22. The lord can only grant a licence to lease, Gilb. Idem. during the continuance of his own estate in the manor; therefore a lease for years, made by licence of a lord, who is only tenant for life, will cease at the death of the lord.

Debts.

v.

Park, R. 190.

Tit. 38.

Subject to

23. Copyholds are not liable to the payment of Not liable todebts, even of record; nor to debts due to the Rex crown, because if a creditor were allowed to take Budd, possession of a copyhold, it would be prejudicial to Tit. 14. § 79. the lord. Upon the death of a copyholder of inherit- 4 Rep. 22 a. 8 Ves. 394. ance, his estate is not assets, in the hands of his heir, Coomber as freehold estates are, for payment of specialty debts. v. Gibson, 24. Copyholders not having the freehold of their lands, their widows are not entitled to dower. But Free Bench. in most manors in which there are copyholds, there 4 Rep. 22 a. is a custom that the widows of copyholders shall have a certain portion of their husband's lands, for their support, which is generally called the widow's free bench. As this right depends upon the particular customs of each manor, it varies in different manors, both as to the quantity to which the widow is entitled, and the conditions under which it is held.

25. In most manors free bench consists of one 1 Inst. 33 b. half of the husband's copyhold; in others of a third,

or a fifth, in some few of the whole. It is generally 1 Keb. 926. an estate for life; but in many manors is forfeited by incontinency, or a second marriage.

Fragm.

26. In the manors of East and West Emborne in Blount Berkshire, the widows of copyholders are entitled to free bench, dum sola et casta fuerint. If a widow is found guilty of incontinency, she loses her free bench; unless she comes into Court riding backwards upon a black ram, and repeats certain words; the same custom prevails in the manor of Chadleworth in Berkshire, and that of Torre in Devonshire.

Howard v.
Bartlet,
Hob. 181.

Salisbury

v. Hurd, infra.

Gilb. Ten. 288. Vaughan v. Atkins,

Tit. 37. c. 1.

27. Free bench is not only incident to copyholds of inheritance; but also, in some manors, to copyholds granted only for life.

28. Lord Howard being seised of the manor of Stockwood in Dorsetshire, where the custom was, that the widows of copyholders for lives should enjoy, during their widowhood, the customary lands of which their husbands died seised; granted a customary tenement to John Bartlet for life, by copy. It was resolved, that upon the death of J. Bartlet his wife should have her widow's estate in the land, it being an excrescence, which by the custom grew itself out of the estate.

of

29. A right to free bench attaches before the admittance of the husband, upon a descent or surrender. But a widow is not entitled to free bench out

Tit. 12. c. 2. of the trust of a copyhold.

Baker v.
Beresford,
Raym. 58.

Tit. 6. c. 3.

§ 20.

4 Rep. 30 b.

Oland's Case.

Cro. Eliz.

30. Where the widow of the ancestor holds a moiety of the copyhold, as her free bench; the widow of the son will only be entitled to a moiety of the remaining moiety; upon a principle established in the case of dower.

31. Where a widow is entitled to free bench, she shall have all the incidents to dower; therefore will be entitled to the same damages as a dowress, under the statute of Merton.

32. Where free bench determines by the act of God, 5 Rep. 116. there shall be emblements, as in the case of a freehold estate for life. Where it determines by the act of the widow, as by incontinency, or a second marriage, it is otherwise.

460.

Tit. 3. c. 1. $ 24.

Kitch. 123.

33. If the widow be entitled to the whole of the copyhold, as her free bench, she may enter immediately; as the law casts the possession upon her, in the same manner as it does upon the heir, in cases of

descent. Where the widow takes a portion only, it should seem that the possession is not cast upon her, any more than in the case of dower at common law. Consequently that she is not entitled to enter, without an assignment.

734. An ejectment will not lie for a third part of a Chapman copyhold, as free bench; but the widow must levy a 2 Show. R. v. Sharpe, plaint in the manor court, in the nature of a writ of 198. dower; and the homage must set out the same. If the custom be for the widow to have a third part, not in the nature of dower, that is, in severalty, but in common with the heir, it is then otherwise.

ton,

Ten. 173.

