CHAPTER THE TWENTY-SECOND.

OF ALIENATION BY SPECIAL

CUSTOM.

W

E are next to confider affurances by fpecial cuftom, 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 fuch customary eftates, as are holden in antient demefne, or in manors of a fimilar 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 figniory, it is therefore a forfeiture of a copyhold. 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 furrender; though in fome manors, by special cuftom, recoveries may be fuffered of copyholds : but thefe differing in nothing material from recoveries of free land, fave only that they are not fuffered in the king's courts, but in the court baron of the manor, I fhall confine myself to conveyances by furrender, and their confequences..

SURRENDER, furfumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for fuch purposes as in the furrender are expreffed. As, it may be, to the ufe and behoof of A and his heirs; to the use of his own will; and the like. The procefs, in moft manors, is, that the

a Litt. §. 74.

b Moor. 637

tenant

tenant comes to the steward, either in court, (or, if the cuf tom permits, out of court) or else to two cuftomary tenants of the fame manor, provided there be alfo a custom to warrant it; and there by delivering up a rod, a glove, or other symbol, as the custom directs, refigns into the hands of the lord, by the hands and acceptance of his faid fteward, or of the faid two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to fuch perfons and for fuch uses as are named in the furrender, and the custom of the manor will warrant. If the furrender be made out of court, then, at the next or fome fubfequent court, the jury or homage must present and find it upon their oaths; which prefentment is an information to the lord or his steward of what has been tranfacted out of court. Immediately upon fuch furrender in court, or upon prefentment of a furrender made out of court, the lord by his steward grants the fame land again to celuy que ufe, (who is fometimes, though rather improperly, called the furrenderee) to hold by the antient rents and customary fervices; and thereupon admits him tenant to the copyhold, according to the form and effect of the furrender, which must be exactly purfued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the fymbol, of corporal feifin of the lands and tenements. Upon which admiffion he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.

In this brief abftract of the manner of transferring copyhold eftates we may plainly trace the vifible footsteps of the feodal inftitutions. The fief, being of a bafe nature and tenure, is unalienable without the knowlege and confent of the lord. For this purpose it is refigned up, or furrendered into his hands. Cuftom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his fucceffor; but formerly it was far otherwife. And I am apt to suspect that this right, is of much the fame antiquity with the introduction of ufes with refpect to freehold lands: for the alience of a copyhold had merely jus fiduciarium, for which

there

there was no remedy at law, but only by fub-poena in chancery. When therefore the lord had accepted a furrender of his tenant's intereft, upon confidence to re-grant the cftate to another perfon, either then exprefsly named or to be afterwards named in the tenant's will, the chancery inforced this truft as a matter of confcience; which jurisdiction, though seemingly new in the time of Edward IV, was generally acquiefced in, as it opened the way for the alienation of copyholds, as well as of freehold eftates, and as it rendered the ufe of them both equally devifable by teftament. Yet even to this day, the new tenant cannot be admitted but by compofition with the lord, and paying him a fine by way of acknowlegement for the licence of alienation. Add to this the plain feodal investiture, by delivering the fymbol of feifin in prefence of the other tenants in open court; " quando hafta vel aliud corporeum quid"libet porrigitur a domino fe inveftituram facere dicente; quae "faltem coram duobus vafallis folemniter fieri debet :" and, to crown the whole, the oath of fealty is annexed, the very bond of feodal fubjection. 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 exiftence of copyholds, and the manner in which they are transferred, would inconteftably prove the very univerfal reception, which this northern fyftem of property for a long time obtained in this ifland; and which communicated itself, or at least it's fimilitude, even to our very villeins and bondmen.

e

THIS method of conveyance is fo effential to the nature of a copyhold eftate, that it cannot properly be transferred by any other affurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold eftate with another, I cannot do it by an ordinary deed of exchange at the common law; but we must furrender to each other's ufe, and the lord will admit us accordingly. If I would devife a copyhold, I muft furrender it to the ufe of my last will and teftament; and in my will I must declare my in

c Cro. Jac. 568.

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

e Feud. 1. 2. 1. 2.

tentions,

tentions, and name a devifee, who will then be entitled to admiffion. A fine or recovery had of copyhold lands in the king's court may indeed, if not duly reverfed, alter the tenure of the lands, and convert them into frank fee, which is defined in the old book of tenures to be "land pleadable at the "common law :" but upon an action on the cafe, in the nature of a writ of a deceit, brought by the lord in the king's court, fuch fine or recovery will be reverfed, the lord will recover his jurifdiction, and the lands will be reftored to their former ftate of copyhold1.

IN order the more clearly to apprehend the nature of this peculiar affurance, let us take a feparate view of it's several parts; the furrender, the prefentment, and the admittance.

1. A SURRENDER, by an admittance fubfequent whereto the conveyance is to receive it's perfection and confirmation, is rather a manifeftation of the alienor's intention, than a transfer of any intereft in poffeffion. For, till admittance of cefuy que ufe, the lord taketh notice of the furrenderor as his tenant; and he fhall receive the profits of the land to his own ufe, and fhall discharge all fervices due to the lord. Yet the intereft remains in him not abfolutely, but fub modo; for he cannot pafs away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the furrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trefpaffer, and punishable in an action of trefpafs: and if he furrenders to the use of another, fuch furrender is merely void, and by no matter ex poft facto can be confirmed. For though he be admitted in purfuance of the original furrender, and thereby acquires afterwards a sufficient and plenary intereft as abfolute owner, yet his fecond furrender previous to his own admittance is abfolutely void ab initio; becaufe at the time of fuch furrender he had but a poffibility of an intereft, and could therefore transfer nothing: and no fubfequent admittance can

f Co. Copyh. §. 36.

g Old Nat. Brev. t. briefe de recto claufo. F. N. B. 13.

ht. tenir en franke fee.

i See Vol. III. p. 166*.

make

make an act good, which was ab initio void. Yet, though upon the original surrender the nominee hath but a poffibility, it is however fuch a poffibility, as may whenever he pleases be reduced to a certainty: for he cannot either by force or fraud be deprived or deluded of the effect and fruits of the furrender; but if the lord refuse to admit him, he is compellable to do it by a bill in chancery, or a mandamus: and the furrenderor can in no wife defeat his grant; his hands being for ever bound from difpofing of the land in any other way, and his mouth for ever stopped from revoking or countermanding his own deliberate act '.

2. As to the prefentment: that, by the general custom of manors, is to be made at the next court baron immediately after the furrender; but by special cuftom in fome places it will be good, though made at the second or other fubfequent court. And it is to be brought into court by the fame persons that took the surrender, and then to be prefented by the homage; and in all points material must correspond with the true tenor of the furrender itself. And therefore, if the furrender be conditional, and the prefentment be abfolute, both the furrender, prefentment, and admittance thereupon, are wholly void": the furrender, as being never truly presented; the prefentment, as being false; and the admittance, as being founded on fuch untrue prefentment. If a man surrenders out of court, and dies before prefentment, and prefentment be made after his death, according to the custom, this is fufficient ". So too, if ceftuy que ufe dies before prefentment, yet, upon prefentment made after his death, his heir according to the custom shall be admitted. The fame law is, if thofe, into whofe hands the furrender is made, die before prefentment; for, upon fufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the fteward, the tenants, or others into whofe hands fuch furrender is made, refuse or neglect to bring it in to be prefented, 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