The mode in which the alienation of copyholds is at present effected, so far at least as relates to transactions inter vivos, still retains much of the simplicity, as well as the inconvenience, of the original method in which the alienation of these lands was first allowed to take place. The copyholder surrenders the lands into the hands of his lord, who thereupon admits the alienee. For the purpose of effecting these admissions, and of informing the lord of the different events happening within his manor, as well as for settling disputes, it was formerly necessary that his Customary Court, to which all the copyholders were suitors, should from time to time be held. At this Court, the copyholders present were called the homage, on account of the ceremony of homage which they were all anciently bound to perform to their lord (a). In order to form a Court, it was formerly necessary that two copyholders at least should be present (b). But, in modern times, the holding of courts having degenerated into little more than an inconvenient formality, it has been provided by an act of the present reign, that Customary Courts may be holden without the presence of any copyholder; but no proclamation made at any such courts is to affect the title or interest of any person not present, unless notice thereof shall be duly served on him within one month (c); and it is also provided, that where, by the custom of any manor, the lord is authorized, with the consent of the homage, to grant any common or waste lands of the manor, the Court must be duly summoned and holden as before the act (d). No Court can lawfully be held out of the manor; but by immemorial custom, Courts for several manors may be held together within one of them (e). In order that the transactions at the Customary Court may be preserved, a book is provided, in which a correct account of all the proceedings is entered by a person duly authorized. This book, or a series of them, forms the court rolls of the manor. The person who makes the entries is the steward; and the court rolls are kept by him, but subject to the right of the tenants to inspect them (f). This officer also usually presides at the Court of the manor.
Courts may now be holden without the presence of any copyholder.
(a) Ante. p. 116.
(b) 1 Scriv. Cop. 289.
(c) Stat. 4 & 5 Vict. c. 35, s. 86.
Before adverting to alienation by surrender and admittance, it will be proper to mention, that, whenever any lands which have been demisable time out of mind by copy of court roll, fall into the hands of the lord, he is at liberty to grant them to be held by copy at his will, according to the custom of the manor, under the usual services (g). These grants may be made by the lord for the time being, whatever be the extent of his interest (h), so only that it be lawful: for instance, by a tenant for a term of life or years. But if the lord, instead of granting the lands by copy, should once make any conveyance of them at the common law, though it were only a lease for years, his power to grant by copy would for ever be destroyed (i). The steward, or his deputy, if duly authorized so to do, may also make grants, as well as the lord, whose servant he is(j). It was formerly doubtful whether the steward or his deputy could make grants of copyholds when out of the manor (k). But by the act (l), to which we have before had occasion to refer, it is provided that the lord of any manor, or the steward, or deputy steward, may grant at any time, and at any place, either within or out of the manor, any lands parcel of the manor, to be held by copy of court roll, or according to the custom of the manor, which such lord shall for the time being be authorized and empowered to grant out to be held as aforesaid; so that such lands be granted for such estate, and to such person only, as the lord, steward, or deputy, shall be authorized or empowered to grant the same.
Court rolls. Steward.
(d) Stat. 4 & 5 Vict. c. 35, s. 91.
(e) 1 Scriv. Cop. 6. (f) Ibid. 587, 588.
(g) 1 Watk. Cop. 23; 1 Scriv.
(h) Due d. Rayer v. Strick-land, 2 Q. B. 792.
(i) 1 Watk. Cop. 37.
When a copyholder is desirous of disposing of his lands, the usual method of alienation is by surrender of the lands into the hands of the lord (usually through the medium of his steward), to the use of the alienee and his heirs, or for any other customary estate which it may be wished to bestow. This surrender generally takes place by the symbolical delivery of a rod, by the tenant to the steward. It may be made either in or out of Court. If made in Court, it is of course entered on the court rolls, together with the other proceedings; and a copy of so much of the roll as relates to such surrender is made by the steward, signed by him and stamped like a purchase deed; it is then given to the purchaser as a muniment of his title (m). If the surrender should be made out of Court, a memorandum of the transaction, signed by the parties and the steward, is made, in writing, and duly stamped as before (n).
Grants may now be made out of the manor.
Alienation l>y surrender.
Out of court.
(j) 1 Watk. Cop. 29. (k) Ibid. 30.
(l) Stat. 4 & 5 Vict. c. 35, s. 87.
(m) A form of such a copy of court roll will be found in Appendix (G).
(n) By the Stamp Act, 1870, the stamp duty on a memorandum of a surrender if made out of court, or on the copy of court roll if made in court, is the same as on the sale or mortgage of a freehold estate; hut if not made on a sale or mortgage, the duty is 10*. Stat. 33 & 34 Vict. c. 97, sched. tit. Copyhold and customary estates.
In order to give effect to a surrender made out of Court, it was formerly necessary that due mention, or presentment, of the transaction, should be made by the suitors or homage assembled at the next, or, by special custom, at some other subsequent Court (o). And in this manner an entry of the surrender appeared on the court rolls, the steward entering the presentment as part of the business of the Court. But by the recent act, it is now provided that surrenders, copies of which may be delivered to the lord, his steward, or deputy steward, shall be forthwith entered on the court rolls; which entry is to be deemed to be an entry made in pursuance of a presentment by the homage (p). So that in this case, the ceremony of presentment is now dispensed with. When the surrender has been made, the surrenderor still continues tenant to the lord, until the admittance of the surrenderee. The surrenderee acquires by the surrender merely an inchoate right, to be perfected by admittance (q). This right was formerly inalienable at law, even by will, until rendered devisable by the new statute for the amendment of the laws with respect to wills (r); but, like a possibility in the case of freeholds, it may always be released, by deed, to the tenant of the lands (s).