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poreum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis so“ lemniter fieri debet (e):" and, to crown the whole, the oath of fealty(7) is annexed, the very bond of feodal subjection.
7 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 Surrender the a copyhold estate, that it cannot properly be transferred by only mode of
conveying copyany other assurance. No feoffment or grant has any opera- holds. • 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 a copyhold, I must surrender *it to the use of my last will [ *368 ] and testament (8); and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission (f). A fine or recovery had of copyhold lands in the king's court may indeed, if not duly reversed, alter the (e) Feud. I. 2, t. 2.
(f) Co. Copyh. s. 36.
(7) See ante, p. 45, with note (4) to a surrender to the use of the will. The chapter 4.
act does not supply the defect of a sur(8) The statute of 55 Geo. III. c. render by a feme coverte, where, by the 192, has made dispositions of copyhold custom of the manor, such surrender is estates by will effectual, although no necessary to substantiate her will; for, previous surrender to the uses thereof in such cases, a separate examination of may have been made. The act provides the feme coverte is essential to a free that this indulgence shall not operate disposal of the property by her; and in fraud of the lord of the manor, or of the statute in question was intended to the crown; but, that the devisee shall supply mere matter of form only. (Doe be admitted only on payment of all v. Bartle, 5 Barn. & Ald. 507. S. C. such stamp duties, fees, and sums of 1 Dowl. & Ryl. 91). money as would have been payable upon VOL. II.
1. The surrender.
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 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) (9).
In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.
1. A surrender, by an admittance, subsequent whereto the 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 f:
(8) Old Nat. Brev. t. briefe de recto (h) t. tenir en franke fee. clauso. F. N. B, 13.
(i) See Vol. III. pag. 166*.
(9) Where a fine is levied, or a re- and to annul the former proceedings. covery suffered, of lands held in antient (Rex v. Mead, 2 Wils. 17. Zouch v. demesne, the lord may reverse it by Thompson, 1 Ld. Raym. 177. S. C. 3 writ of deceit; and such writ may be Lev. 419. Anonym. 1 Leon. 290, c. brought by the lord against the pare 321. 2nd Instit. 217). ties to the fine and the cestui que use ; The statute of 59 Geo. III. C. 80, by means of which he will obtain judg- authorizes the acceptance by attorney of ment, not only for damages (which are common recoveries of estates held in usually remitted), but also to recover antient demesne; and see 9 Geo. I. his court and jurisdiction over the lands, c. 29.
+ Mr. Christian observes, "it has after the surrender, where there was an been determined that the surrenderee admittance of the nominee before trial. may recover in an ejectment against (1 T. R. 600).” the surrenderor, upon a demise laid
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 (10): 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 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 (11) by a bill in Chancery, or a mandamus (k):
(k) 2 Roll. Rep. 107.
(10) See ante, p. 290, with note (3) ing. The lord does, by permitting a to chapter 19.
surrender to be entered upon the rolls, (11) See ante, pp. 95 and 97, with partake of a trust in favour of the surnote (29) to chapter 6. In the case of renderee." But, if a bill is brought Williams v. Lord Lonsdale, (3 Ves. to be admitted to a copyhold for the 756), Lord Loughborough, C., said, “it purpose of trying the right to it, the is clearly true, that, if the lord refuses Court will not interfere where the plainto admit the tenant, this court will com- tiff would be barred by the statute of pel the lord to admit him, the title limitations if the land were freehold, or standing upon the rolls of the manor. where he does not shew such a primá The ground for this court (the court facie title as affords a reasonable prosof Chancery) acting between lord and pect of success. (Widdowson v. Earl of tenant is, that the lord may de jure call Harrington, 1 Jac. & Walk. 544. 548. upon the tenant to be admitted, if he 558). In the case of Williams v. Lord stands out, for the lord has a right to Lonsdale, (before cited), it was thought the fine and services. But, this Court that a mandamus to the lord of a manor, will not let the parties stand in this to grant admission to a copyhold, did situation, that the lord who has remedy not lie; but, it is now settled, as laid against the tenant, to compel him to pay down in the text, that a mandamus to the fine and perform the services, or the lord to admit a copyholder, either to forfeit his estate, shall prevent him claiming by descent or making a prima from having evidence of his title upon facie title, does lie. (The King v. The the rolls which are in the lord's keep- Brewers' Compuny, 3 Barn. & Cress. 2. The present. ment.
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(l)(12).
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 court. 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 admit
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 stew
(1) Co. Copyh. s. 39.
(m) Ibid. 40.
(n) Co. Litt. 62.
173; S. C. 4 Dowl. & Ryl. 492. The And, if a copyholder surrenders condiKing v. The Lord of the Manor of Bon- tionally, and satisfies the condition besall, 3 Barn. & Cress. 175; S. C. 4 fore admittance of the nominee, the Dowl. & Ryl. 825. The King v. Cog- copyholder may surrender again absogan, 6 East, 432).
lutely, without taking a new estate by (12) Of course it will be understood the admittance and surrender of the that a surrender by a copyholder to the nominee in the conditional surrender, use of his own will is always revokable. and his own subsequent admittance. (See post, note (4) to chapter 23). (Hargrave's note to Co. Litt. 62 a).
ard, 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) (13).
*3. Admittance is the last stage, or perfection, of copy- [ *370) hold assurances. And this is of three sorts: first, an admit- 3. The admittance upon a voluntary grant from the lord; secondly, an there are three
tance, of which admittance upon surrender by the former tenant; and, third- sortsly, an admittance upon a descent from the ancestor.
In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to upon a volunhim, the lord is considered as an instrument. For though tary grant from 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 feesimple, 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 antient custom precisely 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 antient 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 (9) +.
(0) Co. Copyh. s. 40. (p) Co. Copyh. s. 41. (9) 8 Rep. 63.
(13) See ante, note (4) to this chapter.
+ Mr. Christian observes, that “where upon the death of one or more of the a copyhold has been granted for lives, lives, the heir of the grantee cannot