A 
 A 
 
 : 
 ; 
 
 ;
 
 T 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A 
 
 THE ATI SE 
 
 ON 
 
 CONVEYANCING; 
 
 WITH A VIEW TO ITS 
 
 Application to l^ractice : 
 
 BEING A SERIES OF 
 
 PRACTICAL OBSERVATIONS, 
 
 WRITTEN IN 
 
 A PLAIN FAMILIAR STYLE, 
 
 WHICH HAVE FOR TUBIR OBJECT 
 
 rO ASSIST IN PREPARING BKAUGIITS, AND IN JUDGING OF THE OPE- 
 RATION OF DEEDS, BY DISTINGUISHING BETWEEN THE 
 FORMAL AND ESSENTIAL PARTS OF THOSE DEEDS, 
 &C. IN GENERAL USE: 
 
 BEING 
 
 A COURSE OF LECTURES. 
 
 WITH 
 
 AN APPENDIX OF SELECT AND APPROPRIATE PRECEDENTS. 
 THIRD EDITION, CORRECTED, 
 
 , WITH ADDITIONS. 
 
 VOL. I. 
 
 BY RICHARD PRESTON, 
 
 OP THE INNER TEMPLE, ESQ. 
 
 LONDON. 
 
 PRINTED FOR W. CLARKE AND SONS, LAW BOOKSELLERS, 
 PORTUGAL-STREET, LINCOLN'S-INN. 
 
 1819.
 
 T 
 
 V\'. >1inl, ft. ?¥(inlrlir«v, Uiiidoft.
 
 TO CHARLES BUTLER, ESQ, 
 
 LINCOLN'S INN. 
 MY DEAR SIR, 
 
 Allow me to place under your patro- 
 nage the volume now offered to the profes- 
 sion. That it should be received favorably 
 by a gentleman of your experience and ex- 
 tensive research in the study and practice 
 of the Laws of Property ; by the Editor of 
 those A finotaf ions on Coke on Littleton which 
 have been so deservedly admirt;! by the 
 profession, and cited with approbation even 
 by the judges ; will not fail to ensun^ it a 
 favorable reception with those for whose 
 use it is intended. 
 
 That you approved of the work when in 
 manuscript, and in an imperfect state, was 
 one of the principal inducements to its pub- 
 lication. At the same time I am fully aware 
 that I am more indebted to your friendship, 
 and kind paitiality, than to the merit of 
 the work, for those very favorable terms in 
 
 a 2 
 
 ■::'" ,/-^ j->\ n ^■\
 
 IV DEDICATION. 
 
 which you have been pleased to express 
 yourself of the performance. 
 
 To have merited your friendship is one of 
 those sources of satisfaction, which have 
 supported me, when others have failed ; and 
 posterity will no doubt do ample justice to 
 the liberality, with which you have counte- 
 nanced those whom you thought likely to 
 become useful members of the profession. 
 
 I consider myself only one of many who 
 have been raised into notice under the pro- 
 tection of your patronage and good opinion; 
 and I shall ever retain a grateful sense of 
 the obligations I owe you. 
 
 I am, my dear Sir, 
 Your very faithful, 
 And obliged Servant, 
 
 RICH. PRESTON.
 
 ADVERTISEMENT 
 
 TO THE 
 
 SECOND EDITION. 
 
 JLN offering to the public a second edition 
 of this volume, the author cannot refrain 
 from acknowledging, with satisfaction, the 
 very favorable reception which it experi- 
 enced on its first publication. 
 
 The work has been carefully revised ; 
 all the authorities have been studiously con- 
 sulted ; and many additional observations 
 have been introduced. A Table of the Terms, 
 from as early a period as the ordinary oc- 
 currences of professional practice require, 
 (a Table of great utility in investigating 
 titles under recovery-deeds,) is now pre- 
 fixed. For this Table the author is indebted 
 to the kindness and liberality of a profes- 
 sional friend. For the revision of the work, 
 and a laborious examination of the autho- 
 rities, and a critical comparison of the pro- 
 positions of the work itself with the autho-
 
 VI ADVERTISEMENT. 
 
 rities, he is indebted to the industry and the 
 talents of Mr. George Cox, one of his pupils. 
 And it is a gratification to him, to add that 
 he is greatly mistaken, or this gentleman 
 will, let no distant period, be found a zea- 
 lous and worthy competitor for the meed of 
 professional fame, and for success in the 
 conveyancing department of the profession. 
 
 The author hopes that his endeavours 
 will continue to merit that estimation, with 
 which they have been hitherto honored, 
 and which is so grateful to his feelings. 
 
 Lincoln's Inn, 
 July 1st, 1813.
 
 PREFACE 
 
 TO THE 
 
 FIRST EDITION, 
 
 X HE greater part of the subject of the fol- 
 lowing sheets was originally dictated by the 
 author to his pupils in a series of lectures, 
 delivered by him, and committed to writing 
 by them. The avowed object was to assist 
 their studies ; to direct their attention to 
 points merely practical ; and render their 
 exertions beneficial to them, as well as use- 
 ful to himself, while they remained in his 
 chambers. The result more than fulfilled 
 his expectations. Encouraged by the ob- 
 servation of the utility of this course of study, 
 he shewed the MS. while in its original state 
 to several of his professional friends; to some 
 who had greater, and to others who had less 
 experience. Had the reception they gave 
 the work been less favorable than it was, he 
 would have felt no liesitation in offering it 
 to the public. He is truly sensible of the 
 friendship of those gentlemen, and of the 
 iionor they confer on him by their good 
 opinion. Many, however, of their kind
 
 Vlll PREFACE. 
 
 expressions he ascribes to the partiality of 
 friendship, rather than the merit of his per- 
 formance. 
 
 Such as the work is, it is offered to the pro- 
 fession. In publishing it the author has no 
 other motive than to do good ; to afford to 
 others that assistance for which, at one pe- 
 riod, he would have been extremely grateful. 
 
 The peculiar advantage of this work, if 
 it has any, is, that it is the fruit of much re- 
 flection and extensive experience. It may 
 be considered as the sentiments of a prac- 
 tical man, on a practical subject. As far as 
 the theory is given, the attention is kept 
 closely to those points which are of ordi- 
 nary occurrence, and comprise the more use-, 
 ful parts of a lawyer's knowledge. Recon- 
 dite points are highly valuable to form the 
 profound, and well-read lawyer ; but to the 
 student, and mere practical conveyancer, 
 that knowledge is most useful, which is 
 most necessary to be gained for the purposes 
 of general business. When the practice, 
 and the rules by whicli it is governed, are 
 understood, thestudy of more abstruse points 
 will be rendered easy. In teaching tlie law, 
 as well as any other science, it should be 
 a rule to ])roceed by insensible steps ; to 
 begin with that part which is easy and in- 
 troductory, and proceed to those parts of 
 the science which are )nore dillicult.
 
 PREFACE. IX 
 
 The misfortune of a person, who, either 
 as a clerk to a solicitor, or as a student in 
 a conveyancer^s chambers, begins to study 
 the practice of conveyancing, is, that he is 
 taught by form, or precedent, rather than 
 by principle. He is made to copy precedents, 
 without knowing either their application, or 
 those rules on which they are grounded. 
 When he begins to prepare drafts, he is led 
 to expect all his information from these 
 forms ; and his knowledge is, in the end, as 
 limited as the means by which he has been 
 instructed. 
 
 One of the principal difficulties to be sur- 
 mounted, by a person so educated, is to 
 gain sufficient strength of mind, and reso- 
 lution, to free himself from the shackles of 
 precedent. The apprehension of erring 
 makes him fear to try his own resources. 
 This fear proceeds from a want of sufficient 
 knowledge to discriminate between form 
 and substance ; in other words, between 
 the formal and the essential parts of a deed, 
 &c. The next difficulty proceeds from 
 the want of ideas ; in short, of useful know- 
 ledge. Without understanding, from prin- 
 ciple, the object to be attained, how is 
 he to accomplish that object ^ The very 
 foundation is wanting. There are no ideas 
 formed ; and, for that reason, none can be 
 brought into action, To acquire these
 
 X PREFACE. 
 
 ideas, extensive reading, and, to a certain 
 extent, the practical knowledge of business, 
 in other words, an intimate acquaintance 
 with the provisions, which are absolutely 
 necessary, and also of those which are usual, 
 in transactions of this sort, are to be ac- 
 quired : and a collection of good prece- 
 dents is one of the sources from which 
 knowledge of the usual provisions may be 
 attained. When the object to be attained 
 is fully comprehended, the next considera- 
 tion is the means by which it is to be ac- 
 complished. This leads to the form of the 
 assurance. 
 
 Two conclusions may be justly formed. — 
 1st. No one will ever become a good con- 
 veyancer, unless he understands so much 
 of the law as will make him acquainted 
 with the rules by which property, and the 
 mode of conveying it, are governed. 2dly. 
 Unless he makes himself so far acquainted 
 with practice, so far as to understand 
 those forms which are in use by practical 
 men, he can never attain any eminence. 
 Yew who can form correct ideas, feel any 
 dilliculty in giving them expression by lan- 
 guage ; but this will be done, with more or 
 less precision, and more or less succinctly, 
 according to the peculiar habits and talents 
 of the party. In the praclice of the con- 
 veyancer there is a species of language, found-
 
 PREFACE. XI 
 
 cd on decided cases, or sanctioned by expe- 
 rience, whicli is perfectly understood by all 
 professional men of information : By them 
 it is read with ease, and comprehended with- 
 out a second thouglit ; because the words 
 have a technical and appropriate sense, on 
 which good lawyers are, by the rules of law, 
 bound to agree. This is the advantage of a 
 close adherence to this species of language. 
 A polite scholar would, perhaps, be disgust- 
 ed with the phraseology, and with the 
 lameness of the periods. He would be led 
 to make an effort to give the like ideas, in 
 all the elegance of polite diction, and finish- 
 ed sentences. But would any lawyer be 
 able to advise, with certainty, on the con- 
 struction to which this language would re- 
 ceive t A departure from technical language 
 would, sometimes, allow^ of a twofold con- 
 struction ; in short, raise a doubt whether 
 the words were to be read in one sense, or 
 in another sense. Something of this is to 
 be discovered in the wills, or the contracts, 
 of some of the best scholars, and even of 
 men who, as merchants, are in the habits 
 of business ; and in acts of parliament, 
 when altered by any other than professional 
 men. It is also to be found in the wills of 
 eminent lawyers, who, from their peculiar 
 habits of business, have never turned their 
 attention to express legal forms in techni-
 
 Xll PREFACE. 
 
 cal lansjuaoe. The great art with the con- 
 veyancer, is to use no other language, in 
 the operative part of deeds, than such as 
 has a fixed and definite meaning. For the 
 sake of his reputation, and from a sense of 
 duty, it should be his first care, to use such 
 phrases only as he is satisfied will receive 
 the nieanino; he ascribes to them, and at- 
 tain the very precise object at which he 
 aims. If the words he uses, can be read 
 with two different applications, he has in- 
 jured, instead of serving his client : he has 
 involved him in the chance, at least, of a 
 suit at law, or in equity, instead of placing 
 him in a state of repose and security ; and 
 perhaps has injured, nay, even ruined, a 
 man whom it was his intention to have 
 served and protected. 
 
 These observations are introduced, for the 
 purpose of shewing the importance of an 
 adherence to language sanctioned by the 
 experience of professional men of eminence. 
 Nor does this language exclude simplicity 
 or neatness. A well-prepared instrument 
 may be read, and admired, by a uian of sense. 
 At least, lIic better it is understood, the 
 more it will please ; and an excellent scholar 
 would in the end, be convinced that hecould 
 never act more wisely for his ease and com- 
 fort, or i'or the; security of his employer, than 
 condescend to become a careful observer
 
 PREFACE. XJll 
 
 of the language of these forms. His study 
 should be to simplify the terms, as much 
 as circumstances, and the intention will ad- 
 mit. This will be most effectually accom- 
 plished, by rejecting tautologous and syno- 
 nymous expressions, and confining himself 
 to that part of technical language, which is 
 essential to express, or give legal effect to the 
 intention of the parties. The student should 
 also prescribe it to himself as a rule, to ad- 
 here to general forms, and to the same lan- 
 guage as much as the intention will admit, 
 and to vary the essential parts as often as 
 circumstances require it ; and to be careful 
 to express the essential parts of the deed in 
 language the most precise and definite he can 
 find, or experience, precedent, or his own 
 improved judgment shall dictate. As often 
 as he varies from form, or from the expe- 
 rience of others, he should be well assured, 
 that he is sanctioned by superior authority ; 
 and that the variation will have exactly the 
 effect he wishes to be ascribed to h is lan- 
 guage. 
 
 These observations are not meant to con- 
 fine the student to be a mere copyist ; to 
 deny him the best privilege of a liberal 
 mind, — to think and act for himself. They 
 are intended only as cautions to youth, and 
 as a guard against too great anxiety to give 
 proofs of aspiring genius, by a total neglect
 
 XIV PREFACE. 
 
 of form^ or by disregarding the practice of 
 experienced men. The further he advances, 
 the more he will be satisfied of the value of 
 the experience derived from others ; and^as 
 far as the author's observations have enabled 
 him to judge, those gentlemen alone have 
 succeeded who have pursued this course of 
 study, now recommended. 
 
 To distinfjuish between the formal and 
 essential parts of deeds, is one of the great 
 objects of the work now submitted to the 
 profession. To guard the student against 
 error, and to form his mind, as they are 
 objects of the first importance, so they are 
 always kept in view throughout this work. 
 
 That this object might be continually en- 
 forced, the author has frequently sacrificed 
 himself to his reader. He has rather sub- 
 jected himself to the imputation of repe- 
 tition of the same thoughts, in difierent 
 parts of the work, than neglect those cau- 
 tions, or that chain of thought, or line of 
 arrangement which the immediate context 
 seemed to lequire. This will be found in 
 a nxjre than ordinary degree in the chap- 
 ters on llecoveries and Fines : and it is in 
 those chapters to be accounted for, from 
 the ciicumstances that the part in rccove- 
 li's which relate:; lo recovery-deeds; and 
 tli( part in fines, which relates to the form, 
 &c. of fines, and the deed to lead or declare
 
 PREFACE. XV 
 
 the uses, are additions to the original manu- 
 script. 
 
 Each chapter contains a succinct essay on 
 the particular assurance of which it treats. 
 In reference to that assurance there is a part 
 which is theoretical, and a part which is 
 practical. 
 
 The theoretical part is intended to incul- 
 cate first principles ; to teach the student 
 elementary rules ; the nature, the object, 
 and the use of the particular assurance ; the 
 purposes to which it may be applied, and 
 the circumstances under which it may be 
 used, and the cautions to be observed. The 
 practical observations detail the parts of 
 the deeds, &c. with comments on the form 
 of the assurance. They also distinguish 
 such parts as are formal, from those which 
 are essential. And m the Appendix forms 
 are added, m iilustration of the practical 
 observations. 
 
 This arrangement of tlie subject accounts 
 in some degree for the arrangement of the 
 bouk. 
 
 Some may express their surprise that the 
 work commences with Common Recoveries. 
 This happened by accident ; but this very 
 accident, has perhaps been productive of 
 advantage, as it determined the. form of 
 the different chapters. 
 
 Sheppard, in his Touchstone, commenced
 
 XVI PREFACE. 
 
 with fines and common recoveries. This 
 circumstance, liowever, had no influence in 
 the author's arrangement. For Its origin 
 is wholly attributable to the circumstances 
 under which the observations were dictated. 
 
 The original design was to write on de- 
 tached clauses of deeds, as collected for the 
 use of pupils, in several volumes, denomi- 
 nated Common Forms, The clause of agree- 
 ment for suffering a common recovery, and 
 the declaration of the uses, is the first form, 
 in the first of these volumes; and this 
 single circumstance was the origin of the 
 airangenient of the work. 
 
 After some progress had been made with 
 the observations, the author felt, that if he 
 had sat down to write a systematical treatise 
 on conveyancing, he ought to have given a 
 different form to the work, and treated of 
 it, in a more scientific manner, and by way 
 of elementary deduction. Reflection recon- 
 ciled him to the course he. had adopted. 
 Each chapter, as it stands, is a commentary 
 on the particular assurance of which it 
 treats ; and the author considers that it 
 may be used by others, as he intended it 
 should be used l)y his own pupils. The 
 moment it is determined to adopt a parti- 
 cular assurance, for example, a lease and 
 release, tlie chapter wliich treats of that 
 assurance may be read by the student, with
 
 PREFACE. XVU 
 
 a view to understand the general rules 
 respecting these deeds, and tlie parts of 
 which they consist. When he is preparing 
 his draft, he may consult each division of 
 that part of this chapter, which treats of the 
 form of this assurance ; and thus, at once, 
 with the assistance of his precedent, and 
 with no great exertion of mind, combine 
 the theory and the practice, by which his 
 attention is to be governed. By pursuing 
 the same course, as often as he shall find it 
 necessary, he will ultimately, and at no 
 distant period, render any further recourse 
 to this chapter unnecessary. 
 
 Beyond the form of a deed, is its final 
 object; for instance, the lease and release 
 may be parts of an assurance for suffering a 
 common recovery ; for completing a pur- 
 chase ; for effecting a settlement, &c. The 
 particular learning most interesting, as to 
 common recoveries, will be found under 
 that chapter ; and may be consulted as the 
 occasion shall require. And should the 
 author be blessed with life and healtli, and 
 his labours be favourably received by the 
 profession, he will add chapters which 
 shall contain the appropriate observations 
 on purchases, settlements, &c. Consider- 
 able preparation is made tov/ards the ac- 
 complishment of this object. 
 
 VOL. I. b
 
 XViU PREFACE. 
 
 Another reason, too, which determined 
 the author not to begin from the more ele- 
 mentary parts of conveyancing, was that 
 he found tliis part of the subject, per- 
 formed in a very valuable little manual, 
 under the title of Sheppard^s President of 
 Presidents, This work is now out of print. 
 By way of lecture, the writer of these ob- 
 servations, some time since made consider- 
 able additions to it : and the present 
 impression of his mind is rather to publish 
 a new edition of this little work, with the 
 addition of his notes, than to withhold 
 from the profession a book more valuable, 
 and more useful, than any he could sub- 
 stitute ; and he will take an early oppor- 
 tunity of publishing this little work, and. 
 by that means, supply the deficiency 
 which may appear in the present publi- 
 cation. 
 
 The present publication is intended to 
 consist of two volumes. 
 
 The volume now offered to the profession 
 embraces the following subjects: 
 
 Common Recovery, 
 
 Recovery Deed, 
 
 Fines, 
 
 And an Appendix of Forms of Recovery 
 Deeds. 
 
 Tiie next volume, (which, with the excep-
 
 PREFACE. XIX 
 
 tion of the first chapter, is ready for the 
 press,) will include the heads, 
 
 Deeds to lead and Deeds to declare the 
 Uses of Fines. 
 
 Leases, 
 
 Lease and Release, 
 
 Appointments, 
 
 Bargain and Sale, 
 
 Assignments of C hoses en Action, 
 
 of Terms, 
 
 of attendant Terms, 
 
 Surrenders, and Merger as connected 
 with that learning.* 
 
 When the author shall have leisure to 
 finish another volume, it will comprise prac- 
 tical observations on 
 
 Purchase Deeds, 
 
 Settlements, 
 
 Wills, &c. 
 
 The author has endeavoured as well to 
 form the judgment of the student to the 
 point of title, and enable him to give an 
 opinion on a deed already prepared, as to 
 prepare one with skill. 
 
 To complete a regular course of study 
 on practical subjects, the author has begun 
 and made considerable progress with a trea- 
 
 * It is more than probable that these heads will require two 
 volumes. 
 
 b 2
 
 XX PREFACE. 
 
 tise on Abstracts of Title. This treatise 
 will be of considerable length, and to finish 
 it, in the manner the subject deserves, will 
 require great labour and research. It is in- 
 tended in this work, to shew the points to 
 be regarded in 
 
 1. Preparing an abstract, 
 
 2. Examining it, 
 
 3. Arranging it, 
 
 4. Advising on it, 
 
 And thus to detail the duty of the solicitor 
 and of the counsel, in every branch of the 
 profession. Throughout this work on Ab- 
 stracts,* the author has availed himself of 
 the result of all the practical information 
 he has been able to collect in the course 
 of twenty years' experience ; and has en- 
 deavoured to teach the mind those modes 
 and habits of arrangement, reflection, &c. 
 by which the conveyancer is enabled to 
 accomplish those objects, which are beyond 
 the reach of any mind, unacquainted with 
 the powers of combination, arrangement, 
 classification, &c. 
 
 In the law, as in every other study, the 
 principal end to be attained, is to gain sim- 
 ple ideas ; and for this purpose to separate, 
 
 * Ih'is work oil Abstracts is now published in 3 vols, 
 roj al 8v'>.
 
 PREFACE. XXI 
 
 and as occasion requires, again combine 
 parts of a complex idea ; to distinguish 
 carefully and correctly ; and to give to 
 distinct objects the distinct ideas to which 
 they are separately entitled. This indeed 
 is the principal secret of all science, and 
 distinguishes the great lawyer, from those 
 who have read much and profited little, — 
 who have blended together ideas totally 
 distinct, — have learned cases without un- 
 derstanding their principle, in short, have 
 confused, instead of informinoj themselves. 
 To teach the mode of doing this, as far 
 as it can be taught, and as far as the au- 
 thor's feeble powers will enable him, was 
 an object, thought deserving of the at- 
 tempt ; and the attempt was made in a 
 series of lectures : and thoug^h the author 
 feels how short he has fallen of perfection, 
 his endeavors may call forth the exertions 
 of some one more equal to the perform- 
 ance. While, in every other science, there 
 has been a laudable exertion employed in 
 simplifying the elements of science, and 
 facilitating the attainment of knowledoe, 
 his object has been to assist in tliis plan, 
 as far as it embraces the subject which has 
 employed his attention, and occupied nearly 
 all his time and all his thoughts, for full 
 twenty years.
 
 Xxii PREFACE. 
 
 With the last work he wishes to conclude 
 his labours ; and if he shall lind tie has assisted 
 others in their studies, he will feel abun- 
 dantly gratified, in having fulfilled those 
 duties he owes to the profession, as a reiurn, 
 and grateful tribute, for the liberal patro- 
 naoe with which his huinbleendeavours have 
 been rewarded. Circumstances would have 
 perfectly justified him in consulting his ease, 
 rather than again appearing before the 
 public, and exposing himself to censure or 
 critical observation. Writing from the 
 motive of doing good, and not of interest 
 or vanity ; sacrificing his own best comfort 
 and convenience to a sense of duty ; he 
 will lament to find that he has failed of his 
 object. He has no expectation that his 
 labours are exempt from errors. From his 
 own experience, he is well assured few books 
 on the law can be expected to be free from 
 criticism, and still less from dift'erence 
 of opinion, on practical points. As far as 
 it has been in his power, he has endea- 
 voured to lay himself open to correction. 
 This has been done rather from an anxiety 
 not to mislead, than from the fear of the 
 lash of censure. From the liberality he 
 has uniformly experienced, he is well as- 
 sured, that, from those to whom he is 
 known, he has nothing severe to apprehend.
 
 PREFACE. HXm 
 
 They will pardon the error in weighing the 
 motive, and will be satisfied that in treading 
 on new ground, many errors were to be ex- 
 pected. All he can say, is, that he will be 
 the first to correct any errors, the moment 
 they shall be detected by himself, or com- 
 municated by others. His own justification 
 will be in the fullest conviction, he has not 
 omitted any opportunity of giving the best 
 information in his power, to those whom he 
 wishes to assist. 
 
 As this work was, for the most part, 
 written without any previous collection of 
 authorities, and without any concerted 
 plan, it must in many instances be received 
 as the opinion of the author on points of 
 practice ; and not as a collection of texts 
 from decisions of approved authority. 
 Though a reference is frequently made to 
 decided cases, these have been added 
 merely to afford the reader the opportunity 
 of consulting some cases relating to the 
 point. The great difficulty in many in- 
 stances, has been to find authorities which 
 would exactly support the author's posi- 
 tion. This has happened from the circum- 
 stance^ that the author has taken practical 
 conclusions, rather than the determination 
 of the point of any particular case : and in 
 many instances, the observations are a
 
 XXIV PIIEFACE. 
 
 mere transcript of opinions given in the 
 course of practice. From these observa- 
 tions, the reader will judge with caution, 
 and give to the different propositions only 
 that degree of credit which they shall, on 
 a more extensive research into the law, 
 and on a perusal of books of approved 
 authority, be found to deserve.
 
 TABLE OF LAW TERMS 
 
 FROM THE 
 
 Year 1726) to the Present Time. 
 
 A. D. 
 
 1726 
 
 1727 
 
 1728 
 
 1729 
 
 1730 
 
 1731 
 
 Terms. 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Anno Regni 
 
 12 Geo. I. 
 
 13 Geo. I. 
 
 5 13 Geo. 1. and 
 I 1 Geo. IL* 
 1 Geo. II. 
 
 2 Geo. II. 
 
 2 and 3 Geo. II. 
 
 3 Geo. n. 
 
 3 and 4 Geo. II. 
 
 4 Geo. II. 
 
 5 Geo. II. 
 
 Began. 
 
 Ended. 
 
 Jan. 24 
 
 Feb. 12 
 
 April 27 
 June 10 
 
 May 23 
 
 June 29 
 
 Oct. 24 
 
 Nov. 28 
 
 Jan. 23 
 
 Feb. 13 
 
 April 19 
 
 May 15 
 
 June 2 
 
 June 21 
 
 Oct. 23 
 
 Nov. 28 
 
 Jan. 23 
 
 Feb. 12 
 
 May 8 
 June 21 
 Oct. 23 
 
 June 3 
 July 10 
 Nov. 28. 
 
 Jan. 23 
 
 Feb. 12 
 
 April 23 
 June 6 
 
 May 19 
 June 25 
 
 Oct. 23 
 
 Nov. 28 
 
 Jan. 23 
 
 Feb. 12 
 
 April 15 
 May 29 
 Oct. 23 
 
 May 11 
 
 June 17 
 Nov. 28 
 
 Jan. 23 
 
 Feb. 12 
 
 May 5 
 June 18 
 
 May 31 
 July 7 
 
 Oct. 23 
 
 Nov. 29 
 
 * George II. began bis reign June 11th, 1727,
 
 XXVI 
 
 TABLE OF LAW TERMS. 
 
 A. D. 
 
 1732 
 
 173:3 
 
 1734 
 
 1735 
 
 1736 
 
 1737 
 
 1738 
 
 1739 
 
 1740 
 
 1741 
 
 1742 
 
 174.3 
 
 1744 
 
 Terms. 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Micliaelmas 
 
 Hilary 
 
 Easter 
 
 Trnilty 
 
 IViichachnub 
 
 Hilary 
 
 I'-astcr 
 
 'IVinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Anno Reg-ni 
 
 5 Geo. H. 
 
 5 and 6 Geo. H. 
 
 6 Geo. H. 
 
 6 and 7 Geo. II. 
 
 7 Geo. II. 
 
 8 Geo. II. 
 
 8 and 9 Geo. II. 
 
 9 Geo. II. 
 
 10 Geo. II. 
 
 10 and 11 Geo. H 
 
 11 Geo. II. 
 
 Hand 12 Geo. 11 
 12 Geo. II. 
 
 13 Geo. II. 
 
 13 and 14 Geo. H 
 
 14 Geo, II. 
 
 14 and 15 Geo. II, 
 
 15 Geo. II. 
 
 IGGco. H. 
 
 Began. 
 
 K> and 17 Geo. II, 
 17 Geo. II. 
 
 Jan. 24 
 April 20 
 June 9 
 Oct. 23 
 Jan. 23 
 April 11 
 May 25 
 Oct. 23 
 Jan. 23 
 May 1 
 June 14 
 Oct. 23 
 Jan. 23 
 April 23 
 June 6 
 Oct. 23 
 Jan. 23 
 xMay 12 
 June 25 
 Oct. 23 
 Jan. 24 
 April 27 
 June 10 
 Oct. 24 
 Jan. 23 
 April 19 
 June 2 
 Oct. 23 
 Jan. 23 
 May 9 
 June 22 
 Oct. 23 
 Jan. 23 
 April 23 
 June 6 
 Oct. 23 
 Jan. 23 
 April 15 
 May 29 
 Oct. 23 
 Jan. 23 
 May 5 
 June 18 
 Oct. 2;{ 
 Jan. 24 
 April 20 
 June 3 
 Oct. 24 
 Jan. 23 
 April 11 
 
 Ended. 
 
 Feb. 12 
 ftlay 22 
 June 28 
 
 Nov. 28 
 Feb. 12 
 May 7 
 June 13 
 Nov. 28 
 Feb. 12 
 May 27 
 July 3 
 Nov. 28 
 Feb. 12 
 May 19 
 June 25 
 Nov. 28 
 Feb. 12 
 June 7 
 July 14 
 Nov. 29 
 Feb. 12 
 May 23 
 June 29 
 Nov. 28 
 Feb. 13 
 May 15 
 June 21 
 Nov. 28 
 Feb. 12 
 June 4 
 July II 
 Nov. 28 
 Feb. 12 
 May 19 
 June 25 
 Nov. 28 
 Feb. 12 
 May 1 1 
 June 17 
 Nov. 28 
 Feb. 12 
 May 31 
 July 7 
 Nov. 29 
 Feb. 12 
 May IG 
 June 22 
 Nov. 28 
 Feb. 13 
 May 7
 
 TABLE OF LAW TERMS. 
 
 XXVll 
 
 A. D I 
 1744 
 
 1745 
 
 1746 
 
 1747 
 
 1748 
 
 1749 
 
 1750 
 
 1751 
 
 1752 
 
 1753 
 
 1754 
 
 1755 
 
 1756 
 
 Terms. 
 
 Anno Rcgni. 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Tnnity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 FJilary 
 Easter 
 Trinity 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Tnnity 
 
 Michaelmas 
 
 Hilary 
 
 Faster 
 
 Trinity 
 
 Miclmelmas 
 
 Hilary 
 
 Easter 
 ■ rinity 
 
 Mici aelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 Michaelmas 
 
 17 and 18 Geo. II. 
 
 18 Geo. \l. 
 
 Began. 
 
 19 Geo. IL 
 
 19 and 20 Geo. 11 
 
 20 Geo. II. 
 
 21 Geo. II. 
 
 21 and 22 Geo. II. 
 
 22 Geo. II. 
 
 22and23Geo. II. 
 23 Geo. II. 
 
 24 Geo. II. 
 
 24 and 25 Geo. II 
 
 25 Geo. II. 
 
 25 and 26 Geo. II 
 
 26 Geo. II. 
 
 27 Geo. II. 
 
 28 Geo. II. 
 
 28 and 29 Geo. JI. 
 
 29 Geo. II. 
 
 30 Geo. II. 
 
 Ended. 
 
