the consent of the Homage (i. e. of the Tenants present in Court,) is necessary to the validity of such a Grant; but where this does not appear to be requisite, still the Custom, however seemingly indefinite, may perhaps be supported, on the ground that whenever its exercise becomes prejudicial to the Tenants, they may have their remedy; as by analogy to the Statute of Merton, the Custom must thenceforward lose its force.

(1262.)

(1149.)

(1260.)

Dann v. Green

3 P.W.9; Chal

(1351.) If the Lord make a legal Conveyance of the Copyholder's Tenement to him in fee simple, the Tenement is said to be enfranchised. The general doctrine on this subject seems to depend on the principle that the Copyholder is a Tenant at Will, and that therefore by the accession of the Reversion his estate is merged. (1352.) If such a conveyance be made to one who is * Tenant in Tail of the Copyhold, the extinction of the Customary Tenure is no less absolute than if he had been Tenant in fee simple. (1353) And it appears to have been held, that if he were Roe v. Briggs, only Tenant for life, a like extinction would take place, and the Copyhold Estate in remainder or reversion would also be turned into a Freehold Estate. But this seems to be more properly a matter of equitable cognizance;

(1352. n.) The Custom in the Manor of Wakefield of barring Entails by an act of Forfeiture and a re-grant in fee from the Lord, (Grantham v. Copley, 2 Saund. 422,) seems grounded on a similar principle.

loner v. Mur

hall, 2 V. J.

524.

16 East, 406,

(1285.)

M. Podger's
Case, 9 Co. 104.

Co. Tr. 84.

and the opinion alluded to may be thought to attribute a somewhat extraordinary operation to a legal Conveyance, as well as to contradict a more ancient decision. (1354.) It is clear at least, that if the Freehold Estate had been conveyed to a mere stranger, who had no interest in the Copyhold, all the subsisting Customary Estates in the same Tenement would still have continued: but in such a case, if the Copyholder be out of possession, though he may still proceed by Ejectment, he can obtain no remedy in the Lord's Court, because (1259. n.) the Land is no longer parcel of the Manor; (1355.) nor, when he is in possession, can he resort to the Customary mode of alienation; and therefore the most beneficial interest in the Tenement is no longer alienable without the concurrence of the Freeholder, who possesses little more in effect than a remote reversion.

(1313.)

Harg. Co. Litt.

59 b. n. 1.

(834.)

(1356.) Besides the inconveniences of Customary Tenure which must have already occurred to the reader, we may observe that the Tenements so held, though they confer no right of voting for the County, yet as a qualification for serving on Juries are placed on the same footing with Freeholders by St. 6 G. 4, c. 50, s. 1. As to the qualification for killing Game under St. 22 & 23 Car. 2, c. 25, s. 3, there seems to be no difference between Copyholders and Freeholders.

CHAP. VIII.

OF EQUITABLE ESTATES AND INTERESTS,
AND OF REMEDIES IN EQUITY.

SECT. 1.-Of Trusts expressed or plainly implied.

(1357.) THE Jurisdiction of Courts of Equity has arisen out of the imperfection of the Courts. of Law, and the inadequacy of their procedure for defending and enforcing many rights which cannot with safety be left unprotected. Whether it was originally possible, or is now practicable, so to model the constitution of the Courts of Law, that every question of right and duty which is properly cognizable by any of our tribunals shall be there sufficiently decided; or whether the advantages which those Courts possess in the administration of justice are necessarily connected with certain defects, which must always call for the aid of a supplementary judicature; is a subject of far too extensive inquiry for this place; where it is proposed only to exhibit an outline of the existing effects of Equitable Jurisdiction on Real Property.

(1358.) This Jurisdiction is either exclusive of, or concurrent with, that of the Courts of

E E

Law. But that only can properly be called an Equitable Estate or Interest, for which a Court of Equity affords the only remedy: and of this nature, in the first place, is the benefit of every Trust which is not converted into a Legal Estate by the Statute of Uses. (1359.) Such Trusts may be either express, or implied; and the operation of the Statute may be excluded either by the nature of the subject matter, as in the (129, 1286.) case of Chattels, and Customary Estates; or by an express declaration of the Use to the Trustee; or by the nature of the duties imposed (126. 168.) upon him by the Trust, if they cannot be conveniently performed unless the legal Estate be vested in him.

4 T. R. 65.

(1360.) The simplest kind of Trust, (which though it arises more often from accident than from design, and might perhaps without inconvenience be abolished, yet is the fittest for our immediate consideration,) is where Freehold

(152.281.) Land is conveyed or devised to the use of A. and his heirs, in trust for B. and his heirs. Here the Equitable Estate of B. much resembles the Use as it was allowed to exist before the Statute; but in some respects it conforms more nearly to the nature of a * Legal

(1360. n.) The right of voting in the Election of Members to serve in Parliament belongs to the Proprietor, whether legal or equitable, who is in possession of the Land. See St. 7 & 8 W. 3, c. 25, s. 7. By St. 9 Ann. c. 5, a Mortgagee cannot derive from the mortgaged estate a qualification to sit in Parliament, unless he have been in possession seven years.

Estate.

(1361.) Indeed the general rule

at Burgess v.

Wheate, 1 Bl.

v.

Langley .

Sneyd, 1 S. & S.

Shewen, Id.

(1021.)

2.

this day is that Equity follows the Law; and Rep. 125; therefore the Descent of an Equitable Fee is regulated by the same canons as that of the 45; Hawkins . Legal Inheritance; (1362.) and a Husband 257. may acquire an interest in his Wife's property of this kind as Tenant by the Curtesy, though that was not among the incidents of the ancient Use. (1363.) The right however of the Wife (319, &c.) to Dower, from a mistaken judgment perhaps at first, but afterwards from the expediency of following precedents, has never been conceded to her: (1364.) and it has also been decided that there can be no Escheat of the beneficial interest arising from a Trust; but that if the Equitable Owner die without heir and intestate, the Trust will cease, and the Trustee become absolutely entitled to the property. On the other hand, if the Trustee should die without heir, it seems not to be settled whether the Lord, taking the land by Escheat, would be subject to the Trust. (1365.) But the ordinary claims of a Husband, Wife, or Judgment Cre- 1 Sand. Us.35!. ditor, of the Trustee, however available at Law (348.875.) against the Trust property, would be restrained

by a Court of Equity; or at least the parties enforcing them would themselves be declared Trustees, and would be charged with all the costs of litigation.

(1366.) The declaration of Trust upon a Conveyance of the Legal Estate, answers to a

(115, &c.)