"We think, therefore, that judgment must be entered for the defendants.

"Judgment for the defendants."

Doe d. Cawthorn v. Mee.

[B. R. Easter Term, 1833.] (a).

At the trial of the cause it was objected on the part of the defendant, that copies of the entries upon the court rolls of a surrender made out of court, and the subsequent presentment of and admittance under the surrender, examined and stamped, were not evidence, even assuming that a copy of a surrender in court was so. On the motion to enter a non-suit, made by leave reserved, the objection taken at the trial was re-urged, especially as to the non-production of the original surrender, for that if the surrender could be proved without production of the original, a title might be established without showing any stamped document, and so the revenue might be defrauded. The stamp act 48 Geo. III. c. 149 (§. 32 & 33) was cited. And reliance was put on 2 Watk. p. 38, n. [4th edit.,] that "copies of court roll are but secondary evidence of the copyholder's title," and that " in ejectment the rolls themselves must be produced." Littledale, J. said there would be great inconvenience in requiring the production of the original rolls. And Patteson, J. asked if there were any authority for such a proposition, and referred to Bull. N. P. 247, as contrà.

LITTLEDALE, J. "I think the statute makes no difference as to the admissibility of the evidence. The object of the clauses which "have been cited was to establish a mode of getting at the payment "of revenue in the case of transfers of copyhold, since it was not

practicable to regulate the ad valorem duty on conveyances of this, "in the same way as of other kinds of property; but there was no "intention to vary the rules of evidence. There is no doubt that copies of the court rolls are admissible in all cases.” PARKE and PATTESON, Js. concurred.-Rule refused.

(a) 4 Barn. & Adolp. 617. S.C. (Hawthorn v. Mee,) 3 Nev. & Mann. 424.

Note. By the custom of the manor (Kettering) a surrender may be taken

out of court by one of two persons styled deciners, and it is presented by the deciners at the following court, inrolled and left with the steward.

King v. Turner (a).

[In Canc. May 22, 1833.]

The following is a copy of the report of Lord Chancellor Brougham's judgment upon the appeal against the Vice Chancellor's decision (b).

THE LORD CHANCELLOR.

There is some difficulty in discovering how a question could ever have been raised upon this point, considering that the principles are clear, and the course of decisions, as well as the dicta, have been uniform regarding those principles. As against all the world, but the lord, the copyhold heir has a good title without admittance; and upon this ground the Court of King's Bench used, until very lately, to go so far as to refuse a mandamus to admit him, considering it to be unnecessary: The King v. Rennett. (2 T. R. 197.) That the heir before admittance can surrender to a purchaser so as he does not thereby prejudice the lord of his fine, and that he is tenant by copy of court roll, his ancestor's copy belonging to him, is incontestable. It is, in fact, the third resolution in Brown's case (4 Co. 22 b). The distinction between heir and purchaser is plain; and it is recognized in all the cases; the law casting the possession of the ancestor upon the heir, while the purchaser before admittance has nothing. Thus in Wilson v. Weddell, (Yelv. 144.,) it is said to have been adjudged in Alderman Dixie's case "that the heir may surrender before admittance; and well, because in by course of law; for the custom which makes him heir to the estate casts the possession upon him from his ancestor." But in Doe v. Tofield, (11 East 246.,) a case twice argued and in which all the bearings of the subject were thoroughly considered and fully gone into by the court, that distinction is throughout taken; it is reasoned upon, made the ground of decision, and used as the means of reconciling cases apparently in conflict. Thus their lordships say, Colchin v. Colchin, (Cro. Eliz. 662.,) was the case of an heir who surrendered before admittance, not of a surrenderee; and all the authorities agree that an heir is in before admittance and may surrender." Doe v. Tofield itself was the case of a surrenderee having

(a) Vide 2 Simons, 545. See also ante, pt. 1. p. 331.

() 1 Mylne & Keene, 460.

surrendered out of court to the use of his will; and the surrender was held void on the express ground that the case of the surrenderee differs from that of the heir.

