18-4. WYNNE agninft RAIKES. in a letter to the drawer, one Newburgh, promising, " that his "bill fhould be duly honoured." The promife, being long fubfequent to the time when the plaintiffs in that cafe became poffeffed of the bill by indorsement, could of courfe have formed no part of their original inducement to take it. And the promise was in that cafe, as well as in this, made to a drawer, who had drawn without having any effects in the acceptor's hands; and it does not appear in the one cafe more than in the other that [522] the holders, the plaintiffs, ever knew of the acceptance on which they afterwards relied prior to the time when the bill became due. Without overfetting the authority of the cafe of Powell v. Monnier, we cannot say that the plaintiffs are not in the prefent cafe, which fo entirely resembles it, entitled to recover. as in adhering to it we violate no principles of commercial convenience, but confirm a rule of law, which we find established on a fubject which leaft of all others endures uncertainty and change, we cannot do otherwife than hold the plaintiffs in this cafe entitled to recover. And Poftea to the plaintiffs. Saturday, Where a copyholder in fee who had Doɛ on the Demife of WHITBREAD against ANN JEN THI NEY, Widow. HIS was an ejectment to recover certain copyhold premises, parcels of the manor of Usford, with the members, in the county of Suffolk, which was tried before Hotham B. at the last paid a fine on his original affizes at Bury, when a verdict was found for the plaintiff, fubadmittance, ject to the opinion of this Court on the following cafe: furrendered to the use of himfe'f for life, remainder to his wife for life, remainder over; on which furrender and re-admittance no new fine was paid; and by the custom a remainder-man coming into poffeffion on the death of tenant for life must be admitted and pay a fine: held, that fuch a cuftom is good; and that on the death of tenant for life, the next in remainder not coming in to be admitted and pay her fine, after proclamations made and prefentment by the jury, the lord may feize quoufque the tenant comes in, and main-、 tain ejectment to recover the poffeffion in the mean time. And fuch proclamations being in general terms for any perfon to come in and make title, &c. and the prefentment of default being alfo general, are good, though the perfon next in remainder were known and named in the furrender. 1804. Doɛ d. WHITBREAD againft JENNEY. [523] In 1787 the leffor of the plaintiff purchased and became, and is now lord of the manor of Usford, and the lands in queftion are parce! of this manor. In 1749 Edmund Jenney was admitted in fee to the lands in queftion; upon whofe admission a full fine was paid. On the fourth of September 1765 he furrendered the lands to the ufes of his marriage fettlement, viz. to the ufe of himself for life, remainder to the defendant, then Ann Brook, fpinfter, for life, with divers remainders over. On the 10th of April 1766 E. Jenney was admitted tenant of these lands, to hold to himself for life," according to the form and effect of the faid furrender by the rod, at the will of the lord, according to the custom of this manor, by the rents and fervices therefore due and of right accustomed, faving every perfon's right." No fine was paid by E. Jenney on his admission in 1766, as tenant for life under the marriage fettlement, or affeffed or paid in refpect to the remainders. In August 1801 E. Jenney the tenant for life died, and the defendant was called on to be admitted; and thereupon fhe appeared at a court baron of the manor on the 34 of December 1801, and offered to swear her fealty or have it refpited; but the refused to be admitted, infifting at the fame time that she was the lord's tenant by virtue of the furrender and admittance of E. Jenney, the prior tenant for life. On this refufal there was a prefentment by the homage that E. Jenney died seised; and three proclamations were made at three different courts that if any person or perfons would come into court and make any just claim or title in or to all or any of the lands or tenements holden of the faid mannor, whereof the faid E. Fenney died feised, such person or perfons fhould come into court and take admiffion to the fame. And no one coming in to be admitted, a precept was iffued by the fteward of the manor under his hand, and dated the 11th of December 1802, directed to the bailiff of the manor, authorising him in the presence of two or more copyhold tenants of the manor to feize into the. hands of the lord, quoufque the tenant should come in to be admitted, all fuch copyhold lands and tenements holden of the faid manor by copy of court roll, whereof the faid E. Jenney died feifed, as aforefaid, to and for the ufe of the lord, quoufque [ 524 ] the tenant comes in to be admitted: and then the lands are specified under a videlicet. And the lands were accordingly feized by the bailiff into the hands of the lord, in the presence of two copyhold tenants of the manor quoufque the tenant should come in to be admitted. And after fuch feizure the lord made the leafe 1804. DOE d. leafe in queftion, on which the prefent ejectment is brought. And the jury found, that by the custom of the manor, when a WHITBREAD perfon who has been admitted tenant for life of a copyhold against eftate holden of the manor dies, the tenant in remainder, whether JENNEY. for life, in tail, or in fee, fhall come in to be admitted and pay a fine thereupon. And they alfo found a verdict for the plaintiff, fubject to the opinion of the Court on the following question, viz. Whether, under these circumftances, the plaintiff in the ejectment were entitled to recover the lands in question. Alderfon for the plaintiff, made two points; 1ft, That, independent of the cuftom, the defendant, next in remainder after the death of the tenant for life, was bound, upon his death, to come in and be admitted. But, 2dly, That at any rate she was fo bound by the custom, which was a good one. 1. The admittance of tenant for life is so far only the admittance of those in remainder as to veft their eftate; but