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CHAPTER THE TWENTY SECOND.

OF ALIENATION BY SPECIAL CUSTOM.

WE are next to confider affurances by fpecial cuftom, obtaining only in particular places, and relative only to a particular fpecies of real property. This therefore is a very narrow title; being confined to copyhold lands, and fuch cuftomary eftates, 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 ^a. Nor are they transferable 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 fpecial cuftom, recoveries may be fuffered of copyholds ^b: but thefe differing in nothing material from recoveries of free land, fave only that they are not fuffered in the king's courts, but in the court baron of the manor, I fhall confine myfelf to conveyances by furrender, and their conveyances.

SURRENDER, furfumredditio, is the yielding up of the eftate by the tenant into the hands of the lord, for fuch purpofes as in the furrender are expreffed. As, it may be, to the ufe and be-hoof of A and his heirs; to the ufe of his own will; and the like. The procefs, in moft manors, is, that the tenant comes to

.{FS}
^a Litt. §. 74.
^b Moor. 637.
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the
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Ch. 22.
the fteward, either in court, (or, if the cuftom permits, out of court) or elfe to two cuftomary tenants of the fame manor, provided that alfo have a cuftom to warrant it; and there by delivering up a rod, a glove or other fymbol, as the cuftom directs, refigns into the hands of the lord, by the hands and acceptance of his faid fteward, or of the faid two tenants, all his intereft and title to the eftate; in truft to be again granted out by the lord, to fuch perfons and for fuch ufes as are named in the furrender, and the cuftom of the manor will warrant. If the furrender be made out of court, then at the next or fome fubfequent court, the jury or homage muft prefent and find it upon their oaths; which prefentment is an information to the lord or his fteward of what has been tranfacted out of court. Immediately upon fuch furrender in court, or upon prefentment of a furrender made out of court, the lord by his fteward grants the fame land again to ceftuy que ufe, (who is fometimes, though rather improperly, called the furrenderee) to hold by the antient rents and cuftomary fervices; and thereupon admits him tenant to the copyhold, according to the form and effect of the furrender, which muft be exactly purfued. 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 cuftom of the manor, and takes the oath of fealty.

IN this brief abftract, of the manner of transferring copyhold eftates, we many plainly trace the vifible footfteps of the feodal inftitutions. The fief, being of a bafe nature and tenure, is unalienable without the knowlege and confent of the lord. For this purpofe it is refigned up, or furrendered into his hands. Cuftom, 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 fame antiquity with the introduction of ufes with refpect to freehold lands: for the alienee of a copyhold had merely jus fiduciarium, for which there was no remedy at law, but only by fubpoena
in
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BOOK II.
Ch. 22.
in chancery ^c. When therefore the lord had accepted a furrender of his tenant's intereft, upon confidence to re-grant the eftate to another perfon, either then expreffly named or to be afterwards named in the tenant's will, the chancery inforced this truft as a matter of confcience; which jurifdiction, though feemingly new in the time of Edward IV ^d, 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 ufe of them both equally devifable by teftament. 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 fymbol of feifin in prefence of the other tenants in open court; “euando hafta vel aliud corporeum quidlibet porrigitur a domino fe inveftituram facere dicente; quae faltem coram duobus vafallis folenniter fieri debet ^e:” and, to crown the whole, the oath of fealty annexed, the very bond of feodal fubjection. 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 exiftence 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 itfelf, or at leaft it's fimilitude, even to our very villains and bondmen.

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 muft furrender to each other's ufe, and the lord will admit us accordingly. If I would devife a copyhold,I muft furrender it to the ufe of my laft will

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^c Cro. Jac. 568.
^d Bro. Abr. tit. Tenant per copie. 10.
^e Feud. l. 2. t. 2.
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and
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Ch. 22.
and teftament; and in my will I muft declare my intentions, and name a devifee, who will then be entitled to admiffion ^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.

1. 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 fhall difcharge all fervices due to the lord. Yet the intereft remains in him not abfolutely, but fub modo; for he cannot pafs away the land to any other, or make it fubject to any other incumbrance than it was fubject to at the time of the furrender. But no manner of legal intereft is vefted in the nominee before admittance. If he enters, he is a trefpaffer and punifhable in an action of trefpafs: and if he furrenders to the ufe of another, fuch furrender is merely void, and by no matter ex poft facto can be confirmed. For though he be admitted in purfuance 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; becaufe at the time of fuch furrender 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 pleafes be deprived or deluded of the effect and fruits of the furrender; but if the lord refufe to admit him, he is compellable to do it by a bill in chancery or a mandamus ^g: and the furrenderor can in no wife defeat his grant; his hands being for ever bound from difpofing of the land

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^f Co. Copyh. §. 36.
^g 2 Roll. Rep. 107.
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in any other way, and his mouth for ever ftopped from revoking or countermanding his own deliberate act ^h; except in the cafe of a furrender to the ufe of his will, which is always revocable ^j.

