Jurisdictions, Part 82
Tenant by the Verge in ancient Demeſne.
LAnds hold by the Verge, are not pleadable by the Kings Writ but by Bill, for that, that the Free-hold is in the Lord, but there is a diverſity between plow-holders of frank tenure, and Plow-holders of baſe tenure, which are dwelling in ancient Demeſne, for Plow-holders of Free-hold are pleadeable by a Writ of Right cloſe, but Plow-holders of baſe tenure are thoſe which hold by Verge at the Will of the Lord, and the Free-hold is in the Lord, and are not pleadable by a Writ of Right cloſe, 14 H. 4. fol. 1. and 34 Fitzh. fol. 14. C.
Tenant by coppy which holds by the Verge in ancient Demeſne, commits Felony and was attaint, the King (hath yeare, day, and waſte) for that, that the Free-hold was in the Tenant in ancient Demeſne, and yet they have no other evidence then copies of Court Roll, otherwiſe it is of meere Coppy-holders which are out of ancient Demeſne, for the Free-hold is in the Lord, I have ſeen in the County of North: Coppy-holders of frank tenure out of ancient Demeſne, and have uſed a Writ of right cloſe, and have no other Evidences but by coppies, according to the cuſtome of the Mannor, but their Coppies are not at the will of the Lord, 3 Ed. 3. Tit. Br. 22. Stamford fol. 50.
Fitzh. 11. Coppy-holder of a baſe tenure ſhall not have a Writ of Right cloſe, but ought to ſue by Bill in the Lords Court.
Nat. Bre: 11. Right cloſe lieth alwaies between ploughholder and no plow-holders may implead another plow-holder of Lands within ancient Demeſne, unleſs by this VVrit, and ſhall make his proteſtation to ſue in nature of what Writ he will.
Britton fol, 16…: Calls Tenants in ancient Demoſne Plow-holders, and ſaith, that Plow-holders are ſuch which gain our Land.
Fitzh. 14. D. Thoſe Tenants in ancient: Demeſne which hold by the Verge by Coppy at the will of the Lord ſhall not have (Monſtraverunt) againſt their Lord.
Where a Coppy-holder enters, and dies before be was admitted Tenant.
IT was held in the caſe of one Horewood, that where a Coppy-holder hath a Daughter by one Belly, and a Son and a Daughter by another, and dies, and after the Son enters and dies before admittance, that the Daughter of the ſecond Belly ſhal have the Land, for it is (a poſſeſſion of the Brother) and ſo it was adjudged in the caſe of one Stegnes.
Theſe Caſes following I heard agreed for Law.
IF Tenant by Coppy ſurrender generally into the hands of the Lord, and it do not appeare who ſhall have the Land, nor to what uſe the ſurrender is, then the Lord ſhall be ſeiſed to his own uſe.
If Tenants by Coppy let for yeares by licenſe of the Lord, and after releaſe to the Leſſee by theſe words in the Court (remiſe and releaſe) it is void, for that it ought to be ſurrendred into the hands of the Lord, and then the Lord ought to grant the Reverſion to the Leſſee; for by Littleton fol. 15. It cannot paſſe without ſurrender, and yet a Releaſe is uſed of Coppy-hold in the Court in preſence of the Steward.
If the Lord grant parcell of his Demeſne Lands, to hold by Coppy, to one and his Heires, this Coppy is not good, but at the will of the Leſſor, for one cannot make Coppy-hold at this day, but that ſhall be by preſcription, which hath been demiſed and demiſable by Coppy, time out of minde, &c. But if a Coppy-hold eſcheate to the Lord, or he enter in that by forfeiture, and at this day grant that over to J.S. by Coppy, this is good Coppy, and yet, in 13 H. 4. fol. 7. If Lands in ancient Demeſne are eſcheated, and the King ſeiſeth them, and grants them over to J. S. they are frank fee and not ancient Demeſne.
6 H. 4. fol. 2. But if a Coppy-hold ſhall be eſcheated to the Lord, and twenty yeares after that, he grants them over by Copy againe, they are Copy-hold as they were before, for that, that this Land hath been demiſed and demiſable, time out of minde, &c.
If two be Joyntenants by Copy, and one of them makes waſte in all the Land, that ſhall not be forfeiture, but for his part, and alſo if a ſtranger cuts Trees and makes waſte without aſſent of the Coppy-holder, it is no forfeiture.
If the Lord of a Mannor, to which there are Coppy-holders grant by Copy the tenements of one tenant Coppy-holder without juſt cauſe, to another Tenant in Fee or for life, and the Grantee enter by vertue of that grant, this Tenant which hath right, and which was admitted before, may have a plaint in nature of an Aſſiſe of novel diſſeiſin againſt the Grantee.
