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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 surren-
der, presentment, and admittance thereupon are wholly void ;m
the surrender, as being never truly presented; the present-
ment, 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. So, too,
if cestuy que use dies before presentment, yet, upon present-
ment 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 suffi-
cient 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, [370 ]
he

may sue both the lord and them that took the surrender in
Chancery, and shall there find relief.o

3. Admittance is the last stage, or perfection of copyhold 3. Of the adassurances. And this is of three sorts: first, an admittance upon a voluntary grant from the lord ;" secondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from the ancestor." m Co. Copyh., \ 40.

a Co. Litt., 62. © Co. Copyh., ở 40.

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8. 87, every surrender and deed of sur- by himself. (1 Saund., 147, a, n. (3),
render, which the lord shall be com- (4); 12 Ves., 422.) The admittance,
pellable to accept or shall accept, and when made, relates to the time of sur-
every will and codicil of which shall be render. (1 Tr., 600; 2 Saund., 422, C,
delivered to the lord, his steward, or n. 2.) A surrenderee can not forfeit for
deputy steward, out of court, or at a court felony before admittance, for till then the
in the absence of the homage, and also estate is in the surrenderor. (2 Saund.,
every grant and admission under the 422, c, n. 2.) The lord's grantee has ti-
act, shall forthwith be entered on the tle without any further admittance. (2
court rolls by such lord, steward, or dep. B. & Al., 453; 2 Saund., 422. c.) If
uty; and such entry shall be of equal the surrenderee dies before admittance,
effect with an entry made in pursuance his heir is entitled to be admitted, and
of a presentment. And presentment of the widow to her free-bench. (2 Saund.,
the surrender, will, or other matter on 422, d.) One effect of admittance is,
which an admission is founded, shall not that a copyholder is thereby estopped,
be essential to the validity of the admis- in an action by the lord for a forfeiture,
sion, except in cases of grants of com- from showing that the legal estate was
mon or waste, authorized by the custom not in the lord at the time of admittance.
to be made with the consent of the (5 B. & Al., 626 ; 1 Dowl. & R., 243.)-
homage.

(Chitty.]
(18) The admittance of the particular (19) By the statute 4 & 5 Vict., c.
tenant is the admittance of the remain- 35, s. 87, 88, the lord, or his steward or
der-man, but the latter may be admitted deputy-steward, may, out of court, and

In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to 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 be well 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 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 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 encumbrances by the lord.qoi Admittance

In admittances upon surrender of another, the lord is to no upon a surrender.

intent reputed as owner, but wholly as an instrument; and the tenant admitted shall likewise be subject to no charges or encumbrances of the lord; for his claim to the estate is solely

under him that made the surrender.raa Admittance And, as in admittances upon surrenders, so in admittances

upon descents by the death of the ancestor, the lord is used as [371 ] 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

P Co. Copyh., \ 41. [2 Q. B. R., 9 8 Rep., 63. 792.]

4 Rep., 27. Co. Litt., 59.

upon a de

scent.

even out of the manor, make any grants party can make. (Warton v. King,
authorized by the custom, and admit Anstr., 659.)-[Christian.]
tenants. (See 3 Nev. & M., 225.)

(21) See 2 Bos. & P., 346; 2 Wils.,
(20) Where a copyhold has been 125; 2 B. & Al., 187. But he may re-
granted for lives, upon the death of one grant it for a less estate than that which
or more of the lives, the heir of the had escheated. (Co. Litt., 52, b.) Where
grantee can not claim by custom a re- a tenement had been customarily grant-
newal of the grant for fresh lives upon ed at a single rent, the lord could not,
the payment of a reasonable fine, i. e., in the absence of a special custom, grant
a fine of two years' value, as in the case the tenement in heriots at apportioned
of a copyhold of inheritance. No cus- rents (2 Q. B. R., 792); but the recent
tom to renew a copyhold for lives is le- statute, 4 & 5 Vict., c. 35, s. 92, allows
gal, unless the fine has been certain and this to be done.
unvaried, for copyholds graṇtable for
lives only, if the fine is not certain, are (22) And for this purpose the title of
like loases of freehold lands for lives, and the lord is immaterial; it is sufficient
renewable only upon the best terms the that he is lord de facto. (1 Nev. & P.,

215.)

