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CHAPTER THE TWENTY FIRST.

OF ALIENATION BY MATTER OF RECORD.

ASSURANCES by matter of record are fuch as do not entirely depend on the act or confent of the parties themfelves: but the fanction of a court of record is called in, to fubftantiate, preferve, and be a perpetual teftimony of, the transfer of property from one man to another; or of it's eftablifhment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries.

I. PRIVATE acts of parliament are, efpecially of the late years, become a very common mode of affurance. For it may fometimeshappen, that, by the ingenuity of from, and the blunders of other practitioners , an eftate is moft grievoufly entangled by a multitude of contingent remainders, refulting trufts, fpringing ufes , executory devifes, and the like artificial contrivances; (a confufion unknown to the fimple conveyances of the common law) fo that it is out of the power of either the courts of law or equity to relieve the owner. Or it may fometimes happen, that, by the ftrictnefs or omiffions of family fettlements, the tenant of the eftate is abridged of fome reafonable power, (as letting leafes, making a jointure for a wife, or the like) which power cannot be given him by the ordinary judges either in common law or equity. Or it may be neceffary, in fettling an eftate, to fecure it againft the claims of infants or other perfons
under
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The RIGHTS of THINGS.
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Ch. 21.
under legal difabilities; who are not bound by any judgments or decrees of the ordinary courts of juftice. In thefe, or other cafes of the like kind, the tranfcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpofe, to unfetter an eftate; to give it's tenant reafonable powers; or to affure it to a purchafor, againft the remote or latent claims of infants or difabled perfons, by fettling a proper equivalent in proportion to the intereft fo barred. This practice was carried to a great length in the year fucceeding the reftoration; by fetting afide many conveyances alleged to have been made by conftraint, or in order to fcreen the eftates from being forfeited during the ufurpation. And at laft it proceeded fo far, that, as the noble hiftorian expreffes it ^a, every man had raifed an equity in his own imagination, that he thought ought to prevail againft any defcent, teftament, or act of law, and to find relief in parliament: which occafioned the king at the clofe of the feffion to remark ^b, that the good old rules of law are the beft fecurity; and to wifh, that men might not have too much caufe to fear, that the fettlements which they make of their eftates fhall be too eafily unfettled when they are dead, by the power of parliament.

ACTS of this kind are however at prefent carried on, in both houfes, with great deliberation and caution; particularly in the houfe of lords they are ufually referred to two judges, to examine and report the facts alleged, and to fettle all technical forms. Nothing alfo is done without the confent, expreffly given, of all parties in being and capable of confent, that have the remoteft intereft in the matter; unlefs fuch confent fhall appear to be perverfely and without any reafon withheld. And, as was before hinted, an equivalent in money or other eftate is ufually fettled upon infants, or perfons not in effe, or not of capacity to act for themfelves, who are to be concluded by this act. And a general faving is conftantly added, at the clofe of the bill, of the right and intereft of all perfons whatfoever; except thofe whofe con-

.{FS}
^a Lord Clar. Contin. 162.
^b Ibid. 163.
.{FE}

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fent fo given or purchafed, and who are therein particularly named.

A LAW, thus made, thought it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the folemn act of the legiflature. It is not therefore allowed to be a public, but a mere private ftatute; it is not printed or publifhed among the other laws of the feffion; and no judge or jury is bound to take notice of it, unlefs the fame be fpecially fet forth and pleaded to them. It remains however enrolled among the public records of the nation, to be for ever preferved as a perpetual teftimony of the conveyance or affurance fo made or eftablifhed.

II. THE king's grants are alfo matter of public record. For, as St. Germyn fays, the king's excellency is fo high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular fubordination one with another, through which all the king's grants muft pafs, and be tranfcribed, and enrolled; that the fame may by narrowly infpected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. Thefe grants, whether of lands, honours, liberties, franchifes, or ought befides, are contained in charters, or letters patent, that is, open letters, literae patentes: fo called becaufe they are not fealed up, but expofed to open view, with the great feal pendant at the bottom; and are ufually directed or addreffed by the king to all his fubjects at large. And therein they differ from certain other letters of the king, fealed alfo with his great feal, but directed to particular perfons, and for particular purpofes: which therefore, not being proper for public infpection, are clofed up and fealed on the outfide, and are thereupon called writs clofe, literae claufae; and are recorded in the clofe-rolls, in the fame manner as the others are in the patent-rolls.

