Copyholders 132. BY SECTION 1. Y the general custom of all manors, several services are required to be done by copyholders to their lords. The first of these is fealty. Lord Coke 1 Inst. 63 a. says, the doing fealty by a copyholder proves that so long as he observes the customs of the manor, and performs his services, he has a fixed estate. For tenant at will, that may be put out at pleasure, shall not do fealty. The taking of the oath of fealty is now always respited. Co. Sup. $10. 2. Suit of court is another service to which all copyholders are bound; for otherwise it would be impossible for the lord to hold a copyhold court; every copyholder is therefore obliged to attend the lord's court, and to be sworn of the homage. 3. In many manors copyholders are also liable, by particular custom, to the payment of rent-service, rents of assise and reliefs; artd to the performance of a variety of services. Estovers. 4. It was resolved in 8 Ja. I. that every copy- Entitled to holder may of common right, and as a thing incident Heydon to the grant, take housebote, hedgebote, and plough- v. Smith, 13 Rep. 68. bote, upon his copyhold. This right may however be restrained by custom; namely, that the copyholder shall not take it, unless by assignment of the lord, or his bailiff. The lord cannot therefore cut down all the timber trees on a copyhold estate; but must leave sufficient for the reparation of the houses, and for ploughbote, &c. 5. A copyholder brought an action of trespass Ashmead against the lord of the manor for cutting down trees v. Ranger, 1 Ld. Raym. on his copyhold, alleging a custom within the manor 551. that every copyholder for life, &c. had used to have all timber trees growing upon his land for the reparation of houses; and that all the timber trees growing upon the said lands were not sufficient for the reparations, &c. The whole Court were clearly of opinion that judgement ought to be given for the copyholder, because it appeared he had not enough to repair without those trees; therefore judgement could not be given for the defendant without overthrowing the case of Heydon v. Smith. And Lord Chief Justice Holt said, that a copyholder holds the trees by copy of court-roll, as well as the land; therefore it seemed to him that the lord could not cut the trees growing upon the copyhold. That Cro. Eliz. 361. says, the copyholder might lop the trees without a special custom, which shewed that the copyholder had a special property in them. This judgement was affirmed in the Exchequer 1 Salk. 638. Chamber, and reversed in the House of Lords*. Sandford v. Stevens, 6. Where the custom of the manor is, that the 3 Buls. 282. copyholder shall employ the timber cut down in the reparation of his tenements, yet as to the tops and bark, which cannot be employed in repairs, he may sell them towards defraying the charges of the reparations. Ayray v. 7. The Court of Chancery will direct a commisBillingham, sion to set out sufficient timber and wood for the Finch, 199. copyholder, for all manner of botes and estovers, according to the custom used within the manor; and the rest for the use of the lord. But cannot Glascock's case, 4 Leon. 238. Denn v. 8. A copyholder cannot commit any kind of waste, unless there is a particular custom to warrant it, for the timber growing on copyhold estates is, by the general custom of most manors, the property of the lord, who may cut it down; provided he leaves a sufficient quantity for the repairs of the copyhold.. 9. A copyholder in fee may however, by the particular custom of a manor, have a right to cut down timber trees growing on his copyhold, and to sell them 10 East, 266. at his pleasure, which has been adjudged to be at Rolls v. good custom. It has also been held, that where a Brownl. 132. copyholder for life had a power of nominating his successor, a custom enabling him to fell timber was good; because he was quasi a copyholder in fee. Mason, Rockey v. 10. A custom that a copyholder for life may cut down timber is unreasonable and void; for it is a destruction * The printed case in this appeal is in Mr. Serjeant Hill's Collection of Cases in the House of Lords, (now in Lincoln's Ina Library), on the back of which is written by Lord Chief Baron Ward-"This judgement was reversed by eleven against ten lords, and against the opinion of all the judges of England." of the inheritance; and contrary to the nature of an estate for life. In a modern case it was held, that a Mardiner v. Elliot, copyholder for three lives, without any power of com- 2 Term R. pelling his lord to renew, could not cut down timber. 746. 4 Ves. 700. 11. The right of a copyholder to cut down timber Dunch v. is a legal one; where he exceeds or abuses it, he will Bampton, forfeit his copyhold; therefore the Court of Chancery will not grant an injunction, at the suit of a lord of a manor, to restrain his copyholder from committing waste. 12. Lord C. B. Gilbert says, a copyholder of inhe- Ten. 327. ritance cannot, without a special custom, dig for mines; neither can the lord dig in the copyholder's land, on account of the great prejudice he would thereby do to the copyhold. 1 P. Wms. 13. An action of trover having been brought by Ep. Winton the lord of a manor, by the direction of the Court of V. Knight, Chancery, against a customary tenant, for ore dug 408. and disposed of by the tenant; there never having been a mine of copper before discovered in the manor, the jury could not find that the customary tenant might by custom dig and open new copper mines : the Court of Chancery held that neither the tenant without the licence of the lord, nor the lord without the consent of the tenant, could dig in the mines; being new mines. copper Taylor, 14. It was resolved in a modern case, that the lord Bourne v. of a manor, as such, had no right, without a custom, 10 East. 189. to enter upon the copyholds within his manor, under Curtis v. which there were mines and veins of coal, in order to work them; and that the copyholder might main tain trespass against him. Daniel, Id. 273. Estcourt - 15. If a copyholder suffers the buildings to decay, I Inst. 63 a. it is waste; and if a copyholder builds a house on v. Weeks, his land, it is waste to pull it down. Y 3 1 Salk. 186. Gilb. Ten. 235. Copyholds are descen dible. 16. Copyholds which are granted to a person and his heirs, are descendible, according to the rules of Tit. 29. c. 5. the common law; unless the custom is otherwise, in which case the custom must prevail. Alienable and devisable. Tit. 37. Tit. 38. c. 3. 17. Copyholds do not however in other respects partake of the nature of freehold estates of inheritance. For as they are descendible only by custom, they have not any of the collateral qualities of descent, unless those qualities are also established by the custom. 18. Copyhold estates are not alienable by feoffment, or other common law assurance; but by the general custom of all manors, a copyholder may, by surrendering his estate to the lord, to the use of another, effectually alienate it. 19. Copyholds are also in general indirectly devisable, though not within the statute of wills. 4 East. 271. There are however some customary estates in the north, which are not devisable, either directly or indirectly. May be leased for Years. Roll. Ab. $51. Gilb. Ten. 299. Turner v. 20. A copyholder may by the general custom make a lease for one year; and may, with the licence of the lord, make a lease of his copyhold for any number of years. Lord Coke says, if the lessee be ousted, he shall not sue in the lord's court by plaint, but shall have an ejectment at the common law : because he has not a customary estate by copy, but a warrantable estate by the rules of the common law. 21. In a case of this kind the lessee may assign over his lease, or make an under-lease for years, without any new licence. For the lord's interest is discharged for so many years; and if the copyholder dies without heirs, yet the lease shall stand against the lord, by reason of his licence, which amounts to a confirmation. |