sions are of no avail, because they do not pursue the terms of the surrender, and it is contended from the 41st section of Lord Coke's Copyholder, that the lord is only an instrument and must pursue the surrender. It does indeed appear that the terms of the surrender point out the grant to be made, and that the grant cannot qualify the terms of the surrender. Lord Coke in the places cited, uses these words:* besides in admittances upon surrenders, the lord being accounted nothing but a necessary instrument, it followeth that he hath a bare customary power to admit, secundum formam et effectum sursum reddendi; therefore, if there be any variance between the admittance and the surrender, ei. ther in the person, in the estate, or in the tenure, or in any other collateral points, the lord doth only trans fer an estate according to the surrender, and his authority, if it can take such effect. As if I surrender to the use of J. S. and the lord admits J. N. this admittance is wholly void; and notwithstanding this admittance, the lord may afterwards admit J. S. according to the effect of his authority.' And afterwards he says, if I surrender to the use of J. S. for life, and the lord aduits him in fee, an estate for life only passeth. So if I surrender without mentioning any certain estate, because, by implication of the law, estate for life only passeth, though the lord admit in fee, no more doth pass than the implication of law will warrant. If I surrender with the reservation of a rent and the lord admits, not reserving any rent or reserving a less rent than I reserved upon the surrender, this admittance is wholly void, but if the lord reserveth a greater rent, then is the reservation void only for the surplusage, and the admittance so far current as it agreeth with my surrender. If I surrender upon condition, * Co. Copyholder, s. 41, p. 92, 1764. 1806. BOURN versus RAWLINE 1806. BOURN versus BAULINS. and the lord omits the condition, the admittance is wholly void; but, if my surrender be absolute and the lord's admittance be conditional, the condition is void, but the admittance in all points else is good." The surrender therefore, so far as it points out what person the estate is granted to and for what interest, may govern; but it cannot be compulsory for the tenure, because the lord and tenant are bound, both, by the custom." [His lordship then stated the evidence on the part of the plaintiff as above.] "Under the decree of the 8 Jac. I. the whole dispute was whether the lands were estates of inheritance and whether certain fines were payable; but on this occasion, it was never suggested, that they had the qualities of freehold tenure belonging to them. The court then made an order, that, seeing the court-rolls could not be found, they were to pursue the ancient form which was there certified; that the copyholders were copyholders of inheritance; that the ancient customs were such as the copyholders alledge them to be; that the ancient rights and customs of the said townships for the said estates of inheritance should be observed, and then this word "freehold," oceurs; every tenant who has some estate of freehold shall pay a fine, &c." Now the word freehold and estate of inheritance coupled in this manner may have a limited signification. A man may have quasi a freehold in a copyhold; and this means therefore the quantity of interest, not the nature of the tenure. This decree is made in pursuance of an act of parliament, 7 Jac. I.c.21. This act of parliament goes to the extreme limits of legislative authority, if not beyond it; for it confirms a decree thereafter to be made and gives a binding effect to all the decrees to be made, by the court of exchequer In the copy furnished me by the attorney for the defendant and his counsel as stated, above no such word occurs. for three years. [Here his lordship stated the act of 1806 BOUR versus RAWLING 1806. BOURN versus RAWLINS. 、 What the evidence was is not stated. But here in many instances there are admissions to hold at the will of the lord; and the argument begs for its foundation,that 'according to the custom of husbandry' and according to the custom of the manor,' mean the same thing. But in the ministers' accounts it is stated, that they were held by the custom of husbandry, at the will of the lord, and if this only goes upon an even balance, we are to consider that there never was a question raised, amongst any of those questions which were litigated by the suits in the exchequer, whether the lord was owner of the soil, but only what were the quantity of the estates, the rents, and the fines. It is also in evidence that the lord got coals from other parts of the manor, and when the tenant got the coals he took them in his freehold, when he might have got them under his copyhold, if he was at liberty to do so; and as to the remark that has been made, in order to get rid of the effect of that circumstance, namely, that it was too near his mansion house to render it convenient to dig for coals there, seeing what magnificent dwellings there are in the north adjoining to the coal mines and how inuch to their interest it is, it is hardly to be supposed that such a consideration would induce himto forego so manifest an advantage." RULE DISCHARGED. FREELAND and Another, Assignces of TIPPING against It is sufficient if the assured in making the insuranĉes communicate fairly the present state of the ship, and lay open such circumstances - pro et contra, as may lead the insurer to make further enquiries concerning the prior state of the ship; so, where on a policy from twenty-four hours after the arrival of an African trader at her first place of trade 1 on the coast of Africa, &c. a letter was communicuted stating the arrival in March at Gabon river, that they had got part of their red wood and expected to get all, in the next month, and would sail in May; that they had now got nine men, but provisions were low, that they were so weakly handed that the natives did as they pleased, and referred to a prior letter which was not communicated; but in which had been previously stated the loss of several men by an insurrection of the natives and by disease, reducing the crew to five, and the loss of running rigging and other necessaries; held, that this last letter was a sufficient communication, it being a true account at the time, and referring to past transactions and to a prior letter, concerning which the underwriter might have enquired. The premium was very high. UPON an action on a policy of insurance on goods in the ship Neptune, Skelton, master, at and from twenty-four hours after her first arrival at her first place of trade on the coast of Africa, and at and from thence to Liverpool, during her stay and trade on the said coast of Africa and African islands, at a premium of 261. 5s. per cent, the following case was proved. The ship sailed 9th of June, 1799, with 12 guns and 20 men from Liverpool, one Fisher being master, and arrived without accident at Gaboon, 7th of August, 1799, and traded on the coast, remained there about ten days, and went to the Cameroons, where they arrived the 29th of August, 1799. They staid about eight weeks trading there, and the crew were then very sickly. Thence they sailed to Old Calabar, where they remained about five weeks, and took on board seven puncheons of palm oil, and two puncheons of pepper, and buried two of their crew, the rest being very sickly, About the latter end of November, or beginning of December, 1799, they sailed from Old Calabar bound to Gaboon, to take on board their wood, and one more of the crew died. On the 19th of December, in standing along shore off the river Danger, some black people in canoes came to the ship to make trade, and 3 I NO. XXXIII. N. S. 1806. FREELAND and Another versus GLOVER |