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tained no new matter. Upon the whole, I think the law is well laid down in Doe v. Huddart, and Doe v. Wright, and therefore that there was no estoppel here, and that the rule must consequently be made absolute. Rule absolute to enter a nonsuit.

1853.

MATTHEW

v.

OSBORNE.

RICHARD FLACK v. THE MASTER, FELLOWS, and SCHO-
LARS OF DOWNING COLLEGE, CAMBRIDGE, and CLEMENT
FRANCIS.

June 9.

In the absence

of any special

custom to that effect, the lord

cannot be com

pelled to take
a surrender by
deed burthened

THIS action was commenced by writ of summons issued out of this court on the 23rd of May, 1853, by the plaintiff, who is a customary tenant of the manor of Tunbridge-in-Bottisham, in the county of Cambridge, against the defendants, who are the lords and steward respectively of the said manor, to recover damages for an alleged breach of duty and wrongful act of the defendants, in refusing to receive and inrol on the courtrolls of the said manor, the conditional surrender, or instrument in writing, the tenor whereof is hereinafter set assigns, at any forth.

By consent of the parties, and by order of Cresswell, J., dated the 23rd of May, 1853, the following case was stated for the opinion of the court, without pleadings, pursuant to 15 & 16 Vict. c. 76, s. 46.

The manor of Tunbridge-in-Bottisham, in the county of Cambridge, is, and from time whereof the memory of man is not to the contrary hath been, an antient manor, within which manor there are, and during all the time

with trusts.
A surrender,

therefore, to

such uses as

"A. B., his executors, ad

time, or from time to time during the lives

of the surren deror and A.

B., or the life

of the survivor

of them, or within twentyone years from

the day of the decease (inclusively) of such survivor, shall by any writing

or writings under his or their hand or

hands appoint, and, in default of and until such appointment, to the use of A. B., his heirs and assigns for ever, according to the custom of the said manor," &c.,-is not, without some special custom in the manor to warrant it, such a surrender as the lord is bound to accept.

1853.

FLACK

v.

THE MASTER,
&C., OF
DOWNING
COLLEGE.

aforesaid have been, divers copyhold tenements and hereditaments, descendible, and which have descended, from ancestors to heirs, as of the hereditary right of the tenants of the said manor, respectively, held of the lords or lord of the said manor for the time being, by the rod, and by copy of court-roll, at the will of the said lords or lord, according to the custom of the said manor, by certain rents, suits, and services therefor due and of right accustomed. And, during all the time aforesaid, the copyhold tenements and hereditaments so held as aforesaid respectively have been, and might and may be, surrendered by the respective tenants thereof for the time being into the hands of the lords or lord of the said manor for the time being, by the rod, either in the customary court-baron of the manor, or, out of the said court, by the hands and acceptance of the steward of the manor for the time being, or his deputy in that behalf, or by the hands and acceptance of two of the customary tenants for the time being of the manor, to the use of any person or persons named or designated in the surrender, and for such estates, and subject or not to any such conditions, as might be lawfully expressed or mentioned in and by the surrender or instrument in writing made upon the occasion of any such surrender as aforesaid.

At no time heretofore, from time whereof the memory of man is not to the contrary, has any conditional or other surrender to the following effect, that is to say, to such uses and in such manner as the surrenderee therein named (whether a mortgagee or purchaser) should (within a specified time or otherwise) appoint, and, in default of and until appointment, to the use of such surrenderee, his heirs and assigns for ever, according to the custom of the said manor, and by the rents, suits, and services due and of right accustomed, or to the like effect, nor any surrender or instrument in writing in such form as that

the tenor whereof is hereinafter set forth, or to the like effect, ever been inrolled in the court-rolls of the said manor: but wills containing powers for the executors and trustees thereof for the time being to bargain and sell, and otherwise dispose of, their testators' copyholds, without their admission thereto, have been constantly nrolled and acted upon: nor is there any special custom of the said manor prescribing any particular form of surrender. And there are inrolled upon the court-rolls of the said manor many surrenders to the following effect, that is to say, to such uses as the surrenderor or other person therein named, had then already, or should thereafter, by his or her last will and testament in writing appoint.

