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mises in the county of York, other than such estate or
interest as she was entitled to (if any,) in the aforesaid
customary tenements, under and by virtue of the afore-
said residuary devise of the said Thomas Earl of Straf-
ford. The defendant, Henry Vernon, Esq. son of
the said Lady Harriet, is customary heir of the
tenements in question, which are of the nature of
compounded and uncompounded customary tenements,
and part of the said customary tenements holden
as aforesaid of the said manor of Wakefield, whereof
Earl Thomas was seised as aforesaid, at the time of
making the said surrender, and at his death. It has
been usual within the said manor for
persons entitled
to reversionary interests in customary lands holden of
the said manor, and desirous to dispose thereof by will,
or in mortgage, or otherwise to be admitted to such
reversionary interests; and upon such admittances to
estates not in possession for the steward to assess a
half fine, and such persons when so admitted have sur-
rendered the same to the uses of their wills, and upon
the inrolments of such surrenders for no fine to be paid;
and no instance has been found of any admittance of
persons claiming under wills, without a previous surren-
der to the use of such wills. The lessor of the plaintiff
has been admitted to the tenements in question, and
so has the defendant, Henry Vernon, Esq. who is in
possession thereof as landlord, and the other defendants
are his tenants. Question, Is the lessor of the plaintiff
entitled to recover all or any part, and which of such
customary tenements? It is agreed that this special
case shall be turned into a special verdict at the request
of either party, or the court.

First; That a sum of 41. 14s. 6d. was annually paid by William Earl of Strafford, as customary or lord's rent for these customary lands, held of the manor of Wakefield, from the death of his father, Earl Thomas, until the same was discontinued as hereinafter men

1805.

Doe dem.
VERNON

versus

VERNON.

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tioned.

The amount of such rents in the lord's books is 41. 18s. 1d. but Earl William never paid more than the above sum of 41. 14s. 6d. The receipts of the customary or lord's rent are entered in a book distinct from the court rolls, and never appear upon the rolls. Second; That Earl William does not appear by the court rolls to have been ever admitted, but was frequently applied to by the lord, and by his steward to come in and be admitted, which he did not do; but in the year 1779 the lord insisting upon the said Earl William's coming in to be admitted, and to pay his fines, the payment of the above sum, 41. 14s. 6d. was discontinued, and in 1791 the lord filed his bill im Chancery against Frederic Thomas, Earl of Strafford, to whom the estate had then descended, and the customary heirs of William Earl of Strafford, to compel the party entitled to the lands to come in and be admitted thereto, and that the lord's fines should be paid, which suit is still depending. Third; The surrender of Earl Thomas to the uses of his will was presented in court in 1741, after his death, according to the custom of the manor, but his will was never enrolled until the year 1802, when Mr. Conolly was admitted tenant to the compounded part of the customary tenements under a writ of mandamus.

WATKINS, for the plaintiff, made two questions; first, whether Lady Harriet Vernon, at the time of making her will, and also at the time of her death, had such an interest in the premises in question, as she could have devised by her will, without a previous surrender to the use of her will. And secondly, whether, if she had such an interest, she made use of such words in her will as were sufficient to pass it. As to the surrender of a copyhold, the surrenderee is not invested with the tenancy, but by the admission of the lord. No one is tenant until admission, except an heir

upon a descent.* And if a copyholder surrenders to the use of the surrenderee and his heirs, the estate remains in the surrenderor till admittance. So in case of a devise. It is stated in this case, that Thomas Earl of Strafford surrendered to the use of his will, and there was no admission by the devisee under his will, till after the death of Lady Harriet Vernon. Therefore, on the death of Thomas Earl of Strafford the estate must have descended to his customary heir; and as Earl William, one of the devisees, survived Lady Harriet Vernon, the legal estate in the premises was not in her ladyship, and she had only an equitable interest. A legal estate in a copyhold is not devisable at all, but by means of a surrender to the use of the will, but such surrender cannot be made by a person who has not the legal estate by admission; and therefore such a person may without a surrender, devise the equitable estate. As, where there is a mortgage, the mortgagor not having the legal estate in him, has no estate that he can surrender, and therefore may devise the copyhold premises without a surrender.§

* Co. Cop. 38, 1. p. 87; 1 Term Rep. 395; 1 Rol. Abr. 502; pl. 34; Cro. Eliz. 349; Preced. Chancery, 573; Roe de Jeffries v. Hicsk, 2 Wilson 13; Atkins v. Atkins, 5 Burr. 2764;

+ Sir H. Peachy v. the Duke of Somerset. Preced. in Chanc. 568, Str. 454.