There is, therefore, no reason whatever for holding that any law was laid down for the first time, or any new view taken of legal principles, in Right v. Banks (3 Barn. & Adolp. 664). That case was determined, after much consideration, by the court of King's Bench during the interval between the decision of the present question below, and the argument upon the appeal. That consideration was the more careful on account of certain dicta both in this court and the courts of law, which, when carefully examined, will be found not at all to affect the principles upon which the point seems clearly to be settled, but which appear to have raised the doubt that has given rise to the present question. Smith v. Triggs, (1 Str. 487,) is the case to which this doubt may be mainly traced. But there is in that case nothing like a decision upon the question. The court there said "that the defendant had no title in him for want of an admittance of the devisor, and also for want of a surrender to the use of her will." But the latter defect was quite sufficient before the late statute; and, whether Jane Day were admitted or not, was quite immaterial; and whether admittance was necessary or not, was equally immaterial, if she had never surrendered to the use of her will. I think we may easily understand how the few words "for want of an admittance,” on which the doubt rests, found their way into the resolution. The devisor was both devisee and heir at law of her mother; and, indeed, the question in the cause, and the only one determined, was, whether she took by purchase or descent: and before disposing of that question, and therefore before ascertaining the character in which she took, the observation occurs respecting her not having been admitted, which would have been material had she been a devisee merely; for then it is allowed on all hands that she could have passed no estate by her will before admittance. All therefore, that the court meant may have been that, quâcunque viâ datâ, whether she was in of her higher or of her inferior title, the devise by her was ineffectual; if of her higher, because there was no surrender; if of her lower, because there was neither admittance nor surrender. Then it is to be considered, that this part of the resolution, if, indeed, it is to be regarded as part of the resolution, is wholly immaterial to the question, both because the want of surrender makes the want of admittance of no consequence whatever, and because the lessor of the plaintiff is

defeated by the failure of his own title, after it is allowed that the defendant's is good for nothing. In truth the whole question turns upon the plaintiff's title; and he being heir ex parte paterná, was held to have no right to succeed to Jane Day (the devisor) if she took as heir to her mother, the first purchaser. And accordingly, in another report of the case, (8 Mod. 23,) the point of the two wills is alone mentioned, and no allusion whatever is made to the observation. upon admittance so much commented on.

That observation, however, was made the ground of another, as little essential to the decision of the question before the court, in Wainewright v. Elwell (1 Mad. 632.)—That was the case of a devise by the devisee of a copyhold, and not by the heir; and it was decided most correctly, according to all the principles and all the authorities. But the dictum, proceeding upon the dictum in Smith v. Triggs, was wholly beside the question; and it must be observed, that the reference to Smith v. Triggs, in 1 Mad. p. 636, is not accurate, any more than the reference to the case then before the court in the same passage, the expression "the will in favour of Eliz. Elwell" having no intelligible meaning, so that there may be some error in the report; and this may possibly be classed among those obiter dicta of which Lord C. J. Willes says, in Ellis v. Smith, (1 Ves. jun. 13,) that he had frequently found them to be nunquam dicta.

The only other dictum (for it is no more) which could raise this doubt is that in The King v. Brewers' Company, (3 Barn. & Cress. 172,) and to which I observe no reference is made by the Court of King's Bench in deciding Right v. Banks, although, unquestionably, it is just as strong as any of the observations in the Court of Chancery to which the judgment of the King's Bench refers. The practice of refusing a mandamus to admit the heir at law, which the court had always acted upon, and distinctly recognized in The King v. Rennett, was here departed from, and apparently on good grounds; and the next case, The King v. Bonsall, (3 Barn. & Cress. 173,) shows that the court considered itself to have thus overruled The King v. Rennett. But in overruling that case, the ground on which it rested is left unshaken, viz. that the heir before admittance has a good title against all but the lord, indeed, that is quite uncontested; and the court goes upon this other view, which seems also perfectly sound, that the heir may wish to be a complete copyholder, which, till admittance, he is not; and in giving examples of those things which he may wish to be enabled to do, such as being put on the homage, and named for

manor offices, the court, or the reporter, inadvertently adds "to surrender to the use of his will," which, by all the cases, he plainly could do, whether admitted or not.

From those dicta, more or less irrelevant to the subject of the particular decisions, some question had arisen, and that is now set at rest by the discussion which the matter underwent in Right v. Banks. I am not of opinion that the decision below in this case could have been sustained, even if Right v. Banks had not since occurred. It rests only upon the dicta to which I have adverted; and although the strongest, because the one least gratuitous, and most bearing upon the matter in hand, is also the most recent, I mean the reason given (if, indeed, it was given) for the mandamus against the Brewers' Company, yet that case seems also to have been much less considered than the others.

The decision of the Vice-Chancellor, therefore, so far as it impeaches the validity of the devise by the copyhold heir, must be over-ruled.

Doe d. Roberts & others, v. Whitaker (a).

[B. R. Tr. Term, 1833.]

The judgment given in this case has not yet been reported, but by the kind aid which has been afforded to me by Mr. Barnewall throughout the publication of this work, I am enabled to state that the judgment was as follows:

The question to be considered is, whether the verdict can be sustained in the last count of the declaration, which is on the demise of William Henry Leach and James Whalley Wickham, who were admitted as customary tenants of the premises in question on the 2d May, 1825.

Several objections, in the whole four in number, were made to their title, but three of these have been abandoned.

The 4th objection resolves itself into four branches.

1st. That the grant of the 2nd of May 1825 was void.

First, because it was made on the surrender of John Francis, the surviving life in the copy of the 15th of October 1812, and the grantee in reversion, and it was not shown that John Francis was admitted

(a) Ante, pt. 1. p. 125, n. (b).