never pass more than the person conveying had a right to convey (p). With regard to leases, however, it is to be noticed that if a copyholder leases for years without licence of the lord, or without a custom to authorise the lease, the lessee has nevertheless a good title against every one but the lord (2); and even as against the lord a lease not warranted by the custom may become good for as between the parties to the lease and the lord, the demise against custom is only a ground of forfeiture which the lord may waive (r). But the acceptance by the lord of quit-rent from the lessee to whom the lands have been demised without his licence has been held not to prevent the lord from recovering in ejectment against the lessee (s). Where the copyholder obtains the lord's licence to demise, the licence operates as a confirmation of any lease which is made in accordance with its terms, and a subsequent forfeiture by the copyholder will not affect the lease, and pending the term created by the lease the lord cannot bring an action to recover the land (t). The lord cannot be compelled to grant a licence to demise, for the granting or refusing of a licence is a matter which is wholly within his discretion (u).

Neglect of services.

Other forfeitures may be occasioned by the tenant's wilful () refusal to pay his rent (y), fine (z), suit of court (a), or other services, after sufficient notice; or to be sworn on the homage after receiving a personal notice to attend, or

(p) London's Case, cited Godb. 269; Watk. Copyh. i. 328.

(q) Downingham's Case, Owen, 17; Smith v. Packhurst, 3 Atk. 135, 141; Doe d. Tresidder v. Tresidder, 1 Q. B. 416.

(r) Lady Montague's Case, 1 Salk. 186; Doe d. Robinson v. Bousfield, 6 Q. B. 492.

(s) Doe d. Nunn v. Lufkin, 4 East, 221.

(t) Clarke v. Arden, 16 C. B. 227. (u) Reg. v. Hale, 9 A. & E. 339. (x) See Trotter v. Blake, 2 Mod. 229.

(y) Crisp v. Fryer, Cro. Eliz. 505.
(z) Willowes' Case, 13 Rep. 1.
(a) Belfield v. Adams, 3 Buls.

to make proper presentments after being sworn; or if he formally disclaims his tenure (b). But it is no cause of forfeiture to be unprepared to pay a fine at once, the amount of which is in the lord's discretion. "Though a fine assessed be reasonable, yet the lord ought to appoint a certain day and place where it should be paid, because it stands upon a point of forfeiture of the estate, and the copyholder is not bound to carry his fine always with him" (c). It has been already mentioned that in certain manors the copyhold is forfeited to the lord if the person entitled to admittance (not being a minor, or otherwise disabled from coming) does not come within a certain period after due proclamations have been made (d). The refusal of the customary services is held to be a breach of the condition on which the land was granted; "the consideration failing, the lord resumes his grant” (e).

Right of Estovers.

Copyholders, being bound to keep their houses and lands in a proper state of repair and cultivation, are entitled to reasonable allowances of wood for repairs, and stone, sand, &c., for purposes of husbandry, and wood or peat for fuel (f). These allowances are called estovers or botes, but the term is sometimes applied only to the allowance of wood. All these rights may be subject to customary restrictions, as that they shall only be taken after view and delivery by the lord or his bailiff, and the like (g). The various rights of taking wood may be classified as follows, the general term estovers including 1. housebote (or "the greater house-bote"), being the liberty of taking timber-trees for repairing houses, or rebuilding

them after accidental destruction (h); 2. fire-bote (or "the lesser house-bote"), being the liberty of taking the underboughs of timber-trees, tops and lops of pollards, cuttings of trees made in a reasonable manner, so as not to injure the growth, deadwood, windfalls, and underwood, for fuel in the house; 3. plough-bote, or the liberty of taking timber or other wood for repairing waggons, carts, ploughs, and implements of husbandry, and 4. hedgebote (or "hay-bote"), being the liberty of taking sufficient wood for making and repairing the walls, gates, hedges, fences, and enclosures.

Trees and Mines.

In the absence of a special custom the lord is the owner of all trees upon the copyhold land, and of all minerals upon the surface, or in quarries or mines underground; but the tenant has a possessory interest, and will be protected against any invasion on the part of the lord (i). The following extract from the judgment of Sir George Jessel, M.R., in the case of Eardly v. Granville (j), contains a clear statement of the law on this point. "The estate of a copyholder in an ordinary copyhold is an estate in the soil throughout, except as regards for this purpose timber-trees and minerals. As regards the trees and minerals the property remains in the lord, but in the absence of custom he cannot get either the one or the other, so that the minerals must remain unworked, and the trees must remain uncut. The possession is in the copyholder; the property is in the lord. If a stranger cuts down the trees, the copyholder can maintain trespass against the stranger, and the lord can maintain trover for the trees. If the lord

(h) But see Blewett v. Jenkins, 12 C. B. N. S. 16.

