Eliz, 595. (had, done, or suffered by or against any such tenant in (Cro. 430. 39 Eliz. Rot. 1614. Banco. As if tenant in tail of the gift of the king, the rever- So holden Trin. sion to the king expectant, is disseised, and the disseisor inter Stratford & Delevy a fine, and five years pass, this shall bar the estate ver, in Communi tail (2); and so if a collateral ancestor of the donee release with warranty, and the donee suffer the warranty to descend without any entry made in the life of the ancestor, (Hob. 332. this shall bind the tenant in tail, because he is not party Abr. 773.) or privy to any act, either done or suffered by or against him. Tenthly, albeit the preamble of the statute extend only to gifts in tail made by the kings of England before the act (viz. had given and granted, &c.), and the body of the (1)" 11 Car. Cro. obiter in Wyatt's case, tenant in tail, reversion to the king, is disseised, entry of the issue is barred; which perhaps re so here, becouse in both cases the tail is not barred."-Lord Nott. MSS.-Butler, Note 324.] (2) "It seems to some that the case of Stratford and Dover above quoted is not law; for m2 Rep. 11 Magd. Coll. case, it is adjulged, that the fine does not bar the college, not being parties, because the 13 Eliz. makes void all acts which it sufiers, and such suferance extends to the act in which they are not parties, by Sir Orl. b.-And Sir F. Moure, 467. reports the same case: and there by Walmsley it is said, that this issue is only bound in the time the fine is leried, but no other issue, and this by 34 H. 2; hence it seems, that sir F. Macre or Lord Coke høre misreported the case, for they are contrary to each other. Note, Mr Palmer told bien. Finch, afterwards Lord Nottingham and chanecilor, that he attended Waiter, chief baron, upon a reference, and that Walter denied the abone case, and said, that the roll was contra, and the judgment there contra to this report, and that he and Palmer went to the house of Lord Coke, then living, and showed him the roll contra to his report in this place, and that he acknowledged it, and said, that he trusted to Serjeant ridgmans report: whence it appears, that Sir F. Moore's report is the betier, and there he reports it to have been, 39 Eliz. Ro. 1914."-Lord Nott. MSS.-[Butler, Note 325.1 [The case of Stratford v. Dover is reported in 1 Cro. 595. 612, but no judgment was given on the above point; and Justice Walmsley observed, that if such a doctrine were admitted, it would be a common mischief, for then tenants in tail of the gift of the crown might get themselves disseised, in which case a fine levied by the disseisor, would bar the issue. See 1 Sid. 166. 1 Rol. Rep. 171. 5 Cru. Dig 494, 495.] [Ed.] 2 Rol. (623)* Recovery suffered by ten int in tail without act referreth to the preamble (viz. that no such feigned recovery hereafter to be had against such tenant in tail,) so as this word (such) may seem to couple the body and the prean ble together; yet in this case (such) shall be taken for such in qual mischief, or in like case; and by divers parts of the act it appeareth, that the makers of the art intended to extend it to future gifts; and so is the law taken at this day without question (a). A recovery in a writ of right against tenant in tail voucher, no bar of an without a voucher, is no bar of any gift in tail (1). estate tuit. 3 E. 3. Judement, If tenant in tail, the remainder over in fee, cesse, and the lord recover in a cessavit this shall not bar the estate tail, for the issue shall recover in a formedon; neither were either of these bars when Littleton wrote. (H) As these statutes deprive tenants in tail of the gift of the crowa of all power of alienation, the judges have construed them strictly; and it is observable, that an estate tail of this kind is now the only perpetuity which can possibly be created. 5 Cru Dig. 495. No alteration in the limitation of an estate tail, whereof the reversion continues in the crown, will enal le the tenant in tail to bar his issue or the reversion. Murrey v. Eyton and Price, T. Raym. 260. Pollexí. 491. 2 Show. 104. Sir T. Jones, 237. And even at common law, by the prerogative of the crown, a reversion or remainder in the crown, either in fee or in tail, cannot be barred by common recovery, Serjeant's case, 2 Rol. Abr. 39. Hob. 339; though the recovery will operate so far as to convert the estate tail into a base or determinable fee, and bar the issue. Neale v. Willing, 1 Wils. 275). The only mode of acquiring a good title to an estate tail whereof the reversion is in the crown, is, by an act of parliament, enacting that the reversion shall be divested out of the crown, and vested either in the tenant in tail, or in some other private person, by which means it will become barrable by a recovery. See 5 Cru. Dig. 503. Stat. 30 Geo. 3. c. 51.—[Ed | (1) That a recovery suffered by tenant in tail, by his own default, or by confession, will not bar the estate tail, see acc. post, sect. 689. 360 b. 361 a, and b, and the note to fol. 354 b. post, Chap. 52; so that it is not only necessary that there shall be a voucher, but it is also material to the recovery, and essential to its operation as against the issue and persons in remainder, that the tenant in tail shall vouch s me per on to warranty, and have judgment to recover in value, so that there may be a recompense to descend in the same line as the estate tail would have descended. 