; the rent iffues out of the lands, and not the goods. Bat in the cafe of Collins and Harding^ it was Mo. 554, held that the rent iffued out of both, for po £'• 607. 022. copyhold lands may be diftrained upon. , RqII. Abr. This opinion Icems very reafonablc, for 426. the leafe is good againft everybody but ^ ' the lord, and is not a void leafe ; for if the leafe were only made of the copyhold lands, furely the lelTor has remedy for the jfent } and then the joining freehold lands, with 29« €>f ctiftomatp atio with the copyhold can make no alter- ation. t Leo. 315. A copyholder makes a leafe by licence for years, rendering rent, and then grants the rent over to another by deed s the lefTee attorns ; it was held to be a good grant of a rent-feck, but that the grantee could not have debt, becaufe he was not privy to the contract, neither hath he the rcverfion. Leffee for years of a manor grants licence to fell timber ; it feems this 1 Keb. 26. is good during the years J fo that neither leffee nor lefTor can take advantage of the forfeiture. Not lelTor, for thereby the leffee of the manor would lofe the fer- vices of his tenant ; for he is the lord of whom the copyholder holds, and there- fore he muft take advantages of forfei- tures, if any body can, which in this cafe he cannot do becaufe of his licence ; but then when his intereft is determined, fince there is a prejudice done to the in- heritance of the manor, it feems the leffor may take advantage of the forfeiture, for • the licence determines by the expiration of the years. When a lord grants a li- cence to fell timber, and then grants his intereft over to another, this determines the licence} for the licence is but a dif- penfation with the forfeiture, and gives no property; but the property being tranf- ferred toppIjolD tenures^ 299 fened to another before the felling, there muft be a new licence to fell, becaufe he is not party nor privy to it; but if the Iciiee fell tiaiber after fuch an alienation of the n^ianor, it is no forfeiture ; fed qu^re. If the copyholder make a leafe for years » Roll. Rep. by ih.e lord's licence, the lefTee may affign ^^^' over his leafe, or make an under-leafe for years without any new licence ; for the lord's intcrcft is difcharged for fo many years. Lord at will cannot give licence to let > Ro^^- Ab. for years; for he cannot difcharge the^'** lord's intereft anv farther than his own interell m the manor goes ; and therefore if the lord that gives the licence has but a particular intcieft in the manor, the li- cence is determined upon the determina- tion of the lord's intereft. The lord gives 2 Brownl. 40. licence to leafe upon condition ; the con- dition is held in Owen to be void; Jed^^'^7i' qiicere. A copyholder makes a leafe for years with licence, and before the years expire dies without heir ; fome are of opi- nion the lord may enter, becaufe the eftate out of which the leafe was derived is determined ; others fay the licence fhall Poph. 188. be taken as a confirmation. A copyholder in tail accepts a feoff- Carter 6, 7, ment ; this deftroys not the cuftom as to ^^' his 3 300 £)f cttftomar? atiD his ifluc in tail, for he hath no power to conclude him ; yet if he commit a forfei- Stra. 1197. ture, and the lord leifes, it feems his ilTue is bound, it being a common and cufto- mary way to cut off the entail of copy- Cro. El. 459, hold lands. If one feifed of a manor in ^5 * right of his wife, let lands by indenture for years, this does not deftroy the cuftom, as to the wife ; for after the death of her hufband (he may demife it by copy again. And bv the fame reafon it feems her heir may ; fo if tenant for life of a manor lets a,, copyhold parcel of the manor for years, and dies, this (hall not deftroy the cu- I And. 199. ftom, as to him in reverfion. Copy- Latch 213. i^oid^j. accepts to hold his land by bill, under the lord's hand ; this determines his copyhold. So if he accept an eftate for life, by parol, if livery be made ; other- wife not; for elfe nothing but an eftate at will paftes, which cannot merge an eftate at will. Hutton 81. If a copyholder releafes to his lord, 1 Keb. 808. jj^jg extinguiflies the copyhold. So if the lord fell the freehold of the inheritance of the copyhold to another, and then the copyholder releafes to the purchafer, this extinguillies the copyhold intereft. But if the copyholder be oufted, and thereby the lord difteifed, and the copyholder releafes to the difleifor, this is of no coppljoio tttittves. 301 effef tttftOtttkf p atiD claratlon of the copyholder's intent to be no longer a copyholder, it is fufficient. A copyholder bargains and fells his copy- Hut. 8i. hold lands to the lord of the manor, who is only leflee for years, the copyhold is not extinguiflied ; for the leflee is lord of the manor, and fo the lands are always 'demifable by copy. And there can be no difference between this cafe and where the manor is conveyed away, together with the copyhold at one and the fame time. z Leo. 73. Three fifters copyholders for life fuccefjhe, the eldeffc tenant in polTeflion takes huf- band, the lord by indenture makes a leafe to the wife, the remainder to the huiband, remainder to the fecond fifter, who four days after the making the leafe, agreed in pais^ and then took hufband, and entered ; and the firfl queftion was, Whether the agreement did extinguifh her copyhold eftate? And the opinion of the juftlces feemed to be, it did not ; but judgment was given againft the younger fifter ; for the eldeft fifter not being dead, fhe could not enjoy her remainder, that being to commence after the death of her fifler. Now this judgment might be given, and the firft point be left undetermined ; for if her copyhold eftate were extindl by ac- ceptance of the remainder, then to be fure her entry was not lawful j and- if it coppIjoiD temites. 303 it were not determined, yet it was held the younger filler's remainder could not take place, becaule, according to Marga- ret Podger^ cafe, the remainder was not to commence till after the eftate for life ended ; fed quaere farther, whether the younger filler's remainder be not in this cafe deftroyed ; for the eflate for life of the eldeft lifter is utterly gone j for the lord having made a leafe, can take no ad- vantage of the forfeiture, and then the remainder not commencing when the par- ticular eftate ends, it feems it can never commence ; for there is as much reafon to » Ro^- Abr.- deftroy contingent remainders of copy- ^gj^^^j^ - holds as freehold eftates ; and this is not 9 Co. 107, like the cafe where the lord feifes the par- LexCuft.231; ticular eftate as a forfeiture ; for there it ' ' -" remains (as it feems) to fupport remainders. Hulband and wife, copyholders in fee, the hulband obtains of the lord, for money paid, an eftate to them in tail; the huft)and dies, the wife enters and fuffers a recovery, the heir enters upon her by force of the ftatute II H. y. and his entry adjudged lawful; for by her acceptance of the free- hold eftate, the copyhold was extin£l, ' Cuftom that copyhold tenements fhould be to the wife after the huft)and's death, either for a moiety or intierty ; they efcheat to the lord, and he dies ; his wife {hall not 304 €>f cttftomatp atio not be endowed of a moiety j for they 2 Sid. 19. are not copyhold in his hands* a Sid. 18, The king, lord of a manor, and ha- li^\ 5 vlng copyhold lands in his hands, grants Style 266. them to one for life, without taking any 2R0II. Abr. notice that it is copyhold land; and it Jones 449. ^^^ ^^^^ ^^^^ ^^^^s ^^^ "° deftrudion of coot. the cuftom; but that after the eftate for life ended, the lands might be granted by copy again, and that the rule that copy- hold lands muft be always demifed or de- mifable time out, C^c. extends only to common perfons, and not to the cafe of the king ; and the reafon given was, be- caufe the king's grants are not to be taken to a double intent, viz. to pafs an eftatc for life, and to infranchife the lands too. This cafe came in queftion afterwards in 1664. and To adjudged ; for the juiy gave no fpecial verdi<5t, but found the lands to be copyhold, which it feems they would never have ventured to do, had not the court been clear of opinion that the cu- I Roll. Abr. ftorri was not deftroyed. But yet it is 498- faid in Lex Cuji. 233. that there is a cafe I Rol. Abr. j^ j^^ii^ againft this. Ideo qticcre, fee Lex Co. Cop. 172. Cuji, yg, 80. If a copyholder hath had, Heydon's ^jj^g q^^ of i^iind, a way over another SaviPsRep. copyholder's ground, and he purchafes the inheritance of his own copyhold, yet the way remains. A copyholder marries 1 the coppl^oID teuurest. 305 the lady of the manor, this is only a fufpenfi'on of the copyhold eftate j fo if a Cro. El. 7. copyholder hath the manor in execution : It feems to me in this cafe, that the huf- band and conufee being lords for the time, may make voluntary grants of their own copyhold lands, as well as of others that come into their hands j for though they Cro. El. yi are not copyholders (neither are they fo when copyholds efcheat) yet they have copyhold lands that have been demifable time out of mind, &c. In that cafe of the hufband he and his wife fuffered a recovery of the manor to the ufe of themfelves for life, remainder, &c. This was adjudged to be a deftruc- tion of the copyhold eftate y for then the lands were conveyed by a common law conveyance, and fo the cuftom was broke. If there be three copyholders, and one takes an eftate by livery for Ufc, it feems this does not deftroy the cuftomary in- tereft of thofe in remainder. One is feifed of a rent- charge by pre- » Rol. Abr. fcrlption, yet without prefcription he can- ^^^^^^J°' - .not diftrain the copyholder's beafts ; for the copyholders are in by as high a title, "jiz. Prefcription. Copyholder for life, the lord lets the manor, with all mines, to y, S. who, living the copyholder for life, enters and digs a new pit, and takes X coals ' 3o6 £){ cttftomatp attu coals and converts them ; the copyholder Hi^ings trover, and it was held it lay ; fot that the coals, after they were dug, be- ^6°^^"^^^' belonged to the copyholder ; y?J ^w<^rf ; for they are as much parcel of the inheri- tance as timber-trees. If copyholders pre- fcribe to have common in the lord's wafte, and the lord deftroys the common by put- ting conies in it, every copyholder may have an adion upon the cafe again ft the lord. If a ftranger puts in his beafts, whereby the copyholder lofeth his com- mon, it feems he may have an adtion of the cafe againft him, as well as diftrain his Leo. 202, bsafts damage-feafant. But if the damage 211. be fo little, that notwithftanding the co- pyholder may take his common, then it 2Brown.i46. leems no copyholder can have any adlion, becaufe the damage is not done to him, I Roll. Abr. but to the owner of the foil. The fame ^9- law if a ftranger dig the turf up ; for though he cannot have an adtion for dig- ging up the turfs, becaufe they do not belong to him, yet if that be the means by which he lofeth his common, the lofs of his common is a prejudice to him, I Roll. Abf. for which he may have an adlion. If a ^^2- copyholder, by licence, makes a leafc for years, and afterwards enters upon the lefTee, he is a diffeifor, for he Can gain no particular eftate. If a. if a copyholder die feiled, and the 3 Leo. 210. lord admits another, who enters, he is not a diffeifor, but only a tenant at will, becaufe the lord aflents to his coming in. * How emblements fliall be difpofed of Lex Curt, in copyhold cafes, fee 5 C'^9- I IniL 00 3 the lord's court; for the common law , Rojj^^jjj.] doth not take notice of fuch bafe eftates ; 373. therefore if an erroneous judgment be given, no writ of falfe judgment lies, but only a petition to the lord in na- ture of falfe judgment, or elfe the party grieved may have remedy in chancery. One recovers in a manor, no precept can be made to take the pojje manerii^ and give the party poffeflion by force ; for the law will not fuffer any body to take fuch 3 Leo. 99. power into their hands, without the king's writ. Copyholder's leafe is no difleifin to the 2 Keb. 598. lord. 2 Brown, 40. contra, i Brown. 