tenant comes to the steward, either in court, (or, if the cuf tom permits, out of court) or else to two customary 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 fymbol, 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 intereft 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 fteward 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 fteward 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 services; 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 cuftom of the manor, and takes the oath of fealty.

In this brief abstract of the manner of transferring copyhold eftates we may plainly trace the visible footsteps of the feodal inftitutions. The fief, being of a base 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 fufpect 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 was no remedy at law, but only by sub-poena in chancery. When therefore the lord had accepted a furrender of his tenant's intereft, upon confidence to re-grant the estate to another perfon, either then exprefsly named or to be afterwards named in the tenant's will, the chancery inforced this trust as a matter of confcience; which jurisdiction, though seemingly new in the time of Edward IV 4, 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 kim a fine by way of acknowlegement for the licence of alienation. Add to this the plain feodal inveftiture, 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 reft of our tenures and eftates, the very existence of copyholds, and the manner in which they are transferred, would inconteftably prove the very universal reception which this northern fyftem of property for a long time obtained in this ifland; and which communicated itself, or at leaft it's fimilitude, even to our very villeins and bondmen.

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 estate with another, I cannot do it by an ordinary deed of exchange at the common law; but we must surrender to each other's ufe, and the lord will admit us accordingly. If I would devife a copyhold, I must surrender it to the use of my last will and teftament; and in my will I muft declare my ine Feud. 1. 2. t. 2.

eCro. Jac. 568.

d Bro. Abr. tit. Tenaut. per cepie. 10.

tentions,

tentions, and name a devifee, who will then be entitled to admiffion (1). 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 case, in the nature of a writ of a deceit, brought by the lord in the king's court, fuch fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold 1.

In order the more clearly to apprehend the nature of this peculiar affurance, let us take a separate view of it's several parts; the furrender, the presentment, 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 interest in poffeffion. For, till admittance of ceftuy que ufe, the lord taketh notice of the furrenderor as his f Co. Copyh. § 36. ht. tenir en franke fee.

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

i See Vol. III. p. 166*.

(1) Unless a surrender is made by the teftator fome time before his death to the ufe of his laft will and teftament, the devife of a copyhold is in general abfolutely void, and the eftate defcends to the heir at law: but in three inftances a court of equity will interfere and will fupply the defect of a furrender, viz. when copyholds are devised for the payment of debts, and in favour of a wife or younger children. Yet a wife or younger children will not be relieved in equity, if the heir is difinherited or unprovided for. 1 Atk. 387. 3 Bro. 229. 1 Cox's P. Wms. 60. If both freehold and copyhold eftates are devised for the payment of debts, the chancellor will not fupply the defect of the furrender of the copyhold, unless the freehold is infufficient. 1 Bro. 273. 2 Bro. 325.

Equity will not affift. a brother, grand-children, or a natural child. 3 4tk. 189. 2 Vef. 582.

BOOK II. tenant; and he shall receive the profits of the land to his own ufe, and fhall discharge all services due to the lord. Yet the intereft remains in him not abfolutely, but fub modo; for he cannot pass away the land to any other, or make it fubject to any other incumbrance than it was fubject 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 trespass (2): and if he surrenders to the use of another, such surrender 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 fufficient and plenary interest as abfolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio; because at the time of fuch furrender he had but a poffibility of an intereft, and could therefore transfer nothing: and no fubfequent admittance can make an act good, which was ab initio void. Yet, though upon the original surrender the nominee hath but a poffibility, it is however such 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 refufe to admit him, he is compellable to do it by a bill in chancery, or a mandamus: and the furrenderor [369] 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 act1.

(2) The furrenderee would not now be confidered a trefpaffer; for it has been determined that he may recover in an ejectment against the furrenderor, upon a demife laid after the furrender, where there was an admittance of the nomince before trial: but as the furrenderor after the furrender is confidered merely a trustee for the nominee, it should seem that the decifion would have been the fame even if the fubfequent admittance had not been proved. 1 T. R. 600.

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 custom 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 perfons 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 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 prefented; the prefentment, as being false; and the admittance, as being founded on fuch untrue prefentment. If a man furrenders out of court, and dies before prefentment, and prefentment be made after his death, according to the cuftom, this is fufficient ". So too, if cefluy 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 those, 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 presented, upon a petition preferred to the lord in his court baron, the party grieved fhall find remedy. But if the lord will not do him right and juftice, he may fue both the lord, and them that took the furrender, in chancery, and fhall there find relief.

3. ADMITTANCE is the laft ftage, or perfection, of copy- [ 370 ] hold affurances. And this is of three forts: first, an admittance upon a voluntary grant from the lord; fecondly, 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 efcheated or reverted to him, the lord