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held of the manor, and become of freehold tenure.(1) And Destruction of if a copyholder, tenant in tail, procure a grant of the freehold and fee to himself and his heirs, it will extinguish the copyhold tenure, and thereby destroy the estate tail.(2) But a rent reserved upon an enfranchisement, will be a rent upon contract only, and not a rent-service. (3)
An enfranchisement will also extinguish the right of Extinguishcommon in the lord's waste, unless specially reserved (4): of common.
ment of right care must therefore be taken to introduce proper words, into the deed of enfranchisement, for the purpose of continuing the right of common. A conveyance by the lord to a stranger of the freehold Conveyance
of freehold interest in a copyhold tenement, will not destroy the copy- interest in cohold interest;(5) but the copyhold cannot be granted out pyhold. by the grantee of the freehold to hold by copy; and suit of court, and fines for alienation and admittance are gone : (6) 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 Melwich's case. (7) The grant by the lord of the freehold interest may therefore operate as a hardship on the tenant, as it prevents him from surrendering the copyhold tenement as before, or to deal with it as freehold property.
It is said, that if copyhold lands by the custom of the Customs. manor be of the nature of borough-English or gavelkind, and the lord sever a copyhold from the manor by granting the inheritance thereof to a stranger in fee, or by making a lease for years of such copyhold by indenture, yet the customs of gavelkind or borough-English, and all other
(1) Wynne v. Cookes, 1 Bro. C.C.515. 16 East, 415, in Roe v. Briggs.
(2) Denne v. Gregory, 3 P. Wms. 10. Challoner v. Murhall, 2 Ves. Jun. 524. But see 1 Watk. Cop. 438, n. (1), [4th ed.]
(3) Bradshaw v. Lawson, 4 T. R. 443. 4 East, 290.
customs which run with the land will remain, notwithstanding the severance. (1)
Cases are to be met with where an enfranchisement will, under certain circumstances, be presumed even against the Crown. (2)
3. Of the Lord's power to grant Licenses to Demise,
fc. : herein of the interest created by a Demise with License.
Lease by copyholder.
License to demise.
A copyholder may, by the general custom of the realm, grant a lease of his copyhold for any term, not exceeding a year: but he cannot without the lord's license grant a lease for any greater period, unless authorized to do so by the custom of the particular manor; (3) so that if a copyholder be desirous of granting a lease for any period exceeding a year, or to fell timber, and there be no particular custom enabling him to do so, the lord's license must be obtained for the purpose, or a forfeiture will be incurred, the license operating as a dispensation of such forfeiture. (4)
If a copyholder let to a tenant by parol from year to year, six months' notice to quit will of course be necessary to determine the tenancy.
By the custom of the manor of Berkeley, in the county of Gloucester, a copyholder may let his land for three years, so that the same be one day in each year in his actual occupation. (5) By the custom of the manor of Bewdley, Worcestershire, a customary tenant may lease
(1) Rob. Gav. 92. 4 Co. Rep. 25 a. But see 2 Watk. Cop. 55, [4th ed.] See form of an enfranchisement deed, No. 1, in Appendix.
(2) Roe v. Ireland, 11 East, 280.
(4) Vide Doe v. Clare, 2 T. R. 739. Doe v. Lufkin, 4 East, 221. Fenny v. Child, 2 Maule & Selw. 255. 2 Watk. Cop. 87, [4th ed.]
(5) 2 Watk. Cop. 303, [3rd ed.]
without license for any term, not exceeding 1,000 years. (1) The term created by a license to demise is a common Common law
interest under law interest, and does not constitute the lessee a copyhold license to detenant; it may therefore be assigned by the lessee, without mise. any further license from the lord. (2) But the license will not, as already noticed, be available beyond the duration of the lord's interest in the manor. If therefore the lord, entitled for years or for life only, grant to a copyhold tenant a license to demise, the term created by such license will cease to exist on the determination of the lord's interest. (3)
The lord cannot, it is said, enable his copyholder to demise for life, though a custom be alleged of his ability so to do. Neither can the steward virtute officii grant a license to demise. (4)
4. Of the Lord's interest in the Commons and Copy
hold Lands : herein of his power to Enclose, to
The lord, as owner of the soil, has prima facie a right Rights of lord to plant trees on the wastes of a manor, to turn rabbits thereon, to stock the common, and to derive every benefit from the soil not inconsistent with the rights of the commoners; and, as it seems, to approve portions of the common, provided he leave sufficiency of common of pasture for all the cattle entitled to feed thereon, which it
(1) Watk. Cop. 365, [3rd ed.]
Statute of Merton.
is incumbent on him and his grantee to shew, when the right is questioned. (1)
By the statute of Merton, 20 H. 3, c. 4, not only the lord, but any person seised in fee of any part of the waste, may, without a custom, approve portions of the waste, provided a sufficiency of common be left for the tenants : but approvements under that statute must be of freeholds. (2)
The lord may by usage be warranted, with the consent grant portions of the homage, in granting out portions of the waste for of waste, &c.
building purposes, to the curtailment of the rights of common. (3) He may also be justified by custom in digging clay pits, and carrying away the clay, though there be not sufficient herbage left for the commoners, as such a right will be presumed to have been reserved when the common was granted out; (4) and in enclosing parcels of the waste, though as against common of turbary, leaving a
sufficiency of common. (5) Void customs. But a custom for the lord to enclose the waste without
restriction is inconsistent with an existing right of common, and cannot, therefore, be supported, as it would enable him to annihilate the right altogether. (6) And a custom for the lord and his tenants sinking coal pits in freehold lands, to lay the earth, stones, &c., coming out of the pits on the lands of customary tenants near to such pits, has been held void. (7)
In the absence of a custom authorizing the tenant to cut timber, the same belongs to the lord, leaving sufficient for repairs. But the lord will not, in the absence of
(1) Cooper v. Marshall, 1 Burr. 259. Sadgrove v. Kirby, 6 T. R. 483. 7 Bar. & Cress. 363, 369, 370.
(2) Glover v. Lane, T. R. 445. 7 Bar. & Cress. 375.
custom, be justified in felling trees without the copyholder's consent;(1) nor in opening and working mines and veins of coal under the copyhold lands. (2). It is observable that mines are part of the demesnes of Mines part of
demesnes. a manor, and not distinct from the right to the soil. (3)
The customs of different manors with respect to timber Variety of cusgrowing on copyhold lands vary exceedingly, sometimes toms as to timgiving the timber to the lord, sometimes to the tenant. (4)
(1) Whitechurch v. Holworthy, 4 Maule & Selw. 340. 19 Ves. 213. Gilb. Ten. 327.
(2) Bourne v. Taylor, 10 East, 189, 17 Ves. 282. 19 Ves. 214. 6 Vin. Ab. 228, pl. 13.
(3) 2 T. R. 705. (4) 4 Ves. 703.