The reading upon the statute of the thirteenth of Elizabeth, chapter VII. touching bankrupts, learnedly and amply expained,: by John Stone of Gray's Inn, esquire.

5. Division.

What Copyhold Lands of a Bankrupt the Commissioners may sell, and in what case Composition shall be made with the Lord, and in what not.

1. A Tenant by Copy of Wh. Acre surrenders to the use of B. for years, upon condition that he will not do waste, and after he surrenders the reversion into the hands of two Tenants to the use of C. a Merchant in Fee, the Lord makes a Feoffment of the Acre to D. C. departs the Realm, and after is non solvent, a Privy-Seal is awarded a∣gainst him, the Tenants present the surrender to the Court of the Lord; C. will not return, the Com∣missioners sell the Reversion to E. B. makes waste, E. tenders Composition to D. who refuseth it, and E. enters for the Condition broken.

The Sale is good, and the entry of E. congeable, but no Composition is due.

Points in the Case at Common Law.

• 1. TEnant by Copy surrenders into the hands of two Tenants, and the Lord separates the Freehold from the Mannor, if the surrender is void?
• 2. Tenant by Copy, surrenders to one for years, and after to the use of another in Fee, if good with∣out Attornement?
• 3. If the Tenants are bound to Present the sur∣render at the Lords Court, after he had separated

• the free hold from the Mannor, That is, whether the Presentment shall not interest the party to whose use, &c. by relation from the surrender?
• 4. If Tenant by Copy surrender to the use of one for years upon condition, and after he surrenders the reversion to the use of another in fee, and after the condition is broken, if the Grantee in reversion shall enter for the forfeiture by the Statute of 32 H. 8. Cap. 34.
• 5. If a Copy-holder Lessee for years by surrender commits waste, if this is a forfeiture to the Lord, or onely to him in reversion, or of the reversion?

Points upon the Statute.

• 1. IF a Merchant who departs by license, and upon a privy Seal will not return, but is non solvent, shall be a Bankrupt?
• 2. One had onely the free-hold of a sole Copy∣holder, if such Copy-hold may be transferred by sale of the Commissioners?
• 3. A Copy-hold is surrendred to the use of a Hus∣band, who will not be admitted, if the Commissio∣ners can sell?
• 4. Whether one fine, 2. fines, or no fine be due to the Lord?
• 5. Admitting a fine were due, and the Lord after tender refuseth it, what remedy the Vendee hath for the Land, or the Lord for the fine?

1. When there is a Lord of a Mannor, and Co∣py-holder of Inheritance surrenders into two Tenants hands, and then the Lord makes a Feofment of the Copy-hold, I take it that this severance of the

Free hold, and of the Copy-hold from the Mannor shall not destroy the surrender, For when the Co∣py-holder hath once surrendred, he hath dismissed himself of all his interest, and the right is in the party to whose use the surrender was made.

Bunting Ca. Coke. li. 4. The death of the surren∣derer, the death of the Tenants, nor the death of the party to whose use the surrender was made, shall not alter the Case. But the party to whose use such a surrender is made, hath such an interest as shall descend to his heir, for his heir shall be admitted, and by the same reason his interest shall remain, not∣withstanding the Lord sell the Free hold (as it is said in Morrels case,) the custom hath so esta∣blished, and fixt the estate of the Copy-holders that the Lords severing it from the Mannor, cannot alter it.

It was adjudged, that the custome of a Man∣nor being, that if Tenant for life by Copy die, his Wife shall have her Widdowes estate, the Lord dis∣solved his Mannor, the Copy holders Wife died, he took a new Wife, and then he died, the Second Wife had her Widdowes estate, and yet there was no Court, whether she could come to have the death of her Husband found and presented, and where she might be admitted? &c.

But admit that the Surrender had been made into the Lords hands, out of the Court, as by Melwich his Case it may, or admit it had been made in Court, and the party to whose use it was made, had ten∣dered the Lord his due fine, and the Lord would de∣mand more, and so defer the admittance: In these Cases, the Law is plain, that the party may enter, and no Action lies by the Lord against him. And what if the Lord dissolve the Mannor, shall that

alter the case? No, no more than if a Copy∣holder of inheritance die, and the Lord severs the Freehold from the Copy before the Heir be admit∣ted, this shall not destroy the Heirs estate, but he may lawfully enter, and hold it for ever without ad∣mittance.