If the Husband ſurrender into the hands of the Lord, to the uſe of his Wife, and doth not ſay A. his Wife, it is a good ſurrender, for ſhe is certainly known by that name; the ſame Law is, if one ſurrender into the hands of the Lord to the uſe of J. his Son, and hath two Sons named J. it is to the uſe of that J. which it is ment to.
If Tenant by Copy ſurrender his Lands by cuſtome of the Mannour, to two good men out of the Court, to the uſe of a ſtranger, and that made for Money paid, he which ſurrendred cannot countermand his ſurrender before the two good men have preſented it at the next Court, for it is much like acknowledging of a Fine before a Juſtice of Record, but where the ſurrender is to two, to the uſe of his Wife or Son, and not to a ſtranger for Money paid, by one lying in extreamity in perill of death, and after he revives, he may well countermand his Surrender, before it be preſented in Court, or after, if it be not by that admitted afterwards, and that is often uſed, and ſtands with reaſon, and ſo is the Law as it ſeems to me.
If Tenant by Copy of Court-roll be attaint of Felony or Treaſon, the Lord of the Mannour may enter, for Tenant by Copy is but Tenant at will, according to the Common Law, though he hath Inheritance by the cuſtome.
If a Copy-holder ſurrender into the hands of the Lord, to the uſe of another and his Heires, if the Lord will not admit him Tenant, then the Land ſhall remaine in him which made the ſurrender, and yet he to whoſe uſe it was made, may ſue by a petition, or by a Subpena to be admitted.
If one which hath no right, and was not admitted, ſurrender to the uſe of another, and he to whoſe uſe the ſurrender is made, enters into the Land and is admitted, yet he which hath right may re-enter and out him, notwithſtanding the Grant of the Lord.
But it ſeems if a Coppy-hold deſcends to J.S. and he, before that he is admitted Tenant, ſurrender that to the uſe of J. D. and the Lord by his Steward in Court grant Seiſin and admits him Tenant, it is ſaid to be a good ſurrender, and J. D. ſhall injoy the Land againſt J. S. and his Heires: Seeke, for in the caſe againſt Roo, the Iſſue was, if he were admitted according to the cuſtome of the Mannor or not, Quere.and yet this is no diſproofe of this opinion, but if a Coppy-holder ſurrender to the uſe of J. S. J. S. cannot ſurrender before he be admitted.
The Lord of the Mannour (where the cuſtome is that the Tenants hold by Copy) is Chancellour within the ſame Court, Chancellor.and may redreſſe matters there in conſcience where a Bill is exhibited to him, Suitors.ſo that the Coppy-holders are no Judges in the Court.
If an under Steward hold a Court-Baron without authority of the Lord or high Steward, Steward.and the Lord agree and do not contradict the Steward, and there be ſurrenders made, and admittances of Copy-holders in the Court, this is good, but if he take a ſurrender and admit one out of the Court without authority of the Lord or high Steward, it is not good, notwithſtanding a lawfull Steward, as it ſeems may take a ſurrender out of the Court, and admittance made out of the Court is good, if it be entred in the Court-Roll, that he is admitted and hath paid his Fine, and hath done fealty.
And if one holds but one Court by appointment of the Lord, where another hath a Patent to be Steward, and is abſent, ſurrender taken and entred in this Court is good, and alſo is admittance, 2 Ed. 6. Tit. 26.
Note that the high Stewards are for moſt part men of honor, Steward.and great men by patent, and their under Stewards are men learned and are appointed by them, and without Patent, and the uſe is, that they which are under Stewards to ſuch men, take Surrenders out of the Court, and they are well taken by ſuch under Stewards, and the parties are admitted in the Courts held by them, that is in open Court, and alſo no doubt, when ſuch under Stewards take ſurrender out of the Court, and that is preſented by the Homage, as the uſage is in the Court, and the party admit accordingly, this is good, for without authority theſe are not, for if J. S. make a command to the Bailiff, to warne the Court to be held ſuch a day, and it is warned, and J.S. keeps the Court and is not contradicted by the Lord, ſurrender taken by this J. S. out of the Court, and preſented and entred in this Court, is good, though that J.S. have no Patent of his Office, for it is not without authority, for if he cannot keep Court without a Patent, then to every Court it behoveth the Steward ſhould ſhew his Patent, which is not uſed, and was never in Iſſue, whether the Steward had a Patent or not, nor if J. S. be Steward or not, and ſpecially if he keep the Court warned by his command by diverſe daies, before the Court kept, or if the Lord agree that he ſhall keep the Court, and it is inconvenient that for defect in the Steward which takes ſurrender out of the Court, and enters it in the Court by the allowance of the Homage, but that it ſhould be good, otherwiſe one may ſay thirty or forty years after, that the Steward had no Patent of his Office, which is inconvenient, and ought not to be.
