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favor the disposition is made, as personal estate; and the deed of disposition thereof, being an assignment, enrolled in Chancery within six calendar months.

Having thus furnished a substitute for recoveries, the act next provides for the passing of estates and interests of married women, the principal function in modern times of fines.

Sect. 77 enacts, that it shall be lawful for every married woman, in every case except that of being tenant in tail, for which the act has already provided, by deed, to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate, which she alone, or she and her husband in her right, may have in any such lands or money, and also to release or extinguish any power over such lands or money, as effectually as if she were a feme-sole, provided that the husband (except in certain cases) concur in the deed; provided, also, that the act, shall not extend to copyholds, of which a married woman, or her husband in her VOL. II.-E E

right, may be seized for an estate at law, in any case where the same object could have been effected, with the husband's concurrence, by a customary surrender. But a surrender of a married woman's equitable interest in copyholds, taken with the proper examination, as if the estate had been legal, shall be effectual to pass her interest.

Every deed or disposition made by a married woman under the act (except a deed of consent as protector) must be produced and acknowledged by her before a judge or a master in Chancery, or two special commissioners, to be ap pointed in manner directed by the act. The mode of taking such acknowledgments, and the custody of the certificates of acknowledgment which the act directs to be filed, &c., are placed under the direction of the chief justice of the Common Pleas.

In the following session the provisions of this act were extended to Ireland by the stat. 4 & 5 Will. IV., c. 92, which, with some few variations, is a transcript of its predecessor.

433

365

Alienation

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

We are next to consider assurances by special custom, oband custom-taining only in particular places, and relative only to a particary estates. ular species of real property. This, therefore, is a very narrow title, being confined to copyhold lands, and such customary estates as are holden in ancient demesne, or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed;' for, as that might tend to defeat the lord of his seigniory, it is therefore a forfeiture of a copyhold.a Nor are they transferable by matter of record, even in the king's court, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds; but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender and their consequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his own will, and the | 366] like. The process, in most manors, is that the tenant comes to the steward, either in court (or, if the custom permits, out of court3), or else to two customary tenants of the same manor,

a Litt., § 74.

(1) What is here said must be understood of the legal title to copyholds; a merely equitable interest in a copyhold will pass by any writing signed by the person entitled.

(2) This is true, because real actions, which alone were conclusive as to the title, could only be brought to recover copyholds in the lord's court. But ejectment is commonly brought in the superior courts to recover the possession of copyholds. (See 1 Jac. & W., 549.)

b Moor, 637.

ard or deputy-steward, may now hold a customary court, in the absence of any customary tenants, and though there be at the time no customary tenants hold ing by copy. But proclamations at any court so holden are declared inoperative against persons absent, unless notified to them within a month. (4 & 5 Vict., c. 35, s. 86.)

(5) The surrender may be taken ei ther by the lord or his steward, not only out of court, but out of the manor, for it may be convenient, and can be prejudicial to no one. (1 Salk., 184.) "A custom that the steward shall not take sur(4) The lord of a manor, or the stew- renders out of the manor is void." (Per

(3) Vide ante, p. 364, (n.).

provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom Surrender, directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate, in trust to be again granted out by the lord to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then, at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender, in court, or upon present- Re-grant. ment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use (who is sometimes, though rather improperly, called the surrenderee), to hold by the ancient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, Admittance. or glove, or the like, in the name, and as the symbol, of corporeal seizin of the lands and tenements. Upon which admission he pays a fine to the lord, according to the custom of the manor, and takes the oath of fealty."

are of feudal

In this brief abstract of the manner of transferring copyhold Surrenders estates, we may plainly trace the visible footsteps of the feodal origin institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose, it is resigned up, or surrendered into his hands.. Custom, and the indulgence of the law, which favors liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fiduciarium, for which there was no reme- [367] dy at law, but only by subpoena in Chancery. When, therefore,

c Cro. Jac., 568.

Curiam, 1 Ld. Raym., 76.) But previously to the statute 4 & 5 Vict., c. 35, he could not admit out of the manor. (Ib.) Nor even out of court. (3 Nev. & M., 225.)

(6) By a surrender of a tenant in fee or copyholder, no more of his estate passes than will satisfy the uses declared. The residue will continue in him as of his old estate. (9 Co., 107, a; 1 Brownl., 181; Cro. Eliz., 442; 4 Co., 29, b; Gilb., Ten., by Watkins, 254, and n. 116.)-[CHITTY.]

(7) Femes-covert and infants may be

admitted by their attorney or guardian;
and in default of their appearance, the
lord may appoint a guardian or attorney
for that purpose. If the fines are not
paid, the lord may enter and receive
the profits till he is satisfied, accounting
yearly for the same upon demand of the
person or persons entitled to the surplus,
but no forfeiture shall be incurred by
infants or femes-covert for not appear-
ing, or refusing to pay fines. (9 Geo.
I., c. 29.) See further, as to the admit-
tance of married women, infants, and
lunatics, 11 Geo. IV. & 1 Will. IV., c.
65.

