lord cannot deny him access to them; and a primâ facie title is sufficient to entitle him to inspect and take copies of them, so far as concerns the copyhold claimed 1. Copyholder's estate.]-In estimation of law, and in comparison with the estate of the freeholder, the copyholder is a mere tenant at will to the lord, in whom is vested the freehold and inheritance. In other words, the lord holds the lands in free and common socage, subject to the tenancy at will of the copyholder. In point of fact, however, the copyholder has now had for ages a certain interest in his copyhold tenement, which cannot be defeated so long as he observes the custom of the manor. The lord being the owner of the freehold and inheritance, the mines, minerals, and timber belong to him, in the absence of any special custom to the contrary; but he cannot enter upon the premises to work the mines, or cut timber, without the consent of the tenant; for though the property of the mines be in the lord, the possession of them is in the tenant 2. Where, however, the lord stands by for a long period, allowing his tenants, without objection, to work the mines, and to expend large sums of money in these mining operations, equity will not assist him by granting an injunction or account against the tenants, but will leave him to his remedy at law3. By special custom, a copyholder of inheritance may be entitled to cut down timber trees, or to work mines; but not a copyholder for life, as such a custom would be inconsistent with the nature of his estate, unless he have power to renew or nominate his successors 5. The right to take estovers is generally considered to be incident to the grant of copyholds6; but, whether the copyholder had this right at common law or not, it seems now to be universally established; and, by special custom, estovers may be taken in any part of the manor, even in the lord's woods7. A copyholder being only, in estimation of law, a tenant at will, copyhold lands are subject neither to dower nor curtesy, except by special custom, and then the nature and extent of the estate to which the wife or husband is entitled, are determined by the custom. Copyholds being, in point of law, the freehold estate of the lord, subject to the customary estate of the tenant, no statute, relating to lands and tenements, applies to customary estates, unless they be expressly named, where it would be derogatory to the rights of the lord or tenant. Thus, the statute of Westminster, which introduced the writ of elegit, or the 11 Hen. 7, c. 20, which makes alienation by a jointress, other than for the term of her life, a forfeiture, does not apply to copyholds; for each of them would make an estate vest in a new owner without the accustomed ceremonies. So the statute of uses, the statute of partitions, and the statutes empowering the making of leases, do not apply to copyholds; and in the registry acts they are expressly excepted. The statute of wills does not apply to them, nor the statute of frauds relative to the signature and attestation of wills, though it expressly mentions land "devisable by any particular custom." The statute de donis does not apply to them; and therefore, in the absence of a special custom to the contrary, a limitation of copyholds to A. and the heirs of his body will confer, not an estate tail, but a fee conditional at common law1. 1 Doe v. Clark, 5 Barn. & Ald. 458. Rights and liabilities of the tenant.]-The rights and liabilities of the tenant are regulated entirely by the custom of the manor, by which is here to be understood the unwritten and immemorial usage of a particular district or territory. Custom is local, and thus distinguished from a prescription, which is personal, and from the common law, which is universal. The usage of a manor is a custom; a right, alleged in a certain person and his ancestors, is a prescription; and the usage of the whole realm, is the common law. To the validity of a custom it is necessary that it should be immemorial, reasonable, certain2, compulsory, and not inconsistent with another custom3. The existence of a custom is a question of fact, to be tried by a jury of the county wherein the manor, of which it is alleged, lies; and the customs of one manor cannot be received to prove or explain the customs of 411. another, except in the case of an usage which prevails through a whole county or district, as the border-laws, or the custom of miners+. A copy holder of inheritance, observing the custom of the manor, has as indefeasible an estate, as a tenant in fee simple has of lands held in free and common socage. By custom he is subject to the payment and render of rent, suit, services, fines, and heriots; if he fail duly to conform to it, he subjects himself to forfeiture of his copyhold lands. Custom also prescribes the mode by which he may transfer his lands; and if, instead of conforming to the 2 Wilkes v. Broadbent, 1 Wils. 63; 2 Stra. 1225. 3 Bateson v. Green, 5 T. R. Roe v. Parker, 5 T. K. 31; Dean of Ely v. 189. 1 Baldwin v. Tudge, 2 Wils. 20; Chetwode v.Crewe, Willes, 619, n. (2). 2 Glover v. Lane, 3 T. R. 447. 3 Sir Moyle Finch's Ca. 6 Rep. 54. 4 Soane v. Ireland, 10 East, 259. The King v. The Brewers' Co., 4 Dow. & Ry. 492. prescribed mode, he attempt to transfer them by a common Suit and service.]-When fixed periods are not prescribed by custom, the lord may hold his court as often as he pleases; and every copyholder is under an obligation to attend it, and do the duties of a homager. If he reside within the manor, and neither appear nor assoign, he may be amerced; but, it seems the amercement must be affeered by at least two of the copyholders1; if served with a personal summons, non-appearance will be a cause of forfeiture. The suit may, in a customary court, be performed by a feme sole; but, where a woman is married, the husband is the proper person to do all the services except fealty. There are two courts incident to a manor:-the one called the Court Baron, or Court of Freeholders, in which they, the freeholders, are suitors and sit as judges;-the other, the Customary Court, to which the copyholders are suitors, not as judges, but as assistants to the lord or his steward, who alone exercises the judicial authority. These two courts are commonly held together, and their proceedings recorded on the same roll, but