Doe d. Shewen v. Wroots, 5 East, 137; Perry v. Whitehead, 6 Vesey, Jun. 544; Kennebel v. Scrafton, 8 Vesey, Jun. 30; Semayne's case, 1 Buls. 200; Attorney-General v. Andrews, 1 Ves. 225; Duke of Manchester v. Lord Godolphin, 2 Vesey, 77.

Strudwicke v. Strudwicke, Pasch. 1720; Greenhill v. Greenhill, 2 Vern. 680; Tuffnell v. Page, 2 Atk. 37; and King v. King, 3 P. Williams, 360.

1805.

Doe dem.
VERNON

versus

VERNON.

1805.

Doe dem.
VERNON

versus VERNON.

Lord ELLENBOROUGH, C. J.

"Are there any

cases where this court or any court of law has taken notice of an equitable estate?"

WATKINS. As by the admission of the lessor of the plaintiff, the equitable estate is now become a legal estate, a court of law may take notice of it."

LAWRENCE, J. "The legal estate may, perhaps, be in the heir at law of Thomas, Earl of Strafford, and he may be a trustee for the heir at law of Lady Harriet Vernon. Then must not he go into a court ofequity? In what a state of confusion would copyhold titles be, if, when it appears that there is an admission on a surrender to one person, there should be a legal estate set up under a will of which nothing appears?"

"Really as a quesHere is a devise

Lord ELLEN BOROUGH, C. J. sion of law there is nothing in it. by Lady Harriet Vernon, which Lady Harriet Vernon was never admitted, and there is a negative custom that the devisee cannot be admitted under the will till after a surrender to the use of the will. We are then to be hunting after an equitable interest, when we have nothing to do with the equity.”

WATKINS. "The custom goes only to the legal estate. When she devised it, she had only an equitable interest, to which the custom therefore could not apply. She would also be entitled to admittance as surrenderee."

Lord ELLENBOROUGH, C. J. "It only clothes her with a formal legal title, and no more. Now nobody, as her heir, can be in a better situation than she would be herself, and she was never in fact admitted. It would only be oversetting all the copyhold law as it stands at present, to hold the legal estate to be in the lessor of the plaintiff. And how could the admittance of the devisee of Lady Harriet Vernon connect itself with the

surrender of Earl Thomas, whose will directed the uses of that surrender. The only surrender is under the will of Earl Thomas. Surely, the proper view of the case is, that the heir at law of Earl Thomas is a trustee for the heir at law of Lady Harriet, and a court of equity will direct that the heir at law shall make a surrender. I caunot think that the admittance of the devisee under the will of Lady Harriet can be connected with the surrender to the use of Earl Thomas's will. Assuming that you have equity (WALTON, for the defendant, said he should contend that there was no equitable interest in the lessor of the plaintiff,) we cannot take notice of it."

LE BLANC, J. "The ground of argument which the defendant's counsel is to take, namely, that there is no equity, shews that we ought not to entertain the question."

JUDGMENT FOR THE DEFENDANT.

The KING against the INHABITANTS of ETWALL.

42d June.*

1805.

Doe dem
VERNON

versus

VERNON.

Township.

Where part of a farm lay in the township of W. and part in Settlement by the parish of B. a poor-rate for the parish of B. for the paying rates. part in B. was held good; though, previously, the tenant had paid only poor-rate to A. but he had paid tithes and church-rate to B.

versus

APPEAL by William Orme, against the charge of The KING one pound eighteen shillings and one halfpenny, the Inhabitants on him, in relief of the poor of the parish of Etwall, of ETWALL., whereupon the rate was confirmed subject to the opinion of this court upon the following case: viz."William Orme, the appellant, is occupier of a messuage, farm, and lands of considerable extent, as tenant to Mr. William Fowler; the farm is situate in two parishes, the dwel

Omitted by accident in Vol, IT.

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