extinguished in the superior manor, and the tenants of the inferior manor will become tenants of the superior manor (b). and services manor. Every manor must consist of demesnes and services, Demesnes and those are sufficient to support the being of a essential to a manor, if the lord of a manor aliens the mansion house which he had in his possession; yet if the copyholds and services remain it is a good manor (c). Formerly, there could be no manor without a mansion house (manerium, manoir), at which the services were due and might be rendered, and from which this peculiar species of estate derived its appellation. At the present day the demesnes may, and very frequently do, consist entirely of land, and there may be a good manor, although the mansion house and spot on which it stood (usually described as the site of the manor) have been aliened from the manor, or it cannot be now shown that any mansion ever existed on the land; though it would seem that no estate could ever have acquired the name of a manor without possessing a mansion house on the demesnes (d). Copyhold lands are always considered in point of law as part of and as the demesnes of the manor, even whilst they are enjoyed by copyholders of inheritance (e); because the tenancy being at the will of the lord, the lands are supposed to be always in his hands, but in vulgar acceptation it is otherwise (f). The term "demesne lands" properly signifies lands of a manor which the lord either has or potentially may have in his own hands (g). (b) Shep. Touch. by Preston, 93; 1 Leon. 27, 28. (f) Loveday v. Winter, 5 Mod. 246. (g) Attorney-General v. Parsons, 2 C. & J. 279; 2 Tyrw. 223. What things demisable by copy. The services include attendance at the lord's courts, due in respect to such lands as originally were, or are supposed to have been, granted out on various conditions of tenure. They also comprehend the ancient reserved rents, fines for admittance and the like (h). By the general law of copyhold, the lord has a right to insist that the tenant shall come and do fealty and homage; and although the heir of a copyholder has a good title against every person but the lord, he may be required to come in and do fealty and homage (i). The uncultivated residue of the manorial district was termed the lord's waste, and served for public roads and for common of pasture for the lord and his tenants (k); although there is no general common law right of tenants of a manor to common appendant on the waste (1). It is to be observed, "that the right to wastes within the district over which the manor extends is frequently called a manorial right, though the right of the lord to such wastes, where there has been no actual possession, rests merely upon the presumption that they belong to the lord as the present owner of the demesnes, and as the ancient owner of the tenemental lands, by which these wastes are surrounded. The same presumption would arise in favour of any other owner of an extensive district enclosing wastes" (m). 3. What things may be granted as Copyholds. Generally speaking all lands and tenements within the manor, and whatsoever concerns lands and tenements, may be granted by copy; as a fair appendant to a (h) 2 Woodeson's Lect. 37. (i) Roe v. Lovelass, 2 B. & Ald. 455. (k) 2 Bl. Com. 91. (1) Earl of Dunraven v. Llewellyn, 15 Q. B. 791. manor may be granted by copy (n) and a mill(o),a market (p), a fishery (q), and common (r). Underwoods without the soil, and the herbage or vesture of land, may be granted by copy (s). It was decided that a person may hold the prima tonsura of land by copy, while another might have the soil and every other beneficial enjoyment of it as freehold; and that ancient admissions of the copyholders, and those under whom they claimed the land, by the description of tres acras prati, might be construed only to carry the prima tonsura, if in fact they had enjoyed no more under such admissions; while another had the aftercrop, had cut the trees and fences, scoured the ditches and kept the drains, though the copyholder might have paid all the rates and taxes, which was in his own wrong (t). 