case write ux all versus Thornborough all Lord chancellor pre Ch pale yellow  Eq Rep S c one upon his marriage covenant to levy a fine of his freehold and  to surrender his copyhold to the use of himself and his wife for their life  remainder to the heir male of their body remainder to the heir of their body  and die leave issue a son and a daughter before any fine levy or surrender  make the son for secure of money covenant to levy a fine of the freehold land  and to surrender the copyhold and surrender the copyhold but die without have  levy a fine and without issue decree by the Lord Harcourt that it be in case  of article for valuable consideration the settlement shall be to the first c  son of the marriage with the remainder to the daughter and that the daughter  be entitle to both freehold and copyhold and on rehear Lord Cowper confirm the  decree as to the freehold but for other reason and reverse it as to the  copyhold ante case I S seize of freehold and copyhold land on his marriage  covenant to levy a fine of the freehold and to surrender the copyhold to the  use of himself for life and to his wife for life remainder to the heir male of  his body by his wife remainder to the heir of their two body remainder to his  own right heir the marriage take effect and there be issue a son and a  daughter but I S die before any fine be levy or surrender make the son attain  twentyone and borrow money of the defendant and also of other on bind in which  the defendant be bind as his surety and which they afterward be oblige to pay  Vernon chancery case the son to reimburse the defendant and to countersecure  they covenant to levy a fine of the freehold and to surrender the copyhold to  they and their heir redeemable on payment of the money by they lend and of  what they shall be oblige to pay as his surety and by his will devise his land  to the defendant in trust to raise money for the payment of his debt and make  they executor and afterward die without issue have surrender his copyhold land  to the defendant but without have levy a fine of the freehold the plaintiff  white have marry the sister they bring their bill against the defendant to  have the freehold convey and the copyhold surrender to they accord to the  intent of the marriagesettlement and to have a account of the rentsand profit  the defendant insist they be honest creditor for great sum of money and have a  security make to they by the plaintiff brother who have the whole legal estate  descend to he there have be no fine levy or surrender make pursuant to the  marriagesettlement and if the settlement have be perfect by a fine and  surrender yet the plaintiff brother will have be tenant in tail and may by a  fine have bar not only his own issue but also the plaintiff his sister and he  have the feesimple of the legal estate and be tenant in tail of the equitable  estate the deed of covenant to lead the use of the intend fine although no  fine actual levy be sufficient in equity to bar it that it have be hold that  tenant in tail of a equitable estate may alien by a bargain and sale or feoff  or even by article and in the case of aley versus aley the feoff Vernon  chancery case make by the beneficiary and trust in tail and the trustee be  Vernon chancery case er p adjudge a good bar of the entail but the law be not  so now vide north v way ante vol p and case in not p there and as to the  copyhold he have actual surrender it to the defendant and there be no  particular custom within the manor for suffer of common recovery a general  surrender thereof will have be a good bar of the entail in case it have as it  be not be settle in tail vide on this point Otway v Hudson ante and the case  cite in not p there by which the above position appear to be clear the law so  Martin on they of Weston v Mowlin burr and as to surrender make in the  lifetime of tenant for life which it shall seem will not bar highway v banner  bro Ch Rep and although the plaintiff brother have not levy a fine of the  freehold to the defendant accord to his covenant yet the defendant have the  legal estate in they by the will and have both law and equity on their side  ought to prevail against the plaintiff who have only a demand in equity by  virtue of the father marriage agreement the cause be first hear before the  Lord chancellor Harcourt that June Ann who look upon the deed of the father in  the nature of article and when to be carry into a execution by a court of  equity may be settle in a strict manner than bare in the word of the deed and  that a remainder may be express limit to the daughter of the marriage so as  the son fine can not bar it and decree both freehold and copyhold to the  plaintiff the plaintiff brother the son of I S have also make a mortgage of  the premise in question as to which Lord Harcourt declare that nothing pass  thereby inasmuch as no fine be levy by the mortgagor but that even if a fine  have be levy the mortgagee ought to have take no benefit thereby he have  notice of the indenture of settlement the same be recite in a decree mention  to have be have in this cause that July car see and which decree be recite in  the mortgage deed and as to the copyhold surrender to the say mortgagee of the  freehold land the legal interest be declare to be vest in they but it be also  declare that they ought not to take any benefit thereby in respect of the  covenant in the say indenture of settlement to surrender the copyhold to the  same use to which the say freehold land be thereby agree to be convey of which  covenant the say mortgage have full notice before such surrender make to they  vide the report of this case in pre n p and therefore decree the say mortgagee  to reconvey the freehold and resurrender the copyhold estate and decree that  the widow of the mortgagor be entitle to dower in the freehold land and to  account for rend and profit by they receive as therein mention r upon a rehear  before the Lord chancellor Cowper he declare that the settlement by deed to  lead the use of a fine be to be consider not as article but as a defective  settlement and the use not to be alter or vary but be a weak and feeble  settlement a court of equity will assist it so far as to consider it as if a  fine have be levy and then the plaintiff can not have be bar without a fine  and the plaintiff be to be consider as heir of the body of the father and the  limitation in the deed to the heir of their body can be insert for no other  end or purpose but to carry the estate to the daughter of the marriage it be  before limit to the heir male and therefore confirm the decree as to the  freehold estate except as to the claim of the widow of the mortgagor who die  in the lifetime of his mother the wife of the original covenantor be not seize  thereof and therefore she not entitle to dowry r l but as to the copyhold  there appear no particular custom within the manor for the suffer a recovery  he hold the surrender will bar the entail in case the copyhold have be well  settle and therefore vary the decree and dismiss the bill as to the copyhold  the plaintiff to give up possession of the say copyhold estate and to account  for the rend and profit Reg lib b fol on the doctrine of vary settlement by  article vide Beachinall v Beachinall ante vol and case cite in not there et  vide Fonbl Tr Eq book ch in which the distinction between the case where  article be make before the marriage and the settlement after and both article  and settlement make before the marriage as state by Lord Talbot in leg v  Goldwire Forr be mention as recognize also by Mr Fearne whereby it appear  Vernon chancery case er p to be his conclusion upon the result of the case  that although the court will interfere in the former of these case yet it will  not if both article and settlement be make before marriage unless the  settlement in that case be express to be make in pursuance of the article so  honour v honour p wms ante SC Robert v Kingsley ves yet from the case of  Barstow v Kilvington Ves jun it seem perhaps somewhat doubtful whether the  court will at all event tie itself up to that and whether it will not under  circumstance interfere to rectify the settlement in the case of article and  settlement both before marriage although the settlement do not profess to be  make pursuant to the article or write consider as article that be a case where  no article but settlement make before marriage and after the marriage the wife  on the marriage of her daughter one of the child of that marriage write a  letter to the intend husband in which she express the intention of the party  to that settlement to have be different from the purport of the settlement as  execute and the court reform the settlement by that letter as to difference of  construction in create estatetail and estate for life between marriagearticle  and will vide bail v Coleman ante note by the report of the principal case in  pre Ch it appear that several at the bar be dissatisfy with this and the  former decree as to the freehold and think that the defendant have the estate  in law in they by the devise and be just creditor ought not to have have this  estate take from they by the assistance of a court of equity and think the  distinction of a infirm settlement unintelligible