133- If one furrenders to the lord, to the intent he fliould grant it to another, and he admits him, this is good; for the other may plead it as a grant. Copyholder may prefcribe in his lord, Lit. Rep. being a fpiritual perfon, to be difcharged J^'j^^j ^j^^.^ of tithes. 652. If a cuftom be altered by confent ofYelv. 2. lord and tenants, it feems chancery will ^^' ' ^ ^' X 3 compel 310 M cttftomatp mn compel them to ftaiid by that alteration, ^trerey Whether it will reduce a fine in- certain into a certainty, at the fuit of all the copyholders j for though there be an equity in moderating an exccffive fine, yet it feems there is none to reduce an in- LexCuft. certain fine to a certain one, at the fuit 319, 320, of the tenants. If a copyholder com- mit a voluntary forfeiture, there feems no equity in relieving; copyholders muft be relieved in chancery for their com- Totlu 108. pion. Chancery will compel to let a ^5- tenant fue at law, without a forfeiture. So it will compel a licence to let, and alfo to admit a mortgagee to try a cu- zKeb. 357. {iotn at common law. After forty-three years pofiefhon, a defendant was ordered to admit of a furrender apd adrnittance. Lex Cujl. 326. Lex Cuft. Copyholder for three lives covenants, 323» 327- ji^ cqnfideration of money paid, to furr render, and dies before furrender, and purchafer dies ; it was agreed the heir of the copyholder fliould furrender to the purchafer's heir> and make good the afilirance. See other good cafes, ■where chancery will and will not re- lieve in copyhold cafes, in Lex Ciifl. from f>. 323 to 33 T. Moor 552. T^otb,. Copy- coppIjolD tenures. 3 ^ i Copyhold lands cannot be exchanged by deed, but there mull: be a lurrender and admittance thereupon. A right to a Co. Cop. 97, copyhold may be extinguiflicd by a releafe, ^^• but no eftates can pafs by releafe j nor by leafe and releafe, though the ieafe be by furrender j for a releafe cannot enlarge a copyhold eftate. Commiflioners of bankrupts bargau:i ^^°' ^^^' and fell copyhold lands j the eftate is in the bargainee before admittance, though he may not enter and take the profits be- fore admittance, which the ftatute ordain- ed as a cautionary remedy for the lord for his fine. Therefore, if there be a cuftom in a manor that if a copyholder die feifed of a cuftomary eftate of inheritance, that the wife (hall hold the lands for her life ; and fuch a copyholder becomes a bank- rupt, and the commiftioners bargain and fell the lands by deed indented and inroU- ed, and then the bankrupt dies ; the wife fliall not have her widow's eftate; for her hufband did not die feifed. My lord Coke kys J that the word Surrender is ';'5-Co.Cop. 102, cabulum artisy Ergo, where a furrender ^^J"^^ 5/* is neceftary, no other word will fupply 3'Bulft. 80. the want of it ; as the words Give^ Grant , or the like ; fed qiicere well of this mat- ter ; for in Belfield and Admm\ cafe, it is held that any words exprefling his inten- % 4 tion 312 M cttftomatp atiD tion of furrendering, are good enough. And this faying of a copyholder in court, was held to be a fufficient furrender, viz. that he was weaiy of his copyhold, and Hutt. 8i. requefted his lord to take it again. See ^'°*J^^"5^^' Z>f AT Cz//?. 103, 104. Lands were apper- taining to a houfe, and the copyholder furrendered the houfe cum pertinentiis ; adjudged the lands did not pafs. Cro. El. 717. Examination of a feme covert, by the ^C^T^'b^ fteward out of court, though it did not Winch 3. appear that he was ftev/ard by patent, or Co. Cop. 12, tfj^t there was any cuftom for fuch an 7. Rol. Rep. examination, was held to be good. 23^- If the king grant omnes terras {iomim- cales fna?ierii de W, the cuftomary lands held by copy do not pafs, but in the cafe of a common perfon they do. It is faid in Lex Ciiji. 92. to be adjudged that if a man grant all his demefne lands, his co- pyhold lands will not pafs, if he has other lands to latisfy the words of his grant. It feems this muft be underflood of thofe lands that he holds by copy, or elfe it thwarts the cafe before; and the reafon is, becaufe copyhold lands do not pafs by fuch conveyance, but by furrender. If copyhold lands efcheat, and are in the king's hands, and he pSini^omnes terras fuas domijiicaks^ qiiare^ if they fliall pafs. It feems every thing demifable by copy mufl be coppDolu tetitttes, 313 be parcel of the manor j for the cuftom can only extend to the manor, and the pleading is quod infra maneriu?}!^ &c. Lord of a manor grants the fteward- Ley's Rep. fhip to S. for life, and after becomes lu- ^^' natick, and the cuftody is committed to ^1 B. and others ; they cannot by their fteward grant eftates by copy; for they Hob. 215' have no eftate in the manor, and there- fore are not domini pro tempore ; but the lunatick by his fteward may grant copies. Tenant in tail of a manor difcontinues and Co. Cop. 85. dies, and then the difcontinuee makes vo- luntary grants ; thele may be avoided by the iftue in tail; for the eftate of the dif- • continuee is defcafible and tortious. Guardian in focage may hold courts in Owen 115. his own name, and may grant copies. Lex Ciifi, 88. If one be retained fteward by parol, it Cro. ja. 55, is good to make him fteward at will j and ^ j'^^jj^, ^ as to all points he is as effedual a fteward Co. Cop. 124. as one retained by patent. There is a dif- ference taken in the cafe between Bla- grave and If^ood, between the fteward of a manor and the fteward of a court ; for that the fteward of a manor may take furrenders out of court, but the fteward of a court cannot. But this diftindlion i Leo, ^27. is taken no where elfe, and feems to have no authority in it, being only affirmed 314 ^f cuftomatp aiiD by one counfel, and denied by another. Cro. EI. 48. Lord of a manor makes a fteward ad ex^ equend. per fe vel fufficie7if deputaf fuiim^ who makes A. his deputy hac vicCj to take a furrefixier of baron and feme to the ufe of baron and feme for their lives, the remainder over in fee, & idterius ad fa- ciendum quantum in tue eft. A. takes a furrender from the baron and feme, up- on condition the lord fhall grant it to them for their lives, the remainder over in fee. In this cafe it was agreed that this deputation pro hac vice was good, and that the furrender was good enough (though the authority was to take an ab- folute furrender, and this furrender was conditional) by force of the words ^ ulterius ad faciend\ The force of thefe words feem'to me to be, that the deputy Ihall take any thing upon him that the ileward might, to make good that thing he was to do j and they do not feem to give him an authority to take any other furrender than to the ufes limited in the \ Leo. 289. deputation. This cafe is ftrangely re- ported by Leonard y for there the claufe Gf ad ulterius^ &c, is not put in, and the furrender was upon condition to pay mo^ ney, which feems clearly cut of the au^ thority the deputy had. A COppljOlO ttWittS. 315 A fteward ex officio may make volun- Cro. Ei. 699. tary grants. Co, Cop. 124. Auditor and ^ ca^o!'^' purveyor for the county of N. appointed a ileward for one of the manors pro ilia vice. Adjudged they had no authority to do it ; fed qiiare, if they may not re- tain a fteward by patent. Things of nc- ceflity, done by a ileward, though he jhave no authority, are good j as admit- tances upon defcents or furrenders ; but voluntary grants are not good by fuch a ileward. If a lord command his fteward not to grant fuch lands by copy, and he doth it, it is void. So if in his grant he < diminifli the ancient rent and fervices. It is held by Coke^ that if an infant is not capable of the office of fteward of a ma- inft. 3. h. nor, either in polTeflion or reverlion 3 yet there is a cafe where the grant of a flew- ardiliip to an infant in reverfion exercend' per Je velfuff'' dep' Juum^ was held good. And it was held there, that if that claufe Cro.Car.556, were in, exercend' per fe vel /uff'' dep' fmmi, the grant was good, unlefs he were of fuch tender years as not to be able to jiiake a deputy. My lord Coke allows an Co. Cop. 125. infant, that has the office of ileward by defcent, may make a deputy, though the claufe of per fe, &c. be not in. Sed qucere^ Whether he may do it if he have it 3i6 £>f cttftotnat:? ann it by purchafe. The cafe in Co. Lit. Cro. Car. feems to be again ft this. Co. Cop. 125. Coke fays, the law is not very curious in examining the imperfedions of the fte ward's perfon, nor the unlawful nefs of his authority ; for be he an infant, ?ion compoSy lunatick, outlawed, or excommu- nicate, yet whatfoever things he performs as incident to his place, can never be avoided for any fuch difability, becaufc he performs them as a judge ; at leaft, as cuftom's inftrument. By this my lord Coke feems to allow that an infant is ca- pable of the office ; for were the grant to him void, then voluntary grants made by him would not be good ; which yet my lord Coke feems to allow, when he faith, that whatever things he performs, as incident to his place, can never be avoid- ed 5 and one incident to a fteward's place, is to make voluntary grants ; and he feems indeed to put him in the fame place with a lunatick perfon ; and a grant by him is, without all queftlon, good. It may be he meant here, where the infant has the office by defcent. However it be, it feems clear that an infant is capable of the ftew- ardQiip exercend' per fe^ &c. and where he is of years of difcretion, perhaps he may excercife it himfelf^ for it was faid in cop^HolD tenures. 