ESTATE.

[BOOK 11. PART 11. COPYHOLD according to the custom of the manor, yet such power may be, in various ways, destroyed'; as if the lord change the nature of the estate, whilst in his hands, by creating a common law interest. Thus, if copyholds come into the lord's hands in fee, and he make a lease of them for life, years, or for any other certain time (1), the copyhold is destroyed; because, during those estates, it was neither demised nor demisable by copy.

So if the lord make a feoffment in fee, upon condition, and afterwards enter for the condition broken, yet it cannot be granted again by copy; or if the land so forfeited or escheated, before any new grant made, be extended upon a statute or recognizance made by the lord; or if the wife of the lord, in a writ of dower, have it assigned to her, though these interruptions are by act of law, yet, inasmuch as they are lawful, it cannot again be granted by copy.

But if the lord keep them in his hands, though never so long, yet may they be granted again by copy. And so if a copyhold in fee, escheat to the lord, and he grant it to another for life, he may grant the reversion by copy, or grant a new copy on the death of the tenant for life: for the grant for life was no interruption of the custom.

So if the lord be disseised, and the disseisor die seised, or if the land be recovered by the lord by a false verdict, or erroneous judgment, though it be not demisable by copy till it be recovered by the lord, or the judgment be reversed; yet after it is re-continued, it is grantable again by copy, because the interruption was tortious (2).

(1) Secus, if he lease it at will. 4 Co. 31; 5 Leon. 108.
(2) And non valet impedimentum quod de jure non sortitur

effectum, et quod contra legem fit pro infecto habetur.

ESTATE.

But though we have said, that the lord of a manor may, COPYHOLD by making a lease for years, or granting any other common law estate, destroy the demisable property of the land; yet, this must be understood of a lord in fee, for if such lord have only a particular interest in the manor, as being tenant in tail, or for life, husband seised in right of his wife, &c. he shall not by such act prejudice the estate of him who may be entitled in remainder or reversion; and therefore, though he himself shall be bound by his own act, and precluded from granting the lands again by copy, during his own time; yet, upon the determination of his estate, the land will resume its demisable quality, and be again grantable by copy, for the custom cannot be affected to a greater extent than the estate which the person committing the act had in the land. So, if the King lease an escheated copyhold by deed, the custom shall not be destroyed; but on the expiration of the lease, he may again grant it by copy, for the grant of the King shall not enure to a double intent, as that of a subject may *. And whether the escheat, &c. take place before or after the lord succeed to the manor, it makes no difference; for immediately on the escheat, &c. the lands fall into the manor, and pass with it to the lord for the time being'.

Also, if a copyholder accede to the manor by taking a lease for years of the manor, or the like, by which his copyhold is extinct, yet he may re-grant it by copy, just as the original ford might have done on an escheat, &c. and it matters not whether the manor come to the copyholder, or the copyhold to the lord", for it was always demised or demisable". So if a copyhold escheat, &c.

i

Conesby v. Rusky, Cro. Eliz. 459; 2 Roll. Abr. 271, S. C.; Cremer v. Burnett, Styl. 266; and see Cases cited, Co. Lit. 58, b, n. (7), though contra per cur. atguend. Cro. Car. 521.

*Cremer v. Burnett, Styl. 266; Co. Lit. 58, b, n. (7).

1 Lee v. Boothby, Sir W. Jones, 449; 1 Keb. 720; Cro. Car. 521; French's case, 4 Co. 31, b.

m 1 Watk. Copyh. 39.

n

Hydev.Lyon, 4 Co.31,b;
Moor, 185, pl. 330, S. C.;
Blennerhasset v. Ilumberston,
Sir W. Jones, 41; Hut. 65.

COPYHOLD and the lord alien the manor, his alienee may re-grant the ESTATE. land by copy. So if he lease the manor, and the said copyhold land, by the name of his tenement, called H. for the manor being demised, the copyhold is inclosed as parcel thereof; and the naming the copyhold is but surplusage'.

