car on demise of Dagwell v singer may see gold v white key in c b this case be  cite in the forgo entail of copyhold bar by surrender to use of will where no  custom by recovery or surrender by three judge against will Ch I who think it  may be by recovery without a custom and therefore not by surrender ejectment  verdict for defendant as to part and for plaintiff as to part the verdict for  the plaintiff be the subject for the opinion of the court vesey senior Isaac  singer die Oct without issue Ves sen seize of the premise in copyhold as  tenant in tail by a entail create by his father to the heir of the body of the  father on the body if his wife the father beside I S leave six daughter  whereof the wife of the lessor of the plaintiff be one a custom be find in  this manor for entail copyhold land I S the son be admit into the premise to  hold to he and his heir in tail accord to the custom and he surrender into the  hand of the lord to such use as he shall by any deed under hand and seal  attest by witness or by last will or write so attest limit or appoint he make  his will devise the customary message and premise in question which he have  surrender to the use of his will to one of the defendant upon the roll of the  manor there be find one single instance of a surrender to bar a estate tail  but it do not appear what enjoyment be under the surrender and no instance be  find on the roll of a recovery suffer to bar estate tail the case have be  twice argue the court take time to consider now deliver their opinion birch I  the question be whether the estate tail create by the father be or be not bar  by the surrender by the son and the devise in pursuance thereof as it be admit  there be a custom in this manor for entail copyhold land it must be admit  there be some method to bar such intails or else there will be a perpetuity  which the law abhor and I think this surrender be a good bar to this entail  three method of bar be mention first by recovery in the lord court second by  surrender three by forfeiture and regrant of which last kind instance be find  in san keb side Sti but all those case be restrain to the manor of Wakefield  in Yorkshire therefore this method of bar may be lie out of the case as to the  recovery it must be agree that roll ab b tenancy in tail of copyhold may be  bar by common recovery without custom more by special custom Cr e otherwise  and for a considerable time these recovery seem to be look on as  discontinuances only few ancient case go so far as to hold they to be bar  without special custom in snow v cutler Ra it be hold by Keeling and Twisden  the recovery of copyhold do not dock the remainder without custom so lev where  all the judge agree that if it be vesey senior er p a executory devise it be  not vesey senior bar by recovery accord to pell v brown much less in case of  copyhold which be not bar without custom compare together these case and other  in than the effect of a recovery without custom upon estate tail be plain and  be out of the present case and consequent the surrender must take place this  be the only method of bar copyhold intails remain to be consider and it seem  the easy and most natural way a surrender seem the foundation of copyhold but  it be say that a surrender without a custom be no bar accord to   light b  suppose a recovery without custom work not a bar accord to snow v cutler and  can only make a discontinuance a surrender must be a bar but there have be one  instance in this manor which have a tendency towards a custom because a custom  begin first by a single instance as in the case of a carrier and be often take  in a restrain sense not necessary import time out of mind in Cr e surrender by  tenant in tail of a copyhold make a discontinuance indeed it be difficult to  reconcile the case on this hold in the same book in surrender be hold no  discontinuance without custom but that seem wrong for surrender by custom be  admit to be a bar by the custom therefore one will think that accord to it  must be a discontinuance without custom in for and in Lord cowpers opinion be  that where there be no recovery by custom a common surrender will bar the  entail but it be object that though in some case a surrender may bar a  copyhold estate tail yet this surrender to use of the will shall not because  it passes nothing and he may do what he will with it this be indeed like all  other case depend on will that nothing at the time of make passes no immediate  interest until death of testator but if not prevent by any intermediate act  the interest certain passes at his death and there be no case make a  distinction between a surrender take effect immediate and further take effect  at the death wherever there be a custom to surrender which will bar a estate  tail it be always hold that a surrender to use of the will will bar the entail  also there be therefore but few case where a recovery without a custom be hold  a bar Even in roll ab there be a to waver in opinion in many case in Cr e such  recovery be hold only a discontinuance in for a common surrender will do where  there be no particular method in the lord court and a recovery without a  custom be of no force and as in this case it appear there be no such custom  and in fact no recovery at all the consequence be that a surrender will bar  the entail of which there be one instance it be proper to establish this  method by surrender and the rather as chancery have a concurrent jurisdiction  with all court in these case frequent consider how far a surrender shall be  supply c this vesey senior method also tend to the security and the quiet the  title and possession of the copyholder but a recovery if examine into will be  find very inconvenient in some respect as in for in this method it be hardly  possible to mistake the verdict therefore for the plaintiff ought to be set  aside burnet I I must concur in that opinion the whole of the case come to  this here be a manor in