lessors of the plaintiff had offered themselves to receive a grant, and the lord had made and signed a grant, and admitted them, and had delivered seisin by the rod; the question is, whether all this machinery of a void court, would have invalidated the grant, or whether it would have been made surplusage, and the grant and seisin remain valid, and we are of opinion that, as there are effectual words of grant, and an actual seisin delivered, all this statement about the court is only to be considered as surplusage, and that the grant and seisin would be effectual. Thus therefore it would be if the lord himself had made the grant. But the grant itself or admittance not being made by the lord in person, it is necessary to consider, whether it was made by an authorised person. And the first question upon that is, whether the steward of a manor can admit out of the manor: It should seem that he may take a surrender out of the manor, Howsego v. Wild, (1 Roll Abr. 500.) And so it would appear by Dudfeild v. Andrews, (1 Salk. 184.) It is so taken in Tukeley v. Hawkins, (1 Lord Raym. 76); and the court say that a custom to the contrary would be void. That is perhaps going a good way, for in Dudfeild v. Andrews it is only by reasoning and queries that it is thought proper the steward should have such a power. But as to an admittance out of the manor Tukeley v. Hawkins, (1 Lord Raym. 76.) is express that the steward cannot admit out of the manor. And the fourth resolution in Melwich's case (4 Co. 26 b.), and Clifton v. Molineux, (4 Co. 27. a.) are to the same effect, though in these cases it is said that the steward cannot admit at a court held out of the manor. Watkins in his treatise on copyholds, vol. 1. p. 253, seems to incline to the opinion, that a steward may admit out of a manor, but it is only by putting queries and reasoning, that he supports that opinion. But we are of opinion that a steward cannot, in his mere character of steward, admit out of the manor. But in the present case, Leake, who made the grant, derived his authority from the deed of the 25th of September, 1823, by which the lessees of the lord of the manor appoint him steward of the manor, and, besides giving him the usual powers and authorities to hold courts, and to do all acts usual and customary to be done by stewards, they more especially authorised and empowered him from time to time to make any voluntary grant or grants of all or any customary or copyhold lands or tenements within or holden or parcel of the said manor, and to give a license or licenses to demise or otherwise, as he the said Charles Leake should think fit, and either in or out of court, as fully as they might or could do. And though, from

powers con

one part of the instrument, it seems doubtful whether the ferred upon him are not merely an enlarged explanation of what his duties are as mere steward, yet upon the whole of the instrument we think it amounts to putting Leake in the capacity of attorney to represent the lord as to surrenders, grants and admittances, and that, whatever the lord might do, Leake might do also, and that he therefore might take the surrender, and make the grant in question off the manor. But it may be said that Leake, in the document, does not profess to act as the general attorney of the lord, but only as steward, and that as steward alone he could not make the grant; but as to that he had the authority, and as, in common parlance, he would be called steward, who is generally taken to represent the lord as to copyhold matters, we think the calling himself steward is sufficient, and that it was not necessary to say that he acted as the general attorney of the lord.

But besides making the grant or admittance, and delivery of seisin, it is necessary, in order to make the person tenant by copy of court roll, that the admission should be notified for the information of the tenants at the next court, or some other court, according as the custom of the manor may be, and an entry of it should be made, either by a certificate of the lord, or the steward, or presentment by the homage. None of these have been done, but then the proceedings at this supposed court are entered by the steward in the court rolls, as if done at a court, and therefore at the following court after the admittance, the tenants have information of what has been done through an incorrect medium, but we think it sufficient (a).

An objection may be made that nothing done at this supposed court, should be allowed to have any effect, as it has a tendency to create a custom to hold a court out of the manor, but if such were adopted again, it is probable the tenants would object to it: this supposed court could be no evidence of such a custom, because if the court rolls were pro

(a) It is observable that it was urged on the part of the defendant in support of the rule for entering a nonsuit, that even if the grant could be sustained as an act done out of court, yet that the plaintiff had no legal title for want of the production at the trial of an instrument of grant, and evidence of the presentment and inrolment of such a grant

at a court legally holden, so as to constitute the grantee tenant by copy of court roll, and the defendant's counsel, as to this point, drew the attention of the court to the fact, that no court had been held, subsequently to that which was considered to be a void court, not having been held within the precincts of the manor.

duced, it would appear that the court was held within the manor: Besides if it had a tendency to introduce such a custom, we do not think that it could affect the validity of the admittance, if it were otherwise sufficient.

Upon the whole of this case, though this irregular proceeding has brought the parties into considerable difficulties, we think they may be got over, and that the lessors of the plaintiff in the last count of the declaration are entitled to judgment.

The King v. Lady Jane St. John Mildmay (a).

[B. R. Trinity Term, 1833.]

Dampier, in support of the mandamus, contended that the lord cannot take advantage of a forfeiture between the surrender and an admittance, and relied on the rule, that if a copyholder surrender to the use of his will, and die without heirs, the lord is bound to admit the appointee under the will; and that the argument which would be urged that the doctrine of relation applied only as between the parties, or those claiming under them, (Holdfast & Clapham, 1 T. R. 630,) was not tenable; and that the authority of Roe & Hicks, (2 Wils. 13.) (b), in favour of the argument that, as the lord is not benefited by the surrenderee's escheat, he must be benefited by the surrenderor's, else he would have no forfeiting tenant, received a sufficient answer in the observations of the Master of the Rolls in Burgess & Wheate, (1 W. Bl. 144); and that the reciprocity was not to have a forfeiting tenant, but a tenant to do the service. He further urged that the case of Pawlett v. The Attorney General (Hardr. 465.) merely showed that the surrenderor or mortgagor might redeem against the lord, who takes on escheat of the admitted surrenderee, but that it proved also that, where a perfect tenant forfeits, the lord shall not retain (c).

