Fines and recoveries abolished by 4, c. 74. Benefits of fines and of recoveries V Having thus given a pretty full account of these fictitious assurances called fines and recoveries, which were in the 3 & 4 W. constant use down to the end of the year 1833, when they were abolished by the 3 & 4 W. 4, c. 74, s. 2, we now propose to give the chief particulars relating to the assurance which is substituted by that statute in their place. But I shall first mention the guard which the legislature in removing these restrictions, has thrown round the alienation of property; for it is to be remembered, that although most of the rules relating to fines and recoveries were purely technical, and in this liable to objection, yet that great practical benefits resulted from them. They gave parents the means of checking the improvidence of the recent act. their children in their dealings with their property, and facilitated advantageous family arrangements. In altering the law, therefore, it was proper to preserve its benefits, and for this purpose, although the concurrence of the person having the immediate estate of freehold is dispensed with as seised of that estate, yet instead of such concurrence, where a benefical estate either for life or years determinable on lives, or of any greater estate, not being a lease on which rent shall be reserved, shall be limited prior to the estate tail intended to be barred, any disposition by the tenant in tail shall be made with the concurrence of the person to whom such prior estate shall have Protector of been limited. This person is called the protector of the settlement, and we shall proceed to specify who is to be considered as such. the settle ment. Who shall be such. W Whenever there shall be a tenant in tail, and there shall be subsisting in the same lands, under the same settlement, any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate tail, then such owner of the prior estate, or the first of such estates if more than one, shall be the protector of the settlement (3 & 4 W. 4, c. 74, s. 22); and where two or more persons shall be owners under a settlement of the prior estate, each of them shall be v "Except where parties intending to levy a fine or common recovery, shall on or before the 31st day of December, 1833, have sued out a writ of dedimus, or any other writ, in the regular proceedings of such fine or recovery," s. 2. w See First Real Prop. Rep. the sole protector as to his share (s. 23). Where a married woman would if single be the protector, in respect of a prior estate which is not settled to her separate use, she and her husband shall in respect of such estate be the protector, but if such prior estate shall have been settled to her separate use, then she alone shall be the protector (s. 24). But no tenant in dower, heir, executor, administrator, or bare trustee, shall be the protector (s. 27); and there are some other special cases of protectorship provided for by the act, which need not be here particularly mentioned. point protec Any person entailing lands may in the settlement ap- Power to appoint any number of persons in esse, not exceeding three, tor. not being aliens, the protector of the settlement in lieu of the person who would have been the protector, if a clause of this nature had not been inserted (s. 32). And when the protector shall be a lunatic, or person of unsound mind, the Lord Chancellor, or where a traitor or felon, the Court of Chancery, shall be the protector (s. 33). Protector, sary, on alie nant in tail. Where there is a protector of a settlement, his consent consent of is requiste to enable an actual tenant in tail to create a where neceslarger estate than a base fee (s. 34); and where an estate nation by te tail shall have been converted into a base fee, the consent of the protector shall be requisite to enable the owner thereof to acquire the fee under the act (s. 35); and the protector in exercising his power of consent is to be under no control whatever (s. 36). ance substi of fines and We have now to consider the assurance which is sub- The assurstituted by the late act for the fine or recovery. By s. 40, tuted in lieu it is enacted that every tenant in tail may effect a dispo- recoveries. sition under the act by any of the assurances (not being a will) by which such tenant in tail could have made the disposition if he had been a tenant in fee-simple. It may therefore be a feoffment, a bargain and sale, or lease and release, or if the estate tail be not in possession, a grant; but for the reasons already given, a lease and release is in general to be preferred in all cases to any other. But x As to a base fee, see ante, p. 49. y As to these assurances, see ante, pp. 211, 217, 229, 230, and Appen- 1 256 Consent of Protector, how it may be given. OF ALIENATION BY MATTER OF RECORD. [BOOK IV. every such assurance by a tenant in tail, except a lease not Here we may close our account of this important act, CHAPTER THE TENTH. OF ALIENATION BY SPECIAL CUSTOM. a a [365] by special custom; to what lands they are con fined. WE are next to consider assurances by special custom, Assurances obtaining only in particular places, and relative only to particular species of real property. This therefore is very narrow title; being confined to copyhold lands, and such customary estates as are holden in ancient demesne, or in manors of a similar nature: which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold." Nor are copyholds strictly transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries might have been suffered of copyholds : but these differed in nothing material from recoveries of free land, save only that they were not suffered in the king's courts, but in the court baron of the manor; and they are now altogether abolished by the statute 3 & 4 W. 4, c. 74, which we have already fully considered. But copyholds may now be recovered by ejectment in the king's courts.d Surrender, sursumredditio, is the yielding up of the es- Surrender. tate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his own will; and the like. The process, in most manors, is, that the tenant comes to the steward, either in court [366] or out of court, even without a special custom, or else a Litt. s. 74. b Moor. 637; and 1 Prest. Conv. 159, 156. See ante, p. 254, and post, p. 259. d See Litt. s. 76; and Widdowson v. Earl of Harrington, 1 J. & W. e Dudfield v. Andrews, 1 Salk. S to two customary tenants of the same manor, provided there be also a custom to warrant it; and there by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then, at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender in court, or upon presentment of a surrender made out of court, the lord, by his steward, grants the same land again to cestuy que use, (who is sometimes, though rather improperly, called the surrenderee) to hold by the ancient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according [367] to the custom of the manor, and takes the oath of fealty. This method of conveyance is so essential to the nature the convey of a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law; but we must surrender to each other's use, and the lord will admit us accordingly. If I would devise a copyhold, I must until lately have surrendered it to the use of my last will and testament; and in my will I must have declared my intentions, and have named a devisee, who would then be entitled to admis[368]sion. But now copyhold devises are good without surrender to the use of the will. A fine or recovery had of copyhold lands in the King's court might indeed, if not Surrender is essential to auce of a copyhold estate. |