That these customs were in the nature of the limita tions of an estate, which determined on the breach of them and that unless there were some equitable circumstances in the case, the Court could not inter pose, as that would be to repeal and destroy the law. OPYHOLD estates may be destroyed in several ways; for whenever an estate of this kind ceases to be held by copy of court roll, according to the custom of the manor, it is said to be extinguished and gone. the Lord. 2. Thus if a copyholder surrenders his estate to Surrender to the lord, to the use of the lord, the copyhold is thereby extinguished. It is however necessary in a case of this kind, that the lord to whom the surrender is made have a lawful estate in the manor; for a surrender by a copyholder to a person who is possessed of the manor by wrong, will not operate as an extinguishment of the copyhold. Moore, 3. A bishop having been disseised of a manor dur- Pitt v. ing Cromwell's usurpation, a copyholder surrendered 2 Show. 156. to the disseisor, ut inde faciat voluntatem suam. After T. Jones, the restoration, the bishop entered. Resolved, that Roe v. the copyhold was not extinguished, because the sur- Wigg. render was void. 153. St. Paul v. Dudley and Ward, 15 Ves. 167. Release to the Lord. Gilb. Ten. 300. Idem. 4. It was held by Lord Eldon, in a late case, that where the lord of a manor was tenant for life, with remainders over, and purchased in a copyhold held of the manor, taking the surrender to him and his heirs, it was extinguished; and as parcel became subject to the limitations of the manor. 5. If a copyholder releases all his estate and interest to his lord, it will operate as an extinguishment of his copyhold. For although a release cannot in its own nature pass away a possession, yet it may amount to a signification of the tenant's intention to hold the lands no longer; and the rule is, that every thing amounting to a determination of the copyholder's will to hold no longer, extinguishes the copyhold. 6. So if the lord conveys away the freehold of a copyhold to a stranger, and the copyholder releases 1 Leon. 102. to the stranger; this will also extinguish the copyhold. But if a copyholder be ousted, and the lord of the manor disseised, and the copyholder releases to the disseisor, it will have no effect. Mortimer's Hett. 150. Lane's case, 2 Rep. 16 b. 4 Rep. 31 a. Idem. 1 Leon. 170. 7. Any conveyance of the land by the lord to the copyholder, for an estate of freehold, or even for a term of years, will extinguish the copyhold. For the estate of the copyholder being only at will, becomes merged by the accession of any greater estate. 8. If the lord demises the land held by copy to a stranger for years, and the stranger assigns over his term to the copyholder, this will extinguish the copyhold; for both these interests cannot exist in the same person, simul et semel; and consequently one of them must be determined, which of necessity must be the customary estate, for the estate derived from the common law cannot merge in that; and when common law and custom come together, and one or the other must necessarily stand, the common law shall be preferred. 9. It has been resolved, upon the same principle, Hide v. that where a copyholder in fee took a lease for years Moo. 185. Newport, of the manor, the copyhold was extinct for ever, and 4 Rep. 31 b. not during the lease only. ment. 10. The next mode of extinguishing a copyhold, Enfranchiseis by enfranchisement, by which the tenure is changed from base to free. This may be done by the lord's releasing to the copyholder his seignioral rights and services, by which the tenure is extinguished. For 1 Inst. 270 b. as the copyholder was tenant at will to the lord, by Tit. 32. c. 6. which there was a privity of estate between them, the release enlarges the copyholder's estate, and gives him the freehold. 11. It has been stated, that a conveyance of the ante, § 7. freehold by the lord to the copyholder, extinguishes the copyhold; for in fact it operates indirectly as an enfranchisement, because a freehold and a copy- ante, § 8. hold tenure cannot subsist together. 12. Upon a question whether lands were freehold Doe v. Huntingon, or customary, it appeared that they had originally 4 East, 271. been customary, or tenant right estates, holden of a manor in Cumberland, by the payment of certain ancient customary rents and other services; and descendible from ancestor to heir: that the lord of the manor, by an indenture made in 24 Cha. II., in consideration of 61 years rent, ratified and confirmed to the then tenant and his heirs, all his customary and tenant right estate, with the appurtenances, &c., and granted, that the tenant and his heirs should be freed, acquitted, exempted, and discharged from the payment of all rents, fines, heriots, &c. dues, customs, services, and demands, at any time thereafter happening Vide ante c. 1. § 9. to become due in respect of the tenancy, except one penny yearly rent; and also excepting and reserving suit of court, with the services incident thereto; and saving and reserving all royalties, escheats, and forfeitures, and all other advantages and emoluments belonging to the seigniory, so as not to prejudice the immunities thereby granted to the tenant; and also granted liberty to cut timber, and to sell or lease, &c. without licence. Lord Ellenborough delivered the judgement of the Court. He said, that assuming these estates to have been holden prior to the deed of 24 Cha. II. by copy of court-roll, within the enlarged sense of those words, as they occurred in the stat. 12: Cha. II. the Court was of opinion that, by virtue of the deed of 24 Cha. II. operating upon that species of tenure, the tenement in question was become frank free; or, in other words, land holden in free and common socage. To confirm to the tenant his customary and tenant right estate, freed, acquitted, and discharged from the payment of all rents and services, &c. except the one penny rent which was reserved or retained out of the old rent, was tantamount to a release of those rents, services, &c. which were not Plowd. 140. so specifically exempted and restrained: for “where words are equivalent in substance to words of release, the law takes them as a release;" and "where there are words of substance, the law appoints how they shall enure;" taking these words of acquittance, exemption, and discharge, on the part of the lord, as operating in substance a release of the services specified, and assuming that there was no material difference between the tenure in question, and that of antient demesne. For this purpose, there were ΙΟ |