2. But here notwithstanding this severance of the Free hold from the Mannor, the two Tenants pre∣sent the Surrender the next Court held by the Lord for the Mannor. The Question is first, whether the Tenants were bound to do it or no? And the next, what is wrought by it? And I take it they ought to present it; For notwithstanding the Copy∣hold be severed from the Mannor, yet they are not severed, they be Tenants still, and they must do their duties, and the rather, because it is not al∣together severed, for Tenant for years of the Co∣py-hold, remaines still Tenant to the Lord, and his rents and duties are to be done to the first Lord, and not to the Copy-holder in reversion: But to what use is this presentment of theirs? I take it to this use. It shall have relation to the Surrender and in∣terest of the party, to whose use it was made from the time of the Surrender. Like as an Office found 10. years after an escheat, will intitle the King to all the mean profits from the death of the party; Or as a Deed acknowledged to be Inrolled, shall be Inrolled notwithstanding the death of any of the parties, and shall have relation from the date of the Deed, to intitle the Bargainee to the profits: Or as a Legacy is given by Will, cannot be sued for till the Will be proved, and then the Probate makes the Legacy due by relation, ever since the death of the Testator; Even so the Presentment hath relation to intitle the party to whose use the Surrender was

made, from the time of the Surrender; And this appears plainly by Rowswels Case in Chancery, Feme Tenant for life of a Copy-hold, the Lord grants the Reversion to three, the Baron Surrenders to one of them, who first dies, there the Lord would have kept the Land as occupant, during the Husbands life. 9 Eliz. Dyer. 267.

But it was decreed, that if the Husband and Wife would surrender to the Surviving Lessees in reversion, the Lord must admit them, or else avoid the pos∣session; So if the Lord will not admit the party to whose use, the party shall have the Lands; if a man surrender to the use of his last Will and Testament, the Lord shall not have the Land but the Tenant during his life.

3. But before I go any further, let us consider of this Lease, it is by a Surrender upon Condition, and he in reversion surrenders to anothers use, and the Condition is broken: My Question is, whether he in reversion shall enter for the Condition? by the Common Law he cannot, then may he enter by the Statute of 32 H. 8. Cap. 34. of Conditions, there be divers Statutes which reach Copy-holds, though they be not named.

Heydons Case, lib. 3. Copy-holders are Lessees within the Statute, 32 H. 8. of Monasteries.

The Statute of Cui in vita, Receipt, quod ei defortiat, Coke li. 4. Kite. per Wray, Copy-hold estate is with∣in the Statute of Champertie, and Maintenance, 32 H. 8. Cap. 9. Dean and Chapter of Worcesters Case, Coke li. 6. Copy hold is within the Statute of 13. Eli of Leases by spiritual persons, Lands usually let, &c.

Lillingstones Case adjudged 27. Eliz. That if the Lord infeoff the Copy-holder to anothers use, that the Copy-hold is saved by the Proviso in the Statute of 27. H. 8.

Margaret Podgers Case. A Copy-holder is bound by Fine, and 5. years.

The general rule is layed down in Heydons Case, That all Statutes that may be for the good of the Copy-holder shall extend to them, therefore I am of opinion, that such a Grantee shall enter for non∣payment of rent, or for doing of waste, as the words of the Statute are; For it is for the good of the Copy-holders that their Farmers be bound to pay their Rents & keep their Tenements in repair. I should make small question of this if the Lease were made by license, for then it is a plain lease at Common Law, and an Eje∣ctione firme will lie: But here the Lessee comes in by the Lords admittance, but that is answered by my Lord Cook, when he is once admitted, he is in imme∣diately from the Surrender and in the Per.

4. But this Condition is, for waste, and it is broken, whether is there a forfeiture to him in re∣version, or a forfeiture to the Lord of the estate in fee simple? It is to the Lessor, not to the Lord, wherein I fall again upon the difference, when it is by License, and when by Surrender, for I take him to be as if he had a particular estate with a remainder over. In Podgers Case fo. 107. Si cop. pour vie sit sem∣ble al case del Duke of Norff.

Points upon the Statute.

