"His been pursued, as near as possible.' lordship, in this part of the case, adverted "to Otway and Hudson, 2 Vern. 583, a case depending entirely on the cir"cumstance, that the tenant in tail had "done every thing in his power, for the purpose of barring his equitable estate"tail. "The opinion also of Lord Loughborough, in Roe v. Lowe, 1 H. Black. 461, in "answer to several cases which were cited, "to show that the equitable intail of copy"hold lands may be barred by a mere "devise, was to this effeet: Now though it is true that the devise of an equity in a copy hold, requires no surrender, yet that is, where the testator has a devisable 'estate; the intail must first be barred; the party must have done some antecedent act to enable him to devise; here no such thing was done, and the will of Thomas [158] Weston Harper did not operate long; • there was no length of possession against the intail, on which to presume a surren• der. But it is said that the intail was barred by the deed of the younger Thomas Weston Harper; but it would require a deal of argument to prove that a lease 'made by the equitable tenant in tail of a copyhold should be a bar of the intail. It is not clear then, that the estate-tail was de facto barred by any act of the tenant, if not, then Mary Weston Harper is intitled as heir in tail.' "To these authorities may be added, "the decisions in courts of equity as to "freehold lands. There a There a recovery is "considered, as absolutely necessary to "bar the equitable intail with remainders over, although a contrary doctrine had formerly prevailed in that court. See Harvey v. Parker, 10 Vin. Abr. 266; and Bridges v. Bridges, 3 Ves. jun. 120. The "observations of Lord Alvanley, then Mas"ter of the Rolls, in the latter case, are 66 very apposite to this purpose. His lanC guage was, This court has determined that such equitable estates are to be held perfectly distinct and separate from the legal estate; they are to be enjoyed in the same condition; intitled to all the same ⚫ benefits of ownership; disposable, devisable, and barrable, exactly as if they were estates executed in the party.' 66 "The observations of Lord Hardwicke, [ 159 ] "in Radford v. Wilson, (3 Atk. 815,) are, it "should seem, (and such indeed is the pre 66 vailing opinion,) to be understood, as perfectly consistent with his language in "Pullen v. Middleton. His observations merely imply that an intail, legal, or equitable, may be barred by surrender, "when the custom of the manor does not " prescribe a different mode of barring the "intail. 66 "At all events the customary mode of barring the intail of the legal estate of copyholds lands, ought to be observed, in barring the equitable intail of such lands: " and it would not in any case be safe to adopt a different course of practice." Lord Chief Justice Bridgman (d) seems to have decided, that an estate-tail in copyhold lands, may be barred by a fine, with proclamations, in the court of Common Pleas (e). On this determination it is to be remarked, that the lands (unless they are within a peculiar jurisdiction) are within the jurisdiction of the court of Common Pleas, though they are more properly impleadable in the lords' court, and in this respect they are under a different predicament from lands of the tenure of ancient demesne. This point is noticed, as a means of avoiding the [160 ]rapacity of some lords of copyhold manors, who refuse to permit equitable owners to suffer a recovery, or pass a surrender, in the lords' court without being admitted, or at least paying fines as if they were admitted. It is, however, to be observed, that some (d) Taylor v. Shaw. Carter, tions of Lord Hardwicke in Pullen v. Middleton, 9 Mod. 484.. gentlemen, whose opinion is entitled to the highest respect, are not satisfied that a fine of copyhold lands will bar the trust of a married woman in those lands. Of course it is not safe, under the circumstances which have been noticed, to rely on a fine as a bar to an intail. Still it is very proper that the point should be kept in mind, and whenever circumstances require it, pressed to a decision. Can a person claim any interest in copyholds lands in opposition to his own. fine? Is he not estopped? That the decision will be in support of the validity of the fine, is a point on which little doubt is entertained by the writer of these observations. The same point applies to alienation by married women of equitable interests in copyhold lands. A recovery in the courts of Westminsterhall, however, will not have the same effect as a customary recovery (f): since a customary recovery is the prescribed mode of barring an intail. And a fine cannot, on any principle, be urged as a bar of any other interest than the intail in the conusor. the other hand, if the operation of the fine be under the rules of the common law, and by force of the learning on estoppels, and not by force of the statutes giving operation (f) Oliver v. Taylor, 1 Atk. 474. On 1 [161] to fines with proclamations against heirs in tail, then common recoveries and fines stand on the same footing in this respect. Of the Recovery Deed. The tenant to the writ of entry may be made by fine, feoffment, grant, bargain and sale, lease and release; or, in short, by any assurance which will have the effect of passing the freehold to the intended tenant in the recovery (g). The point to be regarded is, that there shall be a conveyance effectual for this purpose; and that it shall be made in due time. In general also, and with great propriety, there is a declaration of the uses of the recovery, for the purpose of rendering the title certain, by means of an express declaration, instead of suffering it to depend on a resulting use in favor of the tenant in tail, or the averment of an use in favor of the recoveror. It has been noticed (h), that a fine levied to a person, afterwards named tenant, in a recovery, though at a distant period, will be considered as originally levied, to the use of the conusee, so that he may be deemed a good tenant to the writ of entry. This (g) Supra, 34. (h) Altham V. Anglesey, Gilb. Eq. Ca. 16. et supra, 36. |