the common vouchee,) it is plain that Edwards has only a nominal recompense for the land so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchasor. The recovery, here described, is with a single voucher only; but sometimes it is with double, treble, or further voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the præcipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee.(b) For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised; whereas if the recovery be had against another pergon, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. (c) If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default: whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded." (*) See Appendix, page xviii. () Bro. Abr. tit. Taile, 82. Plowd. 8. 17 Mr. Ritso has the following note upon the distinction between single and double voucher: "In the case of a recovery with single voucher, supposing the præcipe upon which the recovery is grounded to be brought immediately against the tenant in tail himself, who appears and vouches over the common vouchee to warranty, it is then the estate-tail of which he is actually seised at the time which is defeated; and, consequently, remainders and reversions, together with all latent droits and interests, are not barred. Secondly, if the tenant in tail levies a fine-as he usually does-preparatory to the recovery, now, the estate-tail being thus divested by the operation of the fine, the recovery which is had thereon is no longer of the old fee-tail, but of the new fee-simple which has been extracted out of it. In this case, however, as well as in the former, a sufficient recovery cannot be had with single voucher, but only with double voucher at least, though not exactly for the same reason; for in the former case, in which the recoveree or tenant to the præcipe was actually seised at the time of an estate-tail, the recovery was necessarily of that estate and nothing more; but in the latter case, in which the estate-tail was previously divested or discontinued by the fine and turned to a droit, the recoveree or tenant to the præcipe had a fee-simple, the recovery of which is good against him by way of estoppel, (Co. Litt. 352, a.,) but upon his death may be avoided by the issue by defeating the discontinuance under which it was created. As, for example, when the tenant in tail levies a fine, it operates in the first instance as a discontinuance. Suppose, then, the estate created under the discontinuance to be immediately reconveyed to the tenant in tail himself, who thereupon suffers a recovery. Now, it is clear that this recovery is not of the estate-tail, but of the estate created under the discontinuance. By the same rule, then, if the heir in tail defeats the discontinuance, (which he may well do by action, though not by entry,) the discontinuance being defeated, the tortious feesimple which the discontinuance gave rise to is necessarily determined, and consequently the recovery avoided. Co. Litt. 389, a. But when the tenant in tail is brought in as vouchee to the warranty, as in the case of a recovery with double voucher, the heir is then barred by warranty, and so are all they in remainder or reversion. For the law always supposes, upon a principle of equity, that the first vouchee recovers other lands of equal value against the second vouchee, which descend in the same course of inhereance as the estate passed by the recovery would have descended. Upon this presumption of law, which is uniformly admitted in order to give effect to common recoveries, the warranty of the ancestor not only binds the heir and bars every latent right and interest he may have in the lands recovered, but also defeats, at the same time, the remainders over. But where the ancestor has entered into no such warranty (with double voucher) there is evidently no bar to the heir so as to preclude him from his latent droit in tail, which is above the recovery. And so, in all cases where there are several and distinct VOL. I.-43 673 *360] *This supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For if the recoverce should obtain a recompense in lands from the common vouchee, (which there is a possibility 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 collusion, and would descend to the issue in tail. (d) This reason will also hold with equal force, as to most remaindermen and reversioners; to whom the possibility 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 Pigot says,(e) the judges have been even astuti in inventing other reasons to maintain the authority of recoveries. And, in particular, it hath been said, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist, (by construction of law,) in the recoveror, his heirs and assigns: and, as the estate-tail so continues to subsist forever, the remainders or reversions expectant on the determination of such an estate-tail can never take place.18 To such awkward shifts, such subtle refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design for which these contrivances were set on foot was certainly laudable; the unriveting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering 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, since the ill conse*361] quences 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 the process of this conveyance was shortened, and rendered less subject 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 vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or lastly, by empowering the tenant in tail to bar the estatetail by a solemn deed, to be made in term-time, and enrolled in some court of record: which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, and the decisions of our own courts of justice, which allow a tenant in tail (without fine or recovery) to appoint his estate to any charitable use,(f) but also by the precedent of the statute(g) 21 Jac. I. c. 19, which, in case of the bankrupt tenant in tail, empowers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers concerned in passing recoveries are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrolment. (d) Dr. and St. b. 1, Dial. 26. (•) Of Com. Recov. 13, 14. See page 376. estates passed by the recovery, it is necessary that the parties should be all severally vouched to warranty in order to insure a good title." Ritso, Introd. 