Sivut kuvina

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 prima 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 (I) (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 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) (13).

(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).

*3. Admittance is the last stage, or perfection, of copy- | *3701 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 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) +.

(o) 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

scent from the ancestor.

upon surrender

In admittances upon surrender of another, the lord is to by the former

no intent reputed as owner, but wholly as an instrument; tenant;

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 upon a de- And, as in admittances upon surrenders, so in admittances

upon descents by the death of the ancestor, the lord is used ( *371 ] 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 be- Admittances, however, upon surrender, differ from adtween admittances upon sur- mittances upon descent (14) in this, that by surrender no(r) 4 Rep. 27. Co. Litt. 59.

(s) 4 Rep. 27. 1 Rep. 140.

(14) An heir-at-law, before admit. render has been made, may devise his tance, may do many things which a de- equitable interest in, or, more properly visee cannot do before admittance. But, speaking, his right to, the copyhold. it seems, the privileges of a purchaser (Wainwright v. Elwell, 1 Mad. 632.635. before admittance are, in some respects, Davies v. Beversham, 2 Freem. 157. more extensive than those of an heir-at- Greenhill v. Greenhill, 2 Vern. 680. law. Neither a devisee, nor even an Smith v. Triggs, 1 Str. 492.

Doe v. heir-at-law, can devise a copyhold be- Vernon, 8 East, 22, Wilson v. Weddell, fore admittance thereto; but a pur- Yelv. 145). chaser of a copyhold, to whom a sur

claim by custom a renewal of the grant copyholds grantable for lives only, if for fresh lives upon the payment of a the fine is not certain, are like leases reasonable fine, i. e. a fine of two years' of freehold lands for lives, and renewavalue, as in the case of a copyhold of ble only upon the best terms the party inheritance. No custom to renew a can make. Warton v. King, Anstr. 659." copyhold for lives is legal, unless the [See ante, p. 98, note (34) to chapter fine has been certain and unvaried, for 6.--Ep.)

thing is vested in cestuy que use, before admittance, no render, and more than in voluntary admittances; but upon descent the upon descent. heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be sworn on the homage nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground (t); nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing the heir's title. Hence indeed an observation might arise, that if the benefit which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply in the words of Sir Edward Coke (u), [ *372 ] I assure myself, if it were in the election of the heir to “ be admitted or not to be admitted, he would be best con“ tented without admittance; but the custom in every ma“ nor is in this point compulsory. For, either upon pain of “ forfeiture of their copyhold, or of incurring some great

penalty, the heirs of copyholders are inforced, in every “ manor, to come into court and be admitted according to “ the custom within a short time after notice given of their “ ancestor's decease.” (15). (t) 4 Rep. 23.

(u) Copyh. s. 41.

(15) See ante, p. 98, notes (33) and (34) to chapter 6.

| Mr. Christian observes, that “co- donis, and cannot be intailed without pyholds are not within the statute de a special custom within the manor; and

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