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A CONCISE TREATISE
LAW OF COPYHOLDS.
CONCERNING COPYHOLD PROPERTY IN GENERAL
1. Of the tenure by copy of Court Roll, the Manor,
the customary Court, the Demesnes, and the
The tenure by copy of court roll is that by which lands Copyhold are held of the lord of a manor by copy of the rolls made tenure. by the steward of the lord's court, and which copy forms the evidence of title.
The tenant is said to hold at the will of the lord, Copyholder. according to the custom of the manor; this will, therefore, is not arbitrary, but dependent on the customs; so that if the tenant break not the customs, and thereby forfeit his tenure, he cannot be removed at the lord's pleasure, but has the same permanent interest in the copyhold estate as if it were freehold. (1)
(1) 2 Bl. Com. 95. Co. Cop. s. 32.
To the existence of this tenure a manor is essential,
and to every manor of which copyhold lands are held, a Customary customary court is incident, in which the lord or his
steward is the judge, and the copyholders are the homage. Court baron. This court is independent of the court baron or free
holders' court, which is also incident to every manor, but
of which the suitors are judges. Creation of This tenure cannot now be created without the aid of copyhold te
parliament, for a manor must have existed as early as King Edward the First, it being said that a perfect tenure is essential to a manor, and that there be tenants who hold of the lord: but since the statute of quia emptores (1) a perfect tenure cannot be created, that is, land cannot be absolutely parted with to hold of the grantor. It is also requisite, where there are copyhold tenants, that they should hold according to the custom of the manor ; and a custom must be immemorial, and cannot, therefore, be now
created ; and the better opinion seems to be, that though a Divisibility of manor may be divided by act of law, as on a descent to manor.
coparceners, it is not divisible by act of the party. (2) Cesser of court The court baron, or freeholders' court, will cease
to exist, if there be not two freeholders holding of the same, subject to escheats. (3) But though the free tenancies escheat, or the lord release the tenure and services of all his free tenants, yet he may hold a customary court for his copyhold tenants, and make admittances and grants to them,(4) And though a manor may have ceased for the purpose of holding courts, yet it may con
tinue such by reputation as to minor prescriptive rights.(5) ITolding of The customary court cannot be held out of the manor,
unless under the sanction of a custom; and, therefore,
such things as are required to be done at a court, would be nugatory if such court were held off the manor. (1)
This court is usually held once a-year, at some period ascertained by the custom : but special courts are frequently held for some specific object, as the admission of a tenant. A conveyance by the lord to a stranger, of the freehold Conveyance of
freehold inteinterest in a copyhold tenement, will not destroy the cus- rest in copy tomary interest. (2) But the copyhold cannot be again hold. granted out by the grantee of the freehold to hold by copy, and suit of court, and fine on alienation and admittance are gone. (3) And so the law would seem to be, though there be a conveyance of the freehold interest in several copyholds, notwithstanding the contrary resolution in Murrel's case.(4)
Although copyhold tenure cannot be created at the present day, the lord of the manor may by custom be warranted in granting out parcels of the waste, to hold by copy of court roll. (5) Freehold tenure cannot be converted into copyhold or Freehold not
that if non convertible customary tenure by private agreement; so that if upon i
into copyhold. an inclosure, allotments are made in respect of copyhold or customary lands, there is no change of tenure without an express enactment for the purpose. (6) Copyhold property is said to be parcel of the demesnes Copylıold par.
cel of demesnes. of the manor, and must be situate within the manor, and have been immemorially demised or demisable by copy of court roll. (7) If the demesnes fall into the hands of the lord entitled Extinguish
ment of copy
hold property (1) Co. Litt. 58 a. 5 Bar. & Adol. 429, in Doe v. Whitaker.
in manor. (2) Murrel's case, 4 Co. Rep. 24 b. (3) Lemon v. Blackwell, Skin. 191. (4) 4 Co. Rep. 26 a. Vide 1 Watk. Cop. 22, et seq. (4th ed.) and n.
(5) See Lord Northwick v. Stanway, 3 Bos, & Pul. 346. King v. Inhabitants of Hornchurch, 2 Bar. & Ald. 189. 1 T. R. 241. 2 Maule & Selw. 184. 1 Watk. Cop. 45, (4th ed.) n. l.
(6) Doe v. Davidson, 2 Maule & Selw. 175. 9 Bar. & Cress. 795. (7) Co. Cop. s. 14. Co. Litt. 58 b. 2 Bl. Comm. 96.
Lord entitled to partial interest in manor.
to the fee of the manor, so as to effect an union of the freehold and copyhold interests, and he grant them out by any common law assurance, the custom of demising them by copy of court roll will be destroyed; though if he keep them in hand, they being still demisable, he and his heirs may afterwards regrant them by copy of court roll. But if a copyhold escheat to the lord of a manor, entitled only to a particular estate therein, and he make a lease for years of the same, not acting in exercise of a power over the fee, the custom will be extinguished as against himself only, and not as against the reversioner. (1)
If, however, the tenant for life of a manor purchase and take a surrender in fee of a copyhold held of the manor, there will be an extinguishment of the copyhold tenure for the benefit of those entitled in remainder, though the tenant for life might have regranted the property surrendered as copyhold. (2)
In a recent case, where a lord, entitled for life to a manor of which customary estates were held, which passed by bargain and sale as well as surrender and admittance, purchased some of them, and took a conveyance of the same by bargain and sale and surrender to himself in fee; the late Master of the Rolls, Sir John Leach, held, that the custom of the manor requiring a bargain and sale as well as a surrender and admittance to pass the customary tenements, they were plainly freehold: that if the lord had been seised of the fee of the manor, the union would have extinguished the customary tenements : that being tenant for life, the effect of the union was to suspend the seigniory during the life of the lord ; but that at the death of the lord, the seigniory was revived, and the fee of the customary tenements descended to his heir-at-law. (3)
From this decision an appeal was brought,(1) when Lord Brougham, C., observed, that if he were called upon to determine the point at once, he should feel obliged to come to a different conclusion from that of the Master of the Rolls, but that he would give the vendor the option of a case at law. This offer was accepted, but the matter was afterwards compromised.
Some reliance seems to have been placed by the Master of the Rolls in the above case, on the circumstance of a bargain and sale as well as a surrender being required to pass the customary estates, which circumstance, he said, took it out of the cases of St. Paul v. Lord Dudley, (2) and Doe v. Danvers ; (3) the former of which was the case of copyhold property, and the latter of customary freeholds passing by surrender and admittance with the lord's license. But in Doe v. Huntington, (4) the freehold of the customary tenements was held to be in the lord, though they passed by bargain and sale and admittance.
And in an earlier case, in which customary freeholds seem to have passed by grant and admittance, both Lord Mansfield and Mr. Justice Aston observed, it was a settled point that the freehold was in the lord. (5)
There are grounds, therefore, for contending, that if a case similar to that of Bingham v. Woodgate should again arise for decision, the customary tenure would be considered as extinguished for the benefit of those entitled to the manor in remainder, as in the case of St. Paul v. Lord Dudley.
Again, if a lord entitled to a manor in fee, subject to an Lord entitled to executory devise over, purchase a copyhold held of the fee in manor. manor, and the devise over afterwards take effect, the
(1) i Russ. & Mylne, 750.