1 Sect. 8.

2 Sect. 9.

$ Sect. 10.

"shall be fully satisfied and paid all and every such sum and "sums of money as he shall respectively pay and disburse upon "the account aforesaid, notwithstanding the death of such infant, "feme covert, or lunatic shall happen before such sum or sums "of money so expended shall or may be so raised and reim"bursed1."

And also, "That from and after the passing of this act, no in"fant, feme covert, or lunatic shall forfeit any copyhold land for "his or her neglect or refusal to come to any court to be kept for "any manor of which such land is parcel, and to be admitted "thereto, nor for the omission, denial, or refusal of any such infant, feme covert, or lunatic to pay any fine imposed or set upon "his or her admittance to any such land2."

66

And also, "That if the fine imposed in any of the said cases "shall not be warranted by the custom of the manor, or shall be "unlawful, then such infant, feme covert, or lunatic shall be at

liberty to controvert the legality of such fine in such manner as " he or she might have done if this act had not been made 3."

Heriots.]-Heriots attach partially on freehold as well as copyhold estates, and were originally a tribute to the lord of the horse or martial habiliments of the deceased tenant, in order that the militiæ apparatus might continue to be used for the purposes of national defence by each succeeding tenant. As the military

tenures declined, it became usual, in some cases, to commute the heriot, and, instead of it to render to the lord the best animal of which the tenant died possessed, or the second best, or, if only one, that one, or, if he had none at all, then to pay a fixed sum ; and in other cases to render the best beast, or good, or a certain sum of money, at the election of the lord. When the heriot is the best beast or good, the property in it vests in the lord immediately on the death of the tenant, or on alienation (if due on alienation), and the lord will be bound by his election, though he does not take the best; but where the render is of an ox or other beast, the election is in the tenant.

Heriots, as has been stated, are not peculiar to copyholds. They are sometimes attached to freehold estates, which are held by service and suit of court, and which are, for the most part, enfranchised copyholds. Heriots are divided into heriot-service and heriot-custom: the former is always due by a particular and express reservation in the grant or lease, or is claimed by prescrip

282.

tion, which implies a reservation, and therefore lies in render, being in the nature of a rent. It has been said, that heriot-service is due only on the death of a tenant in fee-simple; but it clearly may be reserved on a lease for life, or on the death of every particular tenant, whether for life or years, or even at will. The latter is due, by virtue of immemorial custom, from every tenant of the particular manor,-most frequently on death, but sometimes on alienation also, or on alienation only1. It may be due on the 11 Bos. & Pull. death of a copyholder for life or years, as well as in fee simple. It is due on the death of the reversioner, both as to freehold and copyhold estates 2; and on the death of the trustee, but not of the cestui que trust3. It is due on the death of the surrenderor, if he die before admittance of the surrenderee. Where a feme copyholder marries, no heriot is due on the death of her husband. A heriot is due on the death of a copyhold tenant by curtesy or dower; but it would seem, in freeholds, that it would not be due on the death of the widow.

Butler v. Archer, Owen,

152.

Trin. Coll. Camb. v. Vern. 441. Browne, 1

Tenants in common, unlike co-parceners and joint-tenants, have several estates; and therefore, if a copyhold tenement be surrendered to the use of several persons as tenants in common, it will be divided into as many tenements as there are surrenderees; and on their admission, separate fines will be due to the lord, and a distinct set of fees payable to the steward for each. of these shares; and on the death of each of them, the lord will be entitled to a heriot. But if the undivided shares of the tenants in common come again into the possession of one person, will they, thereupon, be re-united and form a single tenement? or will they still continue to be separate tenements, in respect to separate dues and services? In a case of great celebrity4, which arose out of an action brought by the steward of a manor for his fees, this question was determined in the affirmative, and this decision was acted upon for many years. At length, however, the subject was again brought before the Court of Common Pleas, on the occasion of the seizure of a baronet's race-horses for heriots5; Garland v. and, on very great consideration, it was held, that the decision Jekyll, 2 Bing. in Atree v. Scutt could not be sustained; and it was adjudged that the multiplication of heriots, by the tenancy in common, did not continue after the re-union of the shares in the same person. A decision to the same effect was subsequently made in the

Atree v. Scutt, 6 East, 481.

273.

Court of King's Bench1, although upon a somewhat different view of the subject and the authorities.

Forfeiture.]—As the title and estate of the copyholder are entirely regulated by the custom of the manor, and as he holds only upon condition of observing this custom, any act incompatible with it operates as a forfeiture of his estate. Therefore, if he depart from the customary mode of assurance, and execute a common law conveyance of his copyhold lands, or grant a lease not warranted by the custom without the lord's license, this is an immediate forfeiture,- a lease for a year, it is to be observed, being warranted by the universal custom of the realm 2. To constitute a forfeiture the act must be complete; and therefore, a mere agreement to grant a lease of the copyholds for a longer term than the custom authorizes, or the lord's license can be obtained, is of course no forfeiture 3.

The copyholder being merely tenant at will to the lord, waste, either permissive or voluntary, is a cause of forfeiture: if, however, the value be very small, the consequences of waste do not attach; for the law will not allow any act to be waste which is not injurious to the inheritance-either, first, by diminishing the value of the estate; or, secondly, by increasing the burthen upon it; or, thirdly, by impairing the evidence of title. It springs only from the act of the tenant; and therefore, if the cestui que trust5, or a surrenderee before admittance 6, commit waste without the consent of the copyholder, it is no forfeiture. The refusal of services7 is also a ground of forfeiture.

When the copyholder is entitled to copyholds in right of his wife only, any act of his will be a forfeiture only for his own life, unless the act were waste, or any thing tending to the disherison of the lords.

