Jurisdictions, Part 85
Copy-holders.
COpy-hold Lands were before the Conqueſt, and it was called Folk-Land in the time of the Saxons, and the Charter-lands are called Bock-land: And alſo Bracton, Book 4. allows of Copy-hold land, and ſayes, That doing their Services and cuſtomes, Their Lords cannot put them out: And ſo Copy-hold Eſtates, have in time of every King ſince the Conqueſt by all the Juſtices been allowed; ſo that for the antiquity, and their continuall alowance from time to time, the Eſtates of Copy-holds are affirmed in Law; yet Fitzh. fol. 12. b. ſaith, That Copyholders in ancient times, were called Tenants in Villainage, or baſe tenure: But this doth not make them Villaines, for Littleton, fol. 39. ſaith, That ſome Free men hold their Tenements, according to the cuſtome of certaine Mannors, by Villaine Services, and yet they are not Villaines, and though at the beginning of Copy-holds, they had but a baſe Eſtate, and at the will of their Lords, yet when they have continued their Eſtates by Copy, of time out of minde, then doing their cuſtomes and ſervices, as Copy-holders ought to doe, they ought to enjoy their copy-holds, whether the Lord will or no; and it appears by divers Statutes, that copy-holds have been in reputation, for by the Statute of 1 R. 3. chap. 4. & 19 H. 7. chap. 13. Copy-holder which might expend by the year 26, s. 8. d. ſhall be accounted of the ſame ſufficiency to be impannelled of a Jury, as he which might expend 20. s. per annum of Free-hold land, and by 2 Ed. 6. chap. 8. the intereſt of Copy-holders are preſerved, notwithſtanding they are not found by Office after the death of the Kings Tenant; and by 13 Eliz. chap. 7. Lands of a Bankrupt, as well copy-hold as free-hold ſhall be ſold; ſo it appears copy-hold Eſtates ſhall be regarded; and thoſe Demeſnes which are in the hands of the Copy-holders, are ſuch Demeſnes as the ſervices which they do, make a Mannor, though the Lord have no other Demeſnes in his own hands, nor in his Farmors, Bailiff, or Servants, for it is Demeſnes, having regard to the Lord, for that, that upon every Surrender the Lord hath medling, and grants it over in his Court.
And if you will admit that an Eſtate Tail by uſage of time out of minde, may be of Copy-hold within a Mannour, where it hath been uſed by preſcription, and Plaints of (Formedon) have there been brought, why will ye doubt, but that it may be well cut off by common recovery, in Plaint, in nature of a Writ of Entry in the (Poſt) or at leaſt in nature of a Writ of Right, and Miſe ioyned upon meer Right, and after Default made by the Tenant, and Judgement final given, though that theſe Recoveries have not been uſed there by preſcription, for they are at the common Law, and Plaints in nature of theſe Writs are to be ſued there of copy-hold.
It is ſaid, that a Fine levied in ancient Demeſne is of no worth, for it is no Court of Record; but it is ſaid, that common Recoveries may be ſued there, to cut off the Intail, and good, for that, that the land ſhall be pleaded there by a Writ of Right cloſe, and not otherwiſe, and copy-holder ſhall be impleaded in Court Baron of the Mannour by Plaint, and not elſewhere. And for that the Recoveries aforeſaid, to cut off the Intail of a copy-holder may be there, though they were not there uſed before, if there be Eſtates Tail there, and if uſage makes the Eſtate Tail, and alſo uſage makes the copy-holder to have an Eſtate of Inheritance by cuſtome, and is good, 50. Book of Aſſiſes 9.47 Ed. 3.38.
And though Littleton, fol. 16. If Lord out his copyholder, he hath no other remedy but to ſue to his Lord by Petition, for he ſaith, the Lord cannot break the cuſtome which is reaſonable; but if ſuch Lord will break the Cuſtome, it is no Reaſon to ſuffer ſuch a Lord to be his own Judge, and to compell a copy-holder to ſue to him by Petition. But for that that divers Lords are of an ill conſcience, that before were as I have heard, for that divers grave Judges now hold, that a tenant copy-holder may have Treſpaſs againſt his Lord, according to the opinion of Brian and Danby.
And this at this day ſeems reaſon, for though at the beginning copy-holders had but Eſtate at the will of the Lord, yet by the continuance of this Eſtate of time out of minde, they have ſuch Inheritance by the cuſtome of the Mannour that the Lord (doing his Services) cannot out them, and the preſcription goes to the Land, and not to the Lord, nor to the occupation, for that is copy-hold land which hath been let, and demiſable time out of minde, &c.
If the Tenant by copy deny to do his Services, the Lord may enter for forfeiture, if it be preſented by the Homage; but if the Tenant by chance makes a Default at the Lords Court, and doth not deny his Service, it ſhall be amerced, and is no Forfeiture; the ſame Law if his Rent be behinde, and he doth not deny to pay it, that is no Forfeiture, but the Lord may diſtrain, but by Littleton, fol. 51. If the Tenant upon demand be not ready to pay Rent Seck, or if the Tenant nor none for him, be dwelling upon the Land to pay the Rent Seck, when it is demanded, this denying is Diſſeiſin; yet in the caſe aforeſaid, I conceive, that where a copy-holder makes Default, and doth not deny his Services, or is not upon the Land ready to pay upon demand, this is no deniall which ſhall make a Forfeiture, for Forfeitures are not favoured in Law, but to be taken ſtrictly according to the words, and that is to be intended upon denying in deed by the Tenant, 42 Ed. 3. fol. 25.
And it ſeems that the Lord cannot enter for forfeiture, before that that be found by Homage, but if a Copy-holder alien by Charter, or commits Felony, or Treaſon, and be attaint, theſe are Forfeitures without Preſentment, and the Lords may enter, for theſe are notorious and apparent to be againſt the Cuſtome, but otherwiſe it ſeems where a Copy-holder makes waſte.
12. Eliz. It was ſaid, that if a copy-holder will not be ſworn of a Jury… or alien and make copy-hold Free-hold, this is forfeiture, for that, that the Lord may enter without preſentment, but for negligent acts, as for not doing of ſervice or Suite of Court, the Lord cannot ſeiſe without preſentment by the Homagers, and then agree if an Infant do not come within a yeare and day after Proclamation made, yet he hath not forfeited his copy-hold, and this caſe was between Hautree and his copy-holder.
If copy-holder lets by Indenture, which is forfeiture, and after ſurrenders to the uſe of J. S. and he is admitted in, the Lord after ſhall not take advantage of forfeiture, for the Homage are not to inquire of any forfeiture, but of forfeiture made by the Tenants, and he which commits the forfeiture is not now Tenant, and admittance to pay his Fine is agreement of the Lord, that he admitted ſhall have that according to the cuſtome, that is to ſay, he doing his ſervices ſhall have that to him and his Heires, according to the cuſtome of the Mannour.
It is ſaid, that a copy-holder cannot alien by Deed, for if he do ſo, the Lord may enter for forfeiture, and ſo it is the like if he alien without Deed, in ſuch manner that the Land may paſſe, as if he lets for life without Deed, and makes livery, the Lord may enter, but if he do not make Livery otherwiſe it is; the ſame Law it is, if a copy-holder bargain and ſell his Land by Indenture, and do not inroll it, nothing paſſeth by this bargain, and for that it is no forfeiture, Lit. f. 14.
If Tenant by copy of Court-Roll make a feoffment, the Lord may enter for forfeiture, but this is to be intended, if he make a feoffment and makes Livery, it is a forfeiture, but if he make no Livery, the Feoffee is but Tenant at will, and it is no forfeiture, 11 H. 4. fol. 161.