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be borne in mind, the former being always local, the latter personal. The proof of a custom lies upon him who alleges it ; and a series of entries on the court rolls is the best and most direct evidence of a custom. (1)
Of customs, those which solely relate to the locality Discharge of of lands cannot be discharged, except by act of parliament: but customs attached to the tenure of lands, will be annihilated on the destruction of that tenure. (2)
Of some manors, copyholds are held for an estate of Grants of copy. inheritance, of others, for three or a less number of lives, holds. or for three lives in possession and three in reversion, or for a term of years, the grants being renewable on payment of a fine certain. A grant to three, habendum successivé, constitutes them joint tenants, unless by custom 'the word successivé makes their estates several. (3)
In order to support a custom, it must be shewn to be Validity of immemorial, certain, and reasonable: and it is the pro- custom vince of a jury to determine upon its validity.(4)
Again, a custom never extendeth to a thing newly Extension of created: therefore if rent be granted out of gavelkind, or custom. borough-English land, it shall descend according to the course of the common law.(5)
A custom that copyholds may be granted in fee, will warrant their being granted in tail, or for other less estate. So a custom that they may be granted for life, will warrant their being granted during widowhood. (6)
There may be a possessio fratris of copyholds, that is, the Possessio fra. possession of a brother will make a sister of the whole blood tris, his heir, in preference to a brother of the half blood; (7) so that if a copyholder of inheritance died leaving a son and
daughter by one wife, and a son by another, and the son by the first wife entered, and died without issue, his sister would be the heir, and not his brother of the half blood.(1)
It was the act of entry and not of admittance, which made the possessio fratris : if therefore, a wife was endowed of the moiety of a copyhold of inheritance descendible according to the custom of gavelkind, and there being two sons by different wives, they were admitted to the reversion of such moiety, and the son by the second wife died, the admittance would not have caused a pos
sessio fratris in him, so as to make his sister take. (2) Statute amend By the recent statute for amending the law of ining law of in
- heritance, the expression “ the person last entitled to heritance.
land,” is to extend to the last person who had a right thereto, whether he obtained possession or not; and the statute has enacted, that every descent from a brother or sister, shall be traced through the parent; and has rendered the nearest lineal ancestor capable of inheriting on failure of the issue of a purchaser; and has also made the half blood capable of inheriting next after any relation of the same
degree of the whole blood. Right of entry Before the enactment in 3 & 4 W. 4, c. 27, s. 39, for or action.
the limitation of actions, to the effect that no descent cast, or discontinuance, shall toll or defeat any right of entry or action for the recovery of land, such right was not, in the case of copyhold property, taken away by a
descent cast, the freehold being in the lord. (3)
. Neither before the above enactment.could there have discontinuance. been a discontinuance of copyhold property; so that the
surrender of a tenant in tail did not deprive the issue in
(1) Watk. Desc. 69, [3rd ed.] Gilb. Ten. 158.
that purpose by the custom. And the surrender of a husband seised in right of his wife would not have operated as a discontinuance. (1)
5. Of the liability of Copyhold Property to Debts :
herein of the stat. 3 & 4 W. 4, c. 104, and as to
Copyholds cannot be taken under an elegit, or extent, Elegit, &c. or upon an outlawry, (2) nor is a judgment any lien upon them;(3) and previous to the recent statute 3 & 4 W. 4, c. 104, they were not assets for the payment of specialty debts, though of course they might have been made liable by the owner to the payment of his debts. That statute has made both freehold and customary or Copyholds
et assets for paycopyhold property liable to specialty and simple contract me debts, by enacting, that when any person shall die seised of or entitled to any estate or interest in lands, whether freehold, customary hold, or copyhold, which he shall not by his will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in Courts of Equity for payment of the debts of such persons, as well debts due on simple contract, as on specialty, priority being given to the specialty debts in which the heirs are bound in the administration of the assets.
The equitable doctrine as to the marshalling of assets, Marshalling of applies to copyhold as well as freehold property, namely, assets that where a creditor has two funds, he shall not by his election disappoint a creditor having one fund only, but shall be thrown upon that which can be affected by himself alone: so that where a testator mortgaged freehold property, and covenanted to procure himself to be admitted
to copyhold property, and to surrender the same to the mortgagee, but afterwards died without having been admitted, and the personalty was exhausted by the payment thereout of part of the mortgage debt; the simple contract creditors were held entitled to stand in the mortgagee's place as to the freehold and copyhold estates to the extent he had been paid out of the personalty. (1)
And where a person mortgaged freehold property, and two months afterwards surrendered copyhold property to the mortgagee for securing the same debt, and after the mortgagor's death, his personalty having been exhausted, the mortgage was satisfied out of the freehold property; the specialty creditors were held entitled to stand in the place of the mortgagee as against the copyhold property, to the extent of the sum received by him out of the freehold property. (2)
6. Of the subjection of Copyhold Property to Statute
Law : herein as to various Statutes within which the Property falls.
Copyholds are said not to be within the general words of an act of parliament, when the same altereth the service, tenure, or interest of the land, or other thing in prejudice of the lord, or of the custom of the manor, or in prejudice of the tenant : but when the act is generally made for the good of the commonwealth, and no prejudice may accrue by reason of the alteration of any interest, service, tenure, or custom of the manor, copyholds are said to be usually within the purview of such act. (3)
The more important statutes to which the property is subject, are the 32 H. 8, c. 34, enabling grantees of re
Statutes applicable to copyholds.
(1) Aldrich v. Cooper, 8 Ves. 382.
version to recover against lessees; (1) the 27 El. c. 4, of fraudulent conveyances; the 21 Jac. 1, c. 16, for the limitation of actions ; (2) the 12 C. 2, c. 24, s. 8, enabling a father to appoint a guardian to his child, where at least there is no custom for the lord to have the wardship; (3) the 4 G. 2, c. 28, s. 5, relating to distresses for rent in arrear; the 6 G. 4, c. 16, for amending the laws relating to bankrupts; the 1 & 2 W. 4, c. 56, establishing a court of bankruptcy; the 1 W. 4, c. 60, for amending the laws respecting estates vested in trustees, &c.; the 1 W.4, c. 65, for amending the laws relating to property belonging to infants, &c.; the 3 & 4 W. 4, c. 106, for amending the law of inheritance; the 3 & 4 W. 4, c. 74, for the abolition of fines and recoveries ; the 3 & 4 W. 4, c. 27, for the limitation of actions and suits, amended by 1 Vict. c. 28; the before mentioned statute of 3 & 4 W.4, c. 104, for rendering freehold and copyhold estates assets for the payment of simple contract debts; the 6 & 7 W.4, c. 115, for facilitating the inclosure of open and arable fields in England and Wales; the 1 Vict. c. 26, for the Statute of wills. amendment of the laws with respect to wills; and the 1 Vict. c. 50, intituled “ An Act to facilitate the Conveyance of Lands and Buildings for the Purposes of two Acts passed respectively in the fifth and sixth years of
his late Majesty King William the Fourth.” (4) . By the above statute of 1 W. 4, c. 60, s. 3, the Lord Lunatic trusChancellor may direct the committee of the estates of lu- tees or mortga
gees. natics to convey lands held by them upon any trust or by way of mortgage. By the 5th section, where a lunatic shall not have been found such by inquisition, the Lord Chancellor may direct any person to convey such land. And the 6th section of the act authorizes infant trustees or mort- Infant trustees gagees to convey by the direction of the Court of Chancery. or mortgagees.
(1) Whitton v. Peacock, 3 Mylne & Keen, 325.