.{FS}
^c Dr. & Stud. l. 1. d. 8.
.{FE}
GRANTS
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The RIGHTS of THINGS.
BOOK II.
Ch. 21.
GRANTS or letters patent muft firft pafs by bill: which is prepared by the attorney and folicitor general, in confequence of a warrant from the crown; and is then figned, that is, that is, fuperfcribed at the top, with the king's own fign manual, and fealed with his privy fignet, which is always in the cuftody of the principal fecretary of ftate; and then fometimes it immediately paffes under the great feal, in which cafe the patent is fubfcribed in thefe words, “per ipfum regem, by the king himfelf ^d.” Otherwife the courfe is to carry an extract of the bill to the keeper of the privy feal, who makes out a writ or warrant thereupon to the chancery; fo that the fign manual is the warrant to the privy feal, and the privy feal is the warrant to the great feal: and in this laft cafe the patent is fubfcribed, “per breve de privato figillo, by writ of privy “feal ^e.” But there are fome grants, which only pafs through certain offices, as the admiralty or treafury, in confequence of a fign manual, without the confirmation of either the fignet, the great, or the privy feal.

THE manner of granting by the king, does not more differ from that by a fubject, than the conftruction of his grants, when made. 1. A grant made by the king, at the fuit of the grantee, fhall be taken moft beneficially for the king, and againft the party: whereas the grant of a fubject is conftrued moft ftrongly againft the grantor. Wherefore is is ufual to infert in the king's grants, that they are made, not at the fuit of the grantee, but “ex fpeciali gratia, certa fcientia, et mero motu regis;” and then they have a more liberal conftruction ^f. 2. A fubject's grant fhall be conftrued to include many things, befides what are expreffed, if neceffary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingrefs, egrefs, and regrefs, to cut and carry away thofe profits, are alfo inclufively granted ^g: and if a feoffment of land was made by a lord

.{FS}
^d 9 Rep. 18.
^o Ibid. 2 Inft. 555.
^f Finch. L. 100. 10 Rep. 112.
^g Co. Litt. 56.
.{FE}
U u 2
to
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The RIGHTS of THINGS.
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Ch. 21.
to his villein, this operated as a manumiffion ^h; for the was otherwife unable to hold it. But the king's grant fhall not enure to any other intent, than that which is precifely expreffed in the grant. As, if he grants land to an alien, it operates nothing; for fuch grant fhall not alfo enure to make him a denizen, that fo he may be capable of taking by grant ⁱ. 3. When it appears, from the face of the grant, that the king is miftaken, or deceived, either in matter of fact or matter of law, as in cafe of falfe fuggeftion, mifinformation, or mifrecital of former grants; or if his own title to the thing granted be different from what he fuppofes; or if the grant be informal; or if he grants an eftate contrary to the rules of law; in any of thefe cafes the grant is abfolutely void ^k. For inftance; if the king grants lands to one and his heirs male, this is merely void: for it fhall not be an eftate-tail, becaufe there want words of procreation, to afcertain the body, out of which the heirs fhall iffue: neither is it a fee-fimple, as in common grants it would be; becaufe it may reafonably be fuppofed, that the king meant to give no more than an eftate-tail ^l: the grantee is therefore (if any thing) nothing more than tenant at will ^m. And, to prevent deceits of the king, with regard to the value of the eftate granted, it is particularly provided by the ftatute 1 Hen. IV. c. 6. that no grant of his fhall be good, unlefs, in the grantee's petition for them, exprefs mention be made of the real value of the lands.

III. WE are next to confider a very ufual fpecies of affurance, which is alfo of record; viz. a fine of lands and tenements. In which it will be neceffary to explain, 1. The nature of a fine; 2. It's feveral kinds; and 3. It's force and effect.

