case david eyton appellant John eyton and other respondent that February Mews  dig seven the defendant suppress a settlement but upon proof that it come to  his hand the party entitle shall hold and enjoy the land accord to the  settlement decree and order of the master of the roll and Lord keeper affirm  see the case of Dalston v coatsworth I p wms and the case of Hampden v Hampden  ante vol p title evidence and post Kenrick v Hudson can of this title this  case of Eyton v Eyton be also cite brown er p as have determine the follow  point by the affirmance in the house of lord though the ground of fraud seem  to have be the main consideration equity will never assist to avoid a common  recovery upon pretence that there be no tenant to the praecipe especial when  suffer by a heir at commonlaw to bar a voluntary settlement Eq ab c vin c see  this work title fine recovery a counterpart of a settlement be admit as  sufficient evidence that there be such a settlement and a conveyance be decree  accord pre Ch vin c this point do not appear on the present report vern Eq can  ab b c viner vol p can can vol p can Eq can ab can Eq can ab c pre Ch Thomas  Eyton the appellant grandfather by deed and fine that October car I settle  several land and tenement in Knolton Overton villan and Erbistock in the  county of flint to the use of himself for life remainder to his old son  Benjamin and the heir male of his body remainder to his second son Randall and  the heir male of his body remainder to his three son David the appellant  father and the heir male of his body with other remainder over but in this  deed be contain a proviso that if Benjamin shall die without issue male leave  issue female that then and in such case if the next in remainder to the land  so limit to he as aforesaid shall not within one year after Benjamin death  without issue male pay or tender to their daughter or daughter of Benjamin in  manner therein express the sum of pound to be equal divide between they that  then the use so limit of the say land shall cease and brown the same shall be  and enure to the use of the daughter or daughter of Benjamin her or their heir  Thomas the settlor and two of his son Randall and David all die in the  lifetime of Benjamin and Randall die without issue the appellant as the old  son of David his father become entitle as next in remainder to this estate  expectant upon the determination of Benjamin estatetail who have no son and  only two daughter namely the respondent jane and Ann Benjamin Eyton be a  lunatic and the respondent John have marry jane one of these daughter he get  the original settlement into his custody where upon the appellant in file his  bill in the court of chancery against Benjamin and Ann his wife and also  against the respondent John and his wife for a discovery of this settlement  and to have the same bring into court the defendant John by his answer confess  the settlement to be in his custody and set forth the date and use thereof but  insist that he can not part with it without Benjamin consent who have levy a  fine of part of the premise and by a deed date the that of September have  declare the use thereof to himself and his heir the defendant also insist that  the bill be bring too soon for that Benjamin be tenant for life may bar the  remainder or at least that so long as he live there be a possibility of his  have issue male the plaintiff therefore drop all further proceed in this suit  during the life of Benjamin in Benjamin die without issue male whereupon the  plaintiff as next in remainder become entitle to the land in question and he  accord amend his former bill by make Ann the other daughter and coheir of  Benjamin a party and pray a discovery of the settlement and other deed and  write which manifest his title and a account of the rend and profit from  Benjamin death to this amend bill the defendant John by his answer insist that  he can not set forth the purport of the settlement because he have many year  ago deliver it to Benjamin and know not what be become of it and the defendant  jane and Ann insist that they be seize of a good estate of inheritance in the  say premise under a fine and recovery levy and suffer by Benjamin their late  father the cause be at issue and witness examine it come on to be hear before  the master of the roll on the saint of December when his honour declare brown  er p that there be manifest proof of the settlement of the that of October car  I and that the same be in the defendant John custody and suppress by he and  that he have make a very wicked defence in deny by his second answer what he  have confess by his first and vary from the same and therefore decree that the  defendant shall convey the premise in question to the plaintiff and brown that  he shall hold and enjoy the same accord to the settlement and as to the  forfeiture by reason of the plaintiff not pay the pound accord to the say  proviso the court declare that he ought to be relieve against the same on  payment of one moiety of the say pound to the defendant John and the other  moiety to the defendant Ann with interest from the time it ought to have be  pay and therefore refer it to a master to compute such interest and also to  take a account of the rend and profit of the premise receive by the defendant  since Benjamin death and decree that what shall appear to be due from they for  such rend more than the interest shall be pay to the plaintiff with cost the  defendant be dissatisfy with this decree obtain a rehear of the cause before  the Lord keeper wright on the that of January when his lordship declare that  he see no cause to alter the decree and therefore confirm it in consequence of  this decree the plaintiff get possession of some part of the estate but the  defendant be still dissatisfy obtain another rehear before the Lord keeper  afterward Lord chancellor Cowper on the that of July when it be order that the  defendant shall proceed to a trial at law for the premise in question and  after such trial either party be to be at liberty to resort back to the court  a ejectment be accord bring on the trial whereof a verdict be find for the  defendant as to all the land in Knolton comprise in the fine and recovery of  and the cause be afterward hear on the equity reserve on the that of November  it be refer to a master to compute what be due to the defendant for their  respective moieties of the with interest and to tax the defendant Ann her cost  both at law and in equity and it be decree that the defendant shall distinct  