custom permits, out of court) 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 person 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 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 seizin 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.

$

This method of conveyance is so essential to the nature of a copyhold estate, that it cannot properly

be transferred by any other assurance.

ment or grant has any operation thereupon.

No feoff

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.

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. 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.

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 upon surrender of another, the lord is to no 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.

And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord is 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.

Admittances, however, upon surrender, differ from admittances upon descent in this: that by surrender nothing is vested in cestuy que use before admittance, no more 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 surrender into the hands of the lord to whatever use he pleases. For which reasons, we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing of the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine.

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

THE last method of conveying real property, is by devise, or disposition contained in a man's last will and testament. We find that, by the common law of England since the conquest, no estate greater than for term of years, could be disposed of by

testaments; except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted. But by statute 32 Hen. VIII. c. 1. explained by 34 Hen. VIII. c. 5. it was enacted, that all persons being seized in fee-simple, (except married women, infants, idiots, and persons of nonsane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles II. amounts to the whole of their landed property, except their copyhold tenements.

With regard to devises in general, the statute of frauds and perjuries, 29 Car. II. c. 3. directs that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed in his presence, by three or four credible witnesses. And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent as likewise impliedly, by such a great and intire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.

This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit