3. A person to whom a copyhold is devised, but who is convicted of felony, and hanged, before admittance, does not forfeit such copyhold. 2 Wils. R. 13. 4. Mr. Jefferies devised a copyhold to his niece Roe v. Hicks, Elizabeth Jefferies, who was convicted and hanged for the murder of the testator. Miss Jefferies was not admitted, nor ever did any act to show that she was the lord's tenant. The Court was of opinion that Miss Jefferies had no legal interest in the copyhold, so could have no legal remedy to recover it; and having neither jus in re, nor ad rem, could not forfeit any thing. contrary to $ 74. 5. Copyholders can only alienate their estates in Alienationthe manner prescribed by the custom; any other the Custom. mode of alienation will operate as a forfeiture. Thus it is said by Littleton, that if a copyholder aliens by deed, it is a forfeiture; for a copyholder being tenant at will, such an act would amount to a determination of his will. n. 3. 6. Lord Coke says, if a copyholder makes a char- 1 Inst. 59 a. ter of feoffment, or a deed of demise, for life, with- Co. Cop. out giving livery of seisin, it is no forfeiture, because § 58. nothing passes. According to Roll, though livery is 1 Roll. Ab. not made, yet the feoffment is a forfeiture, if there 508. pl. 12 be a letter of attorney to deliver seisin; because then the feoffee may at any time perfect the conveyance. And that Lord Coke ought to be understood with that distinction. & 13. n. 3. Mr. Hargrave does not acquisce in Roll's doctrine. 1 Inst. 59 d. "For (says he) the criterion of forfeiture of a copyhold by alienation, seems to be the actual passing of an unlawful estate, to the lord's prejudice. In the case of the feoffment, no interest can pass until livery; nor is it strictly true that the feoffee may at any time perfect the conveyance, for it is possible that before A a S Vol. 1. 508. pl. 11. Co. Cop. § 58. Leases con trary to the Custom. 1 Bulst. 190. Jackman v. livery, the feoffor may revoke the power of attorney, or the attorney may die, or refuse to execute the authority." 7. It is also said in Roll's Abridgement, that if a copyholder bargains and sells his copyhold to another in fee, it is a forfeiture; although the deed be not enrolled. But this position has been denied by Lord Coke. 8. It has been stated, that a copyholder may make a lease for one year. But if he makes a lease for 4 Rep. 26 a. any longer term, whether by indenture or parol, without the consent of the lord, it is a forfeiture; Hoddeston, unless there be an express custom to warrant it. Thus, where a copyholder made a lease for three years, to begin the next Michaelmas term, and the lessee died before Michaelmas, it was held that it was a forfeiture. Cro. Eliz. 351. 4 Rep. 26 a. 1 Roll. Ab. 507. pl. 8. Cro. Ja. 308. Mathews v. 9. By the particular custom of some manors, a copyholder of inheritance may lease his land for three years, without the consent of the lord. 10. Where a copyholder leased for one year, and so from year to year, during the life of the lessor; reserving to the lessor in every year the 25th day of March; it was held to be a forfeiture. For it was a lease for two years at least, reserving one day: so that a greater estate than for one year passed in interest. And the reserving a day in every year was but a shift, to avoid the forfeiture. 11. A copyholder agreed to make three several leases by indenture, one to commence after another; 508. pl. 10. there being two days between the end of the first, I Roll. Ab. Cro. Car. 233. and the commencement of the second, and so between the second and third. He made them accordingly, and sealed them at the same time. This was held to be a forfeiture, for it was an apparent fraud, and a greater estate than for one year passed presently. Licence of 12. It has been stated, that a lease for any number Unless by of years, made by licence from the lord, is not a for- the Lord. feiture; and that in such case the lessee may assign his term, or make an under-lease, without any new licence; for the interest of the lord is discharged by the licence. ante, c. 3. 508. pl. 14. 13. Lord Chief Baron Gilbert says, if the lord Ten. 296. licences the copyholder to let for five years, and he lets for three, this is good. So if the lord licences a copyholder for life to let for five years, if the copyholder so long live; and he lets for five years absolute, this is good; for the limitation is implied Hall v: Ar-rowsmith, by law, and so need not be expressed. But if the copyholder had an estate in fee, it had been a forfeiture of his estate to make an absolute lease; because in that case he did more than his licence allowed. Poph. 105.. 