and such like would be sufficient to prove a custom of entailing. 50. In a special verdict in 7 Ann. the question was Adams v. whether a copyhold could be entailed, without laying it was adjudged by a special custom for so doing; has arisen but that this was an estate tail within the Hincloe, 11 Mod. 199. for Life. 51. Copyholds may also be granted for life, and And Estates in many manors the custom is to grant copyholds only for one, two, or three lives in some of those manors the custom gives the copyholder a right to a renewal of the grant, upon the falling of the lives; from which Wharton they are called tenant right estates. v. King, infra, c. 4. 52. Where copyholds are granted for lives, the person who pays the fine takes the beneficial interest; and the other persons named in the grant are trustees Tit. 12. c. 1. for him. holds. V'en v. Howell, 53. It is laid down by Roll, that if a copyhold is No general granted to two persons for three lives, and the tenants Occupancy of Copypur anter vie die, living the cestuis que vie, there shall be no occupant, but the lord shall have the estate; for no one can gain a copyhold by occupancy, but 1 Roll Ab. by admission of the lord. Lord Holt has said, that an occupancy is for supplying the freehold; but the 1000. freehold of a copyhold estate is in the lord, and the Zouch v. tenant has only an estate at will. Forse, infra. 511. 2 Ld. Raym. 54. There may however be a special occupancy of But special a copyhold. For Lord Chief Baron Gilbert, after Occupancy is allowed. Ten. 326. Doe v. 2 Black. R. Tit. 3. c. 1. § 49. Zouch v. 7 East, 186. citing the passage above stated from Roll's Ab., says, if the limitation had been to the tenants and their heirs during the lives of the cestuis que vie, the heir in such case would have the estate, not the lord; because he had excluded himself, and expressly granted the copyhold to the grantee and his heirs, during such a time. This doctrine has been confirmed in the following case. 55. Juliana Ramsey surrendered certain copyhold estates, to the use of Richard Tonson, his heirs and assigns, for her life; and he was admitted accordingly. Richard Tonson died in the lifetime of Juliana Ramsey; and the question was, whether his heir was entitled as special occupant ? Lord Chief Justice De Grey said, that though in copyholds there could be no general occupant, since the freehold was never out of the lord, yet it did not follow there could be no special occupant, when the lord had expressly granted the estate to one and his heirs, during the life of A. B.; indeed the term of special occupant was in such case, and in all others, a very forced and improper phrase; and he thought there was great weight in what was said by Vaughan, 201.-that the heir took it as a descendible freehold. Such however was the language of the law. The Court was unanimously of opinion that the heir of Richard Tonson took as special occupant. 56. The statutes 29 Ch. II. and 14 Geo. II., which have been already stated, and by which estates pour auter vie are appropriated, where there is no special occupant, do not extend to copyholds. 57. A tenant pour auter vie of a copyhold died in the lifetime of the cestui que vie; his administrator was admitted, and brought an ejectment for the recovery of the land. It was held that the statutes 29 Ch. II. and 14 Geo. II. did not affect copyholds; for they only extended to estates, by the appropriation of which no persons would be injured. Whereas, if they were construed to extend to copyholds, they would operate to the prejudice of the lord. Customs. 58. As copyholds owe their existence to imme- Copyhold morial custom, so the rules by which they are governed derive their effect from the same source. Hence Lord Coke observes, that what a copyholder 1 Inst. 63 a. may or ought to do, or not do, the custom of the manor must direct. And many of those customs materially differ from the common law. 253. 59. Copyhold customs differ from those which Cro. Eliz. relate to freeholds in this circumstance, that freehold customs must be at least so general as to extend throughout a county; and cannot prevail in a particular place only. Whereas a custom relating to copyholds may be good in a single manor. 60. There are two sorts of copyhold customs; 1. 9 Rep. 75 b. General; extending to all manors in which there are 1 Salk 184. Jenk. 274. Ball's Case, Page's Case, copyholders, and warranted by the common law; of Cro. Ja. 671. which the courts take notice. 