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operate long; there was length of pos "session against the intail, on which to pre"sume a surrender: 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 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, 2 Ves. Jun. 120. The observations of Lord Alvanley, then Master of the Rolls, in the latter case, are very apposite to this purpose. His language was, "This court "has determined that such equitable estates

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are to be held perfectly distinct and seડર્ડ parate from the legal estate; they are to "be enjoyed in the same condition; intitled "to all the same benefits of ownership, dis66 posable, devisable, and barrable, exactly as if they were estates executed in the party."

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The observations of Lord Hardwicke, in Radford v. Wilson, 3 Atk. 815, are, it should seem, (and such indeed is the prevailing opinion,) to be understood, as perfectly consis tent with his language in Pullen v. Middleton. His observations merely imply that an intail, legal or equitable, may be barred by surren der, when the custom of the manor does not prescribe a different mode of barring the intail. At all events the customary mode of barring the intail of the legal estate of copyhold 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 (m) 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.(n) On this determination it is to be remarked, that the lands are within the jurisdiction of that court, though they are more properly impleadable in the lord's court, and in this respect they are under a different predicament from the lands of the tenure of ancient demesne. This point is noticed, as a means of avoiding the rapacity of some lords of

(m) Taylor . Shaw, Carter, 21.

(n) See also the observations of Lord Hardwicke in Pullen . Middleton, 9 Mod. 484.

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 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 to rely on a fine under these cir cumstances, though 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 copyhold lands in opposition to his own fine? Is he not estopped? That the decision will be in the 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. But it is not apprehended that a recovery in the courts of Westminster hall will have the same effect as a customary recovery: since a customary recovery is the prescribed mode of barring an intail (6).

Of the Recovery Deed.

It has been shewn, that 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.

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 an express declaration, instead of suffering it to depend on a resulting use in favour of the tenant in tail, or the averment of an use in favour of the recoveror.

It has been noticed too (p), 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 case supposes no uses to have been declared in favour of the conusor, in the fine, or of any other person than the conusee.

(p) Altham v. Anglesea, Gilb. Eq. Ca. 10. et supra.

M

In treating of the recovery deed, it will be proper to consider,

1st, In what cases a recovery deed is ne

cessary,

2d, Its formal parts.

And 1st, when a fine is levied, and a recovery is to be suffered to the conusee, a deed either of conveyance or of declaration of the uses of the fine is not essential to the validity of the recovery,

So when the writ of entry is brought against the person, who already is the owner of the freehold, a conveyance by deed or fine. is not of absolute necessity. In practice a conveyance will frequently occur, and is proper, even in cases attended with these circumstances.

In all other cases, since the intended tenant would not have the freehold without a conveyance made to him, it is of the first importance that such conveyance shall be made, and that the tenant shall have, or appear to have, the freehold during the term, in which the recovery is suffered

But to guard against the loss of recovery deeds, &c. the statute of 14 Geo. II. bath enacted those provisions which have been already noticed; and thus hath made a period of twenty years, with enjoyment under the recovery, presumptive evidence of the existence of those deeds by which a tenant to