Page:The English Reports v1 1900.pdf/962

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II BROWN.
GRAFTON (DUKE OF) v. HORTON [1726]

The appellants thinking themselves aggrieved by this decree, appealed to the Lord Chancellor Harcourt, who, on hearing the cause, upon the 14th of November 1713, not only confirmed the decree of the Master of the Rolls, but ordered, that the appellants should make a surrender of the premises, to the uses limited by the testator's will.

But the appellants being still dissatisfied, brought the present appeal; and on their behalf it was said (B. Northey, S. Cowper) to be proved in the cause, that the said surrender was neither executed according to the custom of the manor, or presented at any court held for the same; although several courts were held after the date of it, and at one of which, both the testator himself, as well as Ashton the tenant [283] who took the surrender, were personally present; but on the contrary it was proved, that the surrender was recalled by the testator from Ashton, and therefore it was insisted, that the same was void at law; which the appellants were ready to try, upon a proper issue being directed for that purpose. But that to supply the surrender, or compel the appellants to make a new one, was manifestly against the testator's intention; who could have no reason for recalling the surrender he had made, but to prevent its being presented at the next court, as he knew it ought to be, if he had intended it to take effect. That the respondent Cornelius was very well provided for by his father's will, independent of the estate in question, which being only a remainder, could not be considered by the testator as a provision for a child; the equitable reason therefore of supplying the surrender ceased, and the appellants right, which was both a legal and an equitable one, ought not to be taken away from them without at least directing an issue to try whether the paper writing, purporting to be a surrender, was duly executed and presented; and if so, whether the same was not recalled.

On the other side it was said (J. Jekyll, S. Mead), that since the decree, the respondent Cornelius had been admitted tenant of this copyhold estate; had paid £80 fine for such admittance; and as the devise thereof was for the benefit of a child, such devise, according to the rules and practice of courts of equity, ought to be supported and made good, even though no surrender at all had been made to the use of the will.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of, and the confirmation thereof, should be affirmed; and that the appellants should pay the respondents, the sum of £20 for their costs in the House. (Jour. vol. 20. p. 296.)


[284] Case 3.—Duke of Grafton,—Appellant; Thomas Horton,—Respondent [17th March 1726].

[Mew's Dig. iv. 365, 437; see Walker v. Lord Abingdon, 1841, 10 L.J. N.S. Ch. 295.]

[The heir at law of J. S. who was the last of three lives named in the grant of a copyhold estate, brought a bill against the lord of the manor, to be admitted to the estate for his own life, and the lives of two other persons whom he should nominate; alledging the custom of the manor so to be. The defendant, by his answer, denied the existence of any such custom, and insisted, that he was not by law obliged to renew the copy of any tenements holden of the manor, otherwise than at his own free election and pleasure. The court, on the hearing, directed an issue to try the custom, hut, on an appeal, this order was reversed, and the bill dismissed.]

The appellant, upon the death of Catherine, Queen Dowager of England, by virtue of letters patent granted by his Majesty King Charles II. became seised in tail male of the manor of Potterspury and More-end, parcel of the honour of Grafton, in the county of Northampton, with remainders over; the reversion in fee being in his Majesty, his heirs and successors. And the lords or ladies of this manor for the time being, frequently demised or granted, at their will and pleasure, several tenements

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