THIS fuppofed recompense in value is the reason why the iffue in tail is held to be barred by a common recovery. For, if the recoveree should obtain a recompenfe in lands from the common vouchee (which there is a poffibility in contemplation of law, though a very improbable one, of his doing) these lands would supply the place of those so recovered from him by collufion, and would defcend to the iffue in tail". This reafon will alfo hold with equal force, as to most remainder-men and reverfioners; to whom the poffibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to; but it will not always hold; and therefore, as Pigott fays, the judges have been even aftuti, in inventing other reasons to maintain the authority of recoveries. And, in particular, it hath been said, that, though the eftate-tail is gone from the recoveree, yet it is not deftroyed, but only transferred; and still subfifts, and will ever continue to subsist (by construction of law) in the recoveror, his heirs, and affigns: and, as the estate-tail so continues to fubfift for ever, the remainders or reverfions expectant on the determination of such estate-tail can never take place.

To fuch awkward fhifts, fuch fubtile refinements, and fuch ftrange reasoning, were our ancestors obliged to have recourse, in order to get the better of that ftubborn statute de donis. The defign, for which these contrivances were set on foot, was certainly laudable; the unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot but admire the means. Our modern courts of juftice have indeed adopted a more manly way of treating the subject; by confidering common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But, fince the ill confequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent; it hath often been wished, that d of com, recov. 13, 14.

Dr & St. b. 1. dial, 26.

the

the process of this conveyance was shortened, and rendered lefs fubject to niceties, by either totally repealing the statute de donis; which perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations: or by vefting in every tenant in tail of full age the fame abfolute fee-fimple at once, which now he may obtain whenever he pleafes, by the collufive fiction of a common recovery; though this might poffibly bear hard upon those in remainder or reverfion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which fometimes continue for near five months together: or, laftly, by empowering the tenant in tail to bar the eftate-tail by a folemn deed, to be made in term time and enrolled in fome court of record; which is liable to neither of the other objections, and is warranted not only by the ufage of our American colonies, but by the precedent of the ftatute 21 Jac. I. c. 19. which, in case of a bankrupt tenant in tail, empowers his commiflioners to fell the estate at any time, by deed indented and enrolled. And if, in fo national a concern, the emoluments of the officers, concerned in paffing recoveries, are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrollment.

2. THE force and effect of common recoveries may appear, from what has been faid, to be an abfolute bar not only of all eftates tail, but of remainders and reverfions expectant on the determination of fuch eftates. So that a tenant in tail may, by this method of affurance, convey the lands held in tail to the recoveror his heirs and affigns, abfolutely free and discharged of all conditions and limitations in tail, and of all remainders and reverfions. But, by ftatute 34 & 35 Hen. VIII. c. 20. no recovery had against tenant in tail, of the king's gift, whereof the remainder or reverfion is in the king, fhall bar fuch eftate-tail, or the remainder or reverfion of the crown. And by the statute 11 Hen. VII. c. 20. no woman, after her hushand's death, fhall suffer a recovery of lands fettled on her by her husband or fettled on her husband

Book II. and her by any of his ancestors. And by ftatute 14 Eliz. c. 8. no tenant for life, of any fort, can fuffer a recovery, so as to bind them in remainder or reverfion. For which reafon, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is defirous to fuffer a valid recovery; either he, or the tenant to the praecipe by him made, muft vouch the remainder-man in tail, otherwise the recovery is void: but if he does vouch fuch remainder-man, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and fuffers the recovery to be had, it is as effectual to bar the estate-tail as if he himself were the recovereef.

In all recoveries it is neceffary that the recoveree, or tenant to the praecipe, as he is ufually called, be actually seised of the freehold, elfe the recovery is void. For all actions, to recover the seifin of lands, must be brought against the actual tenant of the freehold, else the fuit will lose it's effect; fince the freehold cannot be recovered of him who has it not. And, though these recoveries are in themselves fabulous and fictitious, yet it is neceffary that there be actores fabulae, properly qualified. But the nicety thought by fome modern practitioners to be requifite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the provifions of the ftatute 14 Geo. II. c. 20. which enacts, with a retrospect and conformity to the antient rule of lawh, that, though the legal freehold be vested in leffees, yet those who are entitled to the next freehold estate in remainder or reverfion may make a good tenant to the praecipe: and that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery; yet, if it be in the same term, the recovery shall be valid in law and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a tenant to the praecipe, and declare the uses of the recovery, shall after a poffeffion of twenty years be sufficient evidence, on

f Salk. 571.

g Pigott, 28.

h Pigott. 41, &c. 4 Burr. I. 115. behalf

363 behalf of a purchafor for valuable confideration, that such recovery was duly fuffered. And this may fuffice to give the student a general idea of common recoveries, the last species of affurances by matter of record.

BEFORE I conclude this head, I muft add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or fuffered without any good confideration, and without any ufes declared, they, like other conveyances, enure only to the use of him who levies or fuffers them. And if a confideration appears, yet as the most usual fine, "fur cognizance de droit come ceo, &c." conveys an abfolute eftate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these affurances could not be made to answer the purpose of family fettlements, (wherein a variety of uses and designations is very often expedient) unless their force and effect were fubjected to the direction of other more complicated deeds, wherein particular ufes can be more particularly expreffed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vast and intricate machine of a voluminous family fettlement. And, if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A tenant in tail, with reverfion to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; this is what by law he has no power of doing effectually, while his own eftate-tail is in being. He therefore usually covenants to levy a fine (or, if there be any intermediate remainders, to suffer a recovery) to E, and that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, fhall enure to the uses so specified and no other. For though E, the cognizee or recoveror, hath a fee-fimple vested in himself by the fine or recovery; yet, by the operation of

i Dyer, 18.

this

BOOK II. this deed, he becomes a mere inftrument or conduit-pipe, feifed only to the ufe of B, C, and D, in fucceffive order: which use is executed immediately, by force of the ftatute of ufes k. Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or fuffered in confequence of a deed directing it's operation to those particular ufes. For by ftatute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and fuffered, fhall be good and effectual in law, and the fine and recovery shall enure to fuch uses, and be esteemed to be only in truft, notwithstanding the ftatute of frauds 29 Car. II. c. 3. enacts, that all trufts shall be declared in writing, at (and not after) the time when fuch trufts are created.

k This doctrine may perhaps be more clearly illuftrated by example. In the deed or marriage settlement in the appendix, No. II. §. 2. we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reverfion to Cecilia Barker in fee; and now intended to be fettled to the feveral uses therein expreffed, viz. to Abraham and Cecilia Barker till the marriage; remainder to John Barker for life; remainder to trustees to preferve the contingent remainders: remainder to his widow for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to their first and other fons in tail; remainder to their daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in fee. Now it is necessary, in order to bar the estate-tail of John

:

Barker, and the remainders expectant thereon, that a recovery be fuffered of the premises: and it is thought proper (for though usual, it is by no means neceffary fee Forrester. 167.) that in order to make a good tenant of the freehold, or tenant to the praecipe, during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker; and that the recovery itself be fuffered against this tenant to the praecipe, who fhall vouch John Barker, and thereby bar his eftate-tail, and become tenant of the fee-fimple by virtue of such recovery: the ufes of which eftate, so acquired, are to be thofe expreffed in this deed. Accordingly the parties covenant to do these feveral acts: (fee pag. viii,) and in confequence thereof the fine and recovery are had and suffered (No. IV. and No. V.) of which this conveyance is a deed to lead the ufes.