recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record.

or to declare,

and recoveries.

Before I conclude this head, I must add a word concern- of deeds to lead, ing deeds to lead, or to declare, the uses of fines, and of the uses of fines 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 (i). And 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, remainder to D. in fee; this 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 operation of this deed, he be*comes a mere instrument or conduit-pipe, seised only to [ * 364 ] the use of B., C., and D., in successive order which use

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

(i) Dyer, 18.

(k) This doctrine may perhaps be

more clearly illustrated by example.
In the deed or marriage settlement in

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 Ann. 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 (15).

the Appendix, No. II. s. 2, we may
suppose the lands to have been origi-
nally settled on Abraham and Cecilia
Barker for life, remainder to John
Barker in tail, with divers other re-
mainders over,
reversion to Cecilia
Barker in fee; and now intended to
be settled to the several uses therein
expressed, viz. to Abraham and Ceci-
lia Barker, till the marriage of John
Barker with Catherine Edwards, and
then to John Barker for life; re-
mainder to trustees to preserve the
contingent remainders; remainder to
his wife Catherine for life, for her
jointure; remainder to other trustees,
for a term of five hundred years; re-
mainder 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 of 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 pag. viii.); and in consequence thereof the fine and recovery are had and suffered, (No. IV. and No. V.,) of which this conveyance is a deed to lead the uses.

(15) By the statute of 7 Geo. IV. c. 45, a person who would be entitled to an estate-tail in lands directed to be purchased under a settlement or will, may elect to take the money without having it so invested. But before an order under the statute is made, the court always directs a reference to the Master, to inquire whether the parties have in any manner encumbered, or settled their interests in the money. (Ex parte Hodges, 6

Ves. 576; Green v. Stephens, 17 Ves. 79.) It has also been determined, that the act applies only when the right is clear and indisputable; and that, where there is any question as to the right, the court is not, upon an ex parte petition, to enter into that question, in the absence of any of the parties interested. (Ex parte Sterne, 6 Ves. 157; Ex parte Rees, 3 Ves. & Bea. 11.)

365

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

copyhold lands.

We are next to consider assurances by special custom, ob- Of alienation of taining 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 (1), and such customary estates as are holden in ancient demesne (2), or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold (a). Nor are they transferable by matter of record, even in the king's courts (3), but only in the court (4) baron of the lord. The method of doing

(1) See ante, pp. 95 & 97. (2) See ante, pp. 99 & 100, note (51) to chapter 6.

(a) Litt. s. 74.

with

(3) 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, (1 Jac. & Walk. 549,) the Master of the Rolls observed, "with respect to the manner of proceeding for the recovery of copy

VOL. II.

holds, 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."
And see post, p. 369.

(4) See ante, pp. 54, 90, 100. Vol.
III. p. 33. The 50th, 51st, 52nd,

N N

By surrender.

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.

if

Surrender (5), 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, [ *366] that *the tenant comes to the steward, either in court, (or, 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, (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, accord(b) Moor, 637.

53rd, and 54th sections of the statute
of 3 & 4 Gul. IV. c. 74, provide that
the previous clauses of that act, (by
which a tenant in tail is enabled to
destroy the entail by simpler means
than fine or recovery,) shall apply to
copyholds, so far as the nature of
those tenures will admit. A legal
estate-tail in copyholds must be dis-
posed of by surrender; but an equi-

table estate-tail may be disposed of, under the act cited, either by a surrender or by deed. Whether the disposition of lands held by copy of court-roll be made by surrender or by deed, by the tenant in tail thereof, the transaction does not require enrolment, otherwise than by entry on the court-rolls.

(5) See ante, p. 326.

ing to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.

being accepted

Court of Chan

the performance

on which the

made.

In this brief abstract of the manner of transferring copy- The surrender hold estates, we may plainly trace the visible footsteps of the by the lord, the feodal institutions. The fief, being of a base nature and cery enforced tenure, is unalienable without the knowledge and consent of of the trusts upthe lord. For this purpose it is resigned up, or surrendered surrender was into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise (6). 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, for which *there was no remedy at law, but only [*367 ] by subpoena 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 (7), by delivering the symbol of seisin in 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 solemni

66

(c) Cro. Jac. 568.

(6) See ante, pp. 95 and 97, with the notes thereto.

(d) Bro. Abr. tit. Tenant per Copie, 10.

(7) See ante, p. 54, and note.