Before and at the time of making the conditional surrender the tenor whereof is hereinafter set forth, the defendants, the master, fellows, and scholars of Downing College aforesaid, were, and still are, the lords of the said manor; and the defendant Clement Francis then was, and still is, the steward of the said manor, and of the courts thereof.

Before and at the time of the making of the said conditional surrender the tenor whereof is hereinafter set forth, the plaintiff was seised in his demesne as of fee, at the will of the defendants, the master, fellows, and scholars of Downing College, as lords of the said manor for the time being, according to the custom of the said manor, of the copyhold allotment particularly described or mentioned in the said surrender, and therein expressed to be surrendered, with the appurtenances, the same being part of the copyhold tenements and hereditaments so held as aforesaid, and within and parcel of the said manor, and to which said copyhold allotment the plaintiff was duly admitted tenant for the said estate whereof he was so seised as aforesaid, by grant out of court, on the 16th of March, 1844, upon the absolute surrender

1853.

FLACK

v.

THE MASTER,
&c., OF

DOWNING
COLLEGE.

1853. FLACK

v.

THE MASTER,

&C., OF DOWNING COLLEGE.

Conditional surrender.

of Richard Flack, the elder; and the plaintiff then paid the usual fine and fees on such admission.

The plaintiff being so seised as aforesaid, on the 3rd of July, 1852, made and executed a conditional surrender (duly stamped according to law) the tenor whereof is as follows:

"Manor of Tunbridge-in-Bottisham, in the county of Cambridge. Be it remembered, that, on the 3rd of July, 1852, Richard Flack, the younger, of Bottisham aforesaid, farmer, a customary tenant of the said manor, in pursuance of his covenant in that behalf contained in a certain indenture of mortgage bearing even date herewith, and expressed to be made between the said Richard Flack of the one part, and Edmund Foster, of the borough of Cambridge, gentleman, of the other part, did, out of court, by the rod, surrender out of his hands into the hands of the lord or lords, lady or ladies, of the said manor, by the hands and acceptance of Edward Parker and Thomas Hatley, two like customary tenants of the said manor, according to the custom thereof, all that allotment of land, containing by admeasurement la. 3r. 24p., freehold allotment of the said Richard Flack, bounded on the north east by an allotment to Downing College, on the south east by divers allotments, and on the south west by homesteads belonging to Downing College and the said Richard Flack, and to which said allotment hereinbefore described the said surrenderor was admitted tenant in fee, by grant out of court, on the 16th of March, 1844, upon the absolute surrender of Richard Flack, the elder, together with all the rights, members, and appurtenances to the said allotment of land belonging or appertaining, and the reversions, remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever of the said surrenderor into, out of, or upon the said allotment of land, with the appurtenances, to

such uses and in such manner as the said Edmund Foster, his executors, administrators, or assigns, at any time, or from time to time, during the lives of the said surrenderor and Edmund Foster, or the life of the survivor of them, or within twenty-one years from the day of the decease (inclusively) of such survivor, shall, by any writing or writings under his or their hand or hands, appoint, and, in default of and until appointment, to the use of the said Edmund Foster, his heirs and assigns, for ever, according to the custom of the said manor, and by the rents, suits, and services due and of right accustomed: provided always, nevertheless, and this surrender is made upon this express condition, that, in case the said surrenderor, his heirs, executors, administrators, or assigns, shall, on the 3rd of January next, pay unto the said Edmund Foster, his executors, administrators, or assigns, the sum of 6007. of lawful British money, with interest for the same at the rate of 51. per cent. per annum, to be computed from the date hereof, without any deduction or abatement whatsoever, being the same sum o. money and interest as are mentioned in, and intended to be further secured by, the said herein before-mentioned indenture of mortgage of even date herewith, then this surrender shall be void and of no effect, otherwise shall remain in full force and virtue.

(Signed) "Richard Flack, Junr." "This surrender was accepted and taken, the day and

1853.

FLACK

v.

THE MASTER,
&C., OF
DOWNING
COLLEGE.

year first above written, by

"Edward Parker.

"Thomas Hatley."

The plaintiff, being so seised, on the 3rd of July, 1852, did, according to the custom of the said manor, out of court, by the rod, surrender out of his hands into the hands of the defendants, the Master, Fellows, and Scholars, of Downing College, then being the lords of the said manor, by the hands and acceptance of Edward

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