they are nevertheless essentially distinct. If there be not two frank-suitors, at the least, the court cannot be held, and the manor is destroyed. "To constitute a manor,' says Lord Kenyon2, "it is necessary not only that there should be two freeholders within the manor, but two freeholders holding of the manor subject to escheat." A manor cannot be created at the present day; and it is doubtful whether a manor can be divided by act of the lord, as by a grant of the demesnes and services of one of the townships comprised in it; though it would seem it may be divided by act of law 3. If the demesnes and services are once by the party severed in fee simple, or if all the services are extinct, the manor is absolutely determined. If the lord grant all the demesnes of the manor for a term, the manor is, during the continuance of the lease, suspended; and so by any other act by which the demesnes are severed for a limited period. The general customary court is usually held about Michaelmas; but the lord may hold it as often as he pleases, and is compellable to hold it if the business of the copyhold tenure require it5. Whoever is lord for the time being, may hold a court, and his ministerial acts are valid, though he be only tenant for life. The court must be held within the manor, unless there be a special custom to warrant its being held out of it1. The lord need not hold the court himself; he may, and usually does, appoint a steward to hold it for him: and if the steward appoint a deputy to hold a court, his acts will be as valid as if the court had been held by the chief steward. The court being duly assembled, and the homage sworn, proclamation is made for those who have plaints to enter them. When the several plaints have been entered and disposed of, the homage are to make their presentments; as, since last court A. died, seised of certain copyhold tenements, and that B. is the next entitled;- -or that C. had surrendered out of court; or that D. had been convicted of felony, whereby his copyhold had become forfeited; and the like. If a copyholder on the homage wilfully refuse to present, on sufficient evidence being given, he forfeits his copyholds, ipso facto. The presentments having been made, then follow the proclamations consequent on them, as for the next heir or person entitled to the copyholds of A., or the person to whose use C. had surrendered, &c., to come in and be admitted; and surrenders are then taken, admissions and grants made, licenses granted, &c. &c.; and the whole proceedings having been noted down by the steward in his minute-book, which, for the satisfaction of all parties, should be signed both by the steward and homage, the court is dissolved by formal proclamation. As soon after the dissolution of the court as is convenient, the proceedings are to be entered at length upon the court-rolls of the manor, by a copy of which the tenant is to hold, though he is not obliged to take a copy if he choose to risk the evidence of his title. If the lord admit in person at a general court, no fees are payable; but if he admit at a special court, called for the accommodation of the tenant, then he may prescribe to have reasonable fees for his trouble. The fees payable on a surrender out of court are usually larger than on a surrender in court. Rent.]—Copyholds are held generally subject to the payment of a small rent. - Fines.]-Fines are payable to the lord, either on a change of the lord, a change of the tenant,- -or for a license to the tenant to do certain acts not authorized by the custom, as to demise for a term of years, &c. The fine payable on the 'Doe v. Whitaker, 5 Barn. & Ad. 409. Co. Litt. 59. b.; Lowther v. The King v. Manor of Hen don, 2 T. R. 485. change of the lord, is payable only on his death, unless there be some special custom to the contrary1. Where a fine is payable in respect of a change of tenancy, it is not due until the tenant has been actually admitted2. When the uses of a surrender are limited to one for life or for years, with several remainders over, only one admission is necessary and one fine payable, -the particular limitation and the several remainders forming, together, but one estate; the admission of the particular tenant is the admission of those in remainder also, though, by special custom, a fine may be taken on the accession of the remainder-man 3; but without a custom to such effect, the remainder-man is not liable, on the death of the tenant for life, to pay any fine, though the tenant for life paid only a nominal fine on his admission. In deciding upon the evidence Eburn, 2 Bing. adduced to prove a custom for a fine from a remainder-man, Doe v. Jenny, 5 East, 532. 4 Phypers v. N. C. 250. 5 Dean of Ely v. Caldecott, Bing. 439. 6 Kensington v. the courts lean to the presumption, that a fine paid by a remainder-man, on his admission, was an apportionment only of the full fine assessed on the admission of the tenant for life5. If a part only of the fine be imposed on the particular tenant, the residue may be assessed on the person in remainder, after his estate vests in possession. The best and most equitable mode is to assess the fine on the admission of the particular tenant, and to proportion it to the interest of the several claimants, who may pay their shares on acceding to the possession, when they are called on to swear fealty. The lord cannot remit the fine to the tenant for life, and charge the whole on the remainder-man; but he may assess the whole on him, leaving the apportionment to be settled between himself and those for whose benefit his admission enures 6. Where a surrender is made to the use of two or more jointly, they are all but one tenant to the lord, and only one fine is due on their admission; and on the death of one, the survivors take his share, and continue in on his original admission. As the admission of one joint-tenant is the admission of all, the fine Roe v. Hutton, becomes payable when any one is admitted7; though, by special custom, perhaps, several fines may be due on the admission of joint-tenants, and in that case trustees under a will should disclaim to one of their co-trustees, if it can be done without prejudice to the trusts, in order to make him sole tenant. Co-parceners are entitled to be admitted as one heir, on the payment of one set of 2 Wils. 162; |