As a further consequence of what has been premised COPYHOLD we may collect these two main principles, which are ESTATE. held to be the supporters of the copyhold tenure, and without which it cannot exist; 1. That the lands be parcel of, and situate within that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court-roll immemorially; for immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day". If, however, they were, when originally granted, parcel of the manor, it is sufficient; for it is not essential for the support of the copyhold that they should continue so; as if the lord grant the inheritance of his copyholds to another, they will be holden of the grantee*. And as they must have been immemorially devisable, it follows that a copyhold tenure cannot be granted at this day', custom or immemorial usage being the life of copyholds. But it is not necessary that they should have been actually in demise, so that their demisable quality continues; therefore, if they come to the lord's hands by escheat, and he keep them in his hands for many years, yet he may again grant them by copy; and so though they be leased by him when in his hands, if together with the manor the demisable quality of the copyhold is not destroyed, because it is not thereby severed from, but continues parcel of the manor; but otherwise if it were leased separately from the manor: for this would be a severance pro tempore from the manor, and it could not afterwards be demised by copy". COPYHOLD So if after forfeiture or escheat to the lord, they be extended by him, or assigned to his wife for dower, this will be an interruption to the demisable quality, and they cannot afterwards be granted by copy. And if a copyholder surrender his copyhold into his lord's hands to the use of the lord, it should seem that it would become parcel of his demesne, and not afterwards be grantable by copy. And it also seems doubtful whether the lord can grant out the wastes of the manor by copy'. But to destroy in toto the demisable quality of a copyhold, it must be by some act of the person entitled to the fee-simple of the copyhold; for if a lease be made by a lord, tenant in tail, or for life only, it is only suspended during the interest of the party, and not as against the reversioner or issue; nor by an interruption which is tortious against the lord, as if he be disseised, or the like. From this view of the origin and nature of copyholds, may be collected the foundation of the great variety of customs which exist with respect to copyholds, in different manors. In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the ser vices be performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will'. The fruits and appendages of a copyhold tenure, which it hath in common with free tenures, are fealty, services (as well in rents as otherwise), reliefs, and escheats. • French's Ca. 4 Co. 31,b. • See Calth. Read. 55. Bishop of London v.Rowe, 3 Keb. 124; Sel. Ca. Ch. 62. Co.Lit. 58, b. n. 7; Conesby v. Rusky, Cro. Eliz. 459. h 4 Co. 31, a. i 2 Blac. Com. 96. ESTATE. The two latter belong only to copyholds of inheritance; COPYHOLD the former to those for life also. But, besides these, copyholds have also heriots, wardship, and fines incident to them.-Heriots, which are agreed to be a Danish custom, and of which we shall say more hereafter, are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of villain tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seised them even in the villain's lifetime. These are incidents to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold estates, partakes both of that in chivalry and that in soccage. Like that in chivalry, the lord is the legal guardian; who usually assigns some relation of the infant tenant to act in his stead: and he, like guardian in soccage, is accountable to his ward for the profits. Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom: but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have, as we shall see by and by, tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shown to this species of tenants; by removing, as far as possible, every real' badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring that the will of the lord was to be interpreted by the custom of the manor: and, where no custom has been suffered to grow up to the prejudice of ESTATE. COPYHOLD the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far, as to disinherit the tenant *. In what respects the estate of a copyholder nature of freeholds. Copyholds have, however, in many respects, the qualities and properties of freeholds; for though copyholders partakes of the have only a fee-simple secundum quid, and are tenants at will only, yet their estates shall descend to their heirs, and such descent, where not controled by the custom, shall be governed by the rules of the common law, "for those reasons that govern the descents at common law, are drawn from the nature and disposition of estates after the owner's death; and are grounded upon those reasons which seem to warrant a disposition of the estate, and are not taken from the nature of the land or thing that is disposed of; and therefore may as well, and with as good reason be applied to the disposition of copyhold as freehold estates; since it is not the nature of the thing disposed of that is to rule or govern either in one case or the other!" And the rules of descent as to freeholds being considered as the common rules of the country with respect to descents, must of course prevail wherever no particular exception to the contrary can be shown". Hence, where there was a custom, that if the copyholder had no son or daughter the land should descend to the eldest sister, such custom was held not to entitle the eldest niece by implication; for as a custom is to be strictly construed, if it be silent or be not fully explicit, the course of desbent must be regulated by the common law. So where a copyholder, ex parte maternå, devised to his heir, who died before admission, it was holden that the estate should descend to the heir on the part of the mother". And where a copyholder, by licence made a lease for years, and the lessee entered, and the lessor died, having issue a son and a daughter by one ventre, and a son by another, and the elder son died, it was adjudged that the daughter of the whole blood should inherit (1); for the possession of the lessee for years was the possession of the elder brother, who may have possession before admittance P. For if it be reasonable in such case at common law to keep the inheritance out of the half blood, it must be equally so in respect of copyholds . If, however, the brother never be in possession, either actually or legally, he has only a right to take the lands to him and his heirs, as representative of his father, which if he fail to do, it will go to him who is the next representative of the father, which is the younger brother. But when he has obtained possession he has then an estate in the lands descendible to him and his heirs, and the sister is his heir, who will therefore take in exclusion of the younger brother. If tenant in tail of a copyhold bar the entail, and acquire the fee, the descent is not altered, but it will follow P 4 Co. 21 a; Moor, 125, 4 Leon. 38; Watk. Desc. 51. pl. 272, adjudged; and vide 9 Gilb. Ten. 159. (1) The same law of a guardian; Co. Copy. 113; Dver, 292; Cro. Car. 411; 1 Roll. Abr. 502; that there shall be a possessio fratris before admittance; 1 Roll. Abr. 502; 3 Leon. 70; 1 Mod. 102, 120; 1 Vent. 261; Dalis. 110, S.P. But according to some, in order to give this effect to a lease, it must be made by surrender; see 3 Leon. 69, c. 106; 4 ibid. 38, c. 103, and 212, c. 334. Others, however, hold a licence to be sufficient; Gilb. Ten. 158; Moore, 125, c. 272; Co. Copyh. s. 41; Tracts, 95: and it is said, that if the lord, by custom, during the nonage of the heir, demise it to a stranger for years, this will not make a possessio fratis; and vide Co. Copyh. 114, where Lord Coke says, that if the lease for years determine, and the elder brother die before entry, the younger brother shall inherit; but quære; and see Gilb. Ten. 161; Ibid. 162, n. (x). COPYHOLD ESTATE. |