A Merchant being a sufficient man departs the Realm, and beyond the Seas becomes non sol∣vent, and so refuses to return, although he be ser∣ved with a privy Seal to return: Here be two Que∣stions,

First whether he be a Bankrupt for not re∣turning; For he is not within the Compass of the Statute of departing the Realm. The next Question is, (admitting him to be a Bankrupt:) Whether the King shall have his Goods, as the goods of a Fu∣gitive, or else whether they shall go to satisfy the Creditors? For the first, I think, he is a Bankrupt, and although he be not within the compass of these words, (depart the Realm) yet it is plain, he is within these words (absents himself) for although his departure was no offence either to the King or his Creditors (For Merchants both by the Com∣mon Law, and notwithstanding the Statutes of 5 R. 2. Cap. 2. or the Statutes of 13 Eliz.) might de∣part the Realm without license, except the King (as it is in Natura Brevium fol. 85. had made pro∣clamation to the Contrary.) Yet the King not only by the Statute but by the Common Law, as he may forbid a man to depart, so he may send for him at his pleasure to return; And that is proved by the ex∣press Book of 2 & 3 Phil. and Mary. Dyer, fol. 128.

Where it is said, That if he be commanded to return, either by the privy Seal, or the great Seal, and refuse, his Lands and his Chattels shall be siesed into the Kings hands; and for that a President was found in the Exchequer, where in Anno 19 E. 2. It was William de Brittains case, although it is true (as I said) the first departure is no offence accor∣ding to the Book of 13 Eliz. D. fol. 296. But then admitting he is a Bankrupt, and admitting that by his refusal to return he hath forfeited all his Goods and Lands to the King, The Question is, whether the King, or the Creditors shall be preferred? And I take it the (Creditors shall be preferred) Yet He agree the rule is, that when a title falls to the

King and a Common person both at once, the King shall be preferred.

Dame Hales, Villain and Ideot, Priority and Po∣steriority. 5 E. 3.

But I rely upon a Case, which was ruled upon a Trial by my Lord Cok. 12. Jac. int. Newman and Martin, ou Martin fuit adjudge Bankrupt because he was beyond the Seas, &c.

2. Points upon the Statute. One hath the free∣hold and another hath the Copy-hold of one onely acre severed from the Mannor, this is plain, as it is in my Lord Cokes 4. reports in Case. This Copy-hold by no means can be trans∣ferred from one to another. But now our question is, Whether this Copy may be sold by Commissio∣ners? I say, Parliamentum potest omnia, By Act of Parliament it may be sold, And here the very words of the Parliament are, That the Commissioners may sell his Copy-hold estate.

The Law was taken before Corbets case was first argued, That it was impossible to cut off perpetui∣ties, yet there were divers before, that were cut off by Act of Parliament, and they all that argued for the perpetuites agreed, that by Act of Parliament it might be done. By the Common Law a thing in action cannot be transferred, as a debt upon an Obligation; Yet by the Statute of Bankrupt, Ja∣cobi primo, we see it is done every day.

But it will be objected, that the Statute goes on and saith, That the Vendee shall compound with the Lord for the Fine, and be admitted: Now if there can be no admittance, then no sale, and it shall be intended such Copy-hold whereof admit∣tance may be. And in Dr. Bonhams case, divers cases are put where divers Acts of Parliament are

void and divers others construed directly contrary to the words. But out of that Case I will prove this to be good; for first this Act saith, The Com∣missioners may sell, then there is their Authority; the Vendee shall compound, that is a second action which must be done, if it may be done. Hillary 38 Eliz. A Grant was made to the Mayor and Commonalty of London, that the Mayor should have the search, &c. of all Handicrafts, and should punish them, but granted no Court where the same should be punished; this was good for to search, and to discover; but void for him to punish, but it must be punished, as it may be otherwise.

The Statute of 5 Eliz. cap. 13. of Highways saith, Who comes not at the common days shall forfeit, and orders, that the offence shall be presented at the next Sessions, &c. Upon pain of Forty Shillings; no Certificate is made, yet the offence shall be punished.