2. Particular; prevail- An. 1 Leon. ing in some manors only, which must be specially 266. pleaded. These are construed strictly; where they 4 Leon. 237. are contrary to reason, morality, or justice, or not Thorn v. Tyler, capable of being reduced to a certainty, the courts Co. Sup. § 19. of law will not pay any attention to them. It should Dean and Chapter of however be observed, that the unreasonableness of a Ely v. custom is not altogether to be deduced from the rules 2 Atk. 189. and maxims of the common law: for there is no parti- Wilks v. Broadbent, cular custom that does not, in some respects, contra- 1 Wils. R. 63. dict the common law. ΧΩ Warren, Wilson v. 7 East, 171. How proved. 61. Lord Coke has laid it down, that there are two 4 Leon. 242. pillars of custom; one, common usage; the other, Doe v. 3 Wils. 63. Roe v. 2 Atk. 189. Lit. § 76. Co. Cop. § 51. that it has been time out of mind. Therefore the person who maintains a custom, must shew precedents in the court-rolls, to prove the usage: without such proof, and that it had been put in use, although deemed and reputed a true custom, a court would not give credit to the proof by witnesses. 62. A regular series of entries in the court-rolls, is sufficient evidence of the customs of a manor; and an ancient writing, handed down with the court-rolls from steward to steward, purporting to be a customary of the manor, is evidence of a custom. 63. Lord Hardwicke has said, it was certainly the rule of law in general that the evidence of neighbouring manors shall not be admitted to shew the custom of another manor; because every manor is to be governed by its own customs. But this rule was not so universal as not to be varied in some instances; as in mine countries, Derbyshire, &c., the courts of law had admitted evidence with regard to profits of mines, &c. out of other manors, where they were analogous and similar, to explain or corroborate the custom of the manor in question. If Copyhold 64. Copyholds being derived from the tenure in Jurisdictions. villenage, they were not originally within the jurisdiction of the king's courts at Westminster. therefore a copyholder was ousted by a stranger, he could not implead him by the king's writ, but must proceed by plaint in the lord's court, and make protestation to prosecute the suit in the nature of an assise of novel disseisin, or any other writ, which his cause required. Free copyholders were also incapable of suing or being sued in the usual real actions; Blackst. Tracts, 213. but had a peculiar method of process, called a writ of right close. 65. There were however some cases in which the king's courts had a jurisdiction over copyholds. ante, § 4. Thus it appears to have been settled in the reign of Edw. IV. that if a copyholder was ousted by the lord, he might maintain an action of trespass against him, in the king's courts. v. Luther, 4 Rep. 26 a. 66. In the reign of Eliz. it was resolved, that the Melwich lessee of a copyhold for one year should maintain an ejectment. For inasmuch as his term was warranted by the law, and the general custom of the realm, it was reasonable that, if he was ejected, he should have an action of this kind. Since the practice of bringing ejectments for copyholds has prevailed, the jurisdiction of lords of manors has fallen Rex v. into disuse. And the Court of King's Bench has in several instances granted a mandamus against a lord of a manor to admit a copyholder. Rennet, 2 Term R. 197. 6 East, 431.. 330. 67. The Court of Chancery has also assumed a 1 P. Wms.. jurisdiction over copyholds; upon the principle that equity will not suffer a right to be without a remedy. Therefore, if an erroneous judgement be given in a copyhold court, a bill may be exhibited in Chancery for its reversal. 68. The Court of Chancery will also compel the Cro. Ja. 368. lord of a manor to admit a copyholder; and to hold a court for that purpose. It will also moderate the rigour of customs, and relieve against excessive fines, and unreasonable forfeitures; of which an account will be given hereafter. Lowther, 2 Ves. 300. 69. Where a doubt arises respecting the customs Fawcet v. of a manor, the Court of Chancery will direct an issue to try what those customs are: but is not bound to send a custom to be tried which prima facie |