1. A FINE is fometimes faid to be a feoffment of record ⁿ: though it might with more accuracy be called, an acknowlegement of a feoffment on record. By which is to be underftood,

.{FS}
^h Litt. §. 206.
^I Bro. Abr. tit. Patent. 62. Finch. L. 110.
^k Freem. 172.
^l Finch. 101, 102.
^m Bro. Abr. tit. Eftates. 34. tit. Patents. 104. Dyer. 270. Dav. 45.
ⁿ Co. Litt. 50.
.{FE}
that
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The RIGHTS of THINGS.
BOOK II.
Ch. 21.
that it has at leaft the fame force and effect with a feoffment, in the conveying and affuring of lands: though it is one of thofe methods of transferring eftates of freehold by the common law, in which livery of feifin is not neceffary to be actually given; the fuppofition and acknowlegement thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be defcribed to be an amicable compofition or agreement of a fuit, either actual or fictitious, by leave of the king or his juftices; whereby the lands in queftion become, or are acknowleged to be, the right of one of the parties ^o. In it's original it was founded on an actual fuit, commenced at law for recovery of the poffeffion of land; and the poffeffion thus gained by fuch compofition was found to be fo fure and effectual, that fictitious actions were, and continue to be, every day commenced, for the fake of obtaining fame fecurity.

A FINE is fo called becaufe it puts an end, not only to the fuit thus commenced, but alfo to all other fuits and controverfies concerning the fame matter. Or, as it is expreffed in an antient record of parliament ^p, 18 Edw. I. “non in regno Angliae providetur, vel eft, aliqua fecuritas major vel folennior, per quam aliquis “ftatum certiorem habere poffit, neque ad ftatum fuum verificandum “aliquod folennius teftimonium producere, quam finem in curia domini “regis levatum: qui quidem finis fic vocatur, eo quod finis et confummatio ommum placitorum effe debet, et hac de caufa providebatur.” Fines indeed are of equal antiquity with the firft rudiments of the law itfelf; are fpoken of by Glanvil ^q and Bracton ^r in the reigns of Henry II, and Henry III, as things then well known and long eftablifhed; and inftances have been produced of them even before the Norman invafion ^s. So that the ftatute 18 Edw. I. called modus levandi fines, did not give them original, but only declared and regulated the manner in which they fhould be levied, or carried on. And that is as follows:

.{FS}
^o Co. Litt. 120.
^p 2 Roll. Abr. 13.
^q l. 8. c. 1.
^r l. 5. t. 5. c. 28.
^s Plowd. 369.
.{FE}
1. THE
.P 350
The RIGHTS of THINGS.
BOOK II.
Ch. 21.
1. THE party, to whom the land is too be conveyed or affured, commences an action or fuit at law againft the other, generally an action of covenant, by fuing out a writ or praecipe, called a writ of covenant ^t: the foundation of which is a fuppofed agreement or covenant, that the one fhall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer fine, or a noble for every five marks of land fued for; that is, one tenth of the annual value ^u. The fuit being thus commenced, then follows,

2. THE licentia concordandi, or leave to agree the fuit ^w. For, as foon as the action is brought, the defendant, knowing himfelf to be in the wrong, is fuppofed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon fuing out the writ, given pledges to profecute his fuit, which he endangers if he now deferts it without licence, he therefore applies to the court for leave to make the matter up. This leave is readily granted, but for it there is alfo another fine due to the king by his prerogative; which is an antient revenue of the crown, and is called the king's filver, or fometimes the poft fine, with refpect to the primer fine before-mentioned. And it is as much as the primer fine, and half as much more, or ten fhillings for every five marks of land; that is, three twentieths of the fuppofed annual value ^x.

3. NEXT comes the concord, or agreement itfelf ^y, after leave obtained from the court; which is ufually an acknowlegement from the deforciants (or thofe who keep the other out of poffeffion) that the lands in queftion are the right of the complainant. And from this acknowlegement, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied

.{FS}
^t See Appendix. No. IV. §. 1.
^u 2 Inft. 511.
^w Append. No. IV. §. 2.
^x 5 Rep. 39. 2 Inft. 511.
^y Append. No. IV. §. 3.
.{FE}
the
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The RIGHTS of THINGS.
BOOK II.
Ch. 21.
the cognizee. This acknowlegement muft be made either openly in the court of common pleas, or before one of the judges of that court, or elfe before commiffioners in the country, empowered by a fpecial authority called a writ of dedimus poteftatem; which judges and commiffioners are bound by ftatute 18 Edw. I. ft. 4. to take care that the cognizors be of full age, found memory, and out of prifon. If there be any feme-covert among the cognizors,fhe is privately examined whether fhe does it willingly and freely, or by compulfion of her hufband.

BY thefe acts all the effential parts of a fine are completed; and, if the cognizor dies the next moment after the fine is acknowleged, provided it be fubfequent to the day on which the writ is made returnable ^z, ftill the fine fhall be carried on in all it's remaining parts: of which the next is

4. THE note of the fine ^a: which is only an abftract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This muft be enrolled of record in the proper office, by direction of the ftatute 5 Hen. IV. c. 14.

