case king against DILLISTON Hilary term James roll a custom that the person to  who use a copyhold estate be surrender shall come in and be admit after three  proclamation or otherwise that his land shall be forfeit be good but this  custom shall not bind a infant and therefore if a surrender be make in fee and  the surrendee die before the next court the estate be not forfeit by the  infant heir of the surrendee not come in after three proclamation say quaere  if it may not be seize quousque?S c I Lut SC salk SC show SC comb SC Carth SC  than   Plowd lev Ro ab Noy Leon Leon cro James vern comy Mod burr ba ab to Rep  a writ of error be bring to reverse a judgement in ejectment give in the  common plea for one message and twenty acre of land hold of the manor of  Swafling modern er p there be a special verdict find the substance of which be  videlicet that the land in question be copyhold hold of the say manor of  Swafling in the county of Suffolk and that Henry Warner and Elizabeth his wife  in right of the say Elizabeth be seize thereof for life remainder to John  Ballat in fee that the custom of the say manor be that if any customary tenant  do surrender his estate out of court that such surrender shall be present at  the next court of the say manor and public proclamation shall be make three  court day afterward for the party to who use the surrender be make to come and  be admit tenant and if he refuse then after three proclamation make in each of  the say court the steward of the say manor issue forth a precept to the  bailiff thereof to seize the copyhold as forfeit they find that Henry Warner  and his wife and John Ballat make this surrender out of court to the use of  Robert freeman and his heir who die before the next court and that John  freeman a infant be his son and heir that after the say surrender three  proclamation be make at three several court hold for the say manor but that  the say John freeman do not come to be admit tenant that thereupon the steward  of the say manor make a precept to the bailiff who seize the land in question  as forfeit to the lady who enter and make a lease to the plaintiff upon who  the defendant reenter the single question upon this special verdict be whether  this be a forfeiture and so a good seizure to bind the right of a infant  modern it be argue for the plaintiff in the action that it be a good seizure  and a forfeiture till the infant shall come of age for as a copyhold be  establish by custom so likewise it be custom which oblige the infant to the  condition thereof and therefore where one under age have a estate upon a  condition to be perform by he and that condition be break during his minority  the estate be lose for ever   Whittinghams case latch Jones a in this case the  custom oblige the heir to be admit that the lord may be entitle to a fine  which if he shall lose because his tenant be a infant then that privilege of  infancy work a wrong which the law will not permit see Prec Chan Peer wms  stram and the Geo c post in notorious facts b it be true a infant shall not be  prejudice by the laches of another but shall be answerable for himself and  therefore if he be tenant of land and the rend shall be unpay for two year and  no distress can be find a cessavit lie against he and the law shall recover  the land because of the nonperformance which arise by his own default   light  roll Abr Plowd   ray Mod a so if one under age be a keeper of a gaol and  suffer a prisoner to escape out of execution a action of debt will lie against  he upon the statute of Westminster the second Inst see also Plowd   b it be  agree that such a custom and nonclaim will not foreclose a heir who be a  infant and beyond sea at the time of his ancestor death though he be bind by  the custom to claim it at the next court but that if he will come over and  tender himself though after a seizure he shall be admit and so shall the  person in this case if after his minority he offer himself to be admit sir  Richard Letchfords case   c but it can be deny but that the lord may seize  when the heir be beyond sea till he return and tender himself to be admit and  by the same reason he may also seize in this case during the minority  Underhill v Kelsey cro James d a temporary forfeiture be no new thing in the  law for if a feme covert be a copyholder and her husband make a lease for year  without licence of the lord it be a forfeiture and shall bind her during the  coverture saverne v smith cro car see also gilbert tenor Com dig e so the law  be that the lord may seize the land till a fine be pay for it be a reasonable  custom so to do jackman v hoddesden cro Elizabeth see also pale yellow ten    light b f it have be hold a good custom for the lord to assign a person to  take the profit of a copyhold estate descend to the infant during his minority  modern er p without render a account when he come of age Leon Leon g modern so  that all that be to be do in this case be to enforce the infant to be admit  that the lord may be entitle to a fine the inheritance be not bind but the  land be only seize until what time e contra it be argue that here be a general  seizure which can extend to a