held by him" during his life, with the widowhood incident," and admittance of the said Henry Hawkins, Thomas Hext, and John Michell, To hold to the said Henry Hawkins, Thomas Hext, and John Michell, "for the term of their lives and the life of the longest liver of them, successively, according to the custom of the manor.

20th September, 1734. Surrender by Thomas Hext of a messuage in St. Austell, held by him by copy of court-roll of the 16th of June, 1709, for his life and the life of Francis John Hext, and the life of the longest liver of them, successively, according to the custom of the manor; and admittance of Thomas Hext, Francis John Hext, and John Hext, To hold to them "for the term of their lives and the life of the longest liver of them, successively, according to the custom of the manor." *28th August, 1761. Surrender by Grace Tremayne, widow, [*823 who was stated to hold by copy of court-roll of the 14th August, 1725, "for the lives of Thomas Hext and John Michell, and the life of the longest liver of them, successively, according to the custom of the manor;" and admittance of her eldest son Lewis Tremayne, Henry Hawkins Tremayne, her youngest son, and Grace Tremayne, her daughter, To hold to them "for their lives and the life of the longest liver of them, successively, according to the custom of the manor."

Same date. Surrender by Grace Tremayne of other tenements, and admittance of the same parties.

11th May, 1782. Admittance of Francis Polkinhorne (a) to a tenement in St. Austell, containing about an acre and a half of land, formerly in the possession of John Williams, afterwards of Phillipa Williams, his widow, and then of the said Francis Polkinhorne or his under-tenants, for the lives of Arthur Kempe, then aged 38 years, and Charles Trevanion Kempe, his son, then aged 4 years, successively, according to the custom of the said manor, "To hold said tenement and premises, with their appurtenances, to said Arthur Kempe and Charles Trevanion Kempe, by the nomination as aforesaid of the said Francis Polkinhorne, for their joint lives successively, in reversion of the said Francis Polkinhorne, according to the custom of the said manor."

14th February, 1785. Surrender by William Flamank of a tenement in St. Austell, containing about an acre and a half of land, "formerly in the possession of John Williams, deceased, afterwards of Francis Polkinhorne, then of Arthur Kempe, and now of the said *Wil[*824 liam Flamank or his under-tenants, and which he was entitled to hold for the lives of Francis Polkinhorne, Arthur Kempe, and Charles Trevanion Kempe, his son, and the life of the longest liver of them, successively, according to the custom of the said manor, by virtue of a copy of court-roll of the 11th May, 1782, granted to the said Arthur Kempe, and by him conveyed to the said William Flamank;" and admittance of William Flamank "for the lives of the said William Flamank, then aged about 46 years, Arthur Kempe, then aged about 41 years, and Charles Trevanion Kempe, son of the said Arthur Kempe, then aged about 7 years, successively, according to the custom of the said manor, To hold the said tenement and premises, with the appurtenances, to the said William Flamank for his life and the lives of the said Arthur Kempe and Charles Trevanion Kempe, and the life of the

(a) Francis Polkinhorne appears to have been deputy-steward of the manor.

longest liver of them, successively, according to the custom of the said manor."

It was further contended on the part of the defendants, that, assuming the evidence not to be sufficient to establish the custom relied on, the plaintiff's title, if any, accrued on the death of Richard Williams in 1826; and consequently that his claim was barred by the statute of limitations.

The learned judge directed a verdict to be entered for the plaintiff, reserving leave to the defendants to move to enter a verdict for them if the court should be of opinion that the evidence established their case,— the court to be at liberty to draw inferences of fact as a jury.

Kinglake, Serjt., in Michaelmas Term last, obtained a rule nisi accordingly.

Montague Smith, Q. C., and Karslake, now showed *cause.— *825] The question is, whether the surrender of the first tenant for life operates upon the estates of those who are designated to take in succession. The habendum is not to Joseph Phillips for his life and the lives of the other two persons named, but "to Joseph Phillips, Joseph Phillips his son, and Eliza Phillips his daughter, for their lives and the life of the longest liver of them, successively, according to the custom of the said manor." In Smartle v. Penhallow, 1 Salk. 188, by the custom lands were demisable by copy of court-roll to two or three persons for their lives and the life of the survivor, habendum successive sicut nominantur in charta, et non aliter; and it was held good. So, in Right v. Bawden, 3 East 260, the form of the grant was, habendum to A. for the lives of B. & C., his grandsons, during the life of either of them longest living, successively, according to the custom, &c. Lord Ellenborough there said: "Without any custom appearing in this manor for the cestui que vies to take the legal estate in reversion, to be sure the words granting the estate to William Bawden, to hold to him for the lives of Robert and William Bawden, his grandsons, and the life of the longest liver of them, successively, only conveyed the estate to William Bawden, the grandfather, during the lives of the persons so named. Had such a custom been stated, it might have had the effect of passing the estate to the other persons named: but without it I cannot say that they took the reversionary estate under the words of the copy.' In Doe d. Nepean v. Goddard, 1 B. & C. 522 (E. C. L. R. vol. 8), 2 D. & R. 773 (E. C. L. R. vol. 16), the custom was in much the same terms as in the case of Right v. Bawden, viz. that, when a copyhold tenement is granted by copy of court-roll to any person, to hold the same to such person for the lives of two or more other persons, and the life of the longest liver of such other persons, successively, and the grantee *826] dies during the life or lives of any one or more of such other persons, without having devised the said copyhold tenement, such other person or persons shall be entitled, by virtue of such grant, to take and hold the copyhold tenement, successively, as they are respectively named in the grant, during his or their life or lives respectively; but, if the grantee devises the copyhold tenement, the devisee shall take and hold it during the life or lives of the cestui que vies: and it was held that the custom was good. "The word successively,'" said Abbott, C. J., "in this grant is not, as it appears to me, an idle word. It is applicable to a holding by several, one after another, and would be unnecessary,