account for the rend and profit of such of the land in question as they have  not recover by the verdict and on payment of what shall appear due to the  plaintiff on that account after deduct such principal interest and cost as  aforesaid the defendant be to convey to he the premise not include in the  verdict and as to such of the land in Knolton as the defendant have recover at  law the plaintiff be forthwith to deliver the possession thereof to they and  account for the rend and profit by he receive but the plaintiff apprehend that  the defendant have upon the trial at law take a verdict for more land than be  comprise in the fine and recovery and the deed of September apply to the court  of chancery to be relieve in this respect and on the that of January a order  be make that he shall be at liberty to bring a ejectment for the recovery of  such land as be not comprise in the fine and recovery which the defendant have  take possession of under colour of the brown verdict unless the defendant have  notice of that order shall on the saint day of February then next show cause  to the contrary and the defendant have on that day show cause against the say  order the court by another order then make think fit to allow the cause show  and to discharge the former order from this order of the saint of February and  also from the two former decree of the that of July and the that of November  the plaintiff appeal and on his behalf it be argue n Lechmere that Thomas  Eyton the grandfather who be tenant for life of the land comprise in Benjamin  fine and recovery be live at the time when such fine and recovery be levy and  suffer and yet do not join therein nor be there any proof at any of the hear  in the court of chancery or upon the trial at law of any deed to make a tenant  to the praecipe without which the fine and recovery can not operate or any  thing pass thereby and without such proof the court of chancery ought not to  have decree the land from the appellant to the respondent that there be more  land in Knolton than what be comprise in Benjamin fine and recovery and yet  the respondent under colour of the verdict have take possession of all those  land and though by a order of assize which be afterward make a rule of court  brown er p the respondent be order to take possession of no more land than  what we be comprise in the deed of the that of September under which they make  their title yet by the say order of the saint of February the appellant be  debar from take his legal remedy for recover these surplus land that if the  entail create by Thomas be bar by the say fine and recovery they the condition  expectant on that estatetail be thereby defeat and the pound secure by that  condition for the benefit of the daughter ought not to remain a charge upon  such of the land as be not comprise in the fine and recovery or at least such  land of which the entail be not bar ought only to beaux a equal proportion of  this charge and that the appellant ought not to be charge with interest of the  pound or with cost in respect thereof because he have duly tender the same  accord to the condition of the settlement on the other side it be contend W  Banastre that court of equity never assist to avoid a common recovery on  pretence of their not have be a good tenant to the praecipe and especial when  it be suffer by a heir at law to bar a voluntary settlement and where the  pretence be not set up until near fourscore year afterward but however there  be all reasonable ground to presume that Thomas actual release or surrender  his estate for life to Benjamin for it be prove that Benjamin be for many year  before and till the death of his fanther in possession of all the Knolton  estate and that Thomas agree to quit and release to he for a valuable  consideration of above pound which it be also prove that Benjamin have pay for  the debt of Thomas beside the law do not at that time require that such a  surrender brown shall be by deed or even in write that as to the objection  that the fine and recovery comprise only two message and many acre in Knolton  and yet the respondent have take possession of four more little tenement and  other land there it be answer that the deed of use and not the fine and  recovery be the measure which the jury go by and though it be true that this  deed name but two message in particular and several close land and enclosure  by name yet it have the general word of all other the message land tenement  and hereditament of the say Benjamin and which then be in the possession of he  or his assign in Knolton and whether those other little tenement now claim be  then stand or erect afterward ought not at the distance of sixty year to be  inquire into especial as there be general proof in the cause that Benjamin  have possession of all in Knolton in his father lifetime and as to the  appellant insist on a proportionable abatement out of the pound because he can  not have the land in Knolton it be urge without any foundation for he think  the residue of the land so well worth redeem on payment of the whole pound  that he bring his bill for that very purpose and thereby state and also prove  by witness that he have make a tender of this money accord to the term of the  proviso in the settlement the appellant have it evident in his choice whether  he will sue for his redemption or not for the respondent do not ask for nor  can compel he to pay the pound and will have be content with the remain land  in lieu of it and this suit be to preserve and be restore to his estatetail on  perform the condition annex to it videlicet pay the pound he be accord by the  decree restore to so much of the estate tail as be not legal bar No equity  arise to the appellant for a apportionment on account of Benjamin have bar his  title to the Knolton land because the title of Benjamin be paramount that of  the appellant who title be in its original creation subject to be bar by  Benjamin he do no more in bar it than what the settlement and the law give he  a power to do consequent no wrong be do to the appellant nor be the pound  Payable to Benjamin the pretend wrongdoer but to the respondent who be his  heir at law and from who these remain land be take by the decree and as to  interest and cost it be the constant justice of the court of chancery in all  case of redemption to allow both accord after hear counsel on this appeal it  be order and adjudge that the same shall be dismiss and the several order and  decree therein complain of affirm jour vol p brown er p