1854. GOOLD v. WHITE. Judgment. of September, 1852, was, that Jane Powell was described as tenant in tail, and that there was nothing to shew how the estate tail had ever been barred, and that, therefore, the title was defective. Now, not only in the case of Radford v. Wilson (a), but in Moore v. Moore (b), Lord Hardwicke expressed an opinion that it is to be assumed that copyholds are barred by surrender until the contrary is shewn, and, therefore, this was in truth no objection at all; and then, according to the 7th condition of sale, which stipulates that unless some valid objection to the title should be pointed out within fourteen days after the delivery of the abstract, the title should be considered as accepted, no further objection could be raised. However, this question was not argued at the hearing, but a reference as to title was directed; and if the title might then have been considered to have been accepted, that has now been waived; and I am obliged to consider the other objection that has been raised, namely, that it had not been proved that it was according to the custom of this manor to create estates tail. The rule is laid down in Moore v. Moore (b), where the limitation was to a man and the heirs of his body, and a claim to the property was set up by a person who assumed to be the heir in tail, and declared that the estate tail had never been barred, because it had only been dealt with by surrenders. Lord Hardwicke said, that he was not satisfied that there was any estate tail created, for it must be proved that a limitation of that kind was by the custom an estate tail, otherwise such words only create a conditional fee, and there might be a question whether such an interest was barred by a surrender. And then he speaks of other cases, and says, "This came in question in C. B., Pas. 1750, in Carr v. Singer (c), where three Judges, against Willes, C. J., held that a surrender to the use of a will was sufficient to bar (a) 3 Atk. 815. (b) 2 Ves, sen. 596. (c) 2 Ves. sen. 603. the estate tail. They first held, that a common surrender would bar the entail of copyhold, for there was no custom of barring by recovery; and next, that a surrender to use of a will would. There Isaac Singer died in 1746, without issue, seised of the copyhold premises as tenant in tail general, by virtue of an entail created by his father to himself and the heirs of his body, upon his wife. The son had six sisters, one of which was lessor of the Plaintiff. There was a custom admitted for entailing lands. In 1746 the son was admitted to hold to him and his heirs in tail, so that he was admitted in tail secundum formam doni." He seems, therefore, to say that the very admittance in tail shews that it was secundum formam doni, as distinguished from a conditional fee. Here it is stated, in the admittance of 1801, that Jane the wife of William Powell "had then lately been admitted there tenant in tail according to the custom of that manor." In the 7th condition of sale there is a proviso, that "all statements and recitals in any of the title deeds or muniments of title shall be considered satisfactory evidence of the facts stated or recited." Therefore, the parties were bound by this statement that Jane Powell was admitted tenant in tail. There may be some doubt, whether they were bound by the statement that such admission was according to the custom, because that is not a single fact, but rather a deduction from a series of facts; but it must be taken to be proved, that this was an admission as tenant in tail, and not to a conditional fee. Then the question is, whether this single admission, recited in a deed fifty-three years ago, and since acted upon, not only by the surrender of 1801, which, being conditional, might not raise the question completely, but by another surrender in 1815, thirty-five years before the present sale, is sufficient evidence of the custom to create estates tail. Here there was a person admitted as tenant 1854. GOOLD v. WHITE. Judgment. 1854. GOOLD v. WHITE. Judgment. in tail, who afterwards surrendered, and the possession has been apparently without dispute for thirty-five years consistent with that title; and those two things are, I think, sufficient evidence of the custom, especially as in the case of Roe v. Jeffery (a) one act was held sufficient to establish a custom; and therefore it appears to me that a good title has been made under these conditions of sale. Decree specific performance, with costs up to the hearing only, since the Plaintiff insisted on the reference as to title. (a) 2 M. & Selw. 92. July 24th, 25th, & 26th. Voluntary Set gaye-Exoner ation. The owner in fee simple of certain heredi taments settled them by a vo luntary deed to BY JENKINSON v. HARCOURT. Y indentures of lease and release, bearing date respectlement-Mort- tively the 30th and 31st days of May, 1809, the second Earl of Liverpool settled and assured certain manors and hereditaments to such uses, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers or provisoes, agreements, and declarations, as he should, by any deed or deeds, instrument or instruments in