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. 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 can not 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. 25. A mere possibility cannot be surrendered; and Goodtitle therefore it was resolved in a late case, that a sur- 3 Term R. v. Moyse, render by the heir apparent of a copyholder, in the 365. 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. description of the premises surrendered, is the same 5 East R. Conolly, 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 te 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 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 ΤΟ cause the husband does not make it immediately to Co. Cop. his wife, but by two means, scil. by surrender of the $35. 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, |