not fo as to prejudice the lord in refpect of his fine on admiffion. The ftatute of limitations, however comprehenfive the terms of it, and binding on copyholders, extends not to bar the lord of his fine (a). So the ftat. 16 R. 2. c. 5. which made it a forfeiture of land generally to purchase bulls of the pope, does not attach on copyholds, The rule for these expofitions is given in Bacon's Abridgement (c), that where an act of parliament by general words alters any eftate, interest, tenure, cuftom, or fervice of a manor, or does any thing in prejudice either to lord or tenant, it shall not extend to copyhold eftates; but otherwife where the act is made for the public good, and no prejudice accrues to the lord or tenant. So neither shall the general rule of law, that the admittance of the tenant for life is the admittance of all in remainder, extend to deprive the lord of his fine due on the admiffion of each individual tenant. But as the fine is only due to the lord on the ad miffion of the tenant, if the remainder-man were not bound to come in and be admitted on the death of the tenant for life, the lord would be deprived of his fine. Lord Coke (d) therefore [ 525] because that would prejudice the lord; (b). (a) Vide 1 Bac. Abr. 711. in margine. I (c) 1 Vol. 711. (b) Co. Copyh. 149. (d) Co. Copyh. 157. S. 56. Ld. Coke concludes in the fame manner as to an heir. (.41. p. 115.) "that an admittance is principally for the benefit of the lord to entitle him to his fine, and not much neceffary for the ftrengthening of the heir's title." lays lays down the general rule with this limitation, that "if a copyhold be furrendered for life, remainder to a ftranger; though 1804. DoE d. WHITBREAD againft JENNEY. the admittance of tenant for life be fufficient to inveft the eftate in him in remainder, yet upon the death of tenant for life, he in remainder fhall be admitted, and pay a fine." And this is confirmed. by Lord C. B. Gilbert, in his book on Tenures, 194; and indeed it would be incongruous that where the first taker takes for life only, the next taker on his death should not be admitted and pay his fine, when he would be bound to do so if the first taker had taken in fee. The cafes agree in this diftinétion; for in Auncelm v. Auncelm (a) the question being only as to the title between two contending tenants, the admittance of tenant for life [526] was holden to be the admittance of him in remainder. But in the Earl of Bath v. Abney (b), which was a cafe between lord and tenant, it was determined that the executor of a termor was bound to be admitted, and that the lord was entitled to a fine upon fuch admittance. The question there was, Whether a fine were due on every change of tenant, or only on every change of eftate? and it was confidered that on every change of tenancy the fucceeding tenant was compellable to be admitted, though claiming under the fame title as the antecedent one, because a fine was due to the lord on every fuch change, and to entitle him to it, it was neceffary that the tenant fhould be admitted. 2dly. At all events the custom found is obligatory upon the defendant to come in and be admitted. Cuftom is the foul and effence of a copyhold, and determines the law of it. There is nothing unreasonable in the cuftom, nor inconfiftent with the nature of the eftate granted. Till admittance the tenant was not entitled to the lord's protection; and it is a reafonable confideration for it that he has thereby a certain place for afforing his title. And if the lord be entitled to his fine in respect of the premises, it is reasonable that he fhould have the means of enforcing the payment of it by a feizure of the premifes quoufque the tenant comes in and is admitted. In many inftances the lord cannot tell who is the next in remainder till he comes in. Beft, contrà, after obferving that this was more a question between the tenant and the steward, than between the lord and tenant; for that the latter did not decline her fealty, but had of fered it, and only objected to paying a fine as for a new admif- [ 527 ] (a) Cro. Fac. 31. (3) 1 Burr. 206. fion, 1 804. DOE d. WHITBREAD against JENNEY. Gon, when the confidered that the was already admitted tenant upon the rolls the manor contended, ift, That by the general law of copyholds, the due rule of which was to be collected from Brown's cafe (a), and from Barnes v. Corke (b), the admittance of a tenant for life is the admittance of him in remainder, though by fpecial custom two fines may be due. That confequently, if the tenant were already admitted, this ejectment cannot be maintained; but the lord has another remedy for his fine. The paffage therefore ated from Lord Coke's Copyholder requiring the admiffion of high in remainder ftands alone, and has no authority cited in fupport of it (c). And the cafe cited of Auncelm v. Auncelm,(d) is exprefs that the admittance of the tenant for life is the admittance of him in remainder without any other admittance. But at any rate a new admittance can only be neceffar, if at all, in cafes where the re mainder is to man's right heir, or in the like cafes where he who is to take next was not before defignated upon the lord's roll, and where confequently the lord cannot tell who his tenant is from whom he is to have fuit and fervice, until he has come in and been admitted by name. Such was the cafe of the Earl of Bath v. Abney (e) where the furviving trustee, who was named as tenant, being dead, the lord had no tenant on whom he could [ 528] call till the admittance of the executor of the last tenant, whose name was then for the fift time put upon the roll. Then, 2dly, (a) 4 Rep. 23. a. and vide Gyppen v. Bunney, Cro. Elix. 504. (c) Vid. Co. Copyh. Supplement, p. 28. f. 7. cites Dell v. Higden, Moor, 358. which goes to fhew, that without a cuftom the lord is not entitled to a new fine from the remainder-man: though Lord Coke says it is otherwise of him in reverfion. And then according to the cafe of Tipping v. Bunning, Moor, 465. which was afterwards referred to by the Court, where the lord is to have a fine, there must be a new admittance. |