Roswell Plaintiff against Welsh Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1688 |
| Date | 01 January 1688 |
| Court | Court of the King's Bench |
English Reports Citation: 81 E.R. 181
COURT OF KINGS BENCH
teemin. mich. 14 jac. banco regis. rosweix Plaintiff against welsh Defendant, Entred Terrain. Hillar. 13 Jac. B. E. Rot. 854. Trespass and ejectment. 1 Ro. Rep. 415. Bridg. 49. Cro. Jac. 403. 1 Ro. Abr. 502. 505. Godb. 268. In an action of trespass and ejectment, for the trial of a copyhold estate, upon a surrender, the plaintiff declares upon a lease made by the heir; upon non culp. pleaded, a special verdict was found, upon which, the question did arise upon the custom of a copyhold estate, and the surrender of the same : it being found, that by the custom of the manor, when a copyholder would surrender his estate, this being out of Court, ought to be done unto two tenants of the manor, [215] and the same, by the custom, ought to be presented within one year after the surrender. In this case, such a surrender was made to the use of the defendant, unto the two tenants who paid the rents to the lord inde debita, and which two tenants died within the year, and before any court held there for the manor : the question was, whether this shall be a good surrender, if the same be presented at the next court held for the manor 1 and whether the acceptance of the rent, by the lord, shall amount unto an admittance. It was urged, that here the two tenants died before the surrender was presented, and that therefore the same was to come unto the heir who made the lease to the plaintiff. It was likewise urged, that the law hath great regard unto particular customs, and doth much favour them, as 8 E. 2. Fitz. tit. Prescription, placit. 50. Nota, that lay the custom of Kent, if a man be hanged for felony, the King shall not have annum diem & vastum, nor the lord any escheat of these lands in Kent, the custom there hinders it; and so by the special custom, an infant may devise gavelkind land at the age of 15 years, as appears in 21 H. 7. fol. 17. and Coke 5 pars, fol, 84. Perymans case, touching such particular customs. It was then urged for the defendant, the point being only, whether the surrender here out of court shall be good, and of force to bind the heir, before that this be presented in court: it was urged, that it shall bind him, so that the lease here by him made to the plaintiff, ia not good; here by the custom (as it was urged) a certain time is limited for the presentment of this surrender, aud this is to be at the next court, and this is a good conveyance to bind the copyholder and his heir: no court as yet held, if any thing here hath happened, so that this surrender cannot be presented; this peradventure may somewhat alter the case; the cases put upon several customs in Kent, and other places, may well be agreed, but are not to be applied to this case in question. Two objections made against the defendant, and his title by the surrender : the first, that Herring the copyholder who made the surrender is dead, and no presentment made of this. This is no objection, for one who is by wrong in possession of a manor, may make admittances of copyholds, being dominus pro tempore, and this a disseisor may do, as appeareth Coke 4 pars, fol. 24. in Clark and Pennifethers case; this pre* 182 TEBMIN. MICH. 14 JAC. 3 BULSTBODE, 216. aentment to be made of the surrender, by the two customary tenants before it be done, is but a ceremony to notifie this, and therefore death happening before, it shall be no impediment for to hinder this, for the copyholder hath given all by the surrender before, and nothing at all doth pass by this presentment; this may be resembled to the case of an obligation, delivered into the hands of one as an escrow, to be afterwards delivered, as appears by 27 H. 6. fol. 7. & 14 E. 4. fol. 2. & Coke 3 pars, fol. 35. b. in Jennings and Braggs case, put in the end of Butler and Bakers case, that if death happens before the second delivery, this shall make no alteration, and Coke 4 pars, fol. 29. b. in Buntings case it is resolved in case of a surrender by a copyholder, that if he dies before this surrender be presented in courts this is not material, nor shall be any ways prejudicial to the party to whose use the surrender was made, and Coke 5 pars, fol. 84. b. in Perymans case the surrender is void, if it be not presented in court. Obj. The second...
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