COPYHOLD
ESTATE.

Estovers.

But whether the feme be a copyholder at the time of the marriage, or the copyhold descend to her afterwards, it will in general make no difference in the busband's title. By the custom of some manors, however, she must be seised at the time of the marriage; her being subsequently seised, by descent or otherwise, being insufficient 9.

What has been said respecting the manner in which freebench is affected by the enfranchisement and extinguishment applies also equally to curtesy.

But curtesy differs from freebench in regard to trusts, for though we have seen that the widow is not allowed to have her freebench out of a trust-estate, yet shall the husband have his curtesy, in which it agrees with the common law. Though the reason of the difference, in either case, is admitted to be supported by bare authority only, without any foundation upon principle.

Curtesy of copyholds by the custom, differs from that of freeholds at the common law, besides the instances already noticed, in this, that the having issue is not essential to the husband's title, as it is at the common law, unless it be expressly required by the custom ', which, as has been already noticed, it frequently is.

VI. THE POWER AND AUTHORITY A TENANT BY
COPY HAS OVER HIS ESTATE.

By the general custom, and of common right, every copyholder may take hedge-boot, house-boot, and ploughboot, upon his copyhold; but yet this power may be restrained by custom; as that the copyholder shall not take it, unless by the assignment of the lord, or his bailiffs.

P Clements v. Scudamore, 1 Salk. 243; 2 Lord Raym. 1028; 1 P. Wms. 62, where Sir John Savage's case, 2 Leon. 109, contra, is denied to be law.

Savage's case, 2 Leon. 109, 208.

See 1 Watk. Copyh. 273; 2 Ib. 93.

* Cro. Eliz. 5; 13 Co. 68 ; 8 Co. 63, b; Godb. 172; 2 Brownl. 329.

ESTATE.

59 And where the copyholder has this right, although the lord COPYHOLD alien the woods or other profits apprendre of the copyholder in any part of the manor, the right is not destroyed, for the title of the copyholder is paramount the severance, and these customary appurtenances are not derived from the estate of the lord, for he is the owner of the freehold and inheritance of the manor, but they are appertaining to the customary estate of the copyholder after the grant made to him, and cannot therefore be destroyed by the lord'.

And although the freehold and inheritance being in the lord, by the general custom of manors, the timber also belongs to him, yet he cannot exercise his ownership over the land, so far as to deprive the tenant of his privilege, by cutting down so much even of the timber as to leave insufficient for the tenant for the above purposes" (1).

And where the tenant is authorized by the custom to fell timber for repairs, he may, it seems, sell the tops and bark towards defraying the charges of repairing. But a copyholder, although of inheritance, cannot, without special custom dig for mines; nor, on the other hand, can the lord dig on the copyholder's land, on account of the prejudice it would do to his estate'; nor are copyholders by the general, but only by particular custom, entitled to common on the lords wastes z.

(1) And the Court of Chancery will direct a commission to set out sufficient timber for botes and estovers for the copyholder, in case of difference between him and the lord; Ayray v. Bellingham, Rep. T. Finch, 199. But the Court will not grant an injunction to the tenant if he cut down timber, or commit other waste: for the right of the copyholder being a legal right, if he abuse it, it is a forfeiture of his copyhold. Dinch v. Bampton, 4 Ves. jun. 700

COPYHOLD
ESTATE.

Every copyholder may make a lease for one year, and such lessee may maintain an ejectment; for as the common

Leases of copy- law warrants such lease, so it gives him a remedy for the

holds.

Licence.

recovery of it. But he cannot make a lease for any longer period, unless by special custom, or a licence obtained from the lord for that purpose.

As it is frequently of great consequence to copyholders to be able to grant leases of their lands, it will be proper to notice shortly, what licence of the lord will delegate to them a sufficient authority for this purpose, and how it shall be construed, with respect to the extent of its operation.

The first requisite to the validity of a licence from the lord is, that he be a rightful lord of the manor, for no licence granted by a wrongful lord, can be good to bind the rightful owner of the manor. It seems also that the licence must be granted by the lord himself, and not his steward, unless such steward have a special authority given him by the lord for that purpose, and even then it must be in the lord's name.