5. THE fifth part is the foot of the fine, or conclufion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowleged or levied ^b. Of this there are indentures made, or engroffed, at the chirographer's office, and delivered to the cognizor and the cognizee; ufually beginning thus, “haec eft finalis concordia, this is the final agreement,” and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.

BY feveral ftatutes ftill more folemnities are fuperadded, in order to render the fine more univerfally public, and lefs liable to be levied by fraud or covin. And, firft, by 27 Edw. I. c. 1. the

.{FS}
^z Comb. 71.
^a Append. No. IV. §. 4.
^b Ibid. §. 5.
.{FE}
note
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BOOK II.
Ch. 21.
note of the fine fhall be openly read in the court of common pleas, at two feveral days in one week, and during fuch reading all pleas fhall ceafe. By 5 Hen. IV. c. 14. and 23 Eliz. c. 3. all the proceedings on fines either at the time of acknowlegement, or previous, or fubfequent thereto, fhall be enrolled of record in the court of common pleas. By 1 Ric. III. c. 7. confirmed and enforced by 4 Hen. VII. c. 24. the fine, after engroffment, fhall be openly read and proclaimed in court fixteen times; viz. four times in the term in which it is made, and four times in each of the three fucceeding terms; during which time all pleas fhall ceafe: but this is reduced to once in each term by 31 Eliz. c. 2. and thefe proclamations are endorfed on the back of the record ^c. It is alfo enacted by 23 Eliz. c. 3. that the chirographer of fines fhall every term write out a table of the fines levied in each county in that term, and fhall affix them in fome open part of the court of common pleas all the next term: and fhall alfo deliver the contents of fuch table to the fheriff of every county, who fhall at the next affifes fix the fame in fome open place in the court, for the more public notoriety of the fine.

2. FINES, thus levied, are of four kinds. 1. What in our law French is called a fine “fur cognizance de droit, come ceo que “il ad de fon done;” or, a fine upon acknowlegement of the right of the cognizee, as that which he hath of the gift of the cognizor ^d. This is the beft and fureft kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in queftion, and at the fame time to avoid the formality of an actual feoffment, or gift in poffeffion, to have been made by him to the plaintiff. This fine is therefore faid to be a feoffment of record; the livery thus acknowleged in court, being equivalent to an actual livery: fo that this affurance is rather a confeffion of a former conveyance, than a conveyance now originally made; for the deforciant, or cognizor, acknowleges,

.{FS}
^c Append. No. IV. §. 6.
^d This is that fort, of which an example is given in the appendix, No. IV.
.{FE}
cognofcit,
.P 353
The RIGHTS of THINGS.
BOOK II.
Ch. 21.
cognofcit, the right to be in the plaintiff, or cognizee, as that which he hath de fon done, of the proper gift of himfelf, the cognizor. 2. A fine “fur cognizance de droit tantum,” or, upon acknowlegement of the right merely; not with the circumftance of a preceding gift from the cognizor. This is commonly ufed to pafs a reverfionary intereft, which is in the cognizor. For of fuch reverfions there can be no feoffment, or donation with livery, fuppofed; as the poffeffion during the particular eftate belongs to a third perfon ^e. It is worded in this manner; “that “the cognizor acknowleges the right to be in the cognizee; and “grants for himfelf and his heirs, that the reverfion, after the “particular eftate determines, fhall go to the cognizee ^f. 3. A fine “fur conceffit” is where the cognizor, in order to make an end of difputes, though he acknowleges no precedent right, yet grants to the cognizee an eftate de novo, ufually for life or years, by way of fuppofed compofition. And this may be done referving a rent, or the like: for it operates as a new grant ^g. 4. A fine “fur done, grant et render,” is a double fine, comprehending the fine fur cognizance de droit come ceo, &c, and the fine fur conceffit; and may be ufed to create particular limitations of eftate: whereas the fine fur cognizance de droit come ceo, &c, conveys nothing but an abfolute eftate, either of inheritance or at leaft of freehold ^h. In this laft fpecies of fine, the cognizee, after the right is acknowleged to be in him, grants back again, or renders to the cognizor, or perhaps to a ftranger, fome other eftate in the premifes. But, in general, the firft fpecies of fine, “fur cognizance de droit come ceo, &c,” is the moft ufed, as it conveys a clean and abfolute freehold, and gives the cognizee a feifin in law, without any actual livery; and is therefore called a fine executed, whereas the others are but executory.

