Sivut kuvina
[ocr errors]

Surrender the only mode of

[ocr errors]

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 pro-
perty 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 opera-
tion 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 [ * 368 ) a copyhold, I must surrender* it to the use of my last will

and testament (9); and in my will I must declare my inten-
tions, and name a devisee, who will then be entitled to ad-
mission (f). 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. l. 2, t. 2.
($) Co. Copyh. s. 36.
(9) Old Nat. Brev. t. briefe de

recto clauso. F. N. B. 13.

(h) t. tenir en franke fee.

(8) See ante, p. 45, with the note. use of the will. The act does not

(9) The statute of 55 Geo. III. c. supply the defect of a surrender by a
192, has made dispositions of copy- feme coverte, where, by the custom of
hold estates by. will effectual, although the manor, such surrender is neces-
no previous surrender to the uses sary to substantiate her will; for, in
thereof may have been made. The such cases, a separate examination of
act provides that this indulgence shall the feme coverte is essential to a free
not operate in fraud of the lord of the disposal of the property by her ; and
manor, or of the crown; but, that the statute in question was intended
the devisee shall be admitted only on to supply mere matter of form only.
payment of all such stamp duties, fees, (Doe v. Bartle, 5 Barn. & Ald. 507.
and sums of money as would have S. C. 1 Dowl. & Ryl. 91.)
been payable upon a surrender to the




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 adınittance.

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 has been determined that the surrenestate in copyhold lands may dispose deree may recover in an ejectment thereof, and bar the entail, by sur- against the surrenderor, upon a derender; if his estate be only an equit- mise laid after the surrender, where able one, he may effect the same pur- there was an admittance of the noposes by deed: see the statute of 3 minee before trial. (1 T. R. 600.)" & 4 Gul. IV. c. 74, ss. 50 to 54, (12) See ante, p. 290, with the cited ante, in the note to p. 365. note,

(11) Mr. Christian observes, “it

be deprived or deluded of the effect and fruits of the surrender; but, if the lord refuse to admit him, he is compel

able 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 coun

termanding his own deliberate act (1) (14). 2. The present

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



[ocr errors]

(k) 2 Roll. Rep. 107.

(1) Co. Copyh. s. 39.

(13) See ante, pp. 95 and 97, note. as affords a reasonable prospect of In the case of Williams v. Lord Lons- success. (Widdowson v. Earl of Hardale, (3 Ves. 756,) Lord Loughbo- rington, 1 Jac. & Walk. 544, 548, rough, C., said, “it is clearly true, 558.) In the case of Williams v. Lord that, if the lord refuses to admit the Lonsdale, (before cited,) it was thought tenant, this court will compel the lord that a mandamus to the lord of a manor, to admit him, the title standing upon to grant admission to a copyhold, did the rolls of the manor. The ground not lie ; but, it is now settled, as laid for this court (the court of Chancery) down in the text, that a mandamus to acting between lord and tenant is, the lord to admit a copyholder, either that the lord may de jure call upon claiming by descent or making a prithe tenant to be admitted, if he stands facie title, does lie. (The King out, for the lord has a right to the v. The Brewers' Company, 3 Barn. & fine and services. But, this court Cress. 173; S. C. 4 Dowl. & Ryl. will not let the parties stand in this 492; The King v. The Lord of the situation, that the lord who has re- Manor of Bonsall, 3 Barn. & Cress. medy against the tenant, to compel 175; S. C. 4 Dowl. & Ryl. 825; The him to pay the fine and perform the King v. Coggan, 6 East, 432.) services, or to forfeit his estate, shall (14) Of course it will be underprevent him from having evidence of stood that a surrender by a copy. his title upon the rolls which are in holder to the use of his own will is the lord's keeping. The lord does, always revocable. (See post, p. 375, by permitting a surrender to be en- note.) And, if a copyholder surtered upon the rolls, partake of a trust renders conditionally, and satisfies the in favour of the surrenderee.” But, condition before admittance of the if a bill is brought to be admitted to nominee, the copyholder may sura copyhold for the purpose of trying render again absolutely, without tak. the right to it, the court will not in- ing a new estate by the admittance terfere where the plaintiff would be and surrender of the nominee in the barred by the statute of limitations if conditional surrender, and his own the land were freehold, or where he subsequent admittance. (Hargrave's does not show such a prima facie title note to Co. Litt. 62 a.)

[ocr errors]

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).

*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.

In admittances, even upon a voluntary grant from the upon a volun, lord, 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

tance, of which



(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;

cisely in every point, and can neither in tenure nor estate introduce


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 Jord (9) (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 admit

tances upon descents by the death of the ancestor, the lord [ *371 ] *is used as a mere instrument; and, as no manner of inte

rest 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).

Admittances, however, upon surrender, differ from ad

and upon a descent from the ancestor.

Difference between admit

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

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

(16) Mr. Christian observes, that lives is legal, unless the fine has been “ where a copyhold has been granted certain and unvaried, for copyholds for lives, upon the death of one or grantable for lives only, if the fine is more of the lives, the heir of the not certain, are like leases of freehold grantee cannot claim by custom a re- lands for lives, and renewable only newal of the grant for fresh lives upon upon the best terms the party can the payment of a reasonable fine, i.e. make. Warton v. King, Anstr. 659." a fine of two years' value, as in the [See ante, p. 98, note (44) to chapter case of a copyhold of inheritance. 6.-Ed.] No custom to renew a copyhold for

« EdellinenJatka »