 May 25 
 Oct. 23 
 Jan. 23 
 May 1 
 June 14 
 Oct. 23 
 Jan. 23 
 April 16 
 May 30 
 Oct. 23 
 Jan. 23 
 May 6 
 June 19 
 Oct. 23 
 Jan. 23 
 April 27 
 June 10 
 Oct. 24 
 Jan. 23 
 April 12 
 May 26 
 Oct. 23 
 Jan. 23 
 May 2 
 June 15 
 Oct. 23 
 Jan. 23 
 Apiil 24 
 June 7 
 Oct. 23 
 Jan. 23 
 April 15 
 May 29 
 Nov. 6 
 Jan. 23 
 May 9 
 June 22 
 Nov. 6 
 Jan. 23 
 May 1 
 June 14 
 Nov. 6 
 Jan. 23 
 April 16 
 May 30 
 Nov. 6. 
 Jan. 23 
 May 5 
 June 18 
 Nov. 6 
 
 June 13 
 Nov. 28 
 Feb. 12 
 May 27 
 July 3 
 Nov. 28 
 Feb. 12 
 May 12 
 June 18 
 Nov. 28 
 Feb. 12 
 June 1 
 July 8 
 Nov. 28. 
 Feb. 12 
 May 23 
 June 29 
 Nov. 28 
 Feb. 13 
 May 8 
 June 14 
 Nov. 28 
 Feb. 12 
 May 28 
 July 4 
 Nov. 28 
 Feb. 12 
 May 20 
 June 26 
 Nov. 28 
 Feb. 13 
 May 11 
 June 17 
 Nov. 28 
 Feb. 12 
 June 4 
 July 11 
 Nov. 28 
 Feb. 12 
 May 27 
 July 3 
 Nov. 28 
 Feb. 12 
 May 12 
 June 18 
 Nov. 28 
 Feb. 12 
 May 31 
 July 7 
 Nov. 29
 
 XXVIU 
 
 TABLE OF LAW TERMS. 
 
 A. D. 
 
 1767 
 
 1758 
 
 1759 
 
 1760 
 
 1761 
 
 1762 
 
 1763 
 
 1764 
 
 1765 
 
 1766 
 
 1767 
 
 1768 
 
 1769 
 
 Terms. 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmiu 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Anno Reg-ni 
 
 30 Geo. H. 
 
 30 and 31 Geo. II, 
 
 31 Gee. II. 
 
 31 and 32 Geo. XL 
 
 32 Geo. II. 
 
 33 Geo. II. 
 
 33 and 34 Geo. II, 
 1 Geo. III. 
 
 2 Geo. HI. 
 
 3 Geo. III. 
 
 4 Geo. III. 
 
 5 Geo. IH. 
 
 6 Geo. IH. 
 
 7 Geo. IH. 
 
 8 Geo. III. 
 
 9 Geo. III. 
 
 Began. 
 
 Jan. 24 
 April 27 
 June 10 
 Nov. 7 
 Jan. 23 
 April 12 
 May 26 
 Nov. 6. 
 Jan. 23 
 May 2 
 June 15 
 Nov. 6 
 Jan. 23 
 April 23 
 June 6 
 Nov. 6 
 Jan. 23 
 April 8 
 May 22 
 Nov. 6 
 Jan. 23 
 April 28 
 June 11 
 Nov. 6 
 Jan. 24 
 April 20 
 June 3 
 Nov. 7 
 Jan. 23 
 May 9 
 June 22 
 Nov. 6 
 Jan. 23 
 April 24 
 June 7 
 Nov. 6 
 Jan. 23 
 April 16 
 May 30 
 Nov. 6 
 Jan. 23 
 May 6 
 June 10 
 Nov. 6 
 Jan. 23 
 April 20 
 June 3 
 Nov. 7 
 Jan. 23 
 April 12 
 
 Ended* 
 
 Feb. 12 
 May 23 
 June 29 
 Nov. 28 
 Feb. 13 
 May 8 
 June 14 
 Nov. 28 
 Feb. 12 
 May 28 
 July 4 
 Nov. 28 
 Feb. 12 
 May 19 
 June 25 
 Nov. 28 
 Feb. 12 
 May 4 
 June 10 
 Nov. 28 
 Feb. 12 
 May 24 
 June 30 
 Nov. 29 
 Feb. 12 
 May 16 
 June 22 
 Nov. 28 
 Feb. 13 
 June 4 
 July 11 
 Nov. 28 
 Feb. 12 
 May 20 
 June 20 
 Nov. 28 
 Feb. 12 
 May 12 
 June 18 
 Nov. 28 
 Feb. 12 
 June I 
 July 8 
 Nov. 28 
 Feb. 12 
 May 16 
 June 22 
 Nov. 28 
 Feb. 13 
 May 8
 
 TABLE OF LAW TERMS. 
 
 XXIX 
 
 AD. 
 1769 
 1770 
 
 1771 
 
 1772 
 
 1773 
 
 1774 
 
 1775 
 
 1776 
 
 1777 
 
 1778 
 
 1779 
 
 1780 
 
 1781 
 
 Terms. 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilaiy 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Anno Regfiii 
 
 9 Geo. in. 
 
 10 Geo. HI. 
 
 11 Geo. HI. 
 
 12 Geo. IH. 
 
 13 Geo. IH. 
 
 14 Geo. III. 
 
 15 Geo. HI. 
 
 16 Geo. III. 
 
 17 Geo. IH. 
 
 18 Geo. HI. 
 
 19 Geo. IH. 
 
 20 Geo. IH. 
 
 21 Geo. HI. 
 
 Began. 
 
 Ended. 
 
 22 Geo. III. 
 
 May 26 
 Nov. 6 
 Jan. 23 
 May 2 
 June 15 
 Nov. 
 Jan. 23 
 April 17 
 May 31 
 Nov. 6 
 Jan. 23 
 May 6 
 June 19 
 Nov. 6 
 Jan. 23 
 April 28 
 June li 
 Nov. 6 
 Jan. 24 
 April 20 
 June 3 
 Nov. 7 
 Jan. 24 
 May 3 
 June 16 
 Nov. 6 
 Jan. 23 
 April 24 
 June 7 
 Nov. 6 
 Jan. 23 
 April 16 
 May 30 
 Nov. 6 
 Jan. 23 
 May 0. 
 June 19 
 Nov. 6 
 Jan. 23 
 April 21 
 June 4 
 Nov. 6 
 Jan. 24 
 April 12 
 May 26 
 Nov. 6 
 Jan. 23 
 May 2 
 June 15 
 Nov. 6 
 
 June 14 
 
 Nov. 28 
 Feb. 12 
 May 28 
 July 4 
 Nov. 28 
 Feb. 12 
 May 13 
 June 19 
 Nov. 28 
 Feb. 12 
 June 1 
 July 8 
 Nov. 28 
 Feb. 12 
 May 24 
 June 30 
 Nov, 29 
 Feb. 12 
 May 16 
 June 22 
 Nov. 28 
 Feb. 13 
 May 29 
 July 5 
 Nov. 28 
 Feb. 12 
 May 20 
 June 26 
 Nov 28 
 Feb. 12 
 May 26 
 June IS 
 Nov. 28 
 Feb. 12 
 June 1 
 July 8 
 .Nov. 28 
 Feb. 12 
 May 17 
 June 23 
 Nov. 29 
 Feb. 12 
 May 8 
 June »4 
 Nov. 28 
 Feb. 12 
 May 28 
 July 14 
 Nov. 28
 
 XXX 
 
 TABLE OF LAW TERMS. 
 
 A. D. 
 
 1782 
 
 1783 
 
 1784 
 
 1785 
 
 17&() 
 
 1787 
 
 1788 
 
 1789 
 
 1790 
 
 1791 
 
 1792 
 
 1793 
 
 1791 
 
 Terms. 
 
 Hilary 
 
 Easter 
 
 T.inity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Milchaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Milchaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Milchaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 I-laster 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easier 
 
 Anno Regni. 
 
 22 Geo. III. 
 
 23 Geo. III. 
 
 24 Geo. III. 
 
 25 Geo. III. 
 
 26 Geo. III. 
 
 27 Geo. III. 
 
 28 Geo. III. 
 
 29 Geo. III. 
 
 30 Geo. III. 
 
 31 Geo. III. 
 
 32 Geo. III. 
 
 33 Geo. 111. 
 
 34 Geo. 111. 
 
 Beffan. 
 
 Jan. 23 
 April 17 
 May 31 
 Nov. 6 
 Jan. 23 
 May 7 
 June 20 
 Nov. 6 
 Jan. 23 
 April 28 
 June 11 
 Nov. 6 
 Jan. 24 
 April 13 
 May 27 
 Nov. 7 
 Jan 23 
 May 3 
 June 16 
 Nov. 6 
 Jan 23 
 April 25 
 June 8 
 Nov. 6 
 Jan. 23 
 April 9 
 May 23 
 Nov. 6 
 Jan. 23 
 April 29 
 June 12 
 Nov. 6 
 Jan. 23 
 April 21 
 June 4 
 Nov. 6 
 Jan. 24 
 May 11 
 June 24 
 Nov. 7 
 Jan. 23 
 April 25 
 June 8 
 Nov. 6 
 Jan. 23 
 April 17 
 May ol 
 Nov. 6 
 Jan. 23 
 May 7 
 
 Ended. 
 
 Feb. 12 
 May 13 
 June 19 
 Nov. 28 
 Feb. 12 
 June 2 
 July 9 
 Nov. 28 
 Feb. 12 
 May 24 
 June 30 
 Nov. 29 
 Feb. 12 
 May 9 
 June 15 
 Nov. 28 
 Feb. 1.3 
 May 29 
 July 5 
 Nov. 28 
 Feb. 12 
 May 21 
 June 27 
 Nov. 28 
 Feb. 12 
 May 5 
 June 11 
 Nov. 28 
 Feb. 12 
 May 25 
 July 1 
 Nov. 28 
 Feb. 12 
 May 17 
 June 23 
 Nov. 29 
 Feb. 12 
 June 6 
 July 13 
 Nov. 28 
 Feb. 13 
 May 21 
 June 27 
 Nov. 28 
 Feb. 12 
 May 13 
 Julie 19 
 Nov. 28 
 Feb. 12 
 June 2
 
 TABLE OF LAW TERMS. 
 
 XXXI 
 
 A. D. 
 1794 
 1795 
 
 1796 
 
 1797 
 
 1798 
 
 1799 
 
 1800 
 
 1801 
 
 1802 
 
 1803 
 
 1804 
 
 1805 
 
 1806 
 
 Terms. 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trintiy 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 iMicWaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 T-inity 
 
 Michaelmajs 
 
 Anno Regni. 
 
 34 Geo. HI. 
 
 35 Geo. HI. 
 
 36 Geo. III. 
 
 37 Geo. III. 
 
 .38 Geo. HI. 
 
 39 Geo. III. 
 
 40 Geo. III. 
 
 41 Geo. HI. 
 
 42 Geo. IH. 
 
 43 Geo. III. 
 
 44 Geo. Ill, 
 
 45 Geo. HI. 
 
 46 Geo. HI. 
 
 Beg-an. 
 
 47 Geo. III. 
 
 June 20 
 Nov. 6 
 Jan. 23 
 April 22 
 June 5 
 Nov. 6 
 Jan. 23 
 April 13 
 May 27 
 Nov. 7 
 Jan. 23 
 May 3 
 June IG 
 Nov. 6 
 Jan. 23 
 April 25 
 June 8 
 Nov. 6 
 Jan. 23 
 April 10 
 May 24 
 Nov. 6 
 Jan. 23 
 April 30 
 June 13 
 Nov. 6 
 Jan. 23 
 April 22 
 June 5 . 
 Nov. 6 
 Jan 23 
 May 5 
 June 18 
 Nov. 6 
 Jan. 24 
 April 27 
 June 10 
 Nov. 7 
 Jan. 23 
 April 18 
 June 1 
 Nov. 6 
 Jan. 23 
 May 1 
 June 14 
 Nov. () 
 Jan. 23 
 April 23 
 June 6 
 Nov. 6 
 
 Ended. 
 
 July 9 
 Nov. 28 
 Feb. 12 
 May 18 
 June 25 
 Nov. 28 
 Feb. 12 
 May 13 
 June 15 
 Nov. 28 
 Feb. 13 
 May 29 
 July 5 
 Nov. 28 
 Feb. 12 
 May 21 
 June 27 
 Nov. 28 
 Feb. 12 
 May 6 
 June 12 
 Nov. 28 
 Feb. 12 
 May 26 
 July 2 
 Nov. 28 
 Feb. 12 
 May 18 
 June 25 
 Nov. 28 
 Feb. 12 
 May 31 
 July 7 
 Nov. 29 
 Feb. 12 
 May 23 
 June 29 
 Nov. 28 
 Feb. 13 
 May 14 
 June 20 
 Nov. 28 
 Feb. 12 
 May 27 
 July 3 
 Nov. 28 
 Feb. 12 
 May 19 
 June 25 
 Nov. 28
 
 XXXll 
 
 TABLE OF LAW TERMS. 
 
 A. D. 
 
 1807 
 
 1808 
 
 1809 
 
 1810 
 
 1811 
 
 1812 
 
 1813 
 
 1814 
 
 1815 
 
 181G 
 
 1817 
 
 1818 
 
 Terms. 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Blister 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 Easter 
 
 Trinity 
 
 Michaelmas 
 
 Hilary 
 
 l-laster 
 
 Trinity 
 
 Michaelmas 
 
 Anno Regni. 
 
 47 Geo. IH. 
 
 48 Geo. III. 
 
 49 Geo. HI. 
 
 50 Geo. HI. 
 
 51 Geo. in. 
 
 52 Geo. III. 
 
 53 Geo. HI. 
 
 54 Geo. III. 
 
 55 Geo. 111. 
 
 56 Geo. HI. 
 
 57 Geo. HI. 
 
 58 Geo. HI. 
 
 Began. 
 
 Ended. 
 
 59 Geo. III. 
 
 Jan. 23 
 April 15 
 May 29 
 
 Nov. a 
 
 Jan. 23 
 May 4 
 June 17 
 Nov. 7 
 Jan. 23 
 April 19 
 June 2 
 Nov. 6 
 Jan. 23 
 May 9 
 June 22 
 Nov. 
 Jan. 23 
 May 1 
 June 14 
 Nov. 
 Jan. 23 
 April 15 
 May 29 
 Nov. G 
 Jan. 23 
 May 5 
 June 18 
 Nov. 6 
 Jan. 24 
 April 27 
 June 10 
 Nov. 7 
 Jan. 23 
 Aprill2 
 May 2G 
 Nov. G 
 Jan. 23 
 May 1 
 June 14 
 Nov. G 
 Jan. 23 
 April 23 
 JuneG 
 Nov. C 
 Jan. 23 
 April 8 
 May 22 
 Noy. G 
 
 Feb. 12 
 May 11 
 June 17 
 
 Nov. 2« 
 Feb. 12 
 May 30 
 July G 
 Nov. 28 
 Feb. 13 
 May 15 
 June 21 
 Nov. 28 
 Feb. 12 
 June 4 
 July II 
 Nov. 28 
 Feb. 12 
 May 27 
 July 3 
 Nov. 28 
 Feb. 12 
 May 11 
 June 17 
 Nov. 28 
 Feb. 12 
 May 31 
 July 7 
 Nov. 29 
 Feb. 12 
 Mav 23 
 June 29 
 Nov. 28 
 Feb. 13 
 May 8 
 June 14 
 Nov. 28 
 Feb. 12 
 May 27 
 Julys 
 Nov. 28 
 Feb. 12 
 May 19 
 June 25 
 Nov. 28 
 Feb. 12 
 May 4 
 June 10 
 Nov. 2S
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 OF COMUON RECOVERIES AND THEIR OPERATION, AND THK 
 FORM OF RECOVERY DEEDS. 
 
 PAQ8, 
 
 OF recoveries and their operation . . 1 
 
 Observations on the operation of fines as dijstinguished 
 
 from recoveries ... IS 
 
 General observations continued . . 16 
 
 Of recoveries of equitable estates . . 22 
 
 On the parties to a recovery, and first of the demandant 29 
 Of the tenant . . . .30 
 
 By what means the tenant to the writ of entry is made 34 
 
 Who shall be a sufficient tenant to a Writ of entry, in point 
 
 of estate . ... 42 
 
 Who shall be said to have the freehold . 48 
 
 Who in point of estate, &c. can make a sufficient tenant 
 
 to the writ of entry ; and to what extent in point of share 50 
 At what time the tenant must have the freehold . 61 
 
 Instances in which a recovery will be good, although the 
 actual freehold of the particular land, is not in the 
 person named as tenant in the writ of entry . 65 
 
 Regulations by statute concerning the evidence of the re- 
 covery from the deed making the tenant . 74 
 Of cases in which the law does, and does not admit of the 
 presumption, that there was a good tenant to the writ of 
 entry .... 77 
 Of recoveries operating by estoppel, without a good tenant 
 to the writ of entry : and of the necessity of the concur- 
 rence, in a second recovery, or the deeds preparatory 
 thereto, of a tenant in a former recovery ; with observa» 
 
 VOL, I. C
 
 XXXIV TABLE OF CONTENTS. 
 
 fAGC. 
 
 tiotis by vvaj' of caution, to guard against the inconve- 
 nience sometimes exjierienced from the present practice 86 
 Of the concurrence of persons who have particular estates, 
 to enable a remainder-nian, or reversioner, in tail, to 
 suffer a recovery ; and the cautions under which such 
 concurrence may be safely given . .107 
 
 Cautions when it is doubtful whether a person who in- 
 tends to suffer a recovery has an estate for life or in 
 tail ; or when there are, or are supposed to be, contin- 
 gent remainders to be preserved • . Ill 
 On voucher . , . 118 
 Of recoveries with single voucher . 122 
 Of recoveries with double voucher . 125 
 Of recoveries with treble voucher . . 127 
 By what tenants in tail a recovery may be suffered with 
 
 effect ; and to what extent in point of share . 138 
 
 Of the necessity of a seisin in the demandant, before any 
 
 uses can arise under the recovery . . 149 
 
 Of points relating to the execution . . 151 
 
 Observations peculiarly applicable to lands of copyhold 
 tenure . ^ . 153 
 
 Of the Recovery Deed. 161 
 
 Of the date . , . 163 
 
 Of the parties . . . 165 
 
 Of the recitals . . . 177 
 
 Of the testatum clause . . . 179 
 
 Of the operative words . . . 182 
 
 Of the parcels . . . 184 
 
 Of the habendum . . 187 
 
 Of the use . . . 188 
 
 Of the agreement to suffer the recovery . I93 
 
 Of the declaration of uses . 194
 
 TABLE OF CONTENTS. 
 
 XXXV 
 
 CHAPTER II. 
 
 ON FINES, 
 
 The parties to a fine 
 
 Of the several sorts of Fines. 
 
 1. A fine sur conuzance de droit come ceo, &c. 
 
 2. A fine sur grant et render 
 
 3. A fine sur conuzance de droit tantum 
 
 4. A fine sur concessit 
 
 200 
 
 201 
 210 
 212 
 213 
 
 OF fines at conamon law, and with proclamations 213 
 The geneml objects to which fines are directed, namely 
 
 1. As a convejance by married women . 214 
 
 2. As a conreyance by issue in tail . 21G 
 
 3. To gain a title, or confirm one, by non-claim 221 
 
 What persons are barred by non-claim on a fine, and 
 
 when the bar will be complete . 234 
 
 Exception as to the king, and certain ecclesiastical cor- 
 porations . . . 235 
 Exception as to infants, persons of unsound mind, j^we* 
 
 covert, persons out of the realm, and imprisoned persons 23G 
 By whom a fine may be levied . . 251 
 
 To whom a fine may be levied . . 205 
 
 In what courts a fine may be levied . . 266 
 
 On what writs . . . 295 
 
 Of what parcels . . , 269 
 
 By what names . . . 270 
 
 The parts of a fine . . 273 
 
 At what time a fine is complete as a conveyance 291 
 
 When complete as operating under the statute of procla- 
 mations . . . 295 
 
 The Difference between a Fine. 
 1. As a conveyance 
 
 c 2 
 
 296
 
 XXXri TABLE OF CONTENTS. 
 
 2. As an estoppel . . :j01 
 
 3. Asa bar to issue in tail , . 3(M5 
 
 4. As a bar by non-claim . . 30J^ 
 
 On what fines uses may be declared , 310 
 
 By whom the uses of a fine may be declared 311 
 
 Of resulting uses . . 31C 
 
 Of deeds to lead, and to declare the uses of a fine 318 
 
 APPENDIX. 
 
 PRECEDENTS. 
 
 1. Recovery deed of lands in diflerent counties, for the 
 joint lives of the tenant and vouchee . 321 
 
 2. Conveyance to be made previous to suffering a reco- 
 very, or executing a recovery deed, by a person when it 
 is doubtful whether he be tenant for life or in tail : and 
 when, if he be tenant for life there is a contingent re- 
 mainder to one of his sons. The object being to bar 
 the estate-tail, if any ; and to protect the estate for life, 
 if any, from the consequences of forfeiture ; and in that 
 case to preserve the contingent reiBainders, if any, from 
 destruction . . . 332 
 
 3. Limitations of use in a recovery deed, to protect 
 against forfeiture ; the defect appearing on the recovery 
 deed . . . Ji36» 
 
 4. Recovery deed to uses to prevent a title of dower, suf- 
 fered by the conveying ])arty in the form, No. 2. 338 
 
 5. Release of lands, partly freehold, and partly of the te- 
 nure of ancient demesne, that common recoveries may 
 
 be suffered thereof to uses : with a release of right 34ft 
 
 0, Recovery d^ed for three recoveries, iu different coun-
 
 TABLE OF CONTENTS. XXXVll 
 
 PACE. 
 
 ties, of shares in the New River, when the object is to 
 preserve contingent remainders, and also to prevent 
 merger : and correct the intention of a testator in the 
 dispositions made by his will . . 370 
 
 7. Release in fee «f three undivided sixth parts, being a 
 moiety, of a messuage, &c. in T. and S. in the parish of 
 S. in the county of Y. that a common recovery may be 
 suffered thereof, to bar the estates-tail, if any, and to 
 extifiguieb the title of dower of the wife of one of the 
 owners : with a declaration, as to one sixth part, of uses 
 to prevent a new title of dower ; and as to the two re- 
 maining sixth parts, of uses in favour of the owners, 
 
 in fee . . . aSO 
 
 8. Mode of introducing the limitation of uses declared 
 of a recovery, suffered by some only of several tenants in 
 common in tail, with cross remainders, so as to preserve 
 the identity of title . . 402 
 
 9. Bargain and sale of divers manors, &c. for the joint lives 
 of the tenant in tail and bargainee, that a common re* 
 covery may be suffered thereof, to the use of the tenant 
 
 in tail, in fee . . 403 
 
 10. Recovery deed by lease and release, with various uses, 
 
 by way of family arrangement . . 41 1 
 
 11. Recovery deed for the joint lives of the tenant for life, 
 and tenant in the writ of entry; wliere husband and 
 wife, seised in right of the wife for her life, join in the 
 conveyance to the use of different persons as tenants in 
 different writs of entry, the lands being partly in Eng- 
 land, and partly in Wales : and uses are declared in 
 confirmation of the estate for life, &c. , 444 
 
 12. Uses for confirmation of former assurances 453 
 
 13. Uses and provisions for confirming a rent-charg^, and 
 *o as to continue it in equity, though it should be ex- 
 tinguished at law . . * 454 
 
 14. Limitation of uses, adapted to tlie circumstaaces of a
 
 XXXVlll TABLE OF CONTENTS. 
 
 recovery suffered by two persons ; one having the free- 
 hold, and the other a remote estate-tail . 456 
 
 15. Uses declared of a recovery suffered by a daughter, 
 tenant in tail in remainder for the time being, whose 
 estate was liable to be postponed by the birth of a son : 
 confirming all prior estates . , 461 
 
 16. Uses of a recovery, suffered by a person having the 
 freehold and a remcite-estate tail ; confirming the prior 
 estates, and after giving the former tenant in tail a 
 power of appointnjent, again limiting the lands to him 
 
 in tail, and restoring the subsequent estates 4G4 
 
 17. Deed on substituting another person as demandant in 
 the place of the intended demandant, who died before 
 
 the recovery was suffered. . . 46(5 
 
 38. Demise to protect against forfeiture, on suffering a 
 common recovery . . 46S 
 
 19. Another form . . 472 
 
 20. Habendum, creating uses for a term, to protect 
 against forfeiture, remainder to a tenant for suffering a 
 recovery . . . 475 
 
 21. Demise for a term, to operate by estoppel, and in 
 trust to attend the inheritance ; and covenant to levy 
 a fine sur concesserunt, in confirmation of the term, and 
 
 to sufFer a common recovery > . 470 
 
 22. The £100,000 clause, being a clause in a recovery 
 deed to cease the estate limited by a tenant for life, 
 for the purpose of assisting a tenant in tail, in suffering 
 
 a recovery . . . 480 
 
 23. Clause declaratory of the intention and agreement to 
 suflVr a common recovery, and declare the uses tliereof, 
 uith some of the more ordinary variations . 481 
 
 24. A more concise form of a declaration and agreement 
 
 to suffer a common recovery , . 487 
 
 25. Short declaration of uses . . 488 
 20. Mode of framing » recovery deed, when the uses of
 
 TABLE OF CONTENTS. XXXIX 
 
 PACE. 
 
 the recovery are declared in tliat part which contains the 
 conveyance of the estate. . . 489 
 
 27. Anotlier form . . .491 
 
 28. Covenant to suffer a couniion recovery . 492 
 
 29. Form of recital of desire of the tenant of a remote 
 estate- tail to suffer a recovery . . 494 
 
 30. Expediency of recovery . • ih. 
 
 31. Request to joia in suffering a common recovery 495 
 
 32. Short recital of the creation of the estate-tail,- and 
 agreement to suffer a recovery for the purpose of effecting 
 
 a partition . . • 49G 
 
 33. Deduction of title into the intended vouchee 497 
 
 34. Intention to suffer recovery, and agreement of tenant 
 
 for life to join in recovery deed , . 498 
 
 35. Deduction of title into the intended vouchee, and de- 
 termination to suffer recovery . . 499 
 
 36. Doubts of the validity of a former recovery, and agree- 
 ment to suffer another recovery . . 500 
 
 37. Determination to suffer a recovery, and consent of 
 dowress to join . . . 501 
 
 38. Recital of two bargains and sales, and two recoveries 502 
 
 39. Recital of recovery deeds, and recovery . 503 
 
 40. Recital of recovery suffered . . 504 
 
 41. Short reference to a recovery suffered, and the uses 
 thereof . . . ib, 
 
 42. Mode of introducing the recital of a lease, release, 
 fine, and recovery, and declaration of the uses there- 
 of .. . 505 
 
 43. Recital of recovery suffered after thedeathoftenantforlife ib. 
 
 44. Recital of a recovery suffered with treble voucher . 506 
 45 Recital of recovery suffered of customary lands, &c. 507 
 
 46. That it is expedient that a tenant in a former recovery 
 deed should join in a new recovery deed , 508 
 
 47. Agreement to comprise otlier lands in the reco-
 
 bd TAfiLE OF CONTENTS. 
 
 PAGI. 
 
 very, and declare the uses of these lands in another 
 deed . . . 509 
 
 48. Recital of lease, release, and common recovery, and 
 declaration of the uses thereof . . 510 
 
 49. Recital of recovery suffered pursuant to agreement » 511 
 
 50. Recovery voidable for want of the concurrence of ten- 
 ant for life; expediency of another recovery, consent of 
 necessary parties to join . . 512 
 
 51. Recital of bargain and sale, and common recovery, 
 and declaration of the uses thereof . . 513 
 
 &2. Recital of indenture of lease, release, and common re- 
 covery, and declaration of uses . . 614
 
 AN 
 
 INDEX OF CASES 
 
 Cited in this Volume. 
 
 ABBOTu.Burton 188,204, 318 
 Abell and Smith 201 
 
 Abney's case 254 
 
 Alleyn v. Sayer 233 
 
 Allington and Boteler 22 
 
 Altham v, Anglesey 3^, 161, 
 189, 317 
 Alsop and Lellingham 38 
 
 Anglesey and ALtham 36, 161, 
 189, 317 
 Apprise v. Apprise 142 
 
 Armstrong v. VVolsey 194, 
 
 203 
 Argol V. Cheney 195, 317 
 Archer's case 218, 219, 307 
 Ashby and Gulliver 2, 10 
 Ash and Townsend 225, 226, 
 
 264 
 Ashley and Clifford 233, 262 
 Atkyus {Taylor ex dem.) v. 
 Horde 38, 59, 60, 144 
 
 B. 
 
 Bagot and Salisbury 262 
 
 Baker v. Bayley 18 
 
 V. Willis 220, 307 
 
 V. Pritchard alias 
 
 Hosier 253, 264 
 
 Baldwere xind Roe dem. 
 
 Crowe 197, 198, 318 
 
 Bamfield and Zouch 218, 306 
 Barber v. Nun 293 
 
 Barker v. Keat 89, 180 
 
 Barker and Seymour 213 
 
 PAOI. 
 
 Barley's case 84 
 
 Barnardiston and Carter 258 
 Bartholomew v. Belfield 234 
 Barton v. Lever 5, 126 
 
 Barton's case 140 
 
 Baskett v. Pierce 233 
 
 Bassett v. Basset 45 
 
 Basse tt and Morgan «. Manx- 
 el, 6, 121, 126, 128, 131,139 
 Bayley and Baker 18 
 
 Beaumont's case 50, 143, 220, 
 307 
 Beaumont and Villa rs 20 
 
 Beck V. Welsh 16 
 
 Becket's case 813 
 
 Beckwith's case 311, 313, 314 
 Bedford's (Earl) case 204 
 
 Belfield and Bartholomew 234 
 Bellamy and Johnson 259 
 
 Bennet v. Vade 97 
 
 Benson v. Hodson 2, 11, 16 
 Berrington c. Parkhur^t 247 
 Biddulph and Shelburne 
 
 10, 
 
 11 
 
 5 
 
 60 
 
 18 
 
 Blackett and Saville 
 Black wall and Lemon 
 Blake V. Blake 
 Blake (Doerfew.) w.Luxtonl8, 
 
 40 
 Blizard and Garrett 201 
 
 Blyth a7id Lord Grenvillc 22 
 Board and Jones and Good- 
 
 wright ex dem. Hare 229 
 Bohun's case 277
 
 xiii 
 
 INDEX OF CASES. 
 
 PAfiE. 
 
 Boteler v. Allin£?ton 22 
 
 Bourne and H u ut 202, 2 1 3 
 
 250, 269, 287, 296 
 
 Bradstock v. Soovell 308 
 
 Bradlyn v. Ord 237, 238 
 
 Braybrook's case 226 
 
 Bredon's case 107,202,205, 
 
 299, 312 
 
 Brent's case 52 
 
 Bridges v. Bridges 158 
 
 Bridges (Goodtitle ex dem.) 
 
 V. Dukeof'Chandos TO, 77, 
 
 78 
 
 Brougham and Pearson 273 
 
 Brown ayid Pells 2, 3, 9, 
 
 Bruyn's case 272 
 
 Bridges arid Phillips 22, 24 
 
 Buckler's case 208, 209, 201, 
 
 302, 303, 305 
 
 Buckmere's case 172 
 
 Bull V. Wyatt 99 
 
 Burnaby v. Griffin 35, 215 
 
 Burron and Low 17, 40 
 
 Burton and Abbott 198, 204, 
 
 318 
 Bury V. Taylor 196 
 
 C. 
 Capel's case 16, 21 
 
 Carhampton i". Carhampton 
 207, 226, 229, 300 
 Carpenter and Hovvlett 235 
 Car V. Singer 154 
 
 Carter r. Bardnardiston 258 
 Cartw right t". Pultney 253, 
 
 264 
 Cavendish v. Worsley 251 
 Champernown and North 22 
 Chandos (Duke of) v. Talbot 5 
 
 and Goodtitle ex 
 
 dem. Bridges 70, 77, 78 
 Chaniitl anrf Peck 123 
 
 Cha|)lin v. Chaplin 3 
 
 Cliupple and Wasteneys 18 
 Cheney v. Ihdl 21 
 
 Cheney and Ar-ol 195, 317 
 Clicsterfield's (Earl) case 18 
 Cholinley's (Sir Hugh) rase 
 16, 146 
 Clarke an(2 Kjnastou 10^ 11 
 
 Clarke and Machel 
 and Doe 
 
 13, 204 
 45 
 
 Clements v. Langharne 275, 
 291 
 
 Clere's (Sir Edward) case 204 
 
 Gierke v. Powel, or llowel 207, 
 247 
 
 Clerk and Salvin 
 
 Clyiiord and Smith 
 
 t'. Asbley 
 
 Clifton V. Jackson 
 Clithero v. Franklin 
 Clubb and Hughes 
 Cockman v, Farrer 
 Comyns or 
 Robinson 
 
 240, 310 
 
 111,141, 
 
 202 
 
 233, 262 
 
 147 
 
 123 
 
 148 
 
 249 
 
 Cuming and 
 
 23, 24, 55 
 
 Compere (Doe dem.) v. 
 