317 in the cafe of Toting ver. Fowler y that the Cro. Car. 5 5 6, infant in that cafe, being eleven years old, was able to exercife the office himfelf, or make a deputy ; and fomething there is darkly expreffed, which yet feems to in- timate that he may execute it himfelf. As for the authority of the fleward, faith my lord Coke, though it prove but counter- feit, if it come to exad: trial ; yet if in appearance, or outward fhew, it feems currant, that is fufficient. If a grant be made to one, and through fome defedt it is avoidable ; vet the courts kept by fuch a fteward, before avoidance, fliall fland in force ; and whatever he did as fleward, is for ever good. This feems very reafonable, and doth not at all thwart the diftindion taken before; for there the fleward had no authority; and fo only neceflary adls by him are good. But here he had authority, and was to all intents Co. Cop. 12 j' and purpofes fleward, till the avoidance ; * and fo all adls, by him done, fhall bind. And perhaps this may be the reafon why the ad:s of an infant are unavoidable, that the grant is not adually void, but only voidable ; and fo before the avoidance of the grant, he is abfolute fleward. My lord Coke is fo far from overthrowing the aforefaid diflinftion, that he takes the fame himfelf; but adds farther, that one that I has 3i8 £)f cttftomarj> atto has no manner of pretence nor colouf for keeping of courts, if he afTames the fieward's place, whatever he does will not be void, efpecially if a precept be gi- ven to the bailiff to giVe him warning, which feems very reafonable; for the faint authority of the fteward is allowed in other cafes, for the fecurity of purchafers, who can never know the fteward's right j and no harm is done to any body, the cafe {landing indifferent between vendor and vendee. Therefore where harm would be done (as where the lord's lands and property are difpofed of by voluntary grants) there fuch ileward can do nothing. But when a fteward hath no pretence of title, there every body muft take notice of his wrong ; for if they were not obli- ged, it would be impoflible for the lord to do any thing according as he thought fit ; for any ftranger might thruft himfelf into the employment, and introduce whom he pleafed to be tenants. As the law doth not examine the imperfedions of the lord from whom the intereft pafTes ; fo neither doth it examine the fteward's, who is re- ftrained by law from prejudicing the lord. And as diffeifors, &c. may do neceflary adts, [o may thofe ftewards who have as little title as difTeifors, My coppDolo temttes. 319 My lord Coke fays, that the lord may 4 Co. 26. b. make admittances and grants by copy at ^^°j^°^'^^^j* what place he pleafes •, but the fteward of the manor, at any court held off the ma- nor (for out of the court, it is faid by him in another place, he may make admittan- ces and grants by copy) cannot make any admittances or grants by copy. This feems to imply that the lord may make by copy grants and admittances at a court held off the manor ; or elfe where is the difference between the cafe of the lord and {leward. And in the next cafe but one, it is refolved that if the fteward at a court held off the manor, make any grants or admittances, they are all void ; but he fays nothing of the lord. In his. comment upon Littletotiy he fays the court-baron muff be held upon the ma- nor, elfe it will be void. ,,^ r'.,^,^^ : As Melwkh's cafe is repo>ted by Croke^ Cro.El. 103^ it is there faid, that if the lord grant away the freehold of his copyholds, the grantee may hold courts where he will, to make admittances and grants. If then a grant by copy or admittance fhould be made at a court held off the manor, though it be a court-baron, why fhould it be void ? Since a court-baron contains in it two courts, one for the freeholders, the other for the copyholders; and fince that for the 320 M cttftomatp ftuD the copyholders, as to granting copies, &c. may be held off the manor, there is no reafon, that becaufe the court-baron is void, that therefore the admittance fhould be void 5 for they are as two diftindl courts ; and the admittance had been good, had the court been only the copy- holders court. And if we look back to the reafon of the thing, if an admittance may be made at a place off the manor, why not at a court held off the manor ; for it is no judicial a6t -, if it were, furely it muft of neceffity be done in court; and therefore it was held per tot* cur, that a court to do thefe things might be I Leo. 288. held off the manor : It is not diftinguifhed in this cafe between the grant of the lord or ftcward : But Coke is exprefs that grants by ftewards at courts held off the manor are void. I^Ieo qucere de hoc. Co. Cop. 1 29. A fteward cannot de communi jure make an under- fteward, unlefs he has power by his patent, or be an infant that has the office by defcent, or be a perfon of that quality that it will be a difgrace to him to hold the courts himfelf j as if he be an Noy 2. earl, &c, Cuftom that if a copyholder holds lands in fee, and his wife furvives him, that (lie (hall have it in fee, (^ Jic No y 29. e co?iverfo. And fo the cuftom for an executor to hold for a year after the death of COppUOlO UtlttUS, 321 of the copyholder, is a good cuftom, where the wife is to have her Jree bench. Copyholder (where there is a cuftom for the feme to have her widow's eftate) makes a leafe for years j flie fhall not avoid the Icafe ; for the leafe being made according ^'■°- J^- 3^* to the cuftom, his title is as good as hers; °°''^ but if the leafe were made without war- rant, then (he may. It feems to me, that the feme {hall not in this cafe be endow- ed of the third part of the rent and re- verfion, becaufe cuftoms ought to be ftridl- ly purfued, and that is only to be endow- Co. Ent. 125, ed of land ; yet it feems after the leafe ended fhe fliall be endowed, for the huf- band did die feifed (the pofTeffion of his lefTee being his own pofTeffion). Bat it was agreed in this cafe, that by fpecial cuftom the feme might avoid the leafe. This among other cafes proves that a co- pyholder may difpofe of his land, and bar his wife of her free bench, unlefs i Cro. 56^. there be a particular cuftom that fhe fliall avoid any alienation, ^c. made by him; for then the particular cuftom ftiall, as it feems, avoid his charge as well in the cafe of copyhold as freehold eftates, by the common law. Lord enfeoffs his copyholder in feeC''<*-.Tac- ^26. 1 ^1 n \ -c Catthewx-6. where the cuftom was, that ir a copy- holder in fee die feifed, his wife ftiall have y frank 322 £)f cttftfimatv attD frank bank; the copyhoWer died ; adjud- ged the wife was barred; but had the lord enfeoffed a ftranger, (he fhould have had her free bench, becaufe the land remained copyhold, and the cuftom not taken away. 3 Leo. 81. It came to be a queflion in Skipwith's Co. Cop. 94. ^^Cg whether the cuftom for feme coverts Moor 123. 1 r 1 1 • 1 n 4Co.6i.b. to deviie lands to their hulbands, or any body elfe, were a good cuftom; but judg- ment was given upon a defedl in the plead- ings. It was held by all the juftices, that copyholds are out of the words of the ftatute 34 {i? 35 H. 8. of wills; but An- derfofi held them to be within the equity of that ftatute. ^lare well, whether fuch cuftom be good to devife; and fee the books cited in the margent. Winch 27. If the hufband be attaint of felony, it feems the wife {h?.\\ lofe her dower in the copyhold lands, although there be no fpe- cial cuftom; for this amounts to an afe- JSkroh z. nation. It is faid in Lex Cujt, 46. that the lord of a manor cannot grant a copy- hold in reverfion without a fpecial cuftom. If this be underftood where copyholds are only grantable for life, it feems reafonable enough; but where they have been grant- ed in fee, there if the lord grant to one an eftate for life, that he may not after- wards grant the reverfion in fee to an- other, feems very un reafonable., Cuftom Cuftom that if a copyholder do not ^'^^^^^ ^^^'. repair, it ihall be prefented by the ho- mage, the tenant anierced, and the lord fliali diflrain upon the copyholder or un- der-tenant; this is a good cuflom; for the under-tenant is not a meer flr.anger. Cuflom, that after the death of tenant for?»foor 842^ life, the lord is compellable to make a'^r,' o- ' , r 2 brown. 651 grant for life to his fon j and if no fon,Noy 2. to his daughter, is a void cuflom ; be- ^^°i^<^3^§? caufe it obliges the lord who hath the in- tereft, to grant it to this or that particular peribn, whether he will or no : But a cuflom for a copyholder for life to nomi- nate his fucceffor, is good 3 /or that is a •right and interefl vefled in tenant for life. Sed qucere. Cuftom for the fleward to make by- March 2S, laws for the ordering the commonj is a good cuftom. An order made that a tenant fliould not put in this or that beafl is void, becaufe it takes away his inheri- tance 5 but if it were that he fliould not do it before fuch a day, that is a good by-law, being not reflridive cf his inhe- 1 Leo. 190. ritance, but only diredive of it. . Cuftom that he that lives above ten ^°'^- ^'P- 77 • miles from the manor, upon paying 8^. i Sid. 361. to the 'lord, and id. to the fleward, * ^^^- 3 44» fliould be excufed from attendance upon ^ * ^ " the. court; this is a good cuftom: If he Y a aver^ 324 £)f cuftomatp atiD avers there are Copyholders fufficicnt to keep court that live near the manor j or elfe furely the cuftom will be void; for then no court can be held. As this cafe is reported by Siderfin^ it is faid it was held a good cuftom, becaufe the court was a court- baron, where the fuitors are judges } but it feems to me to be all one; for that if it were a cuftomary court, if fufficient copyholders were near the ma- nor, it is unreafonable to oblige perfons that live a great way off, to attend ; and if the court be a court-baron, if there be not a fufficient number of tenants that live near the manor, to do the duty, then copyholders are obliged to do it in that court as well as freeholders; and therefore it feems the cuftom cannot be good, for no court can be held. Mo. 8. Cuftom that a copyholder ftiall not Noy 27. aiiep without licence is good. That a lef- fce may hold the lands half a year after Lit. Rep.233. the term, is no good cuftom. Cuftom, Hutton 126, that if a copyholder make a leafe for a »27> >o'- yt^T, and die, that it ftiall be void againft his heir, is a good cuftom. Cro.Ja. 671. Cuftom was to demife land, the lefl*ee paying the treble value of the rent ; and if he died within the term, that his heir (hould have it, paying one year's rent ; and that if he affigned, the aflignee ihould have cop?DolD ttnutts. 