employed in building and reparation of the houses; and therefore by the doing of waste all the copy hold is impaired. sentment is Co. Cop. s. 57, 48. Some acts amount to a forfeiture, the moment Where prethey are committed: others are not forfeitures till they necessary. are presented by the homage, in the lord's court. Of- 58. fences which are apparent and notorious, of which the Gilb. Ten. 246, lord, by common presumption, cannot choose but have notice, are forfeitures immediately. But presentment by the homage is necessary in those cases where the lord cannot be presumed to have notice of himself; as where the tenant is convicted of treason or felony, or makes an alienation contrary to the custom. 49. It was, however, resolved in the case of East v. Ante. Harding, where a copyholder incurred a forfeiture by making a lease, that presentment was not absolutely necessary, but only for the lord's better instruction of his title, that the lord may take advantage of a forfeiture before presentment. But Lord Chief Baron Gil- Ten. 246. bert says, it is safer to get all forfeitures presented; and if there be a particular custom, it must be pursued. with a for 50. Forfeitures may, in many cases, be dispensed What dispenses with by the lord. Thus, if a copyholder has broken feiture. the customs of the manor, by committing waste, re- Co. Cop. s. 61. fusing to perform his services, or to pay his rent, the forfeitures arising from these acts may be dispensed with by a subsequent acceptance of rent, or other act by which the lord acknowledges the copyholder to be his tenant. But where the lord is ignorant of the act by which a copyhold is forfeited, nothing done by him will 6 Vin. Ab. 149. operate as a dispensation of the forfeiture. And it seems that if the lord accepts a surrender from a tenant who has committed a forfeiture, this is no dispensation or bar to the entry of the lord; if the cause of forfeiture be such as the lord might well be supposed ignorant of, otherwise not, as making a private lease. But for failure of suit of Court, nonpayment of rent, and the like, it is otherwise, because he cannot be presumed ignorant of these. Pl. 14. Milfaxv.Baker, 1 Lev. 26. Pascal v. Wood, 3 Keb. 641. 51. If a copyholder commits a forfeiture, and the lord pro tempore, having a legal title, grants an admittance, it will operate as a dispensation of the forfeiture, not only as to himself, but as to the person in reversion; for such a new grant and admittance amounts to an entry for the forfeiture, and a new grant. But a lord by wrong cannot by such an admittance purge the forfeiture, so as to bind the rightful lord. 52. A copyholder cut timber, sold it, and died; the succeeding lord brought an ejectment against the heir, who pleaded, that in trespass brought by him, the lord (now plaintiff) justified for taking a heriot. The Gilb. Ten. 247. Court said, that justification for heriot service on seisin of the ancestor was an acceptance of the heir as tenant, and purged the forfeiture. Co. Cop. s. 61. s. 11. 53. It was said in this last case, that where there is an actual entry by the lord in the lifetime of the copy, holder, for a forfeiture by him, no acceptance after will purge the forfeiture. And though it never was presented by the homage, that was not material, it being a thing notorious. 54. Lord Coke says, some make this difference, that those forfeitures only which destroy not the copyhold are confirmable by subsequent acknowledgment, and not those forfeitures which tend to the destruction of a copyhold. As if the copyholder makes a feoffment, by this the copyhold is destroyed; therefore no subsequent acknowledgment of the lord will confirm it. And in the Supplement to Lord Coke's Copyhold, it is said, that if a copyholder levies a fine, makes a feoffment, or suffers a common recovery, which destroy the estate, no acceptance of rent, or act done by the lord, will be available to make the estate good. But where the custom of the manor only is broken, as if the copyholder makes a long lease, or refuses to pay his rent, or to be sworn of the homage, or commits waste, there his estate may be afterwards confirmed. 3 Term R. 162. 55. This doctrine has been denied in a modern case, Doe v. Helier, in which it was held, that a forfeiture by a copyholder's levying a fine might be waived by the lord. In that case the lord suffered many years to elapse without taking advantage of the forfeiture, and by several solemn acts in his court recognized the person who levied the fine as his tenant. It was first presented that he died seised; then the lord required the heir to come in and be admitted. These, said Lord Kenyon, were as solemn acts of recognition, as the admittance of the copyholder in Milfax v. Baker; and he did not date, s. 51. think he was straining that case in saying, that any act equally solemn on the part of the lord was sufficient to preclude him from taking advantage of the forfeiture. 56. The lord of the manor is, in general, the only person who can take advantage of the forfeiture of a copyhold. And even a lessee for years shall take advantage of a forfeiture, for he is dominus pro tempore. 