any intermediate remainders, to suffer a recovery) to E, and directs that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when

levied, or recovery when suffered, shall enure to the uses so speci[364] fied, and no other. For though E, the cognizee or recoveror, hath

a fee-simple vested in himself by the fine or recovery; yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the use of B, C, and D, in successive order: which use is executed immediately, by force of the statute of uses. (k) Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered in consequence of a deed directing its operation to those particular uses. For by statute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds 29 Car. II. c. 3. to the contrary.

k This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement in the Appendix. No 11. § 2. we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reverSion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, viz. to Abraham and Cecilia Barker till the marriage of John Barker with Katherine Edwards, and then to John Barker for life; remainder to trustees to preserve the contingent remainders; remainder to his wife Katherine for life, for her jointure; remainder to other trustees, for a term of five hundred years: remainder to the first and other sons of the marriage in tail; remainder to the daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now it is necessary, in order to bar the estate-tail of John Barker, and the remainders expectant thereon, that a recovery be suffered of the premises; and it is thought proper (for though usual it is by no means necessary: see Forrester, 167.) that in order to make a good tenant of the freehold or tenant to the praecipe, during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker, and that the recovery itself be suffered against this tenant to the praecipe, who shall vouch John Barker, and thereby bar his estate-tail, and become tenant to the fee-simple by virtue of such recovery; the uses of which estate so acquired are to be those expressed in this deed. Accordingly the parties covenant to do these several acts (see pag viii.); and in consequence thereof the fine and recovery are had and suffered (N° IV. and N°`V.) of which this conveyance is a deed to lead the uses.

(27) The preamble to 39 & 40 Geo. III. c. 56. states, that it was the practice of courts of equity, in cases in which money, under the control of such courts, was subject to be laid out in the purchase of lands to be limited to uses capable of being barred by a fine, to direct the money to be paid to the person who could bar the uses by levying a fine, without requiring the actual investment of the money in the purchase of lands; but in cases where a fine would not bar the uses, and it was necessary to suffer a recovery to bar the interests in remainder, it was the prac tice to require an actual investment of the money in lands, which practice was attended with great expense and inconvenience, and did not materially promote the interests of the parties in remainder: it therefore enacts, that upon the petition of such persons who could, by a recovery or any other mode, bar the estates-tail, and all the interests in remainder, if the money were invested in freehold or copyhold hereditaments, the petitioners being adult, and if femes-covert being duly examined and consenting, a court of equity may order the money to be paid, and applied in such manner as the petitioners shall appoint and the court approve.

Lord chancellor Loughborough consulted the chief justices and the master of the rolls, how this act ought to be executed; and they agreed that it would be proper not to order the money to be paid out of the court, until such time as the tenant in tail might actually have suffered a common recovery of the land; and in consequence a direction is added to the order in such cases, that it shall have no effect unless the tenant in tail shall be living on the second day of the next term. 5 Ves. Jun. 12. 6 Ibid. 116.

But the court will make no order, unless the right of the petitioners is clear and indisputable. 6 Ves. Jun. 156. Christian.

CHAP. XXII.

OF ALIENATION BY SPECIAL CUSTOM.'

We are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title;being confined to copyhold lands, and such customary estates as are holden in ancient demesne, or in manors of a similar 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 seigniory, it is therefore a forfeiture of a copyhold.:(a) Nor are they transferrable 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 surrender; though in some manors, by special custom, recoveries may be suffered of copyholds : (6) but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender, and their con

sequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his own will; and the like. The process, in most manors, is, that the tenant comes to the steward, either in court (or if the [366] custom permits, out of court), 3 or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate ;* in trust to be again granted out by the lord, to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of

(1) See in general, Com Dig.; Bac. Ab.; Vin. Ab. Copyhold; Cru. Dig. index, Copyhold; 1 Prest. on Conv. index, Copyhold; Watkins on Copyhold; and Scriven on Copyhold; 2 Saund. index, tit. Copyhold, and tit. Surrenders; and 1 Thomas Co. Lit. 653 to 676.

