1804. able by copy of court-roll, to hold in fee-simple or RoE dem. otherwise, according to the custom of the said manor, but none of the grants are expressed to hold at the will of the lord of the manor. CONOLLY versus VERNON and Others. "The case then set out an information by the attorney general of the duchy of Lancaster, in the reign of James I. against tenants of his majesty, of the manor of Wakefield, wherein they were mentioned to be copyholders of the said manor, at the will of the lord. The information alleged, that the fines were arbitrary, and that the tenants had unlawfully entered into certain parts of the waste, which had only then lately been demisable by copy of court-roll. The tenants pleaded, and confessed that a great part of the premises were copyhold, demisable, &c. and insisted that the fines were not arbitrary, but certain, in manner as the information charged, that they had pretended. Whereupon after partition to, and composition with, his majesty, it was decreed (27th Nov. 7th of · James I.) that all the tenements, whether they had been parcel of the waste or not, which were then held and compounded for by the said defendants, should for ever thereafter remain good and perfect copyhold tenements, demisable, &c. any defect of the antiquity, validity, and continuance, thereof notwithstanding, &c. and at such rents as were then paid, as well for the said parcels of the waste as for other the copyhold tenements of the said manor, holden by the defendants. And further, that in future fines certain and therein specified, should be paid on admittances.' This decree was confirmed by the statute 7James I. enacting, that the same tenements, in the decree mentioned, should be good and perfect copyhold lands, according to the true intent of the said decree, &c. saving, nevertheless, to all persons, their heirs, &c. other than the king, his heirs and successors, all their rights, &c. And the said decree was recorded, at length, in the court-roll of the manor of Wakefield, the 19th of July, in the 9th year of king James I. "The coal mines and minerals within the customary tenements and the timber thereon, belong to the cus 3 tomary tenants, who are scised of any estate of inheritance, and not to the lord. 1804. ROE dem. versus VERNON "The lessor of the plaintiff has received one-third of CONOLLY the rents and profits of the customary premises for one year since November, 1801, and never took the name of and Others, Wentworth, and the defendants are in possession of the two other third parts." Question-Whether the lessor of the plaintiff is entitled to the whole of the said customary tenements, &c. first mentioned, compounded and uncompounded; or to the compounded only; and to all the said moiety of the compounded customary tenements secondly mentioned; and to the whole of the customary tenements purchased by Thomas, Earl of Strafford, or to the compounded only, or any, and which of them. If the lessor of the plaintiff is so entitled, the verdict to stand for the plaintiff, if not, then to be entered for the defendants. This case was argued at great length in Hilary term, by HOLROYD, for the plaintiff, and WALTON, for the defendants; and, in the statement annexed to the case, the following points were made, for the more particular consideration of the Court. "As to the effect of the surrender of Thomas, Earl of Strafford, dated April 10, 1732, to the use of his will; Whether it extends to surrender his uncompounded as well as his compounded customary tenements? Then as to the effect of the will, Whether the customary tenements comprehended in that surrender are devised by the will of Thomas, Earl of Strafford, to his eldest daughter, Lady Ann, and her first and other sons in tail, &c. or to his three daughters, Lady Ann, Lady Lucy, and Lady Harriet, by the residuary devise. The lessor of the plaintiff contends, that the customary tenements are customary freeholds, and pass as such by the first of those devises; but that, whether customary freeholds or not, they pass by implication to the eldest daughter, Lady Ann, and her first and other sons in tail, taking the whole will together, and particularly the resi 1804. Ros dem. CONOLLY düary devise, which devises all other the testator's lands, subject to the devises therein aforesaid. The defendants insist that the customary tenements are copyholds, and do not pass by the first devise, but pass to the three and Others. daughters by the residuary devise: versus VERNON Arguments for the plaintiffs on the first point. The doubt whether the uncompounded tenements pass, arises from the latter part of the surrender,' describing them as held at a rent to the lord of 41. 