infant for he be not bind in a writ of right  much less in a inferior court after three proclamation but if this have be a  temporary seizure the jury ought to have find it so which be not do that there  be many authority in the book which affirm that a infant be not oblige to be  admit during his nonage or to tender the fine in order to a admittance and  that the law be settle in this point and therefore without any further  argument be pray judgement for the defendant afterward in Hilary term the  first of William and mary this case be argue seriatim at the bench three judge  be of a contrary opinion to the chief justice for the affirm of the judgement  Eyre justice premise two thing first that he can not intend but that this  verdict bad find a absolute forfeiture the jury have no way qualify it as to a  certain time and therefore he will give a judgement upon the whole record  second he agree that a feoff of a infant be no forfeiture at the commonlaw and  that as a particular custom may bind a infant for a time so it may bar he for  ever but whether this custom as it be find in general word shall bind a infant  after three proclamation be now the question he not come then to be admit and  he hold that it shall not and for these reason first the right of infant be  much favour in the law and their laches shall not be prejudicial to they as to  entry or claim upon a presumption that they understand not their right and  therefore in a cessavit per biennium which be a remedy give by the statute of  Westminster the second and which extend to infant who have not the land by  descent cap   light Inst stram stram Bac Abr a for if a cesser be in that case  the infant shall have his age because the law intend that he do not know what  arrear to tender it be admit that if a infant do not present to a church  within six month or do not appear within a year that his right be bind but  this be because the law be more tender of the modern church and the life of a  man than of the privilege of infancy so if a office of parkship be give or  descend to a infant if the condition in law annex to such a office which be  skill be not observe the office be forfeit but that a proclamation in a base  court shall bind a infant when he be not within the reason of the custom be  not agreeable either to law or reason second all custom be to be take strict  when they go to the destruction of a estate and therefore a custom be that if  a copyholder in fee surrender out of court and the surrendee do not come in  after three proclamation the lord may seize it a copyholder in fee surrender  to another for life the remainder over in fee if the tenant for life will not  come in he in the remainder shall not be bar for the custom shall be intend to  extend only to those in possession roll Abr more cro Elizabeth Yelv Noy ray  cro James will Com dig copyhold m b but the infant in this case be not within  the letter of the custom for it be find that the surrender be make to one  freeman who die before the next court day and that John freeman the infant be  his son and heir so they have find a title in he for the word heir be not here  a word of purchase but of limitation three infant be not bind by other custom  like this as a custom that every copyholder who make a lease of his land shall  forfeit it but this do not conclude a infant fourthly there be not any  necessity to construe a infant to be within this custom for it be not find  that the lord be to have a fine upon admittance and it be no consequence to  say that the lord shall have a fine because usual fine be take upon  admittances for a infant may be admit to a copyhold but not be bind to tender  his fine at any time during his nonage modern er p Gregory justice be of the  same opinion which he chief ground upon sir Richard Letchfords case between  which and the case at the bar he say there be no material difference only in  that case the heir be beyond sea and in this at the bar he be a infant it be  very true that the book latch godb Jones dyer a mention a seizure until what  time it be so say by William justice in croak Underhill v Kelsey cro James the  question be whether the heir be beyond sea will excuse the forfeiture for big  not appear at the next court after the death of big ancestor accord to the  custom and William justice say that it will for that be beyond sea it be not  in big power to return when he will and the law will not compel he to  impossibility and the lord be not at any mischief for he may seize in the  interim and take the mesne profit and shall not he responsible for they but as  to this see the Geo c S b but he give no reason for it it be only a opinion  obiter but it be clear by many authority that infant may be bind by act of  necessity and so they may by a custom modern dolben justice of the same  opinion which he say be agreeable to the reason of the law in parallel case a  infant be privilege in a fine for he be except by the statute Henry c c  because he know not how to make his claim he say this be likewise agreeable to  the custom of twentysix manor of which he be former steward for in such case  be always mark the courtroll no one proclamatio