and Thomas were the surviving sons. The Duke of Bridgwater, who was seised in fee of the manor, by lease and release granted the said premises to the said W. Murhall the elder, his heirs and assigns for ever, freed and enfranchised from all services. W. Murhall died without having disposed of the said premises, or the freehold thereof; by which means they descended to John Murhall, who by his will charged the same with the payment of his debts and legacies, and devised them to T. Murhall, his third son. In this manor no recoveries were suffered, but estates tail were barred by surrender. The bill was filed by legatees; the Master reported that the premises were charged by the will, to which report exceptions were taken. Lord Loughborough said, it was impossible that any equity could keep alive this entail; Thomas Murhall, the third son and next remainder-man in tail, never could have had a bill against his father, and elder brother. No one could have a right against the tenant in tail. The case from Lord Jeffries Parker v. proved a plain proposition, that where the interest of Turner, the lord of the manor was united with the coyyhold in tail, there must be a merger, for the method of barring it could not exist. ante, § 34. 38. Where the trust of a copyhold is entailed, the How an equitable same mode of barring it should be adopted, as if it Entail may were a legal entail. This proposition may be sup- be barred. ported by reasoning analogically from the case of an equitable entail of freehold lands; and by the authority of Lord Hardwicke, who, in discussing the mode of barring a conditional fee in a copyhold, has said, "If the estate had been entailed, it would have 9 Mod. 484. been necessary to have barred the entail by some proper means, either by a recovery suffered in the lord's court, if the custom of the manor had admitted it, or by a surrender. And though the entail had not been of the legal, but of the trust estate, all possible endeavours ought to have been used to have barred it in the ordinary way. And the rules of the common law, in regard to the barring of such estate tail, ought to have been pursued as near as possible, according Tit. 38. c. 4. to the case of Otway v. Hudson." § 28. Grayme v. 277. 2d ed. 39. It has been determined, that where a tenant in tail of the trust of a copyhold accepted a surrender of the legal estate from the trustees, it was a bar to the entail, and remainders over. 40. John Grayme surrendered certain copyholds 1 Watk. Cop. to the use of two trustees and their heirs, to such uses as he should declare by his will; and on the same day made his will, and declared that the trustees should stand seised of the premises to the use of John Grayme, son of Oliver Grayme, for life, with remainder to the heirs male of his body, remainder to Oliver Grayme in the same manner. The trustees were admitted. John Grayme, the son of Oliver, became possessed, as tenant in tail, and died, leaving a son John, who also became possessed as tenant in tail; when the trustees surrendered the premises to the use of the said John in fee, who was admitted, and died leaving three daughters. The plaintiff claimed as heir male of Oliver, by reason of failure of issue male of John. The defendants were the daughters of John the son, and claimed under the surrender made by the trustees to the use of their father in fee. Lord Apsley said, the acceptance of the surrender, and the admittance under it, was evidence of an intent to acquire a fee, and therefore a bar to the entail in equity. And dismissed the bill, but without costs. 41. It has been stated, that where the custom of a manor does not admit of an entail of a copyhold, a surrender to the use of a person and the heirs of his body, gives him a conditional fee. And in that case it has been held, that a surrender after issue had, will bar the estate. Barnes, 42. A surrender of copyhold lands was made Stanton v. within the manor of Stevenson, to the use of I. S. Co. Sup. § 12. and the heirs of his body; and after issue had, he surrendered the same to a stranger. It was agreed by all the Justices, that this was a conditional fee at common law; and, that after issue, I. S. might alien the lands. 9 Mod. 483. 43. An estate was limited to trustees, to the use Pullen v. Middleton, of A. and the heirs of her body; she married B. The lands were copyhold, and not capable by the custom of being entailed, so that no recovery could be suffered of them. The husband and wife, by indenture of bargain and sale, to lead the uses of a recovery, declared that the lands should be to the use of the husband and his heirs; and afterwards suffered a common recovery in the Court of Common Pleas. Lord Hardwicke said, that taking this estate to be a fee simple conditional at common law, in trust for the wife, as it really was, after the condition performed, she might have devised it, had she been sole, by will, which would have operated as a good appointment of the trust. Being a feme covert, she had joined with her husband in executing a deed to make a tenant to the præcipe, and suffering a common recovery to the use of the husband and his heirs. Now it was certain that a feme covert might, by a common recovery, convey her fee simple land, as well as bar an estate tail; for she being secretly examined before the recovery was suffered, she was as effectually barred as she would be in the case of a fine. But besides this deed and recovery, the husband and wife had gone farther; they had brought their bill in the Court of Chancery against the trustees to convey the legal estate, and a decree had been made for that purpose, which he was to suppose had been carried into execution; so that all had been done that could be done to transfer the estate to the husband. And he was of opinion that it was well transferred; and he did not see how this differed from the devise of a trust copyhold estate, which had always been held Tit. 38. c. 4. good. Effect of Releases. 1 lust. 59 a. Kite and 4 Rep. 25. 44. Although in general a copyhold estate can only be aliened by surrender and admittance, yet Lord Coke says, where a man hath but a right to a copyhold, he may release it by deed, or by copy, to one that is admitted tenant de facto. 45. A copyholder surrendered his lands out of court to the use of another and his heirs, upon certain conditions. At the next court the surrender was presented, but in the presentment the conditions were omitted; and the person to whose use the surrender was made being dead, the lord by the steward, according to the custom, admitted his daughter and heir, who entered. The person who made the surrender, by his deed, released to the daughter, being in possession, and afterwards entered upon her: and if his entry was lawful, or not, was the question? It was adjudged that his entry was not lawful.. The great doubt was, if by the said release by deed, the customary right of the copyholder was extinct, and he who made the surrender barred of his right: and it was objected that Littleton says, a copyholder cannot alien his land by deed, but if he will alien, he ought to surrender; and that such tenants are called tenants by copy, because they have no other evidence concerning their tenements, but the copies of the court-rolls; and it was said that that excludes all releases by deed, for then they would have other evidences than the court-rolls. Also it was said, that he who purchases the land, may, upon searching the rolls, be advised if the title of the land be good. But if a release by deed should extinguish rights, then it would be very dangerous to purchasers, for that does not appear in the rolls. To which it was answered and resolved, that the release in the case at bar extinguished the right of the copyholder; and their reason was, because he to whom the' release was made was admitted to the tenements and copyhold in possession; so that a release of the customary right might enure to him, and therefore the lord was not at any prejudice, for he had his fine upon admittance, Hull v. and he to whom the release was made was in by title, Cro. Ja. 36. namely, by the lord's admittance; and so the release S. P. enured by way of extinguishment. Sharbrooke, 46. It was said in the same case, that if a copy- 4 Rep. 25 b. holder be ousted by tort, there his release by deed to the disseisor, or other wrong-doer, doth not transfer his right, nor bar him, for two reasons: 1st. Because he has no customary estate upon which the release of the customary right can enure; 2d. It would be to the lord's prejudice, for thereby he would lose his fine and services: and for these reasons the release by deed in such case is utterly void. And this is not against any thing Littleton says, for he speaks of an aliena- § 74. tion by surrender, and that of necessity ought to be into the lord's hands, according to the custom. But |