ON APPEAL BY HEYDON
 EWHC Exch J36
In an information upon an intrusion in the Exchequer, against Heydon, for intruding into certain lands, etc. in the county of Devon: upon the general issue, the jurors gave a special verdict to this effect.
First, they found that parcel of the lands in the information was ancient copyholds of the manor of Ottery, whereof the warden and canons regular of the late college of Ottery were seised in the right of the said college; and that the warden and canons of the said college, 22 H. 7. at a court of the said manor, granted the same parcel by copy, to Ware the father and Ware the son, for their lives, at the will of the lord, according to the custom of the said manor; and that the rest of the land in the information was occupied by S. and G. at the will of the warden and canons of the said college for the time being, in the time of H. 8. And further that the said S. and G. so possessed, and the said Ware and Ware so seised as aforesaid, the said warden and canons by their deed indented, dated 12 January anno 30 H. 8. did lease the same to Heydon the defendant for eighty years, rendering certain rents severally for several parcels; and found that the said several rents in Heydon’s lease reserved, were the ancient and accustomed rents of the several parcels of the lands, and found, that alter the said lease they did surrender their college, and all the possessions thereof to King Hen. 8. And further found the statute of 31 Hen. 8. and the branch of it, scil. by which it is enacted, “That if any abbot, etc. or other religious and ecclesiastical house or place, within one year next before the first day of this present Parliament, hath made, or hereafter shall make any lease or grant for life, or for term of years, of any manors, messuages, lands, etc. and in the which any estate or interest for life, year or years, at the time of the making of such grant or lease, then had his being or continuance, or hereafter shall have his being or continuance, and not determined at the making of such lease, etc. Or if the usual and old rents and farms accustomed to be yielden and reserved by the space of twenty years next before the first day of this present Parliament, is not, or be not, or hereafter shall not be thereupon reserved or yielded, etc. that all and every such lease, etc. shall be utterly void.” And further found, that the particular estates aforesaid were determined, and before the intrusion Heydon’s lease began; and that Heydon entered, etc. And the great doubt which was often debated at the Bar and Bench, on this verdict, was, whether the copyhold estate of Ware and Ware for their lives, at the will of the Lords, according to the custom of the said manor, should, in judgment of law be called an estate and interest for lives, within the said general words and meaning of the said Act. And after all the Barons openly argued in Court in the same term, scil. Pasch. 26 Eliz. and it was unanimously resolved by Sir Roger Manwood, Chief Baron, and the other Barons of the Exchequer, that the said lease made to Heydon of the said parcels, whereof Ware and Ware were seised for life by copy of court-roll, was void; for it was agreed by them, that the said copyhold estate was an estate for life, within the words and meaning of the said Act. And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. And it was said, that in this case the common law was, that religious and ecclesiastical persons might have made leases for as many years as they pleased, the mischief was that when they perceived their houses would be dissolved, they made long and unreasonable leases: now the stat of 31 H. 8. doth provide the remedy, and principally for such religious and ecclesiastical houses which should be dissolved after the Act (as the said college in our case was) that all leases of any land, whereof any estate or interest for life or years was then in being, should be void; and their reason was, that it was not necessary for them to make a new lease so long as a former had continuance; and therefore the intent of the Act was to avoid doubling of estates, and to have but one single estate in being at a time: for doubling of estates implies in itself deceit, and private respect, to prevent the intention of the Parliament. And if the copyhold estate for two lives, and the lease for eighty years shall stand together, here will be doubling of estates simul & semel which will be against the true meaning of Parliament.
And in this case it was debated at large, in what cases the general words of Acts of Parliament shall extend to copyhold or customary estates, and in what not; and therefore this rule was taken and agreed by the whole Court, that when an Act of Parliament doth  alter the service, tenure, interest of the land, or other thing, in prejudice of the lord, or of the custom of the manor, or in prejudice of the tenant, there the general words of such Act of Parliament shall not extend to copyholds: but when an Act of Parliament is generally made for the  good of the weal public, and no prejudice can accrue by reason of alteration of any interest, service, tenure, or custom of the manor, there many times copyhold and customary estates are within the general purview of such Acts. And upon these grounds the Chief Baron put many cases, where he held, that the Statute of  West. 2. de Donis Conditionalibus did not extend to copyholds; for if the statute alters the estate of the land, it will be also an alteration of the tenure, which would be prejudicial to the lord: for of necessity the donee in tail of land ought to  hold of his donor, and do him such services (without special reservation) as his donor doth to his lord.
