if he pleases; but if he does not choose to take advantage of it, the tenant's estate remains as before. The lord may waive the forfeiture; or if he die without entering, his heir shall not enter (i). The lord cannot enter for a forfeiture after the expiration of twenty years from the time when his right of entry accrued (k). If a copyholder make a lease for years, which is not good according to the custom of the manor, the lease is good between the lessor and lessee and all others, except the lord of the manor(); and consequently the lessee may maintain an ejectment upon the lease (m). If a copyholder, having granted a lease by licence, surrenders the reversion, the surrenderee, as assignee of the reversion within the stat. 32 Hen. 8, c. 34, may maintain an action of covenant upon a lease made by his surrenderor, and the defendant in such action cannot protect himself by alleging the invalidity of the lease (n). Where the lessor covenanted to grant a lease of copyhold premises so soon as a good licence for that purpose should have been procured from the lord, and also for quiet enjoyment during the term, on payment of the rent and performance of the covenants, it was held that the lessee who had occupied the premises during the term was liable on his express covenant to keep the premises in repair, although no lease had ever been granted nor any licence obtained from the lord for that purpose (o). (i) 1 Salk. 186, 187; Cro. Jac. 301; 3 T. R. 171, 173; Gilb. Ten. by Watk. 276, n. (y), 5th ed. (k) Whitton v. Peacock, 3 My. & K. 325. (1) Doe d. Tresidder v. Tresidder, 1 Gale & D. 70; 1 Q. B. 417. (m) Doe d. Robinson v. Bousfield, 1 Car. & K. 558; Downingham's case, Ow. 17, cited by Denman, C. J., 12 Q. B. 418. (n) Whitton v. Peacock, 3 My. & K. 325; Glover v. Cope, 4 Mod. 80; 3 Lev. 326. (0) Pistor v. Cator, 9 Mee. & W. 315. Where the plaintiff contracted to take a lease of the defendant for thirty-one years of copyhold property held of a manor, by the custom of which the lord could not license a lease for more than twenty-one years, the Court of Chancery, on a bill filed by the plaintiff, who had notice of the tenure, for the repayment of the money expended on the premises, decreed that the plaintiff should accept a legal lease for twenty-one years, with a covenant for a further term of ten years, and compensation for the difference in value (p). If a copyholder makes a lease of his copyhold land contrary to the custom, and the lord of the manor dies before his entry or seizure for the forfeiture, the reversioner or remainderman cannot take advantage of the forfeiture done or committed before his time (q). 3. Of Forfeiture for Waste. A copyholder may incur a forfeiture by committing waste, either voluntary or permissive. The species of waste most frequent, and respecting which the most disputes and questions have arisen, is that as to timber and mines, which will form the subjects of separate consideration (r). A copyholder, though regarded as tenant at will, is obliged to keep the tenements in repair; for which reason he is entitled to botes or estovers by the general law, without alleging a special custom (s). He is therefore, contrary to other tenants at will, or at least to those who hold strictly at will a common law estate (t), answerable for permissive as (p) Hanbury v. Litchfield, 2 My. & K. 629. (q) Montague's case, Cro. Jac. 301; Eastcourt v. Weeks, 1 Salk. 186. (r) See post, Sects. VII., VIII. (s) Ashmead v. Ranger, 1 Ld. Raym. 551; Gilb. Ten. 307, 5th ed. (t) Litt. s. 71; Co. Litt. 57 a. well as voluntary waste (u). A copyholder commits voluntary waste in pulling down an ancient house, or building a new one and pulling it down again, or by ploughing meadow so that thereby the land is made. worse, or by lopping the trees and selling the lopping, or cutting down any fruit trees for fuel when there is other wood sufficient. Permissive waste is committed by suffering a house to decay for want of necessary reparation, or by suffering land to be overflowed for want of mending the banks of a river, whereby either meadow or arable land becomes unproductive or unprofitable (v). The erection of a mill, without the lord's assent, upon a copyhold has been said to be a forfeiture (x), unless such mill be set upon posts and moveable, in which case it is not a forfeiture (y). The conversion of land from pasture into arable land, or turning ploughed land to