same uses to which the freehold estates are limited, and in most of such settlements there are springing and shifting uses. is sometimes 99. It has been long settled that a court of equity A Surrender will supply the want of a surrender of a copyhold supplied in estate, in favour of a purchaser for a valuable consi- Equity. deration, against the party who ought to make the surrender, and also against his heir. R. 218. 100. A. contracted with B. for the purchase of a Barker v. copyhold estate, and paid the purchase money, and Hill, 2 Cha. B. agreed to surreuder the premises at the next court, but died before a court was held, or any surrender made. Upon a bill in Chancery by the purchaser against the heir, the Court decreed that he should surrender the premises as soon as he came of age. 101. A mortgagee being a purchaser pro tanto, a surrender of a copyhold will also be supplied in his favour, by the Court of Chancery; even against a purchaser who has been admitted. 102. A. lent B. 2007. on a surrender of some copy- Jennings hold lands, which A. neglected to get presented at v. Moore, Blenkarne v. the next court, by which it became void. B. afterwards sold the same lands to J. S. who took a sur- 2 Bro. Parl. render, which he presented, and was admitted. But Ca. 278. it appearing that he had notice of A.'s right, it was decreed that A.'s defective surrender should be made Patteson v. good; and on an appeal to the House of Lords the Thompson, Finch, 272. decree was affirmed. 1 P. Wms. 103. In the case of a voluntary conveyance, a court Vane v. of equity will not supply the defect of a surrender Fletcher, against the heir, unless he has done something to 352. prevent the acceptance of the surrender. 104. Courts of equity will also supply the defect of a surrender to the use of a will, in many cases; of which an account will be given in the next title. Agreement Tit. 32. c. 1. 105. An article or agreement in writing, executed according to the statute of frauds, to surrender a copyhold estate, is good'; and the person entering into 2 Freem. 65. it, and his heirs, will be bound by it as fully as by an agreement to convey a freehold estate. § 31. TITLE XXXVII. ALIENATION BY CUSTOM. CHAP. II. How Entails of Copyholds may be barred, and the 2. Forfeiture and Regrant. 7. Recovery in the Manor Court. 15. Effect of such a Recovery on the Descent. 17. How such Recoveries may be reversed. 24. Within what Time. 25. Surrender. 31. A Custom to bar by Surren der or by Recovery is good. 41. How conditional Fees are barred. 44. Effect of Releases. IT SECTION 1. T has been stated that copyhold estates may be Tit. 10. c.1. entailed, where there is a special custom to warrant § 47. it; or rather that they may be limited to a person and the heirs of his body, with a remainder over: and that the statute De donis conditionalibus cooperating with the custom, will give to such an estate all the qualities of an estate tail. In consequence of which it has been determined, that entails of copyholds may be barred in several ways; for otherwise estates of this kind would be unalienable, which the law will not allow. 2. The modes of barring entails of copyholds are Forfeiture principally three: First, by forfeiture and regrant; and Regrant. VOL. V. Gilb. Ten. 177. Pilkington v. Stanhope, Sid. 314. Sty. R. 452. Grantham v. Copley, 2 Saund. 422. as where a tenant in tail of a copyhold commits a forfeiture, in consequence of which the lord of the manor seises it, and grants it either to the old tenant or to another person, such grantee will acquire an estate in fee simple. 3. Upon a trial at bar in ejectment, for lands held of the manor of Wakefield, it was admitted that by the custom of that manor copyhold lands might be entailed, and that the mode of barring such entails was, for the tenant in tail to commit a forfeiture, and then the lord made three proclamations, after which he seised the copyhold, and granted it to the copyholder in fee. Another custom to bar such entail was, for the tenant in tail to make a surrender to a purchaser in fee, and then for the purchaser, intending to bar the entail, and the remainders, to commit a forfeiture; then the lord to seise and make three proclamations, &c.: that thereby the issue in tail was barred, though the tenant in tail did not join; and this custom was found by the jury and allowed by the Court to be good. 4. This case is also reported by Style, who mentions that Lord Ch. J. Roll said he conceived there could be no custom for this, because the seizure for a forfeiture destroyed the copyhold estate; for it was at the lord's election, after the seizure, whether he would grant the estate again by copy of court-roll or not. But this effect of a forfeiture is sanctioned by the authority of the following case. 5. On a trial at bar it was ruled by the court on evidence, that where W. Saville was tenant in tail of divers copyholds in the manor of Wakefield, and made a voluntary lease for 21 years, without licence of the lord, to commit a forfeiture; which was presented in the copyhold court, and the lands seised into the hands of the lord, according to the custom of the manor; and W. Saville appointed the forfeiture to be for the benefit of Arthur Saville and his heirs. It being proved that there was a custom to commit such forfeitures, on purpose to bar the entails of copyholds, and to transfer the lands over to any other person; although A. Saville was not admitted by the lord in the lifetime of W. Saville, yet it was held that he had a good title; and the forfeiture was only in the nature of a surrender, or of a common recovery; and the lord could not admit any other than him to whom it was limited by the tenant so making such a forfei ture; but cestui que use after his admittance should have it, and the lord could not otherwise dispose of it and whenever cestui que use was admitted, he should avoid all mesne acts or dispositions made by the lord, as he should if a surrender had been made to his use, and he had afterwards been admitted according to the surrender. 6. This custom of barring entails of copyholds by forfeiture and regrant is said to be peculiar to the manor of Wakefield. But Mr. Serjeant Williams observes, "It should seem that if there was a custom in any other manor, of barring an entail of a copy- 422 b. n. 1. hold by forfeiture and regrant, it would be good; for 2 Ves, 604. what is a good custom in one manor, must necessa rily be so in another." 2 Saund. the Manor Court. 7. The second mode of barring entails of copyholds Recovery in is by a species of common recovery, grounded on what Littleton says, (§ 76.) that plaints in the nature of writs of assize at common law, will lie in the lord's court, upon which a recovery might be suffered. 8. Thus in 23 and 24 Eliz. it was adjudged by the Browne's Court of Common Pleas, that where, by the custom Case, of the manor, plaints had been made in the court of 4 Rep. 23 a. |