2nd. Littleton saith, lib. 1. cap. 9. That although some tenants by copy of courtroll have an estate of inheritance, yet they have it but at the  will of the lord, according to the course of the common law. For it is said, that if the lord put them out, they have no other remedy but to sue to their lord by petition; and so the intent of the Statute De Donis Conditionalibus was not to extend (in prejudice of lords) to such base estates, which as the law was then taken, was but at the will of the lord. And the statute saith, Quod voluntas donatoris in carta doni sui manifeste express. de caetero observetur: so that which shall be entailed, ought to be such an hereditament, which is given, or at least might be given by deed or charter in tail.
3rd. Forasmuch as great part of the land within the realm, is in grant by copy, it will be a thing inconvenient, and occasion great suit and contention, that copyholds should be  entailed, and yet neither fine  nor common  recovery bar them; so as he who hath such estate cannot (without the assent of the lord by committing a forfeiture, and taking a new estate) of himself dispose of it, either for payment of his debts, or advancement of his wife, or his younger children; wherefore he conceived that the Statute De Donis Conditionalibus did not extend to copyholds, quod fuit concessum per totam Curiam. But it was said that the statute, without special custom, doth not extend to copyholds ; but if the  custom of the manor doth warrant such estates, and a remainder hath been limited over and enjoyed, or plaints in the nature of a formedon in the descender brought in the court of the manor, and land so entailed by copy recovered thereby, then the custom co-operating with the statute makes it an estate-tail; so that neither the statute without the custom, nor the custom without the statute, can create an estate-tail.
And to this purpose is  Littleton, lib. 1. c. 8. for he saith, that if a man seised of a manor, within which manor there hath been a custom which hath been used time out of memory, that certain tenants within the same manor have used to have lands and tenements, to hold to them and their heirs in fee-simple or fee-tail, or for term of life, etc. at the will of the lord, according to the custom of the same manor; and a little after, that formedon in descender lies of such tenements, which writ, as it was said, was not at the common law.
To which it was answered by the Chief Baron, that if the statute (without custom) shall not extend to copyholds, without question the custom of the manor cannot make it extend to them; for before the statute, all estates of  inheritance, as Littleton saith, lib. i. cap. 2., were fee-simple, and after the statute no custom can begin, because the statute being made in 13 E. 1. is made within time of memory; ergo the estate tail cannot be created by custom; and therefore, Littleton is to be intended (inasmuch as he grounds his opinion upon the custom, that copyholds may be granted in fee-simple, or fee-tail) of a fee-simple conditional at the common law: for Littleton well knew, that no custom could commence after the statute of West. 2., as appears in his own book, lib. 2. c. 10. and 34 H. 6. 36. And where he saith, that formedon in  descender lies, he also saith, that it lies at the common law. And it appears in our books, that, in special cases, a formedon in the descender lay at the common law, before the statute of Westm. 2., which see 4 E. 2. Formedon 50. . 10 E. 2. Formedon 55. 21 E. 3. 47. Plowd. Com. 246. b. etc.
And where it was further objected, that the statute of West. 2. cannot without custom make an estate tail of copyholds, because without custom, such estate cannot be granted by copy; for it was said, if estates had been always granted to one and his heirs by copy, that a grant to one and the heirs of his body, is another estate not warranted by the custom: so that in such manors, where such estates of inheritance have been allowed by custom, the statute doth extend to them, and makes them, which before were fee conditional, now by the statute estates in tail, and that the statute cannot, as hath been agreed before, alter the custom, or create a new estate not warranted by the custom.