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Copyholds can not be

grant.

the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterward named in the tenant's will, the Chancery enforced this trust as a matter of conscience: which jurisdiction, though seemingly new in the time of Edward IV.,d was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant can not be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the license of alienation. Add to this the plain feodal investiture, by delivering the symbol of seizin in presence of the other tenants in open court; " quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis solemniter fieri debet ;"e and, to crown the whole, the oath of fealty 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.

8

This method of conveyance is so essential to the nature of a conveyed by copyhold estate, that it can not properly be transferred by any feoffment or other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate with another, I can not 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 copy-" hold, I must surrender it to the use of my last will and testament;1o and in my will I must declare my intentions, and name

d Bro. Abr., tit. Tenant per Copie, 10.

(8) As to alienations in certain manors by customary bargains and sales, see 2 B. & Ad., 585; 1 Russ. & M., 33. By the customs of some manors, tenants were restrained from dividing and alienating their ancient tenements in portions; but these customs have been abolished by the stat. 4 & 5 Vict., c. 35, s. 92.

(9) Trusts or equitable estates in copyholds may be created in the same manner as in freehold lands; but copyholds are not within the Statute of Uses. A use declared upon a surrender of copyholds is not, therefore, the same as a use limited upon a common-law conveyance, but is a mere direction to the lord to admit the particular person in

e Feud., 1. 2, t. 2

dicated, which the custom obliges him to obey.

(10) See 2 Cr., M. & R., 503. To prevent the recurrence of the evils which frequently resulted from the devisors of copyhold lands omitting, either from negligence or ignorance, to surrender them to the uses of their wills, it was enacted by 55 Geo. III., c. 192, that devises of copyholds which were devisable by surrender and will should be as effectual without a surrender; the prop er stamp duties, fees, &c., which would have been payable upon such surrender being paid on the admission of the devi see. But this statute was repealed by the recent Statute of Wills (7 Will. IV

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a devisee, who will then be entitled to admission. A fine or [368] recovery had of copyhold lands in the king's court may, indeed, if not duly reversed, alter the tenure of the lands, ana convert them into frank fee,g which is defined in the old book of tenuresh 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.i1

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 surrender1 by an admittance, subsequent whereto the 1. Nature of

f Co. Copyh., § 36.

Old Nat. Brev., t. Briefe de Recto· Clauso, F. N. B., 13.

h Tit. Tenir en Franke Fee.
i See vol. iii., page 166*.

would not have supplied the defect of
the surrender of the copyhold, unless
the freehold was insufficient. (1 Bro.,
273; 2 Bro., 325.)

& 1 Vict., c. 26), which authorizes a equal claim to his protection and boun-
testator to dispose of his customary and ty as his wife, though such heir was un-
copyhold estates, notwithstanding he provided for; for the wife will be pre-
has not surrendered, or, whether claim- ferred, where there is not an equal mor-
ing as heir, devisee, or surrenderee, has al obligation violated by giving her re-
not been admitted; and notwithstand- lief. (3 Bro. 229.) If both freehold
ing the want of a custom to devise by and copyhold estates were devised for
surrender to the use of a will or other- the payment of debts, the chancellor
wise. The act makes provision for the
satisfaction of the proper fines, fees, and
stamp duties. But where a surrender
by a married woman to the use of her
will was required by the particular cus-
tom of the manor, the want of a sur-
render was not aided; for the 55 Geo.
[II., c. 192, only aids the want of a form-
al surrender, and the surrender in this
case is matter of substance, and must be
accompanied by the separate examina-
tion of the wife. (5 Barn. & Ald., 492.)
And the recent Statute of Wills gives no
new powers of devising to a married
woman. (Sect. 8.)

Equity would not assist a brother, grandchildren, or a natural child. (3 Atk., 189; 2 Ves., 582.) Lord Somers's decree in favor of a grandson was revers ed by the House of Lords. (6 Ves. Jun., 544.)-[CHRISTIAN.]

(12) See stat. 3 & 4 Will. IV., c. 74, s. 5.

(13) A surrender does not destroy a contingent remainder. (2 Saund., 386; (11) Unless a surrender was made by see 11 East, 185.) It receives the same the testator some time before his death construction as a deed operating by the to the use of his last will and testament, Statute of Uses, and therefore cross rethe devise of a copyhold was in general mainders can not be implied. (1 Saund., absolutely void, and the estate descend- 186, b.) A surrender may be by him ed to the heir at law; but in three in- in remainder. (1 Saund., 147, a, n. 3.) stances a court of equity would have in- The surrenderee is an assignee within terfered and supplied the defect of a sur- the equity of the statute Hen. VIII. (1 render, viz., when copyholds were de- Saund., 241, a.) His title begins from vised for the payment of debts, and in the date of the surrender, by relation; favor of a wife or younger children. Yet and, therefore, after he has been admita wife or younger children would not ted, he may lay his demise in ejectment have been relieved in equity, if the heir on the day of surrender, and recover was disinherited or unprovided for. (1 mesne profits therefrom. (1 T. R., 600; Atk., 387; 3 Bro., 229; 1 Cox's P. Wms., 2 Saund., 422, c, n. 2.) A feme-covert, 60.) But a wife could have been re- who surrenders a copyhold (which she lieved against an heir who was not the can only do with her husband's consent), child of the testator, or one who had an ought previously to be examined separ

a surrender

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