which is subject to the power, and the case is one in which a Court of Equity will relieve against the defective execution." No aid will however be afforded to a husband, a grandchild, a natural child, or cousin, a brother or sister, a nephew or niece or a volunteer, even although such a volunteer be the creator of the power (1). Where there is complete execution of a power, and something ex abundanti added, which is improper, there the execution shall be good, and only the excess void; but where there is not a complete execution of a power, and the boundaries between the excess and execution are not distinguishable, the execution will be bad (2). sive independent deeds, there primâ facie the sums or parts appointed, not being aliquot parts, have priority according to the dates of the deeds. (3) Where under a power an appointment authorized by the power is made reserving a power of revocation and new appointment, and subsequently an instrument of revocation and new appointment is executed, the new appointment operates as an exercise of the original power. See further on the subject of powers, Henty v. Wrey, 21 Ch. D. 332; Brett's Leading Cases, p. 225; Re Mills, 34 Ch. D. 186; Cooke v. Cooke, 38 Ch. D. 202; Re Brough, 38 Ch. D. 456; Whelan v. Palmer, 39 Ch. D. 649; Re Deane, W. N. (1888) 249; (1889) 107. Definition. Sketch of the law as to copyholds. CHAPTER XV. COPYHOLDS. Copyholds are defined as lands expressed to be held (1) at the will of the lord; (2) by copy of Court roll; (3) according to the custom of the manor, subject to the rent and services to be paid or rendered to the lord. The history of copyholds may be told sufficiently for our present purpose in a few words. The tenure of the copyholders was originally a mere occupation licence from a feudal lord to the villein who cultivated that part of his estate which was not granted to free tenants. Portions of the demesne lands of manors were then held by the villeins or bondsmen on a base tenure. These tenancies were at first actually, as they still are nominally, at the will of the lord, but gradually by custom the tenants acquired permanent rights. Custom developed into right. The will of the lord which had originated the custom came at last to be controlled by it. The word villenage as applied to this tenure fell into disuse, and it came to be called "copyhold," from the fact of the instrument of title to the tenant's estate being a copy of the Court roll or book of the manor in which dealings with the copyhold lands are recorded. Thus, to quote from a well-known writer on Copyholds, has the law supported and strengthened the estate of the tenant, though it still regards him as holding (nominally) at the will of the lord. The tenant has long ceased to be subject to the caprice of his lord. The grant by the lord is solely dependent on his option, but from the very time of the grant, and, in consequence of the very act, the copyholder ceases to be a mere tenant at the will of the lord; he is no longer subject to his caprice. The lord has granted him his estate, and the law has established it. The absolute control of the lord has fled, and the tenant is in by the custom. Hence he is no longer said to hold merely "at the will of the lord," but "at the will of the lord according to the custom of the manor" (1). (1) Watkins on Copyholds, vol. i. p. 68. "Copyholders," said Sir Edward Coke, writing of the state of the law CHAP. XV.] COPYHOLDS. 185 : There are three kinds of customary tenure for copyholds: Varieties (1.) Copyholds proper or pure copyholds which are described of custoas parcel of the manor held at the will of the lord, according to tenure. the custom of the manor; (2.) Customary freeholds, or customary-holds, which are described as parcel of the manor held according to the custom thereof, but not at the will of the lord; (3.) Tenant-right estates, being the customary freeholds in some manors in the north of England (1). The principal characteristics or incidents, as they are called, of copyholds are: 1. They are technically held at the lord's will. mary of copyholds. 2. The tenants cannot commit waste as the mines, minerals, Incidents and timber, even though it be planted by the tenant, belong to the lord. Besides his right to the timber, trees, and minerals, the lord of the manor is also entitled to the benefit of the various other incidents subject to which copyhold estates are held. Thus, the lord is entitled to all escheats and forfeitures of copyhold estates, and, in many instances, to rents of small amounts, and reliefs, payable by the tenant. 3. The tenants cannot lease the lands for more than a year, unless there be a special custom, without the lord's licence. 4. Copyhold lands are also by special custom subject to a peculiar incident, said to have been introduced by the Danes, viz., that on the death of a tenant the lord becomes entitled to his best beast or chattel, then in the tenant's possession, as a heriot, as it is called. Sometimes a pecuniary composition is payable in lieu of a heriot (2). 