3. But now we are upon the point of Fines, a question rises in this Case, whether two Fines, or but one, or no Fine be due to the Lord; and I think a Fine is due. Plainly two Fines should have been paid, one to the Lord of the Mannor upon the surrender of A. to C. and another upon the sale by the Commissioners, as it is in the 4th. Report fo. 22. the heir surrenders before admittance, the Lord shall have two Fines. But in Hubbard and Hammond's Case, it is said no Fine is due to the Lord before admittance; for the admittance is the cause of the Fine; and if after admittance it be denied, it is a forfeiture. But I take it in this case, the Lord shall have no Fines; for the Statute must have a reasonable construction; and indeed for all parties according to equity; and in all

Statutes where the ordering of things is referred to mens discretions, equity and good Conscience ought to respected; and therefore it is said, 3 E. 3. An accompt ought to be amended by the Audi∣tors, according to equity and good faith: But what remedy hath the Lord for it?

4. But here a Fine is tendered, and refused; now the question is double, 1. What remedy generally? 2. Whether it be lost for ever or not? For the first, if it had been in a case that the Lord could have admitted him, he should have had the ordinary re∣medy, as all Lords have for their Fines, that is up∣on presentment of a Surrender, or of the death of a Tenant, or of sale by Commissioners, the order is to call the Party that should be admitted, and if he come not in time, to seize his Land: But here can be no Calling, for here's no Court: Surely, I think as the Vendee may enter without admittance, so the Lord may enter again upon him, and seize the Land till his Fines be paid; but these Fines have been tendred, and refused.

We see that tender and refusal in many cases is peremptory, as Littleton in case of Mortgage.

27 E. 3.88. Un distr. pur dam. fesant, & si avoyde, the Tenant pleaded, that before the taking, at the taking, and after the taking, he tendered sufficient amends, and the Avowant refused, he hath lost his damages, and shall pay damages, &c.

22 Hen. 6.44. A Man is bound in an Obligation to stand to the award of J. S. he awards that the one shall release the other, who tenders a release, the other refuses, in Action of Debt, sur le ob. tender and refusal is a good plea, sans dira uncor Prist.

But yet in the same case it is put, That if Money had been awarded, and tendered, and refused,

the Bond had been saved, but the duty had remained.

45 E. 3.9. The Lord destrains, the Tenant ten∣ders, the Lord refuses, yet the Rent is not lost, but at another time the Lord may distrain.

Brian, If the Tenant tender his homage, and the Lord refuse, he cannot destrain, but upon a request, if the Tenant refuse, he may destrain. So here, the Tenant tenders his Fine, the Lord refuses, I take it the Fine is not lost; but after a new request the Lord may seize.

5. The last point upon my Statute is, a Bankrupt purchases a Copyhold, and the Tenant surrenders into two Tenants hands to the use of the Bank∣rupt, and now he will not be admitted: whether the Commissioners shall sell the Copyhold? And I think they shall by the very words of the Statute, which are,

That the Commissioners shall sell all Lands which the Bankrupt shall purchase with any other Persons of trust, or to his secret use;

If then they may sell Lands wherein he hath secret use, much more, Lands wherein he hath an express use: And in this Case, if his negligence to pray to be admitted, or his absence beyond Sea shall hinder the present Sale, and he die, his heir may be admitted after his decease: And then a greater Question will rise, Whether the Land may be sold, or not?

2. A Copyholder of Inheritance, where the Custom is, that the Wife shall be indowed, sur∣renders into the hands of two Tenants to the use of the Mayor and Commonalty of D. in Fee, and dies; the Wife marries with I. S. a Merchant, the Mayor and Commonalty are admitted, the Heir of the Copyholder enters: I. S. and his Wife affirm a Plaint in the Lords Court, in nature of a

Writ of Dower, and recover against the Heir, the Mayor and Commonalty enter, I. S. and his Wife sue a Precept, in nature of a Scire facias, a∣gainst the Mayor and Commonalty, for to have a a Writ De Dote assignanda, and damages: I. S. be∣comes a Bankrupt, the Commissioners sell the Copyhold, and assign the damages which shall be recovered; the Vendee compounds with the Lord.

This is a good sale for a third part of the Copy∣hold, during the Coverture, and a good Com∣position; but the Assignment of the Damages is void.