3. WE are next to confider the force and effect of a fine. Thefe principally depend, at this day, on the common law, and the two ftatutes, 4 Hen. VII. c. 24. and 32 Hen. VIII. c. 36. The

.{FS}
^e Moor. 629.
^f Weft. Symb. p. 2. §. 95.
^g Weft. p. 2. §. 66.
^h Salk 340.
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antient

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antient common law, with refpect to this point, is very forcibly declared by the ftatute 18 Edw. I. in thefe words. “And the “reafon, why fuch folemnity is required in the paffing of a fine, “is this; becaufe the fine is fo high a bar, and of fo great force, “and of a nature fo powerful in itfelf, that it precludes not only “thofe which are parties and privies to the fine, and their heirs, “but all other perfons in the world, who are of full age, out of “prifon, of found memory, and within the four feas the day of “the fine levied; unlefs they put in their claim within a year “and a day.” But this doctrine, of barring the right by non-claim, was abolifhed for a time by a ftatute made in 34 Edw. I. c. 16. which admitted perfons to claim, and falfify a fine, at any indefinite diftance ^I: whereby, as fir Edward Coke obferves ^k, great contention arofe, and few men were fure of their poffeffions, till the parliament held 4 Hen. VII reformed that mifchief, and excellently moderated between the latitude given by the ftatute and the rigour of the common law. For the ftatute, then made ^l, reftored the doctrine of non claim; but extended the time of claim. So that now, by that ftatute, the right of all ftrangers whatfoever is bound unlefs they make claim, not within one year and a day, as by the common law, but within five years after proclamations made: except feme-coverts, infants, prifoners, perfons beyond the feas, and fuch as are not of whole mind; who have five years allowed to them and their heirs, after the death of their hufbands, their attaining full age, recovering their liberty, returning into England, or being reftored to their right mind.

IT feems to have been the intention of that politic prince, king Henry VIII, to have covertly by this ftatute extended fines to have been a bar of eftates-tail, in order to unfetter the more eafily the eftates of his powerful nobility, and lay them more open to alienations; being well aware that power will always could, by mere implication, be adjudged a fufficient bar, (which they

.{FS}
^I Litt. §. 441.
^k 2 Inft. 518.
^l 4 Hen. V. 24.
.{FE}
were
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BOOK II.
Ch. 21.
were expreffly declared not to be by the ftatute de donis) the ftatute 32 Hen. VIII. c. 36. was thereupon made; which removes all difficulties, by declaring that a fine levied by any perfon of full age, to whom or to whofe anceftors lands have been entailed, fhall be a perpetual bar to them and their heirs claiming by force of fuch entail: unlefs the fine be levied by a woman after the death of her hufband, of lands which were, by the gift of him or his anceftor, affigned to her in tail for her jointure ^m; or unlefs it be of lands entailed by act of parliament or letters patent, and whereof the reverfion belongs to the crown.

FROM this view of the common law, regulated by thefe ftatute, it appears, that a fine is a folemn conveyance on record from the cognizor to the cognizee, and that the perfons bound by a fine are parties, privies, and ftrangers.

THE parties are either the cognizors, or cognizes; and thefe are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almoft the only act that a feme-covert, or married woman, is permitted by law to do, (and that becaufe fhe is privately examined as to her voluntary confent, which removes the general fufpicion of compulfion by her hufband) it is therefore the ufual and almoft the only fafe method, whereby fhe can join in the fale, fettlement, or incumbrance, of any eftate.

PRIVIES to a fine are fuch as are any way related to the parties who levy the fine, and claim under them by any right of blood, or other right of reprefentation. Such as are the heirs general of the cognizor, the iffue in tail fince the ftatute of Henry the eighth, the vendee, the devifee and all others who muft make title by the perfons who levied the fine. For the act of the anceftor fhall bind the heir, and the act of the principal his fub-

.{FS}
^m See ftatute 11 Hen. VII. c. 20.
.{FE}
W w 2
Ftitute,
.P 356
The RIGHTS of THINGS.
BOOK II.
Ch. 21.
ftitute, or fuch as claim under any conveyance made by him fubfequent to the fine fo levied ⁿ.