writing, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence of and attested by two or more credible witnesses, or by his last will and testament in writing, or any codicil or codicils thereto, to be by him signed and published in the presence of and attested by three or more credible witnesses, direct, limit, or appoint; and in default such uses as he should appoint, and, subject thereto, to him self for life, with remainders over. Subsequently, he exercised his power of appointment by a deed mortgaging the estate for 15,000l., and he cove nanted in that deed for payment of the mortgage debt and interest. He then died, having made his will, reciting the settlement so as to shew the power of appointment, and exercising it by making some further charges upon the estate; and subject thereto, expressly confirming the settlement, and subjecting his residuary personal estate to the payment of his debts:-Held, that the settled estate as between the persons entitled thereto, and the personal representatives of the settlor, was the pri mary fund for payment of the mortgage. of and until such direction, limitation, or appointment, and so far as no such direction, limitation, or appointment should extend, to the use of himself the said second Earl of Liverpool and his assigns during his life, without impeachment of waste; with remainder to trustees, upon trust to preserve contingent remainders; with remainder to the use, intent, and purpose, that the Right Hon. Louisa Theodosia Countess of Liverpool, the wife of the said Robert Bankes, second Earl of Liverpool, (since deceased), and her assigns, in case she should survive him, (which event did not happen), should, from and out of the said hereditaments, have, receive, and take for her life an annual sum or yearly rent charge of 1700l., with the usual powers of distress and entry for recovering payment of the said annual sum of 1700l. when in arrear; and subject thereto, to the use of Folliott Herbert Walker, Cornwall Lord Bishop of Worcester, and George Peter Holford, their executors, administrators, and assigns, for the term of 100 years, to be computed from the date of the indenture of release now being stated, without impeachment of waste, upon the trusts therein mentioned, for further securing the payment of the said annual sum or yearly rent charge of 17007.; with remainder to the use of the first and other sons of the said Robert Bankes, second Earl of Liverpool, successively, according to seniority, in tail male, with divers remainders over. This settlement was voluntary and not made for any valuable consideration. By an indenture bearing date the 26th of July, 1809, and made between the said Robert Bankes, second Earl of Liverpool, of the first part; the said Folliott Herbert Walker Cornwall, Lord Bishop of Worcester, and Thomas Leake, of the second part; and Charles Arnold, Esq., of the third part: After reciting the said indenture of release of the VOL. I. BBB E. K. W. 1854. JENKINSON v. HARCOURT. Statement. 1854. JENKINSON v. HARCOURT. Statement. 31st of May, 1809, so far as to shew the power of appointment thereby limited to the said Robert Bankes, second Earl of Liverpool, and the limitation to him for life, with remainders over; in consideration of the sum of 15,000l. by the said Folliott Herbert Walker Cornwall, Lord Bishop of Worcester, and Thomas Leake, paid to the said Robert Bankes, second Earl of Liverpool, the said Robert Bankes, second Earl of Liverpool, in exercise and execution of the said power or authority to him given or limited by the said indenture of release, appointed and demised the said manors and hereditaments unto the said Charles Arnold, his executors, administrators, and assigns, for the term of 1000 years, in trust for the said Folliott Herbert Walker Cornwall, Lord Bishop of Worcester, and Thomas Leake, their executors, administrators, and assigns, subject to a proviso or condition, covenant, and agreement therein contained for cesser of the said term, if the said Robert Bankes, second Earl of Liverpool, his heirs, executors, administrators, or assigns, or the person or persons who, for the time being, should be seised of or entitled to the said manors or lordships and other hereditaments thereinbefore appointed and demised, in remainder or reversion expectant on the said term of 1000 years, should pay or cause to be paid to the said Folliott Herbert Walker Cornwall, Lord Bishop of Worcester, and Thomas Leake, their executors, administrators, or assigns, the sum of 15,000l., and interest for the same at the rate of 5l. per cent., at the times therein specified. And the said Robert Bankes Earl of Liverpool thereby, for himself, his heirs, executors, and administrators, covenanted with the said Folliott Herbert Walker Cornwall, Lord Bishop of Worcester, and Thomas Leake, their executors, administrators, and assigns, that he the said Robert Bankes, Earl of Liverpool, his heirs, executors, or administrators, should and would well and truly pay or cause to be paid unto the said Folliott Herbert Walker Cornwall, Lord Bishop of Worcester, and Thomas Leake, their executors, administrators, or as |