(i) Player v. Roberts, W. Jon. 243; Bourne v. Taylor, 10 East, 189; Grey v. Northumberland (Duke of), 13 Ves. jun. 236; S. C. 17 Ves. jun.

281; Whitechurch v. Holworthy, 4 M. & S. 340; S. C. 19 Ves. jun. 214; Hext v. Gill, L. R. 7 Ch. 699; Eardly v. Granville, 3 Ch. Div. 826.

(j) 3 Ch. Div. 826.

cuts down the trees, the copyholder can maintain trespass against the lord; but if the copyholder cuts down the trees, irrespective of the question of forfeiture, the lord can bring his action against the copyholder. So in the case of minerals. If a stranger takes the minerals, the copyholder can bring trespass against the stranger for interfering with his possession, and the lord may bring trover, or whatever the form of action may be now, against the stranger to recover the minerals. The same rule applies to minerals as to trees. If a tree has been cut down, the lord cannot compel the copyholder to plant another. The latter has a right to the soil of the copyhold where the tree stood, including the stratum of air which is now left vacant by reason of the removal of the tree. So if the lord takes away the minerals, the copyholder becomes entitled to the possession of the space where the minerals formerly were, and he is entitled to use it at his will and pleasure." But the course of usage may show that in a particular manor the minerals belong to the lord without any possessory title in the tenant; and in the mining districts of the Northern Counties, where it is usual for the mineral strata to belong to separate owners, the presumption as to the owner of the surface having possession of all underground minerals is of much less force than elsewhere (k). The lord may prove a right to enter upon the copyhold to dig for minerals, the usage showing what the nature of the original grant to the copyholder had been. But no claim of the lord to a privilege which would have destroyed the value of the original grant can be sustained (1). In Hilton v. Granville (Earl) (m), it was held that a lord could not set up a custom to dig minerals under the copyholds of the manor so as to let down the surface of the land; and the Court said that "even if a grant could be produced in specie, reserving a right in the lord to deprive

(k) See Barnes v. Mawson, 1 M. & S. 77, 84.

(1) Wilkes v. Broadbent, 1 Wils. 63; Hilton v. Granville (Earl), 5

Q. B. 701; but see Salisbury (Marquis of) v. Gladstone, 9 H. L. Cas. 692, 701, 707.

(m) 5 Q. B. 701.

What are minerals.

the grantee of the enjoyment of the thing granted, such a clause must be rejected as repugnant and absurd"; but this later dictum has been overruled (n), and considerable doubt now exists whether Hilton v. Granville (Earl) is good law (o). But even though it is not easy "to define the meaning of the word 'reasonable' when applied to a custom regulating the relation between a lord and his copyholders, as that relation must have had its origin in remote times by agreement between the lord, as absolute owner of the whole manor in fee simple, and those whom he was content to allow to occupy portions of it as his tenants at will" (p), it is submitted that any custom alleged by the lord, of which the effect would be to destroy the value of his grant, would be deemed unreasonable, unless it could be clearly shown to have existed from time immemorial, and to have been acquiesced in by the copyholders.

Every substance which can be got from underneath the substance of the copyhold tenement for the purpose of profit is included in the term "minerals" (q); and it has been held that coprolites beneath the surface and china clay are minerals, and that the property in them is in the lord (r). Where the lord has the minerals he has a right to make a tramway through the subsoil of the copyhold, provided it is for the purpose of working such minerals, and to carry along such tramway any minerals which he may work and win within the manor, but he is not entitled to drive carriages along this tramway for any other purpose than that of working the minerals within the manor (s). As however the copyhold tenant has in the absence of custom a possessory interest in the minerals, his consent must be obtained before the lord can work the

(n) Rowbotham v. Wilson, 8 H. L. Cas. 348.

(0) See remarks of Cockburn, C. J., in Blackett v. Bradley, 8 Jur. N. S. 588, 590; and of Lord Chelmsford in Buccleugh (Duke of) v. Wakefield, L. R. 4 H. L. Cas. 377, 410.

(p) Per Lord Cranworth in Salis

bury (Marquis of) v. Gladstone, 9 H. L. Cas. 692, 701.

(9) Hext v. Gill, L. R. 7 Ch. 699. (r) Att.-Gen. v. Tomline, 5 Ch. Div. 750; S. C. 15 Ch. Div. 150 (C. A.).

(s) Bowser v. Maclean, 2 De G. F. & J. 415.