57. If there be a lord of a manor, in which there are copyholders, and the lord grants to a stranger the freehold of a copyhold, in fee; though by this the tenement is divided from the manor, and not demisable by copy again; yet the grantee of the freehold shall take advantage of a forfeiture, committed after, by the copyholder, for he ought to pay his rent to the grantee. So in this case, if the grantee of the freehold makes a lease for years of the freehold, this lessee for years shall take advantage of a forfeiture committed after by the copyholder, because he was dominus pro tempore. 58. In all cases of forfeiture for treason or felony by a copyholder, the lord becomes entitled to the copyhold, and not the king, unless there be a special act of parliament for that purpose. And where by the statute 12 Cha. 2. all the lands, tenements, and hereditaments of the regicides were forfeited to the Crown, Lord Hale held that copyholds were not included; for if a copyhold was forfeited by this act to the Crown, it would be Who may take forfeiture. advantage of a Co. Cop. s. 60. 6 Vin. Ab. 141. Idem. East v. Harding. 9 Rep. 107 a. Duke of York v. Marsham, Hard. 432. Where equity relieves. Thomas v. Porter, thereby destroyed, and pass by letters patent, not by surrender. 59. There have been several cases in which the Court of Chancery has interposed, to moderate the rigour of copyhold customs, and to relieve against unreasonable forfeitures. 60. A copyholder for life had committed a forfeiture, 1 Cha. Ca. 95. by cutting down timber trees, which was found so by a trial, and verdict at law; the lord entered and admitted the defendant, who was the remainder-man. The copyholder exhibited his bill to be relieved against the forfeiture, offering, if it should appear to be waste, to make satisfaction. An issue was directed to try whether it was the primary intention of the copyholder, in cutting down the timber, to commit waste. It being found for the plaintiff, it was decreed he should be relieved; and that the defendant, the remainder-man, should deliver up the possession to the plaintiff, and account for the mesne profits. Nash v. 61. A person having two copyholds held of the same manor, cut down timber in the one, and employed it in repairing the other, pretending that he was authorized by the custom of the manor; the timber being assigned and set out by two of the customary tenants. An ejectment was brought by the lord, upon the supposition that this was voluntary waste, and consequently a forfeiture. Upon the first trial a verdict was given against the lord: but upon a new trial the jury found against the custom. A bill was then brought in Chancery to be relieved against the forfeiture. It was admitted that by the custom, when timber was wanting on one copyhold tenement, the lord, by his woodman or bailiff, might assign timber for repairs on any of the other copyhold estates: but here a custom was set up for two tenants to assign to a third, which might be prejudicial to the lord; as more timber might by that means be cut than was necessary, and thriving timber, when there might be found enough, of that which was decaying, fit for repairs. It was however admitted that the timber was of small value, and all of it employed in the repairs of the copyhold. The Lord Keeper relieved the plaintiff against the forfeiture but decreed him to pay the costs of both trials at law and the costs of this suit. Raven, 62. In a subsequent case the Court of Chancery Cudmore v. relieved a Quaker against a forfeiture which he had 2 Vern. 664. incurred by not doing suit and service at the lord's court. has been re 63. A court of equity will not however interpose in Where relief cases of this kind, unless there are equitable circum- fused. stances which entitle the party who committed the forfeiture to relief. J Ab. Eq. 121. 64. The plaintiff brought his bill to be relieved Coxv. Higford, against the forfeiture of his copyhold estate. It appeared that he had been guilty of the greatest disobedience possible to his lord; that after six several presentments to repair, and an entry by the lord for the forfeiture, he brought an ejectment; and when upon the trial, a rule was entered into by consent, that upon payment of 41. to the lord for his costs, which was not a fourth part of the costs to which he had put the lord, and putting the estate into repair, he should be admitted to it again; yet he never complied with the rule, nor made any offer of costs to the lord, but instead of that brought another ejectment, and was nonsuited; and after nine or ten years more, brought his bill. Upon these circumstances the Lord Keeper declared he ought to have no relief, or if he were to be relieved, yet it must be upon payment to the lord of all his costs, and putting the estate into good repair; which would amount to more than his interest was worth, having only an estate for life; and dismissed the bill, but without costs. The Lord Keeper likewise declared, that though this were a voluntary waste and forfeiture, against which it was objected that the court never gave relief, yet he thought the rules of equity not so strict, |