hereditaments of free tenure (h); [which concludes our observations on the title to them, or the means by which they may be reciprocally lost and acquired (i). And we have before considered the estates which may be had in them; with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connection of the persons entitled to hold them (k).] What remains of the law relative to the rights of property in things real in general, (exclusive of the wrongs and remedies,) is the learning relative to land of copyhold tenure, and to incorporeal hereditaments; to the first of which we shall accordingly proceed in the next chapter. (h) Vide sup. p. 173. (i) Vide sup. p. 177. (k) Vide sup. p. 234. CHAPTER XXII. OF COPYHOLDS. OUR attention has been hitherto confined to hereditaments of free tenure; and these we have considered in reference to the estates that may be had in them, and the means by which those estates may be acquired or lost. But the reader will recollect, that lands may also be held by the base tenure of copyhold; a distinction of which some general notice has been already taken in a former chapter of this work (a). And we are now to examine copyhold lands in reference to the same considerations of estate and title, which have already engaged our attention in the course of the disquisition upon hereditaments of free tenure (b). As this, however, is in the nature of a mere variation upon that general scheme of real property, which has been already unfolded as largely as the nature of an elementary work permits, our notice of it may be compressed within proportionably narrow limits. It shall be directed chiefly to the following points: I. The general nature of copyhold estates. II. Certain incidents peculiar to those estates, and not applicable to such as are of free tenure. And in what we shall have occasion to say on this subject, we are to be understood as speaking of copyhold commonly so called; the particular species of antient demesne, and the rest, not requiring in the present work a more particular notice than has already been bestowed upon them (c). I. As to the general nature of these estates, and (c) Vide sup. p. 228. (a) Vide sup. p. 219. (b) Vide sup. p. 234. may referring to what we before said of copyholds, we may collect from it, first, that it is in manors only that they are to be found; all copyholds being, from their nature, necessarily parcel of a district of that description. Secondly, that it is by the immemorial custom of the particular manor, that the nature of the copyholder's interest must always be regulated. [In some manors, where the custom hath been to permit the heir to succeed the ancestor, the estates are called copyholds of inheritance; in other, where the lords have been more vigilant to maintain their rights, they remain copyholds for life or years only (d);] but though the interest of the copyholder be thus in fee or for life, and consequently may partake of the nature of freehold, in respect of the quantity of estate, it is nevertheless, for want of the remaining ingredient, (viz. that of free tenure,) no freehold (e). Indeed, in every case of copyhold, the law still distinguishes between the strictly legal, and the customary, estate; for as regards the former, it supposes the seisin and freehold of the land to be vested in the lord, of whose demesnes it is properly parcel (ƒ); and the copyholder to be mere tenant at will; but as he is tenant at will according to the custom, that is, to hold in fee, or for life, or years, (as the case may be,) it considers him as having a customary estate to that extent (g); and one that is fixed and permanent in its nature, such as it is out of the power of the lord to defeat or encroach upon (h). In consonance with (d) 2 Bl. C. 97; 3 Real P. R. 14. It is to be observed, that if the custom has been to grant copyholds of inheritance, the lord may also grant a less estate; for, omne majus in se continet minus. (Co. Litt. 52 b.) (e) Vide sup. p. 236. (f) See Dearden v. Evans, 5 Mee. & W. 11. (g) Accordingly an estate of sufficient value, now, confers a right of voting at the election of members of parliament, whether the qualification consists in copyhold or freehold lands (2 Will. 4, c. 45, s. 19); and copyholders are equally liable with freeholders to serve on juries (6 Geo. 4, c. 50, s. 1). (h) Brown's case, 4 Rep. 21; Co. Cop. 5, 58; Litt. s. 92, Trespass. By these authorities it appears that copyholders were formerly ousted by their lords at pleasure. The reformation of this was, in the opi the latter view, which assigns to the copyholder the character of a permanent tenant, he is deemed to owe fealty to his lord(i); which, as we have seen in a former place, is an obligation from which a mere tenant at will is always exempt (k). This complicated kind of interest, according to which [the same man shall, with regard to the same land, be at one and the same time tenant in fee simple, and also tenant at the lord's will,] seems to have arisen, in the manner formerly explained, from the nature of villenage tenure (1). In the enumeration of the estates of which a copyhold may consist, it will be observed, that we have not included estates tail; it being only by particular custom that copyholds are capable of being entailed (m). For the statute De Donis is held not to extend to lands of that tenure: from which it follows that a limitation to a man and "the heirs of his body," in a copyhold, will ordinarily create not an estate tail, but a fee simple conditional at common law (n). Not only in regard to the quantity of interest, (as being in fee, for life, or for years,) but in regard also to the various modifications to which that interest may be subject, the nature of a copyholder's estate in general resembles that of an estate held in free tenure (o). But as to this, there are some exceptions. Thus,-as to estates in dower nion of Chief Baron Gilbert, "by some positive law;" (Gilb. Ten. 156, 161;) but it is generally supposed to have been gradual. Upon the whole, the origin and progress of this tenure are involved in singular obscurity; but the following notices of a very diligent investigator of the Year Books, deserve attention. As early as the fourth year of Edward the first, we find mention of custumarii tenentes. Towards the latter end of the reign of Edward the third, we find tenants per roll solonque la volonte le seigniour; and in the reign of Henry the fifth, the term of copyholders occurs. (Reeves's Hist. Eng. Law, vol. iii. p. 312.) (i) Vide sup. p. 302, n. (t). (k) Ibid. These considerations seem to show that in treating of copyhold in that division of this work which relates to estates at will, the arrangement of Blackstone is objectionable. (1) Vide sup. p. 219. (m) Co. Litt. 60 b.; 2 Bl. Com. 113. (n) Doe v. Clark, 5 B. & Ald. 458. (0) Co. Cop. 110; Gilb. Ten. 258; 2 B. & Ad. 440. and by the curtesy,—it is laid down that copyholds are not of common right subject to either of these (p); though they may each obtain, and in fact do very frequently obtain (the former under the name of free-bench), by the special custom of particular manors (q). And to this we may add, that as the mode in which copyholds are conveyed-of which we shall speak hereafter (r)-differs from any of those which are applicable to freeholds; so the limitation of an estate, in the former, is free from some of the restraints imposed by the ordinary rule of the common law, in the case of the latter. Thus in a conveyance of a copyhold estate inter vivos, though no assistance can be here derived from the Statute of Uses (s), yet an estate in fee or for life may be limited in futuro; or a fee may be limited upon a fee; or a man may convey to himself, or to his wife (t). And a copyhold has been always capable, in the manner hereafter mentioned, of alienation by will; in which all these modes of limitation are allowed with as much freedom as in the case of a devise of freehold. II. Next, as to the incidents of a copyhold estate, in which it differs from one of free tenure; and these regard, first, the estate itself, and, secondly, its title or manner of acquisition. First. As to the estate itself, a copyholder, even where his interest is in fee, has no right (except in particular manors where it may be warranted by a special custom) to commit waste,-for example, to cut down timber, unless (p) As to dower, vide sup. p. 272; as to curtesy, sup. p. 269. See 4 Rep. 22 a, where Sir E. Coke gives as a reason, that copyhold lands, though descendible by custom, nevertheless do not possess all the other collateral qualities of estates of inheritance simpliciter. (9) Co. Cop. 110, 111; Gilb. Ten. 161. As to how free-bench (if improperly withheld) may be recovered by action against the heir or devisee, (r) Vide post, p. 640. (t) Boddington v. Abernethy, 5 B. & C. 782; Co. Cop. 81. As to the rules on these points in respect of freeholds, vide sup. pp. 550, 552, 553. |