homage, but not entered on the court rolls, may be proved by the draft of an entry produced from the muniments of the manor and the parol testimony of the foreman of the homage, who made such presentment1. A mistake by the steward, in a surrender, is only matter of fact, and the courts of law will admit an averment of such mistake, either as to the lands or uses 2; and though parol evidence will not be admitted to supply the defect in a copy hold surrender, yet, in a case of fraud and imposition, the defendant will be allowed to read parol evidence in order to prove it, and oral testimony may be adduced to rebut an equity set up by the plaintiff notwithstanding the Statute of Frauds3. Walker v. Walker, 2 Atk. 98; Barn. Ch. Ca. 217. Roe v. Loveless, 2 B. & Ad. 456; Doe v. Wroots, 1 Smith, 363. 5 Doe v. To field, 11 East, 246. 7. Effect of the Surrender.]—On a surrender being made no estate passes in consequence to the lord, but it remains, till the nominee be admitted, in the surrenderor. Till admittance, the surrenderee cannot surrender to the use of his will, nor devise or appoint any interest in the legal estates; though, in equity, the surrenderor is considered as a trustee liable to account for mesne profits, and the equitable interest may be devised. This applies however only to copyholds of inheritance. No more shall pass by the surrender than was intended; and, therefore, if he surrender to the use of A. for life, or in tail,— -or to the use of his last will, and he die without making a will,—or, if making a will, he limit only a portion of the estate,-the residue or part undisposed of in the first and last cases, and the whole in the second, will be the old estate and descend to the customary heir as a reversion. So, if he surrender to particular uses with the ultimate limitation expressly to his own right heirs, they will take such limitation as the old estate, and consequently by descent. This doc-Roe v. Griffiths, 4 Burr. trine, however, has been modified by the recent act for the amend1952. ment of the law of descent. A surrender can pass that only which the copyholder has to transfer; and, therefore, if a copyholder for life surrender to another, for the life of that other, it will only give the second a right to an estate for the life of the first, even if a custom be alleged to the contrary 7; but if the lord admit the second person for his life, it may operate as a grant, and the lord will be bound by his own act8. Though a surrender is generally said to be made to the use of ca. 184; Gilb. another, yet the person in whose favour it is made takes merely as appointee or nominee, he is not properly cestui que use, and a surrender is not to receive a construction similar to that of an use Moore, 8, ca. 27; Gilb. Ten. 257. $ 4 Leon. 88, Ten. 452. 184 1 Roe v. Hicks, 2 Wils. 13. Co. Copyh. s. 59. The King v. Hendon, 2 T.R. 484. Wainewright v. Elwell, 1 Madd. 636. 5 Holdfast v. Clapham, 1 T. R. 600. • Ib. * Doe v. Hall, 16 East, 208. Brown v. or trust. Such nominee cannot, before admission, enter upon the lands surrendered to his use, without being regarded as a trespasser, unless by the permission of the surrenderor, and then he is considered as his tenant at will: the surrenderor is the person to maintain trespass. If the lord accept a surrender, and the surrenderee enter in consequence,. and afterwards the lord oust him before admittance, an action will lie against the lord, because he shall not take advantage of his own wrong. Nor can the nominee before admittance surrender to the use of another, for he has nothing on which a surrender can operate. If he commit felony and be attainted, no forfeiture will ensue1; nor, as it seems, though the point is doubtful, if he commit waste 2. The surrenderee has, however, such an interest in the premises as he may assign3; but the devisee cannot devise before admittance 4. Though the surrenderee has no estate in the premises until he be actually admitted, yet the admission, on being made, relates back to the surrender, and operates as from its dates; for the surrender binds the land in estate and interest, so that if it be presented at the next court, all mesne acts by the surrenderor or his heirs will be void by relation, after admittance, as against the surrenderee or his heirs. In ejectment, therefore, such surrenderee may, after admittance, lay his demise in the interim, and recover the mesne profits from the time when the surrender was made7. A surrender, in whatever terms it may be conceived, can only point out to whom, and for what estate, the surrender shall enure. It cannot work any alteration in the terms of the tenure itself, neither can it vary the custom of the manor any more than an admittance, for both the tenant and the lord are Rawlins, 7 East, equally bound by the customs. 429. 9 Co. Copyh. 8. 49. 10 Wright v. Kemp, 3 T. R. 473. 7. By what Words Copyholds may be limited.]-The same words are, generally speaking, necessary to the creation of an estate in fee, or in tail, in copyholds, as are required to create such estates at common law in freehold lands 9. For as to this a surrender is to be considered as a common law conveyance, and is not entitled to the same favourable construction as a will10. A copyhold surrender is to be construed as a feoffment11; and a devise of copyholds is to be considered as a devise of freeholds as 12 Widdowson v. to words of inheritance, the rule in Shelley's Case, &c. 12. By Harrison, 1 Jac. special custom, however, an estate of inheritance in copyholds & Walk, 532. may be created by the words 'sibi et suis,' or 'sibi et assignatis,' " Lovell v. Lovell, 3 Atk. 11. sequels in right' or the like1. So, in some manors, the words estate. Bunting v. Lepingwell, 4 Co. 29 b. SECT. 3.-ADMITTANCE. 1. Form of Admittance, 185. 3. By whom to be taken, 186. 1. Form and Effect of Admittance.]