325 have it, paying a year's rent. This was held to be a good cuftom. Cuftom that if a copyholder will ^ell ^^"-own. 277- his land, the next of blood (hall have the^°' °^*'°' refufal, or the next neighbour to theLexCuft.34. eaft, or the like, is a good cuftom. It feems the reafonableneis of a cuftom is to be confidered, not from the rules and maxims of common law (for there is no cuftom, but what in fome point or other overthrows the common law) but from the conveniency of the thing itfelf. As if there be a cuftom that a copyholder ftiall not put in his beafts to take the common before the lord has put in his ; this is a void and unreafonable cuftom, becaufe it is in the power of the lord by this means to take away the intereft of his common- ers: So a cuftom that the tenant ftiall pay ^°-^°P'Ji' r 1 • ru-ji:.2 Roll. Abjr. a fine upon the marriage or his daughter ^5 - is void, becaufe it is again ft the freedom of the fubjed: ; but if a man obliges him- felf to fuch a thing by tenure, it is good, being his own contradt ; fo a cuftom may be void for the uncertainty ; as if a feoff- ment be made by an infant, it fliall be good, if he can tell 12 d. or that tenants ought to pay or ought not to pay above two years rent for a fine. Cuftom of a 2 Leo. 109, manor was, that if a man took a cufto- 208. mary tenant to wife, and outlived her, Y 3 he 326 ^f caftomarp ano he fliould be tenant per curtefy. And a man took a woman to wife who had no copyhold land then, bat fome defcended to her during her coverture ; it was adr-. judged he fluould not be tenant per cur- teiy, becaufe he is out of the cuftom. I Roll Abr. Cuftom was, that the lord might for' 5^'* lum?nBdo grant eftates in fee: This word jhlummodo was expounded to mean, that he had only ufed to grant eftates in fee j and fo it was held he might grant for a lefs time ^ but fuppofe it had been (hewn and pleaded that he could not grant any ■otherwife ;• qiicere of that. Cuftom was, that when a copyholder fells his land, proclamation (liall be made at the next court-day j and if any of the blood of the vendor will give as much money, he (liall have it. If the land be fold for money, and any thing elfe, it s Roll. Abr. feems to be out of the cuftom. The cafe ^^^' was, the land was fold for money, and in confideration of a cure done to the vendor by th" vendee, it was held the next of blood could not take advantage of the cuftom. I Rol. Abr. Copyhold is granted to two for the lives H I'sa d ^^ three perfons, and tenants pur auter Co. Cop 132, wV die, living the cejliiy queries; there ^f^^-.cont. {]^;ili be no occupant, but the lord fhall Ji^ye the eftatej for no body can gain a copyv copyhold by occupancy, but by admiffioa of the lord : But it leems, if the limi- tation had been to the tenants and their heirs, during the lives of the ccftuy que vies J the heir in fuch cafe would have the " eftate, and not the lord, betaufe he has excluded himfelf, and exprefly granted the copyhold to the grantee and his heirs, during fuch a time; but then it feems the heir muft be admitted and pay his fine. It feems he muft only pay a purchafe fine, and not fuch a one as is paid upon a de- fcent; for he doth not take by defcent, but by fpecial occupancy. Copyholders may h^wt folaf?i &fepara- 2 Sand. 326, km pajhiram in the foil of the lord, and ^^^' exclude the ov^ner. If a copyholder let Roll- Abr. goo for years by licence, this is not extenda- ble in the hands of the leffee ; for the flatute which gives execution of lands, extends not to copyholds. It feems to me that a copyholder of in- heritance cannot, without a fpecial cu- ftom, dig for mines; neither can the lord dig in the copyholders lands, for the great prejudice he would do to the copyhold eftate; and the copyholder himfelf feems » Sid. 15 to have no intereft in the inheritance of the lands. Copyholder rpay dig for marl to lay upon the copyhold land : He cannot inclofe where it was never inclofed before, y 4 Copy- IC2. 328 £)f cttftomatr ana Copyhold not forfeited or determined by outlawry. Copyholder (hall have aid of the lord, where the right of the feigniory Lit.Rep. 234. comes in queftion. If he hath had aid of 2 H. 6. 37, ^ bifhop, and then the temporalities come into the king's hands, he fhall not have aid of the king, becaufe of the delay. Style 31 1. Cuftom that a copyholder may give a warrant of attorney to another to furren- der after his death, is a void cuflom. zRol.Abr. The king grants a manor in fee-farm, '^^' . the lands and goods of copyholders are not liable to the rent, becaufe they come in by prefcription, which is before the rent. Eftates of copyholders, confirmed by decree in the exchequer or dutchy chamber, fhall be good, according to the faid decrees, by the 7 'Ja. i. c.i\. But it feems from the words of that aft, that it only extends to thofe decrees made after the firft day of the feflion of that parlia- ment, and two years next enfuing that time. £ Roll. Ab. A bifliop or tenant in tail, ^c. lets *57- copyhold lands by deed indented ; the ilTue or fucceflbr may grant this by copy again ; yet they may make leafes accord- ing to the flatute to bind : Though no man can have an aftion of forcible entry, but he that hath a freehold in the tene- ments ; ye: if the lord (l^.ould forcibly enter cop^i)ol& tettutes. 329 enter upon his copyholder, it feems he may be indidted for it ; (for if another enters, there is no queflion but it is a dif- feifin to the lord) for it is not requilite to F. N.B.ss«- the maintaining the indidment, that he that difleifes fliould gain a freehold ; fed quare, whether he that is entered upon muft not have a freehold ; for the 21 J. i, c. 15. gives reftitution of poffeffion to a leffee for years, but no indidlment; and had an indidment lain before, that a<5t had been needlefsj for v^^here an indidment lay, there reftitution was to follow. If a copyholder dies, his heir under the Co. Cop. z^. age of fourteen, the next of kin fhall not have the cuftody of the copyhold land; for the right of appointing a guardian for them de jure belongs to the lord, that fo he may be fure to have the fervices done him. This is a particular reafon why the lord fhould have the cuftody of the lands, againft the common rule for the guardian in focage. But the reafon not extending to the cuftody of the body, it feems the guardian in focage ftiall have the body. This guardianftiip, faith Coke^ de comnnmi^^ Cop, 155, jure belonging to the lord, the copyholder * cannot by his laft will and teftament ap- point another guardian : ^/«^rf. Whether at this day by force of the ftatute 12 Car. 2, f. 24. the devifee of a child (hall have I the 330 M cttftomatp atvD the guardianihip of the child's copyhold lands. For the words of the adt, fee the ftatute at large. Co. Cop. 38. • Copyholders pay no relief, for that is a fervice only due from freeholders. The quality of the lord's eflate is not regarded in voluntary grants by copy j for if he be but doj?iimiS pro tempore^ it is fuffitient ; for if baron and feme grant copies, the feme fliall never avoid this after the death Co. Cop. 79, Qj-' i-jgj. hufband ; but if he alone grant, it feems (lie may, for he had nothing but jure jixoris. Two jointenants of a manor, a copyhold efcheats, one may grant the whole, for he is dominns pro tempore^ and is feifed per my & per tcut. Lord grants Co. Cop, 90.-^ copyhold for life, where they are grant- able in fee, the grantee furrenders to the ufe of another in fee, the lord admits y^-- ciindim ojicmn furfumredditionis ; an eft ate Co. Cop. 97. for life only palTes. If a copyholder fur- render to the ufe of his laft will, and by that devifes it to two, and the lord ad- mits one, this fliall enure to both -, for when he is admitted, he is in by the fur- render, which he cannot be unlefs he be a jointenant j for that is his title by the furrender. Co Cop. 113, A copyholder dies 5 a ftranger before ^^^' the admittance of the heir comes and fur- renders to the ufe of the heir and his wife; he copvljolD tenttres. 331 he {hall ever claim jointly with his wife by force of this efloppel. If he had been admitted firft, and then the furrender had been made, qiiare^ Whether he had been eftopped. ^lare, Whether tithes are grantable by copy. See Cro. £/. 814. G? i Rcll, Ab. 498. where it is faid they may, as well as a rent-charge. Things that lie not in tenure, are not ^o- Cop. 116. grantable, unlefs appendant to fomething that does lie in tenure; for firft, no rent can be referved out of them, becaufe there can be no diftrefs taken upon them, and then they are not parcel of a manor, which confifts only of demeans and fer- vices. But then it will be objeded, that a rent-fervice is parcel of a manor, and grantable by copy ; for a manor may be granted by copy, but a rent-fervice may be diftrained for ; and if it be granted by copy, it cannot be granted alone, but lands muft be granted with it, upon which a diftrefs may be taken ; and as it is part of a manor, it is held of fome fuperior lord. Per fe it feems a rent-fervice cannot be granted by copy, no more than rent- charges, or commons in grofs, which yet may be granted by copy, as they are ap- pendant to any other thing. No fervice can 332 DC cttftoiMtrp anti can be referved or due upon the grant of incorporeal things ; fo that no court can be kept by the grantor, no attendance be- ing due from the grantees of incorporeal inheritances -, fo as to them there is no lord, and confequently they cannot pafs bv furrender and admittance, and fo are not grantable by copy; and therefore where Coke fays, that any thing parcel of a ma- nor may be granted by copy, or any thing concerning lands and tenements, that muft be meant parcel of the manor, and no in- corporeal things in grofs are parcel of a manor. Co.Cop. n8. Things grantable by copy muft be things of perpetuity, for otherwife it can never be (hewn that there hath been a cullom to demife them by copy ; yet a man may grant by copy twenty loads of wood to be taken by the grantee; for it is rot requifite that the grant (hould have continuance, but that the thing granted by copy, fhould be a thing of perpetuity, which trees are, for a man may have an inheritance in a tree ; yet it feems no fer- vice is due from the grantee in fuch a cafe: But then trees while growing, are held ; and a tenure may be referved upon^the grant of them, though no fervice be due upon the grant of twenty bad ; of which queer e. A fOppDOlD tCltttteS. 