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properly copyhold and not freehold tenures ; else they could not have subsisted to this day. For they must otherwise have been involved in the general fate of the rest of our antient tenures, when by the statute of 12 Car. 2. c. 24, they all were abolished and reduced to free and common socage ;-except only tenures in frankalmoign (a), and tenures by copy of courtroll (6). Free and common socage these tenures cannot be ; their surrenders, and admittances, their frequent fines for alienation, and peculiar paths of descent, (from which two last, as not being their universal properties, no argument hath been hitherto drawn,) their forfeitures, recoveries, and privileges, (still regulated by particular custom in derogation of the common law,) most clearly evince the contrary. Nor will it be pretended that they are of the nature of frankalmoign. There remains therefore no other choice; tenures by copy of courtroll they must be. This is their indelible character: it is to this they owe their present existence, and survival of other te
The statute has reduced all manner of lay freeholds to one and the same level, of free and common socage : but copyholds remain as they were, as various, as singular, and as servile in their tenure as ever. These tenures therefore not being free and common socage, must necessarily remain copyholds, as entirely as in the time of Bracton; of a superior order, indeed, and distinguished by some advantages (formerly real, now nominal only,) over the baser sort; but still far short of the dignity, the immunities, and the independence of that freehold tenure, which for more than three hundred years has constituted an elector of knights of the shire to serve in the English Parliament.”
(a) The tenure by which all eccle- 16 & 17 Car. 2. c. 1. 10 Ann. c. 23. siastical persons and corporations, and 1 B1. Tr. p. 115, 116, 117. Co. Lit. lay impropriators, now hold their
100. b. n. (1.) lands and tithes, and who even as to (6) But part of the honorary sersuch tithes have a freehold interest, vices in grand serjeanty are also rethough issuing out of copyhold land, tained by the statute of 12 Car. 2. being a distinct inheritance. See stat. Co. Lit. 108. a. n. (1.)
The above perspicuous, classical, and highly interesting definition of the tenure now under our consideration, would, I submit, fully justify me in proceeding, without any introductory remarks, to a statement of some few cases which appear to have established that the freehold is in the lord in privileged copyholds, passing either by surrender, or by deed of grant or bargain and sale, and admittance, as well as in ordinary copyholds (a).
But I think it right (with reference to the immediate subject of the above extracts from the Law Tracts of Mr. Justice Blackstone) to notice, that customary freeholders, although holding by copy of court-roll, were in one instance allowed to vote for knights of the shire (6), even after the statute of 31 Geo. 2. c. 14. (c); and the right of customary freeholders not holding by copy of court-roll, to vote at county elections, has been considered as less doubtful (d). Yet as the statute of 18 Geo. 2. c. 18. enacted, that no person should vote in any election of a knight or knights of the shire, without having a freehold estate in the county for which he voted, of the clear yearly value of forty shillings ; and since it has been determined, that the freehold of these estates, of such at least as are within and parcel of the manor, is in the lord, even when they pass (as frequently is the case) by deed of grant or bargain and sale and admittance, and are not held at the will of the lord, I agree with Mr. Serjeant Heywood (e) in supposing, that these tenants had formerly (f ) no right to vote at county elections.
I wish also to remind the reader, that there is a difference in
(a) Probably it would be held that 269. customary lands not being within and
(6) Contest for Leicestershire, parcel of the manor, but being held 1770. Heyw. C. 81. of the manor (as in ancient demesne (c) Ante, p. 665 n. (a.) tenure) form an exception to the rule, (d) Gloucestershire case. Heyw. and that the freehold of those lands C. 82. Male 134, 285. Rogers 160. n. is presumptively in the tenant. Post.
(e) Heyw. C. 85. p. 678. n. (a.) See note (c.) to Le (f) i. e. prior to 2 W. 4. c. 45.. Fleming v. Simpson, 1 Mann. & Ry. Ante, pt. 1. p. 661. n. (b).
the mode of pleading between pure copyholds, and those of a privileged nature (denominated customary freeholds) (a), arising principally out of the circumstance of the former being held, not only secundum consuetudinem manerii, but also ad roluntatem domini, whereas the latter are held according to the custom of the manor, but not at the lord's will (6). With this exception, however (c), there would appear to be no grounds of distinction between ordinary and privileged copyholds, when the latter are held by copy of court-roll, and pass by surrender and admittance (d), although not held at the will of the lord (e).
And that it is a settled rule that the equitable fee of customary freeholds, even when it is acquired by way of resulting trust, and although the custom of the manor is not to recognise an alienation by will, or to permit any trusts to appear upon the court-rolls, is devisable (f).