 Hicks 207, 300 
 
 Cookes and Wynne 22 
 
 Complin and Goddard 16 
 
 Copley and Grantham 154 
 Cotton's case 241 
 
 Croft V. Howell 224, 235 
 
 Crowe (Roe dem. v.) Baldwere 
 197, 198, 318 
 Cudmore and Symonds 10, 11 
 Culpepper and Morgan 170 
 Cuming or Comyns and 
 
 Robinson 23, 34, 55 
 
 Cuppledike's case 55, 57, 125 
 
 D. 
 Damport v. Wright 229 
 
 Darley v. Darley 196 
 
 Davies' case 258 
 
 Dell V. Higden 154 
 
 Derby's (Earl) case 146 
 
 Derby (Earl) and Johnson 65 
 Dillon V. Leman 241 
 
 Dister v. Dister 196 
 
 Doe V. Clarke 45 
 
 V. Halley 16, 141 
 
 V. Hicks 207, 300 
 
 V. Jones 242 
 
 V, Bishop of Llandaff 89 
 
 V. Luxton 18, 46 
 
 V. Perryn 52 
 
 .■ V. Prosser 205 
 V. River* 13
 
 INDEX OF CASES. 
 
 xliii 
 
 PAGE. 
 
 Doe r. Whitehead 13, 205, 
 20C 2D9 
 
 V. Wichelo \Vi, 204 
 
 Dormer (Smith dem.) v. 
 Park hurst 38, 43, 48, 223, 
 22G,301 
 Dover and Stratford 140 
 
 Dowse V. Reeve 273 
 
 Driver v. Edgar 2, 11 
 
 V. Hussey 299 
 
 Drummond v. Ludlow 213 
 Drury and VVoodliffe 204 
 
 Duke y. Smith 98 
 
 Duncombe w. Wingfield 219 
 Dunn V. Green 154 
 
 E. 
 Eare v. Snow 4, 51, 120, 128, 
 131 
 
 Easton and Faverly 271 
 
 Edgar and Driver 2, 1 1 
 
 Edwards v. Rogers 208, 296 
 
 Edwards and Yick 209, 302, 
 
 304 
 
 Effingham, (Earl of) and 
 
 Keen ex dem. Earl of 
 
 Portsmouth 78 
 
 Elliott's case 253 
 
 Evelyn's and Lloyd 37 
 
 Everal v. Smalley 154 
 
 Eyston V. Studd 20 
 
 Eyton V. Eyton 21, 271, 272 
 
 F. 
 
 Fairclaim v. Shackleton 265 
 Farmer's case 292 
 
 Farnaby and Smith 3, 4 
 
 Farrer and Cockman 249 
 
 Faulkner an </ Morse 301 
 
 Faveley v. Easton 271 
 
 Fenn w. Smart 247 
 
 Fenwick ». Mitford 204, 318 
 Fermor's case 223, 301 
 
 Fermor and Ferrers and 
 
 Curson 11 
 
 Ferrers and Curson v. Fer- 
 mor ib. 
 Ferrers and Nightingale 195, 
 317 
 Fielding and Harris 43 
 
 PAGE. 
 
 Finch's (Sir Moyle) case 303 
 FitzwiUiam's case 125 
 
 Focus V. Salisbury 207, 226, 
 232, 233, 258, 260, 300, 301 
 Ford V. Grey 265 
 
 Forrester and Goodright 188, 
 206, 208, 225, 240 
 Forse and Zouch 44 
 
 Foster v. Pitfall 20, 148 
 
 Fowier and Hodges 194, 317 
 Franklin and Clithero 123 
 Freoker and Norton 18 
 
 G. 
 
 Garrett v. Blizard 201 
 Goddard v. Complin 16 
 Goodright v. Forrester 188, 
 206, 208, 225, 240 
 Goodright v. Mead 11,21, 
 142, 218 
 ex dem. Hare v. 
 
 Board and Jones 229 
 
 Goodiitle, ex dem. Bridges v. 
 
 Dukeof Chandos 70,77,78 
 Goodwyn v. Goodwyn 52 
 
 Grant's case 259, 261, 30G 
 Grafton, (Duke of) v. Hanmer 
 
 18 
 Grantham v. Copley 154 
 
 Green v. Proud 77 
 
 Green and Dunn 154 
 
 Greneley's case 21, 50 
 
 Grenville (Lord) v. Blyth 22 
 Grenville and Knight 226 
 
 Greenville ant/ Warren ex dem. 
 
 Webb 77, 82 
 
 Grey and Ford 265 
 
 Grey v. Manock 46 
 
 Griffin and Burnaby 35, 215 
 Griffiths and Roe 06 
 
 Gulliver v, Ashby 2, 10 
 
 H. 
 
 Hale and Wotton 289 
 
 Hall and Cheney 21 
 
 Hal I ey anrf Doe 16,141 
 
 Hanmer and Duke of Grafton 
 
 18 
 Hare (Goodright ex dem.) v. 
 
 Board and Jones 229 
 
 Harnies v. Micklethwaite 292
 
 xliv 
 
 INDEX OF CASES. 
 
 PAGE. 
 
 Harrington v. Smith 148 
 
 Harris v. Fielding 43 
 
 Harvey v. Parker 158 
 
 Hayward and Page 2, 3, 10, 
 121, 131, 134, 135, 130 
 Heliot V. Saunders 271 
 
 Hellet V. Saunders 125 
 
 Hemsley v. Price 263 
 
 Heseltine and Wheeler 273 
 Keylock and Hulm 224, ^1 
 Heydon's case 153 
 
 Hicks and Doe, ex d^m. Com- 
 pere 207, 300 
 Higden and Dell 154 
 Hodges V. Fowler 194, 317 
 Hodson and Benson 2, 11, 16 
 Horde a7id Taylor, ex dem. 
 Atkyns 38, 59, 60, 144 
 Howell and Croft 224, 235 
 Howlett V. Carpenter 235 
 Hudson and Otway 156, 157 
 Hughes V. Clubb 148 
 Hulm V. Keylock 224, 241 
 Humphrey and Laughter 19, 
 147 
 Hungate's case 251,252 
 Hunt v. Bourne 202, 213, 250, 
 2G9, 287, 296 
 Hunt V. King 298 
 Hussey and Driver 299 
 Hynde's case 38 
 
 I— J. 
 
 Jackson and Clifton 147 
 
 Jackson and Oatts 52 
 
 Jenkins v. Pritchard 213 
 
 Jennings and Mallery 38 
 
 Incledon »\ Norchotc 4 
 
 Johnson v. Bellamy 259 
 Johnson v. I'iirl of Derby 65 
 
 Jolift'e and Milbunke 273 
 
 Jones and Doe 242 
 
 . r. Leigh 190 
 
 f. Morley 194 
 
 Jsard and Stead 25 1 
 
 K. 
 
 Keat and Baker 89,180 
 
 Keen, ex dnn. Earl of Ports- 
 mouth t'. Karl of Effingham 
 
 78 
 
 PAGE. 
 
 Kekewich's case 252 
 
 King V. Melling 5 
 
 -and Hunt 298 
 
 Kirkman v. Thompson 20, 147 
 Knight V, GrenviUe 226 
 
 Kynuston v. Clarke 10, 11 
 
 L. 
 
 Lacy V. Williams 37, 61 
 
 Langford and Price 210, 318 
 Langharne and Clements 275, 
 291 
 Laughter v. Humphrey 19, 
 147 
 Laund v. Tucker 225, 238 
 Leigh and Jones 196 
 
 Lelhngham v. Alsop ;i8 
 
 Leman and Dillon 241 
 
 Lemon v. Black wall 66 
 
 Leslie and Meredyth 123 
 
 Lestrange's case 274 
 
 Lethieullier v. Trary 202 
 
 Lever and Barton 5, 126 
 
 Lewis and Witliam 149, 176 
 LmcolnCoUege case 60, 87, 
 123, 139, 147 
 LlandafF (Bishop) and Doe 
 
 dem. Lushingtou 89 
 
 Lloyd V. Evelyn 37 
 
 V. Say and Sele C4, 87, 
 
 99, 294 
 Lock)'er v. Palfreman 5 
 
 Loggin V. Puilen 273 
 
 Low V. Hurron 17, 46 
 
 Lowe and Roe 157 
 
 Lower and Weale 208, 209, 
 
 261 , 262, 30 1 , 303, 304, 305 
 Ludlow and Drummond 213 
 Lnshiiigton (Doe dem.) v. Bi- 
 
 sho|) of Llandaff 89 
 
 Luxton and Doc dem, Blake 
 
 18, 40 
 
 Lyster and Penyston 239 
 
 M. 
 
 Machell V. Clarke 13, 204 
 
 Mackwilliam's case 147, 219, 
 
 307 
 Mack worth and Thomasin 234 
 Magdalen College case 235, 
 
 257
 
 INDEX OF CASES. 
 
 xlv 
 
 Mair, ex parte 251 
 
 Mallery v. Jennings 38 
 
 Manock and Grey 40 
 
 Mansfield's case 252, 256 
 
 Manxel and Basset and Mor- 
 gan 6, 121, 12G, 128, 131, 
 
 139 
 Martin v. Strachan 197, 198, 
 
 318 
 Marwood v. Turner 28, 190 
 Massey v. Rice 270,271 
 
 Matthews, or Sussex, v. 
 
 Temple 52 
 
 Mead and Good right 11, 21, 
 142, 218 
 Mellingawd King 5 
 
 Meredythw. Leslie 123 
 
 Micklethvvaite and Harnies 292 
 Middletona/tdPullen 153,155, 
 150, 159 
 Milbank v. JollifFe 273 
 
 Millar w. Turner 45 
 
 Mitford and Fenwick 204, 
 
 318 
 Moody V. Walters 26, 59 
 
 Moore's case 209, 303 
 
 V. Moore 154 
 
 Moreau's case 254 
 
 Morgan v. Culpepper 170 
 
 and Owen 56, 5g, 87, 
 
 95, 123, 125, 143, 284 
 Morley and Jones 194 
 
 Morse v. Faulkner 301 
 
 Moxon V. Moxon 194, 317 
 Mutton's case 52 
 
 N. 
 Neale v. Wilding 146 
 
 Nect and Webb 5, 40, 88, 99 
 Nightingale v. Ferrers 195, 
 3!7 
 North V. Champernown 22 
 Northcote and Incledon 4 
 Norton t?. Frecker 18 
 
 Nun and Barber 293 
 
 O. 
 
 Gates V. Jackson 52 
 
 Odiarne {Doe dem.) v. White- 
 head 13, 205, 20C, 299 
 Oliver v. Taylor 100 
 
 PAGI. 
 
 Ord and Brandlyn 237, 238 
 
 Otway V. Hudson 156, 157 
 
 Owen V. Morgan 56, 58, 87, 
 
 95, 123, 125, 143, 284 
 
 P. 
 Page V. Hayward2, 3,10,121, 
 128, 131,134, 135,136 
 Pal freynian a»u/ Lockyer 5 
 Parker and Harvey 158 
 
 Parkhurst and Berrington 
 
 247 
 
 —— and Smith ex dem. 
 
 Dormer 38, 43, 48, 223, 
 226, 301 
 Parslow's case 296, 298 
 
 Peaceable v. Read 205 
 
 Peach and Weeks 3, 4 
 
 Peacock and Penn ft 
 
 Peake and Thrustout 189, 
 
 317 
 Pearson v. Broughman 273 
 Peck V. Channell 123 
 
 Pells V. Brown 2, 3, 9 
 
 Pelham's case 8, 111, 201, 
 
 202 
 Penn v. Peacock 5 
 
 Penyston v. Lyster 230 
 
 Perkins v. Sewell 18, 145 
 
 Perryn and Doe 52 
 
 Phetvf)lace v. 36 
 
 Phill'ips V. Brydges 22, 24 
 Pierce and Basket 233 
 
 Pi got V. Earl of Salisbury 
 
 213 
 Piggott V. Waller 22, 48 
 
 Pilkington v. Stanhope 154 
 Pitfal and Foster 20, 148 
 
 Podger's case 207, 224, 230, 
 
 260 
 
 Popham and Roe 168, 189, 
 
 313, 317 
 
 Portiugton's case 129 
 
 Portsmotith, (Keen ex dem. 
 
 Earl of) w.Earl of Effingham 
 
 78 
 
 Powell or Rowell and Gierke 
 
 207, 247 
 
 Power and Rowe 223, 226 
 
 Price a«d Ilemaley 263 
 
 Price *. Langford 210, 318
 
 xlvi 
 
 INDEX OF CASES. 
 
 PAGE. 
 
 Pritchard an(/ Jenkins 213 
 
 alias Hosiei* and 
 
 Baker 253, 264 
 
 Prosser and Doe 265 
 
 Proud a7id Green 77 
 
 Pullen V. Middleton 153, 155, 
 156, 159 
 Pulien and Login 273 
 
 Pultney and Cartwright 253, 
 264 
 
 Q. 
 Queen v. Savage 
 
 19 
 
 R. 
 
 Radford V. Wilson 155, 159 
 Ratcliffe and Sheffield 126, 
 139 
 Read and Peaceable 205 
 
 Reeve and Dowse 273 
 
 Rice an(/ Massey 270,271 
 Ripley V. Waterworth 44, 46 
 Rivers and Doe 13 
 
 Robinson v. Cuming or Co- 
 
 myns 23, 34, 55 
 
 Roe dem. Crowe v. Bald were 
 197, 198, 318 
 
 V. Griffiths 
 
 
 66 
 
 V. Lowe 
 
 
 157 
 
 - V. Popham 
 
 168, 
 
 189, 
 
 
 313, 
 
 317 
 
 V. Rowlstone 
 
 237, 
 
 265 
 
 V. Tranmer 
 
 41, 
 
 183 
 
 Rogers and Edwards 208, 296 
 Rowe V. Power 223, 226 
 
 Rowell or Powell and Gierke 
 
 207, 247 
 Rowlstone and Roe 237, 265 
 
 8. 
 Saffin's case 224, 232, 238 
 Salisbury v. Bagot 202 
 
 and I-ocus 207, 226, 
 
 232, 233, 258, 2()0,300, 301 
 Salisbury, (Earl of) and Pi- 
 got 213 
 Sulvin V. Thornton 22, 24 
 Salvin«.Cl«rk 240,310 
 Sanrxlers and Heliet 271 
 SjiniKJ.rs and llellefc 125 
 4>«uii(I..T« ». Stanford 231,238 
 
 PAGt 
 
 Savage and Queen 19 
 
 Saville V. Blackett 5 
 
 Say and Sele and Lloyd 64, 87 
 99, 294 
 Sayer and Alleyn 233 
 
 Scovel and Bradstock 308 
 
 Serjeant's case 19 
 
 Selvvyn V. Selwyn 1 1, 149, 197, 
 294 
 Sewel and Perkins 18, 145 
 Seymour's case 13, 205, 299 
 Seymour v. Barker 213 
 
 Shackletoa and Fairclaim 265 
 Sharington v. Strotton 20 
 
 Shaw and Taylor 154, 159 
 Sheffield V. Ratcliffe 126, 139 
 Shelburne v. Biddulph 10, 11 
 Shelley's case 45, 88, 149, 151 
 Shorrall and Willis 231 
 
 Simpson v. Turner 20 
 
 Singer a7id Carr 154 
 
 Smalley and Everall ib. 
 
 Smart and Fenn 247 
 
 Smith V. Abell 201 
 
 V. Clyfford 111, 141,202 
 
 and Duke 98 
 
 V, Farnaby 3, 4 
 
 and Harrington 148 
 
 V. Parkhurst 38, 43, 48, 
 
 223, 226, 301 
 Snow owd Eare 4, 51, 120, 
 1 28 1 '* 1 
 Snow and Waker 195, 196,317 
 Sperling V. Trevor 9,14 
 
 Stapletoni'. Stapleton 21, 142 
 Stanford atid Saunders 231,238 
 Stanhope anrf Pilkington 154 
 Stapilton V. Stapilton 
 Stead V. Izard 
 Stevens v. Winning 
 Stowel V. Zoucl^ 235, 
 Strachan and Martin 197, 
 
 Stratford v. Dover 
 Strotton a7id. Sharrington 
 Studd atid Eyston 
 Susse;c or Matthews v. 
 pie 
 
 142 
 254 
 140 
 242 
 
 198, 
 
 318 
 
 146 
 
 20 
 
 ib. 
 Tem- 
 
 . 52 
 
 Symonds v. Cudmore 10, 11 
 
 T. 
 Talbot and Duke of Chandos 5
 
 INDEX OF CASES. 
 
 xlvii 
 
 PAGE. 
 
 Taltarum's case 7, 119, 122, 
 123 
 
 Tankard and Whaley 237,238, 
 240 
 Taylor and Bury 19C 
 ex dem. Atkyns v. 
 
 Horde 38, 59, 60, 144 
 
 ■ and Oliver 160 
 
 V. Shaw 154, 159 
 
 Temple and Matthews or 
 
 Sussex 52 
 
 Tey's case 277 
 
 Thomasinv. Mackworth 234 
 Thompson and Zouch 249 
 Thomson and Kirkman 20,147 
 Thoniburgh and White 154 
 Thornton awd Salvin 22, 24 
 Thrustout V. Peake 189, 317 
 Tovvnsend v. Ash 225, 226,204 
 Tracy and Lethieullier 202 
 Tranmer aud Roe 41, 183 
 Treport's case 107, 312 
 
 Trevor a/irf S[)erlinfj 9, 14 
 Tucker and Laund' 225, 238 
 Turner and Marwood 28, 196 
 
 . avd Miliar 45 
 
 - and Simpson 20 
 
 Twist's case 226, 259, 310 
 Tyrrel'scase 40, 190 
 
 V. 
 
 Vade and Bennet 97 
 
 Vick V. Edwards 209, 302, 304 
 Villars V. Beaumont 20 
 
 W. 
 
 Waker v. Snow 195, 196, 317 
 Waller and Pigott 22, 48 
 
 Walters and Moody 26, 59 
 Walthew and Ward 20, 147, 
 201 
 Warren ex dem. Webb v. 
 
 Greenville 7^, 82 
 
 W^asteneys v. Chappie 18 
 
 Waterworth and Ripley 44, 46 
 Weale v. Lower 208, 209, 261, 
 262, 301, 303, 304, 3(15 
 Webb (Warren demJ) v. 
 
 Greenville 77, 82 
 
 PAOG. 
 
 Webb V. Nect 5, 40, 88, 99 
 Weeks v. Peach 3, 4 
 
 Weldenw. Duke of York 263 
 Welsh and Beck 16 
 
 Wentworth and Whetstone 207 
 Whaley v. Tankard 237,, 238, 
 240 
 Wheeler w. Heseltine 273 
 
 Whetstone v. Wentworth 207 
 White u. Thornburgh 154 
 
 Whitehead and Doe 13, 205, 
 206, 299 
 Wichelo and Doe 13,.204 
 
 Wickham (Mayor of) and 
 
 Wright 275, 291 
 
 Wilding and Neale 146 
 
 Williams and Lacy 37, 61 
 
 Willis and Baker 220, 307 
 Willis V. Shorrall 231 
 
 Wilson and Radford 155, 159 
 Winchester's, (Marquis) case 
 
 31,51,86,95,126 
 Wingfield and Duncombe 219 
 Winning and Stevens 140 
 
 Witham v. Lewis 149, 176 
 Withers v. Withers 44 
 
 Wivel, (Sir Marmad.) case 301 
 Wolsey and Armstrong 194, 
 203 
 Woodliff V. Drury 204 
 
 Worsley and Cavendish 251 
 Wottonw. Hale 289 
 
 Wright and Damport 229 
 Wright V. Mayor of Wick- 
 ham ' 275, 291 
 Wyatt and Bull 99 
 Wynne u. Cookes 22 
 
 Y. 
 
 York, (Duke of) anrf Wel- 
 den 263 
 
 Z. 
 
 Zouch V. Bamfield 218, 306 
 
 • — V. Forse 44 
 
 and Stowel 235, 242 
 
 V. Thompson 249
 
 PRACTICAL TREATISE 
 
 ON 
 
 OO N V E Y A N C I K G. 
 
 CHAP. I. 
 
 OF COMMON RECOVERIES AND THEIR OPERATION, 
 AND FORM OF RECOVERY DEEDS. 
 
 i. Of Recoveries and their Operation. 
 
 J^O instrument prepared by the convey- 
 ancer requires more attention than this 
 assurance. 
 
 it is to be considered principally as the 
 assurance by which tenant in tail [a) may 
 convert, or enlarge his estate-tail, into a 
 fee-simple; or, more accurately speaking, (as 
 will be afterwards shown) into a fee com- 
 mensurate with the estate, which, at the time 
 of creating the intail^ was vested in the 
 person by whom the intail was created, and 
 thus bar the estate-tail, and all remain- 
 ders and reversions expectant on that estate ; [ 2 ] 
 
 (rt) Pi got on Rccoveiies, passim. 
 VOL. 1, B
 
 2 ON RECOVERIES 
 
 and all conditions and collateral limitatioii^^ 
 annexed thereto (b), and charges subsequent 
 to the same. The rea.son is stated 3 A tk. 591. 
 When the donor of the estate-tail has a 
 fee-simple at the time of creating the estate- 
 tail, the recovery of tenant in tail, duly 
 suffered, will enlarge his estate-tail into a 
 fee-simple. In those instances, however, in 
 which the donor of the estate-tail had 
 merely a determinable or defeasible fee, then^ 
 as is advanced on principle, the effect of a 
 recovery by a tenant in tail, will be merely 
 to give an interest commensurate with the 
 ownership, under the base or defeasible fee. 
 As a recovery by a tenant in fee (c) will not 
 bar an executory devise or springing use 
 annexed to that estate, it is absurd that the 
 recovery of a tenant in tail, created out of 
 this determinable fee, should have the ef- 
 fect to give an interest which could not have 
 been acquired by the donor of the estate- 
 tail. The same reasoning' and a similar con- 
 elusion seem equally applicable to an estate- 
 tail derived out of a qualified or defeasible 
 estate in fee. lii short, the recovery can- 
 not produce any other effect, than to acquire 
 that extent of ownership, which belonged to 
 
 [h] Benson v. Hodson. 1 ditlliver v. Ashb;/, Bunv- 
 
 :»I()(1. lOb. 2 lev. 29. lOll). 
 
 Ptii^e V. Hu;;ivard, 2 Salk. [c] Pells v. Brown, Gro. 
 
 'j7i>. PiLjot on H' c'ovfrics, 17(>. .la . %0. Piilin. iol. learue. 
 
 Driver v. Ei'gnr, Cowp. lidC). Tij^^ut, 134. 
 :J7D. Co. l.itt. 327. I).
 
 AND THEIR OPERATION. 
 
 the donor of the estate-tail. Let it be re-[ 3 ] 
 membered, however, that though the owner 
 of an estate in fee, subject to an executoiy 
 devise or springing use, cannot bar such 
 future interest, a recovery by tenant in 
 tail will bar an executory devise or spriiig- 
 ino" use annexed to his estate. Such exe- 
 cutory devise or springing use falls within 
 the terms condition subsequent, or collate- 
 ral limitation (d). 
 
 From these deductions it is to be con- 
 sidered, in case a tenant in tail creates an 
 estate-tail, and the second donee suffers a 
 common recovery, this recovery will bar 
 the issue under the second intail, and also 
 the donor of that intail ; but will not be a 
 bar to the title of the issue under the first 
 intail. 
 
 A passage in Co. Lit. 327 b. that if "A. 
 " maketh a gift in tail to B., who maketh 
 '' a gift in tail to C, C. maketh a feoff- 
 ^' ment in fee, and dieth without issue, B. 
 " hath issue and dieth, the issue of B. shall 
 " enter ; for albeit the feoffment of C. did 
 '' discontinue the reversion of the fee sim- 
 *' pie which B. hath gained upon the estate- 
 " tail made to C. not yet could it discon- 
 " tinue the right of intail which B. had, 
 *' which was discontinued before : and, there- 
 
 {d) Pells V. Broxni, Cro. Page Sf Hayward, 2 Salk. 
 
 Jac. 590. Palmer \?A. 570, already cited, supra, p. 2. 
 
 B 2
 
 3 ON HECOVEHIES 
 
 " fore, when C. died without issue, then did 
 ** the discontinuance of the estate-tail of 
 " B., which passed by his livery, cease, and 
 " consequently the entry of the issue of B. 
 " lawful," illustrates this doctrine. 
 
 And on this passage it is to be observed, 
 1st. That there is a discontinuance only for 
 the time while C. shall live, and there shall 
 be issue of his body. 2dly, It Avas not 
 competent to C. or his issue to enlarge the 
 discontinuance as against the issue of B., 
 or as against A. or his heirs ; for the dis- 
 continuance ceased on the failure of tlie 
 issue of C. (f) 
 
 Thus also in a thing created de novo, as a 
 rent, in which there is merely an estate-tail, 
 witliout any remainder over, a recovery 
 suffered of the rent by tenant in tail, though 
 it may bar the estate-tail, cannot give to 
 the rent a continuance beyond the period 
 limited by the ori<i;inal grant (/"). These 
 points illustrate, and seem, in some degree, 
 to prove the propositi<^n now under consi- 
 deration. 
 
 When, however, the estate-tail in a rent 
 is derived out of a fee-simple already exist- 
 in*' in the rent ; or the estate-tail is limited 
 on its first creation with remainders over, 
 the recovery of tenant in tail, duly suft*er'j?(], 
 
 [e] Co. Litt. li:}.'}. 3 P. Williams, 220. Butler'? 
 
 {/j Chnpfin v. Chaplin, Co. Litt. 298, a. n. 2.
 
 AND THEIR OPERATION. 4 
 
 v/ill acquire the whole dominion or own- 
 ership in the rent to the extent of the estate- 
 tail and remainders (o). The objection that[ 4 ] 
 there cannot be a remainder of a thing 
 created de novo, no hunger prevails [h). 
 
 To bar an estate-tail and remainders and 
 reversions, &c. expectant on that estate is 
 the general use of a recovery : and in its 
 operation, as barring the estates of persons 
 in remainder, it is peculiarly the assurance 
 of tenant in tail, and has this effect only 
 when it is suffered by the donee for the time 
 being of that estate. 
 
 The assignee of tenant in tail, in other 
 terms, the owner of a base fee derived out 
 of an estate-tail, is not qualified to suffer a 
 Tecovery with effect {i). Nor is a person who 
 has an estate to him and his heirs, so long 
 as another shall have heirs of his body [k): 
 such person has a determinable fee, and 
 not an estate-tail. 
 
 Nor can the issue in tail suffer a com- 
 mon recovery in the life-time of the ances- 
 tor, so as to bar the estate-tail or remain- 
 ders, or do more than bar themselves by 
 estoppel. 
 
 Sometimes this assurance is used as a 
 
 {g) Smith v.Farnaby, Car- Weeks v. Peach, B\re?L(\y c\ted. 
 
 ter, 52. Siderfin, 285. (i) 2 Roll's Abr. y94. 1. 4l, 
 
 Weeks V. Peach, Lutw. Rayin. 29. 
 
 1218. (k) Pigot on Recoveries, 
 
 (A) Smith V. Farnaby, and 129. 1 Mod. 111.
 
 5 ON RECOVERIES 
 
 means of barring a title of dower (/), oi 
 aliening the freehold or inheritance, or some 
 other interest of a married woman {m) ; but 
 [ 5 jit is never, at least among correct practi- 
 tioners, used for these purposes, unless one 
 of the objects of the assurance is to bar an 
 estate-tail. A common recovery may also 
 operate as a conveyance by any person who 
 has an estate of inheritance, not being an 
 estate-tail (7i). It may extinguish a colla- 
 teral interest, as a rent ; or a lien, as a judg- 
 ment ; or a charge (o) ; or a power, as a 
 power of jointuring (/?), or of appointment 
 (q), or a power to charge (r) ; or the right to 
 bring a writ of error (s). 
 
 In these particulars it partakes, accord- 
 ing to the circumstances, of the nature and 
 operation of a conveyance, or of a release. 
 Sometimes it operates merely by way of es- 
 toppel or conclusion. And in these in- 
 stances it must be considered as such con- 
 veyance, release, or estoppel, rather than a 
 common recovery requiring the forms of a 
 real action. It may also be observed that the 
 
 {/) 2 Co. 74, 78. 10 Co. 43. (p) King v. Melling, 1 
 
 Eare \. Snoiv, Plow. 504, Veiitr. 22.5. 2Leviiiz. 58. Pig. 
 
 514. Pi^. ()7. Rec. 135. 
 
 (m) IL). and Incledon v. (q) Penn v. Peacock, Ca. 
 
 Nortlicote, ti Atk.430. T. Talh. 41. 
 
 (n) 3 Co. 5. Pit--. Rec. 123. (r) Saville v. Blackett, 1 
 
 Wffth V. Acct, Cro. Eliz. 21. P. Wms. 777. 
 
 Locki/er v. Palf reman. Style {.%) Barton v. Lever, Cro. 
 
 30i). Pi-. 198. Eliz. 388. Moor, 3G5. 
 
 [()) Duke of C/iandos v. 
 TalLot, 2 P. Wnis. 005.
 
 AND THEIR OPERATION. O 
 
 issue in tail, or those in reversion or remain- 
 tier, not being parties, are not bound by 
 estoppels or conclusions. Tenants in tail, as 
 well as the owners ot other estates, may, to 
 the extent of their interest, considered as a 
 quasi life interest, and also to the extent of 
 their interest, as enlarojed into a more exten- 
 sive ownership, by means of a fine or reco- 
 very, bind themselves by estoppel. As re- 
 coveries do not operate by estoppel against [ 6 ] 
 the issue, or those in reversion or remainder, 
 a recovery suffered of the land will not bar 
 an intail of a rent issuing out of the lands, as 
 far as the issue or those in remainder or re- 
 version are interested therein. But a reco- 
 very of the /a/^a^ suffered by a tenant in fee 
 or for life of a re^^, would quoad his estate 
 extinguish the rent, and suffered by a tenant 
 in tail, would bind himself. Nor will a 
 recovery suffered by a person who has a 
 contingent or executory interest in tail, either 
 under a contingent remai-nder or executory 
 devise (/), bar the intail or remamder by way 
 of conveyance ; where suffered by a person 
 who has an executory interest in fee, it will, 
 by v/ay of release or estoppel, bar his in- 
 terest and conclude his heirs. The estoppel 
 will bind the person by whom the recovery 
 was suffered, though he had an interest in 
 
 [t) Pigot on Recoveries, 133,
 
 7 ON RECOVERIES 
 
 tail. And it well deserves consideration 
 whether the effect of a recovery, by a person 
 who has a contingent or executory interest in 
 tail^ is not, by estoppel, to preclude the intail 
 from ever giving a vested estate. This point 
 depends on first principles. No decision 
 on the point has occurred, the decision in 
 the case of Nicholas Moore [u) bears in some 
 degree on the point. 
 
