Narrationes modernæ, or, Modern reports begun in the now upper bench court at VVestminster in the beginning of Hillary term 21 Caroli, and continued to the end of Michaelmas term 1655 as well on the criminall, as on the pleas side : most of which time the late Lord Chief Justice Roll gave the rule there : with necessary tables for the ready finding out and making use of the matters contained in the whole book : and an addition of the number rolls to most of the remarkable cases / by William Style ...

VVallis against Bucknal.

Trin. 1651. Banc. sup.

Trin. 1649. rot. 600.

VPon a special Verdict the case fell out to be this.* 1.1 One selfed of Copy∣hold lands of inh••ritance made a Letter of Attorney unto two joynt∣ly and severally, to surrender the lands after his death to certain uses, ac∣cording to the Custom of the Manor. The question was, whether this was a good Custom or no. Ellis of Councel with the Plaintif argued, that it was not a good Custom, because a Custom ought to be reasonable, but this Custom is unreasonable, because it is not only against a particular Law, but it is against the general rule of Law to pass estates of inheri∣tance in such a Manor; and although particular Customs may be against publique interest pro bo••o publico, yet this is nothing to our case, for this is not for the publique good, and therefore it is not good. 2ly. An autho∣rity ought to be countermandable, and to determine by the death of the party that gives the authority; but here it is not so, but it is to continue af∣ter his death. Next, no man can give authority to another to do a thing which he himself could not do, but here it is otherwise, and therefore it is not good. Also by the death of the Copyholder the Law settles the lands in the heir, and an authority cannot divest them out of him; this is not like to the surrendring of Copyhold lands into the hands of the Lord, for such a surrender cannot be revoked, but this authority may be revoked: But which is more, the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor, but only by way of recital, which is not good, for they ought to have been found to directly; nor doth it ap∣pear that they were customary Tenants at the time of the admittance of the party, neither is there any possession or title found in the Defendant, and so the Plaintif having primer possession, the Defendant is culpable; neither is it found that the Customary Tenant, who gave this authority, had an estate in fee-simple in the lands, and if he had but an estate for life, he could not make such a Letter of Attorney; neither is the authority gi∣ven warranted by the Custom, and so he prayed judgement for the Plain∣tif. Wilmot for the Defendant, As to the authority, he said that it was good, and did well enough survive the party that gave it, because it is sup∣ported with a special direction from the party that gave it. 1 H. 7.8. and this is the reason that an Executor may sell lands of the Testator after his death, viz. because his authority is so supported, 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage, and therefore shall not now be admitted to take it. But besides the autho∣rity here given is more than a bare authority, for it is backed, with the circumstances of time, persons, and of a Custom, which is not of a slight e∣steem in Law, and by such a Custom which is very reasonable; for it is but to enable the party to dispose of his own lands; and far more unreaso∣nable Customs than this are allowed in our Law, as that in Kent for an Infant of 15 years of age to have power to sell his lands; neither is this Custom contrary to any positive rule of Law; for it is here to create the authority to begin after the parties death that created it, and so it is not to determine with his death, for till then it begins not, and the Custom here is but to alien lands, which is no strange thing, and this Custom extends but within the Manor, which is but to a small compass of ground; and so

the publique is not much concerned in it, and the case of 17 Car. in this Court, Bambridge and Whaddons case differs from our Case; for that was not supported with a custome as this is. And it doth appear by the Record, that Dalby the Attorney is a customary Tenant, and the admission is also found by the Verdict to be secundum consuetudinem Manerii, and so that is well enough, and then one cannot gain a Copyhold estate by disseisin, and so no primer seisin shall be intended, as was urged on the other side, and it is also found that the Copyholder was seised. Roll chief Iustice, It will be a hard matter to maintain the Custom,* 1.2 if it be not found that the Copy∣holder was seised in fee of the Copyhold lands. 2ly. It is not here found that the land is demisable, according to the will of the Lord, and so it may be free land, and then the custom doth not extend unto it, nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants.* 1.3 And the primer possession will make a disseisin here by the Defendant, if the custom be not-well found, and so judgement must be for the Plaintif.* 1.4 And I cannot see how the Custom can be good, it be∣ing against the rules of Law.* 1.5 A man cannot devise Copyhold lands, and this case is worse, but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise, for it is a hard case, and my Brothers have not been attended with Books. Mich. following Iudge∣ment was given for the Plaintif, nisi. It was moved again, and the Court would advise. Postea.

Notes

• * 1.1

  S••ec••al ver∣dict upon a Custom of a Manor.
• * 1.2

  Custom.
• * 1.3

  Disseisin.
• * 1.4

  Devise.
• * 1.5

  Surrender.