(a) Ante, pt. 1. pp. 605, 608. pt. 1. p. 30. And see Perryman's Vide also Burrell v. Dodd, 3 Bos. &
case, 5 Co. 81. Pul. 378. Leigh v. Williamson, 9 The reader is reminded that a wife Wentw. 123.
is equally excluded from dower of a (6) Hughs v. Harrys, Cro.Car. 229. trust estate in privileged copy holds Gale v. Noble, Carth. 432. Rogers or customary freeholds, as in ordinary v. Bradly, 2 Vent. 144. Hill v. Bol- copyholds. Godwin v. Winsmore, 2 ton, Lutw. 1171. Crouther v. Old- Atk. 526. Forder v. Wade, 4 Bro. feild, Ib. 125. S. C. Salk. 365. S. C. C. C. 521. Ante, pt. 1. p. 93. 2 Lord Raym. 1225. S. C. 6 Mod. (e) The court of B. R. held in 19. 11 Mod. 53.
Doe & Danvers, 7 East 299, that a (c) And see as to the writ of right of entry in customary freeholds, Right Close, and of Monstraverunt, passing by surrender and admitpost. tit. “Ancient Demesne,' pp. 694, tance, but not held at the will of the 695.
lord, is not tolled by descent. And (d) In many manors customary now by 3 & 4 W. 4. c. 27. g 39. no estates pass by deed or surrender, descent, discontinuance, or warranty but the custom sometimes requires will bar a right of entry for the rethat the grantee should be admitted covery of land. in the life-time of the grantor, which (f)Wilson v. Dent, 3 Sim. 385. was held to be a good custom in And see Wardell v. Wardell, 3 Bro. Fenn & Mariott, Willes 430. Ante, C. C. 116.
It is observable, however, that the case of Hussey v. Grills (a), is an authority that a devise of an equitable interest in customary freeholds, where there is no custom to surrender the legal interest to the use of a will, or where the customary interest is not devisable, must be attested according to the statute of frauds: And in another case (6), the court would appear to have felt a distinction, as to the relevancy of that statute, between a devise of customary lands passing by deed and admittance, and a devise of the like lands passing by surrender and admittance. But as it would seem to be a recognised principle, that a customary freeholder has no freehold interest, in the strict legal sense of that word, even when the estate passes by deed of grant or bargain and sale and admittance, the court must be presumed to have been influenced in the above case of Hussey & Grills, (supposing that case to have been rightly decided,) by the circumstance of the will alone being operative in a devise of customary freeholds, passing by deed of grant or bargain and sale and admittance, whereas the will is to be deemed declaratory only of the uses of the surrender, when lands of that tenure pass by surrender and admittance, the same as in a devise of ordinary copyholds.
This distinction is deducible from the words of Lord Hardwicke, who, in his judgment in that case, said “ There is no evidence that there can be in this manor a surrender of a customary freehold to the use of a will. Agreed, there never was any such. The foundation of the determinations as to copyholds is that the party may dispose by surrender and will. As there is no method of passing the legal estate of these customary freeholds in this way, there is no reason to hold them out of the stat. of frauds : And as the legal estate is not, so is not the trust.”
In the recent case of Willan v. Lancaster (c) it appeared
(a) Amb. 299. Ante, pt. 1. p.
(1) Doe v. Danvers, 7 East 299. (c) 3 Russ. 108.
that the customary freehold lands held of the manor were not devisable, but were transferred by deed and admittance, the operative words of the deed being bargain sell and surrender.' The particular lands were vested in a trustee, in trust for the testator for life, and after his decease for such purposes as he should appoint by deed, or by will or codicil, to be by him legally executed ; and the question was, whether a codicil not executed according to the statute of frauds would pass the equitable interest.
The case was argued merely with reference to the question, whether the equitable interest of a customary freehold would or would not pass by a will not executed according to the stat. of frauds. And Lord Gifford, M. R., desired that the question might be considered with reference to the construction to be put upon the words “ to be by him legally executed,' by which the testator might have meant 'executed according to the statute of frauds.' The case was afterwards argued before Sir John Copley, M. R., and the report merely states, that his Honor was of opinion, that the customary lands did not pass by the codicil.
proper also to premise that I have not discovered any case in which the question has arisen, whether there
may be a general occupant of customary freehold lands, but as an occupancy is for supplying a freehold (a), and as the freehold remains in the lord in privileged as well as in ordinary copyholds, the former would seem, with reference to the law of occupancy, to stand on the same footing as the latter, and to be subject to special, but not to general occupancy (b).
I have been equally unsuccessful in my endeavours to discover some judicial authority, or at least some respectable dicta, to prove the perfect accordance, or to establish a clear distinction, between privileged and ordinary copyholds, with regard to the operation of the writ of elegit, and from which
6) Ante, pt. ). pp. 63, 64, 108.
(a) Per Holt, C. J., in Smarlle v. Penhallow, 1 Salk. 189.