Doe v. Danvers, 7 East, 299. Burrell v. Dodd, 3 Bos. & Pul. 378. 8. In a modern case the Court of K. B. held, that where an estate was parcel of a manor, and demisable only by the licence of the lord, passing by surrender and admittance, to which the tenant was admitted by the description of a customary tenant, habendum to the grantee and his heirs, tenendum of the lord by the 7 East, 409. rod, according to the custom of the manor, by the accustomed rent, suit of court, customs and other services; the freehold was in the lord. Brown v. Doe v. 4 East, 271. 9. In a subsequent case, the same court held, that Huntingdon, customary estates, known by the denomination of tenant right, were peculiar to the northern parts of England, in which border services against Scotland were anciently performed, before the union of England and Scotland under the same sovereign. And although these appear to have many qualities and incidents which did not properly and ordinarily belong to villenage tenure, either pure or privileged, (and out of one or other of these species of villenage all copyhold was derived); and also had some which savoured more of military tenure by escuage certain, which (according to Littleton, § 99.) was knight service; and although they seemed to want some of the characteristic qualities and circumstances which were considered as distinguishing this species of tenure; viz. the being holden at the will of the lord; and also the usual evidence of title by copy of court-roll; and were alienable also, contrary to the usual mode by which copyholds were aliened, viz. by deed and admittance thereon: notwithstanding all these anomalous circumstances, it seemed to be now so far settled in courts of law, that these customary tenant right estates were not freehold, but that they in effect fell within the same consideration as copyholds, that the quality of their tenure, in this respect, could not properly any longer be drawn in question. to their Ex 10. There are four circumstances necessary to the Circumstanexistence of a copyhold estate: 1. A manor. 2. A ces necessary court. 3. The lands must be parcel of the manor. istence. 4. They must have been demised, or demisable, by copy of court-roll from time immemorial. 11. With respect to a manor, of which the nature A Manor. has been already explained, it is essentially necessary. Dissertation, For a copyhold estate is parcel of the demesnes of a c. 3. §.32. manor; and held of the lord of such manor. 12. Although the demesnes of a manor be severed from the services; or the services extinct, by which Idem, § 45. the manor is in fact destroyed; yet still it will continue to be considered as a manor, so far as is necessary to support the copyholds held thereof. And it is said Gilb. Ten. that a tenant in dower of a third part of a of a manor, a manor for the purpose of granting copyholds. that court. 209. Golds. 37. 135. 4 Rep. 26 b. 210. 13. As to a court, it is equally necessary; the tenant A Court, having no other evidence of his title but the rolls of 1 Inst. 58 a. There are, however, two different courts Gilb. Ten. incident to a manor. A court baron or freeholder's court; and a customary court, relating only to the copyholders, in which the lord or his steward is judge. And although there should be no freeholders in the manor; by which the court baron, and even the manor itself, is in some respects lost; yet there still may be a customary court. For as these two courts are distinct from each other in every respect, the want of freeholders does not prevent the lord from holding a customary court, for his copyholders. 14. It was resolved in 30 Eliz. that where the lord Melwich v. Luther, of a manor, having many ancient copyholders in one 4 Rep. 26 a. town, granted the inheritance of all the copyholds to Cro. Eliz. 102. Neale v. Cro. Eliz. another, the grantee might hold a court for the copyholders. For though it was not a manor in law, because it wanted free tenants, yet as to the copyhold tenants, the grantee had such a manor, that he might hold a court to make admittances and grants of the copyholds. 15. This doctrine is confirmed by another case, in 4 Rep. 26 a. 37 Eliz., in which it was held, that where the lord of a manor demised all his lands, which were granted by copy for 2,000 years, the lessee might hold a court for the copyholders. 395. Ten. 210. Cro. Eliz. 103. Bright v. Forth, Cro. Eliz. 442. Gay v. Kay, Cro. Eliz. 661. Murrell v. Smith, 4 Rep. 24 b. Cro. Eliz. 252. Clifton v. 16. Notwithstanding these authorities, Lord Chief Baron Gilbert says, there were precedents that such grantee of the inheritance of copyhold lands could not keep a court; no more than the grantee of the inheritance of one copyhold: that as to the case of Melwich v. Luther, it was said, a writ of error was brought, and the justices and barons held the judge ment erroneous. 