4. Of the Immemorial Existence of Copyholds. A copyhold must have existed time out of mind, and cannot begin at this day (u). But if lands have been granted by copy for a number of years, as sixty or eighty, and it can not be shown that they were not demisable before that time, the law will presume that they were regularly granted, and consider them as proper copyholds. But in this case, as Calthorpe says, it is not the number of years, but the memory of man, on which their nature as copyhold depends. Such a n) Co. Litt. 58 b. (0) 4 Leon. 241. (p) Cro. Eliz. 413. Moo. 355. Cro. Eliz. 814; Com. Dig. Copyhold (C 1). Much information on the subject of the demisable quality of common in gross, rent charges, &c. will be found in the case of Musgrave v. Cave, Willes, 324. See 1 Scriv. Cop. 104-107, 4th ed. (s) Co. Litt. 58 b; 4 Rep. 30 b. (t) Stammers v. Dixon, 7 East, 200. (u) Co. Litt. 58b; Kempe v. Carter, 1 Leon. 55; Revell v. Jodrell, 2 T. R. 424. Power of lord to grant waste lands by copy. number of years will create a presumption; but if it can be shown that they were once not demisable, then such presumption must give place to proof (x). A copyhold cannot be created at this day except by act of parliament (y), or by custom to warrant the granting the waste as copyhold, and then it is by operation of the custom, which when the lord shall have granted any portion of the waste, although it has not been granted before, makes that which was potentially demisable before as copyhold absolutely so (*). A power for the lord of a manor to grant waste lands with the consent of the copyholders of the manor cannot be supported without a special immemorial custom to warrant it (a). Where it was proved that within the manor there existed a custom for the lord to grant parcels of the waste whenever he should think proper, to hold by copy of court roll, it was observed by the judges that, although the premises had been newly granted by copy, yet since they were granted by virtue of an immemorial custom, they were to be considered as much copyhold tenements as if they had been holden by copy of court roll time out of mind. Copyholds similar to those in question were said to be very common in the north of England, and had often been recognized by judicial determinations (b). There may be a valid custom in a manor, within the limits of an ancient forest belonging to the crown, to grant parcels of the waste to be held in severalty (x) Calth. 19, 54, 55; Gilb. Ten. 274, 5th ed., n., by Watk.; see Cro. Eliz. 351; 3 Leon. Case 158. (y) There are some instances of a power to grant by copy being conferred, 35 Hen. 8, c. 13; 37 Hen. 8, cc. 2, 22; 23 Car. 2, c. 3; 1 Watk. Cop. 47, n., 4th ed.; see Customs of West Sheen, &c., 2 Coll. Jur. 383, VIII. (z) Doe d. Lowes v. Davidson, 2 M. & Selw. 184. (a) Steel v. Prickett, 2 Stark. N. P. 470. (b) Northwick v. Stanway, 3 Bos. & P. 346. by copy of court roll and inclosed, in exclusion of persons having rights of common (c). A grant of parcel of the waste of a manor to hold to B. and his heirs by way of increase of his copyhold by such services as the copyhold was subject to, was held not to enure as a copyhold grant, there being no custom to warrant it; and it could not enure as a conveyance of the fee simple for want of sufficient formalities (d). Proof by the steward of several grants of part of the waste for pecuniary considerations was deemed by the court to be a strong presumption in favour of an existing custom for the lord to grant out the waste by copy (e). that waste manor. Prima facie the lord of the manor is entitled to all Presumption waste lands within the manor; and it is not essential land belongs that the lord should show acts of ownership of such to lord of lands; and evidence that the public have been used to throw rubbish on waste lands is rather evidence that it belongs to the lord than to any private individual (f). A right to any part of the waste may, however, be established against the lord by repeated acts of ownership, as by cutting trees, digging turf, and the like (g). The lord may, with the consent of the homage, grant part of the soil for building, if he has immemorially exercised such right (h). But a custom for the lord to grant leases of the waste of the manor without restriction, is bad in point of law (i). But a custom to inclose (even as against a common (c) Boulcott v. Winmill, 2 Camp. 259. (d) Rex v. Inhabitants of Wildy, 2 Mau. & S. 504. (e) Rex v. Warblington, 1 T. R. 242. (f) Doe d. Dunraven v. Williams, 7 Carr. & P. 332. (g) Tyrwhitt v. Wynne, 2 B. & Ald. 554; Barnes v. Mawson, 1 Mau. & S. 77; Richards v. Peake, 2 B. & C. 918. (h) Folkard v. Hemmett, 5 T. R. 417. (i) Badger v. Ford, 3 B. & Ald. 153. |