ESTATE. COPYHOLD consent to take the surrenderee as his tenant appears, it is not material whether it be done by a dominus concessit et admissus est, or by other acts which amount to as much c. Therefore, if a copyholder surrender to the use of another, and afterwards the lord, having notice thereof, accept the rent from the surrenderee, this, by implication and construction of law, amounts to an admittance (1). So, if a fine be accepted of one as of a copyholder, this amounts to an admittance". But if a copyholder in fee surrenders to the use of B. in fee, and B. surrenders to the use of C. for life, who is admitted, the admittance of C. shall not by implication be taken to be an admittance of B., for the admittance ought to be of a tenant certainly known by the steward, and entered on a roll by itself; and therefore when a copy • Gilb. Ten.403; 3 Bulstr. 219, 232. Rawlinson V. Greves, 3 Bulstr. 239, arguendo. Et vide Dy. 292, pl. 68; Gilb. Ten. 282. Secus, if the steward had only assessed the fine. 3 Bulst. 239, arguendo.. e Yelv. 144, 145, Wilson v.Weddel, adjudged; Brownl. 143, S. C.; and see Doe dem. Vernon v. Vernon, 7 East, 8; but see Roll. Abr. 505; Cro. Eliz. 504, cont. and 3 Bulst. 237, S. P. dubitatur. (1) Roll. Abr. 505, Freswell v. Welch. But note, this case is differently reported in several books; in 3 Bulst. 215, 237, S. C. acceptance of rent from the hands of the tenants, into whose hands the surrender was made, doth not amount to an admittance of cestui que use, for the lord may take the rent of them, without designing any thing thereby to a third person; but had it been shown that the lord had accepted the rent as of his copyholder, then it had been a good admittance. Cro. Jac. 403, S. C. reports it, that acceptance of rent of cestui que use is no admittance; but by Godb. 268, S. C. that it is an admittance, the lord knowing of the surrender; secus, if he accepts it as a duty generally. In Bridg. 49, 52, S. C. it does not appear the lord had notice of the surrender when he accepted the rent. Vide 2 Sid. 61, S. P. per Twisd. arguend. admitted, and Style, 146, S. P. per Rolle, Ch. Just. But the text seems the most reasonable opinion. ESTATE. holder, according to the custom of the manor, surrendered COPYHOLD into the hands of two customary tenants to the use of J. S. and his heirs, and this was presented at the next court, and by the steward entered in the rolls of the court, and the steward afterwards delivered a copy thereof to J. S. yet this was held not to amount to an admittance; for here was no act done by which it appeared that the lord had consented that J. S. should be admitted, or that he should have the land according to the surrender. And 5. Of the construction to be made when the surrender and admittance differ. Where the surrender and the admittance vary, the estate is according to the surrender, not according to the admittance. If, therefore, A. surrenders for life, and the admittance is in fee, the estate of the copyholder is for life only; for the lord hath only a customary power to make admittances according to the surrender; and so far as he executes that power, the admittance is good; but where he goes beyond that power, he acts without a warrant, and then his acts are void". So, if the surrender be absolute, and the admittance conditional, the admittance is good, and the condition void; for when the lord acts according to his power in one thing, but beyond it in another, for what he acts according to his power he hath a warrant; but for what he acts beyond it, he hath no warrant, and so it is void". VIII. OF FINES AND HERIOTS PAYABLE IN RESPECT COPYHOLDS having been originally granted to be holden at the will of the lord, in consideration of some services to be performed by the grantee, the estate naturally deter'Bridg. 81, 82, adjudged; 28, b. Et vide 1 Watk.Copyh. Poph. 127, S. C. adjudged; 282; Baddeley v.Leppingwell, 3 Bulst. 237, adjornatur, and 3 Burr. 1543; Roe d. Noden after ended by mediation of v. Griffits, 4 Ib. 1961. friends. Co. Copyh. 110. Construction of admittance, &c. ESTATE. [BOOK II. PART II. COPYHOLD mined upon his decease; but by the indulgence of successive lords, the eldest or other son, or nearest of kin to the tenant, was allowed to succeed to the estate of his ancestor; but as this was purely by the favour of the lord, it was seldom granted but upon the payment of a sum of money, by way of premium or fine, upon the admittance of the new tenant; hence in the course of time the custom of descents on the one hand, and the payment of a fine on the other, became general between the lords and tenants. 