To that it was answered by the Chief Baron, that where the custom of the manor is to grant lands by copy in feodo simplici (as the usual pleading is) without question, by the same custom lands may be  granted to one and the heirs of his body, or upon any other limitation or condition; for these are estates in fee-simple, et eo potius, that they are not so large and ample as the general and absolute fee-simple is, and therefore the generality of the custom doth include them, but not e converso; ad quod non fuit responsum. But it was agreed by the whole Court, that another Act made at the same Parliament, cap. 18. which gave the elegit  doth not extend to copyholds, for that would be prejudicial to the lord, and against the custom of the manor, that a stranger should have interest in the land held of him by copy, where by the custom it cannot be transferred to any without a surrender made to him, and by the lord allowed and admitted. But it was agreed by them, that other statutes made at the same Parliament, which are beneficial for the copyholder, and not prejudicial to the lord, may be, by a favourable interpretation, extended to copyholds, as cap. 3. which gives the wife a cui  in vita, and receipt, and cap. 4. which gives the particular tenant a quod ei deforceat; and therewith agrees 10 E. 4. 2. b.. And in this case it was also resolved, that although it was not found  that the said rents were the usual rents, accustomed to be reserved within 20 years before the Parliament; yet inasmuch as they have found, that the accustomable rent was reserved, and a custom goes at all times before, for this cause it shall be intended, that it was the accustomable rent within the twenty years, and so it should be intended, if the contrary be not shewed of the other side. And judgment was entered for the Queen.
Note 1 As to an information of intrusion, see ante i. p. 16 a. (A). (ED.) [Back]
Note 2 31 H. 8. c. 13. [Back]
Note 3 Moor. 128. Say. 66. 6 Co. 37 b. Cro. Car. 45. 83. [Vin. Abr. Statutes E. 6. pl. 137. Bac. Abr. Statutes, I. 4. vi. 333.] [Back]
Note 4 Penal statutes are in general to be construed strictly, and are not to be-enlarged by parity of reason, nor extended by equitable construction, but even in penal laws, the intention of the Legislature is the best method to construe the law, The King v. Gage, 8 Mod. 65; and equity will aid remedial laws though penal, not by making them more penal, but so as to let them have their course. Per Wright, Lord Keeper, Attorney General v. Sadell, Prec. Ch. 215. As to the construing statutes by equity in general, see 1 Inst. 24 b. 54 b. i. 29. Plowd. 9, 10. 17, 18. 36. 46. 53. 57. 59. 82. 88. 109. 124. 177. 204. 244. 363. 364. 366. 371. 464. 466. Hatt. Treat. on Stat. Ash. Exposit. of Stat. by Eq. Vin. Abr. Statutes E. 6. Com. Dig. Parliament R. 10. Bac. Abr. Statutes I. 6. With respect to the different kinds of statutes, see 1 Inst. 98 b. i. 25-27. and a. (16.) (N.).ib. 2 Eun. 80. 1. Bl. Com. 85. (ED.) [Back]
Note 5 Poph. 74. [Back]
Note 6 2 Rol. Rep. 99. [Back]
Note 7 Hard. 27. 2 Rol Rep. 314. Cro. Car. 83. 533. Co. Lit. 381 b. 1 Co. 123 a. 11 Co. 73 b. 2 Siderf. 41. 2 Bulst. 187. Hob. 97. 1 Rol. Rep. 162. 166. Cro. Argument 40. [2 Wils. 193. 6 T. R. 385. Bac. Abr. Statute I. 6. 8, 9. vi. 387. 389, 390.] [Back]
Note 8 Co. Lit. 44 a. 31 H. 8. c. 13. 3 Bulstr. 152. Moor 60. 1 Leon. 333. [Com. Dig. Copyhold N. – Vin. Abr. Estate, R. a. 9. pl. 7. Bac. Abr. Leases, &c. E. 2. iv. 73.] [Back]