(2) Or an attorney appointed by him. By the 47 Geo. III. sess. 2. c. 8. every person may ap. point an attorney, for the purpose of surrendering copyhold lands, or (by 59 Geo. III. c. 80.) lands held in ancient demesne, of which common recoveries are to be suffered, and such recoveries shall be as valid and have the like effect (but no other), as if the party had appeared in person.

(3) The surrender may be taken either by the lord or his steward, not only out of court, but out of the manor, for it may be convenient, but can be prejudicial to no one. 1 Salk. 184 "A custom that the steward shall not take surrenders out of the manor, is void." Per. Curiam. 1 Ld. Raym. 76. but he cannot admit out of the manor. Ib.

(4) By a surrender of a tenant in fee or copyholder, no more of his estate passes than will satisfy the uses declared. The residue will continue in him as of his old estate. 9 Co. 107. a. I Brownl. 181. Cro. Eliz. 442. 4 Co. 29. b. Gilb. Ten, by Watkins, 254. and n. 116.

what has been transacted out of court. Immediately upon such surrender, in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use (who is sometimes, though rather improperly, called the surrenderee), to hold by the ancient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty."

In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fiduciarium, for

which there was no remedy at law, but only by subpœna in chan[367] cery. (c) When therefore the lord had accepted a surrender of his

tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant's will, the chancery enforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV., (d) was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the licence of alienation. this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; "quando hasta vel aliud corpo"reum quidlibet porrigitur a domino se investituram facere dicente; quae "saltem coram duobus vasallis solemniter fieri debet :" (e) and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen.

c Cro. Jac. 568.

d Bro. Abr. tit., Tenant per copie, 10.

e Feud. 1. 2. t. 2.

(5) If a surrenderor dies before the admittance of the surrenderee, his heir would take by des cent, as the surrenderor died seised of the premises, no legal title vesting in a surrenderee till admittance. (5 East, 132. 1 Smith, 363.) And where a devise was made by an unadmitted devisee, it was held that such second devisee, though admitted, could not recover in ejectment, for his admittance had no relation to the last legal surrender; but the legal title remained in the heir of the surrenderor, the first testator. 7 East, 8. Chitty.

(6) Femes-covert and infants may be admitted by their attorney or guardian, and in default of their appearance, the lord may appoint a guardian or attorney for that purpose. If the fines are not paid, the lord may enter and receive the profits till he is satisfied, accounting yearly for the same upon demand of the person or persons entitled to the surplus, but no forfeiture shall be incurred by infants or femes covert for not appearing, or refusing to pay fines. 9 Geo. I. c. 29.

This method of conveyance is so essential to the nature of a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of ex- change at the common law, but we must surrender to each other's use, and the lord will admit us accordingly. If I would devise a copyhold, I must surrender it to the use of my last will and testament; and in my will I must declare my intentions, and name a devisee, who [368] will then be entitled to admission. (f) A fine or recovery had of copyhold lands in the king's court may, indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee, (g) which is defined in the old book of tenures (h) to be "land pleadable at the common "law;" but upon an action on the case, in the nature of a writ of deceit, brought by the lord in the king's court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold. (¿) o

In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.

1. A surrender, by an admittance subsequent whereto the conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his g Old Nat. Brev. t. briefe de recto clauso. F. N. B. 18. i See Book III. pag. 166.*

f Co. Copyh. §36.

ht. tenir en franke fee.