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.

Admittances, however, upon surrender differ from admit- The heir is tances upon descent in this, that by surrender nothing is vested fore admitin cestuy que use, before admittance, no more than in voluntary tance. admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor ; not, indeed, to all intents and purposes, for he can not 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 “ I assure myself, if it were in [372] the election of the heir to be admitted or not to be admitted, he would be best contented without admittance; but the custom in every manor 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 enforced, in every manor, to come into court and be admitted according to the custom

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(23) 1 Per. & Dav., 37. And, after him. (2 T. R., 197.) But in a more some fluctuation of decision, it was set- recent case the court granted a mandatled that the will of an beir would pass mus in favor of an heir. (3 B. & Cr., bis copyhold, although he died before 172; 4 Dowl. & R., 492.) If the lord admittance; but the will of an unadmit- refuse to admit, the surrenderee can not ted surrenderee or (which was the same have an action on the case against him, case) devisee would not. (3 B. & Ad., but may compel him in Chancery (Cro. 664; 5 Ad. & E., 321; 1 Myl. & K., Jac., 368) or by mandamus. (2 T. R., 456, 649; 2 Id., 449; 2 Nev. & P., 195.) 484.). And the lord has no right to the

fine till after admittance. (Ib.; 1 Watk. (24) 1 Jac. & W., 611. It has been on Cop., 1st ed., 263, 287 ; 1 East, 632 ; held that, the heir having as complete Scriv. on Cop., 405-6.). But the surrena title without admittance as with it, deror may bring an action for refusal to against all the world but the lord, the admit. (3 Bulst., 217.) – [Chitty.) Court of King's Bench will not grant a (See 4 Per. & D., 719.) mandamus to compel the lord to admit

within a short time after notice given of their ancestor's decease."

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(25) Copyholds are not within the But a person claiming to be admitted statuté De Donis, and can not be entail- as heir need not tender himself for ad. ed without a special custom within the mittance at the lord's court, if he has manor; and where such a custom exists, been refused by the steward out of there may also be a custom to bar the court. (2 M. & S., 87.) A lord of the estate-tail, by a recovery suffered in the manor can not seize a copyhold estate lord's court; but if no such custom ap- as forfeited pro defectu tenentis without pears of barring by recovery, the entail a custom; and where he did so, even may be barred by surrender, or other after three proclamations for the heir to wise it would amount to a perpetuity. come in, and granted it in fee to anoth(2 Ves., 601.) Yet in some manors the er, it was held an absolute seizure, not custom of barring by one mode is co- being warranted by custom, and could existent with the custom of barring by not be set up by the lord as a seizure the other. (2 W. Bl., 944.)-[Christ- quousque.—(Chitty.] (3 T. R., 162. IAN.] (Ante, p. 113.)

See 1 B. & Ad., 737.) 442

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

The last method of conveying real property is by devise, or disposition contained in a man's last will and testament. And, in considering this subject, I shall not at present inquire into the nature of wills and testaments, which are more properly the instruments to convey personal estates; but only into the original and antiquity of devising real estates by will, and the construction of the several statutes upon which that power is now founded.

It seems sufficiently clear that, before the Conquest, lands Power to were devisable by will. a But, upon the introduction of the devise remilitary tenures, the restraint of devising lands naturally took introduction place, as a breach of the feodal doctrine of non-alienation with of feudal out the consent of the lord.b And some have questioned whether this restraint (which we may trace even from the ancient Germansc) was not founded upon truer principles of policy than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbors; since it rarely happens that the same man is heir to many others, though by art and management he may frequent- [ 374 ] ly become their devisee. Thus the ancient law of the Athenians directed that the estate of the deceased should always descend to his children; or, on failure of lineal descendants, should go to the collateral relations; which had an admirable effect in keeping up equality, and preventing the accumulation of estates. But when Solond made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others; which, by a natural progression, first produced popular tumults and dissensions; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses (which are the natural consequence of free agency, when coupled with human infirmity), to debar the owner of lands from distributing them after his death as the exigence of * Wright, of Tenures, 172.

system

c Tacit., De Mor. Germ., c. 21. 6 See page 57.

d Plutarch, in Vita Solon.

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