case white versus Thornborough all ante vern and pale yellow Eq Rep S c Eq Abr  pl Eq Abr pl pale yellow Chan where a court of equity will carry marriage  article into execution though to the defeat of creditor Isaac Jackson the  plaintiff mary father be seize in fee of a freehold estate and also of a  copyhold estate and have marry a orphan of the city of London do after  marriage in consideration of pound which be her portion and be but then pay he  by indenture the saint of October covenant with the chamberlain of London and  another person to levy a fine of the freehold estate to the use of himself for  life remainder to the use of mary his wife for life for her jointure remainder  to the heir male of his body on the body of the say mary to be beget with  remainder to his own right heir and by the same indenture covenant to  surrender the copyhold estate to the same use the copyhold be not surrender  nor be any fine ever levy of the freehold after this he have issue by his say  wife Abraham his only son and mary his only daughter the wife of the now  plaintiff and die after his death mary his widow bring a bill and have a  decree to hold and enjoy the estate during her life Abraham her son contract  debt to the value of pound for which the defendant become his surety and for  the better secure the payment of those debt Abraham do by indenture in August  covenant to levy a fine of his freehold estate to the use of mary his mother  who be then live for life remainder to the defendant for year remainder to  himself in fee and the trust of the term be declare to be for payment of the  and interest precedent in chancery with a covenant for further assurance and  at the same time Abraham surrender his copyhold land to the same use after  this Abraham make his will and thereby devise all his freehold precedent in  chancery er p and copyhold land to the defendant for the better indemnifying  they against the say pound and interest and make they executor and then go a  voyage into the east Indies where he die without issue leave the defendant  whether his widow and relict No fine be ever levy by he of the freehold estate  pursuant to the say indenture and mary the plaintiff mother be dead the  plaintiff bring this bill for a discovery of write and a account of the rend  and profit of the real estate as belong to the plaintiff mary and that the  defendant may likewise be oblige to surrender back the copyhold estate as  belong to the plaintiff my Lord chancellor Harcourt decree accord save only  the defendant whether dower out of the freehold estate and the reason of his  decree be that he take the first indenture to be only in the nature of article  for a settlement and that if a bill have be bring to have carry it into  execution the settlement will have be so as to have make both the son and  daughter purchaser of the respective remainder and as to the copyhold that be  to be entail by the article can not afterward by a bare surrender be defeat  without a particular custom have be find to have warrant it from this decree  the defendant now appeal for the plaintiff it be argue that they be purchaser  under the first settlement make by the father in consideration of pound  portion pay vezey that though this deed be execute after marriage yet the  portion be pay at the same time it can not be look upon to be voluntary but  will be as effectual as a settlement make before marriage and so it have  always be hold where the portion be pay at the time of make the settlement  that if the fine have be levy pursuant to this deed precedent in chancery of  covenant there have be no question but it have be a effectual settlement and  then Abraham the son be tenant in tail his covenant to levy a fine can not  have bind his issue much less the plaintiff mary who claim as a purchaser by  way of remainder as heir of the body of her father that though no fine be levy  yet in a court of equity it be to be look on as the same thing and there be no  doubt but if a bill have be bring by the trustee in the father lifetime this  court will have oblige he to complete the settlement by levy the fine that the  plaintiff mary be a purchaser for a valuable consideration under this  settlement and therefore ought not to lose the benefit of it that as to the  copyhold that be actual surrender to the use of the first deed and then  Abraham be tenant in tail thereof can not without a particular custom for that  purpose defeat either his issue or the plaintiff by a bare surrender and  therefore it be pray that the former decree may stand on the other side it be  argue that the defendant be just creditor for pound that if the estate be take  from they they must entire lose their debt that no fine be levy pursuant to  the first deed the legal estate continue still in the father and from he  descend to Abraham his son and he have by his will devise it to the defendant  that it be very extraordinary for the plaintiff to ask the assistance of a  court of equity to take it from they that Abraham the son be but tenant in  tail in equity and therefore though he do not levy a fine yet that be not  material for a bargain and sale a feoff or covenant to levy a fine by such a  equitable tenant in tail have be hold sufficient to bind his issue and so it  be settle in the case of all I lee and allee where that point come solemnly in  debate that though the plaintiff claim by way of remainder as heir of the body  of her father yet it be such a remainder S be actual vest in the son and if  the settlement have be perfect he may by precedent in chancery his fine have  bar not only his own issue but also the plaintiff and then his covenant to  levy a fine ought in equity to have the same effect that as to the copyhold  estate there can be no doubt but that be effectual vest in the defendant that  there can be no entail of a copyhold or if there can yet a bare surrender by  such copyholder have be always hold sufficient to bind his issue unless some  particular custom be find that a common recovery be needful and therefore it  be pray that the decree may be reverse but my Lord chancellor say he think  with wms if this deed of covenant be to be look upon only in the nature of  article then if a bill have be bring to have carry it into execution in the  lifetime of the father the court will have decree the limitation to have be to  the first son and the heir male of his body with remainder to the daughter and  the heir of their body beget the remainder to the heir of the body of the  father and in such case though the son by a common recovery may have bar tile  remainder to the daughter yet they will have a precedent in chancery er p  chance for it in case no such recovery have be which show the reasonableness  of pursue strict the intent of such agreement for the tenant in tail through  ignorance or forgetfulness may omit to suffer such recovery or he may be  prevent by death before he have complete it and then the remainder will take  place but he think in this case from the circumstance of pay the portion at  the same time and the chamberlain of London be a party that it be more than  article and ought to be look on as a settlement though be say it be a very  infirm and imperfect one but take it as a settlement then by the limitation  thereof as they now stand though the son will have have both estate in he and  may by a fine have bar they yet his covenant to levy a fine only can affect  the plaintiff who now derive her title not under the son but as heir of the  body of precedent in chancery her father per form gift and be in paramount the  estate in tail male which the son take but as to the copyhold estate he say  that can not be look upon as a feesimple conditional which the counsel for the  plaintiff contend for not be able to support it as a entail and that the son  can not alien it before the condition perform by have of issue for that every  body know copyhold be at first but a kind of tenure in villeinage and in  respect of their base nature determinable at the will of the Lord though now  indeed they have be improve and harden by time but prima fancy it must be take  vern I atk that a surrender by such tenant in tail will bind his issue unless  a particular custom be find that there ought to have be a common recovery and  that not appear in the case he think the defendant have a good title to the  copyhold and therefore reverse the former decree I as to that but affirm it as  to the freehold but note 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 note likewise in this case  the defendant themselves have by their answer plain confess that they have  notice of the first deed at the time they become surety and take the son  covenant to levy the fine precedent in chancery de boundary S HILLARII in  curian porter