which custom have establish the entail of copyhold and  no method of bar for one instance so modern will not weigh with I and a  instrument without enjoyment be not a instrument I will consider it in the  light it be at the bar first whether recovery without custom to warrant it  will bar next whether surrender without custom will last suppose a surrender  will whether this kind of surrender will have that operation but it be  necessary to premise what will not be dispute that neither the custom nor the  stat de gift alone will establish it but both must cooperate and will then  produce a regular entail of copyhold for which may be cite   light b and   for  it be once shake qustio next it will be admit that a custom entail will be  void if there be no method of bar and therefore the law will introduce a  method of unfettering that estate nor can a estatetail be grant on condition  not to bar it   light Ven it be contend that as this surrender be to take  place ex necessitate there may be intend a way by forfeiture and regrant which  not be state in the ease the court will never doubt of what be not submit to  it but if we be to enter into that there will be a great deal of doubt as to  the validity of that custom and it be certain that all the case thereof relate  to a particular manor that which be submit to the court be without a custom  which be the proper way recover or surrender to consider therefore the first  point there be two book for which I have great esteem where it be lie down  rather as a opinion than a resolution that such a recovery will bar in kitchen  and l it be his reason and deliver his own opinion vesey senior er p not the  determination of any court roll ab go further he seem to chalk out some method  he think will do it and mention a to waver in opinion that case be before roll  time and do not depend on his own collection but must be some note he receive  and in the next term and Elizabeth the same court do not look on Morriss case  as a resolve case but the opinion of kitchen and of roll if it stand must  stand on what be in light sec that plaint in nature of a real vesey senior  action may be in the lord court but it will not therefore be certain that a  warranty can be annex to such a estate and consequent that there can be  voucher and recompense in value which be the foundation of bar in commonlaw  court if no warranty can be annex it can only work a discontinuance which will  not avoid a perpetuity because there may be a recontinuance of the estatetail  and this point be doubt by several authority the remedy of parliament be not  of such easy access as of late year the necessity of a trade country make the  stat de gift a general inconvenience with relation to the power of not  alienate the court here introduce a complete remedy the legislature a  inadequate one not perfect as the remainder though absolute good as to the  issue in tail the court here build feign recovery upon the foundation of real  recovery in real action and it seem hard that lesser people shall not have the  same power of transfer their estate of copyhold which be on you a base fee  original as the great have in process of time when common recovery be confirm  and most favour there be some manor in which custom have introduce a new  method of bar which be the occasion of a litigate question in the time of king  h and pursue in the time of Q Elizabeth the first case be h bro title recovery  in value pl in die the court incline that a recovery in the court of ancient  demesne will work a discontinuance then come dell v Higden which be the first  case where to waver in opinion in more it be mistake for he give it as a bar  whereas in Cr e adjournatur in   entry be the whole of that case and coke say  he look on it only to work a discontinuance roll ab say coke be mistake for  that it be rather a bar upon the strength of Morriss case Cr e the court agree  it be a discontinuance but not whether it be a bar or no Cr e hold it a  discontinuance but that it can not work a bar in Cr e this will not have be  reckon as a point of doubt if the court be conscious of such a judgement in  Morriss case just before in more there be a dictum but it may as well have be  say whether a grant of tenant in tail will work a discontinuance for undoubted  a surrender can pass nothing but what the tenant can convey and can no more  work a wrong than where a thing passes by grant it be there say indeed there  may be a recovery in the lord court which will bar the entail but not whether  there be a custom for it for I admit it may be if there be such a custom Cr e  be direct contrary to Morriss case so short mention in roll and Cr e be the  next year to Morriss case it seem to stand on the old book shake qustio of  which there be great opinion either way kitchen vesey senior and roll against  croak and coke and late authority the first of which be Cr c which be the only  case where that point come under consideration of the court the next be snow v  cutler upon the strength of which and of some authority I shall mention under  the next head a recovery without custom to warrant it will not be a bar to a  entail of copyhold the next question be whether a surrender will as to which  there be   light   brown l Sho indeed in skin the word of holt be general but  I understand they in the restrain sense in Sho this opinion that where there  be no recovery by custom a common surrender will do be mention by Lord Cowper  in for which indeed be not the point he need to have consider but though this  be a opinion only his next determination for be deliver as a judge upon the  very point in judgement my opinion therefore be that the same rule must hold  that a surrender of copyhold will be a sufficient bar of the entail where  there be no recovery by custom to bar it as to the three point accord to bull  and many other case I can consider the will only as a declaration of the use  of the surrender the will be the same as if