and indeed unintelligible, if applied to S. Goddard alone." Here, the habendum is to the three successively; and the three are admitted tenants. [WILLES, J.-Everything you have said will be satisfied by a special occupancy.] There can be no occupant of a copyhold: Smartle v. Penhallow, 1 Salk. 188. In Sheppard's Touchstone, by Atherley, p. 75, speaking of the habendum, it is said," The office hereof, is, to set down again the name of the grantee, the estate that is to be made and limited, or the time that the grantee shall have in the thing granted or demised, and to what use.' So, in 2 Bl. Com. 298, it is said,"The office of the habendum is properly to determine what estate or interest is granted by the deed; though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises." An instance of this is given by Mr. Atherley in the note to Sheppard, p. 76,— "If a lease be made to two persons, the one moiety to one and the other moiety to the other, the habendum qualifies the premises and makes the lessees tenants in common, whereas by the premises *they were joint tenants." [WILLES, J.-In Comyns's Digest Fait (E. 9), it is said that "the habendum may abridge or alter [*827

the generality of the premises: Hob. 171." But (E. 10), "the habendum cannot enlarge the premises; and therefore, if A. leases land to B. for years, habendum to B. and C. for life, nothing passes to C., nor shall B. have an estate but for his own life: Jon. 310."] Where the granting part is ambiguous, the habendum may explain it. [WILLIAMS, J.— In Doe d. Timmis v. Steele, 4 Q. B. 663 (E. C. L. R. vol. 45), 3 G. & D. 622, tenant in fee conveyed lands "to H., her heirs and assigns, to hold to H. and her assigns during the life of G." G. was H.'s heir-atlaw. It was held, that, after H.'s death, G. was entitled to hold for his life as special occupant, and that the land did not pass to H.'s executors by the words in the habendum. Lord Denman, in giving judgment, said: "The proper office of the habendum being to limit, explain, or qualify the words in the premises, provided it be not contradictory or repugnant to them, no doubt can be entertained but that the words for and during the natural life of George Timmis' must be allowed to limit the duration of the estate, and to explain and qualify the meaning of the word heirs' in the premises, so as to make the person designated by that word take as special occupant, and not as heir by descent."] In Mr. Preston's edition of Sheppard's Touchstone, pp. 75, 76, it is said: "If the name of the grantee be not contained in the premises, yet, if it be in the habendum, it may be good enough. As, if one give or grant land, habendum to B. and his heirs, and he is not named in the premises, yet this is a good deed to make an estate in fee-simple. And yet, if the thing granted be only in the habendum, and not in the premises of the deed, the deed will not pass it." ["Probably," says Mr. Preston, "this proposition is too general."]*"And therefore, if a man grant Blackacre only, in the premises of a deed, habendum [*828 Blackacre and Whiteacre, Whiteacre will not pass by this deed." [WILLIAMS, J.-I do not understand it to be disputed here that the second succeeds to the tenement if the first does not dispose of the estate.] That brings us to the second point. Assuming that the persons named take in succession, unless the first has surrendered, there having been

and

no surrender here, the plaintiff is entitled to recover. [WILLIAMS, J.If there be a custom for the first taker to deal with the estate, your argument is worth nothing.] If a part of the inheritance is severed from the manor, all the customs of the manor as regards it are ended. In Scriven on Copyhold, 4th edit. 12, it is said, "If one grant away any part of the demesne in fee, they are severed from the manor, can never be part of it again, Sir Moyle Finch's Case, 6 Co. Rep. 65, though it be but for an instant. Then the question will be, whether the manor can be divided. It cannot by act of the party; and the reason will be the same of freehold and copyhold, for, a manor must be time out of mind, and cannot be created at this day: Per Holt, in Lemon and Blackwell's Case, Skin. 191. And in the case of The Queen v. The Duchess of Bucklew, 6 Mod. 151, the fifth resolution by the whole court was, that a manor is an entire thing, and not severable.' It is quite clear from the above authorities, that, since the statute of quia emptores, a manor cannot be divided by the act of the party, not even as between joint tenants; Per Periam, J., in Marshe and Smith, 1 Leon. 27; and the better opinion is, that, after a severance of a copyhold tenement of a manor, either under a conveyance of the freehold interest of the lord, or a conveyance of the manor itself, with an exception of the particular copyhold, without, perhaps, the sanction or even the knowledge of the copyholder, the court is lost, as far as respects such copyhold *829] tenement, and that, as no admittance could be compelled, so no fine could afterwards be recoverable." In Murrel v. Smith, 4 Co. Rep. 24 b, it was laid down that a copyhold is not destroyed by severance of the inheritance of the copyhold from the manor: but, after such severance, the copyholder cannot devise, for the grantee cannot take a surrender; nor can the copyholder alien otherwise than by decree in Chancery, by which the interest in the land is not bound, but the person only.