It has already been observed, that immediately upon the grant of the lands being made by the lord to hold by copy, the tenant is in, not by the lord, (who acts only as an instrument), but by the custom, which being prior to and paramount the interest of the granting lord, it follows that the estate of the grantee cannot be affected by any acts done by the lord, whilst the lands remained in his hands, which in the case of freehold lands, might operate as a charge or incumbrance upon the land. Thus, if after the escheat of a copyhold, the lord grant a rent-charge, or acknowledge a statute, and then re-grant the land to be holden by copy, such rent-charge or statute, (according to the better opinion), will be no charge upon the copyhold' (1). Or if the lord grant the freehold of the lands of his copyholder, to a stranger', or lease them to a stranger for years'.

(1) Unless indeed the manor had been actually extended on the statute, in which case the copyhold lands would be bound; but they would in such case be no longer grantable by copy. See Co. Copyh. 62; Tr. 141; and Saville, 71, pl. 146.

III. WHAT THINGS MAY BE GRANTED TO BE HOLDEN
BY COPY OF COURT-ROLL.

GENERALLY all lands and tenements situated within, and being parcel of the manor, and also whatever concerns such lands and tenements, if lying in tenure or appendant to something lying in tenure, may be granted by copy ". And so may the manor itself, according to Coke*, be granted by copy; this has, however, been denied by others, and seems to be a point formerly much controverted, and not yet perhaps fully settled'.

But things which do not lie in tenure are not grantable by copy, unless appendant to something which does lie in tenure; and therefore things incorporeal, for which there can be no distress, and which are not parcel of the manor, (which consists only in demesnes and services), cannot be demisable by copy; for no service can be reserved, or due upon the grant of incorporeal things; and as no attendance is due from the grantee, no court is necessary to be kept for surrenders, admittance, &c. A rent-service, rent-charge, or common in gross, cannot therefore be granted by copy, otherwise than as they may be appendant to things which lie in tenure. And therefore, when my Lord Coke says, that any thing concerning lands or tenements may be granted, it must be understood of things appendant to the demesnes, or those parcels which make up the manor; but no incorporeal things in gross are parcel of the manor. But tythes may be demised by copy, because they are a tenement, and are parcel of the

COPYHOLD

ESTATE.

COPYHOLD manor. A mill may also be granted by copy. And so of ESTATE. a fair, appendant to a manor.

Things grantable by copy must be things of perpetuity; otherwise it can never be shown that there has been a custom to demise them by copy; yet underwood, without the soil, may be demised by copy, because it is a thing of perpetuity, to which the custom may extends. And so of herbage or other profit of a parcel of the manor; for one may hold the prima tonsura of land as copyhold, and another may have the soil, and every other beneficial enjoyment of it as freehold, as the after-crop, and cuttings of the trees, and the like. And therefore a grant by copy, of twenty loads of wood to be taken by the grantee, is good; for it is not necessary that the thing have continuance, but only that it be a thing of perpetuity*, which trees are ; for in them a man may have an inheritance; and trees whilst growing are a tenement, and a tenure may be reserved upon the grant of them; in such case, however, no service it seems. is due from the grantee. But the grant by copy of wastes, which have not been usually so granted, will not be good (1); because, in order to support a grant by copy, it is essential, we have seen, that the thing granted

Per 1 Rol. Abr. 498;. Cro. Eliz. 413, cited to have been adjudged; and see Sandys v. Drury, Co. Lit. 58, b, n. (9); Watk. Copyh. 33; Gilb. Ten. 331; but Cro. Eliz. 814, S. C. and S. P. dubitatur.

d 4 Leon. 241, cited to have been adjudged.

4 Co. 31, a; Co. Lit.

58, b..

f Roe v. Taylor, 4 Co. 31, and Gilb. Ten. 332.

Co. Lit. 58, b, S.P.; Cro. Eliz. 413, and Moor, 315, adjudged and affirmed upon a writ of error.

Ibid.; Co. Copyh, 118;
Gilb. Ten. 332.
iStammers v. Dixon, 7
East, 200.

k Co. Lit. 58, b; 4 Co.

31, a.

(1) Whence application is usually made to parliament, when the lord is desirous of granting his wastes by copy. See Revell v. Jodrell, 2 Durnf. & E. 425.