(7) To prevent the recurrence of the evils which frequently resulted from the devisors of copyhold lands, omitting either from negligence or ignorance to surrender them to the uses of their wills, it was enacted by 55 Geo. III. c. 192. that where, by the custom of any manor in England or Ireland, any copy hold tenant thereof may by will dispose of or appoint his copyhold tenement, the same having been surrendered to such uses as shall be by such will declared, every disposi tion or charge of any such copy holds or of any right or title to the same, made by any such will by any person who shall die after passing this act, viz. (12 July 1815), shall be as effectual, although no surrender is made to the use of such will, as it would have been had such surrender been made. But the claimants under the devise must pay the stamp duties, fees, &c. incident to a surrender, as well as those upon admission. Before the passing of this act, equity would relieve in favour of a wife or younger children (but not of a brother, grandchildren, or natural children); or where copy holds were devised for the payment of debts. See 1 Atk. 387. 3 Bro. 229. 1 P. Wms. 60. 2 Ves. 582. 6 Ves. 544. 5 Ves. 557. But where a surrender by a married woman to the use of her will is required by the particular custom of the manor, the want of a surrender is not aided; for the 55 Geo. III. c. 192. only aids the want of a formal surrender, and the surrender in this case is matter of substance, and requires to be accompanied by the separate exami. nation of the wife. 5 Bar. & Ald. 492. 1 Dowl. & R. 81. S. C. Where copyhold premises have been surrendered to such uses as the owner shall appoint, the appointment may be made by will, and a surrender to the uses of such will was not necessary even before this statute. 3 M. & S. Chitty

158.

(8) A fine of lands in ancient demesne levied in the court of common pleas is not absolutely void, but voidable by the lord: and it seems, according to Mr. Preston, copyhold lands are within the same rule; but it is clearly more correct to levy the fine, or suffer the recovery in the lord's court. See 1 Prest. on Convey. 266, 7. and see 3 T. R. 162.

(9) A surrender does not destroy a contingent remainder. 2 Saund. 386. It receives the same construction as deeds operating by the statute of uses, and therefore cross remainders cannot be implied. 1 Saund. 186. b. A surrender may be by him in remainder. 1 Saund. 147. a. n. 3. The surrenderee is an assignee within the equity of the statute Hen. VIII. I Saund. 241. a. His title begins from the date of the surrender, by relation; and therefore, after he has been admitted, he may lay his demise in ejectment on the day of surrender, and recover mesne profits therefrom. 1 T. R. 600. 2 Saund. 422. c. n. 2. But an equity of redemption cannot be surrendered. 2 Saund. 422. d. n. b. And devisees of contingent remainders on a copyhold not being in the seisin, cannot make a surrender of their interest, nor will such a surrender operate against them or their heirs. 11 East, 185. A feme-covert, who surrenders copyhold, ought previously to be examined separately from her husband, by the steward of the manor, or before two customary tenants by special custom; and if it be to such uses as she shall will appoint, a paper purporting to be a will, though made by ber, living her husband, is a execution. 4 Taunt. 294.

tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser, and punishable in an action of trespass: 10 and if he surrenders to the use of another, such surrender is merely void, and by no matter est post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing: and no sub

sequent admittance can make an act good, which was ab initio void. [369] Yet, though upon the original surrender the nominee hath but a pos

sibility, it is however such a possibility, as may whenever he pleases be reduced to a certainty: for he cannot either by force or fraud be depriv ed or deluded of the effects and fruits of the surrender; but if the lord refuse to admit him, he is compellable to do it by a bill in chancery, or a mandamus: (k) and the surrenderor can in no wise defeat his grant; his hands being for ever bound from disposing of the land in any other way, and his mouth for ever stopped from revoking or countermanding his own deliberate act. (1)

2. As to the presentment; that, by the general custom of manors, is to be made at the next court baron immediately after the surrender; but by special custom in some places it will be good, though made at the second or other subsequent court. And it is to be brought into court by the same persons that took the surrender, and then to be presented by the homage ; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon, are wholly void : (m) the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, that is sufficient. (n) So too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those, into whose bands the surrender is made, die before presentment: for, upon sufficient proof in court, that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court baron, the party grieved shall find remedy. But if the lord will not do him right and justice, [370] he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief. (0)

k 2 Roll Rep. 107.

m Co. Copyb. § 40.

n Co. Litt. 62.

1 Co. Copyb. § 39.
o Co. Copyb. § 40.

(10) The surrenderee would not now be considered a trespasser; for it has been determined that he may recover in an ejectment against the surrenderor, upon a demise laid after the surrender, where there was an admittance of such party before trial; but as the surrenderor after the surrender is considered merely a trustee for the nominee, it should seem that the decision would have been the same even if the subsequent admittance had not been proved. 1 T. R. 600. -Mr. Christian's note. 5 Burr. 2764. 16 East, 208.