Note 9 Cro. Car. 41. 43, 44. Moor 128. Godb. 369. 0. Benl. 163. 3 Bulst. 152. Hard. 433. Cawly 106. [2 Cowp. 707. 6 East, 480. 1 Bro. C, C. 24. Watk. Gilb. Ten. 164. Com. Dig. Copyhold N. 0. Bac. Abr. Copyhold B. i. 709, 710.] [Back]
Note 10 Moor 128. Cro. Car. 42, 43. O. Benl. 163. 1 Rol. Rep. 48. [2 Cowp. 707. 1 Bro. C. C. 24. Watk. Gilb. Ten. 164.] [Back]
Note 11 As to what statutes extend to copyholds, see post p. 23. n. (P). (ED.) [Back]
Note 12 See 1 Wils. 27. 2 Wils. 400. Moor 188, 189. Say. 67. Cro. Eliz. 391. 307. 149. 1 Leon. 175. Poph. 34. 128. 2 Saund. 422. Hard. 433. 1 Rol. 838. Lit. sect. 76. 9 Co. 105 a. Co. Lit. 60 a. b. 4 Co. 22 a. [2 Bl. Com. 113. 3 Wood. 506. 1 Prest. Cony. 153. Com. Dig. Copyhold C. 8. N. Bac. Abr. Copyhold C. 1.] [Back]
Note 13 Cr. Car. 43, 44. [Co. Lit. 23 a. 143 a.] [Back]
Note 14 Before the Statutes Quia Emptores Terrarum, if tenant in fee simple made a feoffment in fee without any reservation of services, the feoffee held by the same services by which the feoffor held over, because the services being an incumbrance upon the land, which the tenant could not discharge without his lord’s consent, must follow the land into whose hands soever it comes; but that statute only extended to cases where the fee simple was transferred; and when, after the Statute de Donis, the feudal right of reverter was turned into a reversion, the law obliged the donee to do the same services to the donor which he was bound to do to his superior lord, because this was an estate of inheritance which possibly might have continued for ever, 1 Inst. 43. a. 143. a. i. 445. 527. This construction was not extended to leases for lives or years; for if the lessor made no reservation, the law implied none except fealty, which is due from every tenant having any determinate interest. Ib. (ED.) [Back]
Note 15 Lit. sect. 77. 2 Co. 17 a. 6 Co. 37 b. Co. Lit. 60 b. Cro. Car. 45. 4 Co. 21 a. Hetl. 6. 9 Co. 105 a. [Vin. Abr. Copyhold (A) pl. 4.] [Back]
Note 16 But as Lord Coke elsewhere observes, this was not Littleton’s own opinion, but his opinion was rather to the contrary, 1 Inst. 60. b. i. 65-67.; and it has been long settled, that, though a copyholder has an estate at the will of the lord, yet it is according to the custom of the manor; and if he be ousted contrary to the custom, he shall not only sue by petition to the lord, but may have trespass against him. Ibid. (ED.) [Back]
Note 17 Moor 189. Sav. 67. Cro. El. 149. 307. 391. 1 Leon. 175. Poph. 34. 128. 2 Saund. 422. Hard. 433 a. 9 Co. 105 a. 1 Rol. 838. Co. Lit. 60 a. b. 1 Rol. Rep. 48. 4 Co. 22 a. Moor. 188. [Watk. Gilb. Ten. 166, 7.] [Back]
Note 18 Ace.Rowden v. Malster, Cro. Car. 45. 5 Cru. Dig. 214.; as to the mode of barring entails of copyholds, infra n. (N). (ED.) [Back]
Note 19 Cro. Car. 43. 45. Godb. 368. 0. Benl. 165. Poph. 35. Cro. Eliz. 391. Cart. 238. Cro. Car. 45. [1 Wils. 26. Watk. Gilb. Ten. 166, 7.] [Back]