207.-SHARSWOOD. 18 Fines and recoveries are now considered as mere forms of conveyances or common assurances, the theory and original principles of them being little regarded. Chief-justice Willes has declared that "Mr. Pigot has confounded himself, and everybody else who reads his book, by endeavouring to give reasons for, and explain, common recoveries. I only say this," he adds, to show that when men attempt to give reasons for common recoveries they run into absurdities, and the whole of what they say is unintelligible jargon and learned nonsense. They have been in use some hundreds of years, have gained ground by time, and we must now take them, as they really are, commɔn assurances 1 Wils. 73.-CHRISTIAN. " 2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But by statute 34 & 35 Hen. VIII. c. 20, no recovery had against tenant in tail, of the king's gift, whereof the remainder or reversion is in the king, shall bar such estate-tail, or the remainder or reversion of the crown. And by the statute 11 Hen. VII. c. 20, no *woman, after her husband's death, shall suffer a recovery of [*362 lands settled on her by her husband, or settled on her husband and her by any of his ancestors." And by statute 14 Eliz. c. 8, no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery; either he, or the tenant to the præcipe by him made, must vouch the remainderman in tail, otherwise the recovery is void; but if he does vouch such remainderman, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had against the tenant to the præcipe, it is as effectual to bar the estate-tail as if he himself were the recoveree.(h) 20 In all recoveries it is necessary that the recoveree, or tenant to the præcipe, as he is usually called, be actually seised of the freehold, else the recovery is void. (i) For all actions, to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold cannot be recovered of him who has it not. And though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulæ, properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the præcipe, is removed by the provisions of the statute 14 Geo. II. c. 20, which cnacts, with a retrospect and conformity to the antient rule of law,(j) that, though the legal freehold be vested in lessees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to the præcipe;-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 præcipe and declare the uses of the recovery shall, after a possession of twenty years, be sufficient evidence, on behalf of a purchaser for [*363 valuable consideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurance by matter of record. Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them.(k) And (*) Salk. 571. (5) Pigot, 41, &c. 4 Burr. i. 115. "But the act does not prevent her levying a fine jointly with her husband, or after his death with the consent of the remainderman, such consent appearing on record or by deed enrolled. Cro. Jac. 474. Cruise on Recov. 160.-CHITTY. If a tenant in tail, to whom the estate has descended ex parte materna, suffer a recovery, and declare the uses to himself in fee, the estate will descend to an heir on the part of the mother, even if he had the reversion in fee from his father, and vice versa; but if he took the estate-tail by purchase, the new fee will descend to the heirs general. 5 T. R. 104. If, then, a person who has inherited an estate-tail from his mother wish to cut off the entail and to make the estate descendible to his heirs on the part of tho father, after the recovery he ought to make a common conveyance to trustees, and to have the estate reconveyed back by them, by which means he will take the estate by purchase, which will then descend to his heirs general.-CHRISTIAN. if a consideration appears, yet as the most usual fine, "sur cognizance de droit come ceo, &c." conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements, (wherein a variety of uses and designations is very often expedient,) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. 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 settlement. 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 reversion to himself in fee, would settle his estate on B. for life, remainder to C. in tail, remainde to D. in fee; that is what by law he has no power of doing effectually while his own estatetail is in being. He therefore usually, after making the settlement proposed, covenants to levy a fine (or, if there be any intermediate remainders, to suffer a recovery) to E., and directs 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, shall enure to the uses so specified, and no other. For though E., the cognizee or recoveror, hath a feesimple vested in himself by the fine or recovery; yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the *364] use of B., C., and D. in successive order: which use is executed immediately, by force of the statute of uses.(1) 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 suffered in consequence of a deed directing its operation to those particular uses. For by statute 4 & 5 Anne, c. 16, indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds 29 Car. II. c. 3 to the contrary." () This doctrine may perhaps be more clearly illustrated 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, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, -viz., to Abraham and Cecilia Barker till the marriage of John Barker with Katherine Edwards, and then to John Barker for life: remainder to trustees to preserve the contingent remainders; remainder to his wife Katherine for life, for her jointure; remainder to other trustees, for a term of five hundred years; remainder to the first and other sons of the marriage in tail; remainder to the 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 suffered of the premises; and it is thought proper (for, though usual, it is by no means necessary: see Forrester, 167) that, in order to make a good tenant of the freehold or tenant to the præcipe during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker, and that the recovery itself be suffered against this tenant to the præcipe, who shall vouch John Barker, and thereby bar his estate-tail and become tenant to the fee-simple by virtue of such recovery; the uses of which estate so acquired are to be those expressed in this