recovery of the land. It was held that the statutes 29 Ch. II. and 14 Geo. II. did not affect copyholds; for they only extended to estates, by the appropriation of which no persons would be injured. Whereas, if they were construed to extend to copyholds, they would operate to the prejudice of the lord. Customs. 58. As copyholds owe their existence to imme. Copyhold morial custom, so the rules by which they are governed derive their effect from the same source. Hence Lord Coke observes, that what a copyholder 1 Inst. 63 a. may or ought to do, or not do, the custom of the manor must direct. And many of those customs materially differ from the common law. 253. 59. Copyhold customs differ from those which Cro. Eliz. relate to freeholds in this circumstance, that freehold customs must be at least so general as to extend throughout a county; and cannot prevail in a particular place only. Whereas a custom relating to copyholds may be good in a single manor. are 1 Salk 184. Jenk. 274. 60. There are two sorts of copyhold customs; 1. 9 Rep. 75 b. General; extending to all manors in which there Page's Case, copy holders, and warranted by the common law; of Cro. Ja. 671. which the courts take notice. 2. Particular; prevail- An. 1 Leon. ing in some manors only, which must be specially 266. Ball's Case, pleaded. These are construed strictly; where they 4 Leon. 237. are contrary to reason, morality, or justice, or not Thorn v. Tyler, capable of being reduced to a certainty, the courts Co. Sup. § 19. of law will not pay any attention to them. It should Dean and Chapter of however be observed, that the unreasonableness of a Ely v. custom is not altogether to be deduced from the rules 2 Atk. 189. and maxims of the common law for there is no parti- Wilks v. cular custom that does not, in some respects, contra- 1 dict the common law. ΧΩ Warren, Broadbent, Wils. R. 63. Wilson v. How proved. 4 Leon. 242. Doe v. 3 Wils. 63. Roe v. 2 Atk. 189. Copyhold Blackst. Tracts, 213. 61. Lord Coke has laid it down, that there are two pillars of custom; one, common usage; the other, that it has been time out of mind. Therefore the person who maintains a custom, must shew precedents in the court-rolls, to prove the usage: without such proof, and that it had been put in use, although deemed and reputed a true custom, a court would not give credit to the proof by witnesses. 62. A regular series of entries in the court-rolls, is sufficient evidence of the customs of a manor; and an ancient writing, handed down with the court-rolls from steward to steward, purporting to be a customary of the manor, is evidence of a custom. 63. Lord Hardwicke has said, it was certainly the rule of law in general that the evidence of neighbouring manors shall not be admitted to shew the custom of another manor; because every manor is to be governed by its own customs. But this rule was not so universal as not to be varied in some instances; as in mine countries, Derbyshire, &c., the courts of law had admitted evidence with regard to profits of mines, &c. out of other manors, where they were analogous and similar, to explain or corroborate the custom of the manor in question. 64. Copyholds being derived from the tenure in villenage, they were not originally within the jurisdiction of the king's courts at Westminster. If therefore a copyholder was ousted by a stranger, he could not implead him by the king's writ, but must proceed by plaint in the lord's court, and make pro'testation to prosecute the suit in the nature of an assise of novel disseisin, or any other writ, which his cause required. Free copyholders were also incapable of suing or being sued in the usual real actions; but had a peculiar method of process, called a writ of right close. 65. There were however some cases in which the king's courts had a jurisdiction over copyholds. ante, § 4. Thus it appears to have been settled in the reign of Edw. IV. that if a copyholder was ousted by the lord, he might maintain an action of trespass against him, in the king's courts. v. Luther, 4 Rep. 26 a. 66. In the reign of Eliz. it was resolved, that the Melwich lessee of a copyhold for one year should maintain an ejectment. For inasmuch as his term was warranted by the law, and the general custom of the realm, it was reasonable that, if he was ejected, he should have an action of this kind. Since the practice of bringing ejectments for copyholds has prevailed, the jurisdiction of lords of manors has fallen Rex v. into disuse. And the Court of King's Bench has in several instances granted a mandamus against a lord of a manor to admit a copyholder. Rennet, 2 Term R.. 197. 6 East, 431.. 330. 67. The Court of Chancery has also assumed a 1 P. Wms. jurisdiction over copyholds; upon the principle that equity will not suffer a right to be without a remedy. Therefore, if an erroneous judgement be given in a copyhold court, a bill may be exhibited in Chancery for its reversal. 68. The Court of Chancery will also compel the Cro. Ja. 368. lord of a manor to admit a copyholder; and to hold a court for that purpose. It will also moderate the rigour of customs, and relieve against excessive fines, and unreasonable forfeitures; of which an account will be given hereafter. Lowther, 2 Ves. 300. 69. Where a doubt arises respecting the customs Fawcet v. of a manor, the Court of Chancery will direct an issue to try what those customs are: but is not bound to send a custom to be tried which prima facie 180. 4 Ves. Jun. is void at law. It will also grant a commission to examine witnesses for the purpose of ascertaining the customs of a manor; and to set out the boundaries of copyholds, where they are intermixed with freeholds. IT T has been shown that copyhold estates are derived Nature of. from a voluntary grant by the lord to the copyholder, according to the custom of the manor, under the usual services and returns. And grants of this kind are still made by lords of manors, of lands which have been demised or demisable by copy; whenever they fall into the possession of the lord by escheat, forfeiture, or any other determination of a former grant. 2. Voluntary grants are now also frequently made in those manors, where the custom only authorizes grants for life or lives; for whenever the estates thus granted fall in, they are usually regranted in the same manner. 3. Whenever copyholds are transferred from one person to another, or descend to the heir, a new grant is also made by the lord; so that in fact every Tit. 37. c. la copyhold is held by a grant from the lord. But in X 4 |