case smartle against Penhallow Trinity term whether roll if the custom of a  manor be that the lord may grant copyhold estate to three person habendum to  they successive as they shall be name and not otherwise a surrender to a for  his own life and for the life of b and c be warrant by the custom S c salk S c  salk S c holt S c ld ray upon a special verdict the case be this the custom of  the manor of Tregueir in Cornwall be find to be that every customary copyhold  of that manor may be grant to three person habendum to they successive as  nomina et non aliter and that on the death of every tenant the lord shall have  his best beast for a heriot and a surrender be find to have be to t n and his  assign for his own life and the life of two other modern er p the question be  whether this surrender be warrant by the custom?First for the whole that be  for three life and second in case it be not good for three life whether it be  good for his own life in the argument of this case it be agree that a lessee  for year of a manor may grant a copyhold estate in fee and so for life or life  and the grant shall be good against he that have the inheritance but it be  urge that if by make a less grant than the custom warrant the tenure shall be  alter or any damnification of the service occasion such grant of a lesser  estate than the custom warrant will be void and a prejudice will modern ensue  to the lord by this grant for now it will be a estate for auter vie of which  there may be a occupant see car c and Geo c a and then the lord will have a  tenant who he know nothing of and occupancy may be of a copyhold as well as  possession brother it be true a copyhold estate shall not have all the quality  of a estate at commonlaw as tenancy by the courtesy and dower but these be  excrescent interest and though the case of Ven v Howell roll Abr b be against  this yet it seem that the reason of the prejudice which will ensue to the lord  be sufficient to overthrow that and if it can be good in all it be more  consonant to law to make it void for the whole than to let it stand in part  and avoid it for the rest for the custom be in the nature of a power which  must be strict pursue as if a tenant for life by a settlement have power to  make lease for twentyone year and he make a lease for thirty year it be void  even for the twentyone year so if there can be occupant it can be good because  of the prejudice to the lord if there can be occupancy it can be make good to  his assign because not pursuant to the custom and then it can be good for the  first life because less than the custom which be in nature of a authority  warrant again suppose it may be good for the life of t n yet the jury not have  find he alive it shall not be intend as if tenant for year or for auter vie  bring a ejectment he must aver the term or the life of beneficiary and vie to  continue and so here the jury ought to have find it especial when they have  not conclude upon special point in which case the court shall only consider  what the jury have make doubt of and all other thing shall be intend accord to  cro James and   Goodales case beside if this be construe a good grant within  the custom the lord will lose his heriot for the payment of that service be  confine to such grant as be precise warrant by the custom videlicet a grant to  three for life as nomina and this be no such grant therefore no heriot  therefore it will be a prejudice to the lord and by consequence the grant be  not good and it will not be a answer to say that heriot service be a  accidental service for the statute Elizabeth c c upon which those case of  Baugh v Haynes cro James d and dean of Worcester case   e go that order the  usual rend to be reserve take no notice of heriot because it be a accidental  service but here the custom specialty mention a heriot to be part of that  service and therefore it ought to receive the same construction that those  case will in case the statute have mention heriot at another day in Michaelmas  term for it be speak to first in Trinity term Hooper sergeant argue on the  same side and urge that this can not be a grant within the custom for that be  of a grant to three habendum as nomina successive and the grant here be only  to t n for the life of two more and himself so it be no grant at all to the  two beneficiary and vie nor be t n the first life mention modern and as to the  objection of who to be able plus to be able minus if a man may grant in fee by  custom be may grant for three life it be true with some distinction if a man  have power to grant in fee reserve rend he can grant for life without  reservation second the estate grant must not only be less in judgement of law  but also in value for if a man have power to let for three life and he let we  for a hundred year that indeed be less in judgement of law but because it be  not less in value the grant be void all authority whether create by Act of  parliament or by the party as in settlement or by custom as here be still but  authority and therefore not to be vary from and he quote Whitlocks case    Brownl a and the difference there and put case modern er p upon the statute  that enable bishop to make lease if a bishop who by the Act may make a lease  for twentyone year make it for twentytwo year it be void for all and if a man  make a lease by parole for four year it shall not be good for three upon the  statute