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3. IN an Ejectione firmae between Edward Bullock Plaintiff, and John Dib∣ler De••endant, the case appeared to be this; A man was seised of a Co∣pyhold Ten••••ent, p••rcell of the Mannor of Stratfield Mortimer, the County of Berks, in right of his wife, in his Demesne as of Fee, and surrendred this Copy bold Tenement by himself without his wife, to the use of a stranger in Fee, who was 〈◊〉〈◊〉 by the Lo•••• accordingly, the Husband dies, the wife
dies, the Heir of the wife without any admittance enters upon the stranger, and makes a Lease for a year to the Plaintiff, upon whom the Defendant in right of him to whom the Surrender was made, re-enters, and adiudged that the Plaintiff ought to recover, and that the surrender of the Husband was not as a discontinuance against the wise, to put the Heir to his Plaint in nature of a Sur Cui in vita, for a Discontinuance shall not be by a Deed of Feement only, but by it with the Livery ensuing, wherby the entire Fee-simple is given, what Estate so ever the Feoffor had by reason of the Livery, where by Deed of Grant nothing passed but that which the party might law∣fully grant: And here it shall be taken as if the Grant had been made by the Husband which passed but his Estate, to wit, that which he might lawfully grant without prejudice to his wife. But yet there is this diversity be∣tween a surrender of an Estate for life, and a surrender of an Estate in Fee to the use of a scranger, to wit, that by the one the Estate drowned in the Lord by the surrender, and by the other it is not drowned in the Lord, but is transferred to him to whom it was made, upon which he is admitted to it; otherwise, in the last case it returns to him who surrendred, and then upon the admittance he is in the Per by him who surrendred, and not by the Lord, or by the Surrender made by Tenant for life, he to whose use it is made ought to take it of the Lord, and he is there in by him, and not by him who surrendred.
And this is the common difference betwixt Customary Estates for lives, and Customary Estates of Inheritance.
And the Plaint of Cui in vita is given where recovery by default is against the husband and wife, and not upon the surrender of the husband; for suppose the husband had surrendred meerly to the Lord himself, yet the wife might have entred after the death of the husband, because the surrender goes but to the Estate which the husband might lawfully part with, and therfore ra∣ther to be resembled to a Grant then to a Feoffment.
And notwithstanding that he was not admitted, yet he might enter and take the profits, and make a Lease according to the custom, or bring an A∣ction of Trespasse against him who disturbes him? But if the Lord require his Fine or his Services, and the Heir refuse to do them, this may be a for∣feiture of his Copyhold; But untill lawfull Seisin made by the Lord (be∣cause it belongeth to him) the Heir may intermeddle with the Possession, albeit he be not admitted by the Lord where it is an Estate of Iuheritance by the Custom.
And in this Term also in another case, in the same Court it was adjud∣ged. that an Infant who surrenders his Copyhold Land within age, may enter at his full age, without being put any Suit for it.
And the first case was very well argued by one Brock, a Puny utter Barister of the Inner-Temple, this Term for the Plaintiff. And it was the first De∣mur that he argued in Court.