333 A fteward of a manor cannot licenfe Co. Cop. 122. pcrfons to alien by deed ex officio, for that is no cuftomary thing, but a power derived from the lord's intereft, and therefore be- longs only to the lord, unlefs there be a particular cuftom for the fteward to licenfe, or power be given him by the lord in his patent, or otherwife. Licence to alien and admittance muft be in the name of the lord. The fame expofition that is made of Co. Cop. 123. grants of freehold lands, is made of copy- hold lands ; therefore a grant to one and his heirs male is a fee, ^c. See Co. Cop. 136, 139. Adlions meerly perfonal a copyholder Co. Cop. 143^ may fue at common law. Copyholder makes a leafe by licence for years, where the cuftom is for the copyholder to cut down timber-trees -, the leflee for years cats down the trees; the copyholder lliall fue in the lord's court to punilh this offence. A fine is due upon admittance upon aCo. Cop.15^ voluntary grant. Where the cuftom is for ^'^; a copyholder's lands to be extended, the extendor (hall be admitted and pay a fine. A, intermarries with a feme copyholder 3 Leo. 9 for years; he Qiall not be admitted or pay a fine if he fui vive. Two jointenants, the one dieth, the other fliall have all by lur- vivor, without paying a fine or be admit- ted. Tenant for life, and he in remainder join 334 ^f cttllottiati' anti join In a grant of their copyhold, but one fine. is due. So if a furrender be made, arid after a recovery is had by plaint, in the nature of a writ of entry in the poji, for the better afTurance, but one fine is due. Touching wafte voluntary and permif- five by an infant, a man non compos^ a feme covert, guardian, cejluy que iife^ fee Co. Cop. from />. 163 to 171. Co. Cop. Tenant for life of a manor, remainder »7o>'7*' in fee, a copyholder commits a forfeiture, tenant for life dies; he in remainder may take advantage of his forfeiture, in refped: of the daiTiage done to his intereft. So it feems if tenant for Yi(q, had aliened to an- other his eftate, though neither he nor his grantee could take advantage of this for- feiture; yet after his death, it feems he in remainder might. If a copyholder does an adl v^^hich extinguiflies his copyhold, acceptance of rent will not difpenfe with Cro. EI. 582. it. Otherwife, where it is a naked for- feiture. The lord of a manor demifes the land by copy to A. upon condition he Ihould pay twenty fliillings yearly to B. during his minority, and 100/. when he came at age; A. doth not pay the twenty fliillings yearly, but furrenders to the ufe of P. and his heirs, whom the lord ad- mits; and afterwards 5. attains his full age, and the money is not paid him ; where- copvDolf tmmts, 335 whereupon the lord enters for the condi- tion broken, and grants it to B, and the queftion was. Whether the lord's adnait- tance of P. were not a difpenl'ation with the condition ? The cafe was not refolved ; but Fenner was of opinion it was no dif- penfation j and he argued that becaufe the lord was only an inflrument to convey, and the ce/iuy que ufe is in by him that furrendered j and therefore the lord's ad- mittance was no difpenfation. But furely his affirming the power of the copyholder to furrender an eftate after the breach of ithe condition, for not paying the twenty /hillings, is a good difpenfation for that forfeiture, as well as if he had accepted rent after the forfeiture : for the affirming his power to grant over his eftate, is as much an indication of the lord's i:)ind for the continuance of the eftate, as tjje ac- ceptance. But then as for the forfeiture, that accrued after the admittance. It 'feems the admittance could not pafs away ■ that ; for the land was charged with the condition, into whofe hands foever it came : And this feems to be Fe?2?iers opi- nion, by the reafon he gives ; for that the cejiuy que ufe coming in by the furrenderor, the lord by his admittance, did not pafs r'away his intereft in 'the condition ; for the ' (^ucftion was, Whether the lord had dif- ""^ penfed 336 Df tttttotmtv anti pen fed with the condition, not whether he had difpenfed with the forfeiture of the condition broken ? for that was not broken in part, till after the admittance : Yes, a breach in part was a breach of the whole condition. Co. Cop. 105, My lord Coke fays, that prefentments 4 Co. ij.a. q£ furrenders ought, in all material points, to enfue and agree with the furrenders themfelves, elfe the furrender, prefent* ment, and admittance thereupon, will be void ; which feems reafonable ; for if the prefentment in matter differs from the fur- render, the lord hath no fufficient notice of the furrender ; and then the admit- tance upon it muft in reafon be bad, and not help out the prefentment j for if the lord knew the true furrender, perhaps he would never confcnt to fuch a furren- der ; and the true furrender ought to be known, that the lord might know his tenant, and from whom to take his fer- vices. The admittance cannot help out, for that was grounded upon the prefent- ment ; but if the lord had notice of the true furrender, though the prefentment did differ, yet it ieems reafonable the ad- mittance (hould enure according to the furrender, becaufe he had notice of the true furrender ; and when a man is ad- mitted, he is in by the furrender. Sed qucere. coppDoiD tmmts. 227 quaere. Where it is faid, that if the pre- ^ ientment differ in points material from the liirrender, that there the admittance, pre- fentment, and furrender, are all void : It feems this muft be underftood, if the time for prefefiting the furrender be part: j for if there (liould be a prefentment and ad- mittance made contrary to the furrender, fure this will not make the furrender void before the utmoft time allowed by law for the furrender's being prefented; for it is no reafon to fay that becaufe the pre- fentment is void, that therefore the fur- render is void; for the furrender depends not on the prefentment, though it may be void, becaufe not prefented, but not be- caufe ill prefented. So that if after fuch ill prefentment and admittance, there ihould be a good prefentment and admit- tance, it fcems the furrender and all the other adts will ftand good. ji. copyholder in fee, furrenders to the do. EI. 442. ufe of himfelf for life, then to his fon ^ ' ' ' for life, then to the ufe of his laft will ; the fon dies, then the father furrenders to the ufe of J. S. in fee; adjudged that notwithftanding the furrender to the ufe of one's laft will, the eftate remains in the copyholder, and he may furrender it in his life-time to whom he pleafes. Z It 338 £>f CttftOmatp, Sec. « Rol- "Abf. It is faid In Roils, that if a copyholder ^ ' makes a deed of feoffment, with letter of attorney to make a livery, it is a for- Co. Lit. 59. feiture, though no livery be madej (^fecus, if there had been no letter of attorney to make livery) ; for by giving the letter of attorney he hath manifefted the determi- nation of his will, having put it in the power of another perfon to pafs the eftate j but when he hath referved that power to himfelf, he may choofe whether he will pafs it or not. T H E THE TABLE. Abator and Abatement. THOUGH the rnulier abates (after de- fcent) the ifllie of baftard eign has both the right of pofTeflion, and the right of Propriety, Page 3 1 For the law cafts the freehold on the iflfue be- fore his entry, or before the rnulier can abate. 3 1 So the entry of the younger brother does not abate the elder brother's right. 2 8 Nor can the pofleflion of the heir be abated before he is adually poflefled. 45 Nor fhall the heir have trefpafs againft the aba- tor before entry. 45 Where a warranty attaching on the heir, bars him againft abators, intrudors, ^c, 135 See aljo Baftards, Diffeifors and, Entry. Abeyance. On a leafe for years to A. with livery, remain- der to Ah right heirs, the freehold is in abeyance, ^c. and the remainder void. 97, 9S Z 2 And The TABLE. And fo if limited by way of ufe executed, ^c, for the freehold cannot reft in abeyance cr cxpedlancy till the tenant for years dies. P^ige 98 If tenant in tall be dilTeifed, and releales to tl^ dilfeifor all his right, this is faid to put the eftate-tail in abeyance, ^c. 127 Parfons feifed in right of the church, had only eftates for life^ and the freehold was in abey- ance, no, £^f. See Bifhops. Actions. Aftion ought not to be above once for the fame thing. 48 But feveral adlions may be for different rights. 48- See title Courts. Admittances to Copyholds. Admittances ought to be according to the fur- render, ^c. 192, 193 The admittance of tenant for life, is of him in remainder, ^c. 163, 194 If copyholder in fee furrender to the ufe of A, for life, on Ah death he may enter without any new admittance, or paying any fine. 194 But generally a fine is to be paid to the lord upon all admittances. See 195. A. iurrenders to the ufe of B. who before ad- mittance furrenders to the ufe of C. who is admitted, yet nothing vefts in him, ^c. and The TABLE. and the admittance of C. was not the ad- mittance of 5. Page^ys And after C.'s admittance, yet B. may pay the money and be admitted, re-enter, ^c. 276 But an heir may furrender, ^c. before admit- tance. 276 If land of nature of borough Englijh be fur- rendered to one and his heirs, who dies be- fore admittance, the younger fon (hall be admitted, becaufe of the word heirs. 288 If a cuftom be to furrender out ot court into the hands of two cuftomnry tenants, a fur- render to the heir of a copyholder before his admittance, is good. 287 An heir during nonage is not bound to pray admittance, or tender his fine. 286 See the form of an admittance, and by what words en tred, 6?r. 284 And the doctrine of admittances, ^c. 275 to 289 §uj?}'e. Whether admittances may be by im- plication. 280, 281 How to compel the lord to admit. 186, 187 For fines on admittances. Seejitk Fines. Agnati find Cognad. See their difference. 5, 8 Alienation of Feuds, ^c. Originally not to be without the lord's licence. When liberty thereof given in three cafes. 