ESTATE. forming together but one estate, the particular tenant, COPYHOLD and the remainder-man, it should seem, form together but one tenant, and that consequently no heriot can be due till the death of the survivor of them all, unless either of them should alien his interest, when the case would be altered in respect of the interest so aliened, as the alienor would cease to be tenant of the lord, and the alienee be in of a new estate, whence it should seem that an heriot would be due, not only on the alienation of the alienor, (where an-heriot is due on alienation,) but also on the death of the alienee. A feme covert not being capable at law of possessing Feme covert. any personal property, it follows that no heriot can be payable to the lord upon the death of a feme covert, for it were absurd that the law should require her to pay that which it does not allow her to possess *; but as she may in equity possess a separate estate, by virtue of a contract entered into with her intended husband, previous to her marriage, it should seem, that where that is the case, a heriot might be demanded on her death, out of such her separate property. Nor will any be due on the death of her husband in her life, for the husband and wife being jointly seised, in her right by entireties', (and not the husband alone in right of his wife, according to the usual mode of expressing it), there is no change of the tenancy by his death; for the estate and seisin she had during her coverture, remains in her, and she consequently continues tenant to the lordm; but where the husband on the death of the wife becomes entitled as tenant by the curtesy, an heriot is due upon his death, as in such case he dies, tenant to the lord". h Co. Lit. 143, a. * See Keilw. 83, b, pl. 7, 8, sed quare. * Keilw. 84, a; 4 Leon. 239. Anon. 329. Plow. 191, a; Dougl. m See Plow. Qu. 64; Co. Lit. 185, b. 351, a. " See 2 Watk. Copyh. 137, 153; Gilb. Ten. 172, 173. COPYHOLD Corporation. When heriot extinguished, and when multiplied. And it is the same of a widow entitled to her freebench of copyhold, who, whether she take the whole or a part only of the land, as her free-bench, becomes tenant to the lord (1), and he is entitled to an heriot on her death. As a corporation is of perpetual continuance, and can therefore never die, no heriot can, generally speaking, be due in respect of copyholds in their lands; it seems, however, that by special custom, an heriot may be due on the natural death, or the avoidance of its head, as the visible representative of the body corporate°. If an heriot be due by the custom of the manor, i. e. that upon the death of every tenant of the manor the lord shall have an heriot, and the lord purchase parcel of the tenancy, it shall not extinguish the custom, because the lord has purchased a part only, and the tenant, on account of the residue, is still within the lord's homage, and the tenant of his manor: and consequently upon his death, as upon the death of every other tenant of the manor, the lord is entitled to the heriot P. But if the heriot were due by tenure or heriot service, and the lord had purchased parcel of the tenancy, the whole heriot service had been extinct; for being entire, it cannot, from the nature of the thing, be apportioned, and the tenant shall be discharged from the payment of it; for the whole tenancy being equally chargeable with the payment of such service, the lord by his own act shall not discharge part, and throw the whole burden upon the residue, for his own private benefit and advantage ¶. See Fitz. Ab. "Harriot," 7. P 8 Co. 106, b; 2 Brownl. 296. 9 8 Co. 104; 6 Co. 1; Moor, 203; Co. Lit. 149, a. (1) See Gilb. Ten. 172; 2 Watk. Copyh. 137, 153; where a clear explanation is given of the difference between a doweress at common law, and a freebencher by custom, in respect of the one holding of the heir, and the other of the lord. ESTATE. An heriot, we have said, may by custom be due on the COPYHOLD tenant's alienation, as well as on his decease', in which case, however small the copyhold interest parted with be, Alienation. it will entitle the lord to his heriot; and if a particular estate only be parted with, an heriot will also be due on the alienation of the reversion, expectant, on the determination of such particular interest'. If there be lord and tenant by fealty and heriot service, and the tenant alien part of the tenancy, the alienee should hold by a distinct heriot service; for in this case the services shall be multiplied (1); and if after such alienation the lord purchase the residue of the tenancy, only the heriot service due from the first tenancy shall be extinguished; because by the alienation each held his portion by a separate and distinct tenure; and therefore if the lord purchase one tenancy, that can no way affect the services of his other tenant; but if the lord, before the tenancy had been separated and held by two distinct tenures, had purchased part of it, the whole heriot service had been extinct, for the reasons above mentioned'. If by the custom of a manor every copyholder, upon his alienation and surrender, is to pay a heriot to the lord, and a copyholder surrender part of his copyhold to one, And see Kitch. 