Northwick v.. 346. this purpose. But Lord King said, that in the case cited the grant was made with the consent of the homage; that the question in the principal case was, whether there was a custom to do it without the homage; which must go to law; and then it would be considered how far a custom to make such grants, without the homage, was good. 32. In a modern case it was held, that although 3 Bos. & Pul. parcels of the waste of a manor had been newly granted by copy of court-roll, yet that having been granted by virtue of an immemorial custom to demise parcels of the waste as copyhold, they were to be considered as much copyholds, as if they had been immemorially holden by copy of court-roll. That the tenure had its foundation in custom, which had immemorially attached upon the waste, the subject of the grant. That copyholds of a similar description to those in question were very common in the north of England, and had often been infra, Tit. 27. recognized in judicial determinations. Folkard v. Hemmett, 5 Term R. 417. Boulcott v. What destroys the Custom of granting, French'sCase 33. Where lands formerly granted by copy, are conveyed by the person entitled to the freehold and inheritance of them, for life, or for years, this will 4 Rep. 31 a. destroy the custom of granting them by copy. Because, while the lands are in the possession of these grantees, they are neither demised, nor demisable, by copy. So if the lord makes a feoffment in fee of such lands, upon condition, and afterwards enters for the condition broken, the lands can never after be granted by copy. ante, § 29. . 34. It has been stated, that copyholds escheated, or forfeited to the lord, may be regranted by copy. But if such lands are extended upon a statute or 4 Rep. 31 a. recognizance, acknowledged by the lord, or assigned to the lord's wife for dower; although these impedi ments are by act of law, yet as the custom of granting by copy is interrupted by a lawful act, the lands can. never after be granted by copy. 35. A tortious interruption of the estate, as if the 4 Rep. 31 a. lord be disseised, and the disseisor die seised; or if the land be recovered against the lord by false verdict, or erroneous judgement; will not destroy the custom of granting by copy. Although in these cases the land was not demised or demisable during the interruption.. 36. Where copyhold lands which have fallen to the lord are leased, together with the manor, this: will not destroy the custom of granting them by copy. 37. Thus it was held by the Court of King's Bench, Lee v. on a trial at bar in 14 Cha. I., that if a copyholder in Cro. Car. Boothby, fee surrenders to the lord of the manor his copyhold 521. estate; and the lord makes a lease for years of the. manor, together with the copyhold, by the name of his tenement called H., that it was not a determi-, nation of the copyhold: because, when the lord, let. the manor, it was included as parcel of the manor. For the manor being demised, included the copyhold as parcel of the manor; and the naming of the. copyhold was surplusage; so that it remained always. as parcel of the manor, and demisable by copy, as it, was before. 38. No person can destroy the custom of granting 1 Inst. 58 b. land by copy, unless he is proprietor of the fee n. 7. simple of the manor; thus if a person who is only Comsbie tenant in tail, or for life, of a manor, makes a lease v. Rushy, for years of an escheated copyhold; though, as to 459. himself, the custom of granting by copy is thereby destroyed; yet, as to the issue in tail, or the rever Cro. Eliz. Roe v. 2 Wils. R. What may be Hoe v. sioner, the custom is not destroyed. So it is in the case of a husband seised in right of his wife. 39. It was resolved in a modern case, that copyhold lands must be stated, or found, or pleaded, to have been demised or demisable by copy of courtroll, for time out of mind; otherwise a court of justice cannot adjudge them to be copyhold. 40. With respect to the things which may be granted by copy, Lord Coke says, all lands and tenements within a manor, and whatever concerns lands or tenements may be granted by copy. In 27 Eliz. it was said by the court of C. B. that any 4 Rep. 30 b. profit of any parcel of a manor may, by custom, be granted by copy. In the same case it was resolved, that underwood growing upon a part of the manor, might be granted by copy; because it was a thing of perpetuity, to which a custom might extend; for after every felling, the underwood grows again. 1 Inst. 58 b. Stammers v. Dixon, 41. The herbage or vesture of land may be granted by copy. In a modern case it was resolved, that a per7 East. 200. son might hold the prima tonsura of land by copy, while another might have the soil, and every other beneficial enjoyment of it, as freehold: and that ancient admissions of the copyholders, and those under whom they claimed the land, by the description of tres acras prati, might be construed only to carry the prima tonsura, if in fact they had enjoyed no more under such admissions; while another had the aftercrop, had cut the trees and fences, scoured the ditches, and kept the drains. Though the copyholder might have paid all the rates and taxes; which was in his 1 Inst. 58 b. own wrong. 42. It is said by Lord Coke that a manor may be 11 Rep. 17. granted by copy: and it was resolved in 1 Ja. I. that Nevill's Case, a customary manor might be held by copy. That the customary lord might hold courts, and grants copies. That such customary manor should pass by surrender and admittance. That fines should be paid upon admittance, as well upon alienation as descent. That there might be lord customary, mesne and customary tenant, as well in the case where the mesnalty was a tenancy at will, according to the custom of the manor, as where there was a tenancy at will, at the common law, of a manor. 43. Lord Chief Baron Gilbert says; in such case Ten. 215. the lord may grant copies. But it must be of things which have been usually demised; and that he cannot grant all his demesnes by copy, unless they have been usually demised. 44. It was resolved in 43 Eliz. that tithes might be granted by copy of court-roll, for they might be parcel of a manor. Sands v. Drury, 1 Roll Ab. 498. In Croke's report of this case, Popham is said to Cro Eliz. have been of opinion that tithes were not grantable 814. by copy; because a manor and tithes were of several natures; so it was impossible that that, which was not parcel of the manor, could be demised according to the custom of the manor. But Gawdy doubted, and conceived it had been well enough, if it had been so used time out of mind. 45. Nothing however can be granted by copy, Co. Cop. unless it lies in tenure, or is appendant to something § 42. that lies in tenure; therefore rents, commons in gross, advowsons in gross, and such like, cannot be granted by copy. But an advowson, a common, or a fair, which are appendant, may pass by copy, by reason of the principal thing to which they are appendant. 46. Although a copyholder is admitted to hold at Copyholders the will of the lord, or according to the custom of the may have Estates in Fee. And Estates Cro. Car. 42. ante, § 2. 1 Inst. 60 b. 3 Rep. 8 b. Erish v. 1 Inst. 60 b. manor, and the freehold remains in the lord; yet it is most usual to grant estates of this nature to the copyholder and his heirs; by which he acquires a customary estate in fee simple. 47. It was formerly much doubted whether the statute De Donis extended to copyholds, so as to convert what was formerly a conditional fee in a copyhold, into an estate tail. In a case which arose in 18 Ja. I. the question was, whether the surrender of a copyhold estate to a person and the heirs male of his body, there being no custom to warrant such an estate, gave the surrenderee an estate tail, or a conditional fee. It was held by Croke and two other justices, against the opinion of Yelverton, that the statute De Donis did not extend to copyholds; consequently that the surrenderee took a conditional fee. 48. This resolution appears contrary to the passage already cited from Littleton, where he expressly says that copyholds may be granted in tail. Lord Coke was of opinion that Littleton must be understood to speak only of such copyholds as might be entailed by the particular customs of the manors whereof they' were held in which case, the statute De Donis cooperating with the custom, would give to such an estate all the qualities of an estate tail. 49. Lord Coke also says, that although lands have anciently and usually been granted, by copy of courtroll, to many men and the heirs of their bodies, that would not prove a custom of entailing copyholds: for such grants might have created conditional fees. But if a remainder had been limited over after such an estate, and enjoyed; or if the issue had avoided the alienation of the ancestor; or recovered the same in a writ of formedon in the descender; these |