BOOK II der or reverfion. For which reafon, if there be terrant for life, with remainder in tail, and other remainders over, and the tenant for life is defirous to suffer a valid recovery; either he, or the tenant to the praecipe by him made, muft vouch the remainder-man in tail, otherwife the recovery is void: but if he does youch 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 against the tenant to the praecipe, it is as effectual to bar the estate-tail as if he himself were the recovereef (5).

In all recoveries it is neceffary that the recoveree, or tenant to the praccipe, as he is ufually called, be actually seised of the freehold, elfe the recovery is void s. For all actions, to recover the feifin of lands, must be brought against the actual tenant of the freehold, elfe the fuit will lofe it's effect; fince the freehold cannot be recovered of him who has it not. And, though thefe 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 provisions of the statute 14 Geo. H. c. 20. which enacts, with a retrospect and g Pigot. 28.

f Salk. 571.

(5) If a tenant in tail, to whom the eftate has defcended ex parte materna, fuffers a recovery, and declares the ufes to himself in fee, the estate will defcend to an heir on the part of the mother, even if he had the reverfion in fee from his father, aud vice verja; but if he took the eftate-tail by purchase, the new fee will defcend to the heirs general. 5 T. R. 104. If then a perfon, who has inherited an eftate-tail from his mother, wishes to cut off the intail and to make the estate defcendible to his heirs on the part of the father, after the recovery he ought to make a common conveyance to trustees, and to have the eflate reconveyed back by them, by which means he will take the eflate by purchase, which will then defcend to his heirs general.

conformity

conformity to the antient rule of law, that, though the legal freehold be vefted in leffees, yet thofe who are entitled to the next freehold eftate in remainder orreversion may make a good tenant to the praecipe:-that, though the deed or fine which creates fuch tenant be subsequent to the judgment of recovery, yet, if it be in the fame 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, fhall after a poffeffion of twenty years be fufficient evidence, on behalf of a purchasor for valuable confideration, [ 363 ] that fuch recovery was duly fuffered. And this may fuffice to give the student a general idea of common recoveries, the laft fpecies of affurances by matter of record.

BEFORE I Conclude this head, I must add a word concerning deeds to lead, or to declare, the ufes of fines, and of recoveries. For if they be levied or fuffered without any good confideration, and without any uses declared, they, like other conveyances, enure only to the ufe of him who levies or fuffers them. And if a confideration appears, yet as the most ufual fine, "fur cognizance de droit come clo, &c." conveys an abfolute eftate, without any limitations, to the cognizee; and as common recoveries do the fame to the recoveror, these affurances could not be made to answer the purpose of family fettlements, (wherein a variety of ufes and defignations 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 ufes; if fubfequent, deeds to declare them. As, if A tenant in tail, with reverfion to himself in fee, would fettle his eftate

h Pigott. 41, &c. 4 Burr. 1. 115. VOL. II. Ee

i Dyer. 18.

on

BOOK II. 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, after making the fettlement propofed, covenants to levy a fine (or if there be any intermediate remainders, to suffer a recovery) to E, and directs that the fame fhall enure to the uses in such fettlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery whenfuffered, shall enure to the uses so specified and no other. For though E, the cognizee or recoveror, hath a fee-fimple vefted in himself by the fine or recovery; yet, by the operation of this deed, he becomes a mere inftrument or conduit[364] pipe, feised only to the use of B, C, and D, in fucceffive order : which ufe is executed immediately, by force of the statute of ufes k. Or, if a fine or recovery be had without any previous fettlement, and a deed be afterwardsmade between the parties, declaring the ufes to which the fame fhall be applied, this will be equally good, as if it had been exprefsly levied or fuffered

* This doctrine may perhaps be more clearly illuftrated by example. In the deed or marriage fettlement in the appendix, N°. 1. § 2. we may fuppofe the lands to have been originally fettled 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 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 traitees, for a term of five hundred years; remainder to the first and other fons 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

neceffary, in order to bar the eftate 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 byno means necessary : see 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 shall vouch John Barker, and thereby bar his estatetail, and become tenant to the fee-fimple by virtue of fuch recovery: the uses of which eftate, fo acquired, are to be those expreffed in this deed. Accordingly the parties covenant to do these feveral acts: (see pag. viii.) and in confequence thereof the fine and recovery are had and fuffered (N°. IV. and N°. V.) of which this conveyance is a deed to lead the ufes.

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 ufes 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 fhall enure to fuch uses, and be esteemed to be only in truft, notwithstanding any doubts that had arifen on the ftatute of frauds 29 Car. II. c. 3. to the contrary.

E e 2

CHAPTER THE TWENTY-SECOND.

BY

SPECIAL

OF ALIENATION

CUSTOM.

WE

E are next to confider affurances by special cuftom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and fuch customary eftates, as are holden in antient demesne, or in manors of a fimilar 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 feigniory, it is therefore a forfeiture of a copyhold. Nor are they 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 furrender; though in fome manors, by special custom, recoveries may be fuffered of copyholds: but these differing in nothing material from recoveries of free land, fave only that they are not suffered in the king's courts, but in the court baron of the manor, I fhall confine myself to conveyances by furrender, and their confequences.

SURRENDER, furfumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for fuch purposes as in the furrender are expreffed. As, it may be, to the ufe and behoof of A and his heirs; to the use of his own will; and the like. The procefs, in most manors, is, that the

a Litt. § 74.

b Moor. 637.

tenant