 When one estate-tail is derived out of 
 another estate-tail, both estates-tail, or the 
 right to both these estates, may centre in 
 one and the same person ; and a recovery 
 suffered by him, in which he shall be vouched^ 
 and vouch over, will bar both estates-tail 
 (i), and consequently will confer an estate 
 co-extensive with the ownership of the 
 person by whom the original estate-tail 
 wa5 created. But a recovery suffered by him, 
 C 7 ] in which he shall be named tenant {y)^ and 
 vouch over, will bar that estate only of 
 which he is actually seised, without affect- 
 ing the title under the original estate-tail. 
 
 When the original estate-tail revives ; 
 and the derivative estate-tail is defeated 
 through the medium of the doctrine of re- 
 mitter (2), then the title is to be considered 
 precisely on the footing of the original es- 
 
 (w) Palm. .'J(15. IV. 14. Pl^^ on Kec. 9. Bro. 
 
 (x) MauxeWs <-as<', 2 Plow. Abr. Tail, ;32. 
 
 8. b. 3. C*). (». (c) Mtt. s. 059, OGO. Co. 
 
 [y] Talturum's casL\ \2V(\. Lit. 347, b.
 
 AND THEIR OPERATION. 8 
 
 tate-tail : and a recovery suffered, so as to 
 bar that estate- tail, will enlarge the owner- 
 ship into a fee-simple, admitting the fee- 
 simple was in the person by whom the ori- 
 ginal estate-tail was created. 
 
 From these observations it will be col- 
 lected, that when there are two estates-tail, 
 and one of them is derived out of the other, 
 and both subsisting in different persons, the 
 owner of the original estate-tail must be a 
 party in the recovery, in order to gain the 
 title to the fee-simple ; and to bar both 
 estates-tail, both tenants in tail must be 
 vouched. Whether they are to be vouched 
 jointly or severally, will be considered under 
 that division in which the necessity of a 
 recoverv with treble voucher will be the 
 subject of observation. 
 
 An assuranceby common recovery general- 
 ly consists of two parts perfectly distinct : — L ^ J 
 
 First. Of the recovery, which assumes all 
 the forms of a real action ; and is founded 
 on the supposition of an adverse claim : 
 and. 
 
 Secondly. Of the recovery deed. And 
 this deed is, in form at least, partly a pre- 
 paratory step to suffering the recovery, and 
 partly a declaration of the uses of the 
 recovery when suffered. 
 
 Notwithstanding the recovery assumes 
 the form of a real action, it is considered
 
 ^ ON RECOVERIES 
 
 merely as a conimon assurance, and the 
 court take notice of it as such {a). 
 
 There are a variety of cases in which a 
 common recovery is the only assurance 
 which will complete the title. For example, 
 a person who is tenant in tail, with remain- 
 ders and reversions over to other persons, 
 cannot, by his own act, and ipso facto, bar 
 those remainders and reversions by a fine, or 
 by any other means than a common recovery. 
 These interests may be eventually barred 
 by nonclaim (b), on a Jine with proclama- 
 tions ; or by the statute of limitation (c). 
 But this is by force of certain statutes, not 
 of the direct operation of the assurance, 
 f 9 ] Also a tenant in tail subject to a spring- 
 ing or shifting use, or conditional limitation ; 
 as an executory devise ; cannot, even though 
 he has the remainder or reversion, in fee, 
 bar this springing or shifting use or condi- 
 tional limitation by any other means than 
 this assurance. But, as may be inferred from 
 a former observation, tenant in fee, subject 
 to an executory devise or conditional limita- 
 tion, &c. cannot, by a common recovery, or 
 by any other means, proceeding from him- 
 self alone, in short, without the concurrence 
 of the other persons concerned in interest, 
 
 [a] Pclham's case, 1 Co. 14, [h] 4 Hen. 7, c. 24 ; and 32 
 
 b. 3131. Com. a 51. ou Rec. Hen. 8, r. 3(5. 
 20. [c] 21 .la. 1, c. 16.
 
 AND THEIR OPERATION. 10 
 
 bar such executory devise or conditional li- 
 mitation {d). 
 
 And wherever tenant in tail has also the 
 iiunjediate remaincier or reversion in fee, % 
 descent, thoui>ii prima facie a fine would 
 enable him to acquire the fee-simple in 
 possession, and render his title, unless it can 
 be impeached, marketable (e), it is his inte- 
 rest, except under very particular circum- 
 stances, as apprehension of death, &c. 
 before the term, to sutler a common recovery 
 rather than levy a fine. 
 
 By means of the recovery his title will 
 depfiid wholly on his estate-tail, and the 
 renjainder or reversion in fee will be imma- 
 terial to the further deduction of the title ; 
 and thus the investigation of the title will 
 be abridged, by superseding the necessity 
 of a long, and frequently troublesome, and 
 expensive, investigation, respecting the 
 state of title under the reversion, or remain- 
 der [f). While,, if he levies a fine, he willL 10 ] 
 bar his estate-tail, and convert that estate 
 into a base or determinable fee ; and this 
 fee will merge in the remainder or reversion 
 in fee-simple : and all the charges and in- 
 cumbrances, (as judgments, annuities, &c.) 
 affecting the reversion or remainder in fee. 
 
 (f/) Pells V. Brown, Cro. J. (/) Tracts on Cross Re- 
 
 590. maiuders, &c. 
 
 [e] Sperling v. Trevor, 7 
 Ves. jun. 497,
 
 10 ON RECOVERIES 
 
 will be accelerated and become an immedi- 
 ate, instead of being a remote, charge on the 
 possession. So also tenant in tail having 
 the remainder or reversion in fee by descent^ 
 will become immediately chargeable with 
 the debts of the ancestor, who was the 
 owner of the remainder or reversion in fee- 
 simple. Thus these incumbrances, instead of 
 being barred, as they may be by a common 
 recovery, will become an available charge. 
 
 On this subject the student should read 
 with great attention, the cases of Symonds v. 
 Cudmorc [g). Kynaston v. C/arke(h), Shelburne 
 V. Biddulph (?), and also the observations in 
 the Tracts on Cross Remainders, and Alien- 
 ations by Tenants in Tail. 
 
 The rule is clearly and fully established as 
 to legal estates. In equity, the doctrine of 
 merger is not of such universal application 
 as at law ; and it is questionable at least, 
 whether that court, acting on a case of trust 
 estates, Avould aftbrd any relief to the in- 
 cumbrancers, until the period for the com- 
 mencement of the remainder or reversion 
 lias arrived, by the death of the tenant in 
 tail and the failure of the issue inheritable 
 to his estate. 
 
 On the effect of common recoveries in 
 barring remainders, conditions, and collate- 
 
 (g) 4 Mod.l. 2. Salk. 338. (A) 2 Atk. 204. 
 
 1 Sliow. 370, (i) 4 Bro. P. C. 594.
 
 AND THEIR OPERATION. 11 
 
 ral limitations, the cases of Page v. Hay- 
 ward(k), Gulliver v. Shuckburg Ashby[l), 
 Driver v. Edgar [m), ?ind Betis on v, Hodsonl H ] 
 («), should be closely studied. 
 
 On the authority and reasoning of the de- 
 termination in Symonds v. Cudmore, Ky- 
 naston v. Clarke, Slielburne v. Biddulph, it 
 should be understood as a general rule, to 
 be observed in practice, that a tenant in 
 tail, who is merely tenant in tail, or who has 
 the reversion or remainder in fee by descent, 
 should suffer a common recovery, in pre- 
 ference to levying a fine. And if he levies 
 a fine, to guard against the accident of his 
 death, before the commencement of the term, 
 the fine should be levied for the declared pur- 
 pose of making a tenant to the writ of en- 
 try ; and to the intent of sufi:'ering a com- 
 mon recovery : so that the fine and common 
 recovery, if one shall be suifered, may form 
 parts of the same assurance (o), and thus pre- 
 vent, (as beyond all doubt they will do,) the 
 merger of the ownership under the estate- 
 tail, in the reversion or remainder in fee ; 
 or, in other words, make the title dependent 
 
 (k) 2 SalU. 570. Selwyn v. Selivyn, 2 Burr. 
 
 (/) 4 Burr. 1929. 1131. 
 
 [ni] Cowp. 370. Taylor v. Horde, 1 Burr.(>0. 
 
 {n) 1 Mod. 108. Havergill v. Hare, Cro. Ja. 
 
 (o) Ferrors and Ciirson v. 510. 
 
 Fermor, Cro. Ja. 643. Cromwell's case, 2 Rep. 74. 
 
 Goodright v. Mead, 3 Herring v. Brotcn, Vent. 
 
 Burr. 703. 368.
 
 12 ON RECOVERIES 
 
 wholly oil the ownership under the estate- 
 tail. 
 
 In some cases, especially when there are 
 heavy debts, or there is the apprehension of 
 [ 12 Jjudgments, &c. affecting the reversion or 
 remainder in fee, and a fine is to be levied, 
 it will be a caution, well worth the expence, 
 previous to levying the fine, to make a demise 
 for years to be created in the name of a 
 trustee, upon trustto attend the inheritance; 
 and to protect the possession during the con- 
 tinuance of the ownership under the estate- 
 tail ; for the term being supplied partly 
 from the estate-tail, and partly from the 
 remainder or reversion in fee, will not be 
 affected by the subsequent merger, should 
 it take place, of the estate- tail ; but would 
 protect the possession during the time of the 
 estate-tail, viz. till the failure of the issue 
 inheritable under the estate-tail. 
 
 The demise generally used to prevent a 
 forfeiture, in those cases in which it is^ 
 doubtful whether the party is tenant for life 
 or tenant in tail, and of which there is a 
 form in the appendix, would, with very little 
 alteration, answer this purpose ; but it has 
 not occurred to the writer of these observa- 
 tions to remark that this caution has ever 
 been adopted in practice.
 
 AND THEIK OPERATION. 
 
 Observations on the Operation of Fines as dis-i 13 
 tinguished from Recoveries. 
 
 To elucidate the remarks on the exten- 
 sive operation of recoveries, as distinguished 
 from lines, and to show the application of 
 these remarks to practice, a few general 
 observations may be added in this place. 
 
 It is quite clear that a tenant in tail, 
 merely as such, cannot make a good title to 
 the fee-simple, without suffering a common 
 recovery. A fine levied by him, and ope- 
 rating as a conveyance, will only bar the 
 estate-tail, and convert the same into a base 
 or determinable fee (p). But if it operates 
 by discontinuance, then a fee-simple will 
 be o;ained : yet such fee-simple may be 
 avoided by the action of those in reversion 
 or remainder ; or they may be even remitted 
 to their estate by operation of law. When 
 however a person who has an estate-tail, 
 with an immediate reversion in fee, levies a 
 fine with proclamations, the effect of the fine 
 will be to bar the estate-tail, and convert 
 that estate into a determinable fee ; and this 
 determinable fee will merge in the fee- 
 simple. The consequences are, 1st, the title 
 
 (/>) Machell V. Clarke^ 2 Doe v. /Jiwer*, 7 Term Rep. 
 
 Lord Raym. 778. 276. 
 
 Seymour's case, 10 Co. 95. Doe v. Wichelo, S Terra 
 
 Doev. Whitehead,^ Burr. Rep. 211. 
 704.
 
 ON RECOVERIES 
 
 [ 14 ] depends partly under the ownership of the 
 estate-tail, and partly under the ownership of 
 the reversion in fee ; 2dly, the reversion, hav- 
 ing become an estate in possession, the pos- 
 session is immediately chargeable with all 
 incumbrances which aftectid the reversion 
 or remainder in fee. For this reason it is 
 considered a rule of practice, by all sound 
 lawyers, that a tenant in tail with reversion 
 or remainder in fee by descent, should suf- 
 fer a common recovery instead of levying 
 a fine. And it certainly is the interest of 
 every seller who has a title thus circum- 
 stanced, to suffer a common recovery, ra- 
 ther than rely on the operation of a fine. It 
 is also the interest of the purchaser, that a 
 common recovery should be sut^'ered, so that 
 the evidence of the title may depend wholly 
 on the ownership under the estate-tail, in- 
 stead of being deduced, as itotherwise must 
 be, as well under the ownership of the re- 
 version in fee, as of the estate-tail. At the 
 same time let it be observed that it is now 
 settled by the case of Sperling v. Trevor iq) 
 thata title derived underafme levied by tenant 
 HI tail, with the reversion in fee by descent, 
 '\^ J prima facie good: and a purchaser can- 
 not object to the title for want of a common 
 
 I 15 1 recovery ; unless he can show that the rever- 
 sion in fee has been aliened or incumbered.. 
 
 (7) 7 Vc's. p. 497.
 
 AND THEIR OPERATION. \5 
 
 The purchaser liowever has a clear right to 
 have a recovery suffered by the vendors at 
 his own expence. 
 
 The covenant for furtlier assurance in- 
 serted in purchase deeds fully proves the 
 right ; for as the purchaser may require a 
 recovery immediately after the completion 
 of the purchase, he may, as a necessary 
 result of that right, require from the 
 vendors that they should convey by reco- 
 very as part of the assurance to the pur- 
 chaser when completing his purchase. 
 He has also a right, unless a recovery shall 
 be suffered, to have the title deduced from 
 each successive owner, who for the time 
 being has been seised of the reversion 
 in fee ; and for this purpose to call for an 
 abstract of the wills of such of them as 
 have left wills affecting real estates, 
 and for presumptive evidence of the 
 intestacy, (as letters of administration, 
 or the like,) of such of them as are alledged 
 to have died intestate. To satisfy a pur- 
 chaser on these points will frequently be at- 
 tended with more dela}^, and in general with 
 more expence than a common recovery. 
 For this reason, independent of the advan- 
 tages which, in reference to the covenants 
 warranting the title, arise to the seller from 
 a recovery, it rarely happens among gentle- 
 men of any experience, that a seller is ad- 
 
 VOL. I. c
 
 l6 ON RECOVERIES 
 
 vised to place the title on the operation of 
 a fine, or withhold his consent to snffer a 
 common recovery. And in many cases, and 
 indeed in all cases of considerable property, 
 a recovery is attended with less expence 
 than a fine. 
 
 General Observations continued. 
 
 [ lo ] It may be observed, that a tenant in tail 
 cannot, by his common recovery, or by any 
 other means, bar leases, charge, &c. which 
 are incumbrances on his estate-tail. All 
 charges affecting him as tenant in tail will 
 affect his ownership under the fee acquired 
 from the estate-tail (r), nor can he bar any 
 estate or interest prior to his estate- 
 tail (5). 
 
 But the tenant of a remote estate-tail 
 may, when qualified by the assistance of the 
 owner of the immediate freehold, and not- 
 withstanding there are prior estates-tail, 
 vested or contingent, suffer a common re- 
 covery with effect. The operation of this 
 recovery will be to enlarge his own estate- 
 tail, into a fee-simple, by barring all re- 
 mainders and reversions expectant on his 
 estate-tail (t). 
 
 [s] Capers rase, 1 Co. 02, :i (a) Pif^ot, 13». 2 Lev. 30. 
 
 C/io//«/^!/'.9case, 2 Co. 52, b. Goddard \. (Jouiplin, 1 Cb. 
 
 Beck V. m-lsh, I Wils.277. Ca. 11 J). 
 Benson v, Hodson, 1 Mod. {t) 3 Co. (>, a. 
 
 108. Doev.Hallei/, 8 T. Rep. 5.
 
 AND THEIR OPERATION. IJ 
 
 It will, however, leave the prior estates, 
 and among them estates-tail, if any, (unless 
 they are destroyed as contingent remain- 
 ders,) undisturbed. And at a sub.^equentC ^7 ] 
 period, a recovery may be suffered by the 
 owner of the prior estate-tail, and the reco- 
 very thus suffered will enlarge this prior or 
 intermediate estate-tail into a fee-simple, 
 and, as a consequence, bar the fee acquired 
 by means of the former recovery. 
 
 It must always be remembered that the 
 owner of a remote estate-tail cannot suffer 
 an effectual recovery, without the concur- 
 rence of the owner of the immediate estate 
 of freehold ; or unless he himself be the 
 owner of that estate. 
 
 Nor can a tenant in tail by his recovery ac- 
 quire an estate more ample than that which 
 was vested in the person by whom the es- 
 tate-tail was created. This point has al- 
 ready been urged. Therefore, when the 
 person by whom the estate-tail was created, 
 had a deter niinable or defeasible fee, the fee 
 acquired, by means of the recovery, will be 
 subject to the collateral limitation, or con- 
 dition, &c. of the fee, while that collateral 
 limitation or condition continues in force. 
 No decision has been found to warrant this 
 proposition, and yet no doubt can reason- 
 ably be entertained on the point. 
 
 It remains to be observed that estates j9owr 
 c 2
 
 18 ON RECOVERIES 
 
 aurre vie, or for several lives, do not admit of 
 intails within the statute de donis (ii). Limi- 
 tations of these interests to a man and the 
 heirs of his body do not create estates-tail, 
 barrable by recovery as such. They create 
 merely a quasi intail, which, with the limita- 
 L ^^ Jtions over, may be barred by an ordinaiy 
 alienation {y), as fine, lease and release (w), 
 bargam and sale, grant, surrender (x), or in 
 equity by articles (?/), and it should seem 
 (for this point is not decided) by 
 will (z). 
 
 And tenant in tail of the orift of the crown 
 [zz), for services performed [a), cannot bar 
 either his issue, or the reversion or remainder 
 in fee of the crown, wdiile that reversion or 
 remainder remains in the crown. The pro- 
 tection continues only so long as the rever- 
 sion or remainder in fee is in the crown (b). 
 
 From the moment the crown parts with 
 the reversion or remainder in fee, the estates- 
 tail and other estates expectant thereon. 
 
 (m) Lotv V. Burron, 3 P. {(/) Wastovey^ s v. Chappie, 
 
 W. 2G2. 1 BVo. Par. Ca. 457. & I Atk. 
 
 [v) Wasteneifs v. Clutjrple, 524, 
 
 1 Bro. Par. Ca." 457. [z] Doe v. Luxton, 6 T. 
 
 (w) Duke of Croflon v. Rep. 29;J. 
 
 Ilavmer, 3 P. W. 2(36, note. [zz] Stat. 34 and 35 H. 
 
 Norton \. Frccktr, 1 Atk. VIU. c. 20. Co. Litt. 372, b. 
 
 524. 2 Show. 119. 
 
 [x] Baker v. Bayleif, 2 (a) Perkins v. Sewell, 1 
 
 Veni. 225. ' Bluek. Hep. G54.4Burr.2223. 
 
 Blakt: V. Blukc, 3 Cox's (//) Co. Litt. 372, b. 
 
 P. W. 10; U. 1.
 
 AND THEIR OPERATION. 19 
 
 lose tlie protection ot" this statute against 
 being barred (c). 
 
 At this day, it is observable, the crown 
 cannot alien the reversion or remainder in 
 fee by any other means than an act of par- 
 liament. 
 
 And particular estates, derived out of the 
 reversion or remainder of the crown, are 
 within the protection of the statute, so long [ 19 ] 
 as the crown retains the reversion or re- 
 mainder (d). 
 
 And by the prerogative of the crown a 
 reversion or remainder in the crown, either 
 in fee or in tail, cannot be barred by a com- 
 mon recovery of tenant in tail (e) ; but 
 remainders to strangers may be barred, 
 whether they are prior or subsequent to 
 the estate of the crown ( /). 
 
 The origin of this protection to the crown 
 cannot be accounted for on any other 
 ground than a principle of tenure, that the 
 estate of the crown is part of its ancient do- 
 minion ; and that as against the crown, the 
 tenant in tail is in the same predicament, 
 as if his estate were derived out of a base 
 
 [c] Com. Di<,^ Estates, B. {e) 2 Roll. Abr. 393. Ser- 
 31. Co. Litt. 372, b. 2 Show, jeant's CMse. 
 
 124 Neale ex demise Alhol v. 
 
 Earl of ChesterfiehVs case, Wi/niii^. 1 Wilson 275. 
 
 Hard. 409. (/ ) 2 Roll Abr. :;93. Ser- 
 
 (d) Com. DiiT. Estate>. B. jeanfs ciis-e. 2 Show. 1 10. 
 31. 8 Co. 77. Co. Litt, 372. b. seems contra.
 
 !20 ON RECOVERIES 
 
 or determinable fee, or an estate subject to 
 a condition. 
 
 Nor can a woman seised in tail by the 
 provision of the husband, or any of his an- 
 cestors, or by his or their procurement {g), 
 bar the estate- tail, or the reversion or re- 
 mainder, after tlie death of the husband, 
 without the concurrence of the person next 
 in remainder, or next inheritable. This 
 regulation is founded on the enactments of 
 the statute-law. The statute extends to 
 all cases in which the wife is tenant in tail, 
 either alone (h), or jointly with her husband 
 (i). It embraces those cases also in which 
 the gift is to the heirs of both their bodies 
 {k), or to the heirs of her body, begotten by 
 him (/), provided the intail proceeds from 
 the husband, or some of his ancestors {m), 
 or the lands were purchased with his money 
 {?i), or partly with his money. It also ex- 
 tends not onlv to all cases in which the sift 
 is confined to his issue [6) ; but to those 
 cases in which the gift is to the heirs of the 
 body of the wife, generally, with a remain- 
 der or reversion in favor of the husband, or 
 
 ifr) Stat, of 1 1 Men. VII. (/) See the statute. 
 
 c. 20. [m] Sharrivgton v. Scrot- 
 
 [h] See tlie statute. ton, IMow. ,3()(). 3 Co. 50, b. 
 
 {i) Laugfiter v. Humphrey, Cro. Eliz. 5UJ. 
 Cro. Eliz. 524. (n) Palmer, 217. 
 
 Queen v. Savage, Moor. (o) Foster v. Pitjal, Cro. 
 
 715. Eliz, 2. 524. 
 
 (k) See tlifi statute.
 
 AND THEIR OPERATION. 21 
 
 some of his ancestors {o o). The statute also 
 comprehends those cases, in which the set- 
 tlement, though in consideration of money 
 of the wife, has marriage as the principal 
 inducement (/>). 
 
 But it does not extend to those cases in ■ 
 which the gift proceeds from the wife (^), 
 or from her friends, or from a stranger (r) ; 
 or Av here the lands are purchased witli the 
 money of the the wife, unless marriage be 
 the principal consideration ; nor to those 
 cases in which she has an estate in general 
 tail (s), that is to say, to the heirs 
 of her body generally, with the remain- 
 der or reversion in fee to herself or a 
 stranger (t). 
 
 It is also now settled that an alienation by 
 the husband and wife jointly (u), is not 
 restrained by the statute, though it is not 
 within the express words of the saving clause. 
 And after the death of the husband, she 
 may alien with the consent of the heir in[ 21 
 tail (v), if there be any, and if none, with 
 the consent of the person who has the first 
 estate of inheritance in remainder or rever- 
 
 [oo) Simpso7i V. Turner, (s) Foster v. Pitfal, Cro. 
 
 Eq. Abr. 220. Eliz. 2. 524. 
 
 ( p) V'dlurs V. Beaumont, [t) Simpson v. Turner, Eq, 
 
 Dyev, 140, a. Ab. 220. 
 
 \q) Eystou V. Studd, Plow. («) Kirkman v. Thomson, 
 
 463. ■ Cro. Jac. 474. 
 
 [r] Ward v. Walthew, Cro. (w) Lincoln Coll. Ca. 3 Co. 
 
 Jac. 173, .58. seo the stat. s. 8, 9.
 
 22 ON RECOVERIES, &C. 
 
 sion (w), but such consent must appear on 
 record, or by inrohneut. And she as being 
 tenant in tail must be vouched or must be 
 one of the vouchees. And it seems, on 
 principle, that one of several expectant co- 
 lieirs may assent for her share. So that in 
 effect, tiiough not in form, the recovery 
 proceeds from the concurrence of the heir 
 in tail, or those in reversion or remainder, 
 rather than from the wife. There is a dif- 
 ference betvv^een an alienation by a woman 
 tenant in tail, of the gift of her husband, or 
 his ancestors, and an alienation by a husband 
 tenant in tail jointly with his wife or by survi- 
 vorship. The widow cannot bar the issue ; 
 the husband may, even though the wife be 
 living. By the stat. of 32 H. VIII. c. 28, 
 those discontinuances only of the husband 
 which do not bar the issue are provided for 
 {x). As in all other cases, tenant in tail can 
 bar the remainder or reversion in fee ex- 
 pectant on his estate-tail, he can bar all 
 leases, estates, and charges derived out of 
 that remainder or reversion in fee (^), and all 
 charges subordinate to his estate-tail {z) 
 [ 22 ] And a recovery duly suffered by a tenant 
 in tail, after a conveyance or settlement 
 
 {w) Cro. Eliz. 514, Chenai/ v. Half, Amb. 62C. 
 
 (.r) Grcneley's Ca. 8 Co. 72. Stapleton v. Stapleton, 1 
 
 (//) Capd's cix^v, 1 Co. GO. Atk. 2. 
 
 fJoodrifilit V. JMcad and {z) Eylon v. Eijton, 1 Bro. 
 
 ShilsUm, '6 \\urr. 1703. Par. Ca. 151.
 
 ON EQUITABLE RECOVERIES. 22 
 
 made by him, will bar the estate- tail, and all 
 remainders expectant on that estate, so as 
 to give effect to the conveyance or settle- 
 ment, as against his issue and those in re- 
 mainder or reversion [a) . 
 
 Of Recoveries of Equitable Estates. 
 
 Recoveries may be divided into recove- 
 ries of the legal, and recoveries of the 
 equitable ownership ; these recoveries are 
 generally distinguished as legal and equita- 
 ble recoveries. 
 
 It is necessary to attend to this distinc- 
 tion only, for the purpose of introducing a 
 few observations, applicable, in a particular 
 manner, to equitable recoveries. 
 
 The general rule is, that equitable recove- 
 ries must be suffered with the same ceremo- 
 nies, and by the same persons, as equitable 
 owners, whose concurrence would be ne- 
 cessary in case their estates were legal, in- 
 stead of being equitable (b). It is also a 
 rule that a recovery by the owner of an equi- 
 table estate, will not bar a remainder in the 
 owner of a legal estate (c). 
 
 (a) See the cases cited in n. Phillips v, Brydges, 3 Ves. 
 (y) above. jun. 120. 
 
 (b) North V. Champemown, Boteler v. Allington, 1 Bro. 
 2 Ch. Ca. 63, 78. Ch. Ca. 72. 
 
 (c) Sahin v. Thornton, In Wynne v. Cookes, {c a) 
 Ainbl. 545, 699. 1 Bro. Cli. 
 
 Ca. 73 in nota. (c a] 1 Bro. C. C. 515.
 
 ON EQUITABLE RECOVERIES. 
 
 [ 23 ] That the recovery of an equitable tenant 
 in tail may complete the title to the fee- 
 
 a copyholder for life, with li- 
 mitations over in tail, enfran- 
 chised, and devised to his 
 wife ; who entered, claiming 
 the lands. Freehold lands were 
 also entailed. And while the 
 wife was in possession, claim- 
 ing adversely, the first tenant 
 in tail niadea bargain and sale, 
 and suffered a common reco- 
 very of all the manors, &c. 
 devised by the will. He died, 
 and the next remainderman 
 filed a bill, claiming the be- 
 nefit of the enfranchisement, 
 and had a decree for a convey- 
 ance to the uses of the will. 
 The plaintiff died. And the 
 next in tail claimed to be en- 
 titled ; and he and the widow, 
 (the trustee by the declaration 
 of the decree,) conveyed to 
 the use of the tenant in tail. 
 And afterwards the tenant in 
 tail executed conveyances to 
 make a tenant, &c. and a reco- 
 very was suffered, and he de- 
 vised. Eyre, Baron, was of 
 opinion that the first tenant in 
 tail not having been in pos- 
 session of the estate in ques- 
 tion, when the recovery was 
 suffered, it had no operation 
 on that estate; tliat the last 
 remainderman was therefore 
 seized in tail male; that the 
 recovery suffered by him bar- 
 red tlie intail, and the estate 
 was, therefore, well devised 
 by his will, and decreed ac- 
 cordingly. 
 
 N. li. This case seems to 
 have deserved further consi- 
 deration. 
 
 And in Pigtrolt v. Wpl/cr, 
 
 (c b) Robert Piggott, being 
 seised in fee of two third parts 
 of the manor of Chesterton, 
 devised his manor of Chester- 
 ton to trustees, so as to vest 
 in them the legal fee, upon 
 trust, after various other dis- 
 positions, for his eldest son 
 Robert Piggott for life, re- 
 mainder to his first and other 
 sons in tail male, remainder 
 to testator's right heirs. 
 
 After thedateof tlie will the 
 testator purchased the remain- 
 ing third part of the manor, 
 and made a subsequent codi- 
 cil, which the court construed 
 to be a republication of the 
 will. 
 
 Robert Piggott, the son, 
 supposing the third part to 
 have descended to him, de- 
 vised it by his will, and died, 
 leaving Robert Piggott, his 
 eldest son, and William Pig«- 
 gott, his second son. 
 
 Robert Piggott, the grand- 
 son, after his father's death, 
 suffered a recovery of the 
 manor of Chesterton ; and 
 afterwards by deed confirmed 
 the will of his father, and re- 
 leased to the trustees of that 
 will the lands thereby devised ; 
 and afterwards purchased of 
 the same trustee the third 
 part of the said manor. 
 
 It was decided by Grant, 
 master of the rolls, that the 
 recovery barred the equitable 
 intail in the whole of the 
 manor, though it was objected 
 that the person suftcring the 
 
 (c b) 7 Yc^. Jun. 98.
 
 ON EQUITABLE RECOVERIES. 23 
 
 simple, the remainders must be of the equi- 
 table ownership. So also there must be the 
 concurrence of the person who has the 
 equitable freehold (d). On the two latter 
 propositions, it is observable, however, that 
 if the person who is the trustee for the te- 
 nant in tail, is trustee of the fee-simple, and 
 has the equitable remainder in fee, this 
 remainder, though for many purposes extin- 
 guished in the legal estate, is considered by 
 a court of equity as an equitable interest, 
 distinct from the legal estate, and liable to 
 be barred by the recovery of the equitable 
 tenant in tail, notwithstanding the legal 
 estate is in the trustee (e) ; consequently the 
 general rule must be understood of an equi- 
 table estate-tail, with a distinct le<>al estate 
 in remainder, vested in some other person. 
 
 Again, although the owner of the equita- 
 ble freehold must concur in sufterinji an 
 equitable common recovery, it is no objec- 
 tion that this equitable ownership arises 
 froma legal estate ; and therefore, though A. 
 be tenant for life of the legal estate, for his 
 
 recovery was not in possession, rolls, decreed to be valid, 
 
 and did not intend to p;iss tlie though the rents of the estate, 
 
 whole b}' the recovery deeds. at the time of the recovery. 
 
 And in Lord Grenville v. were paid by the trustees to 
 
 Bltjth [c c) a recovery suffered other persons, under a decree, 
 
 by an equitable tenant in tail, which was afterwards reversed. 
 was by Grant, master of the [d) 2 Ch. Ca. 64. 
 
 (e) Robinson v. Cumming, 
 
 (c c) 16 Ves. jun. 224. Ca. T. Talb. 167. 1 Atk. 473.
 
 ON EQUITABLE RECOVERIES. 
 
 own benefit, a recovery suffered by an equit- 
 L 24 ]able tenant in tail, with his concurrence, 
 will be good ; since the analogy is suffici- 
 ently observed in obtaining the concurrence 
 of the person who is the beneficial owner (/'). 
 
