A Treatise

ON THE

LAW OF COPYHOLDS.

CHAPTER I.

INTRODUCTORY.

Ir is intended in the following chapters to discuss the Nature of chief points in the law of copyholds, including in that term copyholds. all those customary estates the title to which is not only modified but altogether constituted by local custom (a).

The following is Littleton's definition :-"Tenant by copy of court-roll is as if a man be seised of a manor, within which manor there is a custom which has been used time out of mind of man that certain tenants have (been) used to have lands and tenements to hold to them and their heirs in fee simple or fee tail, or for life, &c., at the will of the lord according to the custom of the same manor. And such a tenant may not aliene his land by deed, for then the lord may enter as into a thing forfeited unto him. But if he will aliene his land to another, it behoves him. after the custom to surrender the tenements in court into the hands of the lord to the use of him that shall have the estate. And these tenants are called tenants by copy of court-roll, because they have no other evidence concerning their tenements but only the copies of court-roll. . . . And although some such tenants have an inheritance according

(a) Brown's Case, 4 Rep. 21a; Co. Litt. 113b; Cru. Dig. tit. 10, c. 1.

E.

B

Customary freeholds.

to the custom of the manor, yet they have but an estate at the will of the lord according to the common law" (b). Copyholds may therefore be compendiously described as estates in some parcel of a manor, founded on the lord's grant and tenant's admittance enrolled in the customary court, amounting in law apart from the custom to mere tenancies at will, but where the custom comes into question having a more permanent character. In the same land the lord has a freehold and the tenant a customary estate. They are mainly distinguished from freeholds by this criterion, that all alienations must be in part at least transacted in the lord's customary court; and hence the proper evidences of title to such estates are copies of the courtrolls, and the tenants are denominated copyholders (c). Except under certain special circumstances which will be afterwards mentioned, a copyhold estate cannot be alienated by any common-law conveyance.

Besides copyholds at the will of the lord, there are some customary estates which are held according to the custom of the manor, but not at the will of the lord. These are called customary freeholds, and were at one time considered to be of a freehold nature (d); but it is now settled that they are of the nature of copyholds, and that the freehold inheritance is in the lord of the manor (e); and there are besides some other varieties of copyholds, which will be afterwards described.

There are also several kinds of freehold tenure, in which the title is modified, though not constituted, by local custom; and these must be carefully distinguished from the customary freeholds mentioned above. It will be convenient to give a short account here of some of the ancient tenures, in order to make clear the distinction

(b) Litt. ss. 73-75, 77; Co. Litt. 57 b-60 a.

(c) Burt. Comp. ss. 1258-1263. (d) Gale v. Noble, Carth. 432; and see Bingham v. Woodgate, 1R. & M.32.

(e) Stephenson v. Hill, 3 Burr. 1273; Thompson v. Hardinge, 1 C. B. 940; Portland (Duke of) v. Hill, L. R. 2 Eq. 765.

between those estates which are wholly supported by custom and those which merely have certain customary qualities and incidents.

tenures.

The chief division of tenures was based in part upon Division of the certainty or uncertainty of the amount of service due, and in part upon the supposed dignity or baseness of the service.

In the spiritual tenure of frankalmoigne, or free alms, Frankand in all the military tenures, the services were both free almoigne. and uncertain; but from all other free tenants a fixed amount of services was due, and their holdings were included under the general name of socage (f). This term Tenure in seems to have been originally applied to fixed services of socage. husbandry. Where these rustic services had not been commuted for a money-rent, the tenure was called villein socage, as distinguished from free and common socage. The term villein socage is also used as an equivalent for privileged villeinage.

Where the service was of a base kind, the tenure was at Tenure in villeinage. first known as villeinage, of which there were several kinds, some of which developed into copyholds, while the rest have long since become obsolete. Littleton, in defining the term, said:-"Tenure in villeinage is most properly when a villein holdeth of his lord, to whom he is a villein, certain lands or tenements according to the custom of the manor, or otherwise at the will of his lord, and to do his lord villein service; . . . . and some free men hold their tenements according to the custom of certain manors by such services, and their tenure also is called tenure in villeinage; and yet they are not villeins, for no land held in villeinage, or villein land, nor any custom arising out of the land, shall ever make a free man villein" (g). Of the various kinds of villeinage, the most important were pure villeinage and privileged villeinage.

Pure villeinage was where a serf held land of his master (g) Litt. s. 172.

(f) Co. Copyh. s. 18.

Customary tenants in villeinage.

on condition of doing what he was bidden, or where either a free man or a serf held land at the will of the lord according to the custom of the manor by base and uncertain service (h). Privileged villeinage was where land was held according to the custom of the manor by services which were base and servile, but certain and expressed by name (i). Tenants of the latter class were most usually found in manors belonging to the Crown.

At some very early time most of the dues and services of all these customary tenants in villeinage were reduced to a certainty, and were recorded in the court-rolls. Customary tenants in villeinage were described in the Dialogue of the Exchequer compiled in the time of Henry II. They are mentioned in the writ called Extenta Manerii, printed among the statutes made in 4 Edw. I., in the following terms: It is to be inquired also of the customary tenants, how many they are, and how much land each holds: what are the services of each in work or customary payments: what the works and customary services of each are worth yearly: how much rent of assise besides the work and customary dues each pays yearly, and which of them may be taxed at the will of the lord, and which not." As early as 1368 they are called tenants by the roll according to the will of the lord (h). In the reign of Henry VI. it was held that a customary tenant ejected by his lord had no remedy but to petition in the lord's court (1). But in the reign of Edward IV. it was held that a copyholder, observing the custom and performing his services, might have an action of trespass against the lord who ejected him (m). It was soon afterwards acknowledged that the will of the lord was exerciseable only according to the custom of the manor, and the customary tenants

(h) Litt. s. 172.

(i) Bracton, i. c. 11, fo. 7.

(k) Yearb. Mich. 42 Edw. III. fo. 25.

(2) Litt. 8. 77; Fitzh. Abr. "Subpena," 21.

(m) Yearb. Mich. 7 Edw. IV. 19, and Mich. 21 Edw. IV. 80 b; Co. Litt. 61 a.