51, 52 Z 3 TwQ The TABLE. Two manners of alienations ; by fine in open court, and by feoffment, coram paribus. Page loi But no alienation without fome ad of notoriety. 102 See Attornment and Livery. Tenants in capite, not to forfeit for alienation. Allodium. Oppofite to feudal property. 2 It gave birth to gavelkind (^) 2 Prevailed much in the Saxon t'lmei. 2, 51 Affifes. When and for what end invented, ^c. 48 An aflife and writ of entry of like nature, and bar each other. 48 Money given as attornment, will not found an aflife of rent, ^c. Bg Attornment. What it is ■ Derived from the feudal law. 8 1 The reafon why inftituted, ^c. 81, 82 Why continued after alienations became free. 82 Makes no difference or variation from the ori- ginal grant. 82 Secret attornments not coram paribus, how in- troduced. 91 Where rights mull pafs by grant and attorn- ment, y^ 'Till The TABLE. 'Till attornment nothing pafles by the grant. Page 83 In what cafes, and how, and to whom to be made. 83 It muft be made during the grantor's life. 89 He that owes the fervices muft make the at- tornment. 84 On grant of a rent-charge or feck, the tenant muft attorn. 85, 86 If the lord grant the fervices to the tenant for life, the remainder man muft attorn. 86 Where attornment pafles the fervices, or not. 88, 89 Why tenant for life muft attorn on grant of a remainder in fee. 90 Where the attornment of either tenant for life, or years, is good. 90 Where the tenant Ihall be compelled to attorn, or not. 103 Where one may be forced to attorn to his enemy. ^ 93 On a devife there needs no attornment. 104 Eftates pafs by fine, ^c. before or without at- tornment. 99 Leflee for twenty years leafes for ten, the fe- cond muft attorn to the grant of him in re- verfion. 94 So where one leafes for life, and then grants the reverfion for life, t^c. 94, ^S Where tenant in fee grants an eftate for life, &c. he muft yet attorn on the lord's grant of the feignory. 84 Otherwife, if he grants for life, the remainder in fee, there the tenant for life muft attorn. 84 Z 4 Where The TABLE. Where a remainder is granted for life, if the tenant in pofleflion has not attorned to him, he cannot attorn to him in the reverfion. Page 84 Where the difleifee cannot attorn to the lord's grant of a rent. 86, 87 Attornment of one jointenant is good for the whole land. 89 They may releafe to each other without attorn- ment of the tenant. 9a See title Feuds and Livery. Averment. Ko averment lies againft one's own a<5t or mat- ter of record. 1^0 Avowry. See Lord and Tenant, and goS. Baron and Feme. Where the hufband is feifed in her right, he has the right of pofleflion, and flie the right of propriety. 108 And (formerly) if he had aliened it, flie was put to her writ of right. 108 For he could comrnit no difl'eifin on her eft:ate, ^c. 109 Therefore the law afterwards gave her a cut in 'vita. 109 And now by 32 //. 8. flie has an a6bual entry. 109 Marriages fl:ridly obferved by the old Germans^ (s'c. before Chrifl:ianity. 108 Baftard The T A B L E.. Baftardeign, (^c. Baftards excluded from feudal fuccefTions, and why. Page 20 Reafons why baftardy is not to be alledged after the parties death. 30 Subfequent marriage legitimates them by civil and canon law, but not by the feudal or our law. 30 Yet their perfonal defe<5ls die with their perfons. And entry of the ilTue of baftard eign gives a right both of poflefllon and propriety. 30 But where mulier has entred, his re-entry gains only a right of pofleflion. 31 Nor in that cafe (hall his ifllie in venire fa mere inherit. 3 1 Yet if mulier abates, ^c. the iflue of baftard eign has both rights. 3 1 And though the mulier be an infant, yet a de- fcent to the iflue of baftard eign bars him, 32 Battail. Trial by battail, how introduced, and the rea- fon of its pradlice. 152 When, and on what occafion, it came to be difufed, t^c. 48, 49, 109 None but freemen to be the champions therein. Who to find the champions. 148, 151 Bifhops, The TABLE. BIfhops, £s?f. Bifiiops, Abbot, ^c. how feifed in right of the church. Page log^ no See and note the hiftory of their encroach- ments, no lo 1 20 And fee title Difcontinuance. Church, Church- Lands, ^c. See the hiftory of the church*s antient ftate and revenues. no to 120 A fuccefTor gains no right of pofleffion where the predeceflbr had none. 36 He pays no relief, ^c. for thofe lands are free alms. 36 See alfo title Bifliops, ^c. Claim and Non-Claim. See the difference between claims of rights, and claims of liberties. 39 Where non-claim within a year and a day is laches, or not. 40, 42, 43, Qc. See title Laches. ^ Confirmations. A confirmation defined and explained. y^ Does not regularly create any eftate, (^c. 76 Wherein it difi^ers from a releafe, ^c. y^, yy If for an hour, it confirms an intereft in fee. 76 3b The TABLE. So if to the difleifor*s lefTee for part of the term, it confirms the whole term. (^) Page y6 (Contra, If for part of the term, and no longer. See y6.) Yet a confirmation to tenant for life, does not extend to him in remainder. yy And qu,!ere, if a confirmation to one difTeifor fhall enure to both. yy Where it fhall be explained by the habendum. 77» 78 A' bare confirmation of one join tenant to the other, makes no alteration. 78 Othcrwife, if iht habendum gives the fole eflate. 78 So a mere confirmation to tenant for life, and his heirs, does not enlarge the eflate. 78 Othcrwife, if it be habendum the land to him and his heirs. 78 How a confirmation may amount to a new grant. 79 The lord by confirming the eflate, does not pafs his right in. the fcigniory. 80 But a releafe of all his right extinguifhes the feign i or y. 80 The lord's confirmation may abridge the te- nants fervices. 8 1 iBut cannot enlarge them, or create new. 8 1 Confirming a villein to one who had him in .pofTeffion, paffed nothing. 80 Coparceners. One coparcener's entry preferves the other's leftate, 29 Contra^ TJie TABLE. Contra^ If one of them dilTeife the other. Page 29 See title Jointenants. Copyholds, ^c. They are eftates at will, and villein tenures, ^c. 155, 156 Wherein they differ from other eftates at will. They cannot be transferred but by furrender, ec _ 157 How they are created and guided. 260 Their defcent guided by the rules of common law. 158 Ergo they fhall not go to the half-blood. 158 And there fhall be a pojfejjio fratris to make the filler heir. 161 Alfo the heir is in poffefllon, and may enter, ^c. before admittance. 158, 163 And by his poffefiTion has a defcendable eftate in him, 159 And as he reprefents his anceftpr, fo does his heir. 159 But has no power to difpofe, ^c. until aftual pofleflion, ^c. 159 And he that claims (by defcent) mud: be heir to him who was laft fo poffefied. 160 But copyholds in other refpeds do not partake of the nature of freeholds. 1 60 For they are not aflets in the heirs hands. 160 Nor do they carry dower, or a tenancy by cur- tefy 1 60 Nor fhall a defcent take away an entry,- €^r. 160, 161 Nor The TABLE. Nor (hall be taken in execution by elegit, ^c. (^) . P^g^ 183 In what cafes they may be entailed or not. 165, 175 Where they have been ufually granted in fee, a grant to one in tail, or for life or years, is good. 194 Where a copyholder, or his leflee, may main- tain ejedtmenr, or not. 213 /^ 2 1 5 What are difcontinuances of copyhold eftates. 189 to 193 How entails of copyholds may be avoided. 174, 298 The particular tenant holds of the lord, and not of him who created his eftate. 173, 1 74 By what means they may be extinguilhed or deftroyed. 221, 222, 223 What are forfeitures of copyholds, or not. See 224/0243 Refcous and Replevin are forfeitures. 243 Forfeitures for treafon, felony, outlawry, ^c. ForWafte, videWa^e, 240, 241 Where forfeiture of part extends to the whole. 216, 217, 246, 247 Who to take advantage of the forfeiture. 240, 244, 245 Where prefentment is necefTary to make a for- feiture. 231, 246 On an entry for a forfeiture, the lord Ihall have the emblements. 249 Where forfeitures are difpenfed with or purged. 247, 248 A fucceeding lord (hall not take advantage of a wafte done in the time of his predecefTor. 249 If The TABLE. If tenant for life furrenders to the ufe of another in fee, it is no forfeiture. Page 191 Where non-appearance at the lord's court is a forfeiture, or not. 229 Surrenders of copyholds how to be made, ^c. See 191, 251, 252, 300 The effed of furrenders in general. 190, 252 to 266 The operation and effe6t of fpecial furrenders to ufes, &c. 254 /6 The diffeilec's releafe to the diffeifor's leflee, enures to him in remainder. 85 No difleifin (properly) of a right, but of the poflclTion. 104. Ergo^ cannot be of a reverfion while my tenant is in poITeffion. 104 A a And The TABLE. And his attornment does not ouft me of my right. Page 104 For the wrongful payment of the tenant fliall not deveft my right. 104 And on a difTeifin of the demeans of my ma- nor, the fervices are flill in me. 1 04 Where diiTeifees may enter into the demeans, or diftrain for the fervices. 104 *Till a right of polTeflion is gained by defcent, the diffeifee may re-continue. 106 A difTeifee (diffeifor) having pofTeffion, may take a releafe of the right. 117, 118 If the difTeifee difTeifes the heir of the diffeifor, he thereby gains no right. 131 No dilfeifin (properly) of a copyhold, ^c. 306, 309, q^u<£re 193 Diftrefs. A didrefs Brll: Invented, that the land might not be feifed for a neglect of fervices, ^c. See alfo title Dcfcents 6 Donatives. They are a part of the king's Regale. 1 15 Dower. Dcs and Dower, what it is by the civil law, ^c. 107 How introduced by the feudal law. 1 08 A reverfion after dower only a naked right. 27 Alfo The TABLE. Alfo the wife 'till endowed has only a naked right. Pcge 26 The dower (or endowmenr) is the wife*s own a6t. ^UTC. 26, 27 Emblements. The lord to have ihem on his entry for for- feiture of a copyhold. 249 How emblements (hall be difpofed. 307 Entry. What it is. See ^g. Antiently made coram paribus^ ^c. 39, 53, 83, 91, 100 Where it is not toll'd by a defcent. 24, 25 Difference between a right of entry, and a title of entry. 26 Entry of younger brother does not abate the elder's right. 28 But it generally abates the elder brother's pof- feflion. 29 The entry of infants, feme coverts, ^c. is not barred by a defcent. 32 Where an entry is toll'd, the mean profits are alfo. 46 Why entry is toll'd upon a difcontinuance. 117 Wherean efcheat doth not take away entry. 25 An entry and a claim by the feudal law are the fame. 39 Threats, violence, ^c. will e.xcufe an entry, ^c. 40 N^te-, No adual entry is till poirelTion. 