3. A. Is Tenant in Tail of a Mannor, where the Custom is, that the Wife of a Copyholder shall have a Widow's Estate: A. grants white Acre to B. by Copy for life, and after he makes a Lease of white Acre for life to F. the Wife of B. dies: A. makes a Feoffment of the Mannor to G. and all the Tenants attorn: A. dies, B. takes a second Wife, and dies, the Issue in Tail enters into the Mannor; the second Wife takes M. to Husband, who becomes a Bankrupt; the Commissioners sell white Acre, the Vendee compounds with the Issue in Tail, and enters, F. dies.

The Sale is good during Coverture, and the Composition is good.

4. Baron and Feme have issue, A. a Daughter, the Baron dies, the Mannor of Sale is given to the Feme for life, the remainder to the Heirs of the Baron and Feme: A Copyholder surrenders to the use of him∣self in Tail; the remainder to A. in Fee, the Feme

takes a second Husband, and hath issue B. another Daughter and dies, A. enters, the Copyholder suf∣fers a customary recovery, and dies without issue; his Heir being a Merchant, and Bankrupt: B. en∣ters, the Commissioners sell the Copyhold: the Vendee compounds with B.

The Sale is good, but the Composition is good but for a fourth part.

• 1. A. Shall have a Moiety as Heir of the Hus∣band, and the Moiety of the other Moiety as Heir of the Feme, and B. the residue.
• 2. If Tenant by Copy, by Recovery may bar the Remainder?
• 3. If when the Lord is in Remainder, it be not so annexed to the Fee, that it cannot be pulled out by a Recovery?

5. The Mannor of D. is holden of the Mannor of S. by Copy, and I. S. holds a House, and Land Common for ten Cows of the Mannor of D. by Copy in Fee: The Lord of D. surrenders his Mannor to the use of I. S. for life, who is ad∣mitted accordingly: I. S. grants the Common by Copy to A. a Merchant, A. is admitted, and is a Bankrupt; I. S. dies, the Lord of D. enters, the Commissioners sell the Common, the Vendee com∣pounds with the Executors of I. S.

The Common cannot be sold, and if it might the Composition shall be with the Lord of D.

6. Tenant by Copy is disseised, and the Dissei∣sor is admitted Tenant by the Lord; the Lord

bargains and sells the Mannor to I. S. in Fee, by Deed inroll'd, the Disseisee becomes a Bankrupt; the Commissioners sell the Copyhold, the Vendee compounds with the Bargainer.

This is a good Sale, and a good Compo∣sition.

• 1. If Tenant by Copy may be disseised, or ousted, and this shall be no disseisin to the Lord?
• 2. If the Lord by the admittance of the Disseisor hath dispensed with the disseisin in part, and so he may apportion his own wrong?

7. A. disseises B. of the Mannor of S. and dies seized, C. the Son of A. enters, a Copyhold es∣cheats; D. enters and disseises C. and Leases the Mannor for years to E. who grants the Copy to F. in Fee; F. dies, his Heir is sworn of the Homage, and becomes a Bankrupt; D. dies, B. enters, the Com∣missioners sell the Copyhold, the Vendee com∣pounds with B. and is admitted; the Heir of D. recovers in a Mortdauncester, C. recovers in Entry sur disseisin, and B. recovers against him in a Writ of Right.

The Sale is good, and the Composition good.

8. A. and B. joynt-Tenants in Fee of a Man∣nor, they grant white Acre to I. S. for life by Copy; A. enters into Religion at Roan, B. makes a Lease for years of the Acre to C. to whom I. S. surrenders; B. dies, A. is deraigned, C. surrenders to A. I. S. becomes a Bankrupt; the Commissi∣oners sell the Copyhold, the Vendee compounds with A. the Heir of B. enters.

This is a good Sale, and a good Composition for a Moiety.

9. Six Copyholds escheat, the Lord grants them to A. a Merchant indebted, and after the Lord makes a Feoffment of the Freehold of the Copy∣hold to B. C. and D. the Merchant gives over Trading, B. disseises C. and D. the Merchant con∣tinues his debt by Interest, seven years pass, C. and D. recover against B. and have judgment to hold in severalty; C. and D. make partition; the Mer∣chant renues his Bonds with the Creditors, and keeps his House, the Commissioners sell the Copy∣holds, the Vendee compounds with B. C. and D. severally admitted.

The Sale is not good, because the Merchant is no Bankrupt; but if it were good, the Composition was good, and B. C. and D. have three Customary Mannors.