car c of fraud and perjury but he insist chief upon a inconveniency  that will ensue in this case for if t n be a trader and commit bankruptcy this  estate for three life will be grant to a assignee and then it will be quite  out of the custom for then the assignee will hold it after the death of t n  during the other two life and the lord will lose his heriot William contra we  be upon the construction of a grant to a honest purchaser for a valuable  consideration this will be good if not to he for his and two other life at  least for his own life and that will do as well for we the substance of the  custom be to make a grant for three life that be the quantity of the estate  but whether it be to one person for three life or to three for their life be  only accidental and a quality and the quantity or continuance of the estate be  what be only material the meaning and drift of the custom be to hinder any  long encumbrance upon the land than for three life but not whether the life  name or other be to enjoy it and since by the custom it may be to three for  their life a strong it may be to three for the life of three other for that be  a less estate and that which we contend for be less than that again and if the  first grant have be strict pursuant to the letter of the custom as find sure  it can be deny but that the several grantee may grant each his own estate and  the lord be compel to admit each surrender or that they may all grant their  estate to one person who then will have the same estate as we now contend for  and if so why may it not be at the first for it will be against all reason  that the grantee who claim under the lord shall do it and not the lord himself  and he rely upon the case of Ven v Howell roll Abr a as full in point for the  reason give there rule this videlicet that it call be no inconveniency but  rather a conveniency to the lord for since there can be no occupancy of a  copyhold estate it will be more advantageous to the lord to have such a grant  as this than to have it to the three person name for their life for upon the  death of the tenant who take for his own life and modern two more the estate  will come to he again whereas in the other case it will go to the next in  remainder and there be a know diversity between the lord putsuing a custom and  one act by a bare authority the one have authority and a interest and  therefore may do less the other have a bare authority without any interest and  for that reason can vary from it   light b but suppose this point be against I  at least it will be good to t n for his own life for that be less than for his  own and two life more   c if by custom the lord may grant for life he may  grant durante widowhood though such a grant be never make before yet because  at most it can go no far than the custom warrant and that possible it may  determine soon it be good so far of the grant as go to he for life be good and  if the word and for the life of a and b be repugnant or void let they be  reject for a void clause will be the same as if it be not in at all Hobart hob  d make a difference that where a tenant for year grant all his estate habendum  after his death the grant be good and the habendum void but that where all be  one entire sentence as if he have grant his estate after his death the grant  be all void and some book make the difference where a imply estate be grant in  the premise for that may be avoid by ail habendum but otherwise of ail express  estate as if a feoff be to a habendum to he and his heir after the death of b  the whole be void by the habendum and it may be reason that where a habendum  may increase ail estate it may likewise avoid it if it be against law but here  the habendum can increase it for it can make it but for life and therefore can  destroy it there can be no occupant of a copyhold estate for two reason the  first because there can be a tenant of a copyhold but by surrender and  admittance second the statute concern special occupant see car c and Geo c e  do not extend to it because there be no occupant can be before adjudge in the  court of common plea that the statute extend to thing that lie in grant and of  they there can be no occupancy ergo quaere de hoc note to the former edition f  and that the make it now will turn modern er p to the prejudice of the lord  and the general word of a Act shall not be extend to a copyhold estate if it  may prejudice the lord as to the objection that the verdict do not find the  life of t n to continue I answer that shall be suppose to continue until the  contrary appear and he quote some case that where one have a bare power exceed  that power it shall be good for what be within the power and void for the rest    light a if there be a letter of attorney to deliver seize to a and he  deliver it to a and b it be good to a and void to b though the make of livery  be as entire air act as the limit all estate can be Perkins b holt chief  justice and the court if the custom be to grant a copyhold estate for three  life the lord in fee of the manor can exceed that and a lord at will of it may  go so far for it be not material what estate the lord have in the manor and  sure he who may grant for three life may grant for one life as if the custom  be that he may grant a copyhold in fee only yet be may grant in tail for life  or for year modern and here the three life be only the extent of the custom  