STRANGERS to a fine are all other perfons in the world, except only parties and privies. And thefe are alfo bound by a fine, unlefs, within five years after proclamations made, they interpofe their claim; provided they are under no legal impediments, and have then a prefent intereft in the eftate. The impediments, as hath before been faid, are coverture, infancy, imprifonment, infanity, and abfence beyond fea: and perfons, who are thus incapacitated to profecute their rights, have fine years allowed them to put in their claims after fuch impediments are removed. Perfons alfo that have not a prefent, but a future intereft only, as thofe in remainder or reverfion, have five years allowed them to claim in, from the time that fuch right accrues ^o. And if within that time they neglect to claim, or (by the ftatute 4 Ann. c. 16.) if they do not bring an action to try the right, within one year after making fuch claim, and profecute the fame with effect, all perfons whatfoever are barred of whatever right they may have, by force of the ftatute of non-claim.

BUT, in order to make a fine of any avail at all, it is neceffary that the parties fhould have fome intereft or eftate in the lands to be affected by it. Elfe it were poffible that two ftrangers, by a mere confederacy, might without any rifque defraud the owners by levying fines of their lands; for if the attempt be difcovered, they can be no fufferers, but muft only remain inftatu quo: whereas if a tenant for life or years levies a fine, it is an abfolute forfeiture of his eftate to the remainder-man or reverfioner ^p, if claimed in proper time. It is not therefore to be fuppofed that fuch tenants will frequently run fo great a hazard; but if they do, and the claim is not duly made within five years after their refpective terms expire ^q, the eftate is for ever barred

.{FS}
ⁿ 3 Rep. 87.
^o Co. Litt. 372.
^p Ibid. 251.
^q 2 Lev. 52.
.{FE}
by
.P 357
The RIGHTS of THINGS.
BOOK II.
Ch. 21.
by it. Yet where a ftranger, whofe prefumption cannot thus be punifhed, officioufly interferes in an eftate which in no wife belongs to him, his fine is of no effect; and may at any time be fet afide (unlefs by fuch as are parties or privies thereunto ^r) by pleading that “partes finis nihil habuerunt.” And thus much for the conveyance or affurance by fine: which not only like other conveyances binds the grantor himfelf, and his heirs; but alfo all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.

IV. THE fourth fpecies of affurance, by matter of record, is a common recovery. Concerning the original of which, it was formerly obferved ^s, that common recoveries were invented by the ecclefiaftics to elude the ftatutes of mortmain; and afterwards encouraged by the fineffe of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only eftates-tail, but alfo all remainders and reverfions expectant thereon. I am now therefore only to confider, firft, the nature of a common recovery; and, fecondly, it's force and effect.

I. AND, firft, the nature of it; or what a common recovery is. A common recovery is fo far like a fine, that it is a fuit or action, either actual or fictitious: and in it the lands are recovered againft the tenant of the freehold; which recovery, being a fuppofed adjudication of the right, binds all perfons, and vefts a free and abfolute fee-fimple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromifed like a fine, but carried on through every regular ftage of proceeding, I am greatly apprehenfive that it's form and method will not be eafily underftood by the ftudent, who is not yet acquainted with the courfe of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of thefe commentaries. However I fhall endeavour to ftate it's nature and progrefs, as clearly and concifely as I can; avoid-

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^r Hob. 334.
^s pag. 117. 271.
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ing
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ing, as far as poffible, all technical terms, and phrafes not hitherto interpreted.

LET us, in the firft place, fuppofe David Edwards ^t to be tenant of the freehold, and defirous to fuffer a common recovery, in order to bar all entails, remainders, and reverfions, and to convey the fame in fee-fimple to Francis Golding. To effect this, Golding is to bring an action againft him for the lands; and he accordingly fues out a writ, called a praecipe quod reddat, becaufe thofe were it's initial or moft operative words, when the law proceedings were in Latin. In this writ the demandant Golding alleges, that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into poffeffion of it after one Hugh Hunt had turned the demandant out of it ^v. The fubfequent proceedings are made up into a record or recovery roll ^u, in which the writ and complaint of the demandant are firft recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is fuppofed, at the original purchafe, to have warranted the title to the tenant; and thereupon he prays, that the faid Jacob Morland may be called in to defend the title which he fo warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, defires leave of the court to imparl, or confer with the vouchee in private; which is (as ufual) allowed him. And foon afterwards the demandant, Golding, returns to court, but Morland the vouchee difappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in queftion againft the tenant, Edwards, who is now the recoveree: and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompenfe for the lands fo warranted by him, and now loft by his default; which is agreeable to the doctrine of warranty mentioned in the preceding