14. Where a copyholder made a lease for a year A Covenant only, according to the custom; and covenanted that that a Perafter the end of the year, the lessee should have the lands for another year, and so de anno in annum for son shall en joy, is no For feiture, Montague's ten years; it was held to be no such lease as would case, make a forfeiture; because the lessee had a lawful Cro. Ja. 301. estate but for one year only. 15. Lord C. B. Gilbert seems in the first instance Ten. 233. to doubt this case, because the words covenant and grant make a lease. He afterwards however says,- Tit. 32. c. 5. "But in another case it was held that these words, by construction, might make a lease, where the lands might be let; but otherwise where the lands could not be let. Which distinction seems very reasonable; for the words themselves do not import a lease; and it would be a very injurious construction to make Tit. Lease, 1. 6. 1 Inst. 59 a. ‚n. 4.. them a lease, and so a forfeiture, when they only import of themselves a covenant." 16. It is said in Bacon's Abridgement, that in such a covenant it would be better if the words were, to permit and suffer the lessee to hold the lands. For a covenant in that form respecting freehold lands, would not amount to an immediate lease; because the words permit and suffer would prove that the estate was still to continue in him from whom the the permission came. For if any estate thereby passed to the covenantee, he might hold and enjoy it without any permission from the covenantor. Therefore in such case the covenantee would only have the bare covenant for his security of enjoyment; without any actual estate made to him. 17. Mr. Hargrave appears to acquiesce in this doctrine-" Because though in general a covenant amounts to a lease, yet it seems harsh to give such a construction, where a lease amounts to a forfeiture; and the intention of the parties may have effect by way of agreement." And in a modern case it was 2 Term. R. settled, that an executory agreement, for a lease of a copyhold, did not operate as a forfeiture. Doe v. Clare, 739. Waste, ante, c. 3. § 8. 4 Rep. 27 a. Co. Cop. § 57. Owen 17. 18. Every species of waste, whether voluntary or permissive, not warranted by the custom of the manor, will operate as a forfeiture of a copyhold. 19. Lord Coke says, if a stranger commits waste upon a copyhold, without the assent of the copy4 Rep. 27 a. holder, it will not operate as a forfeiture. Gilb. 235. Tit. Copy Rook v. 1 Ves. 462. In Comyn's Digest, the contrary doctrine is said to have been settled in Lutw. 802. But Lord Hardwicke appears to have considered copyholders as answerable for waste, in all cases; except where occasioned by the act of God. Vincent, 20. A copyholder cut down more timber than he Attorney could justify, and a bill being brought against him in General v. Chancery, for a discovery; he demurred, because it 2 Ab. Eq. would subject him to a forfeiture, as being waste. Doe v. The demurrer was allowed. copy 378. Wilson, Tenure. Co. Cop. 21. If a copyholder disclaims holding of his lord, Disclaiming or swears in court that he is not the lord's holder; or if the steward shows the court-roll to a $57. copyholder, to prove that his land is held by copy, and the copyholder asserts his estate to be freehold, and tears the court-roll; these acts will operate as a forfeiture. in 22. But if a copyholder, in presence of the court, Idem. speaks irreverent words of the lord, as that he exacts and extorts unreasonable fines, and undue services; this is fineable only, and no forfeiture. If he says court that he will devise means to be no longer the lord's copyholder; this is neither cause of fine nor forfeiture; for perhaps the means he intends are lawful, by conveying away his copyhold. 506. 23. Copyholds are forfeited by the neglect or re- Refusal to fusal of the tenant to perform the services required Services. perform the by the custom. Thus, if a copyholder neglects to 1 Roll. Ab. appear at the court, after summons, he will forfeit Gilb. Ten. his estate. To make this a forfeiture, there must be 229. a particular warning to each tenant, or a general notice within the parish; after which it is a forfeiture, without any express refusal. For unless the copyholders attend, no court can be held, which would be highly prejudicial, not only to the lord, but to the tenants. 24. A copyholder neglected to do his suit and Hammond v. Wennibank, service for the space of three years together. The 3 Buls. 368. question was, whether this was a sufficient cause of forfeiture. It was said by the Court that it was no |