1. Of Fines. FINES payable in respect of copyholds, may be divided into such as are payable on the change of the lord; such as are payable on the change of the tenant; and such as are payable for the liberty of exercising any act of ownership over the land, not warranted by the custom of the manor; all which may be considered, 1. With respect to the cases in which they are payable; 2. The time and place at which they are payable; and 3. The amount of the fine to be paid. 1. A fine may be due by custom upon every change of the tenant, whether by act of God or of the party. It may also be due on a change of the lord; but when it is due in this latter case, the change must be effected by the act of God only, as by death, and not by the act of the lord himself; and even though a custom be attempted to be established, that it is payable on a change of the lord effected by his own act, it will be insupportable; for customs, we have seeni, must be reasonable; but no custom can be more unreasonable than that of subjecting the tenant to a fine, whenever the lord chooses to alien his manor, for such a custom might prove the ruin of the copyholder. But when the fine is due on the change of the tenant only, it is immaterial whether the change be effected by the tenant's own act, or the act of God; for if i Ante, "Tithes." * Co. Lit. 59, b; Kitch. 122, a; E. Bath v. Abney, 1 Burr, 206. it be by act of God, it comes within the reason of the other COPYHOLD case, and if by act of the tenant himself, he acts with his eyes open, and assents to the consequences. On the change of the tenant, therefore, it is said to be due, without any special custom'. But it has been doubted whether it be due without a particular custom on the change of the lord, even where it happens by death (1). But it is clear that no fine is due on the change of the lord by alienation; as the tenant might in such case be ruined by the multitude of fines". But where by the custom of the manor a fine is due on the death of the last admitting lord, which has been held to be a good custom", any lord who has a right to admit, has also a right to the fine due on the death of his predecessor, though he be but a tenant for life, or the like; for the estate determines on the death of the lord, and a new estate is granted to the tenant by the successor, and it is in consideration of such grant that the fine becomes due; thus a husband, tenant for life, is entitled to a fine on the death of his wife, the last admitting lady. The lord is in no case entitled to a fine unless where there is a new tenant; therefore, if a copyholder in fee surrender to the use of one for life, and tenant for life die, he may enter without any new admittance, or paying any fine, for he has his old estate in him P. (1) See Gilb. Ten. 292; also, 1 Freem. 496, pl. 670; Kitch. 103, b; and 3 Durnf. & E. 162. See much curious learning upon this subject in the case of E. Bath v. Abney, 1 Burr. 206, 260, in which case the Court held, that the executors of copyhold for years was compellable to be admitted and pay a fine. The great point, however, in this case was, whether the fine became due on every change of the tenant, or only on the change of the estate. ESTATE. COPYHOLD Also, if a copyholder surrender on condition, as by way of mortgage, the mortgagor, on paying the money before the condition broken, may re-enter without any new admittance, or paying a fine, for he is in of his old estate a (1). So if he surrender, reserving rent, with power of re-entry, if rent in arrear, no fine will be payable on such re-entry'. And by the general custom of copyholds, no fine is due on the admittance of remainder-men on the determination of a previous estate for life, or other particular estate; therefore, if a copyholder in fee surrender to the use of one for life, the remainder to another for life, the remainder to another in fee, by this but one fine is due, unless there be a particular custom to the contrary, for the particular estates and remainders being but one estate', the admission of the particular tenant is the admission of those in remainder, and the fine is assessed not for the particular estate but for the whole inheritance. So, where tenant for life, and he in remainder join in a grant of their copyhold, but one fine is due, for but one estate is conveyed ". So if a surrender be made, and after a recovery is had by plaint, in nature of a writ of entry in the post, still but one fine is due ", for the recoverors and the surrenderee all make but one tenant by copy. • Gilb. Ten. 275. • 1 Mod. 103; 1 Burr. 1 Roll. Abr. 505; Dell v. Higden, Moor, 358; Tipping v. Bunning, Ib. 465; Barnes v. Cooke, 3 Lev. 308; S. P. adjudged Ancelme v. Ancelme, Cro. Jac. 31; Gravener v. Ted, 4 Co. 23, a; Blackburne v. Graves, 1 Vent. 260; 1 Mod. 102, 120; 2 Lev. 107, S. C. " Kitch. 123, a; Co. Copyh. 130. 3 Leon. 9; Kitch. 122; Co. Copyh. 56, tr. 130. (1) But if the day appointed for payment of the money by the surrenderor be past, so that he has but an equity of redemption, there it seems he must be re-admitted, and pay a fine. See Gilb. Ten. 276; Fawcett v. Lowther, 2 Ves. 302; Tredway v. Fotherley, 2. Vern. 367. |