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^t See appendix, No. V.
^v §. 1.
^u §. 2.
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chapter ^w.
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chapter ^w. This is called the recompenfe, or recovery in value. But Jacob Morland having no lands of his own, being ufually the cryer of the court (who, from being frequently thus vouched, is called the common vouchee) it is plain that Edwards has only a nominal recompenfe for the lands fo recovered againft him by Golding; which lands are now abfolutely vefted in the faid recoveror by judgment of law, and feifin thereof is delivered by the fheriff of the county. So that this collufive recovery operates merely in the nature of a conveyance in fee-fimple, from Edwards the tenant in tail, to Golding the purchafor.

THE recovery, here defcribed, is with a fingle voucher only; but fometimes it is with double, treble, or farther voucher, as the exigency of the cafe may require. And indeed it is now ufual always to have a recovery with double voucher at the leaft; by firft conveying an eftate of freehold to any indifferent perfon, againft whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee ^x. For, if a recovery be had immediately againft tenant in tail, it bars only fuch eftate in the premifes of which he is then actually feifed; whereas if the recovery be had againft another perfon, and the tenant in tail be vouched, it bars every latent right and intereft which he may have in the lands recovered ^y. If Edwards therefore be tenant of the freehold in poffeffion, and John Barker be tenant in tail in remainder, here Edwards doth firft vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the laft perfon vouched, and always makes default: whereby the demandant Golding recovers the land againft the tenant Edwards, and Edwards recovers a recompenfe of equal value againft Barker the firft vouchee; who recovers the like againft Morland the common vouchee, againft whom fuch ideal recovery in value is always ultimately awarded.

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^w pag. 301.
^x See appendix, pag. xviii.
^y Bro. Abr. tit. Taile 32. Plowd. 8.
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THIS
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THIS fuppofed recompenfe in value is the reafon why the iffue in tail is held to be barred by a common recovery. For, if the recoveree fhould ever 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) thefe lands would fupply the place of thofe fo recovered from him by collufion, and would defcend to the iffue in tail ^z. This reafon will alfo hold, with equal force, as to moft remainder-men and reverfioners; to whom the poffibility will remain in and revert, as a full recompenfe for the reality, which they were otherwife entitled to: but it will not always hold; and therefore, as Pigott fays ^a, the judges have been even aftuti, in inventing other reafons to maintain the authority of recoveries. And, in particular, it hath been faid, that, though the eftate-tail is gone from the recoveree, yet it is not deftroyed, but only transferred; and ftill fubfifts, and will ever continue to fubfift (by conftruction of law) in the recoveror, his heirs, and affigns: and, as the eftate-tail fo continues to fubfift for ever, the remainders or reverfions expectant on the determination of fuch eftate-tail can never take place.

TO fuch awkward fhifts, fuch fubtile refinements, and fuch ftrange reafoning, were our anceftors obliged to have recourfe, in order to get the better of that ftubborn ftatute de donis. The defign, for which thefe contrivances were fet on foot, was certainly laudable; the unrivetting the fetters of eftates-tail, which were attended with a legion of mifchiefs 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 fubject; 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 feen and allowed, and of courfe the utility and expedience of fetting them at liberty are apparent; it hath often been wifhed, that the pro-

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^z Dr. & St. l. 1. dial. 26.
^a of com. recov. 13, 14.
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cefs
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cefs of this conveyance was fhortened, and rendered lefs fubject to niceties, by either totally repealing the ftatute 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 thofe in remainder or reverfion, by abridging the chances they would otherwife frequently have, as no recovery can be fuffered 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 ^b 21 Jac. I. c. 19. which, in cafe of a bankrupt tenant in tail, empowers his commiffioners to fell the eftate 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, thofe 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 difcharged 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 againft 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 ftatute 11 Hen. VII. c. 20. no woman, after her hufband's death, fhall fuffer a recovery of lands fettled on her in tail by way of jointure

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^b See pag. 286.
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X x

by

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by her hufband or any of his anceftors. And by ftatute 14 Eliz. c. 8. no tenant for life, of any fort, can fuffer a recovery, fo 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, otherwife 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 eftate-tail as if he himfelf were the recoveree ^c.