(a) 5 Barn. & Adolp. 254. Ante, pt. 1. pp. 482-3 (n). And see the report of this case, 2 Nev. & Mann. 776.

(b) The question in that case arose on a surrender to will, and a devise by the surrenderor to one who was convicted of felony and hanged, not having been admitted, and it was held that the

And that the surrenderor,

lands were not forfeited to the lord, but descended to the heir of the surrenderor. (c) It may be a question whether an unadmitted mortgagee would not be allowed in a court of equity to enforce his inrolled security, as against the lord by escheat or forfeiture.

after surrender, continued tenant merely for preservation of the tenancy, and not to cause escheat. (Co. Lit. 62 a. 4 Co. 23 a. Co. Cop. § 39.) And he referred in support of his argument to the case of a surrender by one of two joint-tenants to the use of his will, and a devise by him to a stranger, and the presentment of such surrender after the death of the surrenderor, in which case the devisce ought to be admitted to the moiety the state of the land being by relation bound by the surrender,' (Co. Lit. 59 b.,) and to several other instances of relation in a note to Grantham v. Copley (2 Saund. 422 c. n. 2); and to the decision that a surrenderee may lay his demise in ejectment on any day between the surrender and his admittance (Holdfast & Clapham, 1 T. R. 600); and to the observation of Holroyd J. in Rex v. Boughey, (1 Barn. and Cress. 573,) that 'until admittance the estate is not completely taken out of the surrenderor.' And he relied also, in the absence of precedents as to copyholds, on analogous cases as to freeholds, and more particularly on the rule, that a devise, though it takes effect after the testator's death, will prevent an escheat (Co. Lit. 236 a. n. (1), 3 Cru. Dig. 456.) And that a sale under a power given by will to executors will revent an escheat (Goodcheap's case, 49 E.3. 16. Bro. Abr. Devise pl. 10.) And also that possibilities and contingencies bind freehold estates in the hands of the lord claiming by escheat (Nichols v. Nichols, Plow. 481, 486-7. Co. Lit. 218 a).

P. Williams, contrà, relied principally on the argument that the doctrine of relation applies only as between the parties to the surrender, and that the surrenderor continues tenant until admission of the surrenderee, according to numerous authorities, (Berry v. Greene, Cro. Eliz. 349. Fitch v. Hockley, Ib. 442. 4 Co. 23 a. Smith v. Triggs, Str. 487. Barker v. Denham, Sty. 145. Vin. Abr. Cop. B. b. 5. P. a. 2. Sho. 87. Fisher v. Wigg, 1 P. W. 17. Gilb. Ten. 273. Roe & Hicks, 2 Wils. 13. Com. Dig. Cop. G. 3. Ib. F. 14. Kenebel v. Scrafton, 8 Ves. 30. Hurst v. Morgan, Serjt. Hill's MS. George d. Thornbury v. Jew, Amb. 628-9. Doe & Wroot, 5 East 132.) He further relied on the observation of Lord Macclesfield in Peachy v. The Duke of Somerset, 1 Sho. 451, [454,] that "the lord must always have such a tenant upon his lands as may be sufficient to answer all demands, and capable of committing forfeitures "; and urged that the lord is expressly excepted in the dictum of Ashhurst J. in Holdfast v. Clapham, 1 T. R. 600.

Dampier, in reply, insisted that by a surrender the surrenderor's estate at will passes to the surrenderee, and that he has a new resulting estate

at will till the admittance, which vanishes upon the admittance. And that if the surrender and admittance be two conveyances, then the first has taken the estate from the surrenderee, and if one conveyance, then there must be relation, else there will be a division of what is one and entire.

Littledale J., delivered the judgment of the court, and, after stating the mandamus and return, his lordship proceeded as follows: the question is, whether if a copyhold tenant surrender his estate to the use of another, and afterwards commits and is convicted of felony before admittance of the surrenderee, the estate is by the custom forfeited to the lord?

The case was argued before us very elaborately, and all the authorities were fully entered into. The court did not at the time feel greatly pressed by the weight of those authorities; but as they were numerous, and the argument was chiefly from analogy, we wished to look into them. After a careful examination of them, we are of opinion that the estate is by the custom forfeited to the lord, and that a peremptory mandamus ought not to issue. It is conceded that as between the surrenderor and surrenderee, the latter cannot be prejudiced by any act done by the former subsequent to the surrender, but is intitled to be admitted to the estate free from all mesne incumbrances. It is conceded also, that the surrenderor, until the admittance of the surrenderee, continues tenant to the lord for all purposes of service. The estate, therefore, does not by the surrender vest in the lord. It is conceded also, that the surrenderee before admittance takes nothing, but that on admittance he is in by relation from the time of the surrender, as between him and the surrenderor, yet he has not been tenant in the mean time; for it is distinctly held, in Roe d. Jefferies v. Hicks, (2 Wils. 13,) that if he be attainted in the meantime, the lord will not take by forfeiture.

If then, no act of the surrenderee before admittance will work a forfeiture, and if it were held that the surrenderor after surrender, although he be tenant, cannot by any act of his work a forfeiture, it follow that a considerable time might elapse, during which the lord's right of escheat is suspended, and that not by any act of his own, but by the acts of others, which he cannot prevent; for he can neither refuse to accept a surrender, nor compel a surrenderee to come in and be admitted. We do not find any authority for such a proposition. On the contrary, it is laid down by Lord Chancellor Macclesfield, in Peachy v. Duke of Somerset, (1 Str. 454,) that the lord must always