it have be insert by matter ex  post facto in the surrender and will have relation which be determine in a  case of a similar nature   light b and Cr I this surrender therefore be a good  bar of the entail copyhold and consequent the whole verdict must be enter for  the defendant Willis chief justice I be the less concern at differ in opinion  in the present case because though can concur in the point of law yet I think  the opinion of vesey senior er p my brother attend with less inconvenience  than I therefore be glad it will prevail and I differ but in one point I agree  that a estatetail in copyhold be not create by custom but custom cooperate  with the statute and agree that if it may be create by custom some way to bar  it must be find out to prevent a perpetuity whether the custom will be void if  there be no method of bar I doubt I agree also that a surrender will bar such  estate if there be a custom for it accord to the express word of   light and  Lord coke will never have say that if a estate may be create by custom a  surrender by custom will bar it if it be then establish that a surrender  without a custom will bar his opinion therefore must be that there must be a  custom to make a surrender good if there be no other way to bar I admit a  surrender will without a custom from necessity to avoid a perpetuity but if  there be a way of bar there be a end of that question forfeiture and regrant  be not a adequate argument that there be no occasion for a vesey senior  surrender I will not enter into that because it be not before I but shall at  present rather think that if there be a manor in which such a custom exist  that custom will bind all the party and that may be a good way of bar but  although without a custom it may be a bar it be not such a method as will  preclude the other because not in the tenant power for unless there be a  custom if the lord will not consent it can be do and be therefore no method at  all I agree also that if a surrender will bar this surrender to use of the  will will do it it be object thereto from the absurdity that will follow in  other case which I do not concern myself about as that if tenant in tail can  bar it must be by some act in his life whereas a will can take place until  after death and the surrender and will make but one conveyance the surrender  operate not until after death and then it be absurd to say a man can bar after  he be dead that have already receive a answer and further when there be a will  and admittance that have a retrospect to the surrender to all intent and it be  therefore a bar from the time of the surrender not from the death of the  testator otherwise a surrender to use of the will will not bar survivorship in  the case of jointtenants in   light b take notice of in lev be parallel  instance to this but I can think a surrender will bar if there be any other  method if a recovery will do there be no necessity of a surrender to bar but  there be plain no custom one way or other a custom must be time out of mind so  that one instance have no tendency to a custom I think a recovery without  custom will bar and if so there be no occasion for a surrender to bar light  sec plaintiff in nature of a real action may be in the lord court kitchen a  book of good authority and the rather because find on old determination not  advance fancies of their own be clear that such recovery will bar make a  distinction between recovery with voucher and without except Cr e there be no  case before snow v cutler where it be say it will some where to waver in  opinion in several case it be say that with voucher they will be a bar without  voucher only a discontinuance Cr e do not appear whether with voucher or not I  shall rather think it imply from Lord coke inclination that a recovery will  bar without custom though he have not say it consider the other case since but  first as to a objection to these recovery bar from the reason of recovery bar  in case of freehold videlicet the recovery in value the remainderman have  which can be in copyhold case because to the lord prejudice it be well know to  be nothing but a fiction the common vouchee be to make satisfaction and I can  argue mere from a fiction or say that a thing which be a fiction in the case  of freehold shall be a reason why recovery in case of copyhold shall not bar  this will be a strong argument against bar either by surrender or recovery  with custom because there be vesey senior no satisfaction which will go too  far therefore as to the reason of the thing there be no objection I do pay  great deference to the last case though not so great as to say it be always  bind but no deference to case be due without they appear to be the point in  question and there be no occasion in snow v cutler to determine that point at  all I can look on that as a authority and much less the case cite out of for  against the authority of the former book I have a great regard for a court of  equity and for Lord cowpers memory and if this have be the point in question  and send by he upon his doubt to a court of law that indeed will have great  weight but there be no occasion to determine that there nor be Vernon a very  exact reporter I agree with the particular method mention by Lord Cowper but  this shake qustio be not at all consider there as a recovery may be suffer in  the lord court I can think a surrender vesey senior er p will bar but I be  satisfy that unless this come to be the establish opinion great inconvenience  will arise to copyhold and wish the legislature will remedy it nay I hope my  brother opinion will determine it but I can think the law be so the occasion  of this method be from the ignorance of steward of copyhold who know not how  to suffer a recovery and therefore choose to do it by surrender my brother  Abney before his death declare himself of opinion with my two brother  therefore a general verdict must be for the defendant vide in Hinton v Hinton  Ves sen