Note 20 This point has been the subject of much controversy, see Gilb. Ten. 165. 418 1 Watk. Coph. 155. Vin. Abr. Coph. (F. e); 1 Cru. Dig. 2 edit. 364. Bac. Abr. Copyhold C.; but it has been long settled agreeably to the decision in this case and inRowden v. Malster, Cro. Cha. 42. that the Statute De Donis does not extend to copyholds without a special custom, but that where there has been a custom of entailing copyholds, the statute co-operating with the custom, will give to such an estate all the qualities of an estate tail, Roe d. Crow v. Baldwere, 5 T. R. 111. As to what will amount to a proof that a copyhold has been entailed, see infra, 1 Inst. 60. b. i. 671. Where copyholds are intailable, and the custom has not prescribed any particular mode of barring, the intail may be barred, 1st. By forfeiture and regrant, as where the custom is either for the tenant in tail to commit a forfeiture of the copyhold, and the lord to seize, and after making three proclamations, to regrant it to the old tenant, or to another person; or the tenant in tail, to make a surrender to a purchaser in fee, and then for the purchaser to commit a forfeiture, and the lord to seize, &c. seePilkington v. Stanhope, Sid. 314. Sty. 452.Grantham v. Coply, 2 Saund. 422. and n. (1) ib.; 2nd, By a recovery in the manor court, which, it seems, from several authorities, may be suffered without a particular custom to warrant it, seeBrowne’s case, post, 10 Co. 23. a.Dell v. Higden, Moor. 358.Oldcat v. Level, id. 753. Gilb. Ten. 176. Cart. Rep. 23.Carr v. Singer, 2 Yes. 604.; or 3rd, By a surrender, though only to the use of a will, 2 Vez. 596. 2 Stra. 1197. 2 Burr. 979. 3P. Wms. 10. Watk. Copyhold. 162. A custom to bar the entail by surrender may be concurrent with a custom to bar by recovery, Everall v. Smalley, 1 Wils. 26. 2 Stra. 1197. Roe d. Bennettv. Jeffery, 2 Maul. and S. 92. As to equitable entails of copyholds, see n. (N) infra. (ED.) [Back]
Note 21 1 Rol. 838. Co. Lit. 60 b. [1 Wils. 27. 3 Wood, 506. 2 B1. Com. 143. Watk. Gilb. Ten. 166. 170. 1 Fonbl. Tr. Eq. 300 n. 1 Cru. Dig. 304. 1 Prest. Cony. 111. Con. Dig. Copyhold C. 8. Bac. Abr. Copyhold C. i. 170.] [Back]
Note 22 Lit. sect. 77, Co. Lit. 60 b. Rep. Q. A. 98. 160. Skin. 269, 297. [Back]
Note 23 See infra n. 29 ib. [Back]
Note 24 But see the remarks of Gilb. Ten. 166. upon this opinion of my Lord Ch. Baron. See also the books cited in the last note but one. (ED.) [Back]
Note 25 Co. Lit. 19 a. Cro. Car. 45. Poph. 34. 1 Co. 103 b. 6 Co. 40 a. (f) Co. Lit. 45. 114 b. 115 a. [Watk. Gilb. Ten. 170, 1.] [Back]
Note 26 But this position that all estates of inheritance were, before the Statute De Donis, either in fee absolute or conditional, has been questioned by several distinguished writers, see Wright Ten. 189. Watk. Gilb. Ten. 424. 1 Inst. 19 a. i. 508. (A 1). (ED.) [Back]
Note 27 See 1 Inst. 113 a. 115 b. i. 35, 36. and n. (S). ib. 2 Bl. Com. 31. (ED.) [Back]
Note 28 Co. Lit. 60 b. 280 b. 19 a. Lit. sect. 481. F. N. B. 217. D. Poph. 34. [Vin. Abr. Formedon B. pl. 1.] [Back]
Note 29 That where the heir could not have an assise ofmort d’ancestor, he might, according to his special case, have a formedon in descender at common law, but then he was to recover a fee-simple. Per Bendlow, Plowd. 239 b. 1 Inst. 60 b. i. 671. For the nature and different kinds offormedon, see 1 Inst. 326. b. iii. 214. and n. 32 ib. 2 Inst. 336. Plowd. 240. Booth, 139, 140. 3 Bl. Con. 192. Bac. Abr. Formedon, (A). Vin. Abr. Formedon. Com. Dig. Pleader, 3 E. 1,,&c. (ED.) [Back]
Note 30 O. Benl. 165. 1 Rol. Rep. 4. Co. Lit. 60 b. [Back]
Note 31 Godb. 20. Poph. 35. 1 Leon. 56. Cro. Eliz. 323. 373. 4 Leon. 64. 1 Rol. 511. 4 Co. 23 a. Co. Lit. 52 b. [1 Prest. Est. 2nd edit. 487.] [Back]
