trustees or trustee of the trust-estate, monies and premises, the trustee or trustees whereof shall so depart this life &c. &c., or become incapable to act as aforesaid, or the executors or adminstrators of the last surviving or continuing trustee, with the consent of the person, who, under the limitations herein before contained, shall, for the time being, be tenant for life, or tenant in tail male by purchase, in possession of the said capital messuages, &c., herein before devised, if such person shall be of the age of twenty-one years, (such consent to be signified by some writing under his hand and seal) but if such person shall be under the age &c., OR in case there shall not be any such person, THEN, at the proper discretion and authority of such surviving or continuing trustees or trustee, or of the executors, &c., BY any deed or instrument, in writing, &c., to appoint one or more person or persons, to be a trustee or trustees, in the room of the trustee or trustees so dying or desiring to be discharged or &c. as aforesaid, AND that, upon every such appointment, the manors and premises which shall be then vested in the trustee or trustees so dying &c., as aforesaid, either solely or jointly with surviving or continuing trustees or trustee, shall be conveyed, assigned and transferred, so and in such manner that the same may become vested in the new trustee or trustees, jointly with the surviving or continuing trustees or trustee, or solely as occasion shall require; AND every such new trustee shall have such and the same powers and authorities, and discretion, to all intents and purposes whatsoever, as if he had been originally nominated a trustee in this my will:

PROVIDED ALSO, and I do hereby declare, that the said several trustees hereby nominated, &c., (indemnity of trustees and for re-imbursement.) ;

I bequeath to

CHAP. III.

SEC. II.

, his executors, administra- Bequest by

And I hereby

tors or assigns, the sum of £
republish my will and declare this codicil to be a part

codicil.

thereof.

IN WITNESS, &c.

CHAPTER. IV

OF COPYHOLDS.

1. Deed of covenants on the purchase of copy

hold lands.

2. Deed of covenants on the mortgage of copy

hold lands.

Reason for having a deed of covenant.

SECTION I.

Of deed of covenants on the purchase of copyhold lands.

Since, in general, the custom of manors does not permit the covenants for title to be contained in the surrender, it is the practice to have a deed to accompany the surrender, by which, after reciting the contract, the vendor, in consideration of the price, covenants that he or his trustee will surrender the purchased lands to the purchaser, or to a trustee for him as may be agreed on. And by this deed the vendor covenants, that he is seised of the premises of and in a good estate of inheritance in possession, according to the custom of the manor,—that he hath power to surrender,-for peaceable possession,-free from incumbrances, (except the

rents and services due to the lord of the manor),—and CHAP. IV. for further assurance.

The deed of covenant is sometimes precedent, and sometimes subsequent, to the surrender, which is then recited in it.

SEC. I.

in lots.

Where copyhold lands, comprised in one surrender, Copyhold sold are purchased in lots, they may be surrendered to trustees, as to the different lots, upon such trusts as the respective purchasers shall appoint, or in trust for them, their heirs "sequels in right,"(1) and assigns for ever, -the accompanying deed containing a set of covenants from the vendor with each purchaser, or one set of covenants with the trustees.

Copyhold lands, being always subject to a rent to the lord, when they are sold in parcels to different purchasers, the rent should be apportioned by an agreement at the end of the deed of covenants.

If there be any deeds which relate to the surrendered Covenant for production of lands, the person in whose custody they are to remain deeds, must covenant for their production. It seems to be unnecessary to include office copies of surrenders and admittances in such covenants, as other copies (the copy and not the original being the evidence by which the lands are held,) may, at any time, be had from the steward, and are good evidence, though he were not the steward at the time the surrenders were passed.

In the county of Durham, copyhold lands may be Custom of surrendered to trustees upon such trusts as the copy-County of copy hold in the holder shall by deed appoint. In this case, on a sale, Durham. it is proper to exercise that power by the deed of covenants, and to take a surrender also; but, if the power of

(1) Whether these words are to be used or not will depend on the custom of the manor.

appointment should not be exercised, the surrender, (which has, in many respects, the operation of a fine) would extinguish the power, and vest a good title in the purchaser.

If there be mortgagees, legatees, annuitants or other incumbrancers, who are paid off out of the purchasemoney, they ought to join in the surrender, as evidence that they have been paid off, and, for the same reason, the executor of a mortgagee of copyhold lands, ought on all occasions, when the money is paid off, to join in the surrender with the heir. As the legal estate of copyhold lands vested in a trustee, or mortgagee, cannot be devised, it generally vests in the heir; but, if there be any particular inconvenience, which would result from suffering it thus to descend, a mortgagee may surrender to trustees, in trust, on payment of mortgagemoney and interest, to convey to the owner, and such trustees may surrender to new ones.

Copyholds are within the statute of the 6 Geo. 4, c. 74, and, therefore, an infant trustee, in whom such property is vested, will, on application to a court of equity, be ordered to convey.

A right in copyhold lands may be released, particularly an equitable one. Thus, if lands be surrendered to trustees, in trust to be sold, and the money to be divided among several persons; after the trustees have surrendered, the persons entitled to the money may "remise, release and for ever quit claim, all their estate "right, title, &c.," to the purchaser or his trustees. If lands are surrendered to trustees, in trust for a and the trustees surrender the legal estate by the person, direction of their cestui que trust, the latter may release his right and title to the surrenderee.

In some manors the copyholder surrenders in court, in others before the steward out of court, in others into the hands of two copyholders of the manor, who present the surrender at the following court. In some manors the copyholder may surrender by power of attorney, in others the steward can grant a deputation to some person to take a surrender in his place. In most manors, the surrender, in whatever mode it is taken, is presented to, and found by, the homage or jury, and an admittance, which is a separate instrument which recites that fact, is made out by the steward thereupon.

CHAP. IV.

SEC. I.

In the county of Durham the copyholder has an Custom of estate of inheritance (not at the will of the lord, but) County of Durcopyholds in according to the custom of the manor, and the surren- ham. der and admittance are contained in the same instrument; and, to enable a copyholder to dispose of his estate by will, it is necessary that the legal estate should be vested, not in himself, but in some other person, in trust for him, and he cannot surrender into the hands of the lord "to such uses as he shall declare "by will" as is the custom in some manors.

ded, &c.

Copyholds are not liable to be extended, are not sub- Copyholds canject to debts of any kind, and, not being within the not be extenStatute of Fraud, they pass, by a will, unattested. In some manors they cannot be entailed, in others limitations in tail are allowed, and may be barred by surrender by a recovery in the lord's court, or by the copyholder making a feoffment so as to commit a voluntary forfeiture, on which the lord seizes the land and regrants it to him in fee. Such of these modes of barring the entail as are authorized by the court, (or if two of