1 Prest. Conv. 119. But to convey an estate, or to operate by estoppel, a voucher is not essential: or if there is a voucher it is not necessary that there shall be a voucher over, so as to give title to a recompense in value. Ibid. A common recovery may, at the same time, have two objects, one to bar an estate tail, &c. the other to pass an estate, as the jointure of a married woman, or to bar a right as a title of dower, or to extinguish a collateral estate as a rent shrge; and though it may be void as against the issue, for want of regar voucher, it may be good as a conveyance, or release, &c.; and it may also, and at the same time be good, as against the estate tail, &c. and also as a conveyance, release, &c. though the recompense belongs wholly to the estate tail, and no benefit from the voucher is derived by the other persons. Ibid. 120. Eave v. Snow, Plow. 514. Pig, Rec. 35. --[Ed.] (624)* CHAP. XLV.* OF ALIENATION BY SPECIAL CUSTOM. 59 a. (a) BRACTON, lib. 4. fol. 209. speaking of customary Alienation by surren- -tenants, saith, Dare autem non possunt tenements der the proper mode of sua, nec ex causâ donationis ad alios transferre non conveying copyhold estates, mag's quàm villani puri; et unde si transferre debeant, restituant ea domino vel ballivo, et ipsi ea tradant aliis in villenagium tenenda (A). But although it be incident to the estate of a copyhold to pass, as our author (Sect. 74.) saith, by surrenders, (b) yet so forcible is custom, that by it a freehold and inheritance may nulph. Huntingfield's also pass by surrender (1) (without the leave of the lord) (a) Bract. lib. 4. fol. 209. & lib. 2. cap. 8. Rc. 14 H. 4. 34. or customary freeholds. *59 b. (b) Coram Rege. Mich, 31 E. 3. Ra case. 3 E. 3. Corona (1) M. 9 Jac. C. B. n. 5. D. D. Wilde and Francis. Adjudged accordingly, and the admittance is tenendum, but not ad voluntatem domini. Hal. MSS.-Vid. acc. ante, 49 a. and note 6, there (Ante, p. 355. n. (54).), and also the books cited in Blackst. Law Tr. 8vo. ed. v. 1. p. 144. From these authorities it appears, that estates held by copy of court-roll, but not at the will of the lord, have been deemed freehold estates as well by others as by Lord Coke, and in order to distinguish them from the ordinary kind have been denominated customary freeholds. In consequence of the prevalence of this notion, a considerable number of such tenants some few years ago claimed a right of voting as freeholders at the election of knights of the shire. This gave occasion to a short but most excellent treatise on the subject, in which the learned author traces the origin of lands held in this peculiar way, and proves, by the most clear and forcible arguments, that, though these tenures in some respects resemble freeholds, they are in truth nothing more than a superior kind of copyhold. Soon after the publication of this treatise, the doctrine inserted in it received confirmation from an act of parliament, declaring, that no person holding by copy of court-roll should be entitled to vote at the election of knights of the shire. See Blackst. Law Tr. 8vo. ed. v. 1. p. 105. and 31 G. 2. c. 14.-[Hargr. n. 1. 59 b. (400)] [As to customary freeholds, see ante, vol. 1. p. 658. n. (E), and the books there cited.]-[ Ed.] (A) We have seen, that copyholders being mere tenants at will, cannot alien their estates by feoffment, or other assurance at common law; but by the custom of all manors in which this kind of property is to be found, every copyholder has a power of transferring his estate to any other person, by surrendering or yielding it up to the lord of the manor, in his court, and be delivered over by the bailiff to the feoffee, according to the form of the deed, to be inrolled in the court or the like. AND such a tenant (by copy) may not alien his land (625)* LITTLETON. by deed, for then the lord may enter as into a thing [Sect. 71. 58 a.] forfeited unto him. But if he will alien his land to (1 Rol. Abr. 509.) another, it behoveth him after the custom to surrender the tenements in court, &c. into the hands of the lord, to the use of him that shall have the estate, in this form, or to this effect. A. of B. cometh into.this court, and surrendereth Form of the surrender. in the same court a mease, &c. into the hands of the lord, to the use of C. of D and his heirs, or the heirs issuing of his body, or for term of life, &c. And upon that cometh the aforesaid C. of D. and taketh of the lord in the same court the aforesaid mease, &c., To have and to hold to him and to his heirs, or to him and to his heirs issuing of his body, or to him for term of life, at the lord's will, after the custom of the manor, to do and yield therefore the rents, services, and customs thereof before due and accustomed, &c. and giveth the lord for a fine, &c. (For the signification of this word (finis), vide Sect. 174. 182. 194. 441,) and maketh unto the lord his fealty, &c. (B). [COKE, 59 b.] in trust that he may grant it out again to the person named in the surren der, which is therefore called an alienation by custom. Ante, 58 b. vol. 1. p. 663. The manner in which a copyhold is surrendered, is thus: the tenant, either in person or by attorney, surrenders his estate to the lord, or to his steward, or to certain teriants, according as the custom is, in trust to be again granted by him, or them, to such persons, and for such uses, as are mentioned in the surrender. This surrender must be presented by the jury, or homage of the manor, and found by them upon their oaths, and then the lord grants the land to the person named in the surrender, to hold by the ancient rent and customary services, and thereupon admits him tenant to the copyhold by the delivery of a rod, a glove, or the like, in the name of corporal seisin of the lands and tenements. 5 Cru. Dig. 533, 534. 2 Bl. Com. 366. 1 Watk. Copyh. 52. This mode of alienation therefore consists of three parts, the surrender, the presentment, and the admittance; whie will be severally considered in the course of this chapter--[Ed] (B) A surrender is defined to be, the yielding up of an estate by the tenant to the lord, either as a relinquishment or resignation of such es |