of the inheritance; and contrary to the nature of an estate for life. In a modern case it was held, that a Mardiner copyholder for three lives, without any power of com- 2 Term R. v. Elliot, pelling his lord to renew, could not cut down timber. 746. 4 Ves. 700. 11. The right of a copyholder to cut down timber Dunch v. is a legal one; where he exceeds or abuses it, he will Bampton, forfeit his copyhold; therefore the Court of Chancery will not grant an injunction, at the suit of a lord of a manor, to restrain his copyholder from committing waste. 12. Lord C. B. Gilbert says, a copyholder of inhe- Ten. 327. ritance cannot, without a special custom, dig for mines; neither can the lord dig in the copyholder's land, on account of the great prejudice he would thereby do to the copyhold. 1 P. Wms. 408. 13. An action of trover having been brought by Ep. Winton the lord of a manor, by the direction of the Court of V. Knight, Chancery, against a customary tenant, for ore dug and disposed of by the tenant; there never having been a mine of copper before discovered in the manor, the jury could not find that the customary tenant might by custom dig and open new copper mines :. the Court of Chancery held that neither the tenant without the licence of the lord, nor the lord without the consent of the tenant, could dig in the copper mines; being new mines. Taylor, Daniel, 14. It was resolved in a modern case, that the lord Bourne v. of a manor, as such, had no right, without a custom, 10 East. 189. to enter upon the copyholds within his manor, under Curtis v. which there were mines and veins of coal, in order to work them; and that the copyholder might maintain trespass against him. Id. 273. Estcourt 15. If a copyholder suffers the buildings to decay, I Inst. 63 a. it is waste; and if a copyholder builds a house on v. Weeks, his land, it is waste to pull it down. Y 3 1 Salk. 186 Gilb. Ten. 235. Copyhoids are descen dible. 16. Copyholds which are granted to a person and his heirs, are descendible, according to the rules of Tit. 29. c. 5. the common law; unless the custom is otherwise, in which case the custom must prevail. Alienable and devisable. Tit. 37. Tit. 38. c. 3. 17. Copyholds do not however in other respects partake of the nature of freehold estates of inheritance. For as they are descendible only by custom, they have not any of the collateral qualities of descent, unless those qualities are also established by the custom. 18. Copyhold estates are not alienable by feoffment, or other common law assurance; but by the general custom of all manors, a copyholder may, by surrendering his estate to the lord, to the use of another, effectually alienate it. 19. Copyholds are also in general indirectly devisable, though not within the statute of wills. 4 East. 271. There are however some customary estates in the north, which are not devisable, either directly or indirectly. 20. A copyholder may by the general custom make a lease for one year; and may, with the licence of the lord, make a lease of his copyhold for any num. ber of years. Lord Coke says, if the lessee be ousted, he shall not sue in the lord's court by plaint, but shall have an ejectment at the common law: because he has not a customary estate by copy, but a warrantable estate by the rules of the common law. 21. In a case of this kind the lessee may assign over his lease, or make an under-lease for years, without any new licence. For the lord's interest is discharged for so many years; and if the copyholder dies without heirs, yet the lease shall stand against the lord, by reason of his licence, which amounts to confirmation. 22. The lord can only grant a licence to lease, Gilb. Idem. during the continuance of his own estate in the manor; therefore a lease for years, made by licence of a lord, who is only tenant for life, will cease at the death of the lord. Debts. Park, R. 190. 8 Ves. 394. Tit. 38. 23. Copyholds are not liable to the payment of Not liable te debts, even of record; nor to debts due to the crown, because if a creditor were allowed to take Budd, possession of a copyhold, it would be prejudicial to Tit. 14. § 79. the lord. Upon the death of a copyholder of inherit- 4 Rep. 22 a. ance, his estate is not assets, in the hands of his heir, Coomber as freehold estates are, for payment of specialty debts. v. Gibson, 24. Copyholders not having the freehold of their Subject to lands, their widows are not entitled to dower. But Free Bench. in most manors in which there are copyholds, there 4 Rep. 22 a. is a custom that the widows of copyholders shall have a certain portion of their husband's lands, for their support, which is generally called the widow's free bench. As this right depends upon the particular customs of each manor, it varies in different manors, both as to the quantity to which the widow is entitled, and the conditions under which it is held. 25. In most manors free bench consists of one 1 Inst. 33 b.. half of the husband's copyhold; in others of a third, or a fifth, in some few of the whole. It is generally 1 Keb. 926. an estate for life; but in many manors is forfeited by incontinency, or a second marriage. Fragm. 