Idem. 263. Gilb. Ten. 264. Bunting v. court, and compel the lord to admit, according to the surrender. Lord Coke says, the reason of the law is this, because a surrender is a thing executory, which is executed by the subsequent admittance, and nothing is vested in the grantee before the lord has admitted him, according to the surrender; therefore, if at the time of the admittance the grantee be in rerum natura, and able to take, that will serve. 30. Lord Ch. B. Gilbert in his Treatise of Tenures observes, that this doctrine seems to be reasonable, and to carry no inconvenience with it; for it is not like a grant at common law; for there, if there be nobody to take, the grant is void, because the estate must be somewhere, and the grant puts it out of the grantor. But in the case of a surrender, there is no inconvenience at all; for the surrenderee has nothing till admittance, the estate being in the surrenderor. But then it seems, that if the surrenderee be not in esse before the admittance, the surrender will be void: this seems to be implied by Lord Coke; for he says, that if at the time of the admittance the grantee be in rerum natura, that will serve; which implies that the admittance is to be made after the usual manner; not that the admittance shall be put off till there be such a person: for if the person to whom the surrender was made should ever come in esse, then the admittance time would be eternally put off, the old surrender would stand good, and nobody be able to dispose of the copyhold estate. 31. A surrender to an infant in ventre matris is good, upon the same principle. 32. It was resolved in 27 & 28 Eliz., that a man 4 Rep. 29 a. may surrender a copyhold to the use of his wife, be cause the husband does not make it immediately to Co. Cop. ₫ 35. his wife, but by two means, scil. by surrender of the husband to the lord to the use of the wife, and by admittance of the lord to the wife, according to the surrender. 33. A wife may also, where the custom authorizes Idem. it, surrender her copyhold estate to the use of her husband. 34. Lord Coke says, it is not necessary that, upon Idem. surrenders of copyholds, the name of the party to whose use the surrender is made be precisely set down, if by any manner of circumstance the grantee may be certainly known. And therefore a surrender made to the Lord Archbishop of Canterbury, or to the Lord Mayor of London, or the Sheriff of Norfolk, without mentioning either their christian name or sirname, is good enough. So the surrender to the use of the next of blood of the wife, or brother, or sister of the surrenderor, he having but one brother or sister, will be good. 35. A person may also surrender his copyhold to Vide Tit. 38. the use of his will. ch. 4. 56. By the general custom of copyholds, all sur- Presentment. renders made in court must be presented by the homage or jury and where surrenders are made out of court, they must be presented at the next court which is held after such surrender is made: but in 2 Ves. 302. some manors more time is allowed for presenting surrenders. 278. 37. It seems, that presentment of a surrender in Gilb. Ten. court is only by way of instruction, to give the lord notice of the surrender. But a presentment is not of absolute necessity; for if the lord does not require a presentment to be made, and proceeds without it, 1 Inst. 62 a. 4 Rep. 29 b. Frosel v. Welsh, any subsequent act of his which shows his assent to the surrender, will be sufficient. 38. A surrender is good though the surrenderor dies before it is presented, provided it be presented within the time required by the custom. And so it is if the persons to whom the surrender is made die before presentment. 39. Copyhold lands were surrendered to two teCro.Ja. 403. nants out of court, who died before presentment. It was held, that the surrender was good, and might be presented at the next court, by any other copyholder of the manor. Admittance. 40. When a surrender is duly presented in court, by the homage or jury, the lord, by his steward, grants the copyhold which has been surrendered and presented, to the person to whose use it was surrendered, and thereupon admits him tenant to the copyTit. 10. c. 2. hold; and the grant and admittance is entered on § 5. the court-rolls of the manor, in the following words; c. 2. § 3. 41. "And the said C. D. being present in court in his own proper person, prayed to be admitted tenant to all and singular the said last-mentioned pre. mises, according to the form and effect of the said surrender to whom the lord of the said manor, by his said steward, granted seisin thereof by the rod, to hold to him the said C. D. and his heirs for ever, at the will of the lord, according to the custom of the said manor, by the rents, duties, and services therefore due and of right accustomed. And he was admitted tenant thereof in form aforesaid; gave to the lord for a fine five shillings, and made his fealty." 42. It has been stated in Title X. Copyhold, that every copyhold estate is held by a grant from the lord. But in the case of a sale or descent of a copy hold, no separate grant is made to the purchaser or heir, the grant being inserted in the admittance. 4 Rep. 22 b. From which it has been held, that the admittance Cro. Ja. 103. may be pleaded by way of grant. 43. Lord Coke says, in admittances upon sur renders, the lord to no intent is reputed as owner but wholly as an instrument; and the party admitted shall be subject to no charges or incumbrances of the lord; for he claims his estate under the party that made the surrender; and in a plaint in the nature of a writ of entry in the per, it shall be supposed in the per by him, not by the lord. Co. Cop. § 41. 282, 44. The acceptance of the new tenant by the lord, Gilb. Ten. constitutes the essence of an admission, all the rest is mere form; and therefore any act of the lord showing his consent to the surrender, amounts to an implied admittance; but still the admission must be regularly entered on the court-rolls. 45. The mere acceptance of a surrender by the steward, and the entry thereof in the court-rolls, with the delivery of a copy of such entry to the surrenderee, will not amount to an admittance. 46. A copyholder surrendered out of court, ac- Rawlinson cording to the custom of the manor, and the surrender V. Green, Poph. 127. was presented at the next court, and an entry thereof made by the steward thus,-Compertum est per homagium, &c.; but there was no admittance. It was determined, that this entry on the rolls did not amount to an admittance. 1st. Because the a ceptance of the presentment by the steward from the homage was no more than what he was bound to do, as being judge of the court. 2dly. Because the entry of it on the roll was but an office of duty, being but evidence to the court, as also to him to whose use the surrender was made; and so was the delivery Tit. 10. c. 4. § 10. Doe v. Whitbread, 5 East, 522. 2 Term R. 484. Who may admit. § 4. I lust. 59 b. of the copy to the surrenderee. But none of these things did imply the consent of the lord that the cestui que use should be admitted to have the land according to the surrender; and all these things together did not imply an admittance; for all of them might be done, though no admittance were in the case. 47. It has been stated, that the admittance of a tenant for life is an admittance of the persons in remainder; because the estate for life and the remainder only constitute one estate of inheritance. 48. A mandamus will be granted by the Court of King's Bench to compel the lord of the manor to admit a person, to whom a copyhold has been surrendered. 49. We have seen that in the case of voluntary Tit. 10. c. 2. grants of copyholds, every lord of a manor pro tempore may make such grants, and admittances in consequence thereof: but in the case of admittances upon surrenders, this doctrine is carried still farther, because the lord is only deemed an instrument to admit the cestui que use, and no more passes to the lord than is necessary to serve the limitation of a use: so that no respect is had to the quantity or quality of his estate in the manor; for whether it be by right or by wrong, admittances made by him can never be called in question on account of any defect in his title, because they are judicial acts, which every lord is bound to do. 4 Rep. 24 a. Ca. Cop. $ 41. The Admit tance must to the Sur render. 50. As the lord has only a customary power to be according make admittances, according to the terms of the surrender, and is nothing more than a mere instrument; it follows, that if there be any variance between the admittance and the surrender, either in the person, the estate, or the tenure, or in any other point, the Co. Cop. $ 41. |