Such licence also, it being but an authority, will, though given by a rightful lord, necessarily determine with the interest of the lord who grants it. If therefore a lord who is tenant for life only, or for years of a manor, grant licence to copyholders, to lease for years, and die, or his interest expire, the licence is void, and with it the term of years granted by virtue of such authority. And if the interest of the lord expire before the lease be executed, the licence will be void, and a lease made under it will be a forfeiture, and it will be the same if the licence be to make a lease, on or before such a time, and it be not made till afterwards, even though the interest of the lord

Milifax v. Baker, 1 Lev.

< Co. Copyh. 222; Gilb. Ten. 333; 2 Watk. Copyh.

d Gilb. Ten. 203, 298; Pettie v. Debbans, 1 Roll. Abr. 511; 2 Brownl. 40, S. C.; Mumifax. v. Baker, 1 Keb. 25.

who granted it continues; for, the licence being in the nature of an authority, the terms of the licence must be strictly pursued; so he cannot lease from Christmas next, under a licence to lease from Michaelmas last, or the like. If, however, the lease be for a less term than the licence warrants, as if the licence be to lease for five years, and the copyholder lease for three, such lease will be good upon the principle, that every greater authority necessarily includes in it a less.

And if the lord agree to grant such licence for a valuable consideration, and then refuse, he may be compelled in equity. But the lord cannot enable his copyholder (who in law has but an estate at will) to demise for life, even though a custom be alleged to support it, for an estate for life by licence would be a freehold interest1.

Nor can the lord grant a licence on a condition subsequent, as the estate of the lessee passes from the copyholder, and not from the lord, and the lord cannot annex a condition to the estate of another; but a licence granted on a precedent condition will be good, as it will not operate as a licence till the condition be performed *. Nor will a lease made by virtue of a licence granted by the lord, to a tenant in tail of a copyhold, bind the issue in tail, whose interest cannot be affected by the licence which passes nothing, but only operates as a dispensation in favour of the copyholder'.

And it may here be observed, that a term once created by licence, being a common law interest, may be assigned by the lessee without any further licence, or consent of the lord m.

COPYHOLD

ESTATE.

COPYHOLD
ESTATE.

Surrender.

A custom to demise land, the lessee paying the treble value of the rent, and if he died within the term, that his heirs should have it, paying one year's rent, and that if he assigned, the assignees should have it, paying a year's rent, was held to be a good custom ".

That a copyholder shall not alien without a licence, is a good custom; so is a custom that if a copyholder make a lease for one year, and die, it shall be void against his heir; but a custom that a copyholder shall hold the land half a year after the term, is void o.

A custom that the lord should grant a licence for the copyholder to lease for ninety-nine years, upon his paying ten years rent, and if he refused, the tenant might lease without licence, held good P (1). ·

So a custom that the executors shall hold a year after the copyholder's death, is a good custom a.

A copyholder may surrender to the lord, by attorney in court (2); because he may do that communi jure; and so the common law gives him power to do it by attorney, as an incident to his estate. So, a surrender to the lord out of court, is de communi jure, and therefore the copyholder may, as it seems, do it by attorney (3); and a like sur

(1) See of leases by copyholders, ante, vol. 2, ch. 11, s. iii. (2) Admittance by the lord in court, or out of court, seems to be de communi jure; but quære, whether de communi jure he may admit by attorney; and vide 9 Co. 75; 1 Leon. 36, cont. Co. Lit. 59; 3 Bulst. 80, and 2 Sid. 37, 61; that the lord is not compellable to admit by another; because the corporal service of fealty is due from every copyholder.

(3) It is reported to have been said by Lord Hardwicke, that a surrender cannot be made by attorney out of court; 2 Ves. 679; 7 Bac. Abr. 8vo. 418 (c). But Sir Henry Gwillim very properly questions the accuracy of the statement there given, for it is there said, that to surrender by attorney out of court, would be for an attorney to make

an