tent to keep court upon a demand or request to be made by the lord, if the lord demandeth or requesteth him to keep a court, and he faileth ; this is a forfeiture, though the lord be thereby nothing damnified. And thus much of the fteward,

THE

SECT. XLVI.

HE underfteward is the steward's deputy, and fometimes appointed by writing, fometimes by parol: and the extent of his authority is as great as the fteward's own autho rity, and his office confifteth in performance of the felf-fame duties that the high steward himfelf is to perform: only in this point the power of the fteward goeth beyond the power of the understeward, that the fteward can make an admittance out of court, and it fhall stand good, if entry be made in the court-roll, that he that is admitted hath paid his fine and hath done fealty; but the understeward, though he may take a furrender out of the court, yet he cannot make any admittance out of court, without fpecial authority or particular cuftom.

Some have thought that an understeward may be made without special words in the steward's patent authorizing him to make a deputy; but furely, fince it is an office of knowledge, truft and difcretion, it cannot, unless it be in cafes of neceffity. As if an office of stewardship defcend unto an infant, he may make a deputy, because the law prefumeth he is himself uncapable to execute it. So if it be granted to an earl, in refpect of the exility of the office in a base court, and of the dignity of

the perfon, who is * præpofitus comitatús, and had in ancient time the charge and cuftody of the whole fhire, whofe attendance the law intendeth to be most neceffary upon the king and the commonwealth: therefore it is implied in law, for the conveniency, that he may make a deputy, for whom he ought to answer.

This is one obfervation touching understewards: In admittances made by underftewards, as well as in admittances made by the stewards themfelves, it is good order to exprefs in the copy and in the court-roll the name of the underfteward or the steward; because in pleading

any admittance a man must say that he was admitted by fuch a one understeward or steward, naming his name. And this fhall fuffice touching the manner and means of granting copyholds. Suffer me now in the fourth place to point at the feveral eftates of copyholders, together with their feveral qualities incident to their several estates.

A

SE C T. XLVII.

LL eftates whatsoever may be reduced to one of these three heads:

I. Inheritance,

2. Frank-tenant,
3. Chattels.

All inheritances are of two forts; either fee

fimples, or fee-tails.

Of fee-fimples fome are determinable, some are undeterminable.

Determinable, as where land is given to a man and his heirs for fo long time as Paul's steeple shall stand.

Undeterminable, as where land is given to a man and his heirs without farther limitation. Of fee-tails fome are general, fome are spe

cial.

General, as where land is given to a man and the heirs of his body, or heirs males or females of his body.

Special, as where land is given to a man and the heirs, males or females, which he shall beof fuch a woman.

get

All frank-tenants are of two forts; either created by the act of the party, or by the act of the law.

Of frank-tenants created by the act of the party, fome are determinable by death, fome by collateral means.

By death, as estates granted, during the life of the grantor, of the grantee, or of a stranger. By collateral means, as eftates granted quamdiu fuerit innupta; to a widow, + quamdiu remanferit vidua; or to a minifter, diu facerdotium exercuerit.

*

quam

Of frank-tenants created by the act of the law, fome are frank-tenants fimpliciter, fome fecundum quid. Simpliciter, as the estates of a tenant in dower, of a tenant by the courtesy, of an occupant, a tenant in tail after poffibility of iffue extinct. Secundum quid, as the eftates of a tenant by ftatute merchant, statute

* As long as she shall be unmarried.

As long as he shall remain a widow.

As long as he ball exercife the office of a priest.

staple,

A

ftaple, and elegit; who though they are to have the land but for fo many years as will give a plenary fatisfaction to their debts, yet by the tatute of Westminster 2. they may maintain an affife, which no other tenant having but a chattel can have.

All chattels are either certain, or incertain. Of chattels certain, fome are in themselves certain, fome are made certain by relation to a certainty. Certain in themselves, as where lands are granted for 20, 30, or 40 years. Certain by relation to a certainty, as where land is granted for so many years as 7. S. hath acres of land.

Of incertain chattels, fome are incertain in their commencement, fome incertain in their determination.

In their commencement; as where a guardian hath an estate during the minority of a heir.

All these eftates, either by the general or by the particular customs of manors, are of copyholds as well as of freeholds in what manner Co. 4. fol. 23. foever an estate in fee-fimple is warranted by the custom, moft inferior eftates are by impli cation likewife warranted. All frank-tenants created by the act of the party, the estate of an occupant, and all chattels whatsoever, without any other particular custom, are hereby warranted.

But the law is otherwife of eftates in dower, Co.4.fol.zz.a. by the courtesy, by ftatute merchant, statute ftaple, or elegit: for as long as fuch a copyhold, by the cuftom of the manor grantable in fee-fimple, continueth in the copyholder's hands, it is not liable to any of these estates ;

but

but if once it cometh to the lord by escheat, forfeiture, or by other means, fo long as it remaineth reunited to the manor, it is in the nature of a freehold, and shall be subject to the charges and incumbrances as land at the Common law. And howfoever by implication these estates are not allowed in copyholds continuing in the copyhold poffeffion; yet by particular custom the wife may be tenant in dower, the husband tenant by the curtefy, a stranger tenant by statute merchant, ftatute ftaple, or elegit, of a copyhold, refting in the copyhold, as well as if it rested in the lord. Whether an eftate-tail, or an eftate-tail after poffibility of iffue extinct, which hath a neceffary depending upon an estate-tail, may by any particular cuftom be allowed, that I may difpute, but cannot determine; for it is vexata quæftio, much controverted, but nothing concluded. I will briefly touch the reasons alledged on both fides. They which are against the validity of intails by special custom do chiefly urge these two reasons that no eftates-tail were before the fat. de donis conditionalibus, but all inheritances were fees conditional; and the ftatute being made 13 E. 1. which is within the memory of man, it cannot be that any special customs have my commencement fince the ftatute; for then a custom might begin within time of memory, which is altogether repugnant to the rules of cuftom.

Two great inconveniencies would enfue if a copyholder might be intailed by special custom, because neither fine nor common recovery can bar it; fo that he hath such an estate, that he cannot of himself, without the affent of the

lord,