What statutes apply to

there was no intercommoning after the crop was removed. Such cases are dealt with under the provisions relating to intermixed lands above-cited, and are not inclosed as commonable lands (a).

This may be a convenient place for noticing the rules which have been laid down to determine whether copy holds Acts of Parliament expressed in general words are applicable to copyholds. It is usual in modern Acts to state expressly that they apply to customary estates, but there was a paucity of expression in some of the early statutes which frequently left the point uncertain. (b).

General rule

A general Act will include copyholds, unless it is merely declaratory of the common law, or is prejudicial to the lord or tenant or destructive of the custom. (c). A declaratory Act, whether its form be affiamative or negative, is clearly not intended to introduce any new law or to alter any ancient custom. The oldest Statutes, as Magna Charta, the Statute of

(a) Ibid. 144.

(b) For a collection of early cases, see 6 Vin Abr. 168, and Cru. Dig. tit. 10, c. 3,

(c) Heydon's case, 3 Co. 8, where Lord Coke laid down his "infallible rule" for construing general statutes, viz.: "when any Act alters the service, tenure or interest of the land, or other thing in prejudice of the lord, or of the custom of the manor, or of the tenant, then the general words do not extend to copyholds; but when an Act is generally made for the public good, and no prejudice may accrue by reason of the alteration of any interest, service, tenure, or custom of the manor, then usually copyholds are within the general purview of such Acts." See Co. Cop. s. 53; Co. Litt. 115; Glover v. Cope, 4 Co. 80; 1 Salk.

Merton, and some few others are said to declare the law, and with the original writs &c. "to be the very body, and as it were the very text of the common law of England.” (a).

It is held to be prejudicial to the lord to be forced to accept a tenant, so that copyholds are not within the Statute of Uses, because by the statutory transmutation of ownership a tenant might have been introduced without the lord's assent, and for the same reason they were not liable, except by special custom, to be delivered in execution by the sheriff. By the Act 1 & 2 Vict. c. 110, they have become extendible for judgment debts, and have therefore come within the provisions of 13 Elis. c. 5, for the protection of creditors. (b).

Before the Act of 1841, 4 & 5 Vict. c. 35, s. 85, the lord's licence was required for the change in the tenure of a copyhold caused by its partition among the owners of undivided shares. So before the Act 9 & 10 Vict. c. 70, the exchange provisions of the general inclosure Act, s. 147, were held to be confined to freeholds. So without express provisions, such as are contained in the Lands Clauses Act of 1845, an Act passed for enabling land to be taken for a public undertaking would not be allowed to prejudice the

(a) 8 Co. pref. 3; Co. Litt. 115.

(b) Before the Act of 1838, an assignment of copyholds could not be said to be in fraud of creditors, because it put no available property out of their reach, as they could not have a writ of elegit. Matthews v. Fever, 2 Cox. 278.

Acts

extended

holders.

lord. (a). On the same principle a pénal statute imposing a forfeiture of land will not include customary estates if any part of the forfeiture is taken from the lord, since "an Act is not to be expounded so as to take away the interest of an innocent person." (b). The Statute 12 Car. 2, c. 24, so far as it permits fathers to appoint guardians for their children, seems to apply to copyholds except in those places where the lord has by custom the right of appointing the guardian. (c).

When an Act will benefit the copyholder and not to copy prejudice the lord, it may "by a benign interpretation" be extended to copyholds, even if it be in terms suitable to freeholds only or be merely declaratory of the law. Thus the Statute of Merton, 20 Henry 3 c. 1, giving certain remedies for dower to widows was extended to give analogous remedies in the manor-court to widows claiming their freebench and so with all the incidents of customary estates-tail, which were very soon brought within the equity of the Statute De Donis. Copyholders were allowed the benefit of 32 Hen. 8 c. 34 by which assignees of a reversion may sue on the covenants running with the land, "because it was a remedial law and no prejudice arose to the lord."(d) And in the same way general statutes

(a) Dimes v. Grand Junction Canal, 9 Q.B. 469; 3 H.L.C. 794. (b) York v. Marsham, Hard. 432.

(c) 2 Watk. Copyh. 104.

(d) Glover v. Cope, 4 Co. 80; 1 Salk. 185. Whitton v. Peacock 3 Myl. & K. 325.

made for the public advantage will be extended to copyholders, though only freeholders are named, as the Statutes of Merton (20 Hen. 3. c. 3.) and 13 Edw. 1. c. 46. relating to enclosures of wastes by the owners, leaving sufficient for the commoners (a). The provisions of the Stamp Act, 1870, are applicable to conveyances of copyholds made after its date(b).

(a) Shakespeare v. Peppin, 6 T.R. 747. Grant v. Gunner, 1 Taunt. 435.

(b) The Act applies only to instruments made after its date. For the earlier regulations, see Dart. V. & P. c. 6. An abstract of the principal provisions of the late Act, so far as it relates to copyholds, will be found in the Appendix.

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CHAPTER V.

THE DESCENT OF COPYHOLDS.

Customs affecting descent of copyholds to heirs—Customs of descent in freeholds-Run with the landCustoms of descent in gavelkind-In boroughenglish-Legal effect of these terms-Various customs of descent-As in gavelkind-Less extensive varieties-Borough-english descent proper―Analogous customs-Extensions of the custom-Restrictions of the custom-Descent to customary heir of tenant dying seised—Other restrictions-Customary descents among females-preference of eldest or youngest-Exclusion of heirs female-Descent of inheritance to widow-To what estates these cus. toms extend-Estates-tail-Descendible life estates -Estates in expectancy-Conditions—Manors— Advowsons-Tithes- Franchises-Rents- Equitable estate-Executory trusts-Who will be taken to be eldest or youngest-Question as to statutes of distribution-Hotchpot-Effect of the Inheritance Act-Person last seised-Descent from purchaser