Kinglake, Serjt., and Kingdon, in support of the rule. The true effect of the grant of the 15th of April, 1797, is, that it grants the tenements to Joseph Phillips for three lives, which, by the custom of this manor, entitles the first taker in his lifetime to dispose of the whole estate, to the exclusion of the other two. The evidence adduced clearly establishes the existence of this custom; for, though the instances are not numerous, there is abundant authority to show that much less evidence is necessary to establish a copyhold custom than would be required in the case of other customs, which, in general, are encroachments on the rights of the public. And there are many cases to show that such a custom is good and valid. [WILLES, J.-In Scriven on Copyhold, p. 99, it is said, "It is sufficient to create an estate, if the person intended to take is named in the habendum of a copy, though not in the grant, for, in many manors, it is customary to insert the words of grant and limitation in the habendum only: Brooks v. Brooks, Cro. Jac. 434, Poph. 125."] No one was named in the premises there: here Joseph Phillips is named. [COCKBURN, C. J.-We must look at the whole instrument.] In Cruise's Digest, Vol. 4, title 32, Deed, Ch. 21, §§ 67, 68, it is said, "With respect to the habendum, its office is only to limit the certainty of the estate granted; therefore, no person can *830] take an immediate estate by the habendum of a deed, where he is not named in the premises; for, it is in the premises of a deed that

the thing is really granted. If land be given to J. S., habendum to him and a stranger, for a certain estate, this is void as to the stranger, because he was not mentioned in the premises; and, when J. S. dies, there will be no occupancy; for, the grant to the stranger in the habendum was intended an estate to him, and not as a limitation of the estate of J. S." In Doe d. Foster v. Scott, 4 B. & C. 706 (E. C. L. R. vol. 10), 7 D. & R. 190 (E. C. L. R. vol. 16), copyhold lands were granted to A. for the lives of herself and B., and in reversion to C. for other lives. A. died, having devised to B., who entered, and kept possession for more than twenty years. On his death, C. brought ejectment: and it was held that the action was barred by the statute of limitations, for that C.'s right of possession accrued on the death of A., inasmuch as there cannot be a general occupant of copyhold land. [WILLES, J.-The case of Doe d. Nepean v. Goddard, i B. & C. 522 (E. C. L. R. vol. 8), 2 D. & R. 773 (E. C. L. R. vol. 16), is clearer. Bayley, J., there says: "The meaning of the custom, as stated, plainly is, that, if the grantee shall not, by surrender during his life, or by will, dispose of the estate, then the cestui que vies shall take it; and the word 'successively' shows how they are to take. It is clear, that, if a copyhold be given to A. and his heirs during the life of B., the heir of A. will be a special occupant. But there is no general occupancy of copyholds. Of freeholds there is, by the common law, a general occupancy; and the question is, whether by custom that may not extend to copyholds, and whether the same custom may not point out who shall be occupants." WILLIAMS, J.-In Swift d. Farr v. Davis, H. 39 G. 3, cited in a note to Doe d. Burrough v. Reade, 8 East 354, it was held, *that, where three lives in a copy are to take successive, and a

father, who is sole purchaser, puts in the lives of himself and his [*831 two sons, in general the sons shall take beneficially, unless it appear by any concurrent act of the father that he did not so intend it; as, in that case, by taking at the same court a license from the lord to himself and his mother (who had her widowhood right in the copyhold) to lease for seventy years; in which case, if the father afterwards grant a lease by way of mortgage pursuant to such license to lease, and there be a custom in the manor for the first taker to dispose of the estate as against the other lives, such custom may so far operate as to divest the legal estate of the lives in reversion, and give it to the lessee.] In Roe d. Bendall v. Summerset, 2 Sir W. Bl. 694, the court say, that, "in the West, it is usual upon copyholds for lives, that the cestuy que vies take in the order they stand in the copy; but the person who puts in the lives, and pays the fine, has a power of disposing of the estate." [WILLIAMS, J.-In Burton's Compendium (which I have always found to be a very accurate book), 6th edit. 517 n., 7th edit. 419 n., it is said, that, "If a copyhold be limited to A. for the life of B., and A. die first, the estate will go to the surrenderor or grantor (see Harg. Co. Litt. 59 b, n. (2),) for, there can be no general occupant of copyholds, nor is the statute 29 Car. 2, c. 3, s. 12, applicable to them: Zouch v. Forse, 7 East 186. But there may be a special occupant named in the surrender or grant: Doe d. Lempriere v. Martin, 2 Sir W. Bl. 1148. In many manors, the custom is only to grant copyholds for lives; and, in some, to grant them to three persons for their lives successively as they are named, but so that the first has an absolute power of alienation,"