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Settlement or devise of ma
copyhold will be extinguished in the manor, and pass therewith under the executory devise. (1)
And if the lord make a mortgage or settlement of a manor, and afterwards purchase any copyholds held of the manor, taking surrenders of the same to himself in fee, they will be subjected to such mortgage or settlement. So if copyholds be taken into the lord's hands after the devise of a manor, they will pass by such devise. (2)
2. Of the distinction between Copyholds, customary
Freeholds or privileged Copyholds, and Lands of the tenure of ancient demesne : herein of the remedies for customary Freeholders, and of the enactments in the statute for the abolition of Fines and Recoveries respecting customary Freeholds, and ancient demesne Lands.
Copyholds and customary freeholds.
It may be useful to notice the distinction between common copyholds, and privileged copyholds, or what are usually termed customary freeholds, and lands of the tenure of ancient demesne ; premising, that by the stat. 12 Car. 2, c. 24, all tenures were reduced to those by free and common socage, by frankalmoign, by the honorary services of grand serjeanty, and by copy of court roll.
A mere copyholder is said to hold by copy of court roll at the will of the lord according to the custom of the manor: a privileged copyholder or customary freeholder is said to hold according to the custom of the manor, but not at the will of the lord, the tenure being usually met with in ancient demesne. (3)
Common copyholds pass by surrender and admittance in the lord's court; privileged copyholds or customary free
(1) King' v. Moody, 2 Sim. & Stu. 579.
holds pass in some manors by surrender and admittance, and in others by deed of grant, or bargain and sale, or other mode of assurance, and admittance, but fall within the same consideration as copyholds. These customary estates, known by the denomination of tenant right estates, are peculiar to the northern parts of England, in which border services against Scotland were anciently performed before the union of the two kingdoms. (1)
In the case of a copyholder for life or other greater estate, the pure freehold tenure is in the lord, while the customary freehold or fee is in the tenant. (2) Such is also the case with a privileged copyholder or customary freeholder, at least when lands of that tenure pass by surrender and admittance, or by deed of grant, or bargain and sale, and admittance. (3)
Subject to the above distinction, common copyholders and privileged copyholders or customary freeholders stand much upon the same footing.
Lands of the tenure of ancient demesne, are such as were held in socage of manors which belonged to the Ancient deCrown in the reign of Edward the Confessor and William the Conqueror; and whether they are ancient demesne or not, is ascertained by a reference to Doomsday Book (4)
When tenants hold of a manor which is ancient demesne, but hold not at the will of the lord, and their estates pass by surrender, or deed of grant, or bargain and sale, and admittance, they are denominated customary freeholders; when they hold of a manor which is ancient demesne by copy of court roll at the will of the lord, they are denominated copyholders of base tenure, but in each case the freehold or frank fee is in the lord. (5)
(1) Vide Blackst. Law Tracts.
(4) 9 Co. Rep. 31 a. Co. Cop. s. 11. 2 Bl. Comm. 98. 2 Watk. Cop. 445, (3rd ed.]
(5) Doe v. Huntington, supra. But see Co. Cop. s. 32.
The remedy of customary freeholders was by writ of
right close, that of copyholders having been by plaint: Real and mixed the 3 & 4 W. 4, c. 27, s. 36, has abolished all real and actions, and plaints. mixed actions, except writs of dower, quare impedit, and
ejectment; and all plaints, except a plaint for free-bench
or dower. Fine or reco. If before the recent act of 3 & 4 W. 4, c. 74, a fine very of ancient lands, or recovery had been levied or suffered in the Court of
Common Pleas of lands of the tenure of ancient demesne, the tenure was thereby converted into frank fee, though it was competent to the lord to set aside the fine or recovery by a writ of deceit, and thereby restore the tenure: but no fine or recovery could be levied or suffered in the manor court, until that in the superior court had
been reversed. 3 & 4 W. 4, c. The 5th section of the last mentioned statute enacts,
that where a fine or recovery had been levied or suffered in a superior court of ancient demesne lands, and the same being unreversed, a fine or recovery had been subsequently levied or suffered in the lord's court, the latter should be binding, notwithstanding the change of tenure by the former. And that in every other case where, before the passing of the act, a fine or recovery had been levied or suffered of lands in a court whose jurisdiction did not extend thereto, such fine or recovery should not in consequence thereof be invalid. And that where courts had been held without authority, fines or recoveries, which before the act had been levied or suffered therein, should not in consequence thereof be invalid.
And the 6th section enacts, that where the tenure of ancient demesne had been suspended or destroyed by fine or recovery levied or suffered of lands of that tenure in a superior court, and the lord had not reversed the same before the 1st January, 1834, and should not by any law in force on the first day of the then session be barred of his right to reverse the same, such lands, provided within
twenty years immediately preceding the 1st January, 1834, the rights of the lord had been acknowledged as to the same lands, should, from the said 1st January, 1834, again become parcel of the manor, and that no writ of deceit Writ of deceit. for the reversal of any fine or recovery should be brought after 31st December, 1833. An estate tail in customary freehold lands, and lands Estate tail in
hondh customary freeof the tenure of ancient demesne, may now be barred by i the. mode prescribed by the 3 & 4 W. 4, c. 74: and cient demesne
lands. where husband and wife are entitled in her right to any Husband and estate or interest in lands of either of the above tenures, wife. the statute points out the mode by which the same may be conveyed.
By sec. 50 of the same statute, the previous clauses, Estate tail in so far as circumstances would admit, were made appli- copyholds. cable to lands held by copy of court roll, except that a disposition by a tenant in tail of the legal estate was to be made by surrender, and by a tenant in tail of the equitable estate, either by surrender or deed, and except as such clauses were afterwards varied. This subject will be resumed in a future page.
Customary freeholds are also subject to the recent statutes for the amendment of the law of inheritance, for the limitation of actions and suits relating to real property, and for the amendment of the laws with respect to wills.
3. As to the Right of Voting.
As the law stood before the 2 W. 4, c. 45, for Copyholders. amending the representation, copyholders were not capable of voting for counties : but with respect to customary Customary freeholders, and such tenants in ancient demesne as came freeho under that denomination, some uncertainty prevailed on the question, whether they were entitled to vote or not,
Voting for counties.
respecting which it has, however, become unnecessary to say more.
The 19th section of the above statute, (the former section having provided for the case of freeholders,) gives the right of voting for counties to a person seised at law or in equity of lands or tenements of copyhold or any other tenure, except freehold, for his own life, or the life of another, or any larger estate, of the clear yearly value of not less than ten pounds over and above all rents and charges.
The 25th section provides, that no person shall vote for a county in respect of his estate or interest as a copyholder, or customary tenant, or tenant in ancient demesne holding by copy of court roll, in any house, &c. of such value as would confer the right of voting for any city or borough.
The 26th section has certain provisions with respect to registration and length of possession, and the 27th section prescribes the mode of voting for boroughs.
Voting for boroughs.
4. Of Customs, Descent, Possessio Fratris, and dis
continuance : herein of the statutes for amending the Law of Inheritance, and for the Limitation of Actions.
The customs of manors are of great variety, both as to the descent of the estates, and the privileges belonging to the tenants. In some manors the descent is according to the custom of gavelkind, in others according to that of borough-English, and in others according to the rule at common law; the mode of descent may also vary in the same manor; and it is not competent to a person to alter the customary mode of descent. (1)
The distinction between custom and prescription is to
Custom and prescription.