1804. ROE d. CONOLLY against VERNON and VYSE. [63] &c., and with such privileges, &c. as in the said decree limited and appointed; saving to all persons (other than the King and his successors) all such estates, rights and titles as they had in the premisses, as if that act had not been made. This decree was recorded on the court rolls of the manor of Wakefield on the 29th of July, 9th Jac. 1. The coal mines and the minerals under the customary tenements of the said inanor, and the timber growing thereon, do not belong to the lord, but to the customary tenants of the customary tenements for the time being; who when seised of their customary tenements for any estate of inheritance, are entitled to get the coals and minerals under the same, and the timber thereon. The lessor of the plaintiff has received one-third of the rents and profits of the customary premisses in dispute for one year since November 1801, and never took the name of Wentworth; and the defendants are in possession of the two other third parts of the same premisses. It was agreed, that this case should be turned into a special verdict at the request of either party, or of the court. The questions for the opinion of the Court were, Whether the lessor of the plaintiff were entitled to the whole of the said customary tenements, with the appurtenances first above mentioned, compounded and uncompounded, or to the compounded only, and to all of the said moiety of such of the customary tenements secondly above mentioned as were compounded, and to the whole of the said customary tenements, with the appurtenances, which the said Thomas Earl of Strafford purchased as aforesaid, compounded and uncompounded, or to the compounded only, or any and which of them? If the lessor of the plaintiff were entitled, then the verdict was to stand: if he were not, then the verdict was to be entered for the defendant. Holroyd, for the lessor of the plaintiff, made two questions ; 1st, As to the effect of the surrender of Thomas Earl of Straf ford, of the 10th of April 1732, to the use of his will, whether it extended to surrender his uncompounded, as well as his compounded customary tenements? 2d, As to the effect of his will, whether the customary tenements included in the surrender passed by his will to his eldest daughter Lady Anne, and her first and other sons in tail (under which deacription the lessor of the plaintiff claims) under the devise of all 1801. RoR d. CONOLLY against VERNON and VYSE. [64] all his freehold manors, &c. considering such customary tenements as customary freeholds; or if not under that description, whether they did not pass to her and her first and other sons, by implication, from the whole will taken together? or whether such customary tenements, being copyhold, passed by the residuary devise to the testator's three daughters, the Ladies Anne, Lucy, and Harriot (under the two last of whom the defendants claim)? 1st, The surrender Construction to the use of the will of Thomas Earl of Strafford, is of all the of surrender. j tenements, &c. holden of the lord of the manor of Wakefield by copy of court roll, "being of the yearly rent to the lord in the whole of 41. 10s. 84d. and compounded for," which latter is a false allegation; for the rent of the old compounded tenements, which were holden by his father, amounted only to 17. 5s.; and the rent of the whole, compounded and uncompounded together, amounted but to 4l. 14s. 6d. of which Is. 9d. was for the rents of the lands purchased by the surrenderor himself, which were compounded. The amount, therefore, of the rents mentioned in the surrender does not agree with any description of property of this kind which he. possessed; but it comes much nearer to the amount of the whole of the rents, both compounded and uncompounded, than to the compounded alone; and therefore the latter words, "and compounded for," are clearly inserted by mistake: it is a false allegation, inapplicable to the state of the surren deror's property, and not intended as a description of the kind of property meant to be surrendered. Then the prior description of the tenements meant to be surrendered, viz. "all and singular the messuages, &c. which the said earl "now holds of the lord of the said manor of Wakefield, by "copy of court-roll, in whose tenures or occupations soever "the same now are," is plain and ample enough to include the uncompounded as well as the compounded tenements: and as the amount of the rents mentioned agrees very nearly with the whole as described in the surrender, and the trifling mistake in the computation would not of itself vitiate or narrow the surrender as for the whole, supposing the words "and compounded for" were not added, these words may be rejected as a false allegation concerning that which was before described generally with sufficient certainty; and then the surrender will include the uncompounded as well as comVOL. V. pounded " E 1804. RoE d. CONOLLY against VERNON and pounded lands. In Blague v. Gold (a) a devise of a house, called "the Corner House," was holden a sufficient description to pass the house so named, though it was further stated to be in the tenure of A. and B., when, in fact, it was in VYSE. the tenure of A. only; the adjoining house being in the tenure of B. So a foeffment, by deed, of a man's messuage late of B. C. in D. will operate, though he had, in fact, lately purchased it of T. C. Windham v. Windham (b). And again, in the case of The Vicars Choral of Litchfield v. Ayres (c),a giant of certain tithes, &c. and all other tithes appertaining to a certain rectory, was holden not to be vitiated by a false allegation that they were all lately in the tenure of M. P., when only part of them were. Secondly, The customary tenements included in the surrender, passed to Lady Anne, under the description of all the testator's "said manors, messuages, lands, &c. in the county of