 But it is quite clear that a recovery can- 
 not be suffered by the owner of the legal es- 
 tate-tail, without obtaining the concurrence 
 of the person who has the legal freehold (g). 
 And therefore as often as a recovery is to be 
 suffered by the owner of the legal estate- 
 tail, care must be taken to obtain the con- 
 currence of the person in whom the legal 
 estate of freehold resides ; and if it be out- 
 standing in a mortgagee or trustee, such 
 mortgagee or trustee must be a party. 
 
 When a recovery is to be suffered of 
 an equitable estate-tail, and the tenant 
 in tail has made a mortgage by means of 
 a conveyance in fee, or for an estate of 
 freehold, it is doubtful whether a recovery 
 afterwards suffered by the tenant in tail 
 without the concurrence of the mortgagee 
 can be supported. On the one hand, it is 
 contended that the mortgagee has, in 
 equity, merely a chattel interest, by way of 
 security for his money, and that the whole 
 beneficial ownership, subject to the pay- 
 
 {/] Phillips V. Brydges, Amb. 545, C99. 1 Bio. Cl>. 
 3 "Vi's. jiiii. I'iO. Ca. 73, in notis. 
 
 (/,') Salvin v. Thornton,
 
 ON EQUITABLE RECOVERIES. 
 
 ment of the money, remains in the mortga-[ 25 ] 
 gor : so that he is competent to make a 
 i>;ood tenant of the equitable freehold. 
 Such is understood to be the opinion of a 
 highly distinguished law character. On the 
 other hand it is objected that the mortgage 
 iSj in equity, an alienation of the equitable 
 freehold ; so that the mortgagee has the 
 equitable estate, subject only to redemp- 
 tion : and that the analogy of the rules of 
 law, with regard to legal estates, must be 
 applied to this case, and consequently the 
 recovery cannot be good without the con- 
 currence of the mortgagee. This was the 
 opinion of a very eminent lawyer, who now 
 fills one of the highest departments in the 
 profession. 
 
 In suffering a recovery it would be highly 
 imprudent to subject the title to an objec- 
 tion by neglecting to obtain the concur- 
 rence of the mortgagee. The point is im- 
 portant only in considering, whether a reco- 
 very suffered without this precaution will 
 confer a title which can be safely accepted. 
 
 On the other hand, a recovery suffered by [ 26 ] 
 a tenant in tail of a legal estate, with the 
 assistance and concurrence of the tenant of 
 the legal estate of freehold, will certainly be 
 good at law, notwithstanding the owner of 
 the equitable freehold does not join in 
 making the tenant to the writ of entry.
 
 27 ON EQUITABLE RECOVERIES. 
 
 Whether the trustee will not be guilty of a 
 breach of trust, for lending his assistance to 
 the tenant in tail to bar the remainders 
 over, is a point not fully decided. Even 
 the late case of Moody v. Walters [i), has left 
 this important point in as much doubt as 
 existed prior to that cause. Much, per- 
 haps, must depend upon circumstances ; and 
 circumstance must be considered as having 
 governed the decision in Moody v. Walters ; 
 but, in application to most cases, the reco- 
 very will be considered as good. 
 
 Sometimes a question arises under other 
 circumstances besides those already noticed, 
 whether there is a good tenant to an equit- 
 able recovery. In one case the tenant of 
 the legal estate, conveyed, at the instance 
 and with the consent of the owner of the 
 equitable estate, and it was the opinion 
 of several gentlemen who were consulted 
 on this point, and among them, the late 
 L 2/ J Mr. Fearne, that this amounted to an alien- 
 ation of the equitable estate, making a good 
 tenant to the writ of entry for suffering the 
 equitable recovery. In another case, the 
 legal tenant of copyhold lands, surrendered 
 to the use of the person named tenant in the 
 plaint, for suffering a customary recovery, 
 and the equitable tenant in tail was vouched 
 and vouched over. The point for conside- 
 
 (i) IGVes.jun. 283.
 
 ON EQUITABLE RECOVERIES. 28 
 
 ration on the title was, whether tlie equita- 
 ble tenant in tail, by being vouched, and by 
 having procured the surrender to be made 
 by his trustee, without having been party to 
 the surrender, had given a right to the 
 equitable estate of freehold to the intended 
 tenant in the recovery. The title thus cir- 
 cumstanced was considered too doubtful to 
 be accepted, but, individually, the gentle- 
 men who considered this case thought there 
 were strong grounds for supporting the re- 
 covery. 
 
 The like point arises, when a cestui que 
 trust conveys his estate to one person for life 
 in trust for another, as for the separate use 
 of a married woman, with remainders over 
 in tail : even in this case conveyancers do not 
 feel that confidence on w^hich they can im- 
 plicitly rely. Some contend that the trustee 
 has the equitable freehold; while others main- 
 tain the opinion that the person who has the 
 beneficial interest is solely the equitable 
 owner, and that this person alone may make 
 a good tenant to the writ of entry, for suf-[ 28 1 
 fering a common recovery. This seems to 
 be the better opinion, for the supposed trus- 
 tee has no estate at law, and it should seem 
 that even in equity he has no more than an 
 office, and not any interest, which can render 
 his concurrence in a common assurance, like 
 a recovery in any wise necessary. 
 
 The cases in the note (p. 22.) will also
 
 28 ON EQUITABLE RECOVERIES. 
 
 show, that in some cases an attempt has 
 been made to invalidate equitable recoveries, 
 on the ground of an adverse possession, 
 corresponding in effect with a disseisin of a 
 legal estate. The cases on this point should 
 be considered from the reports of the cases 
 themselves. 
 
 It is also observable, that a recovery suf- 
 fered by a person who has the legal estate 
 in fee, subject to an equitable intail in him- 
 self, may bar {k) this equitable estate-tail, 
 and all ulterior interests. 
 
 And, once for all, it may be observed, 
 that there is not any occasion on which it is 
 more important that a full abstract of the 
 title should be laid before the conveyancer 
 for his advice, than when preparing a reco- 
 very deed. It has happened more than 
 once, that six recoveries have been suffered 
 to bar the same estate-tail, and that five of 
 them have been defective, for want of a good 
 tenant to the writ of entry ; and the sixth 
 recovery, though good according to the 
 better opinion, involved the question, whe- 
 ther a recovery defective, as against the 
 issue in tail, and those in remainder and 
 reversion, for want of a good tenant to the 
 writ of entry, is good as between the parties, 
 so as to pass the estate by way of estoppel 
 or conveyance, and supply a seisin to serve 
 the uses declared thereof. 
 
 [k) Marwood v. Turner, 3 P. W. 1C3.
 
 29 
 
 ON THE PARTIES TO A RECOVERY 
 
 THE PARTIES TO A RECOVERY ARE 
 
 1. The Demandant. 
 II. The Tenant. 
 \\\. The Vouchees. 
 
 I. Of the Demandants 
 
 The demandant is merely a formal party, 
 for the purpose of supporting the charac- 
 ter of plaintiff in the action on which the 
 recovery is founded. It is of little conse- 
 quence who is named demandant. Generally 
 only one person is named. Sometimes two 
 persons are named. Respecting the de- 
 mandant, it is merely necessary that he 
 should be alive when judgment is given on 
 the recovery. In case he dies pending the 
 proceeding, another demandant must be 
 named, and the proceeding commenced de 
 novo ; but if the recovery deed be actually 
 prepared and executed, there will not be any 
 
 VOL. I. D
 
 ON THE PARTIES 
 
 [ 30 ] occasion for another recovery deed. A pre- 
 cedent of a deed prepared on occasion of 
 the death of a demandant will be found in 
 the Appendix, p. 466. The deed was in that 
 case prepared to meet the wfshes of the 
 parties, rather than from any conviction 
 that it was necessary. 
 
 II. Of the Tenant, 
 
 The tenant is the person in whom the 
 freehold resides, and against whom the 
 lands are to be demanded by the plaintiff, 
 in real actions called the demandant. By 
 the freehold must be understood the imme- 
 diate freehold («). 
 
 For convenience, some gentleman residing 
 near to, and personally attending the court 
 in which the recovery is to be suffered, should 
 be named the tenant. This practice will 
 save the expense of a dedimus to take his 
 warrant of attorney, an expense which 
 otherwise will be necessary (b). Sometimes 
 two persons are named tenants. This is 
 done to ijuard against the death of one 
 tenant before the recovery is suffered. This 
 caution can rarely be necessary in the com- 
 mon and ordinary practice of suffering the 
 recovery in the first instance, and executing 
 
 [a] Essay on Est. chap. Free- [b] Vvi. on Kecoveries, 26. 
 
 hoUl.
 
 TO A RECOVERY. 31 
 
 the deed, making a tenant to the recovery 
 at a subsequent period. When two persons 
 are named tenants, and both are alive at [ 31 ] 
 the time when the recovery is suffered, both 
 these persons must be named as tenants in 
 the proceedings for suffering the recovery. 
 Should only one of these persons (as has 
 sometimes happened) be named, the reco- 
 very will be defective for the moiety or other 
 share of the person not named in the pro- 
 ceedings : for, as to his share, the recovery 
 will be suffered without a good tenant to 
 the writ of entry. So, when two persons , 
 are joint-tenants, and the recovery is suf- 
 fered on a writ brou«[ht ao^ainst one of 
 them, the recovery will be defective for a 
 moiety (c). 
 
 It is not absolutely necessary that there 
 should be a conveyance, for the purpose of 
 making a tenant to the writ of entry. The 
 writ may be brought against the person in 
 whom the freehold is vested. A recovery 
 suffered in this mode v/ill be good, so far as 
 the existence of a good tenant to the writ of 
 entry is material. In some cases, it has been 
 advised that the writ should be brought 
 against the tenant : thus, where lands were 
 given to one in tail, Vv ith a conditional limi- 
 tation over in the event of his alienation, 
 
 (c) Marquis of Winchester'' s Case, 3 Co. 1. 
 D 2
 
 ON THE PARTIES 
 
 Mr. Fearne (d) recommended that he should 
 •- ^^ J be named as tenant in the recovery ; in other 
 words, that the writ of entry should be 
 brought against him, that the recovery it- 
 self might be the alienation, and bar the 
 conditional limitation before it operated. 
 
 When the lands lie in different jurisdic- 
 tions, as in England and Wales, or within 
 the jurisdiction of the courts of Westmin- 
 ster-Hall, and one of the counties Palatine, 
 there may be one recovery deed ; but it will 
 be found cosivenient that the lands in each 
 distinct jurisdiction should be conveyed to 
 a distinct person as tenant. 
 
 In bargains and sales made under these 
 circumstances, there should be different 
 grants to the different persons to be tenants 
 in the different recoveries. 
 
 In conveyances which admit of a decla- 
 ration of use, the conveyance may be made 
 to one person, to the use, as to the lands, 
 &c. in one jurisdiction, of the intended 
 tenant in the recovery to be suffered in this 
 jurisdiction ; and as to the lands in the other 
 jurisdiction, to the use of the intended 
 tenant in the recovery to be suffered in that 
 juristiiction. 
 
 For example, the conveyance may be 
 made of all the lands to A. and his heirs, 
 " to I he uses hereinafter declared of and 
 
 [d] Post. Works, 335.
 
 TO A RECOVERY. 53 
 
 "^^ concerning the said lands respectively, 
 -' (that is to say) 
 
 '' As to, for, and concerning all those, &:c. 
 " situate in the county Palatine of Lancas- 
 •* ter," [or "in the county of in Wales/'[ 33 ] 
 or " in Ireland/' &c. mutatis 
 
 »2Mw^rtW6^/5accordingtothecircumstances,]"to 
 ** the use of and his heirs, to 
 
 '* the intent/' &c. (here detailing the intent 
 of suffering the recovery), "and as to, for, 
 *' and concerning all those/' &c. [if parti- 
 cular lands ; or " all other," &c. if the resi- 
 due,] " to the use of and his 
 " heirs, to the intent/' &c. 
 
 Even in cases of this description, one de- 
 claratory clause of the intent of suffering 
 the recovery will suffice : so as a special 
 clause, or declaration, shall be added, which 
 will be to this effect, viz. " that the several 
 " limitations hereinbefore made to the use 
 *' of and respectively, 
 
 " and tlieir respective heirs are made to 
 " them respectively, to the intent that they 
 " respectively may be tenants of the free- 
 " hold of the lands, &c. conveyed to them 
 " respectively, and that each of them shall, 
 " as to the lands limited to his use, &c. 
 " permit and suffer the said (the de- 
 
 " mandant) to sue forth and prosecute/' 
 &c. See Index to the Precedents, vol. " Re- 
 covery/'
 
 ON THE PARTIES 
 
 [ 34 ]jBj/ what Means the Tenant to the Writ of 
 
 E7itri/ is made. 
 
 The conveyance for making a tenant 
 to the writ of entry may be by fine, by 
 feoifment, by lease and release, by bar- 
 gain and sale ; or in short, any species of con- 
 veyance, proper to pass the immediate free- 
 hold. 
 
 Formerly it was the practice in all cases 
 of recoveries, in v/hich the lands were the 
 inheritance of a married woman, to have 
 a fine from her and her husband, on the 
 suppossition that her freehold and inheri- 
 tance could not be conveyed so as to make 
 a tenant to the writ of entry, without a 
 fine. 
 
 The practice is now altered in this parti- 
 cular. From several cases (e) it is clear, 
 that the husband has the freehold in right 
 of his wife, and that he alone may make a 
 good tenant of the freehold by his convey- 
 ance. To this practice there is one excep- 
 tion, peculiarly applicable to equitable re- 
 coveries. 
 
 For in equitable recoveries, when the wife 
 has the freehold^ by way of separate estate, 
 the husband has no seisin in her right, and 
 
 {e) 2 Roll's Abr. 394, ])1. 4. T. Talb. 114. 1 Aik. 473. 
 liobhison V. Cumming, Case
 
 TO A RECOVERY. o5 
 
 the wife alone is competent to make a good 
 tenant of the freehold. 
 
 On this point also the practice has varied : 
 formerly it was the prevailing opinion, thatr 35 i 
 the wife could not convey lier equitable free- 
 hold, without a fine levied by her and her 
 husband ( /') : but in Burnaby and Griffin {g) 
 Lord Loughborough, Chancellor, denied the 
 necessity of a fine. The ground of his opi- 
 nion was, that a feme-covert, who has the 
 equitable freehold of lands, by way of sepa- 
 rate estate, may alien that estate, and, con- 
 sequently, transfer her equitable freehold 
 to the tenant. The determination in this 
 case is said not to have been satisfactory to 
 the gentlemen of the Chancery-bar; and 
 subsequent to that determination, two emi- 
 nent conveyancers, in considering a ca?e be- 
 fore them, thought a purchaser entitled to 
 expect another recovery, although a reco- 
 covery had been suffered, in which the wife 
 alone made the tenant to the writ of entry. 
 At the same time, the private opinion of 
 one of these gentlemen was, that the de- 
 termination was right : and, upon princi- 
 ple, it would be very dilHcult to impeach 
 that deterinination ; for, as the husband 
 has no estate or interest in right of his wife, 
 when there is a trust for her separate use. 
 
 {/) Fearne'8 Post. Works, 330. {g) 3 Ves. Jan. 2C6.
 
 ON THE PARTIES 
 
 there is an absurdity, and an inconvenience, 
 [ 36 ]in requiring Jiis concurrence; and as the 
 wife has a separate estate, she is by the ac- 
 knowledged rules of a court of equity, to 
 be considered as a feme-sole, as far as she is 
 made a feme-sole by the trusts declared in 
 her favour. It is also observable, that as she 
 cannot levy a fine without the concurrence 
 of her husband, to require a fine from her 
 is to sive the husband a controul over the 
 property ; while it was intended, and is the 
 nature of the trust, to give to the wife the 
 power of enjoying, or aliening this pro- 
 perty, without his interference or concur- 
 rence. 
 
 When the tenant to the writ of entry is 
 made hyjine, it is sufficient that the fine is 
 levied, as of the same term [h) in which the 
 recovery is suffered. A fine levied .by 
 tenant in tail in 3, prior term, without any 
 declaration of the use, will, by construction, 
 be deemed a fine levied to the con usee for 
 his own use, so as to keep the freehold in 
 him, to make him tenant, even notwith- 
 standing a long interval has elapsed, and 
 there was, at the time of levying the fine, 
 no declared intention of suffering a common 
 recovery (z). 
 
 The subsequent transaction rebuts the 
 
 (A) Phetijplace v. , Gilb. Eq. Cases 16. 2 Salk. 
 
 3 Kelj. r)07. 070. 
 
 (a] AUham v. Anglesey, Pigot on Rec. 52.
 
 TO A RECOVERY. 
 
 presumption of a resulting use in favour of [ 37 ] 
 the conusor. 
 
 Also a recovery will be good, when the te- 
 nant to the writ of entry is made by fine, 
 notwithstanding the fine shall, after the 
 recovery has been suffered, be reversed foi 
 error (/i) 
 
 The fine remains in force till avoided, and 
 the conusee has the freehold, till that free- 
 hold is, by avoiding the operation of the fine, 
 defeated ; so that the freehold continues in 
 the conusee till the writ of entry is brought, 
 and this is all the law requires : for as a ge- 
 7ieralrule, at common law, it was sufficient, 
 that there was a good tenant to the writ of 
 entry at any time before judgment (/); 
 namely, before the return of the writ of 
 entry, or of the summoneas ad warrantizan- 
 dum^ on which the recovery is grounded, 
 and to which it relates (/tz). 
 
 In this particular there is a difference be- 
 tween a tenancy to a writ of entry, made by 
 a fine voidable for error, and by a bargain 
 and sale, which becomes void for want of 
 enrolment in due time, as will be observed 
 in the further consideration of this subject. 
 
 There is also a difference between a tenancy 
 to a writ of entry made by fine, and by 
 
 [k] Lloyd V. Evelyn, 2 (/) Lacy v. Williams, 2 
 
 Salk. 508. Salk. 568. Pi^ot, 30. 
 
 (wj) Pig. 29, 30.
 
 38 ON THE PARTIES 
 
 feoffment. A fine is an acknoAvle(]gment of a 
 feoftment on record {n) : but unless the co- 
 L ^^ ]nusor in the fine has the freehold, the free- 
 hold will not pass (o). A feoffment will, from 
 its peculiar properties, gain a freehold, and 
 make a good tenant to the writ of entry {p). 
 The tenant to the writ of entry is fre- 
 quently made by bargain and sale inrolled ; 
 and the recovery grounded on the bargain 
 and sale will be good, notwithstanding the 
 inrolment takes place subsequent to the term 
 in which the recovery is suffered (^). On 
 account of the peculiar properties of a bar- 
 gain and sale, the recovery will be void, or 
 rather voidable, unless the bargain and sale 
 shall be inrolled in due time, namely, with- 
 in six lunar months (r). For though it is 
 now agreed that the bargain and sale ope- 
 rates insfa?ifer on the freehold, yet this ope- 
 ration is subject to an implied condition, 
 that the grant shall be deemed void ab ini- 
 tio, unless the inrolment shall take place 
 within the limited time. This point is an 
 anomaly in law ; and is the result of the 
 
 (w) 2 Black. Com. tU8. (</) Hynde's case, 4 Co. 71. 
 
 (ci) iJurmer v. Parkhurst, 3 Pig. 50. 
 Atk. I;,5. (r) Mallery v. Jennings, 2 
 
 ( p) Pif^ot, 40. Litt. sec. Inst. 074. Shep. Touch, 
 
 fill. Co. I.irt. ;i:30. b. 22(}. 
 
 'I'litfliir tx, (Ion. Aiki/ns V. Lellingliam \, A/sop, 21i\it. 
 
 Ihmle, 1 |{un. (iO. 7) Bn,. Par. 075. 
 Cas. 247 is to the cyiitrary.
 
 TO A RECOVERY. 39 
 
 provisions of the statute of inrolment, and 
 not of the rules of the common law. By the 
 rules of the common law, provided there 
 was a seisin at the time when the writ of 
 entry was sued, that seisin would have sup- 
 ported the recovery, although the seisin 
 was defeated, after judgment given, by a 
 condition {s), or evicted by an elder title. 
 It is said after judgment, for a recovery in 
 formedon against the tenant, pending the 
 writ, abated the writ (t). 
 
 The observations which have been offered 
 suppose it to be essential, that the instru- 
 ment, w^hich is in the form of a bargain and 
 sale, should operate in that mode. Should 
 circumstances allow of the operation of 
 the instrument in a different mode; forr 39 ] 
 example, as a grant, so as to pass the 
 freehold ; or as a surrender, so that the im- 
 mediate freehold may be in the person named 
 as tenant : resort may be had to that con- 
 struction, to support the operation of the 
 deed, and, through its medium, the validity 
 of the recovery. In all cases of this sort, 
 with the exception of the case of a bargain 
 and sale inrolled, it is sufficient that the 
 freehold was in the tenant at the time when 
 the recovery was suffered ; or appears to have 
 been in him during that term (u) : and the 
 
 [s] 1 Keb. 785. (m) 14 Geo. 2. c. 20. 
 
 (^j 1 Ld. Raym. 476.
 
 40 ON THE PARTIES 
 
 point to be regarded is, whether the deed 
 under consideration, had by any, and what 
 mode of operation, the effect of "ivuiii the 
 tenant the seisin of the immediate fretliold. 
 
 When a recovery is to be suffered of lands 
 of considerable value^ or of lands intended to 
 be sold in parcels, it is prudent to have the 
 tenant to the writ of entry made by bargain 
 and sale ; or at least by some deed iiirolled : 
 so that future purchasers may, by referring 
 to the inrolment, and, if necessary, taking 
 an office copy, have complete evidence of 
 the recovery deed ; and that the owner may 
 not, on a sale in parcels, be bound to give 
 copies of the recovery-deed to the purcha- 
 sers {v). A fine is sometimes levied with 
 tliis view. 
 [ 40 ] It is agreed that bargains and sales mere- 
 ly give an use, executed into estate by the 
 statute for transferring uses into possession 
 [w). On this account no use can be declared 
 of the seisin of the bargainee. Such ulte- 
 rior use is an use upon an use [x). 
 
 These observations are inapplicable to 
 uses declared in a bargain and sale, of a re- 
 covery suffered, or to be suffered. In that 
 case the uses are to arise from the seisin of 
 the recoveror, and not from the seisin of the 
 
 (v) See infra, chaj). on Bar- (a) TyrreVs case. Dyer, 
 
 gains and Sales. 155, a. 
 
 [w] 27 H. VIII. c. 10.
 
 TO A RECOVERY. 41 
 
 bargainee [y). The rule that a use cannot 
 arise on the seisin of a bargainee, is confined 
 to bargains and sales, to operate through 
 the medium of the statute for transferring 
 uses into possession, [z) 
 
 Bargains and sales, which pass a common 
 law seisin, do not fall within the scope of 
 this rule. This point will be more fully 
 illustrated in the chapter on bargains and 
 sales. 
 
 When the tenant to the writ of entry is 
 made by any other means than a fine, or by 
 bargain and sale inrolled, it is necessary 
 only to take care that the conveyance is 
 sufficient, in point of law, to transfer the 
 immediate freehold to the intended tenant. 
 
 In the instance of a feoffment there must[ 41 ] 
 be livery of seisin. In case of a grant, there 
 must be a remainder, reversion, or an incor- 
 poreal hereditament. And in the instance 
 of a release in enlargement of an estate, 
 there must be an estate capable of enlarge- 
 ment. These estates must be conveyed, at 
 least appear to be conveyed, so as to vest 
 the freehold in the person named as tenant, 
 during the term in which judgment is 
 given, in the recovery («). 
 
 In all the instances which have been 
 stated, when the deed cannot operate in the 
 
 { «/) Wehb V. Nect, Cro. [z] 27 H. VIII. c. 10. 
 
 Eliz. [a) 14 Geo. 2, c. 20.
 
 41 ON THE PARTIES, &C. 
 
 precise mode in which it was intended to 
 have effect, it is to be considered whether 
 it cannot operate with effect in some other 
 mode. The general rule is, " that the 
 *•' construction be such, that the whole deed 
 " and every part of it may take effect, and 
 *' as much effect as may be to that purpose 
 '^ for which it was made : so as when the 
 *' deed cannot take effect according to the 
 '' letter, it be construed so as it may take 
 •^ some effect or other [b) ;'' and this rule is 
 highly favoured, and receives a very liberal 
 interpretation and extensive application (c). 
 
 In many instances, a title, deemed de- 
 fective for want of due inrolment, might 
 be, and in point of practice may be sup- 
 ported ; by considering whether the deed 
 though invalid as a bargain and sale inrol- 
 led, may not operate as a grant, and pass 
 the freehold in that mode. 
 
 At the common law there were only four 
 species of assurance ; a feoffment, a grant, 
 a lease, and a release in eidargement of an 
 estate previously granted. 
 
 Unless the owner had the possession, he 
 had not any right to make livery of seisin ; 
 nor could he make livery of seisin with 
 effect, unless the tenant in possession, con- 
 sented to give up the possession, at least 
 
 (b) Slicj). Touch. 84. Will.s's Rep. C82. 2 Wils. 
 
 (c) lioe V. Trunmcr, 7b.
 
 ON THETENANT TOTHE WRITOFENTRY. 42 
 
 pro hac vice, or assented to the liveiy. All 
 reversions and remainders expectant on any 
 particular estate, even on an estate at will, 
 or a tenancy by copyhold ; and also all in- 
 corporeal hereditaments were alienable to a 
 stranger by means of a grant by deed : and 
 this grant was inchoate only, till the te- 
 nant had attorned, or in other words, con- 
 sented to the grant. The statute of 
 4 and 5 Ann. c. 16. for the amendment 
 of the law, superseded the necessity of at- 
 tornment ; so that now, notwithstanding 
 the doctrine adverted to by Mr. Fearne, (d) 
 to the contrary, a grant by a person having 
 an incorporeal hereditament, or having a 
 reversion or remainder expectant on any 
 particular estate, (and for the purpose of 
 these observations, it is necessary only to 
 notice a term for years, or at will,) will 
 immediately, and by its own operation, 
 pass the freehold to the grantee. 
 
 fV/w shall be a sufficient Tenant to a lVrit[ 42 J 
 ()/' Entry, in Point of Estate. 
 
 The law has carefully distinguished be- 
 tween those estates which are, and those 
 which are not of a freehold quality. It is 
 of general uti'ily, and of the first impor- 
 tance, with a view to the validity of reco- 
 
 (Ji Ftiarne's Posth. 28.
 
 45 ON THE TENANT TO THE 
 
 veries, to acquire a correct knowledge of the 
 nature, gradation, and extent of estates ; 
 and the author cannot, in his own opinion, 
 i-ender a more acceptable service to those, 
 for whose use these observations are intend- 
 ed, than by taking a comprehensive view 
 of this subject, and offering such practical 
 deductions as arise out of the same. He 
 will therefore fully discuss this learning, in 
 the chapter on surrenders ; or on merger ^ as 
 connected with that head of the law. At 
 present it will be sufficient to observe, that 
 estates are divided into, estates, 1st of free- 
 hold, and 2d, not oi freehold. Estates of free- 
 hold are again divided into estates which are 
 of inheritance, and estates which are not . of 
 inheritance (e). 
 
 Estates which are not of freehold are 
 merely chattel interests. Of this descrip- 
 [ 43 ]tion are, 1st, terms of years ; 2d, interests 
 by statute merchant, statute staple, and 
 elegit ; and 3d, other uncertain interests 
 as a devise to executors till debts are 
 paid (/). 
 
 By these chattel interests, no right to the 
 freehold is conferred ; and for this reason, 
 when the person against whom the writ of 
 entry is brought, has merely a term for years, 
 or any other interest less than the freehold, 
 
 {(•) Essay oil Estates, 114. Chap, on Chattel Interests. 
 {/) Lbsay on Estates, 003,
 
 WRIT OF ENTRY. 44 
 
 the recoveiy will be defective. An estate to 
 a man for 99, oi' any other number of years, 
 if^ he shall so long live, is a mere chattel in- 
 terest. The owner of such an interest can- 
 not either be, or make a good tenant to 
 the writ of entry [g). 
 
 In one instance, by the rule of the com- 
 mon law, a termor for years might by the 
 mere act of law, without descent, have be- 
 come the freeholder. This hapened by 
 occupancy, when the law cast the freehold on 
 the occupier (/«). — That case is an anomaly. 
 The occupier was the tenant of the freehold 
 by reason of the occupancy (i). Though 
 his possession, under the term, was the cause 
 of his occupancy, the term was, in the con- 
 clusion, that he had the freehold totally dis- 
 regarded. Had a stranger been found the[ 44 ] 
 occupier, he would have had the freehold 
 as occupant. 
 
 By the statute law [k), the executors and 
 administrators are substituted in the place of 
 the general occupant : and Mr. Har grave 
 (/) observes, " the title by general occu- 
 pancy is now universally prevented by the 
 Stat, of 29 Car. II. c. 3. sect. 12 ; and 14 
 Geo. II. c. 20. sect. 9." 
 
 [g] Smith ex clem. Dormer [i] Hale's Notes to Co. Litt. 
 
 V. Parkhurst, 3 Atk. 135. 41, b. 
 
 [h) Hale's Notes to Co. Litt. [k] 29 Car. 2, c, 3, sec. 12. 
 
 41, b. Pig. on Recov. 35. 14 tieo. 2, c.20. s. 9. 
 
 Harris v. Fielding, 1 Keb. (/) Harg. Co. Litt. 41, b. 
 
 785. note 5. 
 
 VOL, I. E
 
 44 ON TliE TLNANT T9 Till:', 
 
 The statutes however have not substi- 
 tuted an occupant in those instances in whicli 
 by law there could not be a general occu- 
 pant, as in copyholds, and in rents, and 
 other incorporeal hereditaments (w). And it 
 was strenuously urged by Lord Redesdale, 
 while chancellor in Ireland [n) that the 
 executors or administrators never could, by 
 law, have been special occupants. In Ripley 
 V. Waterworth (0), Lord Eldon did not fully 
 subscribe to this doctrine. 
 
 And there is one case in which, per-,^ 
 haps, the]'e may for a time, even at this 
 day, be a freehold by general ctcupancy, 
 namely, in the interval between the deatli- 
 of a tenant pour autre vie, who dies intestate, 
 and the time of obtaining letters of admi- 
 nistration of his effects. Without allowinji 
 a title by occupancy to exi.st, for the inter- 
 mediate time, the maxim of the law, which 
 so carefully guards against the abeyance of 
 the freehold, would be infringed. Unless the 
 law leaves the freehold open to occupancy 
 during the intermediate time, it must be 
 assumed that the statute of 14 Geo. 11. re- 
 quires the construction, that it gives to the 
 administrator a title by relation ; and thiy 
 construction must proceed on the ground 
 
 (»;) // iihirs v. Withers, 2 IJl. Com. 2()(). and see 3. 
 
 Ainl>l. l'»l. East. 27(>. 
 
 y.oaih V. rurset 7 Eust. (m) 1 !Scli. aiul I.ef- 288. 
 
 180. (y) 7 Ves. J. 425, 440.
 
 WRIT OF ENTRY. 45 
 
 that no inconvenience will be produced, as 
 administration can be obtained by a stranger, 
 incase tlie party who is entitled to adiTiinis-[ 45 ] 
 tration shall, on being cited, refuse to take 
 letters of administration. 
 
 Thus the freehold of the church will be in 
 abeyance, till a successor to the parson shall 
 be appointed (p) ; and on the death of the te- 
 nant pour autre vie, leaving the possession 
 vacant, the freehold will be in abeyance till 
 some one enters (</). The former hypothesis 
 is most consonant with our system of tenures. 
 Thus in the case of the birth of a posthu- 
 mous child, the heir for the time being is 
 allowed to take {r) : and the statute of Will. 
 III. (.s) applies u}iii/ to posthumous children, 
 who are to take by purchase, on the death 
 of their parent ; and consequently are in esse 
 to many purposes (if)' 
 
 All estates of inheritance are estates of 
 freehold. Estates of freehold, however, are 
 not necessarily estates of inheritance. 
 