2. AS to the prefentment: that, by the general cuftom of manors, is to be made at the next court baron immediately after the furrender; but by fpecial cuftom in fome places it will be good, though made at the fecond 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 al points material muft correfpond with the true tenor of the furrender itfelf. And therefore, if the furrender be conditional, and the prefentment be abfolute, both the furrender, prefentment, and admittance thereupon are wholly void ^I: the furrender, as being never truly prefented; the prefentment, as being falfe; and the admittance, as being founded on fuch nature prefentment. If a man furrenders out of court, and dies before prefentment, and prefentment be made after his death, according to the cuftom, this is fufficient ^k. So too, if ceftuy que ufe dies before prefentment, yet, upon prefentment made after his death, his heir according to the cuftom fhall be admitted. The fame law is, if thofe, into whofe hands the furrender is made, die before prefentment; for, upon fufficient proof in court that fuch a furrender was made, the lord fhall be compelled to admit accordingly. And if the fteward, the tenants, or others into whofe hands fuch furrender is made, do refufe or neglect to bring it in to be prefented, upon a petition preferred to the lord in his court baron the party grieved fhall find remedy. But if the lord will not do him right and juftice, he may fue both the lord, and them that took the furrender, in chancery, and fhall there find relief ^l.

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^h Co. Copyh. §. 39.
^j 4 Rep. 23.
ⁱ Co. Copyh. 40.
^k Co. Litt. 62.
^l Co. Copyh. §. 40.
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VOL. II.

Y y

3. ADMIT-

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Ch. 22.
3. ADMITTANCE is the laft ftage, or perfection, of copyhold affurances. And this is of three forts: firft, an admittance upon a voluntary grant from the lord; fecondly, an admittance upon furrender by the former tenant; and thirdly, an admittance upon a defcent from the anceftor.

IN admittances, even upon a voluntary grant from the lord, when copyhold lands have efcheated or reverted to him, the lord is confidered as an inftrument. For, though it is in his power to keep the lands in his own hands, or to difpofe of them at his pleafure, by granting an abfolute fee-fimple, a freehold, or a chattel intereft therein; and quite to change their nature from copyhold to focage tenure, fo that he may well be reputed their abfolute owner and lord; yet, if he will ftill continue to difpofe of them as copyhold, he is bound to obferve the antient cuftom precifely 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 refpect the law accounts him cuftom's inftrument. For if a copyhold for life falls into the lord's hands, by the tenant's death, though the lord may deftroy the tenure and enfranchife the land, yet if he grants it out again by copy, he can neither add to nor diminifh the antient rent, nor make any the minuteft variation in other refpects ^m: nor is the tenant's eftate, fo granted, fubject to any charges or incumbrances by the lord ⁿ.

IN admittances upon furrender, of another, the lord is to no intent reputed as owner, but wholly as an inftrument: and the tenant admitted fhall likewife be fubject to no charges or incumbrances of the lord; for his claim to the eftate is folely under him that made the furrender.

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^m Co. Cop. §. 41.
ⁿ 8 Rep. 63.
^o 4 Rep. 27. Co. Litt. 59.
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Ch. 22.
AND, as is admittances upon furrenders, fo in admittances upon defcents by the death of the anceftor, the lord is ufed as a mere inftrument; and, as no manner of intereft paffes into him by the furrender or the death of his tenant, fo no intereft paffes out of him by the act of admittance. And therefore neither in the one cafe, nor the other, is any refpect had to the quantity or quality of the lord's eftate in the manor. For whether he be tenant in fee or for years, whether he be in poffeffion by right or by wrong, it is not material; fince the admittances made by him fhall not be impeached on account of his title, becaufe they are judicial, or rather minifterial, acts, which every lord in poffeffion is bound to perform ^p.

ADMITTANCES, however, upon furrender differ from admittances upon defcent in this; that by furrender nothing is vefted in ceftuy que ufe before admittance, no more than in voluntary admittances; but upon defcent the heir is tenant by copy immediately upon the death of his anceftor: not indeed to all intents and purpofes, for he cannot be fworn on the homage nor maintain an action in the lord's court as tenant; but to moft intents the law taketh notice of him anceftor, efpecially where he is concerned with any ftranger. He may enter into the land before admittance; may take the profits; may punifh any trefpafs done upon the ground ^q; nay, upon fatisfying the lord for his fine due upon the defcent, may furrender into the hands of the lord to whatever ufe he pleafes. For which reafons 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 fo much neceffary for the ftrengthening and compleating the heir's title. Hence indeed an obfervation might arife, 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

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^p 4 Rep. 27. 1 Rep. 140.
^q 4 Rep. 23.
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to his copyhold in court; and fo the lord may be defrauded of his fine. But to this we may reply in the words of fir Edward Coke ^r, “I affure myfelf, if it were in the election of “the heir to be admitted or not to be admitted, he would be “beft contented without admittance; but the cuftom in every “manor is in this point compulfory. For, either upon pain of “forfeiture of their copyhold, or of incurring fome great penalty, the heirs of copyholds are inforced, in every manor, “to come into court and be admitted according to the cuftom, “within a fhort time after notice given of their anceftor's deceafe.”

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^r Copyh. §. 41.
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