York, &c. Supposing the word said to refer to the description before used, of "all his freehold manors," &c. that will depend on the nature of these customary estates, which were ancient demesne, and most usually customary freeholds. The nines and timber belong to the tenants, and not to the lord; which shews, that in the earliest times they were estates of inheritance, and not merely estates of a freehold nature only. The holdings are not at the will of the lord, which is the distinctive mark of copyhold, or base tenure, but according to the custom of the manor. The language, then, of the lord or his steward calling them copyholds, cannot make them so. Lord Coke (Copyk. s. 32.) speaking of common copyholders, "Neither was their estate hereditary in the beginning, as appeareth by Britton; for if they died, their estate "was presently determined, as in case of a tenant at will at "common law. And in some points, to this present hour, "the law regardeth them no more than a mere tenant at "will; for the freehold at the common law resteth not in "them, but in their lords, unless it be in copyholds of frank"tenure, which are most usual in ancient demesne (d)," &c. "These kinds of copyholders have the frank-tenure in them, [ 66 ] says, 66 (1) Cro. Car. 447 and 473. (c) W. Jones, 435. (b) Dy. 376. b. (4) This passage is quoted by the Court in giving judgment in Burrell v. Dodd, 3 Bus, & Pal. 382. and " and it is not in their lords, as in the case of copyholders in "base tenure." So in Co. Lit. 49, a, and 59, b, it is said that, by custom, a freehold and inheritance may pass by surrender, without livery: and note 6 to the former passage in Mr. Hargrave's edition gives some instances, as that of Lydford Castle in Devon (a); and adds, that in consequence of this kind of custom the estates subject to it have been called customary freeholds. And where an estate is granted by copy to hold, according to the custom of the manor, omitting the words ad voluntatem domini, it shall be intended to be a freehold. Hughs v. Harrys (b): and those words are the distinguishing mark of copyhold: Hill v. Bolton (c). And if they are omitted, the land nust be taken to be freehold, Rogers v. Bradley (d). So by Holt, C. J. (e), "Where a custom is that all lands holden of that manor shall pass by "surrender and admittance, yet the lands may be freehold," &c. And in Gale v. Noble (f), it was directly adjudged that these customary estates, holden "according to the cus"tom of the manor, and not at the will of the lord," were not copyholds, but customary freeholds; though it appeared there that the tenants had constantly taken their estates to be copyhold. The same distinction is taken in Hussey v. Grills (g), and Crowther v. Oldfield (h); which last, it ap pears from the report in Lutwiche, was a case arising out of this very manor of Wakefield; but there the estate which was declared to be holden by copy of court roll, according to the custom of the manor, was intended after verdict to be also holden "at the will of the lord," to entitle the party to his common claimed by the customary tenants within the manor. Then there is nothing inconsistent with these being customary freeholds in the information and decree in the time of James 1st, or the statute founded thereon. The objects of the information were two; 1st, To get rid of the certainty of the fines; 2d, To set aside certain intrusions on the waste. The information alleges that the tenements were copyholds" at the will of the lord," according to the custom of the manor. But though the answer by the tenants 1804. RoEd. CONOLLY against VERNON &nd VYSE. [67] 1801. confesses the land to be copyhold," according to the custom of the manor," yet from what is stated, it appears that they were customary freehold; and the prayer of the defendants is, that the lands might be declared to be " demised and de"miseable by copy of court roll, according to the custom of "the manor, upon such rents, and for such fines, &c. as "before mentioned to be paid," &c.; and the decree, which confirms them to be copyholds, declares them at the same time to remain "denised and demiseable in fee simple, &c. "or otherwise by copy of court roll, according to, the custom "of the manor, at the old rents;" omitting "at the will of "the lord:" which shews that they were not copyholds in the legal sense, but customary freeholds. The decree, then, did not alter the old tenure, but left it as it was before. The object of the statute was merely to carry the decree into effect: and it contains, besides, a saving of the rights of all persons, other than the King and his successors. The terms of admittance, stating the lands to "be holden of the lord by "copy of court roll" generally, cannot vary the nature of the estate; for those are merely the words of the lord and bis steward; nor can the reputation of their being copyholds, and being so called, alter the legal tenure. The question then is, Whether, if the tenements be customary eeholds, they passed to Lady Anne and her descendants, under the words of the will A devise, or lease of all a person's lands, will pass customary copyhold as well as freehold. lands; as in Acherly v. Vernon (a). But in Haslewood v. Pope (b), where there was a devise of all a man's lands in trust to pay debts, &c. and the devisor had freehold and copyhold; held the former only would pass, unless he had surrendered his copyhold to the use of his will; which shewed, an intention to pass both. And Tendril v. Smith (c) is also express to that purpose. In the same manner, where there is a general devise of freehold lands, all fieeholds will pass, whether customary, or at common law. Besides which, in this case the introductory words shew that the devisor meant to pass the whole of his property; for he says, "as to the (6) 9 Mod. 68. to Mod. 518 529. and Comyn. Rep. 381. 322. ice also Goodwyn r. Goodwyn, 1 Ves. 226. worldly |