 Under the division of estates of freehold, 
 may be classed, 
 
 Fii'st, The estate of tenant for his qww 
 life. 
 
 (p ) Co. Litt, 342, b. [s] 10 & 11 Will. III. c. 16. 
 
 (7) Ib.d. (n Doe V. Clarke, 2 H. 
 
 (r) Shelley's case, 1 Co. Black. 401. 
 
 93, b.Wutkins' Descent, ch. 4. Millar v. Turner, 1 Vese. 
 
 Basnett v. Bassett, 3 Atk. 87. 
 207. 
 
 E 2
 
 46 ON THE TENANT TO THK 
 
 Secondly J For the life of another person, 
 or pour autre vie. 
 
 Thirdly, For the joint lives of several per- 
 sons. 
 [ 46 ] Fourthly, For a period which is circum- 
 scribed by, and may determine during a life 
 or lives, as, — 
 
 1st, During widowhood. 
 
 2d, During chastity. 
 
 3d, While sole. 
 
 4th, Till the return of A. from Rome, and 
 the like ; of which a great variety of exam- 
 ples, with the circumstances distinguishing 
 estates of uncertain duration, which are of 
 freehold, from those which are of inheritance, 
 will be found in the essay on estates {ii). 
 Some of these estates of mere freehold may 
 be transmissible to heirs, or heirs of the body; 
 still, however, they are merely estates of 
 freehold and not of inheritance. The heij^s 
 are to take by special occupancy or desig- 
 nation, not by descent (v). 
 
 Estates of inheritance are, 
 
 1st, Estates in fee simple. 
 
 2d, Qualified fees. 
 
 3d, Determinable fees. 
 
 4th, Fees subject to conditions. 
 
 («) Cliap. Instates for l.ife. Doe d. Blake v. Luxton, G 
 
 [v) Loxv V. Jiurron, 3 P. W. Tenn Rep. 281). 
 
 262. Ripley v. tVaterworth, 7 
 
 Cret/ V. Manock, stated G Ves. juu. 425. 
 
 Term Kep. 292.
 
 WRIT OF ENTRY. 47 
 
 5th, Fees conditional, and 
 
 6*tli, Estates-tail, in all their varieties (zi)). 
 
 And whatever is the nature or extent of[ 47 'j 
 the freehold, vested in the tenant, whether 
 it is of the superior or inferior denomination, 
 is of no material importance to the vaUdity 
 of the recover)^ All that is regarded is, 
 that the tenant should have thefreehold : no 
 attention is paid to the circumstance, that 
 the estate is absolute or conditional, indefi- 
 nite or determinable. It will be sutEcient, 
 even though it should continue in the tenant 
 only for an instant ; as in case of a grant 
 made ivithiri the term to A. and his heirs, till 
 he shall be tenant of thefreehold. Though the 
 freehold commences, and, as it should seem, 
 determines in the same instant, under this 
 grant, the rule of law, which requires the 
 tenant to have the freehold before judgment 
 is given, will be satisfied. 
 
 Who shall be said to have the Freehold. 
 
 The law does not merely and simply re- 
 quire that the tenant should have an estate 
 of freehold. — Any estate of freehold or in- 
 heritance would answer that description. 
 He must have that estate which confers 
 the interest, emphatically denominated the 
 freehold: in other words, the immediate 
 
 (»'?] Essay on Estates, Chap. Fee. 
 
 [ 48 3
 
 49 ON THE TENANT TO THE 
 
 freehold ; namely, the first of all the estate:* 
 of freehold. For example, when A. is tenant 
 for life, remainder to B. for life, in tail, or 
 in fee, B. has an estate of freehold, but A. 
 has the immediate freehold ; and it is he, or 
 the person claiming under his conveyance, 
 who must (to bar the estate-tail, &c.) be 
 named tenant in the proceedings [x) : unless 
 indeed an end be put to his interest, by the 
 surrender or merger of his estate ; so as to 
 accelerate the remainder or reversion, and 
 thus confer on the owner of the remainder 
 or reversion the title to the immediate free- 
 hold. And it is immaterial whether the te- 
 nant has the freehold in fact ^ov the freehold 
 in law only, as an heir before entry [y). 
 
 Another conclusion to be drawn from 
 these observations is, that the tenant must 
 have the a^tateoi freehold. A mere contin- 
 gent executory interest is not any estate : such 
 interest will not answer the description of an 
 estate of freehold (:;). 
 [ 49 ] Whoever wishes to understand this sub- 
 ject in a scientific manner must study the 
 learning of real actions. As an introduction 
 to this interesting subject, the chapter on 
 Fieeholds in the Essay on Estates, will, it 
 is hoped, be found of some use. 
 
 (j) Vv^u\,^7. {2) See Tracts on Cross Re- 
 
 Smit/i t'x. (Ion. Dormer v. mainders, Index, vo. Execu- 
 
 PnrlJmrsl, '-i Atk. lUo. iorf/. 
 
 (//) Sfc J'iggul V. Waller, 
 
 7 Ves. J.Ob.
 
 WRIT ov EX nrv . 
 
 Who, in Point of Estate, &c. tan 7nake a suf-^ 50 ] 
 Jicicnt Tenant to the Writ of Entry ; and to 
 what extent in Point of Share. 
 
 Any person in whom the freehold is vested, 
 may convey it by a formal and efficient in- 
 strument, unless incapacitated by infancy, 
 coverture, idiocy, or lunacy. 
 
 The freehold in all cases belongs either to 
 one person solely ; or to several personsjo/w^- 
 iy ; or to several persons in common or seve- 
 ralty ; or to two persons as tenants by in- 
 iireties {a). Thus there will be either a sole 
 tenant of the freehold, joint-tenants, te- 
 nants in common, or tenants by entireties. 
 
 Again, persons are to be considered as 
 having the freehold either in their own 
 right, or in right of some other person. 
 
 When a person is solely seised, he alone 
 may be, or may make, a tenant to the free- 
 hold of the intirety. 
 
 When several persons are seised of the free- 
 bold as joint tenants, or tenants in common, 
 neither of them can, by a conveyance, make 
 a tenant of the freehold for more than his 
 aliquot part. Nor can a tenant in common 
 
 [a] Essay on Estate?, intro- BeaumonVs case, 9 Co^ 
 
 ductory Chap. p. 46. 1.38, b. 
 
 Greiieley's case, 8 Co. 71, b.
 
 ON THE TENANT TO THE 
 
 [ 51 ]be considered as a good tenant for more than 
 his particular sliare. A joint^tenant cannot 
 convey more than his aliquot part. If the 
 writ is brought against him as sole tenant y 
 and he takes the defence on himself, there 
 will be a good tenant to the writ of entry 
 for his part only. Notwithstanding joint- 
 tenants are seised per my S) per tout, and 
 joint-tenancy is only a plea in abatement [b) ; 
 yet the want of the freehold for the remain- 
 ing parts will, as to those parts, affect the 
 validity of the recovery. The Marquis of 
 Winchester's case (c) was decided on this 
 ground. 
 
 Sole tenancy is also a plea in abatement. 
 But if the writ be brought against several, 
 when one of them alone has the freehold, the 
 recovery will be good (d). 
 
 Tenancy by intireties is peculiar to hus- 
 band and wife, and arises from the legal no- 
 tion of the unity of their persons [e). 
 
 In all cases of several tenants, it is essen- 
 tial that each of these persons should be, or 
 should convey to, the person named as te- 
 nant in the writ of entry, in order that the 
 recovery may be good for his share, 
 f 52 ] As to joint- tenancy, and tenancy in com- 
 mon, under limitations in conveyances to 
 
 (/y) Booth's Heal Actions, 31. (<) Litt. s. 291. 
 
 [i] .'{ (>i. I,aii«l sii|)ra, p. 31. Essay on Est. 4G. 
 
 [d) Eure\.Snow,V\owAb\.
 
 WRIT OF ENTRY. 53 
 
 uses (/), and in wills ("•), the freehold may 
 vest in one person, or two or more persons, 
 subject to a right of other persons who may 
 come in esse, or answer a given description, 
 as '* all my children who shall attain 21 
 years of age," to take jointly, or in common 
 with them ; so that the freehold may shift. 
 In a case of this sort, it should seem suffi- 
 cient, that the person who, /or the time being 
 may be entitled to the freehold, should be 
 named tenant in the writ of entry, or should 
 join in a conveyance to him ; since the per- 
 son named as tenant in the writ of entry will 
 have the freehold at the time. 
 
 But if these persons have an estate-tail, and 
 they suffer a common recovery in which they 
 are vouched and vouch over, this recovery, 
 it is apprehended, will, as to the estate-tail 
 or the remainders over, be binding for those 
 shares only, which shall eventually be their 
 proportion, when the quantum of shares 
 shall be ascertained, by a division between all 
 the persons who now are or ultimately shall 
 become entitled. 
 
 To illustrate these observations : suppose[ 53 ] 
 a devise to be made to all the children of 
 
 [/) Mattheics v. Temple, {g] Oat es \. Jackson, 2 Sir. 
 
 or Sussex v. Temple, Comb. 1172. 
 
 4G7. Doe v. Perri/n, 3 Term 
 
 1 Lord Raym. 311. Rep. 484. 
 
 Mutton's case, Dyer, 274, b. Goodwyn v. Goodwyn, 1 
 
 Brent's case. Dyer, 339, b. Ves. 226.
 
 53 ON THE TENANT TO THE 
 
 A. in tail, and there is only one child, and 
 he suffers a common I'ecovery. Afterwards 
 two children are born. This recovery will, 
 in the lirst place, be good for the in tire ty ; 
 when another child shall be born, it will, at 
 least as tothat child, be defeated for a moiety ; 
 and upon the birth of the third child it will 
 be defeated so as to confine the operation of 
 the recovery to one third part. 
 
 On this point there is not any decision. 
 For that reason, it may be questioned, 
 whether the recovery, though avoided in 
 favour of the subsequent born children, 
 would also, as to the shares of the subse- 
 quent born children, be avoided against 
 those in remainder or reversion. The bet- 
 ter opinion, it should seem, is, and so the 
 practice is conceded to be, that the reco- 
 very will as to these shares be avoided as 
 against those in remainder or reversion ; for 
 by relation, and in the event which hap- 
 pened, the child by whom the recovery was 
 suffered, was tenant in tail, only of one 
 third part of the lands. These springing in- 
 terests are not merely collateral. The lands 
 and the estate of the person who has ac- 
 quired a vested interest, are subject to, or 
 charged with, these springing interests, as 
 concurrent rii^hts. 
 
 The present case must not be confound- 
 ed with cases, in which children, or other
 
 WRIT OF ENTRY. 54 
 
 persons, are, under like circumstances, to 
 have estates-tail, with cross remainders be- 
 tween them in tail ; for when there are cross [ 54 ] 
 remainders, the person suffering the reco- 
 very has a share in every part of the intire- 
 ty, and the recovery may be good under the 
 cross remainders, in respect of those re- 
 mainders. As to the shares in which there 
 were remainders only, the estate-tail will be 
 changed into an estate in fee, subject only 
 to the prior estate-tail, as it arises and vests 
 in other persons, and also subject to be de- 
 feated by the conversion and enlargement 
 of the estate-tail into a fee-simple. Though 
 the birth of other children would remove 
 the estate, in their shares, to a greater dis- 
 tance from the right of present possession, 
 yet a recovery duly suffered by the only 
 child for the time being, will continue to 
 be a bar to the remainders and reversions 
 subsequent to the estate of that child in 
 each respective share. 
 
 Sometimes it happens that one person is 
 the heir in tail for a time, and the title of 
 such heir is wholly or partially excluded, 
 by the birth of a more immediate heir : as 
 in the instance of a gift to A. in tail, who 
 dies leavino- a daui>;hter his heir, and his 
 wife enseint ; and the wife is afterwards deli- 
 vered of a son, who becomes solely heir ; 
 or of a daughter, who becomes a coheir. In
 
 54 ON THE TENANT TO THE 
 
 these, and the like instances, if any can arise, 
 a recovery, suffered by the heir^ro temporcy 
 would, it is apprehended, be avoided, by 
 mere conclusion of law, by the birth of a 
 more immediate heir. At least the recove- 
 ry would be so far avoided, that it would 
 not bar the issue in tail, of any other per- 
 son than the person who suffered the reco- 
 very, nor the reversioners or remainder- 
 men, nor even the issue in tail of the person 
 by whom the recovery may be suffered : 
 and yet as against the person himself suffer- 
 ing the recovery, it would be good by way 
 of estoppel. 
 
 Sometimes husband and wife have the 
 freehold by moieties ; sometimes jointly, as 
 joint-tenants; sometimes by intireties; and 
 sometimes the husband and wife are seised 
 in right of the wife. 
 
 When the husband and wife have the free- 
 hold as tenants in common, then the hus- 
 band is solely seised in his own right, of his 
 own moiety ; and he and his wife are seised, 
 in right of the wife, of the other moiety : 
 and he as seised in right of his wife, may 
 pass the freehold of the moiety which be- 
 longed to her ; and may, by reason of the 
 seisin in his own right, convey the freehold 
 of the other moiety. 
 
 And when the husband and wife are joint- 
 tenants, or tenants by intireties, of the free-
 
 WRIT OF ENTRY. 55 
 
 hold, the conveyance of the husband alone 
 will pass the freehold : and consequently 
 he alone may make a good tenant to the[ 55 ] 
 writ of entry (h). 
 
 When the husband and wife have the 
 seisin merely in right of the wife, it is uni- 
 versally true that the husband alone may 
 convey the freehold (i). 
 
 In Pigott, 38, (citing 2 Inst. 342, which, 
 however, is not material to this purpose,) it 
 is said, '^ lands are given to husband and 
 " wife, and the heirs of the body of the hus- 
 *' band, remainder over ; the husband alone 
 " suffers a recovery, wherein he is tenant 
 " to the praecipe, and vouches ihe com- 
 *' mon vouchee : this is no bar to the issue, 
 '' or him in remainder ; for the recom- 
 " pense cannot enure to the estate, — the 
 " wife having a joint-estate with her hus- 
 '' band, she cannot be a partaker of the re- 
 " compense, because she was no party to 
 " the recovery : for the estate between hus- 
 " band and wife is an entire estate, and no 
 '* moiety between them ; so the husband 
 " alone no good tenant to the praecipe/' 
 
 This case was rightly decided. The rea- 
 son, however, to which it is ascribed is not 
 
 (A) Robi7ison v. Comyns, Butler's Co. Litt. 325. b,n. 2. 
 
 Cas. T. Talb. 164. 1 Atk. Gilb. Tenures, 108. 
 
 473. [i) Robinson v.Co7ni/n^s C3iS. 
 
 Cnppledike's case, 3 Co. C. T. Talb. 164. 2 Rol. Abr. 
 
 Pig. Recov. 72. 394, 1. 10. Tig. Rec, 72.
 
 ON* THE TENANT TO THE 
 
 r 56 1 correct. The husband was a good tenant 
 to the writ ; but the objection was, and so 
 it appears in Pigott, that his estate-tail was 
 so circumstanced, that it was not barred by 
 a recovery, naming him as tenant. He 
 ought to have conveyed the freehold to the 
 person named as tenant, and to have been 
 vouched ; and even Pigott admits, that in 
 this instance the recovery would have been 
 good, had the writ of entry been brought 
 against the husband and wife. (k). 
 
 In support of the opinion that the estate- 
 tail would have been barred by a recove- 
 ry, duly suffered upon a voucher of the 
 husband, and a voucher over by him, Mr, 
 Pigott himself may be quoted as an autho- 
 rity. In page 67, he puts this case : " if lands 
 " are o'iven to husband and wife, and the 
 " heirs of the body of the husband remain^ 
 *' der to a stranger, and the husband, discon- 
 " tinues by fine or feoffment, or grants the 
 *' lands by lease and release, or deed of bar- 
 " gain and sale inrolled, and a writ of en- 
 " try is brought against conusee, feofee, or 
 " giantee, and he vouches the husband 
 " alone, who vouches the common vouchee: 
 " this common recovery is good, and bars 
 " the estate-tail and all remainders, but not 
 *' the wife's estate." 
 
 (k) Pigott on Recoveries, 70. Oicen and Morgan's Ca. 3. Co. 5,
 
 WRIT OF ENTRY. dj 
 
 To all these cases one general observation 
 may be applied. In each instance tht^ re- 
 covery was detective, on tlie ground that 
 it was suftered by the husband as tenant, and 
 not a vouchee. A recovery suftered by 
 him as vouchee would have been free from [ 57 ] 
 objection, provided the writ of entry had 
 been prosecuted against some person in 
 whom the freehold had been vested, by 
 means of a conveyance f7?ade by him. For 
 example, in Cuppledike's case (/), husband 
 and wife were seised to them and the heirs 
 male of the body of the husband, with re- 
 mainder over; and the husband discontinu- 
 ed, and the writ of entry was brought against 
 the discontinuee ; and the husband was 
 vouched, and he vouched over. This reco- 
 very was held a good bar to the remote 
 estate-tail of the husband, and the remain- 
 ders, &;c. expectant on the estate. The lan- 
 guage of the judgment, as reported by Lord 
 Coke, is, " This recovery shall bind the re- 
 *' mainder ; for here was a lawful tenant to 
 ** the prcccipe, and although Francis (the 
 ** husband), who had the estate-tail, be only 
 '^ vouched, and not Elizabeth (the wife), 
 " who had a joint estate with him, yet 
 *^ Francis coming in as vouchee, he comes in, 
 *' in privity of the estate-tail, and not of 
 *' any other estate ; and the recoveror in 
 
 (/) 3 Co, G.
 
 58 ON THE TENANT TO THE 
 
 " value gave recompense to the tail which 
 " Francis had, and to the remainders over." 
 [ 58 1 Another distinction to be collected from 
 the case in Pigott, p. 38, is, that when the 
 husband and wife are seised to them as te- 
 nants by intireties, and to the heirs of the 
 body of the husband, so that there is a joint 
 freehold in the husband and wife, and the 
 inheritance in the husband solely ; this 
 estate-tail is to be barred either by a reco- 
 very suffered by the husband and wife, 
 jointli/ as teiiants, or by the husband alone 
 as vouchee; so that, though the husband 
 alone may make, he alone cannot, under 
 these circumstances, and with a view to bar 
 his estate-tail, he, a good tenant to the writ 
 of entry. Such is the conclusion, and a 
 strange one it is, from Oiven and Morgan's 
 case [m). The point will be more minutely 
 examined in considering the doctrine of 
 Voucher. 
 
 In practice, a question frequently arises, 
 whether a inere trustee may, either alone, or 
 with the consent of the c^i'^w? que trust, lend 
 his assistance towards suffering a recovery. 
 This question is more important when there 
 is a declared trust for supporting contin- 
 gent remainders. — It is agreed, the recovery 
 will be good at law, and though equity will 
 
 {m) .'J Co. 5, a View of the Rule in Shelley's 
 
 ;} Co. (i, b. case, 87.
 
 WRIT OF ENTRY. 59 
 
 iiot corn pel the trustee to join in the proceed- 
 ings for suffering a recovery, the better opi- 
 nion seems to be, they will not charge him 
 with a breacii of trust forgiving his concur- 
 rence. 
 
 Trustees^ however, are very cautious howr 59 ] 
 they join in any acts which may affect the 
 interest of third persons ; and purchasers 
 under titles so circumstanced feel conside- 
 rable difficulty in being satisfied of their 
 security. This point was examined, and 
 fully discussed, in the case of Moody v. Wal- 
 ters {n) ; and though the decision supported 
 the recovery, the arguments adduced as 
 props to sustain the title, show that the 
 general question is attended with as much 
 difficulty as there was prior to that deci- 
 sion. 
 
 Other points peculiar to equitable reco- 
 veries have been noticed under the division 
 in which thev are considered. 
 
 It remains only to be observed under this 
 head, that a termor for years, or other per- 
 son having a chattel interest, cannot be a 
 good tenant to a writ of entry. That there 
 may be a good tenant to a writ of entry by 
 his means, he must make a feoffment, and 
 gain the freehold by disseisin ; the better 
 opinion is that the feoffment of a tenant for 
 years will gain the freehold. 
 
 [n] 16 Ves.juii. 283. 
 VOL. I. F
 
 60 ON THE TENANT TO THE 
 
 Indeed no doubt could have been reason- 
 ably entertained on this point, if the court 
 of King s Bench, and afterwards the House 
 of Lords, had not decided the contrary in 
 Taylor v. Horde (o). 
 
 Lord Hardwicke viewed the feoffment of 
 a tenant for years, as acquiring the free- 
 hold [p)', so does Mr. Butler in his excellent 
 note to Co. Litt. 330, b : and it is hardly 
 [ 60 ] possible to conceive on what principle of 
 tenure the decision of Taylor v. Horde can 
 be supported. And on recent occasions 
 the courts have allowed that Lord Mans^ 
 field's doctrine in that case cannot be sus- 
 tained. To these observations it may be 
 added that Mr. Pigott (q) admits, that 
 though a tenant to the praecipe be abso- 
 lutely necessary in every common reco- 
 very, yet if it be by disseisin, it is good in 
 many cases. Lord Mansfield does not con- 
 trovert this doctrine. The point on which 
 he differs is, that a termor for years cannot 
 by his feoffment gain the freehold by dis- 
 seisin. Aware, however, that his argu- 
 ment rested on grounds which were disput- 
 able, ho resorted to the common-law doc- 
 trine of fraud, and attacked the recovery 
 in Taylor V. Horde, on that head. 
 
 (o) 1 IJiirr. no. Cowper, (q) ri;^. Rec. 40. 
 
 GRU. 5 lii o. \\ C:is. 2 17. And see Lincoln College 
 
 {p)li Atk. 140. a Atk. case, ii Co. 59. 
 3o9.
 
 WRIT OF ENTRY. 
 
 At xvhaf Time the Tenant tnust have the\_ 6l } 
 Freehold. 
 
 By the common law, it was necessary that 
 the tenant should actually have been seised 
 of the freehold during the pendency of the 
 suit, and at some time before the recovery 
 was suffered, in other words, judgment 
 given ; and consequently that livery of 
 seisin, when such livery was necessary, 
 should have been made, or the deeds have 
 been executed, &c. before judgment given 
 (r). Now by the statute law, it is suffi- 
 cient that the deeds making the tenant to 
 the praecipe, or writ of entry, should appear 
 to be dated in the term in which the reco- 
 very is suffered, although they are exe- 
 cuted after judgment given, or even writ of 
 seisin awarded. 
 
 By the statute of 14 Geo. 2. c. 20. it is 
 recited, '' that it has frequently happened 
 *' that the deeds for making the tenants to 
 *' the writs of entry, or other writs for suf- 
 *' fering common recoveries, have been 
 *' lost, or that the fines or deeds, making 
 " the tenants to the said writs, have not 
 *' been levied or executed till after the 
 *' judgment given in such recoveries, andr 52 ] 
 *' the writ of seisin awarded, by reason 
 *' whereof great doubts have arisen whe- 
 '' ther such recoveries, for want of proper 
 
 (r) Lacey v. Williams, 2 Salk. 568. 1 Lord Raym.227„ 
 F 2
 
 62 ON THE TENANT TO THE 
 
 " tenants to the writs, are good and effec- 
 *' tual in law" 
 
 And " to prevent such doubts for the 
 *' future, and to render common reco- 
 *' veries more certain and eftectual," 
 among other things it is enacted (.s), '^ that 
 *' from and after the commencement of this 
 " act, every recovery already suffered, or 
 ** hereafter to be suffered, shall be deemed 
 " good and valid to all intents and pur- 
 '^ poses, notwithstanding the fine, or deed 
 '^ or deeds, making the tenant to such writ, 
 '• should be levied or executed after the 
 *^ time of the judgment given in such reco- 
 " very, and the award of the writ of seisin 
 " as aforesaid, provided the same appear-to 
 *' be levied or executed before the end of 
 " the term, great session, session, or 
 *' assizes, in Avhich such recovery was 
 " suffered, and the persons joining in such 
 *' recovery had a sufficient estate and power 
 " to suffer the same as aforesaid." 
 
 To bring a case within the provisions of 
 this act, care should be taken to date the 
 recovery deeds on some day within the 
 teim. In legal intendment the deed is sup- 
 posed to be executed on the day of the 
 date. 
 
 The object of the act has by some pro- 
 fessional gentlemen of distinguished emi- 
 
 (s) Sect. 6.
 
 WRIT OF ENTRY. 6S 
 
 nence been supposed to have been, to make 
 the date or internal evidence of the deed itself 
 decisive of the validity of the recovery, with- 
 out allowing any evidence to be given re-[ 53 ] 
 specting the time of the execution: so that 
 the recovery may be good, although the 
 deeds are, in point of fact, executed after the 
 term ; provided they are dated within the 
 term. This practice ought not to be 
 adopted, unless from circumstances it should 
 become indispensably necessary. In legal 
 proceedings, the old maxim of via trita, via 
 /Mffl, cannot be too implicitly observed. 
 
 To avoid all question on the construction 
 of the act, the deed should be executed as 
 well as dated, within the term. 
 
 This caution, originally suggested from 
 principle, is now become necessary from ex- 
 perience. A gentleman, of the first emi- 
 nence, has given an opinion that a title, de- 
 pending on a recovery, cannot be safely ac- 
 cepted, unless the recovery deed be execut- 
 ed, at least before the end of the term, by 
 those in whom the freehold resides. In his 
 construction of the act, the words, *' appear, 
 " &c." mean appear in evidence, and do not re- 
 fer to the internal evidence of the deeds them- 
 selves. There are. however, strong grounds for 
 trying to establish, whenever circumstances 
 shall require it, the construction given 
 to the words of the statute, by those who
 
 64 ON THE TENANT TO THE 
 
 wish to make the internal evidence of the 
 deed conclusive. This construction be- 
 comes more obvious, when the object of 
 the statute, and the nature of the provisions 
 collectively, are considered. 
 [ 64 ] Yor this was a remedial law, made with 
 a view to supply defects, and for the secu- 
 rity of titles depending on recoveries ; and 
 is it not fair to argue that in using the word 
 *' appear,'' the legislature adverted to the 
 internal evidence of the deed, since by that 
 alone a purchaser is guided, and by that 
 alone he can be protected from fraud ^ 
 
 It must be admitted, however, that this 
 construction is more difficult, on the recital 
 than it is on the words of the enacting clause. 
 On the recital, it may be insisted in argu- 
 ment, that the sole object of this legislative 
 provision was to remedy the defect arising 
 from a delay to execute the deeds, &c. till 
 judgment given, or writ of seisin awarded ; 
 and then with a qualification that the deeds 
 should be executed within the term. 
 
 It is to be remembered that a fine ac- 
 knowledged in the vacation^ and levied as of 
 the preceding term, will support a recove- 
 ry suffered in that term [t). 
 
 Thus, by the common law, a recovery 
 suffered defectively became good eventually, 
 by reason of an assurance levied in point of 
 
 (/) Lord Say and Sele's case, 10 Mod. 43.
 
 WRIT OF ENTKY. 65 
 
 fact, after the end of the term : but the 
 ffround of this case is to be found in the 
 leaving of estoppels and the nature of re- 
 cords. The record must be tried by its 
 own internal evidence, and the courts will 
 not admit it to be shown at w hat time the 
 fine was acknowledged ; and the result is, 
 that the fme is considered, as it appears to 
 be, as a fine levied in the same term in which 
 the recovery was suffered. 
 
 In some cases it may be expedient to 
 resort to a practice warranted by this rule 
 of law, and to levy a fine in the vacation ; 
 and as of the preceding term, to supply a 
 defect or omission to vest the freehold in 
 the person named tenant in the recovery 
 prior to, or before the end of the term in 
 which the recovery may have been suf- 
 fered. 
 
 Instances in which a Kecovery will be good, [ 65 ] 
 although the actual Freehold of the particu- 
 lar Lands is not in the Person named as 
 Tenant in the Writ of Entry. 
 
 In general the person in whom the free- 
 hold of each parcel of the land resides, 
 either in his own right, or by means of a 
 conveyance made to him for the purpose, - 
 by the different owners, ought to be named 
 tenant in the writ of entry.
 
 66 ON THE TENANT TO THE 
 
 To this general rule there are three ex- 
 ceptions. 
 
 First. At the coniman law, when lands^, 
 parcel of a manor, are granted for life, or in 
 tail, the reversion veniams parcel of the manor 
 [u). In this ease, a recovery suffered of the 
 manor, will include the lands of which the 
 reversion is in the lord : or rather, and more 
 correctly speaking, the reversion : for the 
 recovery being suifered of the manor, and 
 tlie reversion being parcel of the manor, the 
 reversion passes inclusively (:i). Had the 
 lands been severed from the manor, so that 
 r 66 ]they did not remain parcel of the mauor^ 
 the recovery would have been voidable, as 
 to the reversion (y). 
 
 This instance owes its existence to the 
 principles of tenure, and the nature of a 
 manor. The reversion of the lands re- 
 mains parcel of the manor ; and the manor 
 consequently includes this reversion : and 
 whoever recovers the manor recovers a title 
 to the reversion {z). So the person who 
 recovers a manor, or to whom a manor is 
 conveyed, gains a title, even to have lands, 
 which shall escheat ; and the escheated landjy 
 will pass by a will made before the escheat 
 
 (m) l.itt s. 591. (x) Pig-. Rf.oov. 41. 
 
 Co. Litt. :J'24, b. Jeiik. Ctnt. oil. 
 
 P;.^. on Recoveries, 41. [y] Co. Litt. 3'25, a. 
 
 Jo/ttiiuv V. Earl of Derby, (z] Pi-. lU-cov. 45. 
 Pig. Rcc, 201.
 
 WRIT OF ENTRY. 66 
 
 (a) '. for lands when escheated come in lieu 
 of the services, and are a consequence of 
 seio'nory. ^ut freehold lands held of a manor 
 and purchased by the lord, do not become 
 parcel of the manor (/>). It is otherwise of 
 lands of copyhold tenure, for they are not 
 within the statute of quia emptor es (c). 
 Besides copyhold lands are parcel of the 
 manor ; and the effect of a purchase by the 
 lord, is to extinguish the copyhold tenure : 
 while freehold lands are held of the lord of 
 the manor ; and by a conveyance of the 
 lands to him, the seignory is extinguished 
 in the land or in the tenancy. When a manor 
 is leased for life, excepting an acre, &c. the 
 acre is not parcel of the manor during the 
 continuance of the estate for life (d) ; con- 
 sequently this acre will not pass, by a grant 
 of the reversion of the manor. But if tlie 
 reversion of the manor and the excepted 
 acre continue in the same person till the 
 estate for life be determined, the acre will 
 again become parcel of the manor ; and may 
 pass, inclusively, by a grant of the manor. 
 Secondly. The act of 14 Geo. II. c. 20. 
 renders it unnecessary to procure a surrender 
 from, or the concurrence of, persons whose 
 
 {a) Per Lord Mansfield in (c) 18 Ed. I. 
 lioex. Griffiths, 4 Burr. 1961. [d] Co. Litt. 324, b. 
 
 [b] JeuL Cent. 2.32. Pi^r. Kecov. 40. 
 
 Lemon v. Blackwall, Skin. 5 Co. 11, b. cites -38 H. 6, 
 
 192. 33, b.
 
