void. (i)(45) 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, (46) 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 enacts, with a retrospect and conformity to the ancient 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 *363] the uses of the recovery shall, after a possession of twenty years,

be sufficient evidence, on behalf of a purchaser for 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) (47) And if a consideration appears, yet as the most usual fine, sur cognizance de droit come ceo, etc.,(48) 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, remainder to D. in fee; that is what by law he has no power of doing effectually while his own estate-tail 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 fee-simple vested in himself by the fine or recovery; yet, by the oper*364] ation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the use of B., C., and D. in successive order: which use

is executed immediately, by force of the statute of uses. (7) 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. (49)

(1) This doctrine may perhaps be more clearly illustrated by example. În 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 [Writ of entry] 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 conse quence thereof the fine and recovery are had and suffered (N° IV. and No V.) of which this convey

ance is a deed to lead the uses.

(49) Sharp v. Thompson, I Wh. (Pa.) 152 (1836). Fines and recoveries continued, however, to flourish in unabated exuberance till the reign of William IV., when a strong impulse in favor 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 formerly 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 issue in tail and those in remainder.

The ground being thus, as it were, cleared, a general enabling clause follows, enacting 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 certain 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

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

WE are next to consider assurances by special custom, 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 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

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 favor 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 favored 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 sepa rate deed, provided it be executed on or before the day when the disentailing deed is exe cuted; 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 court-roll, 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 protector may give his consent to the person taking the surrender. The statute further enables the commissioners of bankruptcy to dispose by deed of the lands of a bankrupt tenant in tail to as large an extent as the bankrupt himself might have done.

One of the purposes to which fines were formerly applied was to pass the estates and interests of married women, which could not, on account of the incapacity arising from coverture, have been otherwise effectually bound. The act, therefore, provides that it shall be lawful for every married woman (in every case except that of being tenant in tail, which is otherwise provided for by the act, as we have already seen) by deed to dispose of lands of any tenure, and money subject to be invested in the purchase of lands, and to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any such lands or money, and to release and extinguish any power which she may have over such lands or money, as effectually as though she were a feme sole [Unmarried woman]. But her husband must concur in the deed, which must also be produced and acknowledged by her before a judge of one of the superior courts of Westminster, or a county-court judge, (19 & 20 Vict. c. 108, s. 73,) or before one of the commissioners appointed by the lord chief-justice of the Common Pleas for the purpose of taking such acknowledgments. On this occasion she is examined, apart from her husband, as to her knowledge of the deed, and whether she voluntarily and freely consents to it,-a ceremony which, as we have previously seen, was used when a married woman was cognizor in a fine. If the disposition intended to be made be of lands of copyhold tenure to which the married woman is entitled for an estate at law, it must be done by way of surrender into the hands of the lord; an equitable estate in copyhold may be disposed of in the same way, or by deed. Whenever it is done by surrender, the married woman is to be separately examined, by the person taking the surrender, as to the voluntary nature of the act.

than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his seigniory, it is therefore a forfeiture of a copyhold. (a) Nor are they transferable by matter of record, even in the king's courts, but only in the court-baron of the lord. (1) The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds: (b) but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court-baron of the manor, I shall confine myself to conveyances by surrender, and their consequences.

Surrender, sursumredditio, is the yielding up of the estate 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 [*366 tenant comes to the steward, either in court, (or, if the custom permits, out of court,) or else 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, (2) (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. (3) And this is done by

Such are briefly the provisions of this important statute, by which estates-tail may now be absolutely alienated or barred and converted into estates in fee, and by which the interests of married women may be passed. That which was formerly effected by a series of tedious forms, with perpetual danger of errors or omissions which might vitiate the whole transaction, is now accomplished by a simple deed, the same in form as that by which any other owner might convey his interest, or, in cases of copyhold tenure, by surrender, the only additional requisites being that these acts be done with the consent of certain proper parties, who are clearly defined, that the deed be enrolled, and, in the case of a married woman, that it be acknowledged by her in the manner prescribed by

the act.-KERR.

(1) Littleton (sect. 76) was probably our author's authority for the doctrine stated in the text. Littleton says, Tenants by copy of court-roll shall neither implead nor be impleaded for their tenements by the king's writ; but if they will implead others for their tenements, they shall have a plaint entered in the lord's court." But, in Widdowson v. Earl of Harrington, I Jac. & Walk. 549, the master of the rolls observed, "With respect to the manner of proceeding for the recovery of copyholds, it is said by counsel that it can be only by plaint in the lord's court; but that is quite a mistake. There was a time when it was doubted whether you could proceed by the king's writ, whether you could bring an ejectment for a copyhold. But all that has given way, and the king's courts are now open to ejectments for copyholds, in the same way as for freeholds. What is said by Littleton (sect. 76) applies generally to all actions; but we know that at this day it is not true to that extent."-CHITTY.

(2) [Him who benefits by the use.]

(3) If a surrenderor dies before the admittance of the surrenderee, his heir would take by descent, as the surrenderor died seised of the premises, no legal title vesting in a surrenderee till admittance. 5 East, 132. I Smith, 363. And where a devise was made by an unadmitted devisee, it was held that such second devisee, though admitted, could not recover in ejectment, for his admittance had no relation to the last legal surrender, but the legal title remained in the heir of the surrenderor,-the first testator. 7 East, 8.CHITTY.

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 to the custom of the manor, and takes the oath of fealty. (4)

In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favors liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fiduciarium,(5) for which *367] *there was no remedy at law, but only by subpana, in chancery. (c) When therefore the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant's will, the chancery enforced this trust as a matter of conscience, which jurisdiction, though seemingly new in the time of Edward IV., (d) was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the license of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in the presence of the other tenants in open court; "quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis solemniter fieri debet:"(e)(6) and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen.

This method of conveyance is so essential to the nature 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 sur*368] render* it to the use of my last will and testament; (7) and in my will I must declare my intentions, and name a devisee, who will then be en(c) Cro. Jac. 568. (e) Feud. l. 2, t. 2. (d) Bro. Abr. tit. Tenant per copie, 10.

(4) Femes-covert [Married women] and infants may be admitted by their attorney or guardian; and, in default of their appearance, the lord may appoint a guardian or attorney for that purpose. If the fines are not paid, the lord may enter and receive the profits till he is satisfied, accounting yearly for the same upon demand of the person or persons entitled to the surplus, but no forfeiture shall be incurred by infants or femes-covert for not appearing, or refusing to pay fines. 9 Geo. I. c. 29.—CHITTY.

(5) [A right of trust.]

(6) ["When a spear, or other corporeal thing, is presented by the lord, saying that he hereby invested him, which should be solemnly done in the presence of at least two vassals."]

(7) To prevent the recurrence of the evils which frequently resulted from the devisors of copyhold lands omitting, either from negligence or ignorance, to surrender them to the uses of their wills, it was enacted by 55 Geo. III. c. 192, that where, by the custom of any