5. A sum of money called a fine is payable to the lord on every transfer of the tenancy of the land, whether by alienation or death. The fine may be either fixed in amount by custom, or "arbitrary." In the latter case it was originally such a sum as the lord might choose to exact, but in modern times it has in his own day, "now stand upon a (1) The law with regard to tenant Ellenborough in Doe d. Bray v. (2) See Lord Zouche v. Dalbiac, Incidents of copyholds. Restraint on the creation of copyholds. Timber, trees and minerals. been fixed at a sum not exceeding two years' improved value of the land. It was decided by the Court of Appeal that the lord is only entitled to a fine when the legal estate is transmitted, and that if there be only a covenant to surrender or a devolution of the equitable estate, the legal estate still remaining in the person admitted as tenant on the rolls, no fine can be claimed (1). 6. If on the death of a copyhold tenant the person next entitled to the land does not seek admittance as tenant, the lord, after certain formalities, may seize the land quo usque, that is, until some tenant claims to be admitted to the land. No land can be copyhold unless it be demesne land of a manor held by villein tenure; except that, until the recent legislation to which we shall next allude, the lord of the manor might, under certain conditions, grant portions of the waste lands of the manor to be held as copyhold. But by the Copyhold Act, 1887 (2), it is provided that, after the passing of that Act, it shall not be lawful for the lord of any manor to make grants of land not previously of copyhold tenure to any person to hold by copy of court roll or by any tenure of a customary nature without the previous consent of the Land Commissioners, who, in giving or withholding their consent, shall have regard to the same considerations as are to be taken into account by them on giving or withholding their consent to any inclosure of common lands; and that whenever any such grant has been lawfully made the land therein comprised shall cease to be of copyhold tenure, and shall be vested in the grantee thereof to hold for the interest granted as in free and common socage. The law with regard to the rights of the lord and the copyholder respectively in respect of timber and minerals, was considered by Sir George Jessel in an elaborate judgment, from which the following statement of the law is taken : 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 an action for trespass against the stranger, and the lord can maintain an action for the value of the trees. If the lord cuts down the trees, the copyholder can maintain an action for (1) Hall v. Bromley, 35 Ch. D. 642. (2) 50 & 51 Vict. c. 73, s. 6. 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. The law with regard to minerals is as follows: If a stranger Minerals. takes the minerals, the copyholder can bring an action for trespass against the stranger for interfering with his possession, and the lord may bring an action against the stranger to recover the minerals. The same rule applies to minerals as to trees. If the trees are once 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. If there be a shaft made for working the mines, the copyholder may descend in the shaft, and either walk about in the space below or use it for any other rational purpose (1). The general rule is that the same words are requisite to Estates in create certain estates of copyholds as are necessary to the copyholds. creation of the same estates of freehold lands. By the force, however, of a particular custom, estates may be otherwise created: e.g., by special custom, an estate of inheritance may be created by the words "to him and his" (sibi et suis); or to him and his assigns (sibi et assignatis), or similar words. In some manors the words to A. and his "sequels in right" are used instead of the technical word "heirs"; and in others, in addition to it; as "to A. his heirs and sequels in right" are used instead of the technical word "heirs" to create an estate in fee simple (2). It is not necessary in a surrender of copyholds that the name of the person for whose benefit the surrender is made should be precisely mentioned. It is sufficient if the grantee can be (1) Eardley v. Granville (3 Ch. D. 826, 832, et seq.). In this case Sir George Jessel explained and illustrated the law as to copyholders' rights in respect of mines, as laid down by Lord Campbell in Bowser v. Maclean, 2 De G. F. & J. 427, as follows: "If a freeholder grants lands, excepting mines, he severs his estate vertically, i.e. he grants out his estate in parallel horizontal layers, and the grantee only gets the parallel layer granted to him and does not get any underlying mineral layer or stratum. (2) Watkins on Copyholds, 172. Surrender of copyholds. |