IN all recoveries it is neceffary that the recoveree, or tenant to the praecipe, as he is ufually called, be actually feifed of the freehold, elfe the recovery is void ^d. For all actions, to recover the feifin of lands, muft be brought againft 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 themfelves fabulous and fictitious, yet it is neceffary that there be actors 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 retrofpect and conformity to the antient rule of law ^e, that, though the legal freehold be vefted in leffees, yet thofe who are intitled to the next freehold eftate in remainder or reverfion may make a good tenant to the praecipe: and that, though the deed or fine which creates fuch tenant be fubfequent to the judgment of recovery, yet, if it be in the fame term, the recovery fhall be valid in law: and that, though the recovery itfelf 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 ufes of the recovery, fhall after a poffeffion of

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^c Salk. 571.
^d Pigott. 28.
^e Pigott. 41, &c. 4. Burr. I. 115.
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twenty
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twenty years be fufficient evidence, on behalf of a purchafor for valuable confideration, that fuch recovery was duly fuffered. And this may fuffice to give the ftudent a general idea of common recoveries, the laft fpecies of affurances by matter of record.

BEFORE I conclude this head, I muft 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 ufes declared, they, like other conveyances, enure only to the ufe of him who levies or fuffers them ^l. And if a confideration appears, yet as the moft ufual fine, “fur cognizance de droit come ceo, &c,” conveys an abfolute eftate, without any limitations, to the cognizee; and as common recoveries do the fame to the recoveror; thefe affurances could not be made to anfwer the purpofe of family fettlements, (wherein a variety of ufes and defignations is very often expedient) unlefs 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 itfelf, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vaft and intricate machine of a voluminous family fettlement. And, if thefe 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 remainder to himfelf in fee, would fettle his eftate 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 ufually covenants to levy a fine (or, if there be any remainders over, to fuffer a recovery) to E, and that the fame fhall enure to the ufes in fuch fettlement mentioned. This is now a deed to lead the ufes of the fine or recovery; and the fine when levied, or recovery when fuffered, fhall enure to the ufes fo fpecified and no other. For though E, the conufee or recoveree, hath a fee-fimple vefted in himfelf by the fine or recovery; yet, by the operation of this deed, he be-

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^f Dyer. 18.
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X x 2
comes
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comes a mere inftrument or conduit-pipe, feifed only to the ufe of B, C, and D, in fucceffive order: which ufe is executed immediately, by force of the ftatute of ufes ^g. Or, if a fine or recovery be had without any previous fettlement, and a deed be afterwards made between the parties, declaring the ufes to which the fame fhall be applied, this will be equally good, as if it had been expreffly levied or fuffered, in confequence of a deed directing it's operation to thofe particular ufes. For y ftatute 4 & 5 Ann. c. 16. indentures to declare the ufes 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 fhall enure to fuch ufes, and be efteemed to be only in truft, notwithftanding the ftatute of frauds 29 Car. II. c. 3. enacts, that all trufts fhall be declared in writing, at (and not after) the time when fuch trufts are created.

.{FS}
^g This doctrine may perhaps be more clearly illuftrated by example. In the deed or marriage fettlement in the appendix, No. II. §. 2. we ma 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 ufes therein expreffed, viz. of Abraham and Cecilia barker till the marriage; remainder to John Barker for life; remainder to truftees to preferve the contingent remainders; remainder to his widow for life, for her jointure: remainder to other truftees, for a term of five hundred years; remainder to their firft and other fons in tail; remainder to their daughters in tail; remainder to John Barker in tail; remainder to Cecilia Barker in foe. Now it is neceffary, in order to bar the eftate-tail of John Barker, and the remainders expectant thereon, that a recovery be fuffered of the premifes; and it is thought proper (for though ufual, it is by no means neceffary: fee Forrefter. 167.) that in order to make a good tenant of the freehold, or tenant to the praecipe, during the coverture, a fine fhould be levied by Abraham, Cecilia, and John Barker; and it is agreed that the recovery ifteft be fuffered againft this tenant to the praecipe, who fhall vouch John Barker, and thereby bar his eftate-tail; and become tenant of the foe-fimple by virtue of fuch recovery: the ufes of which eftate, fo acquired, are declared to be thofe expreffed in this deed. Accordingly the parties covenant to do thefe feveral acts, (fee pag. viii.) And in confequence thereof the fine and recovery are had and fuffered (No. IV. and No. V.) of which this conveyance is a deed to lead the ufes.
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