of the will is necessary to the devise. (a) The evidences of the title, therefore, consist, for the most part, as has been before observed, of copies of the court rolls; but the copy of the court roll is not the only evidence of the copyholder's title; the surrender and presentment may be proved aliunde, as by the drafts of an entry produced from the muniments of a manor, and the parol testimony of the foreman of the homage who made such presentment, although the court rolls are the best evidence. (b)

But equitable estates may pass without surrender, as by contract; but an equitable estate tail must be barred by the same customary mode as an entail of the legal estate, (c) except where the tenant in tail is prevented by fraud or breach of trust from barring it. (d)

If the custom of the manor does not admit of an entail, as is sometimes the case, and where consequently the legal estate cannot be entailed, there can be no entail of the equitable estate; and therefore an attempt to create an estate tail by way of trust, in lands which do not admit of an entail at law, will be nugatory. (e) And when the custom of a manor does not admit of an entail, there can be no entail, as the statute de donis does not apply to them; and therefore a limitation of copyholds to A. and the heirs of his body, will confer not an estate tail, but a fee conditional at common law, (f) and may be aliened on birth of issue in fee simple by surrender. (g)

(a) 55 Geo. III. c. 192. See post. (b) Doe d. Priestley v. Calloway, 6 B. & C. 484.

(c) Pullen v. Middleton, 9 Mod.

483.

(d) Otway v. Hudson, 2 Vern.

585.

(e) Pullen v. Middleton, 9 Mod. 483.

(f) Doe v. Clark, 5 B. & A. 458; S. C. 1 Dow. & Ry. 44; and see Heydon's case, 3 Co. 7. Doe v. Truby, 2 Bla. 944.

(g) Rowden v. Malster, Cro. Car. 42.

In some instances, copyhold lands may be conveyed by deed even at common law. Thus a person who has a mere right or title in lands, may release it to a person who is in possession, and has obtained admission. (a) So a joint tenant, or it should seem a coparcener, (but not a tenant in common,) may release to his companions. (b) So also, the tenant may release to the lord, or the lord to the tenant. There There may also be a lease by deed, if such lease be warranted by the custom of the manor, or by the licence of the lord; and the estates of bankrupts pass by bargain and sale enrolled, and sales under the land-tax acts may be made in like manner.

But although rights, &c. may be released by deed, they may also be released by surrender; and married women having rights, cannot release those rights by mere deed without a surrender.

Where copyhold estates are surrendered to the use of a mortgagee, who has not been admitted, if the mortgagor devise them, there must be a surrender to the use of his will. (c)

An expectant heir cannot bind his future interest by surrender; (d) and though he becomes heir, the succeeding heir will not be bound by his contract before he was heir. (e)

But all other interests of a contingent or executory nature, to a person ascertained, may be barred or extinguished. Thus a release by persons adult, and not under coverture, will extinguish their right. And it

(a) Kite v. Queinton, 4 Co. 25 a. (b) Co. Litt. 59 a & n. (2). Co. Litt. 200 b. 1 P. Wms. 21.

(c) See Kenebel v. Scrafton, 7 Ves.

(d) Goodtitle v. Morse, 3 T. R.

365.

(e) Morse v. Faulkner & others, 1 Anst. 11.

should seem that a surrender from husband and wife, entitled in right of the wife, will have the same effect as a fine; and it would seem that a recovery by them would certainly preclude all right on her part. (a)

When copyholds are granted to a man for three or more lives, the grant will determine on his death, unless his heirs be specially named; (b) as the statutes before mentioned applicable to estates pur auter vie, do not apply to copyholds; (c) and they cannot be devised without a special custom of the manor. (d)

Therefore if the fee be limited to A. for the life of B., with remainders over, the estate of A. will determine on his death, though B. be living; and the lord will, it should seem, be entitled to hold during the life of B. ; (e) for there cannot be a general occupancy of copyholds, as the freehold is never out of the lord. (f) But custom may prescribe the successor in such a case; and the widow might be the quasi heir. (g)

So also, a grant to one generally, for the lives of two others successively, will pass a copyhold tenement after the death of the grantee intestate to the celles que vie in succession, as special occupants; a custom to this effect having been proved. (h)

No fresh grant of copyholds can be made at the present day; but there may be a special custom in a manor to enable the lord to demise by copy the waste portion of his demesnes. (i)

(a) 2 Prest. Abs. 22.

(b) Zouch v. Forse, 7 East, 186; and see Smartle v. Penhallow, 2 Lord Raym. 994.

(c) 3 Smith, 191; 6 East, 186. (d) 2 Watk. Cop. 195. (e) Combe's case, 9 Co. 75. (f) Smartle v. Penhallow, 2 Lord Raym, 994. Zouch v. Forse, 7 East,

186. Doe d. Foster v. Scott, 4 B. & C. 706. Doe d. Lempriere v. Martin, 2 Bl. 1148.

(g) See Rightv. Bawdon, 3 East, 260. (h) Doe v. Goddard, 1 B. & C. 522. (i) Badger v. Ford, 3 B. & A. 153; and see Steel v. Prickett, 2 Stark. 470; 2 B. & A. 189.

A copyhold surrender is to be construed in the same manner as a freehold assurance, with respect to the limitation of estates. (a) An entail of copyholds may be barred by surrender, and a custom to bar by surrender may be concurrent with a custom to bar by recovery. (b)

The generality and vagueness of descriptions of copyhold property on court rolls are so well known, that a vendor is not bound to show how the description on the court roll is to be applied to the present state of the property, if he prove that the property has been actually enjoyed and passed under that description for upwards of sixty years. (c)

As a general rule, a copyholder can defeat the free bench of his wife by a simple alienation by surrender; but this rule may be varied by the particular custom of the manor, and inquiry should always be made as to this.

Where, by the custom of a manor, no time is limited for presenting surrenders of copyholds, an incumbrancer, whose surrender has been presented, although not enrolled until long after a subsequent encumbrance duly enrolled, will not be postponed, although the subsequent encumbrancer had no notice of the prior charge; for the custom obviates the necessity of presentment, and consequently of enrolment. (d)

By the 1 Wm. IV. c. 65, (e) it shall be lawful

for any person not being under coverture, and for every feme covert (being solely and secretly examined by the lord of the manor or his steward) to appoint any person to be his or her attorney, for the purpose of surrendering the land of which a common recovery shall be proposed to be suffered to the use of any person, to make him tenant to the plaint, and to do all other necessary acts for the suffering and perfecting such common recovery, and such surrender and common recovery shall have the like effect, but no other, as such surrender and common recovery would have had if the party had appeared in court in his or her person, and acknowledged the said surrender, and suffered the same recovery.

Where copyholds were devised to the testator's wife for life, remainder to his two sons as tenants in common in fee; and the eldest son and customary heir was, by an arrangement between himself, his mother, and brother, admitted to the copyholds in fee, and executed by deed a declaration of trust to the uses of his father's will; the brothers became bankrupts, and their assignees sold their reversion, and it was held that the purchaser, though as against the assignees, a purchaser of a legal reversion, was not, as against the tenant for life, entitled to compel such a surrender as would give him the legal reversion. (a)

The lord cannot deny the copyholder access to the court rolls, (b) and a primâ facie title to copyholds is sufficient to entitle the party to inspect the court rolls of the manor at all seasonable times, and to take copies. of them so far as concerns his copyhold, and the

(a) White v. Stock, 6 Madd. & Geld. 327.

(b) Stacy's case, Latch. 182.