Note 32 Where the custom of a manor does not admit of an entail of a copyhold, a K. B. v.-21 surrender to the use of a person and the heirs of his body, gives him a conditional fee; and in that case a surrender after issue had, will bar the estate, Hanton v. Barnes, Co. Suppl. s. 12.Pullen v. Middleton, 9 Mod. 483. But all copyholds may be entailed in effect, either by custom at law, or in equity without it; thus, if a surrender be made to a person and his heirs, and a trust be declared of such estate to another and the heirs of his body, a Court of Equity will see it observed; for the custom only binds the tenancy, and has nothing to do with the trust, 2 Yes. 304. 633. 1 Stra. 454. 2 Bl. Com. 357. And such equitable entail may be barred in the same mode as if it were a legal entail, see 9 Mod. 484. 5 Cru. Dig. 611. And if the tenant in tail of the trust of a copyhold accepts a surrender of the legal estate from the trustees, it will bar the entail and remainder over, Grayme v. Grayme, 1 Watk. Copyh. 2nd edit. 277. But an equitable entail of a copyhold is not barred by a devise without a surrender, Rose v. Lowe, 1 H. Bl. 461. (ED.) [Back]
Note 33 1 Rol. 888. Cro. Car. 44. Hard. 433. 0. Benl. 163. Say. 67. [2 Cowp. 709. 4 Bart. Prec. 209. n. Vin. Abr. Copyhold 0. 2. pl. 4. Com. Dig. Copyhold N. Bac. Abr. Copyhold C. 2. i. 712. Execution C. 2. ii. 713.] [Back]
Note 34 S. P. Co. Copyh. 149. Gilb. Ten. 185. 3 Read. Stat. Law. 123. 2 Inst. 396. Yin. Abr. Copyholds (0. d.) pl. 4. Bac. Abr. Copyhold (C. 2). Com. Dig. Copyhold N.; and see the books cited ace. in n. (d). sup. (ED.) [Back]
Note 35 Cro. Car. 43. 2 Inst. 343. Sav. 67. 4 Co. 23 a. [Vin. Abr. Copyhold 0. 2. pl. 2, 3. 46. Corn. Dig. Copyhold N. 0.] [Back]
Note 36 In conformity to the principles laid down in this case, it is held, that the statute 4 H. 7. of Fines, as to their being a bar after five years’ non-claim, the Statutes, of Limitations, the Statutes of Bankruptcy, the Statutes of Mortmain, the statutes 7 Ann. relative to conveyances by infant trustees, the 4th section of the Statute of Frauds, 29 Cha. 2. c. 3. concerning the sale of lands, and the 7th section which requires declarations of trusts to be in writing, and many other statutes, extend to copyholds; but they are not within the statute 11 H. 7. respecting alienations by a wife of the lands of her husband, the Statute of Uses and Jointures, the Statute of “Wills, the statute 32 H. 8. as to discontinuances by the husband of the wife’s lands, the statute respecting partitions (1 Inst. 187 a. (2). i. 753. (83). Burrell v. Dodd, 3 Bos. & P. 378.), the statute 13 Eliz. for making accountants’ lands liable to the debts of the Crown, the statutes 29 Cha. 2. c. 3. s. 12. and 14 Geo. 2. c. 20. s. 9. relating to occupancy (see 1 Inst. i. 626. (16).Zouch d. Forse v. Forse, 7 East. 186), nor those sections of the Statute of Frauds which relate to devises of lands; and they are excepted out of the Register Acts, 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. 2. c. 6. See further as to what statutes extend to copyholds, Vin. Abr. Copyhold, O. d. Bac. Abr. Copyhold C. Com. Dig. Copyhold N. 0. (ED.) [Back]
Note 37 4 Co. 65 b. Hob. 55. 262. 1 Leon. 333. 2 Rol. 700. 9 Co. 74 a. Cro. Jac. 413. Post 42 b. [Watk. Gilb. Ten. 184, 5.] [Back]
Note 38 S. P. Com. Dig. Pleader, S. 31. As to what shall be a sufficient finding by verdict, and when it may be aided by intendment or special conclusion, see Com. Dig. TPleader, S. 26. to S. 43. and the books cited ante, i. p. 4 a. n. (R). (ED.) [Back]