Where the Steward of the Biſhop of London of his Mannor of Horneſey, hath a Patent of his Office with confirmation of the Dean and Chapter by the name of Aldred Fitziames, where his name was Etheldred, ſurrenders taken by him out of the Court, and at the next Court are entred, it is found by the Homage that ſuch ſurrender was made, &c. and at the ſame Court the Tenant is admitted accordingly, and though that his Patent in time of the Succeſfor after in Aſſiſe againſt him be defeated by miſ-naming or by other cauſe, yet the Surrenders taken by Aldred Fitzjames (during all the time of twenty yeares before his Patent was defeated) are good and perfect, for that, that the ſurrender was, it is found by the Homage, and alſo for that he was the known Steward, and alſo for that he is Judge, 33 H. 8. Br. Charge 58. Confirm. 30.
The ſame Law ſeems in the ſame caſe, if the entry were it is witneſſed by the Steward or at this Court it is inrolled, ſo, that is to ſay, that J.S. came before the Steward (the Court being abſent) and ſurrendred, &c. and in full Court the admittance is accordingly, this is a good ſurrender, though it be not entred, it is found by the Homage, &c. for the entry of admittance is.
The Lord by A. Fitziames Steward gave him Seiſin thereof, and it is that the Lord by his Steward admitted him, and for that it is good, inſomuch that to that is the aſſent and grant of him which ſurrendred, and alſo of the Lord.
The ſame Law if the high Steward to J.S. which hath no Patent in writting of his Office, takes a Surrender out of the Court, and at the next Court enters that, at the next Court it is inrolled, ſo that J. S. came before the Steward (the Court being abſent) and ſurrendred, &c. And he to whoſe uſe the ſurrender was made be admitted in full Court, this is a good ſurrender.
The ſame Law is like, if J. D. be Steward to a corporation without a Patent of his Office, and takes ſurrender as above, out of the Court and at the next Court enters it, at this Court inrolled, ſo that J.D. ſuch a day came before J. D. Steward and ſurrendred, &c. And he to whoſe uſe the ſurrender is made is admitted in full Court, this is a good ſurrender, for that, that the Steward doth in a Court of copy-hold, he doth it as Judge and is allowed Judge by the Lord.
The ſame Law is, if the Steward which is out-Lawed in a perſonall action or excommunicated, take a ſurrender out of the Court, and at the next Court enter it, it is witneſſed by the Steward, and ſuch a ſurrender is made, and admits him to whoſe uſe the ſurrender was made in full Court, though it was not found by the Homage, yet this ſurrender is good.
If a Judge or a Juſtice be out of his Wits, yet the Fines, Judgments, and other records which were before him ſhall be good, but contrary the gift of an Office, or ſuch like by him, for that is a matter indeed, and the others are matters of Record, for a matter in deed may be avoyded (by being out of his Wits) contrary of matter of Record, 1 Ma. Tit. whileſt he was not in his Wits 7.
The ſame Law is, if the under Steward takes a ſurrender out of the Court, and at the next Court makes his entry of it, at this Court it is witneſſed that J. D. ſurrendred, and in full Court he to whoſe uſe the ſurrender is made, is admitted, this is a good ſurrender, though it be not alſo (it is found by the Homage) for when he holds Court, he is a Judge between the Lord and the copy-holders, and yet, 2 Ed. 6. Br. Court-Baron 22. and copy-hold the 26. is, if the under Steward holds a Court-Baron, and in full Court grants copy-hold without the authority of the Lord or high ſteward, this is good, contrary Law where it is done out of the Court, for it ſeems if the under Steward grants copy-holds, it is intended that if he admits any out of the Court without authority, it is not good, for it is, the Lord granted by his Steward, and not that the Steward granted, for he cannot grant. And alſo the high Steward may admit out of the Court, by ſpeciall uſage and cuſtome within the Mannor uſed, for one which holds by copy of Court roll, ought to have his Eſtate entred in the Court held, and his admittance to be entred in the Court, and for that if the under Steward or the high Steward which hath no Patent, as above, take ſurrender out of the Court, and preſent that in Court, and the Tenant be in the Court admitted, it is good, for it is the Lord by his Steward hath admitted, and the admittance makes him a copy-holder and the Entry of that in Court makes him Tenant by copy of Court roll, for copy-holder is he which holdeth by copy of Court roll, ſo where one admitted in Court and the Lord allowes a Steward, is good.