17. In a case subsequent to that of Melwich v. Luther, where a woman was endowed of several copyholds, it was resolved that she might hold a court, and grant copies, though the services of any of the freeholders were not allotted to her, but only the demesnes and the copyholds. 18. A grant of the freehold of one copyhold will not enable the grantee to hold a customary court. The copyhold will not however be totally destroyed by such a grant: but the copyholder will be excused from all those services that arise by reason of the customary court. 19. It was resolved in 27 Eliz., that if a court was held by a steward of a manor out of the manor, and grants and admittances were there made, it would be void; for the court of the manor ought to be held within the manor. But that by custom the court might be held out of the manor, and grants and admittances made there: as several abbots, priors, &c. used to hold courts at one manor, for divers 1 Leon. 289. several manors; which was held good by custom. 20. When the copyholders are assembled in the customary court, they are sworn to do the ordinary business, and are called the homage. 21. To every customary court a steward is ap- Infra, c. 2. pointed by the lord, whose duty it is to preside in the court, to determine all causes arising between the copyholders, and to take care of the court-rolls. The Lord of a manor may retain a person to be his 4 Rep. 30 a. steward by word only; except in the case of the Co. Cop. Crown. § 45. 235. 22. The steward of a private person may appoint Id. § 46. a deputy under him, whose authority will be as great as that of his principal. In the Earl of Rutland's 2 Brownl. case, who was appointed steward for life of a manor by the Crown, without any words empowering him to make a deputy; it was resolved, that he might notwithstanding appoint an under-steward. For when the Crown granted him the office of steward, he being an earl, it was implied in law, for conveniency sake, that he might make a deputy. 23. Every copyholder has an interest in the courtrolls, as well as the lord, being the evidence of his title; nor can the lord deny him a sight, or copy of a court-roll; to make such use of it as he may think proper. If he objects, the Court of King's Bench will direct it; and if the lord then refuses, an attachment will lie against him. Rex v. 141. Rex v. Lucas, 10 East. 235. 24. The third circumstance necessary to the exist- The Things granted must ence of a copyhold is, that the land or other thing e Parcel of granted be parcel of the manor; for a copyhold is the Manor. 1 Inst. 58 b. part of the demesnes of a manor. It is not however ante, § 12. And demised Kemp v. 1 Leon. 55. Taverner v. absolutely necessary that the lands should continue to be parcel of the manor; as it has been shown, that where the lord of a manor granted the inheritance of all his copyholds, whereby those lands were severed from the manor; yet the copyholds still subsisted. 25. The fourth circumstance necessary to the existence of a copyhold is, that the lands or other thing have been demised or demisable by copy from time immemorial; because this tenure derives its whole force from custom; so that no new copyhold can be created at this day; that is, nothing can be now granted by copy of court-roll, which was not granted, or grantable by that tenure before. 26. Upon issue whether the lord of a manor had granted certain lands by copy of court-roll, according to the custom of the manor; it was given in evidence, that within the said manor were divers customary lands; that the lord lately at his court had granted the lands in question by copy, but they had never been granted by copy before. The Court held that the jury were bound to find, dominus non concessit; for notwithstanding that de facto, dominus concessit per copiam, yet non concessit secundum consuetudinem manerii, &c. For the said land was not customary, nor was it demisable, as the custom had not taken hold of it. 27. Though lands should appear to have been granted by copy for sixty years back; yet if there has been an interruption in that mode of granting them, they will not be deemed copyhold. 28. The bishop of Norwich being seised of the 3 Leon. 137. manor of N. in right of his church, granted in 10 Hen. VIII. parcel of the demesnes of the said manor to one T. and his heirs by copy. These lands |