Tit. 6. c. 3. § 29.

Which is barred by a

Jointure.

1 Ves. 54.

- 35. When the widow is admitted to her free bench, Burneford she holds of the lord; and the heir is not admitted v. Packingduring her life: which Lord Chief Baron Gilbert 1 Leon. 1. says, plainly proves that the course of tenure of copyholds is not like that of freeholds. For in that case she should hold of the heir. 36. A jointure, whether legal or equitable, is a good bar to the claim of a widow to free bench, as well as to dower. 37. A man, in consideration of his marriage, and to Walker v. make some provision for his intended wife, by deed Walker, executed before marriage settled upon her, if she should survive him, part of his real estate for her jointure, and in full bar and recompence of all dower or thirds which she could be entitled to, or any way claim, out of any lands, tenements, messuages, or hereditaments, of which he then was, or ever after during the coverture should be, seised of freehold or inheritance. After the marriage the husband purchased copyhold estates, of which the wife got possession upon his death, as her free bench. It was decreed against the widow, upon the principle that

2 Ab. Eq. 101. S. P.

Alienation of

the jointure barred her of free bench, as well as of dower.

And by the 38. The right to free bench does not, like dower, the Husband. attach on all the copyholds whereof the husband was possessed during the coverture, but only on those of which he died possessed, or as the custom usually expresses it, whereof he died seised; so that a copyholder may defeat his wife's right to free bench by any species of alienation.

Parker v.
Blicke,
Cro. Car.
568.

Benson

v. Scott,

Skin. 406.

39. Where the custom of the manor was, that the wives of copyholders, dying tenants of the manor, should be endowed; a copyholder became a bankrupt; the commissioners bargained and sold his copyhold for the benefit of his creditors. The copyholder died before the bargainee was admitted. Resolved, that the widow was barred of her free bench, because her husband did not die tenant.

40. A person surrendered his copyhold by way of 4 Mod. 251. mortgage, and died without paying off the money, leaving a widow, who claimed dower. The Court said the widow's title did not commence by the marriage, if it did, the husband then could do nothing to prejudice it; but it was plain he might alien or extinguish his right. The free bench grew out of the estate of the husband, it was his dying seised which gave the widow a title; as the husband had a defeasible estate, so the wife might have her free bench defeated.

Salisbury v. Hurd,

41. Upon a motion for a new trial, it appeared that Cowp. 481. the custom of the manor of Warminster was, to grant copyholds for three lives; that the first life had a power of surrendering the whole estate; and the widow of a tenant who died seised was entitled to her free bench. That one F., then a copyholder for three lives, surrendered to Hurd, the deceased husband

of the defendant, who, by licence from the last lord, demised to Singerfor 99 years, by way of mortgage. Then Hurd died, and Singer demised to the plaintiff. The widow of Hurd claimed her free bench, there being no special custom to make a demise of this kind; therefore contended that the estate of her husband was not determined, according to the custom of the manor, but he must be deemed to have died seised of the copyhold, and the widow still entitled to her free bench. On the other side it was said, that the copyholder, having obtained the lord's. licence, might do what he pleased with the estate, and could have conveyed it from the wife, in any form he thought fit; consequently her right of free bench must be subject to the mortgage.

The Court was of opinion, that the widow was not entitled to free bench: They held there was a great difference between the custom of free bench, found in this case, and dower: the widow was entitled to dower of all her husband was seised of during the coverture, but here her right was confined to such estates as he should die seised of; consequently as between lord and tenant, they might defeat the wife's estate when they pleased.

v. Atkins,

42. A surrender of a copyhold to the lord, for Vaughan the purpose of alienation, will therefore operate as a Tit. 37. c. 1. bar to free bench. And even a surrender to the use

of the surrenderor's will bars his widow; because 1 Inst. 59 b. there the copyholder parted with his estate.

Case,

43. It was held in 2. Ja. I. that if a copyholder Fardey's makes a lease for years, his widow shall not avoid it, Cro. Ja. 36. without a special custom, because the lessee comes in under the custom, and by the lord's licence, as well as the widow.