If a copy-holder of an Eſtate in fee, according to the cuſtome of the Mannour, by licenſe of his Lord let for twenty yeares rendring forty ſhillings yearly, he may have an action of Debt in the common place for this Rent, or as it ſeems he may diſtraine and avow, and yet the avowrie is in the nature of an action reall, and it ſeems no doubt if the Rent be reſerved by Deed Indent, but that he may diſtraine and avow, and yet if (he to whoſe uſe) before the Statute of 27 H. 8. lets by Indenture for yeares, rendring Rent, he to whoſe uſe ſhall have Debt for that Rent, but he cannot avow, and if the Leſſee in this caſe make waſte, he to whoſe uſe, ſhall not have an action of waſt, 26 H. 8. f. 8.
The ſame Law is, where a copy-holder by the cuſtome of the Mannour is not puniſhable for waſte, by licenſe of the Lord makes a Leaſe for thirty yeares, and the Leſſee makes waſte, the copy-holder ſhall not have a Writ of waſte but ſhall ſue in the Lords Court, to puniſh this waſte by plaint, in nature of an action upon the caſe.
If a coppy-holder of an Eſtate taile by licenſe of his Lord let for twenty yeares, rendring the ancient Rent, and dies, the Iſſue in taile may enter and defeat the Leſſee, but if the Tenant in taile of coppy-hold let for forty years by the Lords licenſe, and after the Leaſe makes a forfeiture of his coppy-hold, and the Lord ſeiſes it, and grants that over again by copy to the Tenant in taile and his Heires, or to J. S. and his Heires, it ſeems there the Iſſue of the Leſſor, nor J. S. nor the Lord cannot enter and defeat this leaſe.
The ſame Law is, if a coppy-holder of an Eſtate taile lets for forty yeares by the Lords licenſe and dies, and his Iſſue ſurrenders to J. S. and his Heires, this Iſſue nor J. S. cannot enter and defeat this Leaſe.
To this Court came T. R. and did demand licenſe of the Lord to demiſe all and ſingular his cuſtomary Lands and Tenements, ſcituate, lying, and being within his Lordſhip, to what perſon or perſons the ſaid T. R. pleaſed, to the tearm and for the tearm of 21. yeares next following the date of this Court, to which T. R. the Lord gave licenſe in form aforeſaid, for the Fine often ſhillings paid in the Court, at the view of the Lord of this Mannor.
And it is uſed that the Steward in ful Court, licenſes a copy-holder to leaſe a copy-hold for 20. or 40. years, more or leſſe, at their pleaſure, in the abſence of the Lord, and this ſeems good, for he is Judge in the Court, and when he makes it and enters it in the Court roll, the Lord cannot enter for forfeiture, becauſe of this leaſe, for when the Steward hath entred it, that at this Court T. R. craved licenſe of the Lord to let, &c. to whom the Lord gave licenſe, &c. the Lord is eſtopped to ſay the contrary, but that he gave licenſe, the ſame Law is, where a coppy-holder is admitted in Court and is entred in the roll, to whom the Lord by ſuch a one his Steward, granted him Seiſin, the Lord cannot afterwards gainſay this admittance, and this is to be collected of the caſe aforeſaid, in 2 Ed. Brok. Court-Baron 22.
If a man lets a Mannor for yeares, in which are copyholders, and after a copy-holder dies, the Termor of the Mannour grants the Land by copy for three lives, this is good, the ſame Law is if a Copy-holder of Inheritance ſurrender in the Court of the Termor of a Mannour, to the uſe of one and his Heires, it is good, ſo that the Lord for the time being may take ſurrender in his Court, but in the firſt caſe, ſuch a Termor of a Mannor cannot let a Copy-hold reſerving leſſe Rent then the ancient Rent, but ought to reſerve the ancient Rent or more, 4. M. 1.
But it ſeems if a Diſſeiſor of a Mannour be, and the Diſſeiſor ſeiſes a Copy-hold by forfeiture, or Eſcheate, and grants that over by Copy to a ſtranger, and the Diſſeiſee enter in the Mannor, this ſurrender ſhall not binde the Diſſeiſee, and yet if a Copy-holder of Inheritance furrender in the Court of the Diſſeiſor to the uſe of J. S. and his Heires, this is a good furrender, and ſhall not be avoided by the Diſſeiſees, nor otherwiſe by him which ſurrender, nor by his Heire.
In pleading of a copy is, that the Lord by ſuch a one his Steward did demiſe, and not that the Lord did demiſe, and alſo that a Woman be alone, and privately examined by the Steward, and it behoveth in pleading, to ſay by ſuch a Steward, and name the name of the Steward, and for that it is good order to expreſſe in the copy and the Court-roll that to this Court came J. S. and Alice his Wife (ſhe alone and privately being examined by J. K. the Steward) there, and to ſet the name of the Steward to every copy, and alſo to every Court-roll, for pleading in divers caſes, … the Lord by J. K. his Steward, granted him Seiſin by a Rod, &c. 8 H. 5. fol. 4. and 10 Ed. 4. f. 6.