deed. Accordingly, the parties covenant to do these several acts, (see page viii.;) and in consequence thereof the fine and recovery are had and cuffered (N° IV. and N° V.) of which this conveyance is a deed to lead the uses. 21 Fines and recoveries continued, however, to flourish in unabated exuberance till the reign of William IV., when a strong impulse in favour of law-reform was communicated to the legislature. Among the many acts passed at the commencement of that reign having this object in view, none has been found more successful in operation, or has obtained greater credit as a triumph of legislative skill, than the Fines and Recoveries Act, (3 & 4 W. IV. c. 74,) of which I shall now proceed to give an account. The first enactment is that after the 31st of December, 1833, no fine shall be levied or recovery suffered except when the preliminary proceedings necessary for these purposes had been before that day actually commenced. The statute next provides for the fulfilment of covenants entered into previous to the day specified for the levying of fines and suffering recoveries, and by a legislative fiat heals all errors and defects in those already completed, thus drying up at once a prolific source of doubts and difficulties which for merly encumbered the titles of estates. It also declares that all warranties of lands made by tenants in tail after December 31st, 1833, shall be absolutely void against the sue in tail and those in remainder. The ground being thus, as it were, cleared, a general enabling clause follows, enacting CHAPTER XXII. OF ALIENATION BY SPECIAL CUSTOM. We are next to consider assurances by special custom, obtaining only in par ticular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates as are holden in antient demesne, or in manors of a similar that after the 31st December, 1833, (the day named for the cessation of fines and recoveries,) every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of the lands entailed either for a fee-simple absolute, or any less estate, as against all persons claiming either under the entail or in remainder or reversion, including the crown, saving the rights of all persons having estates prior to the estate-tail so disposed of, and all others except those against whom the disposition is by the act authorized to be made. A similar power of disposition, as against remaindermen or reversioners, is given to the tenant in tail, whose estate has been converted into a base fee, so as to enlarge such base fee into a fee-simple absolute. Thus is the tenant in tail, whether actual or one whose estate has been converted into a base fee, placed in most respects on a par with the tenant in fee-simple, as far as disposing power is concerned. But his power, as we shall now see, is attended with cer tain limitations. For where there is in existence 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, and created by the same settlement as created the entail, the consent of the owner of such prior estate, or the first of such owners, if more than one, is made necessary to enable the tenant in tail (unless he be entitled to the immediate reversion expectant upon his own estate-tail) to make a complete disposition of the fee. Without such consent he can but bar his own estate-tail, converting it into a base fee, and cannot bar those in remainder. The person whose consent is thus made requisite is called by the act the protector of the settlement; and he is endowed with the most absolute discretion as to giving or refusing his consent. He is not bound by any agreement which he may have entered into to withhold his consent, nor is his office to be treated as a trust; so that no court of equity can control or interfere with him, whether to restrain or compel his consent. Under the old system of recoveries, a check similar to that which is now secured by the office of protector arose from the necessity of obtaining the concurrence of the person entitled to the immediate freehold prior to the estate-tail, in order to make a tenant to the præcipe or writ of entry: this was found to operate in restraint of imprudent alienation, and to favour the retention of estates in one family through a succession of generations. The new plan has this advantage over the old. The owner of the prior estate is now only a consenting, not a conveying, party: he may therefore concur in barring the estate without affecting the powers or interests incident to his own estate, and without letting in the encumbrances of the remainderman, which in some cases was a consequence of the old system. Having imparted a general disposing power, under such conditions as we have seen, to the tenant in tail, the statute next enacts that the disposition shall be effected by some one of the assurances (not being a will) by which the same disposition might have been made if the tenant in tail had been tenant in fee-simple. But such disposition (except the land be of copyhold tenure) must be made or evidenced by deed; and no disposition resting merely in contract, notwithstanding it be evidenced by deed, shall be good under the act, either at law or in equity. In this respect, therefore, as under the old law, the heir in tail and remainderman are more favoured than the heir-at-law of tenant in fee-simple, whom the ancestor's contract binds, and whom he may bar by his will. No assurance will have any operation under the act (except a lease at rack-rent for less than twenty-one years) unless enrolled in chancery within six calendar months after its execution. The consent of the protector may be given by the same deed, or by a separate deed, provided it be executed on or before the day when the disentailing deed is executed; and the separate consenting deed must be likewise enrolled at or before the time when the other deed is enrolled. A tenant in tail of lands held by copy of courtroll, if his estate be a legal one, and not merely an estate in equity, must dispose of his lands by surrender in the usual way. If, however, his estate be but an equitable one, he may dispose of it either by surrender or by deed; and, if by deed, such deed must be entered on the court-rolls, as must also the deed by which the protector (if there be one) consents to the disposition. But if the disposition be made by surrender, the pro |