45 A a 2 See The TABLE. See Copyholds, Difleifin, Emblements, Feoflf' ments, ^c. Efcheats. See Entry and Feuds. Eftates. If eftates are in pofleflion, no livery is required; and if in reverfion no attornment. Page 104 Copyhold edates how created, and by what rules guided. See Copyholds, and 258, 260 Fealty. Feahy Infeparably incident to a feud, draws with it wardlhip, marriage, and relief. 8^ 98 Felony. Of forfeitures thereby. See Copyholds, and 240, 241 Feoffments. Feoffments, and entries, thereon anciently vci2idz coram paribus^ ^c. 39, 53, 83, 91, 100, lOI If a difleifor enfeoffs on condition, and the feoffee dies feifed, his heir gains a right of poffeffion. 33 But an entry for the condition broken, deftroys the eflate. 28, 38 When feoffments (private) begun not to alter the right of poffefllon. 43 Feoffments fecret prove mifchievous. 49 Feoffment The TABLE. Feoffment of a feud pafled nothing *tUl livery (or attornment). Page 83 Nor could feudal feoffments be defeated with- out a6ls of notoriety. gz Why tenant for life or years by re-entry, can- not defeat the whole feoffment. 92 So if either recovers in an adife or eje^lmenr, 92 Leafe to A. for years, widi livery, remainder to y^.'s right heirs, is a void feoffment. 107 See the ancient manner of conveying by feoff- ment. 100, 10 1 All feoffments had anciently a warranty an- nexed (expreffed or implied). 117 "Where a feoffment with warranty bars the iffue in tail, or nor. 127, 128 Where tenant in tail enfeoffs his heir of full age, and dies, the heir mult hold by fuch feoffment (only). 130 Feuds, or Feods. What a feud is, and of the vaffals rights there- in. I And how it was obtained and enjoyed. 2 At firft it was very unfettled, and how it be- came certain. i, 2 The lords at firft entitled by election, ^c. and the tenants meerly at will. i, 2 After made certain, for years, life, or in fee. 2 A feuJal property or tenure, and allodium ar-s oppofite, 2 The difference between them, and that the former gave birth to gavelkind. 2 A a 3 The The' TABLE. The divifion of feuds into hereditary, or for life. Page 2 2dly, Nobile or military, 6? ignohile or villein. 12 3dly, Novum ^' antiquum. 17, 18, 19 Feudal fuccefiions, how introduced. 10, 11 Why at fir ft it paffed to the eldeft male. . 1 x And he to be married with the lord's confent. II To go to all the defcendants of the donee, of the whole blood. 12, 13, 14 But thofe of the half blood were excluded, and why. 13, 14 And fo were the ifTue of a fecond marriage. For the lord had only the firft marriage. 14 The father of the feudatory was excluded, and why. i7» ^^ And fo were baftards. See the reafon. 20 Where it fliall go to the uncle. 17,' 18 Seifina facit ftirpe't}]^ a rule therein. 14 And lb fojje[Jio fratris facit [or or em ejfe hieredem. How to make claim thereto. 13, 14 Where to be -per for mam doni. 1 5 How efcheated, and how forfeited. 17, 37, How re-eftablifhcd when broken or divided. 12, 13 Not alienable without the lord's confent, and why. S^ Nor transferred without the tenant's attornment. Si Feuds, when confidere-i as a civil right. 48, 49 Originally The TABLE. Originally created by grant, ^c. but now fub- fifting only in prelcription. P^gei^^i ^34 Feudal tenants would not attorn to a new lord without a new warranty 134 After ^/^ emplores, conveyances with warranty had all the effefts of feudal contracts. 134 I ft. It repelPd the warrantor and his heirs from claiming the land. 134, 135, 151 2dly, The warrantor might be vouched to de- fend the land, Sc. 138, 153 gdly. The tenant of the land might have a warrantia chartie, ^c. 138, 153 Fines. Fines, why fo called. 100 How and upon what motives originally intro- duced. 102 It pafTed nothing but what the grantor could feize. 103 It pafles the eftate before (or without) attorn- ment. 99 And the grantee Ihould have ward (hip, or en- ter for a forfeiture or efcheat before it. 99 But could not diftrain or have adion of wafte, ^c, 1 00 Or a writ of entry ad co?nmtinem kgem^ or in confimili cafu^ ^c. 100 But what the lord might feizs (as heriot, ward- fhip, Sc) he might take before attornment. 100 Antient manner of conveying by fine. 100 Fines for alienation, how they caiVie to be dif- ufed. 50, 52 For Copyhold Fines, fee Copyholds. A a 4 Forfeitures. The TABLE. ^forfeitures. See Copyholds and Feuds. Gavelkind. That it proceeded from the Saxon AUodium. Page 2 Grants. To be taken mofl ftrongly againfl the grantor. Where a confirmation may amount to a new grant. 78, 79 Of grants by the words dedi^ concejji (^ con- firmavi.) 79, 80 Grant of rights of pofTefTion and propriety fe- verally. y^, 80 Where grants pafs nothing 'till attornment, ^s^ 86 Grant of a feigniory, how and by whom. 87, &8 Habendum. Of hahendums explaining the manner of cor?- firmations. 77 Of habendums in copyhold grants. 250 Hariot. When payable, and to whom. ^6 Heirs. Where (ha* word is necefTary in grants of he- reditary feuds. 2, 72, 74, 76 Where. The TABLE. Where it is a word of limitation or of purchafe. Page 7.6'^, 272, 288 See the words Heirs of his Body expounded, 271 A relief is to be paid by the heir of a difleifor. 24 The heir, notwithftanding dower, has the free- hold in him. 26 Yet his reverfion after feems only a naked right. The heir of a difTeifor who died quietly feifed, gains a right of pofTefTion. 3.7 If a difTeifor dies feifed, though within a year and day, yet if no entry be, it gives a right of pofTefTion to. his heir. 43 Homage, and Homage AnceftreK Of the vow or profefTion of homage to the lord. 96 See the nature and efFed: of that and homage anceflrel. 14.7, 151 /^ 154 The lord of the homager was obliged to defend his tenants pofTefTion by plea or battail, and to find him a champion, ^c. 147, 148 And fuch tenant was bound to defend his lord by his body, ^c. 151 That fuch homage had warranty annexed to it. 151 See the effefls and operation of fuch warranty. 151, 152 And title Feuds. Seealfo 133, 134 Infants. The TABLE. Infants. "Where their entry is barr'd by a defcent. Page An infant diffeifor gains only a naked poffeflion. 33 So if he aliens, and the alienee dies feifed, ^c. .33 And if he recovers, ^c. he is ftill a diffeifor. 33 Vide infra laches. Infranchifement. 2 10 Join tenants. Attornment of one paffes all the eftate. Zg If they leafe for life they may yet releafe to each other. 92 And that without any attornment of the te- nant. 92 King. The king is guardian of the fpirituahies tem- pore vacationis. 1 1 2 He may ereft and endow donatives, ^c. lis Of the king's courts, ^c. See Courts. Laches. A laches is not to be fuppofed in infants, feme coverts, (^c, 32, 131 A laches of year and day is founded on the feudal law. 40, 41. 5^^ 28 Leafes, The TABLE. Leafes, ^c. Though a leafe is a covenant real, yet the leffee is only bailiff for the leffor. Page 34. See 54 And the difleifor and his heir is bound thereby. 34 And the leflee's entry before a defcent revells the freehold in the leffor. ^^ Livery. How, and In what manner to be made, coram paribus, ^c. ^^, 40, S^, 84 'Till livery nothing paffed by a grant of the feud. 8^ Both livery and attornment antiently made, coram paribus, 84 Leafe to yf. for years, ^c. with livery, re- mainder to his heirs, is a void fee. 97 See alfo Attornment and Feud. Lord and Tenant. {See Avowry and Copyhold.) Lords and tenants of feuds, their reciprocal and relative duties. i, 81, 82 And fee the reafons of thofe relative duties. 151 The lord's confirming the tenant's eftate does not pafs the feigniory. 7^ But by his releafing his right he extinguifhes the feigniory. 80 How the lord may abridge or enlarge the te- nant's fervices. 80 He The TABLE. He could not pafs over his tenants without their aflent by attornment. Page 8i The tenant's attornment cannot vary the lord's grant. 82 "Where the lord may avow on a diffeifor or a ftranger. 1 1 8 The free tenants of a feudal lord were to be his champions. 151 See Battail. Lords of manors, their authority and power. 183, 193, if)6 to 212, 250 What a dominus pro tempore, or other contin- gent lord, may do. 197 to 209 The lord himfelf may make admittances, grants, ^c. off" from the manor. 216. See 250, 251 But it is faid a fteward muft do it within the manor. 216, 250 Yet it feems a fteward, efpecially impowered, may do it. 216, 250 For other duties of a fteward. 216, 2c,oand 313/^320. Manor. Where the grant of a manor will pafs leafts for years, but not for lives, ^e. 105, 106 A cuftomary manor may be held by copy of court- roll. 215 The lord but not the fteward may make ad- mittances off" from the manor. 216, 217, 250 A court- baron cannot be held off fiom the manor, 216, 217, 250. Marriages. The TABLE. Marriages. See Baron and Feme. Maxims, Affe^io imponit nomen open. Page 44 Arbitrio domini res ajlimari debet. 239 Homagium repellit perquijjtum. 134, 152 Matrimonium fubfequens tollit reatum priccedens, 29 Nemo pot eji ejfe tenens 65* dominus. 152 Nemo plus juris dare pot eft quam ipfe habet. 206 Pojfejfio fratris facit for or em eJfe haredem. 1 5 ^lantum tenens domino tantum dominus tenenti debet prater folam reverentiam. 151 Seifuta facit ftirpem, ^c. 14 Uunumquodque folvetur eo ligamine quo ligalum eft. ' 68 Non compos^ ^c. Their entry not barr'd by a defcent. 32 None can ftultify himfelf ; how he may be re- lieved. 32 Of the cuftody of a lunatic and his lands. 307, 303 Notoriety. What ads of notoriety are neceflary in attain* ing, pofleffing or transferring of feuds. 39, Entry is a notoriety. 122 So is livery and attornment, and muft be made coram paribus. ^^^ 40/(743 Occupant. The TABLE. 1 Occupant. Of a fpecial occupancy. Page itg f Outlawry. What forfeited thereby. 24^ Perpetuity. None where the contingency is during a life. 98 Pofiefiion, and Right of PoffefTion. A right of poflefiion, what it is, ^c. 84, 126 Of a naked pofTefTion, and how turned to a right. 22 When a naked poffelTion defcends on the heir, it makes a right of pofleffion diftinft from a right of propriety. 26 How dower avoids the poflefiion of the heir. 27 •Till endowment the wife has only a naked poflefiion. 27 PoflTeflion of the younger brother is poflefiion of the elder. 28 i. e. 'Till fome aft done that manifefts the contrary. 28, 29 Where the entry of the younger brother de- fliroys the poflefiion of the elder. 29 No defcent or a6t of law tempore dome fi id belli gives a right of poflfeflion > conlra if in time of a foreign war. 35 I " No The TABLE. No poffefiion could pafs by the feudal law, but coram paribus. Page 1 1 8 But a difleifor that had the pofleflion might take a releafe of the right. 1 1 8 And when the poflfeflion and right are feparated by the difleifin they are united by the re- leafe. 