duly reversed, 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 case, in the nature of a writ of a deceit, brought by the lord in the King's court, such fine or recovery would have been reversed, the lord would have recovered his jurisdiction, and the lands would have been restored to their former state of copyhold. But as we have already seen1 fines and recoveries are now abolished by the 3 & 4 W. 4, c. 74. copyholds by tenant in tail statute 3 & 4 under the W. 4, c. 74. This statute and all its clauses, so far as the different Alienation of tenures will admit, are to apply to copyholds, except that a disposition of any such lands shall be made by surrender (s. 50); and if the consent of the protectork of a settlement to the disposition of such lands shall be given by deed, such deed shall be produced to the steward, who shall indorse an acknowledgment to that effect, and such deed with the indorsement shall be entered on the court rolls of the manor, and the indorsement shall be primâ facie evidence that the deed was so produced (s. 51). When the consent of the protector of a settlement of copyholds is not given by deed, evidence of such consent shall be preserved on the court rolls (s. 52). Power is given to equitable tenants in tail of copyholds, to dispose of their lands by deed (s. 53); and it is further enacted, that the provisions of the statute relating to inrolment1 shall not extend to copyholds (s. 54). The only mode of alienating copyholds, therefore, now existing is by surrender, which we shall proceed to consider; but it will be proper first to advert to assurances by matter of record of lands in ancient demesne. cient de Lands of this tenure are within the jurisdiction of the Lands in auCourt of Common Pleas, and a fine or recovery levied or mesne. suffered of them was in force between the parties, and was voidable only by the lord,m by writ of deceit, and the lands became frank fee. But by the statute 3 & 4 W. 4, c. 74, s. 4, g Old Nat. Brev. t. briefe de recto clause. F. N. B. 13. h T. tenir en franke fee. i See ante, p. 240. k As to the Protector, see ante, p. 254. 1 See ante, p. 256. m 1 Prest. Conv. 266; and First Real Prop. Rep. Fines and re- it is enacted, that fines and recoveries of lands in ancient coveries of lands in ancient de. mesne. 1. Surrender, effect of. demesne, when levied or suffered in a superior court might be reversed, as to the lord by writs of deceit, the proceedings in which were then pending, or by writs of deceit thereafter to be brought, but should be as valid against the parties thereto, and persons claiming under them, as if not reversed as to the lord; and (by s. 5) fines and recoveries of land in ancient demesne, levied or suffered in the manor court after other fines and recoveries in a superior court, shall be as valid as if the tenure had not been changed, and fines and recoveries shall not be invalid in other cases, though levied or suffered in courts whose jurisdictions may not extend to the lands therein comprised; and it is further provided, (s. 6,) that the tenure of ancient demesne, where suspended or destroyed by fine or recovery in a superior court, shall be restored in cases in which the right of the lord of the manor, shall have been recognized within twenty years. It is further to be observed that the writ of deceit is abolished, by the 3 & 4 W. 4, c. 27, s. 36. Having mentioned thus much as to fines and recoveries of lands in ancient demesne, let us return to surrenders of copyhold lands. 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 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 As to lands in ancient demesne, see further ante, pp. 31, 32. Yet, [369] admittance, according to Blackstone. If he enters, he is a trespasser, and punishable in an action of trespass: and if he surrenders to the use of another, such surrender is merely void, and by no matter ex 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 subsequent admittance can make an act good, which was ab initio void. though upon the original surrender the nominee hath but a possibility, 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 deprived or deluded of the effect and fruits of the surrender; but if the lord refuse to admit Remedies of him, he is compellable to do it by a bill in Chancery, or a use. mandamus: 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; and a surrenderor on admittance may maintain an action of trespass for the mesne profits from the time of the surrender, and may devise his interest. 8 cestui que ment. 2. As to the presentment: that, by the general custom 2. Presentof 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: the surrender, as being • Sed quære, as the surrenderor is a trustee for the surrenderee, until the latter is admitted, 1 T. R. 600; 5 Burr. 2764. P But see contra, Watk. Gilb. Ten. 163, 275. 281, 457. q 2 Roll. Rep. 107; See Rex v. r Co. Copyh. s. 39. t Co. Copyh. 40. 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, this is sufficient." 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 hands 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, he may sue [370] both the lord, and them that took the surrender, in chancery, and shall there find relief.▾ 3. Admit. tance. Upon a volun. tary grant. 3. Admittance is the last stage, or perfection, of copyhold assurances. And this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and thirdly, an admittance upon a descent from the ancestor. In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is considered as an instrument. For, though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein; and quite to change their nature from copyhold to socage tenure, so that he may well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the antient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect the law accounts him custom's instrument. For if a copyhold for life falls into the lord's hands, by the tenant's death, though the lord may destroy the tenure and enfran W chise the land, yet if he grants it out again by copy, he can neither add to nor diminish the ancient rent, nor make any the minutest variation in other respects; nor is the tenant's estate, so granted, subject to any charges or incumbrances by the lord. But he may grant it for a less estate.y render of another. In admittances upon surrender of another, the lord is to Upon surno intent reputed as owner, but wholly as an instrument : and the tenant admitted shall likewise be subject to no charges or incumbrances of the lord; for his claim to the estate is solely under him that made the surrender." scents. [371] And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord Upon Deis used as a mere instrument; and as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case, nor the other, is any respect had to the quantity or quality of the lord's estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial, acts, which every lord in possession is bound to perform.a mittances on differ from on descents. Admittances, however, upon surrender differ from ad- In what admittances upon descent in this: that by surrender nothing surrender, is vested in cestuy que use before admittance, no more admittances than in voluntary admittances; but upon descent the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be sworn on the homage nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits: may punish any trespass done upon the ground; nay, upon satisfying the lord for his fine due upon the descent, may w Co. Copyh. s. 41. * 8 Rep. 63. y Co. Litt. 52. b. 4 Rep. 27; Co. Litt. 59. a 4 Rep. 27; 1 Rep. 140. b 4 Rep. 23. |