26. In the manors of East and West Emborne in Blount Berkshire, the widows of copyholders are entitled to free bench, dum sola et casta fuerint. If a widow is found guilty of incontinency, she loses her free bench; unless she comes into Court riding backwards upon a black ram, and repeats certain words; the same custom prevails in the manor of Chadleworth in Berkshire, and that of Torre in Devonshire.. Howard v. Salisbury v. Hurd, infra. Gilb. Ten. 288. Vaughan v. Atkins, Tit. 37. c. I. 27. Free bench is not only incident to copyhold of inheritance; but also, in some manors, to copyholds granted only for life. 28. Lord Howard being seised of the manor of Stockwood in Dorsetshire, where the custom was, that the widows of copyholders for lives should enjoy, during their widowhood, the customary lands of which their husbands died seised; granted a customary tenement to John Bartlet for life, by copy. It was resolved, that upon the death of J. Bartlet his wife should have her widow's estate in the land, it being an excrescence, which by the custom grew of itself out of the estate. 29. A right to free bench attaches before the admittance of the husband, upon a descent or surrender. But a widow is not entitled to free bench out Tit. 12. c. 2. of the trust of a copyhold. Baker v. 30. Where the widow of the ancestor holds a moiety of the copyhold, as her free bench; the widow of the son will only be entitled to a moiety of the remaining Tit. 6. c. 3. moiety; upon a principle established in the case of dower. § 20. 4 Rep. 30 b. Oland's Case. Cro. Eliz. 31. Where a widow is entitled to free bench, she shall have all the incidents to dower; therefore will be entitled to the same damages as a dowress, under the statute of Merton. 32. Where free bench determines by the act of God, 5 Rep. 116. there shall be emblements, as in the case of a freehold estate for life. Where it determines by the act of the widow, as by incontinency, or a second marriage, it is otherwise. 460. Tit. 3. c. 1. $ 24. Kitch. 123. 33. If the widow be entitled to the whole of the copyhold, as her free bench, she may enter immediately; as the law casts the possession upon her, in the same manner as it does upon the heir, in cases of descent. Where the widow takes a portion only, it should seem that the possession is not cast upon her, any more than in the case of dower at common law. Consequently that she is not entitled to enter, without an assignment. 34. An ejectment will not lie for a third part of a Chapman v. Sharpe, copyhold, as free bench; but the widow must levy a 2 Show. R. plaint in the manor court, in the nature of a writ of 198. dower; and the homage must set out the same. If the custom be for the widow to have a third part, not in the nature of dower, that is, in severalty, but in common with the heir, it is then otherwise. Ten. 173. Tit. 6. c. 3. § 29. Which is barred by a Jointure. 1 Ves. 54. 35. When the widow is admitted to her free bench, Burneford she holds of the lord; and the heir is not admitted v. Packington, during her life: which Lord Chief Baron Gilbert 1 Leon. 1. says, plainly proves that the course of tenure of copyholds is not like that of freeholds. For in that case she should hold of the heir. 36. A jointure, whether legal or equitable, is a good bar to the claim of a widow to free bench, as well as to dower. 37. A man, in consideration of his marriage, and to Walker v. make some provision for his intended wife, by deed Walker, executed before marriage settled upon her, if she should survive him, part of his real estate for her jointure, and in full bar and recompence of all dower or thirds which she could be entitled to, or any way claim, out of any lands, tenements, messuages, or hereditaments, of which he then was, or ever after during the coverture should be, seised of freehold or inheritance. After the marriage the husband purchased copyhold estates, of which the wife got possession upon his death, as her free bench. It was decreed against the widow, upon the principle that |