-Admittance is the lord's acceptance of a person into the tenancy. When a surrender is duly presented in court, by the homage or jury, the lord, by his steward, grants the copyhold so presented to the person to whose use it was surrendered; and thereupon admits him tenant to the copyhold, and the admittance is entered upon the court rolls of the manor. The acceptance of the new tenant by the landlord is the essential part of the admission; all the rest is mere form, and therefore any act of the lord shewing his consent to the surrender, amounts to an implied admittance. It is also necessary that the admittance be regularly entered on the court rolls 2. mere acceptance of a surrender by the steward, and the entry thereof on the court rolls, with a delivery of the copy of such entry to the surrenderee, will not amount to an admittance3, be- Rawlinson v. cause none of these circumstances imply the consent of the lord Green, Poph. to accept the new tenant. As the lord has only a customary power to make admittances according to the terms of the surrender, and is only a mere instrument, if there be any variance. between the admittance and the surrender, the admittance is good so far as the lord has executed his power, but where he exceeds it, the excess is void 4. The Gilb. Ten. 282. The surrender is the substantial part of the conveyance, and a complete execution of the contract as between vendor and purchaser. The admittance must be pursuant to the surrender, and relates back to it, so that the estate of the surrenderee is complete, to many purposes, before admittance. As where A., seised in fee of copyhold premises, contracted to sell for a valuable con 127. Co. Copyh. s. 41; 4 Rep.29. 1 Vaughan v. Atkins, 5 Burr. 2764. Doe v. Mellish, 1Nev. & P. 30; Doe v. Thompson, Id. 215. Co. Cop. s. 45. Parker v. Kett, 1 Ld. sideration to B., and surrendered to B. out of court, and B. died without having been admitted, no court having been held until after his death, it was adjudged that the heir, on being admitted, was in by descent as from the surrender, that B. was seised from the date of the surrender, and that his widow was entitled to her free bench1. 2. How and where to be taken.]-The admittance need not be by the lord personally; it may be by his steward, or the deputy of his steward; it need not be coram paribus; nor is it necessary that it should be in court: but if the admittance be out of court, it should be regularly notified by the lord or his steward the next court-day, for the information of the tenants. In most manors it is allowable to call a special court for the purpose of admitting a mortgagee or purchaser, where inconvenience would arise by delay. It has frequently been said that an under-steward cannot admit out of court. The question is one of considerable difficulty and embarrassed by a good deal of conflicting decision; the best practical mode of avoiding it, is to have a special court called for admittance, if it can be conveniently done. 3. By whom the Admittance may be taken.]—In the case of descents and surrenders, the lord, the steward, and the understeward are merely instruments: they are compellable to admit, if ostensibly such, and the tenant is not to inquire into the legality 2 of their title. If the steward be appointed by parol only, his admission will be valid, even where his appointment is avoided for this cause: as where he had his appointment by parol from a corporation, which cannot appoint such officer without writing3. So, also, the under-steward may be appointed by parol, and may act in his own name or that of his principal. So, an understeward may authorize another to do a particular act, as to keep a court, and if he appoint an under-deputy, and so the appointca., 1 Leon. 288. ment be absolutely invalid, yet an admittance by the person so appointed will be good. So, if the chief steward make a deputy and die, the admissions by the deputy, after the death of his principal, will be as valid as if made in his lifetime7. But if a mere stranger, without any colour of authority, come into a manor, and hold a court, his acts will not be warranted, especially if the court be kept without warning given to the bailiff by • Co. Cop. s. 44. precept, according to the custom3. As the lord is not obliged to admit the tenant in his own person, so it is not necessary that Raym. 658. Lord Dacre's • Parker v. Kett, 1 Ld. 9 Co. 76 a. the tenant be personally admitted. The lord may, if he please, admit him by attorney1; but he is not compellable so to admit, Coombe's ca., as a person cannot swear his fealty by another, except by statute, in the case of a feme covert, infant, or lunatic. In an old case, where a Quaker refused to take the oath of fealty, the court relieved 2. law 2 Prec. Ch. 574. The King v. Coggan, 6 East, 431. The King v. The Brewers' Company. 5 The King v. R. 197. 4 Rep. 22 b. 61. Runney v. Eves, 1 Leon. 4. Of the Means of enforcing Admittance.]—A mandamus lies to compel the admission of the nominee3; but a mandamus does not lie to compel the admittance of an heir, since he has as complete a title without admittance as with it, against all the world but the lord. On the death of the ancestor, the heir may enter and take the profits, and maintain an action in the common courts for any trespass done to his possession, even against the lord7, may make leases of the copyhold as warranted by custom, and on such lease maintain ejectments. A person claiming to be admitted as heir to a copyhold tenement, need not tender himself to be admitted at the lord's court; if the steward, upon application to him out of court, has refused to admit 9. If the heir die after entry and before admittance, there shall be possessio fratris, and his heir may also enter as he himself could have done 10, his widow shall be endowed and the husband of an heiress shall have his curtesy 11, The heir may even surrender to the use of another on satisfying the lord for his fine, whether nyfather, 4 Rep. the inheritance be in possession or only in remainder or reversion, and may devise the copyhold estate, descended to him, without having been admitted, or previous payment of the lord's fine where a fine is due on admission 12. But it seems the heir cannot sue in the manor court before admittance 13, nor sit on the homage14, though it is said the lord may avow upon him before he be admitted; it would seem, however, that this can only be where the delay originates with the heir. 100; 3 T.R.169. 9 Doe v. Bel lamy, 2 Mau. 23 b. "Gilb.Ten. 287. 1 Right v. Banks, 3 Barn. & Ad. 664. Co. Cop. s. 41. 144 Burr. 1955. |