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it to the use of my last will and testament; and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission f.
In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of it's several parts; the surrender, the presentment, and the admittance.
1. A SURRENDER, by an admittance subsequent whereto the conveyance is to receive it's 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 ufe, 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 fub 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 : and if he surrenders to the use of another, such surrender is merely void, and by no matter ex poft faéto 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: and no subfequent 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 compellable to do it by a bill in chancery or a mandamus 8: and the surrenderor can in no wise defeat his grant; his hands being forever bound from disposing of the land $ Co. Copyh. 5. 36.
& 2 Roll. Rep. 107.
in any other way, and his mouth for ever stopped from revoking or countermanding his own deliberate act"; except in the case of a surrender to the use of his will, which is ale ways revocablej.
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 presented by the homage ; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the furrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon are wholly void : 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 k. So too, if çejtuy que ufe 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, 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 surrender, in chancery, and shall there find relief'.
k Co. Litt. 62.
» Co. Copyh. §. 39.
3. ADMITTANCE is the last stage, or perfection, of copyhold assurances. 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.
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 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 eftate 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 m: nor is the tenant's estate, so granted, subject to any charges or incumbrances by the lord".
· In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an iustrument : 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
AND, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord
m Co. Cop. §. 41. A S Rep. 63.
• 4 Rep. 27. Co. Litt. 59.
is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, fo 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 judi. cial, or rather ministerial, acts, which every lord in poffeffion is bound to perform P.
ADMITTANCES, however, upon surrender differ from admittances upon descent in this : that by surrender nothing is vested in cestuy que use before admittance, no more than in voluntary 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 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 ?; 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 intitle him to his fine, and not so much necessary for the strengthening and compleating 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 fir Edward Coke", " I assure myself, if it 66 were in 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 6 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.”
* Copyh. §. 41.