 ON THE TENANT TO THE 
 
 [ 67 ] estates depend on freehold leases, viz. leasee 
 under rents thereby reserved. After reciting 
 that " several leases have been heretofore, 
 *' and are hereafter likely to be made, of 
 *' honors, castles, manors, lands, tenements, 
 '' and hereditaments, for one or more life 
 " or lives, under particular rents thereby 
 " reserved, and to be reserved, and that pro- 
 " curing surrenders of such freehold leases, 
 '^ or the tenants thereof to join, in order to 
 *' make tenants to the writs of entry or 
 '* other writs for suffering common recove- 
 " ries, frequently occasions great trouble, 
 " difficulty, and expense to tenants in tail, 
 " and the same cannot, in many cases, be ob- 
 " tained, by reason of the uncertainty in 
 " whom the legal estate of freehold under 
 " such leases are vested, and also by reason 
 '' of the disabilities and incapacities of such 
 " lessees, or persons claiming under them, 
 *' by means whereof purchasers and family 
 " settlements are often delayed, and may be 
 *' in great danger of being defeated, if some 
 '' proper remedy be not provided." 
 
 The act enacts (e), for remedy thereof, 
 '^ that all common recoveries siiffered, or to 
 ** be suffered, in his Majesty's court of Com- 
 " mon Pleas at Westminster, or in any other 
 " courtof record in the principality of Wales, 
 
 (<?) 14 Geo. 2, c. 20, Sec. 1.
 
 WRIT OP ENTRY. 
 
 ** or in any of the counties palatine, or in 
 
 '* any other court, having jurisdiction of the[ 68 ] 
 
 " same, of any honors, castles, manors, 
 
 " lands, tenements or hereditaments, with- 
 
 ** out any surrender or surrendei-s of such 
 
 " lease or leases, or without the concurrence, 
 
 " or any conveyance or assurance from such 
 
 " lessee or lessees, or other person or per- 
 
 " sons claiming under such lessee or lessees, 
 
 " in order to make good tenants to the 
 
 '' writs of entry or other writs, whereupon 
 
 " such recoveries have been, or shall be had 
 
 " or suffered, shall be as valid and effectual 
 
 " in law, to all intents and purposes what- 
 
 *' soever, as if such lessee or lessees, or any 
 
 " other person or persons claiming under him, 
 
 '' her, or them, had conveyed, or joined in con- 
 
 "^ veying, or shall convey or join in conveying, 
 
 *' a good estate of freehold to such person or 
 
 " persons as has or have been, or shall be- 
 
 " come tenant or tenants to such writs of 
 
 " entry, or other writs, whereupon such 
 
 " common recoveries have been or shall be 
 
 " suffered." 
 
 And it is provided (/) " That nothing in 
 ** this act contained shall extend, or be con- 
 " strued to extend, to make any common 
 *' recoveries valid and effectual iu law, un- 
 ** less the person or persons intitled to the 
 
 (/) 14 Qeo. 2, c. 20, Sec. 2.
 
 6^ ON THE TENANT TO THE 
 
 *' first estate for life, or other greater estate 
 *' (in case there be no such estate for life in 
 " being) in reversion or remainder next after 
 " the expiration of such leases has or have, 
 [69 V by some lawful act or means, conveyed 
 " or assured, or joined in conveying or as- 
 *' suring, or shall by somelawfulactormeans 
 ** convey or assure, or join in conveying or 
 *' assuring, an estate for life at the least, 
 " to such person or persons as has or have 
 " been, or shall become tenant or tenants to 
 '' the writs of entry, or other writs, where- 
 " upon such common recoveries have been 
 " or shall be suffered." 
 
 From the exception it will be collected, 
 that this act does not extend to persons who 
 have estates of freehold, by act of law, as 
 tenants by the curtesy, or in dower; or per- 
 sons haviuii estates for life under marriage 
 settlements, wills, &c. or by any other means 
 than leases at reserved rents. 
 
 This branch of the statute, in its positive 
 and enacting part, is founded on the prin- 
 ciple of the common law, as it applied to 
 lands granted for particular estates, when 
 the reversion continued pared of a manor. 
 In practice it was difficult to obtain the con- 
 currence of these lessees; and though they, 
 or those in whom their eslaie is vested, still 
 are the persons against whoni a writ (^f eniry 
 in a real adverse acium must be brought, it
 
 WllIT OF ENTUY. 70 
 
 "Was perfectly reasonable to dispense with 
 their concurrence in a common recovery, 
 which is now merely a species of common 
 as Lirance. 
 
 The act, it is observable, gives validity to 
 all recoveries suffered prior to the act. But 
 by a proviso, there is a saving which pro- 
 tects the titles of those who should have 
 availed themselves of their rights of entry 
 &c. anterior to the l6th June, 1740. 
 
 And it is assumed, that the law is not 
 altered, except for the purpose of aiding 
 recoveries, as common assurances. On this 
 ground it is assumed, th?it at present , as for- 
 merly, every real adverse action must be 
 brought against the actual freeholder, al- 
 though he holds under a lease at a reserved 
 rent. 
 
 And it may, perhaps, be contended, that 
 a common recovery, suffered with the assist- 
 ance of a lessee, having the immediate free- 
 hold, would be good, without the concur- 
 rence of the reversioner, entitled to receive 
 the rent payable by such lessee, though the 
 concurrence of such lessee is no longer essen- - 
 tial, as formerly, to the validity of a com- 
 mon recovery. 
 
 In Goodtitle, on demise of Bridges v. 
 Duke of Chandos (g), Lord Mansfield ob-[ 70 } 
 
 {g) 1 Burr. 1072.
 
 71 ON THE TENANT TO THE 
 
 served, " it is now fully settled and esta- 
 ** blished, that tenant in tail may, if he 
 '' pleases, either turn his estate-tail into a 
 *' fee, or alienate it for his own benefit by 
 " duly suffering a common recovery ; but 
 *' he must have a sufficient estate and power 
 " to qualify him to suffer such recovery, — he 
 " must either be the tenant in tail in pos- 
 '* session, or he must have the concurrence 
 " of the freeholder who claims under the 
 " same settlements. This principle is ad- 
 " hered to by the statute of 14 Geo. II. c.20. 
 *' The tenant for life whose consent is neces- 
 '' sary to the tenant in tail in remainder, to 
 " enable him to cut oif the intail, is not the 
 '' lessee of the land under a beneficial lease ; 
 *' but the original tenant for life claiming 
 *' under the family settlement, and having a 
 " life estate settled upon him prior, in order 
 " of succession, to the other's remainder 
 ** in tail.^' 
 
 These observations are introduced, for the 
 purpose of remarking, that it is immaterial 
 whether the first tenant for life has the free- 
 hold under the samet or a diff'er ent ^eii\em&i\i, 
 or under any other conveyance, or a will. 
 At the common law, with the exception 
 already noticed, the person who had the 
 [ 71 ] freehold under a beneficial lease, was the per- 
 son whose concurrence was necessary ; and 
 though the statute has dispensed with the
 
 WRIT OF ENTRY. 72 
 
 necessity of his concurrence, does it follow 
 that his concurrence will not answer the pur- 
 pose 'i Even when the reversion on leases for 
 lives, remained parcel of the manor, a com- 
 mon recovery could not have been suffered 
 of the particular tenements vested in these 
 lessees distinctly from the manor, without 
 the concurrence of the lessees, although their 
 reversion and services would have passed in- 
 clusively by a recovery suffered of the manor, 
 of which they were parcel. Before a conclu- 
 sion that the concurrence of a tenant under a 
 beneficial lease will not be sufficient, can be 
 drawn, thestatute of 14 Geo. II. must be con- 
 strued to have made a material alteration in 
 the law on this subject ; and to have re- 
 stricted a tenant in tail from availing him- 
 self of the concurrence of the person who, 
 actually, and in point of law, is the free- 
 holder. The act has no words of exclusion. 
 It places the recovery suffered under the 
 remedial part of the act, on the footing of a 
 recovery duly suffered at the common law : 
 thus allowing the inference, and even afford- 
 ing the illustration, that the recovery duly 
 suffered, according to the rules of the com- 
 mon law, is to be supported. 
 
 The proviso is merely to controul the[ 72 ] 
 enacting clause, and to show, that tenant in 
 tail, when he availed himself of the provi- 
 sions of the act, was not to be competent to
 
 74 ON THE TEi^ANT TO THE 
 
 suffer a common recovery, unless he had the 
 immediate estate-tail, or obtained the con- 
 currence of the freeholder intitled to the 
 receipt of the reserved rent. 
 
 In this place it may be observed as 
 highly probable, that the necessity, at the 
 common law, of the concurrence of the 
 freeholder, though a mere beneficial lessee, 
 or a usufructuary occupier, in suffering re- 
 coveries, &c. gave rise to leases for years, 
 determinable on lives, so common in the 
 western counties, as preferable to leases 
 for life. Another advantage, indeed, re- 
 sulting from this species of lease is, that 
 renewals may be granted of additional 
 interests by way of interesse terniini, so as 
 not to affect the remedy for rent or benefit 
 of the covenants under former leases. A 
 still further advantage, resulting from these 
 leases for terms is, that the renewal may be 
 ■ made without a surrender by mortgagees, 
 trustees, &c. and the legal title under 
 the subsisting term may be left undis- 
 turbed. 
 
 Thirdly. Recoveries will be good as be- 
 tween the parlies themselves and their heirs, 
 notwithstanding the freehold is not in the 
 person named as the tenant in the writ of 
 entry. Between these parties, and all who 
 r rjA -iclaiiu under them, the recovery operates as 
 a conveyance, and has the effect of an estop-
 
 WRIT OF ENTRY. 74 
 
 pel(h). On this point some further obser- 
 vations will be added, in considering reco- 
 veries, by estoppel [i). 
 
 Regulations by Statute, concerning the Tlvi-[. 74 
 dence of Recovery, from Deed making 
 Tenant to the Writ of Entry. 
 
 The statute of 14 Geo. II. c. 20, as has 
 already been observed, has made recoveries 
 good, notwithstanding the fine or deed 
 making the tenant to the writ of entry, 
 shall be levied or executed after the time of 
 the judgment given in such recovery, and 
 the award of the writ of seisin, provided 
 the same appear to be levied, or executed, 
 before the end of the term, &c. in which 
 such recovery was suffered, and the persons 
 joining in such recovery had a sufficient 
 estate and power to suffer the same. 
 
 By the same statute {k), for the purpose of 
 protecting purchasers from neglect, " in en- 
 *' tering recoveries of record, purchasers 
 *' bona fde, and for a valuable considera- 
 '* tion, and all claiming under them, having 
 *' been in possession of' the purchased estate, 
 " or estates, from the time of such purchase, 
 " shall and may, after the end of 20 years 
 ** from the time of such purchase,'^ (not the 
 time of suffering the recovery,) '' produce 
 
 (A); Supra, 5. [k) Sec. 
 
 {%) Intra. 86. 
 
 VOL. I. &
 
 75 ON THE TENANT TO THE 
 
 *' in evidence the deed or deeds y making a 
 " tenant to the writ or writs of entry, or 
 " other writs for suffering a common reco* 
 [ 7o y very, or common recoveries, and de- 
 " daring the uses of a recovery or re- 
 ** coveries ; and the deed or deeds so 
 " produced (the execution thereof being 
 *' duly proved) shall in all courts of law and 
 ** equity, be deemed and taken as a good 
 *' and sufficient evidence, for such purchaser 
 " and purchasers, and those claiming under 
 " him, her, or them, that such recovery or 
 " recoveries was or were duly suffered and 
 ** perfected, flt'corf/zVz^ to the purport of such 
 ** deed or deeds, in case no record can be 
 *' found of such recovery or recoveries, or the 
 ** sayne should appear not to be regularly en~ 
 "■ tered on record : provided always that the 
 " person or persons making such deed or 
 '' deeds as aforesaid, and declaring the uses 
 '' of a common recovery or recoveries, had 
 " a sufficient estate and power to make a 
 *' tenant to such writ or writs as aforesaid, 
 " and to suffer such common recovery or 
 *' recoveries." 
 
 That this statute may apply, the deed 
 must be sufficiently formal to show, that the 
 steps intended to be taken, for the purpose 
 of suffering the recovery, were such as were 
 proper for suffering an effectual recovery. 
 'J'he act does, in effect, make the deed evi-
 
 WRIT OF ENTRY. 76? 
 
 dence of the recovx^ry, in tliose instances 
 which are within the scope of the statute. 
 Hence the object and the use of the clause, 
 declaring the intent of the conveyance, for 
 making a tenant to the writ of entry, and 
 detailing the substance of the intended pro-[ 76 1 
 ceedings. In transactions of considerable 
 importance, in which security of title is 
 more an object than economy in ex pence, 
 the common form which details the order 
 of the proceedings should be observed. This 
 form, with a general notice of the variations 
 which take place under different circum- 
 stances, will be added in the Appendix, page 
 481. It may be proper also to observe that 
 the deed is evidence of the regularity of the 
 proceedings in those instances only, in which 
 there are riot any proceedings to rebut the pre^ 
 sumption, or in which the irregularities are 
 in the entries. 
 
 Of Cases in which the Law does, and does not, [ 77 
 admit of the Presumption that there was a 
 good Tenant to the Writ of Entry, 
 
 In some cases, the courts will presume 
 the concurrence of the freeeholder in the 
 recovery ; for instance, when the possession 
 has, for a long time, accompanied the title 
 vmder the recovery (/). 
 
 Or when there has been collateral evi- 
 
 (/) Green v. Proud, 1 Mod. 117. 
 
 o 2
 
 78 ON THE TENANT TO THE 
 
 dence, to raise the presumption of a sur- 
 render by the person in whom the freehold 
 was vested ; as entries in the attorney's 
 books of a surrender prepared and paid 
 for (w). 
 
 Except when there are circumstances to 
 raise the presumption, (as possession under 
 the recovery, or the like,) the court will not 
 presume a surrender («). 
 
 And though a recovery would, under cir- 
 cumstances, be presumed to be good, yet 
 the presumption may be rebutted, by the 
 production of deeds, which show a defect of 
 title under the recovery, and prove that 
 r '^'3 -.there was not a good tenant to the writ of 
 entry, and then the recovery may be im- 
 peached (o). 
 
 The fjeneral outline of the doctrine of the 
 presumption of law, as it applies to this 
 subject, is fully explained by Lord Mans- 
 field, in giving judgment in the case of 
 Goodtitk ex dem. Brydges v. Duke of Chan^ 
 dos [p). He said, '' Where a person has 
 *' power to suffer a recovery, and thereby 
 " bar the estate-tail, omnia prcesumiintur 
 " rife et solemniter acta, until the contrary 
 
 {m) Warren on the demise (o) Keen ex dem. Earl of' 
 
 of fVehh V. GVc?nn//e, 2 Stia, Portsmouth v. Earl of Ej/ing'^ 
 
 1129. 2 Burr. 1071. ham, 2Sira. I2(i7. 
 
 (h) Goo'Jtitle on dem. (/;) 2 Burr. 1073. 
 Bridges V, Duke of Chaudos, 
 2 Hiirr. 1005. 
 
 i-*»
 
 WRIT OF ENTRY. 7') 
 
 *' appears ; and it is reasonable that it 
 "^^ should be so. But if the contrary shall 
 *' appear, there is an end of the presump- 
 " tion. This was the case of the Earl of 
 ** Suffolk's recovery, upon a trial at bar in 
 *' this court in Easter Term, 1747. There, 
 *^ the contrary did appear : and the pre- 
 ** sumption was thereby destroyed. There 
 *' were blundering deeds actually produced, 
 " which appeared clearly to be wrong ; and 
 *' it was manifest, upon the evidence dis- 
 " closed, that there was no good tenant to 
 ** the praecipe. It was therefore impos- 
 *' sible for the court, in that case, to pre- 
 *' sume that there was one. 
 
 *' But if a man has power to suffer a 
 '* recovery, that is, a solid and reasonable 
 ** ground for presuming that all was done[ 79 ] 
 " rightly and regularly ; unless something 
 ** to the contrary shall appear. 
 
 " So, where the freehold is in a trustee 
 ** for the tenant in tail himself, and under 
 *' his power and direction, it is a reasonable 
 ** and just cause for presuming that every 
 *' thing was regularly transacted. 
 
 '* So, where the person, or persons in- 
 " terested to object against the validity of a 
 *' recovery have had an opportunity to make 
 " objections to it ; but, instead of doing 
 " so, have acquiesced under it, and not at 
 " all disputed its validity ; this is a pre-
 
 80 ON THE TENANT TO THE 
 
 '^ sumption that all was right and regular^ 
 *' forasmuch as they never did object to it. 
 " But there can be no presumption of 
 *' the nature of evidence, in any case, with- 
 " out something from whence to make it ; 
 ^' some ground to found the presumption 
 '^ upon. Whereas here is absolutely nothing 
 ** from whence to presume ; no sort of 
 " ground to build any presumption upon. 
 *' The single pretence, to any the least 
 '^ ground of presumption in the present 
 " case, can be only this, that no tenant in 
 " tail, in remainder, would suffer a reco- 
 " very, without first getting a surrender of 
 *' the life-estate, in order to make it valid 
 *' and effectual. 
 
 " But even that ground, (slight as it is,) 
 " will not hold in the case now before us ; 
 [ 80 ]" for it does not at all appear, upon the 
 '' report of the judge, that Mr. George 
 " Brydges (who suffered the recovery in 
 '' question) had the least intention whatso- 
 " ever to include those particular lands in 
 " the recovery which he suffered, and had a 
 ^' full power in himself alone, to suffer, of 
 ^' all the rest of the estate, whereof he was 
 *' at that time tenant in tail in possession. 
 ^^ He was then in possession of the manor 
 " of Key nsham, .andof other lands in Keyns- 
 " ham sufficient to answer the general de- 
 ** scription used in the recovery, relating
 
 WRIT OP ENTRY. 81 
 
 ** to such part of the recovered estates as 
 *' lay ill Keynsham. He must probably 
 *' know, or have been informed by his coun- 
 *' sel or agents, that he could have no such 
 " power over the settled part, without ob- 
 " taining a surrender of the life-estate. 
 " He might perhaps be satisfied, that he 
 *' could not obtain a surrender of the life- 
 *' estate in these settled lands : or, he 
 *^ might have attempted to obtain it, and 
 *' failed in such attempt. 
 
 " If the mere single fact of the remainder- 
 '* man in tail suffering a recovery, was alone 
 ^' sufficient to ground a presumption of a 
 *' surrender of the life-estate, it would be 
 '^ in the power of every remainder-man in 
 " tail to bar the estate-tail, notwithstanding 
 *' the tenant for life should absolutely refuse 
 *' to join with him in suffering a recovery. 
 '* Therefore it is necessary that there [ 81 ] 
 '* should be facts and circumstances to 
 '* ground a presumption of such a surren- 
 " der upon. 
 
 *' Whereas, in the present case, it is so 
 ^' far from being reasonable to presume 
 '* that there was such a surrender from the 
 ^* jointress, in order to bar the estate-tail in 
 *^ remainder, and give the power of disposal 
 " to George, in prejudice to James Bridges ; 
 " that there are, on the contrary, many rea-
 
 82 ON THE TENANT TO THE 
 
 " sons to induce a suspicion, that there was 
 " not such a surrender. She might have 
 '^ more regard for James than for George ; 
 " she might have a friendship for James, 
 " and a dislike to Georjjje ; she mioht think 
 *^ it wrong or unkind to hurt the reversi- 
 " oner; oreven whim and peevishnessmight 
 " prevent her from interfering : there is no 
 *' defininoj the various reasons she might 
 ^' have to hinder her from snrrending her 
 '' life-estate for such a purpose. 
 
 '* Mr. George Bridges being only tenant 
 ^' in tail in remainder, and the life estate, 
 " under the same settlement, still subsisting 
 *' at the time of his suffering the recovery, 
 *^ it is clear that he had no power to alien 
 '* or to bar. And there is nothing from 
 ** whence to presume a surrender of the 
 /' life-estate, to enable him to do so. 
 
 '* If he had a power to bar or alien, then 
 .** indeed no presumption could have been 
 [ 82 ]" too large, in order to prevent slips in 
 ''^ legal forms and methods of conveyance, 
 *' and effectuate the intention of a person 
 *' who had a legal right to do such an act. 
 
 " The act of 14 Geo. II. c. 20, means to 
 *' preserve the same negative to persons 
 *' claiming under the family settlement as 
 «:' they had before. 
 
 " And no argument can be drawn in the
 
 WRIT OF ENTRY. 83 
 
 " present case, from length of time ; because 
 *' the jointress died but in 1759 ; and the 
 *' ejectment was instantly brought." 
 
 On another day his lordship said, " he 
 " had looked into his own notes of the case 
 *^ of JVarren, on the demise of fVebb, against 
 *' Greenvi/Ie, where the recovery was of forty 
 *' years standing ; and the court did lay it 
 " down, in that case, ' That after a reco- 
 
 * very of forty years standings they icould, 
 ' without any other circumstances, presume 
 ^ a conditional surrender to have been made by 
 ' the tenant for life; and they relied upon 
 ' 1 Ventr.2i7,andMr.Pigott^sBook,p.41.' 
 " But his lordship observed, that there 
 *' are other circumstances, in the case in 
 " Ventris, and there is nothing in Pigott to 
 " justify this general position. And he 
 " added, that in the case then at the bar, 
 " the court did (as he had taken it down) 
 *' admit as evidence the entry in the attor- 
 ^' ney's book, as had been mentioned. 
 
 " He said he was rather more strongly of 
 " opinion than he was yesterday, ' That in[ 83 ] 
 ' the present case, there is no ground for a 
 
 * presumption that there was any surrender 
 
 * by the tenant for life.' Here are two par- 
 " ticular reasons against making any such 
 " presumption. One is, that thei^ does not 
 " appear to have been any intention in the 
 " remainder-man in tail, to suffer a recovery
 
 84 ON THE TENANT TO THE 
 
 " of these particular lands : the other is, 
 ** that here was no possession at all, under 
 *' this recovery ; but, on the contrary, the 
 " ejectment was brought, and the validity 
 " of the recovery put into litigation, im- 
 " mediately after the death of the tenant 
 " for life. 
 
 " If the eldest son, M^ho has a remainder 
 '^ in tail under a family settlement, should 
 '' privately suffer a common recovery, and 
 *' his father live many years afterwards ; it 
 *' might as well be argued, that length of 
 " time from the date of the recovery should 
 *' induce a presumption that the father sur- 
 " rendered his estate for life. 
 
 " And his lordship declared himself as 
 '' clear, that if there had been a long pos- 
 " session by the tenant in tail, after the 
 '' death of the tenant for life ; though such 
 " a possession might be ascribed to the 
 " entail, the presumption ought to have 
 " been made upon the ground of acquies- 
 " cence under it, and the probability arising 
 [ 84 ]" therefrom, that the parties knew that the 
 *' recovery was not defective. 
 
 ** His lordship further added, that he 
 '* would have it understood, that possession 
 " of the tenant in tail, after the death of 
 '* the tenant for life, docs leave a ground of 
 " presumption that there was a surrender. 
 " But in the present case, here is no posses-
 
 WRIT OF ENTRY. 85 
 
 *^ sion after the death of the tenant for life : 
 ** the ejectment was brought immediately/' 
 
 To these observations it may be added, 
 that the strongest possible ground for the 
 presumption of a surrender is, that the 
 tenant in tail had the possession at the time 
 when he suffered the recovery. 
 
 The next degree is, that though the 
 tenant in tail was not, in fact, actually in 
 possession at the time of suftering the reco- 
 very, the possession was afterwards held in 
 opposition to the tenant for life, the issue 
 in tail, &c. — In short, the former is the 
 presumption arising from a fact, — the latter 
 from acquiescence. 
 
 Any act done by the tenant for life, as 
 owner, subsequent to the recovery, rebuts 
 the presumption of a surrender (q). In 
 Barley^s case, the person by whom the reco- 
 very was suffered had accepted a lease deri- 
 ved under the title of the jointress ; so that 
 there was an acknowledgment on his part[ 85 ] 
 that the estate for life was continuinij. 
 
 And by thestat. 14 Geo. II. c. 20. sec. 6, 
 *' it is provided, that every recovery already 
 *' suffered or hereafter to be suffered, shall, 
 " after the expiration of tAventy years, from 
 " the time of the suffering thereof, be deemed 
 ** good and valid to all intents and pur- 
 " poses, if it appears, upon the face of such 
 [q] Haines Barley's casej Mod. tlO.
 
 86 ON THE TENANT TO THE 
 
 ••' recovery, that there was a tenant to the 
 *' writ, and if the persons joining in such re- 
 " covery had a sufficient estate and power to 
 " suffer the same, notwithstandinsj the deed 
 " or deeds for making the tenant to such 
 *' writ should be lost, or not appear/' 
 
 This branch of the act does not extend 
 to any case in which the deeds making the 
 tenant, are produced. It merely applies to 
 those cases in which the deeds making the 
 tenant, &c. are lost. When, therefore, the 
 deeds are in existence, and produced, they 
 may defeat the operation of a recovery, 
 which, in the absence of such deeds, would 
 have been presumed to have been good. 
 
 For this reason a purchaser will not 
 accept a title depending on a common reco- 
 very, without great caution, unless the deeds 
 are produced, since he has no certainty of 
 the uses, &c. and since he runs the risk that 
 the deeds, if produced, might expose the 
 title to the objection of being defective. 
 
 [ 86 1 ^/ Recoveries operating by Estoppel, without 
 a good Tenant to the Writ of Entry : and of 
 the Necessity ofthe Concurrence in a second 
 Recovery^ or the Deeds preparatory thereto, 
 of a Tenant in a former Recovery : with 
 Observations, by Way of Caution, to guard 
 O'fainst the Inconvenience sometimes expe- 
 rienced from the present Practice.
 
 WRIT OF ENTRY. 87 
 
 A recovery suffered by a tenant in tail 
 without a good tenant to the writ of entry, 
 is voidable by the issue in tail, and those in 
 remainder or reversion. It is voidable only, 
 not void. — At least, this is the conclusion 
 which it will be attempted to establish. 
 But a recovery suffered by a person who 
 has the inheritance, not intailed, will be good 
 as ao;ainst himself and his heirs ; althousfh 
 the freehold be not vested in the person 
 named as tenant to the writ of entry. 
 
 It is also apprehended that a recovery 
 suffered by a tenant in tail, upon a writ 
 brought against a person not tenant of the 
 freehold, will be binding on him, and con- 
 tinue in force till avoided. 
 
 In the Marquis of Winchester's case (r), the 
 person by whom the recovery was suffered 
 had the freehold jointly with Anne Mills, 
 and also the inheritance in tail ; and it was[ 87 J 
 agreed, " that for the moiety of which Anne 
 *' Mills was tenant for life, the recovery was 
 ** not any bar, either to the estate-tail, which 
 *' Lionel" (the person by whom the recovery 
 was suffered) " had expectant on the estate 
 " of Anne Mills, or to the remainder of 
 *' Henry, because for this moiety, Lionel 
 *' was not tenant to the praecipe ; but the 
 '* recovery had its operation against liim- 
 
 (r) 3 Co. 3. b.
 
 86 ON THE TENANT TO THE 
 
 '* by estoppel and conclusion, which shall 
 " not bind the issue in tail, who claims 
 ** per for mam doni.^^ 
 
 So in Oxven and Morgan-'s case (.s), a hus- 
 band, tenant by intireties with his wife, had 
 suffered a recovery, as tenant, without the 
 concurrence of his wife ; and it was agreed 
 that the recovery, as to the estate of the 
 husband, took its effect by estoppel and 
 conclusion. 
 
 And in the case of Lincoln College [t],- 
 although a recovery was deemed defective 
 against the issue in tail, it was considered 
 to bar the party himself, so that he could 
 not enter into the land. 
 
 And in Say and Sele's case (w) the language 
 of the court was, that '' common recove- 
 [ 88 ]" ries, although there are no tenants to 
 " the praecipes, are good by way of estop- 
 » " pels, against the parties who suffer them, 
 
 '' though not against remainder-men, stran- 
 ^' gers," &c. 
 
 And in JVebb v. Nect, {zv) a bargain and 
 sale was made, and a recovery suffered to 
 uses, by a person seised in fee, in reversion 
 expectant on an estate of freehold. " Two 
 " points were moved. First, If the usesex- 
 " pressed in the indenture of bargain and 
 " sale were good? 2d, If the recovery suf-- 
 
 (5) 3 Co. 5. (u) 10 Mod. 40. 
 
 {t) 3 Co. r>0. (u-y Cro. Eli7. 21.
 
 WRIT OF ENTRY. 89 
 
 " fered against liiiii in the reversion, where 
 *" the freehold was in a stranger, shall bind 
 '* the reversioner and his heirs ? And the 
 '' court held clearly, as to the first point, 
 " that the limitation to tlie uses, as this 
 " case was, was good. 2d, That the recovery 
 *' was good against him in the reversion and ' 
 *' his heirs, and they commanded judgment 
 '* to be entered accordingly.^^ 
 
 So in Shelley's case (i), it was said, '* if the 
 " tenant in fee-simple makes a lease for 
 " life, and suffers a recovery, he and his 
 *' heirs are for ever concluded ; but if tenant 
 " in tail be of a reversion expectant on an 
 *' estate for life, and he suft'ers a reco- 
 «* very, and hath judgment to recover over 
 " in value, yet his issue shall avoid the reco- 
 " very, for he shall not be estopped, because 
 '* he claims in performam doni.^' 
 
 In Barker v. Keate (j/), North, Chief Jus- [ 89 ] 
 tice, observed, " that if a real action be 
 '•' broucrht against A. who is not tenant to 
 '* the praecipe, and a recovery be had against 
 " him, the sheriff can turn him out who is 
 " in possession ; but if he, who is not in pos- 
 " session, come in by voucher, he is estop- 
 " ped to say afterwards, that he was not 
 " party to the writ, so that he who is 
 
 («) 1 Co. 96. iy) 2 Mod. 249.
 
 89 ON THE TENANT TO THE 
 
 '^ bound must be tenant or vouchee, or 
 " claim under them." 
 
 These are the more ancient and leading 
 authorities to be met with on this point. 
 They are summed up by Mr. Pigott, [z) 
 who has given the points of difference, in 
 these terms : ''If there be a tenant for life, 
 " remainder in tail, remainder in fee, if he 
 " in remainder in tail, suffers a common re- 
 '' covery, it bars not the entail because no 
 '* tenant to the praecipe ; but if he in re- 
 '' mainder in fee suffers a recovery, that 
 *' bars his heirs, as has been said before." 
 
 In a late case [a), where the person, in- 
 tended to be tenant to the writ, was mis- 
 named in the deeds and recovery, the ques- 
 tion was, whether a recovery, suffered by a 
 tenant in fee, without a good tenant to the 
 prcecipe, had the effect of revoking a will, 
 the court of Cofnmo?i Pleas decided that the 
 will was revoked, and observed " that the 
 *' tenant in fee was estopped, by what ap- 
 '' peared upon the record, and, if living, 
 '' could not sav that there was no ffood te- 
 *' nant to the pracipe, and that every person 
 *' claiming under him must be estopped 
 " also." 
 
 These observations lead to some impor- 
 
 {z) Pa,L^(-37. lip. of IJandaf. ^ New 
 
 f«) Dtte d. Lushinprton r. R*>p. 004.
 
 *WRIT OF ENTRY. 90 
 
 taut conclusions, applicable in practice to 
 cases in which a recovery has been suffered 
 by tenant in tail, and the recovery is voidable, 
 for want of a good tenant to the writ of 
 entry. 
 
 They also lead to some observations re- 
 specting the practice of requiring that the 
 person, to whom a tenant in tail has convey- 
 ed, preparatory to a recovery afterwardf [ 90 ] 
 suffered, and which is defective for want of 
 the immediate freehold in the tenant, shall be 
 either the tenant in a new recovery, or shall 
 join in making the tenant to that recovery. 
 
