Raindle,

47. A bill was filed for a foreclosure, and to Brown v. compel a surrender of a copyhold estate, under a 3 Ves. Jun. covenant in the mortgage deed, to surrender those 256. premises as an additional security. The question was, whether this covenant of the mortgagor barred the right of his widow to free bench. The custom of the manor appeared by the evidence to be, that the copyholder could convey these estates by surrender; but where he died seised of the estate, the widow was entitled to it during her widowhood, as her free bench.

Sir R. P. Arden M. R. said it was perfectly clear that the right of a copyholder's wife might be barred by her husband, by any act done for valuable consideration, whether conveying a legal estate, or otherwise. Upon the evidence, supposing this a widow's estate, arising out of an estate of which the husband was complete owner, and could bar her estate, he was of opinion it was that sort of estate which any equitable conveyance would bind. Any act of the husband for valuable consideration, barred her equally with a legal surrender; and she was compellable in equity to surrender pursuant to such contract.

48. There are however many manors in which the custom is, that the widow shall have her free bench of all the customary tenements whereof her husband was seised, at any time during the coverture.

Anon.

49. If a copyholder does any act which, by the And by Forcustom of the manor, amounts to a forfeiture of his feiture. estate, his wife will thereby lose her free bench; 1Freem.516. because every thing which determines the estate of infra, c. 5. the copyholder, has that effect.

50. Where the lord conveys the freehold of the And by a land to the copyholder in fee, his wife will thereby Freehold to

Grant of the

the Husband. Lashmere v. Avery,

Cro. Ja. 126.

infra, c. 6. Howard v. Bartlet,

Hob. 181. A Devise may bar

Free Bench.

Tit. 6. c. 5. § 21, &c.

Ward v.
Ward,

Amb. 299.

Subject to Curtesy, 4 Rep. 22 b. Cro. Eliz. 361.

Savage's
Case,
2 Leon.

109. 208.

lose her free bench; because the copyhold is destroyed, as will be shown hereafter. If the lord grants the freehold of a copyhold to a stranger, the wife will not lose her free bench; because this does not destroy the copyhold.

51. A general devise of other lands will not bar a widow of free bench: for the same reason that it will not bar dower. But where it is expressed to be in satisfaction of dower, the widow is then put to her election.

52. A testator, after devising to his wife, declared in his will, that what he had before given her, should be in full of all dower, and right of dower, or thirds, which she might have or claim in or out of his real estate. It was decreed by Lord Hardwicke, that the devise was a satisfaction of the wife's right to free bench of a copyhold, which the testator had purchased after the making of his will; for free bench was a customary right, nomine dotis, and so declared by Bracton.

53. Curtesy is not incident to copyholds, unless there be a special custom to warrant it. Where a custom of this kind prevails, it is construed strictly, and not extended beyond the words. Thus, if the custom be, that where a man marries a customary tenant, he shall have curtesy; the woman must be a copyholder at the time of the marriage.

54. The custom of a manor was, that if any man took to wife a customary tenant, had issue, and outlived his wife, he should be tenant by the curtesy. A person pleaded that he took to wife one Ann, to whom, during the said coverture, a customary tenement of the said manor did descend; that he had issue, and that she was dead. It was adjudged, that the husband was not entitled to curtesy, under

the custom; because his wife was not a customary tenant at the time of the marriage.

1 P. Wms.

69.

2 Ld. Raym.

Lord Ch. Just. Holt, and Powell, Just. held this case not to be law; but it is observable that it is stated by Lord C. B. Gilbert, without any expression 1028. of dissent.

55. Although the wife be not actually admitted to the copyhold, yet the husband will be entitled to curtesy.

It was

Ten. 326.

Aston,

56. The custom of a manor was, that if a man Ever v. had a wife seised in fee of copyhold lands, according Moo. 271. to the custom of the manor, and had issue by her, that he should be tenant by the curtesy. found, that A. a copyholder was seised, and had issue, a daughter, who was married to J. S. and had issue. A. died, his daughter entered, but died without being admitted. The Court seemed of opinion, that the husband was entitled to be tenant by the curtesy, before admittance of the wife; and that the delay of admittance by the lord, should not preju- Gilb. Ten. dice the husband, who was a third person.

57. By the custom of some manors the husband of a copyholder is entitled to curtesy, though he has no issue by his wife. But such estate is forfeitable by a second marriage.

287.

What Sta

tutes extend to Copy

58. Copyhold estates are as much under the control of the legislature as any others. But where they are not expressly mentioned in an act of parliament, holds. it often does not extend to them, upon the ground that it was not the intention of the legislature that it should affect them.

59. Lord Coke has laid down the following rules Co. Cop. § 53. for distinguishing between those statutes that do, or do not extend to copyholds. Where an act of parliament alters the service, tenure, or interest of the

Tit. 32. c. 3.

land, or other thing, in prejudice of the lord, or of the custom of the manor; or in prejudice of the tenant; there the general words of such an act of parliament extend not to copyholds. But where an act is generally made for the good of the commonwealth, and no prejudice may accrue by reason of the alteration of any interest, service, tenure, or custom of the manor, there usually copyholds are within the general purview of such acts.

60. In conformity to these principles it is held, that the statute 4 Hen. VII. of fines, as to their being a bar after five years non-claim; the statutes of bankruptcy, the statutes of limitations, the statutes of mortmain, the statute 7 Ann. relative to conveyances by infant trustees, and many others, extend to copyholds. It has been already stated, that the statute De Donis extends to copyholds, where the custom co-operates with it.

61. But it is also settled, that the statute of Westminster 2. c. 18. which gives the writ of elegit; the statute 11 Hen. VII. respecting alienations by a wife of the lands of her husband; the statute of uses and jointures; the statute of wills; the statute 32 Hen. VIII. as to discontinuance, by the wife, of the husband's lands; the statute 13 Eliz., for making accountants lands liable to the debts of the Crown; and several other statutes, do not extend to copyholds.

62. Copyhold estates are within the 4th section of the statute of frauds, concerning the sale of lands; and the 7th section, which requires declarations of Tit. 38. c. 4. trust to be in writing; but they are not within the sections of the statute which relate to devises of

lands.

WHE

SECTION 1.

HEN copyholds were allowed to descend to Fines upon the children of the copyholders, the lords, Descent. from whose permission and continued acquiescence the right of descent was derived, would not admit, the heir of a copyholder to succeed to the land whereof his ancestor died possessed, without paying something; from which arose a custom, that upon every descent of a copyhold a sum of money, or fine, was due from the heir to the lord, as a consideration for the renewal of the grant. And where a person en- Gilb. Ten, ters as special occupant, he is also liable to the

ment of a fine.

pay

327.