but not to bind a man to the formality of art estate for three life the custom  in this case consist of three part first the constitution or creation of the  estate videlicet that it be by copy second the extent of it that it shall not  exceed three life three the mariner of grant it that if it be to three they  shall not take joint and in present time accord to the course of the commonlaw  but that the first name shall take all for his lire and the second all for his  life and so of the three if the custom then enable he to let for three life it  will enable he to do it for one as if the custom be to grant in fee he may  lease for life remainder for life or in tail remainder in fee for the custom  be not to grant one entire estate in fee if the custom be to grant for life he  may grant durante widowhood though that be another limitation than for life  and general where the custom be to grant to three for their life habendum  successive as nomina there likewise the custom be that the tenant in  possession may b the surrender of his estate defeat the remainder and holt  chief justice put a late case in this court where upon a special verdict this  custom be find and the first of the three purchase the manor and the question  be whether inasmuch as he have a power to frustrate the two remainder by  surrender be by his purchase of the manor have extinguish they and there it be  hold to be no merger or extinguishment of the estate because the custom of  destroy the remainder be confine to the formality of the surrender and the  purchase of the manor though it be between the party a surrender yet it shall  not be construe as such to other purpose videlicet to destroy the remainder  and if the grant have be only to t n in this case for his own life that have  be good and if he have grant it to another grantee he will have be tenant pur  auter vie and why may not that be by the first grant as well as by mesne grant  I can tell for this be no estate capable of occupancy and if the fitSt of the  three commit a forfeiture be in remainder shall not enter but the lord shall  enter and bold it during the life of such first tenant as to the objection  that the heriot will be lose that be not so for the lord will have a heriot  upon the death of every tenant and upon the death of t n here and he be the  only tenant and though he have none on the death of the beneficiary and vie it  be because they be not tenant as to the objection that the jury do not find  the life of t n it will be necessary to aver it in plead but not in a verdict  and we shall not intend he dead especial when the plaintiff make title against  he and therefore ought to allege his death if the truth be so modern but  suppose t m have become a bankrupt and this estate be assign answer suppose it  be to three as nomina successive and the tenant in possession become a  bankrupt shall not the case be the same for the assignee shall be tenant pur  auter vie and the objection will be the same for this be a consequence upon  the interpretation of the Act of parliament and shall not at all prejudice the  lord for if the assignee die during the life of the copyholder bankrupt there  will be a case out of the custom by the transmutation of the tenant by the Act  of parliament and yet the lord shall have his heriot for it never be the  intent of the statute to modern er p put the assignee in a better condition  than his principal who estate be have will have be in nor to work a alteration  of tenement to the prejudice of the lord this be suppose that the copyholder  survive shall not have it back again and if be shall have it again upon the  death of the assignee during his life then the lord by original custom ought  to have a heriot and a subsequent act of bankruptcy shall not defeat he of it  and if the copyholder have die live the assignee and thereby his interest  determine as some think it will who shall pay the heriot but upon this point  they seem cautious of deliver any opinion but reserve themselves until that  matter shall come to be a question for they say it be worth consideration  Powell justice seem to incline that if the assignee have die live the  copyholder the lord will immediate have the land for the whole interest of the  copyholder be vest in he by the statute and powys justice think that upon the  death of the copyholder the estate of the assignee will determine though the  beneficiary and vie be live here it be agree that if a grant be make to a for  the life of b c d and a die the lord shall have the land again though against  his own limitation because there can be no occupant of a copyhold estate  without a special custom and this will be no mischief because the failure will  be on the side of the grantee only for if rend be grant to one for three life  and he die without disposition live beneficiary and vie yet the grantor shall  hold the land discharge because occupancy can be of a rend for that only can  be of land which pass by livery whereby the freehold passes and shall not  revert again until the limitation be determine and it be for the sake of a  praecipe of a stranger and per totan curian the grant be hold good and the  same objection of bankruptcy may be make in the case of Ven v Howel roll Abr  ante a michaelmas term the second year of queen whether at the sit at the  guildhall in London before sir John holt Knt chief justice of the court of  queen bench