hop ground or a piscary, is a forfeiture (z). Although the lord can seize as for a forfeiture, if the tenant should let the houses fall or go to decay, yet a copyholder, although a mortgagee only, may, without licence, pull down houses which are in a ruinous state and build better houses (a). Although the pulling down a barn, taken absolutely, is such waste as subjects the copyhold tenant to a forfeiture, yet the lord cannot recover the place on the ground of a forfeiture if the jury find that the premises are not damaged (b). It does not appear that any (u) Co. Litt. 63 a; Harg. n. (1); Co. Cop. s. 57, Tr. 134; 1 Watk. Cop. 398, 4th ed. Ward's case, 4 Leon. 241; Gray v. Ulysses, Latch. 123; Steward v. Lombe, 1 Brod. & B. 506. (z) Litt. R. 267, 268; Gilb. Ten. 306, 5th ed. (a) Hardy v. Reeves, 4 Ves. 480. (b) Doe d. Grubb v. Earl of Burlington, 5 Ad. & E. 507; 2 Nev. & M. 534. thing can be waste which is not injurious to the inheritance, either, first, by diminishing the value of the estate; or, secondly, by increasing the burthen upon it; or, thirdly, by impairing the evidence of title (c). A copyholder licensing his lessee to commit waste on condition of his doing a subsequent act to diminish the damage thereby occasioned, cannot eject him for a forfeiture incurred by his committing the waste without performing the subsequent act (d). An action of waste will not lie between the lord of a manor and a copyholder (e). boundaries. The inclosing of copyhold lands one from another, Destroying or inclosing where no inclosure was before, and also defacing the doal marks or land marks, are forfeitures, because by these means the evidence of the lands being copyhold may be destroyed (ƒ). 4. For Non-performance of Services. formance of Copyholds are forfeited by the neglect or refusal of Non-perthe tenant to perform the services required by the services. custom. If a copy holder, being duly summoned, refuses to appear in court and do his suit and service, it is a forfeiture, because without an attendance of tenants there can be no court. To make this a forfeiture the tenant must be personally summoned, for it seems that general notice of the holding of the court in the parish is not sufficient (g). But if he be prevented coming. by sickness, or being in debt and in fear of being (c) Barret v. Barret, Hetl. 35; Doe d. Grubb v. Earl of Burlington, 5 B. & Ad. 517; 2 Nev. & M. 542. (d) Doe d. Wood v. Morris, 2 Taunt. 52. (e) Douch v. Bampton, 4 Ves. 706; Richards v. Noble, 3 Mer. 673. (f) Litt. R. 268; Com. Dig. Cop. (M 4) Gilb. Ten. 314, 5th ed.; Peachy v. Duke of Somerset, 1 Str. 447; Prec. Ch. 568. (g) 1 Roll. Ab. 506; Gilb. Ten. 297, 298, 5th ed.; Hammond v. Wemybank, 3 Bulst. 368; Cro. Eliz. 505; see ante, p. 138. Refusal to pay fines. Refusal to pay rent. arrested, or is a bankrupt and keeps his house, then his default is not a forfeiture (h); or if he was attending some great office (i). A copyholder may commit a forfeiture by refusing to be sworn upon the homage (j); or after being sworn, by refusing to present according to his oath (k). 5. For Refusal to pay Fines, Rents, &c. The refusal of a copyholder to pay a fine certain due on his admittance is a cause of forfeiture; but the refusal to pay an uncertain fine, upon the ground that a greater is demanded than is warranted by the custom, will not amount to a forfeiture (1). When the fine is certain the tenant ought to be ready to pay it on demand immediately upon his admittance, and his refusal to do so is a cause of forfeiture (m); but where the fine is uncertain a day and place of payment should be appointed him by the lord or steward; if no such appointment be made the law allows a reasonable time for payment, for the tenant is not obliged to pay it on demand, for he could not come prepared to pay until he knew what fine would be assessed (n). A copyholder may incur a forfeiture by disclaiming tenure of his lord (o), or by a wilful and absolute refusal to pay rent to which by the custon of the manor he is liable (p). A lord insisting on a forfeiture of (h) Co. Cop. s. 57, Tr. 131. (i) 1 Leon. 104; Gilb. Ten. 298, 5th ed. (j) Kitch. 90 b, 124. (k) 3 Leon. 109; Com. Dig. Cop. (M 4). (m) Co. Cop. s. 57, Tr. 132; 4 Rep. 132. (n) Co. Cop. s. 57, Tr. 133; 1 Watk. Cop. 379, 4th ed.; Willowe's case, 13 Rep. 1. (o) Co. Cop. s. 57, Tr. 132. (p) Co. Cop. s. 57, Tr. 133; Gilb. Ten. 225; Crisp v. Freer, Cro. Eliz. 505. |