because infant it can be a  forfeiture until what time because a infant be whole exempt by the custom and  therefore it be no forfeiture at all it be a objection of no moment to say  that the lord by this mean will lose his fine and that he bag no remedy to  make the infant when of age to be admit for no fine be due to he before  admittance but this objection will be of less weight if the loss of the infant  be compare to that of the lord who lose only the interest of a fine before  admittance and shall this infant who be now but three year of age lose the  profit of his estate for eighteen year but there may be a way find out that  neither may lose for if it shall be that when the infant come of age big  estate shall be then forfeit if he do not tender himself to be admit after  three proclamation now upon big admittance the lord may set a reasonable fine  have respect to the length of time in which it be detain from he Stowels case  pl Com d be no more but this videlicet a seize levy a fine with proclamation  and live three year his heir be under age and the five year incur after the  say heir come of age and then he enter within a year and his entry be adjudge  unlawful but that will not concern this case because it be a judgement upon  the statute of Henry c for the five year be once attach and begin in the life  of his ancestor shall incur and go on and bind the infant if he do not pursue  his claim within that time after he come of age but it be to be observe that  my Lord dyer in the argument of that case say nothing of a seizure until what  time holt chief justice be of a contrary opinion from the other three justice  and that the judgement ought to be reverse because until the infant be admit  the estate remain in the surrender and without a admittance he can enter but  by a special custom to warrant it and for this reason it be that the surrender  shall have a action of trespass against any modern person who enter because he  shall be intend still in possession till the admittance of another if so then  infancy can protect a estate to which the infant have no title till admittance  for till then he have neither law in re nor law ad remember see the case of  ford v Hoskins cro James SC Bulst SC roll Abr SC more Yelv a this be a  condition annex to the estate to be perform by the infant by which he be bind  notwithstanding big nonage otherwise his estate be forfeit the custom which  oblige he to be admit be to entitle the lord of the manor to a fine to which  he have a right now infancy be never yet extend to endanger that remedy which  man have to recover their right it have be often so far extend as to delay  such a remedy but never to destroy it for if the infant shall die the lord  lose the fine and then another person be to be modern er p admit but he can  increase the fine upon he who be a stranger for the neglect of the infant it  be true where a infant have a right it shall be preserve though a fine be levy  and the five year pass bridge Yelv Poph b but in this case he have no right  before admittance if a feme covert be a heir to a copyhold estate where the  like custom be and the husband after three proclamation will not come and be  admit it be a forfeiture during the coverture roll Rep roll Abr cro Elizabeth  c now the reason in the case of coverture and infancy be the same for if there  shall be a seizure during the time the woman be covert why not during the  infancy as to sir Richard Letchfords case   cro James godb d the heir be  beyond sea but when he come into England he desire to be admit but this infant  never yet desire to be admit he stand upon his privilege of infancy but upon  the opinion of the other three justice the judgement be affirm that the custom  do not bind the infant by Geo c where any person be a infant or feme covert  shall be entitle by descent or surrender to the use of a last will to be admit  tenant of alley copyhold estate every such infant or feme covert shall in  their proper person or by guardian or attorney come to and appear at one of  the three next court of the manor and shall there tender and offer themselves  to the lord or his steward to be admit tenant to the estate so surrender  descend or come to or to the use of every such infant or feme covert and in  default of such appearance or of acceptance of such admittance the lord or his  steward shall after such three several court have be duly hold and  proclamation therein regular make nominate and appoint at any subsequent court  of the manor a guardian or attorney of such infant and feme covert for that  purpose only and by such guardian or attorney shall admit every such infant or  feme covert accord to such estate as they have in the manor and may upon every  such admittance impose and set such fine and fine as may have be legal impose  and set if such infant have be of full age or such feme covert unmarried and  if such fine be not pay on the notice to be give and demand to be make as  prescribe by the Act the lord may enter and bold the estate until the  perception of the rend and profit thereof have pay the fine and charge c c c  and see the case of do on the demise of Tarrant v hillier term Rep e