53 Note ; A difleifor has the naked pofielTion, his feoffee an adlual or colourable poflefTion, and the heir the right of poffefiion. 50, 53 See the effedt of a naked poffeffion diftindt from a right of poffeffion -, and of a right of poffeffion diftinft from a right of pro- priety. 129, 130, ^c. See title Rights. Propriety. See Poffeffion and Rights. Releafe. A releafe is a conveyance of a right to him in poffeffion, l^c. ^'^ So that a releafe unites the right to the poffef- fion. c,-^ Wherein a releafe differs from a feoffment. 53 To whom the releafe is to be made, and what may or may not be releafed. 54 It mud be to the tenant of the freehold, ^c. 54 A poffibiiity cannot be releafed. 54 But a freehold in law may. 54 Four kinds of releafes operating four ways, 55 I ft, By transferring the right. g^ 2dly, By extinguifliing the right (or eftate). 6'^ 3dly, By enlarging the eftate. 69 4thly, The TABLE. 4thly, By transferring the eftate. Page 72 A releafe cannot be to the leflee of a diffeifor, becaufe a ftranger to the freehold. 76 A releafe to tenant for life enures to him in re- mainder. 86 But not the releafe of the feudal lord to his tenant for life. Jointenants may releafe to each other, fans at- tornment of the tenant. 92 Tenant for life, and remainder for life, he in reverfion may releafe to him in remainder. . . 92 Releafe by a diffeifor to tenant in tail, works no difcontinuance. 117, 118 Nor does it pafs any right of poffeffion, and why. 118 ^(gre^ What eftate a diffeifor has by fuch re- leife. 1 1 9 A bare releafe to a diffeifor paffes only a right. 120 But a releafe with warranty works a difconti- nuance. 1 2 i Where a tenant in tail releafes to a diffeifor, puts the tail in abeyance. ii'j Remainder. What {hall be a contingent remainder, ^c. 98 Where a remainder man in fee releafes to the tenant for life, it does not deftroy the re- mainder J contra if the remainder bt in tail. 127, 128 Remitters. The TABLE, Remitters. A remitter is the reftitution of an old title, and not the acquiring a new one. Page i^i The foundation and reafon of remitters. J29, 130 Where the difleifee takes back only a naked poffeffion, he is remitted. 129 Contra, if the difleifor transfers it back for lifa or years by deed, ^c. 129 And where the proprietary takes back the eftate by deed, &c. he is not remitted. 131 Conlra, where the right of polfefllon is caft upon him by law, or where he comes to Ic by feoffment under age, or during cover- ture, ^c. 131 A feoffment or eftate for life or years, or on condition to an infant or feme covert, that has right of propriety, is a remitter. 132 Rights. A naked pofTeflion is no right. 2 r How a diffeifor may acquire a right. 22 Where a defcent creates a right of poffeffion. 21 /c 23 The difference between a right of poffeffion and a right of propriety, 22, 23 But on a feoffment on condition the feoffee has both, till the condition broken, and an en- try thereupon. 25, 26 None by his own wrong can give himfelf a right. 28, 34, 131 B b There- The T A B L E. Therefore the difleifee, dificifing the heir of the dififeiror, gains no right. P^^^ 131 Where a right of poffeffion may, or may not be acquired, tempore belli. 35 A fucceffor gains no right where the predecef- for had none. -^S A righr of propriety in the Saxon times only recoverable in a writ of right. 47 He who has pafied his right cannot impeach the eftate. 79 The eiT>6b of a right of pofleflion diftinft from a right of propriety. 129, 130, &V. A right of poffeffion cannot be devefted but by an elder title. 131 If a proprietary re-obtains the right of poffef- fion by agreement, he muft fo hold it. 130 Seigniory. When, how and by whom it may be granted. ^7. 88 Services. Of knights fervice, and focage fervices. 105, 106 The fervice of one man*s body not to be per* formed by another's body, without the lord's affent. 52 Where diffeifees may diftrein for fervices. 106 See Piftreffcs, Fealty, Homage. Statutes. The TABLE, Scatutes. General rules for expounding ftatutes. Pnge 164, 177 No general words fhall prejudice the king or lord of a manor, ^c. 164, 177 Where general words fhall be extended to co- pyholds, or nor, 164, 177 See the following particular ftatutes explained. lOI Magna Charta Prarog. Regis. 85 De Bigamis. 139 Marlb. c, 20. of entry in le poft. 49 Glouc. c. I. of damages in difleifin. 85 Glouc. c. 3. reflraining Noie\ Since ^lia emptoreSy warranty has been frequent in conveyances. 134 Statutes extending or not extending to copy- holds, viz. tenants by curtefy from warranty. 141 fVefi. 2 . Dc donis cond. 103, 104,109,142, 165 32 H, 8. c. 28. of en- tries. 109 ^ia emp tores 52,85,95 Copyholds are within 32 H 8. e.g. againft IFeJt. 1. De donis cond. Champerty. 1 84 165 to 171 2 Ed. 6. c. 8. of tra- 13 £/. f. 10. of Deans verfes, 186 and chapters lands. 5 EL c. 14. of recu- 179 fanrs, 186 Weji. 2. f. 3. per tctum. 2g El. c. 5. of recu- 184 fants. 188 B b 2 But The TABLE. Bat are not within 11 H.y. c. 20. P.181. zy H. 8, c. 10. of join- tures. 182 27 //. 8. c. 10. of ufes. 184, 255 31, 32 H. 8. of parci- tionSj 185 IFeJl. 2. ^.18. of ele- giis. 186 Nor I Ed. 6. c. i^.^c. mentioned. Pagei%6 Nor32i:f. 8. c. 28. or r.38. 178,187 Nor 31 El. c. 7. of cottages. 1 85 Nor the ftatyte of li- mitations. 178 ^^r^ of other ftatutes 163, 164, 179 Surrenders. See Copyholds. Tenant, ^ee Attornment, and Lord and Tenant. Treafon. Of forfeitures thereby, ^c. 240, 24; Trees. See Wafte. Trefpafs. Lies againft a difleifor for the entry, ^c. but not for the mean profits till the difleifee'^ entry. _ 45 For though one has the freehold in law in him, yet he cannot have trefpafs before entry. 45 None can be a trefpaflbfj on whom the law cads the poffefiion. 4$ •Trefpafs lies againft the feoffee of a difleifor, i. e. after entry. 46 Xt The TABLE. It lies by a copyholder againft his lord. Page So by a feudal tenant, if his lord fubjed him to another without his confent. 93, 94 Trials. See Battail. Vaflals. See Feuds and Lords, ^c. Wards, (^c. "Wardfhip, marriage and relief. See 88, 96, and Feuds* Warranty. What it is, and whence derived. 17, 18, 120, By what words created, ^c. 139 When introduced, and for what reafon. 18, 134, ^c. Whom it binds, and the confequences thereof. 120, 133 to 151 All feoffments had anciently warranties annex'd. 117 And a recompence was always prefumed. 141, 148 The three effefls of warranty anciently. 135 to 142 It repell'd the warrantor's claim, it obliged him to defend the land, ^c. and (if by battail) to find a champion. 120, 135, 138, 148, Where a feoffment with warranty bars an en- tail 126 Warran- The TABLE. Warranties at common law of two forts. Page 139, 140 Viz. Warranties commencing by diffeifin, and binding warranties. 139, 140 Of binding warranties, feme are altered by ftatutes. 140, 141, ^c. After the ftatute ^ia emplores, exprefs war- ranties were frequent in conveyances. 134 For the feudal tenants would not attorn with- out a new exprefs warranty. 134, 154 The ftatute De donis occafioned the dirtin(5tion of lineal and collateral warranties, it barring only by the former, (^xre.) 141, See 142, 143 Where lineal and where collateral warranty is a bar or not. 142 to 147 Who might be barred thereby, ifiue male or female. 146, 147 Where the anceftor devifed lands devifeablc with warranty, fuch warranty was no bar. 149 Three reafons thereof. 149 Where one had warranted land in fee, and then took back an eftate for life, i^c. that did not deftroy the warranty. 149 Note ; A warranty may be releafed, or it may be difcharged by attainder of the warrantor. 150 See alfo Feuds. Warrantia Chartas. See Writs. Wafte. What is wafle in copyholds. 130 to 13^ Of wafte in cutting trees, ^c. 130 to 137 Waftc The TABLE. "Wafte voluntary or permiflive is a forfeiture of the copyhold. Pagei^S^ 237 What wood or trees the copyholder may take, and what the lord. 134, 135 Where one may have wafte, ^c. although the eftatc is in abeyance. 127 Words expounded, ^c. Cakmvia. 39 ; Heirs, Sc 268 Clameum 39 Confirmavi. 79 Dedi and Conceffi. 79 Difcontinuance. 107 Dos and Dower. 26,2 7, 107 Feudum or Feodum 1 Laches. 40, 41 Prabendum (£ Praben- darii, 114 Solummodo. 326 Stirpes S capita. 7, 8, 9 Vetidicatio. 39 Guer. & IVar. Sc 133 | Warranty. 133 Writs. A writ of right in the time of the Saxons^ the only way to recover a right of propriety in lands, and why it was difufed. 45, 46, ^c. See 117 Of a writ of warrantia charta. 18, 117, 138, 153. 154 A writ of poffelTion to recover a right of en- try. 46, ^c. A cui in mita was" not anciently known. 47 See 108 Of writs of entry, and of aflizes. 47 Of fummons, Grand cape and Petit cape. 47 Writ of entry when allowed inftead of battail. 49 Writ of entry in the Pofi given by the ftatute of Marlb. 49 Of a ^id juris clamat. 99 Of The TABLE. Of writs of entry ad communem legem & in con' fimili cafu, ^c. Page gg Of a wric of ward, and of cuftoms and fer- vices. 99 Year and day. What is laches, or nor, on a non-claim within a year and day. 40, 41, 42 If the difieifor dies feifed within the year and day, and before entry of the difleifee, it gives a right of pofTefTion to his heir. 43 See title PoffefTion and Right. F I ■1 Jufi puhlified in one Volume^ Folio, Sold by D. Browne, J. Shuckburgh and J. WORRALL, REPORTS of Cafes in the Court of Exchequer, from the beginning of the Reign of King George the Firft, until the fourteenth year of the Reign of King George the Second. By Wi LLiAM BuNBURY late of the Inner Temple^ Efq; taken in Court by himfelf, and publifhed from his own Manufcript by his Son-in-laWj George Wilson, Serjeant at Law. ^ This hook contains cafes in the federal branches of hufinefs in the Exchequer only, viz. upon Informations^ Sei- Kures, Extents r.rJ ether Frocefs, touching the King's Debt> and Renjenue : Aljc Cafts in Laiv and Equity bet-iveen Sub- jeil and SubjiSl. Among ijobich are many concerning TithtSf and other Ecclefiafiical Matters. --€S1'»"»" '/VOJVUUII i' '"^/XUYUUH 3> >- or <: 5i\EUNIVERS"/^ ^lOSANCfU;^ ^l-UBRARY(9/r <^tllBRARYO/ "^/siaAiNn-ittv^ "^^ojiivDjo^ '^JO^ ^WE•UNIVER5■//, yAKCElij> ^^.ISUQNVSOI^^ '^/SiUAINft-mv"^ ^OfCAllF0% ^•OfCAllFOff^ ^lUBRARY6k. .>J0^ ^lUBRARYQ^ § 1 .lUyANLU^j^ o %il3AINn-3\\V .^;OfCAlJFO% ^OFCAUFOftj^ , \WE UHIVERS-//, ^TiUONVSOl^ ^lOSANCElfj> o ■^AWAINflJUV^ AWEUNIVER% ^lOSANCEl£f^ ^^^illBRARYa^ ^nSIUBRARYOc "^fiUDNYSOV^^ '*^Aa3AINn3y\V^ ^OJIIVOJO"^ ■^KAimv-i irv>K' ^ ^TiiaONVSOl^^ ^u.OFCALIFO/?^ ^^,OFCAIIFO% Vt 7=r ^OAaviian^^'^ ^ o ms/A o t: < "^/SajAINftJWV^ ^^lUBRARY u3 ^omyiQ"^ u. 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