If the copyholder be convicted of treason or felony, his lands, even without a custom, are immediately on attainder forfeited to the lord; but they are not forfeited without attainder except by special custom 9. Pardon, after forfeiture, is no dispensation of it, for the king cannot remit the claims of the lord 10. In some manors there is no corruption of blood on attainder, but the son succeeds notwithstanding. Outlawry, for a capital crime, is also a cause of forfeiture 11. Even after surrender, and before admittance, the surrenderor is tenant for the purpose of forfeiture 12.

On forfeiture, the lord must seize, or do some act to give him legal title, as entry on the rolls of his court1.

'Doe v. Evans,

5 Barn. & Cress.

584.

Com. Dig.

Cop. (M. 6),

162.

In general, no one can take advantage of the forfeiture, but he who is lord of the manor at the time; and being lord for the time being, whether in fee, for life, or for years only 2, he may enter. If the act of forfeiture be such as would work a disherison of the lord, the heir of the lord in whose time it occurred, may take advantage of the forfeiture3. If there be several co-parceners, Doe v. Heland forfeiture occur, and one die before entry, it seems the rest lier, 3 T. R. cannot enter; and if the cause of forfeiture descend to co-par-Freem. 516, eeners, they must all agree to take advantage of the forfeiture, one alone cannot enter5. In certain cases, the lord, entitled to take advantage of the forfeiture, may waive it, as if it be for waste, lease without license, non-admission, subtraction of rent or services; but not where the act goes to the destruction of the copyhold as a common law conveyance,- —or the utter incapacitating of the tenant, as his attainder for felony or treason 6. If the lord Sir T. Jones, does not in these cases wish to avail himself of the forfeiture,

he should make a new grant. Copyholds have been held to be

ca. 692.

Eastcourt v. Weeks, 1 Salk.

186.

189.

Whitton v.

Peacock, 3 My. & Ke. 325.

Co. Cop

61.

Nash v. Coun tess of Derby, 2 Vern. 537.

10

Taylor v. Hore, Toth. 237.

" Ib.

within the Statute of Limitation of James; and therefore, if the
lord do not enter for forfeiture within twenty years, his right is
barred 7. Any act of the lord recognising the tenancy of the
copyholder, after he is aware of the forfeiture, will amount to a
dispensations. Equity relieves against the forfeiture in certain
cases, as where waste was inadvertently done 9,- -or done by a
stranger 10,- —or fines or rents have been unpaid11; but not if the
act be voluntary, or where compensation cannot be made 12.
Extinguishment and suspension of the tenure.]-Where the
freehold and copyhold interest in lands become vested in the
same person in the same right, the copyhold tenure is extin-
guished; if they are vested in the same person in different rights,
the copyhold tenure is said to be suspended. For the former
purpose it is not necessary that the customary estate should Ch. 568.
be commensurate with that of the freehold. The copyholder,
whatever may be the extent of his customary estate,—whether
in fee, for an estate tail, or for life,—being at law merely a tenant
at will, if he accept a common law lease for years, his copy-
hold interest merges in it, and is for ever extinguished. Con-
versely, if A. be lessee of the manor, and B. copyholder in fee,
and if the latter bargains and sells his copyhold to A. and his

18 Peachy v. Duke of So

merset, Prec.

v.Hamberstone, Sir W. Jones, 41.

2 Sim. & Stu. 597.

'Blenherhasset heirs, the copyhold tenure is for ever extinguished1. If copyholder in fee surrender to the lord, seised in fee with an executory devise over, the copyhold is extinguished, for the same reasoning 2 King v.Moody, is manifestly applicable 2. If the lands escheat, or become forfeited to the lord, the copyhold tenure will be extinguished. The interests must, however, be united in the same person in the same right, for otherwise the copyhold will only be suspended; as if a copyholder marry the lady of the manor, and so become entitled to the freehold in her right, the copyhold will only be suspended during coverture, or so long as the estate by 3 Co. Cop. s. 62. curtesy shall last 3. After the copyhold tenure has become extinguished, all customs and privileges incident to the copyhold tenure, as freebench, curtesy, and the like, are for ever gone4.

Roe v. Briggs, 16 East, 406.

Enfranchisement.]-This extinguishment of the copyhold tenure will in general operate for the benefit of the lord, as if copyholder in fee accept a lease for years, the tenure, with all its privileges, being extinguished, the lands, at the expiration of the term, belong to the lord. It may be presumed, therefore, that extinguishment rarely occurs, except by accident, as its effect must be in general prejudicial to the tenant. Enfranchisement, on the other hand, which is "a change of the tenure from base to free," in the hands of the copyholder, and deprives the lord of all his seignorial rights, operates to the prejudice of the lord and to the advantage of the tenant. Enfranchisement, being the conversion of a copyhold estate of inheritance into a freehold estate of inheritance, it is manifest can only be effected by the lord's conveying the freehold inheritance, of which he is seized, to the copyhold tenant. It follows, therefore, that if the lord have only a partial estate in the manor, as if he be only tenant for life, he cannot enfranchise in fee, except by virtue of a power under the settlement creating his estate, or under the authority of an act of parliament, as the act for the redemption of the land-tax5, for building new churches 6, or under the act for enabling the commissioners of woods and forests to enfranchise any copyhold lands held of the crown7. Where there is a tenant for 748 Geo. 3, c. life, with power to enfranchise, his covenant to enfranchise would, of course, be obligatory on the remainder-man 8.

5 42 Geo. 3, c. 116.

6 58 Geo. 3, c.

45.

13.

8 St. Paul v.

Dudley, 15 Ves. 167.

Although, with the exceptions which have been mentioned, the lord cannot enfranchise unless he have the fee, it is not necessary that the tenant should have a copyhold estate of inheritance.