This mode of alienation therefore consists of three parts the surrender, the presentment, and the admittance. 5. A surrender is a yielding up of the estate by Surrender. the tenant to the lord, for the purpose of being regranted to some other person. The form of it is thus:-Ad hanc curiam venit A. et sursum reddidit in eadem curia unum messuagium, &c. in manus domini ad usum B. et hæredum suorum. 6. Lord Coke says, the word surrender is voca- Cop. § 39. bulum artis; and therefore, where a surrender is necessary, if this word be wanting, all other words used in ordinary conveyances are insufficient to transfer a copyhold estate; for as a copyholder is tied to a particular mode of conveyance, so he is restrained to a particular form of words. 7. Lord Coke also says, that a surrender is rather Idem. a manifesting of the grantor's intention, than of passing away any interest in the possession; for till admittance the lord takes notice of the grantor as tenant, and he shall receive the profits of the lands to his own use, and shall discharge all services due to the lord hence it is held, that till admittance, the surrenderor is a trustee for the person to whom the surrender is made. Davie v. 2 Beversham, 1 Term R. 8. Every copyholder may surrender his estate in 1 Inst. 59 a. court without alleging any particular custom for it: so a copyholder may surrender to the lord himself out of court, without a special custom. 9. A surrender out of court to the steward of the 4 Rep. 30 b. manor is also good, by the general custom of all manors, though the steward be only appointed by parol; and Lord Coke says, by the surrender out of 1 Inst. 62 a. court, the copyhold estate passes to the lord under a secret condition, that it be presented at the next Id. 59 a. Parker v. Kett, court, according to the custom of the manor; and therefore if, after such a surrender, and before the next court, he who made the surrender dies, yet the surrender will be good. 10. A surrender out of court, by the hands of two or three tenants of the manor, or by the hands of the bailiff or reeve, or of any other person, must be warranted by a special custom, and particularly pleaded. 11. A surrender of a copyhold to a deputy of a 1 Ld. Raym. deputy steward, out of court, is good, because he is a steward de facto at the time. 658. Co.Cop. §34. 12. A copyholder may surrender in court by attorney, without a special custom to warrant it; for he may surrender by the general custom, which is the common law, and then it is incident to do it by 9 Rep. 76 a. attorney. A copyholder cannot however surrender into the hands of two tenants by attorney; for such surrender, though in person, is not warranted without a special custom. Id. b. Mitchell v. Neale, 13. An attorney who makes a surrender ought to pursue the usual form, as by the rod, &c., according to the custom of the manor; and he ought to make it in the name of his principal, not in his own name, or show his authority, and say he surrenders it by force of such authority. 14. A purchaser of a copyhold is however not obliged to accept of a surrender by a letter of attorney. 15. Upon a bill for a specific performance of an 2 Ves. 679. agreement for sale of copyhold lands, the defendant insisted upon making the surrender by attorney, and not otherwise, and that he was ready to do so. The plaintiff insisted on his doing it in person, and entered into proof that the custom of the manor was, that whoever wanted to surrender must, unless in special cases of disability, do it in person. By a decree at the Rolls, a trial was directed as to this custom; and on an appeal to Lord Hardwicke, the decree was affirmed, because no court of justice would compel a purchaser to accept of a doubtful title. 1 Surrender. 16. All persons who are capable of conveying Who may their estates by any common law assurance, are also Co. Cop. enabled to surrender their copyhold estates. 17. By the statute 43 Geo. III. c. 75. it is enacted, that it shall be lawful for the Lord Chancellor to order the committees of lunatics to surrender the copyhold estates of such lunatics for payment of their debts, or performance of their contracts. § 34. 18. By the general custom, a husband and wife Gilb. Ten. may surrender the wife's copyhold, provided the wife 277. 312. is privately examined by the steward; and where there is a special custom to warrant it, a surrender by the husband and wife, made out of court, upon Erish v. an examination of the wife, before two tenants of the Rives, manor, is good. 19. But a custom for a married woman to surrender her copyhold lands without the assent of her husband, is void; because it is contrary to the general law and policy of the nation, and would tend to render wives independent of their husbands. 20. Frances, the wife of William Geary, being entitled to a copyhold estate, which had descended to her from her father, was admitted; and being privately examined, surrendered the estate to the use of herself for life, with remainder over. It was stated, that there was a custom in the manor, that a feme covert, seised in fee of copyhold Lands, might dispose of her estate without her husband's joining. Cro. Eliz. 717. Stephens v. Tyrrell, 2 Wils. R. 1. Compton v. Tit. 36 c. 10. $7 v. Smith, 2 Sid. 41. 73. 4 Mod. 45. After several arguments, the whole Court were clearly of opinion that this was a bad custom. 21. But where a married woman lived apart from her husband, under articles of separation, by which he covenanted that she should enjoy to her own use all such estates, both real and personal, as should come to her during her coverture, and that he would join in the necessary conveyances to limit them to such uses as she should appoint. Afterwards, copyholds having descended to the wife, the husband again covenanted in the same manner as before, that he would join in surrendering such estates to such uses as his wife should appoint. It was held by the Court of Common Pleas, that a surrender by the wife alone was good, although there was no special custom to authorize it. 22. Copyhold estates are not within the words or Harrington intention of the st. 11 Hen. VII. c. 20: for they cannot be discontinued or conveyed in any other manner than by surrender. Nor does the stat. 32 Hen. VIII. · c. 28. extend to copyholds, for the words of it only allude to estates which pass by common law conveyances; and if it were construed to comprehend copyholds, the heir of the wife would become tenant, without being admitted by the lord. Moo. 596. What Estate may be surrendered. Co. Cop. § 39. Doe v. 23. Nothing can be surrendered but a legal estate. It is not however necessary that such legal estate should be in possession; it is sufficient if it be vested in interest; and therefore an estate in remainder, or reversion, may be surrendered. 24. A person cannot surrender a copyhold till he is himself admitted. And Lord Coke says, if he surrender to the use of another, the surrender is merely 11 East, 246. void, and by no matter er post facto can be con Tofield, firmed. Preston, It has however been already stated, that where Holder v. a person gives a power by will to trustees to sell his Tit. 10. c. 4. copyholds, they may sell without being admitted; § 25. and the lord will be bound to admit the purchaser. 365. 25. A mere possibility cannot be surrendered; and Goodtitle v. Moyse, therefore it was resolved in a late case, that a sur- 3 Term R. render by the heir apparent of a copyholder, in the lifetime of his ancestor, had no effect whatever, and did not even operate as an estoppel, though the heir survived his ancestor. 26. It follows, that an equitable interest in a Tit. 38. c. 4. copyhold may be transferred from one person to an other without a surrender, for otherwise it would be unalienable. 27. The construction of a surrender, as to the Roe v. Conolly, description of the premises surrendered, is the same 5 East R. as that of deeds. Use a Surrender may 28. A copyhold estate may be surrendered to the To whose use of any person capable of taking an estate by a common law conveyance; and also to some persons be made. not capable of taking by such assurances. 29. In grants at common law, if the grantee be Co. Cop. not in rerum natura, and capable of taking at the $35. time when the grant is made, it is merely void; but in the case of surrenders the law is otherwise : for though at the time of the surrender the grantee be not in esse, or not capable of a surrender, yet if he be in esse and capable at the time of the admittance, that will be sufficient; and therefore a surrender to the use of him who shall be heir to I. S., or to the use of I. S.'s next child, or to the use of I. S.'s wife, though at the time of the surrender I. S. had no heir, child, or wife, yet if afterwards he hath a child, or taketh a wife, his heir, his child, or his wife, may come into |