133, a. 134, b. 135, b. 158. 2 Watk. Copyh. 157, J. Talbot's case, 8 Co. 104; Co. Lit. 149, b. And see 2 Watk. Copyh. 159. (1) If the tenure be by homage, fealty and a horse, hawk or spur, if the tenant alien part, the services shall multiply, and both feoffor and feoffee shall pay each of them a horse and a spur to the lord; but if the tenure had been by any corporal service, as to be butler to the lord, steward or bailiff of his manor, or to cover or repair his house, or to reap or thresh his corn; in all these cases upon alienation of part, such personal services shall not multiply. Co. Lit. 149, a. b; Bruerton's case, 6 Co. 1 ; Plow. 240, b. ESTATE. COPYHOLD and part to another, and retain part in his own hands, the heriots in this case shall be multiplied; and as to the first alienation, the heriot shall be paid by the copyholder who aliened, because he still continued tenant to the lord, and so upon the alienation of every other tenant toties quoties; for otherwise it might be in the power of the copyholder entirely to defeat the lord of his heriot". IX. WHAT ACTS OF PARLIAMENT EXTEND TO COPY- ALTHOUGH COруholds are of course as much under the jurisdiction of the legislature as other estates, yet out of regard to the interest of the lord, and the various customs of the different manors of which they are holden, which might be impugned whilst not under the contemplation of the legislature at the time, acts of parliament are holden not to extend to copyholds unless expressly mentioned. Hence the general rule for the exposition of statutes with respect to their extending or not extending to copyholds, seems to be this, that where an act of parliament alters an estate, interest, tenure, custom or service of the manor, or does any thing in prejudice either to the lord or tenant, there the general words of the act will not extend to copyholds; but when an act made for the public good in general, operates no prejudice to the lord or tenant, there copyholds are bound by them*. But subject to this distinction, the construction of the act must be governed by its general import. If therefore the words of an act are such as clearly to extend to copyholds, (though not expressly named) they will be bound equally with freehold, unless the injury consequent upon "Snag v. Fox, Palm. 342; Chapman v. Pendleton, 2 Brownl. 293; 2Watk.Copyh. 159; and see 1 Ca. Op. 221. *Co. Copyh. s. 53; Heydon's case, 3 Co. 7; 1 Leon. 4; Moor, 128; Cro. Car. 42; Skin. 297; 1 Salk. 185; 4 Mod. 83; and see 2 Watk. Copyh. 185; Gilb. Ten. 188, 417, n. 78. ESTATE. such construction be evident and indisputable. Thus if COPYHOLD the words of the statute be "lands, tenements and hereditaments," copyholds will primâ facie be bound as they are comprised within each of those terms; but if the purport of the act be, that such lands, &c. shall, on the tenant's being convicted of treason, be forfeited to the King, copyholds could, without doubt, be construed to be not within the statute; because if they were, it would be a manifest injury to the lord, to whom, and not to the King, as will be shown by and by, the lands would, on such an event, accrue. And it cannot be supposed that the legislature had it in contemplation to make the lord a sufferer for the crimes of his tenants (1). And it is upon the principle above adverted to, the construction of other acts, relative to their extending or not extending to copyholds, have been determined. Thus copyholds are held to be within the statute of limitation, for that is an act made for the preservation of the public quiet, and no ways tending to the prejudice of the lord or tenant, except only as to fines payable to the lord b. But whether the stat. 18 Jac. 1, de donis conditionalibus, extends to copyholds, has been a subject of much controversy; but it seems now to be settled that it does, with this And see Glover v. Cope, z And see Co.Copyh. 149. b 2 Keb. 536. See Co. Copyh. s. 53; Rowden v. Malster, Cro. Jac. 42, (see the arguments in this case); 6 Vin. Abr. 197; Gilb. Ten. 165. (1) In Harrington v. Smith, 2 Sid. 43, and see Ib. 74; the reason urged for statutes not extending to copyholds was, that copyholders not having a vote in the election of the knights of the shire to parliament, are not parties to an act of parliament; but as this reason would exempt them from all other restraints of the legislature, and also exempt numberless others, besides copyholders, it seems too futile to merit any serious attention. |