Surrender the only mode of

holds.

[

*368]

"ter fieri debet" (e): and, to crown the whole, the oath of fealty (8) is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen.

This method of conveyance is so essential to the nature of conveying copy- a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law, but we must surrender to each other's use, and the lord will admit us accordingly. If I would devise a copyhold, I must surrender* it to the use of my last will and testament (9); and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission (ƒ). A fine of recovery had of copyhold lands in the king's court may indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee (g), which is defined in the old book of tenures (h) to be “land "pleadable at the common law :" but, upon an action on the case, in the nature of a writ of deceit, brought by the lord in

(e) Feud. 1. 2, t. 2.
(f) Co. Copyh. s. 36.

(g) Old Nat. Brev. t. briefe de

(8) See ante, p. 45, with the note. (9) The statute of 55 Geo. III. c. 192, has made dispositions of copyhold estates by will effectual, although no previous surrender to the uses thereof may have been made. The act provides that this indulgence shall not operate in fraud of the lord of the manor, or of the crown; but, that the devisee shall be admitted only on payment of all such stamp duties, fees, and sums of money as would have been payable upon a surrender to the

recto clauso. F. N. B. 13.
(h) t. tenir en franke fee.

use of the will. The act does not supply the defect of a surrender by a feme coverte, where, by the custom of the manor, such surrender is necessary to substantiate her will; for, in such cases, a separate examination of the feme coverte is essential to a free disposal of the property by her; and the statute in question was intended to supply mere matter of form only. (Doe v. Bartle, 5 Barn. & Ald. 507. S. C. 1 Dowl. & Ryl. 91.)

the king's court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold (i) (10).

In order the more clearly to apprehend the nature of this Practice thereon. peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.

der.

1. A surrender, by an admittance, subsequent whereto 1. The surrenthe conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser, and punishable in an action of trespass (11): and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio: because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing (12): and no subsequent admittance can make an act good, which was ab initio void. Yet, though upon the original surrender the nominee hath but a possibility, it is however such a possibility as may, whenever he pleases, be reduced to a certainty: for he cannot either by force or fraud (i) See Vol. III. pag. 166*.

(10) Now, a person who has a legal estate in copyhold lands may dispose thereof, and bar the entail, by surrender; if his estate be only an equitable one, he may effect the same purposes by deed: see the statute of 3 & 4 Gul. IV. c. 74, ss. 50 to 54, cited ante, in the note to p. 365.

(11) Mr. Christian observes, "it

has been determined that the surren-
deree may recover in an ejectment
against the surrenderor, upon a de-
mise laid after the surrender, where
there was an admittance of the no-
minee before trial. (1 T. R. 600.)”

(12) See ante, p. 290, with the

note.

be deprived or deluded of the effect and fruits of the surrender; but, if the lord refuse to admit him, he is compelable to do it (13) by a bill in Chancery, or a mandamus (k): [* 369] *and the surrenderor can in no wise defeat his grant; his hands being for ever bound from disposing of the land in any other way, and his mouth for ever stopped from revoking or countermanding his own deliberate act (1) (14).

2. The presentment.

2. As to the presentment; that, by the general custom of manors, is to be made at the next court baron immediately after the surrender; but by special custom in some places it will be good, though made at the second or other subsequent And it is to be brought into court by the same persons that took the surrender, and then to be presented by the

homage; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon, are wholly void (m): the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, this is sufficient (n). So, too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those into whose hands the surrender is made, die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court baron, the party grieved shall find remedy. But if the lord will not do him right and justice, he may sue both the lord, and them that took the surrender in Chancery, and shall there find relief (o) (15).

tance, of which

*3. Admittance is the last stage, or perfection, of copy- [370] hold assurances. And this is of three sorts: first, an ad- 3. The admitmittance upon a voluntary grant from the lord; secondly, there are three an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from the ancestor.

sorts

tary grant from

In admittances, even upon a voluntary grant from the upon a volunlord, when copyhold lands have escheated or reverted to the lord; him, the lord is considered as an instrument. For though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute. fee-simple, a freehold, or a chattel interest therein; and quite to change their nature from copyhold to socage tenure, so that he may well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the ancient custom pre(m) Co. Copyh. s. 40. (n) Co. Litt. 62. (0) Co. Copyh. s. 40.

(15) See ante, p. 365, note.

upon surrender by the former tenant;

and upon a descent from the ancestor.

cisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect the law accounts him custom's instrument. For if a copyhold for life falls into the lord's hands by the tenant's death, though the lord may destroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the ancient rent, nor make any the minutest variation in other respects (p): nor is the tenant's estate, so granted, subject to any charges or incumbrances by the lord (q) (16.)

In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument; and the tenant admitted shall likewise be subject to no charges or incumbrances of the lord; for his claim to the estate is solely under him that made the surrender (r).

And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord [ *371 ] *is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case nor the other, is any respect had to the quantity or quality of the lord's estate in the manor. For, whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial acts, which every lord in possession is bound to perform (s).

Difference between admit

Admittances, however, upon surrender, differ from ad

(p) Co. Copyh. s. 41.
(9) 8 Rep. 63.

(16) Mr. Christian observes, that "where a copyhold has been granted for lives, upon the death of one or more of the lives, the heir of the grantee cannot claim by custom a renewal of the grant for fresh lives upon the payment of a reasonable fine, i. e. a fine of two years' value, as in the case of a copyhold of inheritance. No custom to renew a copyhold for

(r) 4 Rep. 27; Co. Litt. 59.
(8) 4 Rep. 27; 1 Rep. 140.

lives is legal, unless the fine has been certain and unvaried, for copyholds grantable for lives only, if the fine is not certain, are like leases of freehold lands for lives, and renewable only upon the best terms the party can make. Warton v. King, Anstr. 659." [See ante, p. 98, note (44) to chapter 6.-ED.]