CHAPTER THE TWENTY SECOND.

OF ALIENATION BY SPECIAL CUSTO M.

E are next to confider affurances by special custom,

WE obtaining only in particular places, and relative only

to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and fuch customary estates, as are holden in antient demefne, or in manors of a fimilar 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 figniory, it is therefore a forfeiture of a copyhold. Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by furrender; though in fome manors, by special cuftom, 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 fhall confine myself to conveyances by furrender, and their confequences.

SURRENDER, furfumredditio, is the yielding up of the eftate by the tenant into the hands of the lord, for such purposes as in the furrender are expreffed. As, it may be, to the use and behoof of A and his heirs; to the use of his own will; and the like. The process, in most manors, is, that b Moor. 637.

a Litt. §. 74.

the

the tenant comes to the steward, either in court, (or, if the cuftom permits, out of court) or else to two cuftomary tenants of the same manor, provided that also have a custom to warrant it; and there by delivering up a rod, a glove, or other symbol, as the custom directs, refigns 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 fuch 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 prefentment is an information to the lord or his steward of what has been tranfacted out of court. Immediately upon such surrender in court, or upon presentment of a furrender made out of court, the lord by his steward grants the same land again to celuy que ufe, (who is fometimes, though rather improperly, called the furrenderee) to hold by the antient 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, or glove, or the like, in the name, and as the fymbol, of corporal feifin of the lands and tenements. Upon which admiffion he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.

In this brief abftract of the manner of transferring copyhold eftates we may plainly trace the visible footsteps of the feodal inftitutions. The fief, being of a base nature and tenure, is unalienable without the knowlege and consent of the lord. For this purpose it is refigned up, or furrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his fucceffor; but formerly it was far otherwife. And I am apt to fufpect that this right is of much the same antiquity with the introduction of ufes with refpect to freehold lands: for the alienee of a copyhold had merely jus fiduciarium, for which

there

there was no remedy at law, but only by sub-poena in chancery. When therefore the lord had accepted a furrender of his tenant's intereft, upon confidence to re-grant the estate to another perfon, either then exprefsly named or to be afterwards named in the tenant's will, the chancery inforced this truft as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV, was generally acquiefced in, as it opened the way for the alienation of copyholds, as well as of freehold eftates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by compofition with the lord, and paying him a fine by way of acknowlegement for the licence of alienation. Add to this the plain feodal inveftiture, by delivering the symbol of feifin in presence of the other tenants in open court; quando hafta vel aliud corporeum quidlibet porrigitur a domino fe in"veftituram facere dicente; quae faltem coram duobus vafallis folenniter fieri debete" and, to crown the whole, the oath of fealty 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 reft of our tenures and eftates, the very existence of copyholds, and the manner in which they are transferred, would inconteftably prove the very univerfal reception, which this northern fyftem of property for a long time obtained in this ifland; and which communicated itself, or at least it's fimilitude, even to our very villeins and bondmen.

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THIS method of conveyance is fo effential to the nature of a copyhold eftate, that it cannot poffibly be transferred by any other affurance. No feoffment, fine, or recovery (in the king's courts) has any operation thereupon. If I would exchange a copyhold eftate 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 devife a copyhold, I muft surrender e Feud. 1. 2. t. 2.

c Cro. Jac. 568.

Bro, Abr. tit. Tenant per copie, 10,

it to the use of my last will and teftament; and in my will I muft declare my intentions, and name a devifee, who will then be entitled to admission f.

In order the more clearly to apprehend the nature of this peculiar affurance, let us take a feparate view of it's feveral parts; the furrender, the prefentment, and the admittance.

I. A SURRENDER, by an admittance fubfequent whereto the conveyance is to receive it's perfection and confirmation, is rather a manifeftation of the alienor's intention, than a transfer of any intereft in poffeffion. For, till admittance of ceftuy que ufe, the lord taketh notice of the furrenderor as his tenant; and he fhall receive the profits of the land to his own ufe, and shall discharge all fervices due to the lord. Yet the interest remains in him not absolutely, but fub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was fubject to at the time of the furrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trefpaffer and punishable in an action of trespass: and if he furrenders to the use of another, fuch furrender is merely void, and by no matter ex poft facto can be confirmed. For though he be admitted in pursuance of the original furrender, and thereby acquires afterwards a fufficient and plenary intereft as abfolute owner, yet his fecond furrender previous to his own admittance is abfolutely void ab initio ; because at the time of such surrender he had but a poffibility of an intereft, and could therefore transfer nothing: and no fubfequent admittance can make an act good, which was ab initio void. Yet, though upon the original furrender the nominee hath but a poffibility, it is however fuch a poffibility, 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 compellable to do it by a bill in chancery or a mandamus: and the furrenderor can in no wife defeat his grant; his hands being for ever bound from difpofing of the land g 2 Roll. Rep. 107.

Co. Copyh. §. 36.

in any other way, and his mouth for ever ftopped from revoking or countermanding his own deliberate act; except in the cafe of a furrender to the use of his will, which is always revocable j.

2. As to the presentment: that, by the general custom of manors, is to be made at the next court baron immediately after the furrender; but by special custom in fome places it will be good, though made at the second or other fubfequent court. And it is to be brought into court by the fame perfons that took the furrender, and then prefented by the homage; and in all points material muft correspond with the true tenor of the furrender itself. And therefore, if the furrender be conditional, and the presentment be abfolute, both the furrender, presentment, and admittance thereupon are wholly void the surrender, as being never truly presented; the prefentment, as being falfe; and the admittance, as being founded on fuch untrue presentment. If a man surrenders out of court, and dies before prefentment, and prefentment be made after his death, according to the custom, this is fufficient. So too, if ceftuy que ufe dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The fame law is, if thofe, into whofe hands the surrender is made, die before prefentment; for, upcn fufficient proof in court that fuch a furrender was made, the lord fhall be compelled to admit accordingly. And if the steward, the tenants, or others into whofe hands such surrender is made, do 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 fue both the lord, and them that took the furrender, in chancery, and fhall there find relief'.

A Co. Copyh. §. 39.

j 4 Rep. 23.

i Co. Copyh. 40.

VOL. II.

k Co. Litt. 62.

1 Co. Copyh. §. 40.

N

3. ADMIT