quences of fettered inheritances are now generally seen *and allowed, [*361] 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 enrollment.

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 and 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 lands [*362] 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 remainder-man in tail, otherwise the recovery is void; but if he does vouch such remainder-man, 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)

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 enacts, with a retrospect and conformity to the ancient rule of law, () 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 (g) See page 286. (h) Salk. 571. (3) Pigot, 41, &c. 4 Burr. 1, 115.

(f) See page 376. (1) Pigot, 28.

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 [*363] 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) 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; 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 operation of this deed, he *becomes a mere instrument or conduit-pipe, seised only to the use of B, [ *364] 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 and 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.

(k) Dyer, 18.

(1) 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 otherremainders 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 suffered (No. IV and No. V), of which this conveyance is a deed to lead the

uses.

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 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 tenant [ *366] 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 cestui 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, according 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. (2)

In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feudal 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 favours liberty, has now given

(1) [This is true, because real actions, which alone were conclusive as to the title, could only be brought to recover copyholds in the lord's court. But ejectment is commonly brought in the superior courts to recover the possession of copyholds. See 1 Jac. and Wal. 549.]

(2) [Femes-covert 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.]

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 alience of a copyhold had merely jus fiduciarium, for which *there was no remedy at law, but only by subpoena in chancery. (c) When, therefore, the lord had [367] 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 feudal investiture, 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 solemniter fieri debet:" (e) and, to crown the whole, the oath of fealty is annexed, the very bond of feudal 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 incontestibly 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 surrender *it to the use of my last will and testament: (3) and in my will I must declare my [ *368] intentions, and name a devisee, who will then be entitled to admission. (f) A fine or recovery had of copyhold lands in the king's court may, indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee, (g) which is defined in the old book of tenures (h) to be "land pleadable at the common law;" but upon an action on the case, in the nature of a writ of deceit, brought by the lord in the king's court, such fine or recovery will be reversed,

(c) Cro. Jac. 568.
(f) Co. Copyh. § 36.
(h) t. tenir en franke fee.

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

(e) Feud. 1. 2, t. 2. (g) Old Nat. Brev. t. briefe de recto clauso. F. N. B. 13.

(3) [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 manor in England or Ireland, any copyhold tenant thereof may by will dispose of or appoint his copyhold tenement, the same having been surrendered to such uses as shall be by such will declared, every disposition or charge of any such copyholds, or of any right or title to the same, made by any such will by any person who shall die after passing this act (viz., 12 July 1815), shall be as effectual, although no surrender is made to the use of such will, as it would have been had such surrender been made. But the claimants under the devise must pay the stamp duties, fees, &c., incident to a surrender, as well as those upon admission Before the passing of this act, equity would relieve in favor of a wife or younger children (but not of a brother, grandchildren, or natural children); or where copyholds were devised for the payment of debts. See 1 Atk. 387; 3 Bro. 229; 1 P. Wms. 60; 2 Ves. 582; 6 id. 544; 5 id. 557. But where a surrender by a married woman to the use of her will is required by the particular custom of the manor, the want of a surrender is not aided; for the 55 Geo. III, c. 192, only aids the want of a formal surrender, and the surrender in this case is matter of substance, and requires to be accompanied by the separate examination of the wife. 5 Bar. and Ald. 492; I Dowl. and R. 81. S. C. Where copyhold premises have been surrendered to such uses as the owner shall appoint, the apointment may be made by will, and a surrender to the uses of such will was not necessary even before this statute. 3 M. and S. 158.]

the lord will recover his jurisdiction; and the lands will be restored to their former state of copyhold. (i) (4)

In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.

1. A surrender by an admittance subsequent whereto the conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser, and punishable in an action of trespass: (5) and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio; because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing; and no subsequent admittance can make an act good, which was ab initio void. Yet, though upon the original surrender the nominee hath but a possibility, it is however such a possibility as may, whenever he pleases, be reduced to a certainty; for he cannot either by force or fraud be deprived or deluded of the effects and fruits of the surrender; but if the lord refuse to admit him, he is compellable to do it by a bill in chancery, or a mandamus : (k) *and the surrenderor [*369] can in no wise defeat his grant; his hands being forever bound from disposing of the land in any other way, and his mouth forever stopped from revoking or countermanding his own deliberate act. (1)

2. As to the presentment; that, by the general custom of manors, is to be made at the next court baron immediately after the surrender; but by special custom in some places it will be good, though made at the second or other subsequent court. And it is to be brought into court by the same persons that took the surrender, and then to be presented by the homage; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon, are wholly void: (m) the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, that is sufficient. (n) So, too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those, into whose hands the surrender is made, die bofore presentment; for, upon sufficient proof in court, that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into

(f) See Book III, page 166. (m) Ibid. 40.

(k) 2 Roll. Rep. 107.

(n) Co. Litt. 62.

(4) Co. Copyh. § 39.

(4) [Now a person who has a legal estate in copyhold lands may dispose thereof, and bar the entail, by surrender; if his estate be only an equitable one, he may effect the same purposes by deed. See the statute of 3 and 4 Wm. IV, c. 74, ss. 50 to 54.]

(5) [The surrenderee would not now be considered a trespasser; for it has been determined that he may recover in an ejectment against the surrenderor, upon a demise laid after the surrender, where there was an admittance of such party before trial: but as the surrenderor after the surrender is considered merely a trustee for the nominee, it should seem that the decision would have been the same even if the subsequent admittance had not been proved. 1 T. R. 500; 5 Burr. 2764; 16 East, 208.]