10s. Std. in the whole, and un compounded for. The defendants must contend that by the words and uncompounded', it is confined to the tenements compounded for. The plaintiff insists on the contrary, that these words are introduced through a false supposition of the testator, and were not intended so to confine the surrender merely to those tenements. Without those words, the surrender would clearly apply to all, and that being the case, a slight mistake in the amount of the rent, and in considering the whole as being compounded for, when part were not so, will not prevent the surrender from operating on the whole. As in grants and wills, a mistake in the description of the thing granted or devised, will not vitiate the grant or devise. Thus, in Blague v. Gold,* on a special verdict:-" P. Blagué was seised in fee of two houses in Andover, one in the tenure of Hitchcocks, and the other of Bincent and Note; the latter being the corner house, but contiguous to the former; and he devised to C. in fee, his corner house, in Andover, in the tenure of Bincent and Hitchcocks, upon condition to be new built according to a covenant in a lease made to B. This is a good devise of the corner house to B. and Note; for the corner house is sufficient certainty to pass it without more; and therefore, though the other addition in the tenure of Bincent and Note be false, yet this shall not vitiate the devise; and the clause .'provided that it be rebuilt according to the covenant in * Cro. Car. 447. 473. Jo. 379. 1804. Rox dem. versus VERNON the lease made to B., shews the intent to pass the house." Here the descriptive part of the surrender comprehends all, and the latter part is not matter of new description, but is merely a false allegation as to what is before sufficiently described, and the amount of the rent clearly and Others, ascertains it. So in Dyer, 336, a feoffment was made of a house described, late of Richard Cotton, whereas the feoffee had bought it of Thomas Cotton; yet this misdescription was held not to vitiate. And in the Vicar's Choral of Lichfield v. Eyres,* there was a grant of 78 acres of glebe, and of all the tithes of 78 acres of glebe land," all which were in the tenure of Margaret Peto;" this was found not to be true, part only being in her possession, yet the grant was held to extend to the whole, Arguments for the defendants as to the same paint. The testator having different estates in, and different powers over, the customary estates, he may be supposed to intend to surrender not the whole of them, but only those over which he had a power of devising, and he could never mean to devise for life those over which he had no power himself till after the devisee's, his own eldest son's, decease, without issue male. All surrenders are to be construed strictly as wills, and the true rule of construction is, that were there is sufficient certainty of the thing granted, as by giving it a name, there a subsequent mistake in the name of the tenant, or the number of acres, will not hurt; but where the thing is at first described generally, and afterwards a particular description is added that shall restrain the former part. So in Broke's Abr. tit. Grant, 92. One grants all his land in D. of the gift of J. S.; none but that given by J. S. shall pass. And so here the parrestrains the whole. ticular description rides over and See also Fitz. Abr. tit. Release, 11. and 2 Co. 33. So in Wrothesley v. Adams, a devise of all my lands in the * Sir IV. Jones, 435. S. C, Swift v. Eyres, Cro. Car. 548. + Plowden, 191. 1804. CONOLLY versus VERNON vill 4. and in one of the hamlets therein, was held to pass ROE dem. only the lands in that one hamlet. In Gascoign v. Barker,* All my (the testator's) freehold and copyhold lands in Middlesex, which copyholds I have surrendered to and Others. the use of my will,' the generality of the former words was held to be restrained to the copyholds which had been actually surrendered, though they would otherwise have passed without a surrender, the devise being to younger children; and in Willson v. Mount, † on a devise for the benefit of creditors, of all my freeholds and copyholds the copyhold part whereof I have surrendered to the use of my will (the fact being that part were surrendered and part not). The Master of the Rolls, held that these words may be restrictive, unless the intention was clearly the other way. On the second point, Whether these tenements passed by the devise to Lady Ann for life? it was contended for the plaintiff, that the customary tenements were not copyholds, but customary freeholds; they being said to be held not ad voluntatem domini, but only by copy of courtroll, and also being part of a manor in ancient demesne, and the tenants having the mines and timber. In support of this argument the cases and authorities cited below were referred to. And as to the information in 7 James I. it was said, that though it states the tenements to be held at the "will of the lord," yet that is not evidence against the tenants; and it appears from the plea and subsequent proceedings, that they were claimed as customary freeholds, for the tenants admit only that they hold § Co. Cop. 32. Co. Lit. 49, a. 59, b. Burrel v. Dod, 3 Bos. & Pul. 382; and see 1 Law Journal, 335. Hughes v. Harris, Cro. Car. 289. 11 Mod. 53. Hill v. Bolton, 2 Lutw. 1171. Rodgers y. Bradley, Vent. 143. 5 Co. 84. Gale v. Noble, Car thew, 432. Hussey v. Grylls, Amb. 299. Crowther v. Oldfield, 2 Ld. Raym. 1225. Sulk. 364. 1 Lutw. 125, |