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according to the custom of the husbandry of the said manor." At a court baron of the Duke and Duchess of Somerset, held at Tynemouth, for the said manor on Wednesday, 10th March, 1685-6 the jury being charged to enquire what the particular customs belonging to the said manor were, and what duties, rents, and services were or ought to be paid to the lord of the said manor, found that all the copyhold estates within the said manor, were copyhold estates of inheritance, according to the custom of the said manor; and if any copyholder should die seized of any copyhold estate, leaving a wife, that she should enjoy such copyhold estate, during her widowhood only, by virtue of her husband's copy, without paying any fine to the lord or taking any admittance. And that, after the death or marriage of the widow, the said copyhold estate should descend and come to the eldest son of the said copyholder, and to take a copy thereof at the next court held for the said manor upón such admittance by descent to pay to the lord 40s. for a whole farm, 20s. for half a farm, and 10s. for a quarter of a farm. If he should die without issue, the second son to take a copy and pay such fine as before-mentioned; and so from son to son; and for lack of sons to the eldest daughter of such copyholder, for life only, paying 41. for a fine of a whole farm, and so proportionally; and so to descend and come to the next heir male in succession.

The court-rolls of the manor, in the hands of the Duke of Northumberland, began so late as the year 1674, and it was alleged that the former rolls were not to be found, but the first book containing the rolls of surrenders was marked No. 3, and that containing the rolls of admissions was marked No. 2, shewing that former rolls existed at the time of commencing these books, From the roll of the surrenders it appeared that they were all made nearly in the following form, viz. Ta

A. B. his heirs and assigns for ever, according to the custom of the said manor, or to A. B. his heirs and assigns according to the custom of the said manor, and that such surrender was made through the hands of two customary tenants; and, that when the homage or jury found the death of a customary tenant, and the descent of his tenement upon his heirs, they found in these terms; "that A. B. died seised to him and his heirs of a customary tenement, to which premises the said A. B. was admitted tenant at a court held at such a time; and that C. D. was his next heir according to the custom of the said manor." And, on such surrender being presented to the court the homage or jury or a part of them subscribed their names to a certificate under it, to the following effect: "We find this surrender to be duly taken according to the custom of the nanor." From the rolls of the admittances it appeared, that the admissions, from the period where they began, viz. 1674, ran nearly in the following form, viz. After stating the surrender found on the death of the tenant and his heir; "to which said A. B. the lord, by his steward, hath granted seisin thereof to have and to hold the said customary tenement with the appurtenances to him and his heirs, at the will of the Jord, according to the custom of the husbandry of the said manor, rendering therefore to the lord and his heirs, as well in grain as in money, as other tenants have heretofore rendered or ought, and have been accus tomed to render, for the premises aforesaid, at the usual times, and performing all the services, duties, and customs heretofore therefore due, and of right accustomed, and gives to the lord for a fine -1. and has done his fealty, and is thereupon admitted tenant " Mr. Grey had not exercised any right on the land which he might not have been entitled to as a copyholder, and had not dug for coals; neither had the 3 H

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lord dug for them; but Mr, Grey when he built his house at Backworth dug the stones on the estate.

Upon this evidence, it was contended on the part of the plaintiff, that the grant to hold according to the custom of the husbandry of the said manor, was the same as a grant to hold according to the custom of the manor; and, that upon the authority of the case of Gale v. Noble, which was as follows," where lands time out of mind passed by surrender and copy of courtroll and the grant was always tenend. secund. consuetudin. munerii, and never had the words ad or secundum voluntatem domini, it was held not copyhold but customary freehold;" this land must be taken to be cus. tomary freehold for it was necessary and essential to a copyhold that it should be held at the will of the lord. And they contended that as, upon the authority of Hussy v. Grill,+ a copyhold cannot be created at this day, no act of the lord or the tenant could change the tenure. There was great difficulty in settling the meaning of the words, the custom of husbandry," and as no precise meaning could be given, the learned judge, said it would be fanciful to say, that the lord was to direct the husbandry, although it should be held at the will of the lord, according to the custom of husbandry; that, if he were to conjecture, it was probably a base service, and the service might be a mere service of husbandry, yet the decree of the court of exchequer, and the letters patent seem to indicate a military service also; but that was mere conjecture; yet as the modern entries upon the court-rolls were at the will of the lord, it should now be taken to be a base service, at the will of the lord, and might be construed a designation of a base service of villenage, and a copyhold tenure. Whereupon the jury found a verdict for the defendant.

In last Michaelmas term, a rule was obtained to shew cause why there should not be a new trial, and it was argued in Easter term, by PARK, TOPPING, and HOLROYD, for the plaintiff, and by COCKELL, Serjt. and WOOD for the defendant;

When the above case of Gale v. Noble, was again principally relied upon, and Brittle v. Dade, was cited, where it was held that a statement in pleading that lands are held ut de manerio, is inconsistent with the lands being copyhold. It was also contended, for the plaintiff,that the minister's accounts were not evidence; that although the admissions were some of them at the will of the lord, yet none of the surrenders were in that form; that the lord could only admit according to the surrender Roe v. Griffith, and, that the subsequent admittances at the will of the lord were usurpations by the lord as it appeared from the evidence, about the reign of King Charles II.; that the form of surrender set out is very different from that which ought to be the form if it were a copyhold; that the court cannot infer, that land is held at the will of the lord; that although the king in his letters patent, states it to be held at the will of the lord, yet that is no more than a recital in a deed between other parties, which does not bind the plaintiff; and that the evidence of digging for stones was evidence that the freehold was in the plaintiff and not in the lord.

And now the judgment of the court was delivered in effect as follows, by

Lord ELLEN BOROUGH,C. J. After stating the case and theevidence on the part of the defendant as above. This plaintiff is the tenant of Mr. Grey; and the Duke of Nor thumberland, claims, as lord, on account of the tene

* 1 Sal. 185. 1 Lord Raym. 43. + 4 Burr. 1052.

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ments being copyhold, held at the will of the lord, the coals under the tenements of his manor of Tynemouth: and he proves not only that the original grant is of the mines, from the crown,but that he himself by his steward has granted to a variety of persons from the year 1663, in terms, as held of the manor at the will of the lord. He produces also the minister's accounts of the 18th of Eliz. within thirteen years of the oldest entries on the other side, for they are only in point of antiquity thirteen years later, and contends that looking at the terms of the adn.ision, the terms of the grant, and what is most material, the possession and enjoyment, the soil appears to be uniformly, from all time, in the persons claiming the right to the coals, on the part of the duke, and that the lands passed by surrender, and were copyhold, at the will of the lord. On the part of Mr. Grey it was contended, that, although they passed by surrender, yet they were not copyhold, the tenant not holding at the will of the lord, but only according to the custom of the manor; and much reliance was placed upon the case of Gale y. Noble. In that case it was laid down that where the admittance was secundum consuetudinem manerii, it was not copyhold. But it did not appear in that case, upon any of the rolls or copies there produced, that it was ever granted ad voluntatem domini, but only to hold secundum consuetudinem manerii. Without impeaching the authority of this case, and supposing that if it appeared so to be bolden, upon all the rolls, then it would be a freehold; yet there not only exists here no such evidence but the contrary is the fact; for, here the admissions are uniformly for a long time, to hold according to the custom of the manor at the will of the lord. But it is contended that these instances of the admis

• Carthep, 433.