 First. Sometimes the deed contains more 
 parcels than the recovery. In this instance, 
 unless the recovery shall be amended, it is 
 clear that the freehold of the lands, not in- 
 cluded in the recovery, remains in tjie per- 
 son named as tenant ; and, of course, on 
 suffering another recovery, a conveyance 
 must be obtained from this person or his 
 heirs, or a writ of entry must be brought 
 aiijainst him or his heirs. This is univer- 
 sally, and very justly, the practice. The 
 necessity of this practice might be pre- 
 vented by an express declaration to this 
 effect : " Provided always and it is hereby 
 " declared, Sfc. that if the said (the 
 " tenant) shall not, on or before the 
 *^ day of , pay to the said his 
 
 *' executors or administrators, the sum of 
 VOL. J. H
 
 91 ON THE TENANT TO THE 
 
 '' c£lOO,000; then, and in that case such, and 
 '* so many, and such parts, if any , of the mes- 
 " suages, S;c, as shall remain vested in the said 
 '* {i\\e ie\\2Lui) after the said day of 
 
 *' by reason of any defect in the said intended 
 " recovery, or otherwise, shall, from and after 
 ^' the said day of , remain, conti- 
 
 " 72ue, and be,—, a?id that the said 
 '' (the tenant) and his heirs shall stand a?id be 
 " seised, <jc. — , and that these presents, Sfc, 
 *' shall operate and enure — , to the uses, 8fc. 
 '* hereinbefore limited, expressed, and declared 
 [91 T* of and concerning the messuages, S;c. which 
 " shall be or are intended to be comprised in 
 *' the said recovery, Sfc.'' This declaration 
 will operate as a shifting use, even though 
 there be a conveyance to the use of the 
 tenant in fee. But it is to be remembered 
 that no shifting use is admissible, unless 
 there be a conveyance of the legal seisin, so 
 that uses may be declared, to operate and 
 take effect through the medium of the 
 statute for transferring uses into possession. 
 Such a limitation is not admissible in a 
 bargain and sale, — to operate as such, under 
 the statutes of uses and inrolments, unless 
 part of tlic consideration proceeds from the 
 cestui que use. 
 
 Secondly. Sometimes a recovery is suf- 
 fered by a person who has merely an estate- 
 tail in remainder or reversion, after an
 
 WRIT OF ENTRY. 9^ 
 
 estate offrechold, withoutobtaiiiing tliecoii* 
 turrence of the frctlulder. In thi.^ case, as 
 has a I ready been observed, the recovery is con- 
 sidered as voidable., and not as merely void. 
 
 Darins: the continuance of the freehold 
 in the previous tenant for life, another 
 effectual recovery cannot be suffered without 
 his concurrence: but, with his concurrence, 
 and without caliini: on the tenant in the 
 recovery to join in the conveyance, an effec- 
 tual recovery may be suffered. Even under 
 these circumstances, if the former convey- 
 ance to the intended tenant passed the fee, 
 the title, {independent of any question on 
 the validity of the recovery,) will be expos- 
 ed to the objection, that the legal estate of 
 inheritance is in the person to whom, for 
 the purpose of making him tenant to the 
 former recovery, it was conveyed. 
 
 When the defect in the recovery is to be[ 92 
 supplied, after the previous estate of free- 
 hold has determined, it is the practice to 
 require the tenant in the former recovery, 
 or his heirs, or devisees, if any, to be te- 
 nant, or tenants, in the new recovery ; or 
 that he or they should join in a conveyance, 
 for making a tenant to that recovery. With a 
 view to objections by other counsel, it is not 
 prudent in preparing recovery deeds, to forego 
 this caution, when there is an opportunity 
 of obtaining the requisite conveyance, 
 
 H 2
 
 §f3 ON THE TENANT TO THE 
 
 But whenever it shall he necessary tosupf-^ 
 port a title, on an adverse litigation, merely 
 on account of the want of such conveyance, 
 it may be contended, (and, it should seem, 
 with great chance of success,) that the former 
 recovery was good, as between the parties ; 
 that the estate conveyed to the tenant was 
 drawn out of him by the operation of the 
 recovery ; and that the declaration of the 
 uses governs the legal title, as between 
 these parties. To this reasoning it would 
 possibly be objected, that the issue in tail, 
 and those in remainder, are not bound by 
 estoppel. This, as an abstract proposition, is 
 not denied, nor will it affect the conclusion 
 which has been offered. A recovery, good as 
 between the parties, may be voidable, asy 
 against the issue, &c. because they are not 
 bound by estoppel. ^ — But although they are 
 not bound by the estoppel of the recovery, 
 [93 jit by no means follows that the con- 
 veyance is not good till avoided, so as to 
 "overn the leo^al title to the freehold. On 
 the contrary, the conveyance of tenant in 
 tail has, as against himself, precisely the 
 same operation as a conveyance by tenant 
 in fee has against that tenant. 
 
 A conveyance by tenant in tail, by lease 
 and release, by feoffment, or by fine without 
 proclamations, &c. is an effectual convey- 
 ance by him, of a base fee, or of a defeasible
 
 WHIT OK ENTRY. 94 
 
 fee ; and consequently of the freehold ; al- 
 though it does not bind the issue. It ope- 
 rates, however, against the issue so far, that 
 they must make their entry or claim, or, (if 
 there be a discontinuance,) bring their actio7i, 
 to defeat the estate : and the person in 
 wliom the freehold resides under the assu- 
 rance, must be considered as the tenant 
 whom they are to sue. 
 
 The same reasoning, and the principles 
 on which it is grounded, prove that when 
 the freehold passes, as between the parties, 
 by way of conveyance, it must pass as against 
 all mankind : and indeed there is an ab- 
 surdity in supposing the same person to be 
 tenant of the freehold, as against all man- 
 kind, except the issue in tail, and those in re- 
 mainder ; more especially, as it is of no 
 consequence to the issue, &c. who is the te- 
 nant. — All that is necessary for their sake 
 is, that there shall be a person on whom their 
 entry may be made, or against whom their r g^ 
 action may be brought (A). 
 
 In point of law, the person deriving a 
 title under this imperfect, or voidable con- 
 veyance, is the person against whom, the 
 issue must bring their action, should they 
 resort to an action to establish their right ; 
 and this result seems incontrovertibly to 
 prove that this person lias the freehold. 
 
 Since these observations were first 
 
 {h) Essay on Estates, chap. Freehold.
 
 95 ON THE TENANT TO THE 
 
 dictated, this point lias been fully consi- 
 dered, on a case which arose and called for 
 its application in practice. On that case, 
 the reasoning oftered in support of a sixth 
 recovery, after five defective recoveries, was 
 to this effect. 
 
 ** In lVood\s Conveyancing, cliapter Reco- 
 *' veries, under the head of avoiding reco- 
 ** veries, it is said, that the recoveror him- 
 '^ self cannot falsify a recovery ; and this 
 '' proposition is given by way of contrast 
 " to the instances previously stated, of re- 
 " coveries voidable for different reasons, 
 " and one of them is, that the recovery 
 " may be avoided, for that he, against 
 " whom the writ of entry is brought, is liot 
 '' tenant of the freehold, by right or wrong, 
 *' at the time of the Avrit brouglit. 
 
 " And the language oi Pigotf on Recove- 
 [95 ]" lif'S (p- 16"9) is, that an erroneous common 
 *' recovery is good till reversed, by reason, 
 " as he observes, of the intended recom- 
 " pense. This, however, is not the true 
 '' reason. In point of law, the recovery 
 " amounts to a conveyance, as between 
 " the parties, when one of them has a 
 ** seisin ; and as an extinguishment by es- 
 " toppel, when there is merely a right of 
 *^ a^-tioM or of entiy. 
 
 " And in the Marquis of Winchester's 
 '^ case, f.'i Co. I,) it was said that common 
 " recoveiies, as much as any benign inter-
 
 V/RIT ON ENTRY. 96 
 
 ** pretation of the law will permit, ought 
 " to be maintained, because they are the 
 ** common assurances of the land. But it 
 " was aijreed that for the moiety whereof 
 ** Anne Mills was tenant for life, the reco- 
 ** very was not any bar either to the estate- 
 *' tail which Lionel had, expectant on the 
 ^' estate of Anne Mills, or to the remainder 
 " of Henry, because that for this moiety 
 " Lionel was not tenant to the prcecipe ; 
 '* but the recovery had its operation against 
 ^* him by estoppel and conclusion, which 
 *' shall not bind the issue in tail, whc. 
 ^' claims performam doni. 
 
 ** So in Owen v. Morgan, (3 Co. 5,) the 
 ^' case was supposed to be the same as if the 
 " husband had had a remainder in tail, 
 " expectant on an estate for life : in which 
 *' case, the book continues,, a common reco- 
 ** very had against him shall not bind be- 
 *' cause he was not tenant to the pr(£cipeX 96 ] 
 *' nor seised by force of the tail ; but the 
 '* recovery, as to the estate of the husband, 
 *'* took its effect by estoppel and conclusion, 
 '' and therewith ao;rees 12 Ed. IV. 14. b„ 
 *' that against a common recovery against 
 *' the ancestor in tail, the issue may say, that 
 ** the ancestor was not tenant tempore hrevis, 
 
 " Both these cases suppose the recovery 
 " to be good between the parties, and conse- 
 " quently, they must operateasaconveyance.
 
 97 ON THE TENANT TO THE 
 
 "And the issue in tail and those in remaindef 
 " are driven to their writ of error, to avoid 
 " the recovery, x'lnd it would be highly incon- 
 *^^ venient that the tenant in tail should conti^ 
 *' nue seised, contrary to his own solemn act : 
 " or that the person to whom he conveys, 
 " and who is named tenant in the proceed- 
 *' ings towards the recovery, should be at 
 *' liberty to defend himself, and consequent- 
 ^' ly, retain the estate, by alleging the inca- 
 " pacity of the tenant in tail to suffer a 
 " recovery, which will be binding against 
 " his issue and those in remainder. And 
 *' it cannot be supposed that if the demand- 
 *' ant acquires a seisin either in fact, or in 
 *^ law, he can claim to be exempt from the 
 *' uses declared of his estate. 
 
 " Mr. Cruise also admits that a common 
 ' *' recovery may be good by estoppel. — See 
 " Essay on Recoveries, page 271. 
 
 " Mr. Pigott also (p. 123) allows that if 
 " there be no tenant to the prcecipe, yet, if 
 '' the party Avho suffers the recovery has a 
 '* fee-simple, he and his heirs are estopped. 
 £ 97 ]" '^^^e like proposition will be found in 2 
 " Cruise, p. 90 ; and when he says, this is 
 '' only where the person who suffers the 
 " common recovery is tenant in fee, he 
 *' must be understood, (and the context 
 " evidently shows it,) as applying his obser- 
 '' vation to tiie effect of the recovery, as
 
 WRIT OF ENTRY. 9^ 
 
 *'' against persons claiming per forwam doiii, 
 *' and 11 )t to its effect or operation, as 
 '' aoainstthe tenant in tail himself: noreven 
 *' to deny that the recovery is good, even 
 *^ against the issue in tail, &c. till avoided. 
 
 " The point is more clearly stated in the 
 *' same book, p. 271, in these terms: A com- 
 *' mon recovery when suffered of an estate- 
 " tail, will not operate as an estoppel 
 ** against the issue in tail, the remainder- 
 *' man or reversioner. But even if Mr. 
 " Cruise wishes in the former passages, to be 
 " understood in any other sense than the 
 *' one I have ascribed to him, the authori- 
 *' ties to which he refers do not support 
 *' his conclusion. 
 
 " In Bennet and others v. Vade and others y 
 " (9 Mod. 314,) Lord Chancellor Hardwicke 
 *' treats a recovery by tenant in fee-simple, 
 " as good to bind him and his heir by 
 " estoppel, although there is not any tenant 
 " to the praecipe. And adds, 'i'he reason 
 *' why there is no want of a tenant to a 
 " pra3cipe, in a recovery by tenant in fee, 
 " is this ; that if such praecipe is brought 
 *' ai>ainst a strancjer who is not tenant, and 
 *' he vouch the tenant of the lands, and he 
 *' enters into warranty, by that he admits [ 98 ] 
 *' the stranger to be tenant of the lands, and 
 " so binds himself and his heirs by estoppel. 
 ^' He proceeds to observe, But if he had
 
 99 
 
 ON THE TENANT TO THE 
 
 [ 99 ] 
 
 been tenant in tail, this would not have 
 estopped his issue, because he claims by a 
 superior gift, per formam doni, and not 
 through or by his ancestor. And, in the 
 case before the court, he said these reco- 
 veries have revoked the will, and Sir 
 John Leigh has by them regained a new 
 estate to the purpose of revoking the 
 will, although it be the old one. In short, 
 the recovery had the effect of passing the 
 inheritance to the demandant, and for 
 want of an express declaration of uses, 
 (for so the case appeared upon the facts) 
 the use resulted. This then is an admis- 
 sion that in the case of a tenant in fee 
 suffering a common recovery, without a 
 good tenant to the prgecipe, the seisin 
 passes to the demandant, so that the uses 
 may arise on his seisin, and be expressly 
 declared, or result by operation of law. 
 " Also in Duke and Smith's case, (4 Leon. 
 238,) it was agreed, that if he in reversion 
 suffered the common recovery to uses, 
 his heirs cannot plead that his father had not 
 any thing at the time of the recovery, for 
 he is estopped to say that his father was 
 not tenant to the praecipe, and therefore 
 it is a good recovery against him by way 
 of estoppel. 
 
 " So in Pyull and Wyatt, upon a special 
 verdict it was adjudged, (see 1 Roll's
 
 WRIT OF ENTKY. 99 
 
 " Abr. 865, 1. 11,) that if A. seised in 
 ** fee of land, is disseised of this by B., 
 " and during the disseisin a praecipe is 
 *' brought of this by D. against A., who 
 *^ suffers a ronimon recovery of this, to the 
 ^' use of D. the recoveror, although this is 
 •' in truth a void recovery for want of a 
 *' tenant to the praecipe, yet it shall be a 
 *' good recovery by estoppel, to bind A. 
 *' his heirs and assigns ; but in this instance 
 " it is apprehended the recovery operated 
 '* by way of extingukhtneiitj and not by 
 " way of conveyance. 
 
 '* Webb V. Nect, (Cro. Eliz. 21,) also de- 
 *' cided, that a recovery is good against the 
 " tenant in fee, by estoppel, though the 
 *' freehold is in another person. 
 
 '' And the language of the court in Lord 
 *' Say and Sek\s case, (10 Mod. 45,) is, that 
 " common recoveries, although there are 
 *' no tenants to the praecipes, are good by 
 " way of estoppel, against the parties who 
 "' suffered them, thou<i;h not against remain- 
 *' der-men and strangers, &c. 
 
 " The greater part of the authorities are, 
 ''* (it must be admitted,) applied to the case 
 " of a tenant in fee, who suffers a common 
 *' recovery. Yet it is understood that tenant 
 " in ,tail is precisely in the same predica- 
 ** ment for this purpose as tenant in fee : 
 " with the difference only, that in the case
 
 ON THE TENANT TO THE 
 
 " of a tenant in fee, the recovery cannot be 
 100]" avoided ; while, in the case of tenant in 
 *' tail, it may be avoided by the issue in tail, 
 *^ or those in reversion or remainder ; but 
 " it remains in force till avoided. And 
 *• when tlie principles, on which recoveries 
 *• are founded, are traced throui^h all their 
 ^^ circumstances ; — when we follow Mr. 
 
 " 's very just conclusion, that 
 
 " the recovery of 1772 would certainly 
 " estop Luxford and his heirs from alleging 
 " any thing contrary to it ; —when we also 
 ** consider that the parties to the judgment, 
 " of a court of competent jurisdiction, are 
 '* bound by that judgment ; — that if the 
 *^ seisin does not pass to the demandant,- it 
 '' must remain in the tenant ; — and that 
 *' the tenant or his heirs cannot, after judg- 
 " nient, aver that he was not tenant, though 
 " he might in the first instance have pleaded 
 " non-tenure ; — and that there is no appa- 
 *' rent error in the recovery, and that the 
 ** parties to the judgment can avoid it only 
 *^ for error apparent on the record, and not 
 *' for an extraneous fact, as non-tenure, &c. 
 " of the tenant ; — we may, (it is submitted,) 
 " satisfy ourselves that the seisin, which 
 ** was vested in Ltixfordy was drawn out of 
 " him by the operation of the recovery, and 
 '* passed to the demandant, and supplied 
 " a seisin to the uses, and, consequently,
 
 WHIT OF ENTRY. 10! 
 
 ** conferred a title to the freehold, under 
 " which the recovery in question may be 
 *' supported." 
 
 No answer was given to this reasoning 
 by a gentlemen, whose knowledge and acute- [ 101 ] 
 ness would have enabled him with great 
 ease, to detect any fallacy in the observa- 
 tions. The probability is that he did not 
 find any authority, or any principle, to 
 oppose to the reasoning, on which the ob- 
 servations are grounded. 
 
 To sum up these observations. It should 
 seem that tenant in tail is personally bound 
 by all such acts, as will bind a tenant in 
 fee. The necessary deduction is, that the 
 recovery will be good, so far that it will 
 pass the estate, as between the parties, 
 though it will not bind the issue, or those 
 in reversion or remainder, because they are 
 not bound by estoppels. 
 
 Admitting the recovery to be good be- 
 tween the parties, though not binding on 
 the issue, &;c. ; it will have the effect of a 
 conveyance : the demandant will obtain a 
 seisin : and uses may be declared of that 
 seisin, and arise from the same, and be exe- 
 cuted into estate. 
 
 The uses then will govern the title to the 
 legal estate. Such recovery, though voida- 
 ble, is not actually void. And, in the mean 
 time, till avoided, the legal title must be
 
 102 ON THE TENANT TO THE 
 
 traced through this recovery ; and, granting 
 this reasoning to be correct, the freehold is 
 in the cestui que use under the recovery, a:nd 
 not in the person to whom a conveyance 
 was made of an estate of freehold, though 
 [ 1Q2 ]not of the immediate freehold, for the pur- 
 pose of suffering the recovery. The obvi- 
 ous and necessary conclusion is, that there 
 is not any absolute occasion, when suffering 
 another recovery, to call for a conveyance 
 from the person named as tenant in the for- 
 mer recovery. These observations will de- 
 deserve to be weighed, when a title shall 
 require the aid of argument in support of 
 its validity. 
 
 Thirdly. Sometimes the conveyance, for 
 making the tenant to the writ of entry, is 
 defective, in point of form, or of substance : 
 as in the instance of a bargain and sale, for 
 want of inrolment : or a feoffment, for 
 want of livery of seisin ; or a release, for 
 want of an estate capable of enlargement: 
 so that no estate, (not even a voidable one) 
 passes, nor is the conveyance operative itr 
 any other mode : and consequently there is 
 not a good tenant to the writ. In this 
 case, the concurrence of the tenant, in suf- 
 fering the second recovery, cannot be neces-- 
 sary, since he never had any freehold. But 
 the recovery, it should seem, is good as 
 between the parties ; and the observations
 
 WRIT OF ENTRY. 103 
 
 on that point, already given in the last di- 
 vision, are equally applicable to cases fall- 
 ing under the present head. 
 
 Fourthly. VVhen the conveyance is good, 
 and the recovery is bad, — so as to be abso- 
 lutely void, and not merely voidable^ (as 
 when it does not comprise the parcels,) the 
 converse of the last proposition will be 
 true. 
 
 Fifthly. Sometimes the recovery is suf--[ 103] 
 fered in the first instance ; and afterwards, 
 that is to say, after the end of the term, and 
 by deeds dated subsequent to the term, the 
 freehold is conveyed to the tenant. 
 
 This recovery is objectionable. It seems 
 clearly voidable by the issue, and those in 
 remainder and reversion, for want of a' good 
 tenant to the writ of entry ; and it would be 
 highly imprudent to suft'er another recovery, 
 without calling for a conveyance from the 
 intended tenant, or naming that person as 
 tenant in the new recovery. In short, it 
 Would be extremely difficult to support the 
 second recovery, without such concurrence. 
 But it might, if necessary, be contended, 
 that the declaration of uses, in the language 
 in which this declaration is generally penned, 
 is sufficient to govern the uses, not only of 
 the recovery so suffered, but also of the 
 conveyance itself. For this purpose, an 
 argument to be urged is, that the recovery
 
 104 ox THE TENANT TO THE 
 
 is good, as between the parties : that, as 
 between them, the conveyance and the 
 recovery form part of the same assurance : 
 and that on the latter ground, and also on 
 the language and geiieral form of the decla- 
 ration of uses, when well penned, the uses 
 of the conveyance will be directed by the 
 declaration in this deed, though the deed be 
 subsequent to the recovery. 
 
 To obviate as far as may be, the difficul- 
 ties in practice arising from the circum- 
 [ 104 ] stances which have been noticed, two cau- 
 tions are proper to be observed. 
 
 First. Never (except in the cases after- 
 wards noticed) to convey to the tenant for any 
 longer period, than during the joint lives of 
 himself and the tenants in tail, who are to be 
 vouched. Thus the estate conveyed to the 
 tenant will determine with his death, and 
 there will not be any necessity for resorting 
 to his heir at law, or devisee ; or, (which 
 shall first happen,) it will determine on the 
 death of either of the tenants in tail ; and 
 therefore, unless the recovery shall be duly 
 suffered in the first instance, and during the 
 joint lives, the title will not be fettered. 
 And, if further uses are to be declared, as in 
 marriage settlements, &c. these uses may 
 be superadded upon the conveyance: only 
 taking care to make the conveyance in fee, 
 for supplying a seisin to the uses ; and by
 
 WRIT OF ENTITY. 105 
 
 the declaration of use on the conveyance, to 
 limit the estate which is to be the ground-work 
 of the recovery, for the joint lives of the 
 tenant, S^c. 
 
 The recovery may then be declared to 
 enure to the uses which are limited after, 
 and expectant on, the estate for the joint 
 lives, in confirmation of, — and for the pur- 
 pose of giving effect to, — the same uses, 
 discharged of the estate for the joint lives : 
 Or a still neater and more simple way, see 
 Appendix, p. 489, 491, of accomplishing 
 this object will be to limit the use on the[ 105 J 
 conveyance to the tenant during the joint 
 lives ; and from and after the determination 
 of that estate, to the uses afterivards declared 
 of the recovery thereby agreed to be suffered : 
 and then to add the uses after the agreement 
 to suffer the recovery. See Appendix, page 
 376, 381. 
 
 Secondly. To take care never to intro- 
 duce more parcels into the recovery deed, 
 than are intended to be comprised in the 
 recovery ; and whenever general words are 
 used, for the purpose of describing the 
 parcels, these general words should be con- 
 fined to the lands in those townships or 
 parishes alone, which are to be named in 
 the recovery. Nor will it be irrelevant to 
 observe, that the proposed conveyance in 
 fee, and declaration of ulteiior uses, are 
 
 VOL. I. I
 
 106 ON THE TENANT TO THE 
 
 necessary only when some persons, not in- 
 tended to be parties to the recovery, a& 
 vouchees, are to pass the legal or equitable 
 seisin of the freehold or inheritance. Sup- 
 pose a tenant in tail to be desirous of suffer- 
 ing a common recovery, to the uses of a 
 settlement made by him, or by any other 
 person, — or to uses to prevent dower ; and 
 he alone has the freehold and first estate of 
 inheritance ; and the tenant to the writ of 
 entry is made by a deed which passes a par- 
 ticular estate, as for the joint lives, &c. : 
 uses may be well declared of the inheri- 
 tance, upon this recovery ; for the fee sim- 
 [ 106 ] pie passes to the demandant by means of 
 the recovery, and uses may be declared of 
 his seisin. 
 
 It is observable too, that whenever the 
 cause of shifting use, recommended in a 
 forme page (c), is adopted, that clause will 
 effectually obviate all difficulty on the 
 points which have been noticed. 
 
 Before this division is brou"iit to a con- 
 elusion, it is expedient to observe, that 
 when a tenant in tail has conveyed a base 
 fee, and afterwards departed this life, with- 
 out suffering a common recovery, or dis- 
 continuing the reversion or remainder, the 
 estate he has transferred ipso facto deter- 
 mines, as against the persons seised in 
 
 [<■) Supra, p. 90.
 
 WRIT OF ENTRY. 107 
 
 reversion or remainder. It is voidable 
 only, and not void, as against the issue in 
 tail, — and when a fine with proclamations 
 has been levied, the issue are precluded 
 from avoiding the alienation. 
 
 Should the heir in tail, after a convey- 
 ance of a base fee by liis ancestor, enter, 
 and suffer a common recovery, without 
 taking a conveyance from the assignee 
 under the voidable estate, an opinion, given 
 upon great consideration, was, that the base 
 fee was avoided, — the estate reduced to the 
 issue, ^ — and a recovery suffered by him, on 
 a prcecipe brought against his own assignee, 
 was effectual. In such case the heir in 
 tail should, after suffering a recovery, care- 
 fully refrain from taking a recovery from 
 the absence of the tenant in tail. 
 
 Of the Concurrence of Persons wlio have par-[ 107 J 
 ticular Estates, to enable a Remainder-man 
 or Reversioner in Tail, to suffer a Recovery ; 
 and the Cautions under which such Concur- 
 refice may be safely given. 
 
 It often happens that persons who have 
 the freehold, and whose concurrence is 
 necessary to enable the tenant of an estate- 
 tail, in remainder or reversion, to suffer a 
 common recovery, would willingly afford 
 their assistance, if they were advised such
 
 108 ON THE TENANT TO THE 
 
 assistance might be afforded, witliout in- 
 cumbering their own estates, or destroying 
 powers, &c. annexed to their estates. From 
 an apprehension that their estates might 
 merge in the reversion or remainder, and 
 be affected by incumbrances affecting the 
 estate-tail, the owners of the freehold fre- 
 quently refuse to join in a conveyance with 
 the tenant in fail. 
 
 The cases (d), however, seem to warrant a 
 decided opinion, that a joint conveyance by 
 two persons, having distinct estates, will 
 pass those estates, as a conveyance of the 
 one estate, and confirmation of the other, 
 without occasioning any merger of the par- 
 [ 108 ] ticular estate. Although the two estates are 
 blended, the grantee will hold under the title 
 of the owner of the particular estate, during 
 the continuance of that estate ; and after 
 the determination of that estate, he will 
 hold under the title of the person in remain- 
 der or reversion. Thus there is not any 
 merger. This subject will be fully discusssd 
 iii the long promised Essay, on the doctrine 
 of Law respecting the Mc?ger of' Estates. 
 
 To avoid all doubts on the extinijuish- 
 ment of the particular estate, the convey- 
 ance may be confined to the joint lives of 
 the freeholder and tenant, or tenant and 
 vouchee ; so as to leave a reversion, in other 
 
 ((I) JircJon\s rase, 1 Co. 70. Trcporfs cuye, G Co, 14.
 
 WRIT OF ENTRY, 109 
 
 words, an intermediate estate, in the owner 
 of the freehold. 
 
 This mode of limitation will eftectnally 
 guard asjainst the meri^jer of the estate of 
 freehold. It will also in the most effectual 
 manner guard against the destruction of all 
 powers, &c. — They will remain annexed to 
 the reversion. And even though it should 
 be doubtful whether the freehold be in the 
 supposed tenant for life, or in some other 
 person, both may safely join in the convey- 
 ance, with the precaution of confining the 
 limitation to the joint lives of the tenant 
 and vouchee, or to any other like period, 
 which would indisputably create a par- 
 ticular estate, derived out of the estates of 
 the conveying parties. 
 
 The lives of the tenant and vouchee are[ 109] 
 most proper to be inserted in this instance. 
 There will be a protection against the ac- 
 cident of the death of the supposed tenant 
 for life, and the consequent determination 
 of the estate of the tenant to the writ of 
 entry, when that estate is circumscribed by 
 the life of the supposed tenant for life. 
 
 In a recovery deed adapted to these cir- - 
 cumstances, there should be a declaration, 
 that the recovery shall enure to the use of 
 the former owner of the life-estate for his 
 life, in confirmation of, and for the purpose
 
 110 ON THE TENANT TO THE 
 
 of establishing his estate for life, and all 
 powers, &c. annexed to that estate. Tlie 
 form of such a recovery deed will be found 
 in the Appendix, p. 444, 456, 46l. 
 
 Formerly the practice (introduced, it is 
 believed, by Mr. Booth,) was, for the tenant 
 for life, to convey to the intended tenant to 
 the writ of entry for the life of the tenant 
 for life ; subject to a proviso, that unless 
 100,000/. should be paid on a given day, 
 (namely, a day after the time within which 
 the recovery was to be suffered,) the use 
 should cease. This is called the one hun- 
 dred thousand pound clause. It is founded 
 on two principles. 1st, That it is sufficient 
 that there should be a tenant at the time 
 when a recovery is suffered, without any 
 regard to a subsequent defeasance or avoid- 
 ance of his estate. And 2dly, That uidess 
 [ HO ] 100,000/. should be paid on the appointed 
 day, and which it is intended should not, 
 and from the ma<ijnitude of the sum com- 
 pared with the value of the estate, it is 
 certain will not be paid, the title under 
 this limitation will cease, or may be 
 avoided. 
 
 The common recovery may devest the 
 freehold and the reversion, &c. (e), till they 
 are revived by re-entry, or by the new uses : 
 
 [e) Co. Litt. 35G. a. afi2. a.
 
 WRIT OF ENTRY. Ill 
 
 and uses ought to be declared to revive 
 the seisin. A form of this clause is in the 
 Appendix, p. 480. 
 
 Cautions when it is doubtful, whether a Person\_ 111 ] 
 who intends to suffer a Recovery has an 
 Estate for Life or in Tail, or when there 
 are, or are supposed to be, contingent Re- 
 mainders, to be preserved. 
 
 Sometimes it is doubtful whether the 
 person about to suffer a recovery is tenant 
 for life, or tenant in tail. Supposing him 
 to be merely tenant for life, and no tenant 
 in tail to join with him, his recovery would 
 be a forfeiture of his estate. (/) 
 
 To protect against the consequence of 
 forfeiture, and secure the enjoyment for a 
 period of years, if the owner should so long 
 live, a term is generally created by demise, 
 and vested in a trustee for the owner : — and 
 a form of a demise for this purpose will be 
 found in the Appendix, p. 468, 472, 475. 
 
 According to Pelham's case (/') there will 
 be a forfeiture by suffering a recovery, even 
 although the tenant for life has a remote 
 estate of inheritance. But from the decision 
 in Smith v. Clifford [f) it may be collected, 
 that when the tenant for life has a remote 
 
 (/) PellianCs case, 1 Co. Smith v. Clifford, 1 Term 
 
 14. b. Rep. 738.
 
 112 ON THE TENANT TO THE 
 
 estate of inheritance, or the owner of a 
 remote estate of inheritance joins in the 
 recovery, no foifeiture will be incurred. 
 [ 112 ]This point may deserve further conside- 
 ration : it does not seem to be fully 
 decided. 
 
 Sometimes also it is doubtful whether 
 the person who is to suffer the recovery is 
 tenant in tail, or merely tenant for life, with 
 contingent remainders in favour of his chil" 
 dren ; and on the one hand he is desirous 
 of barring the estate-tail if he has any ; and 
 on the other hand, it is his wish, if he is 
 merely tenant for life, to preserve the con- 
 tingent remainders to his children. With- 
 out some precaution to preserve the con- 
 tingent remainders, they would be destroy- 
 ed by the recovery, unless, (as sometimes 
 happens,) there be an interposed estate of 
 freehold in trustees for their preservation, 
 or in some other person who continued his 
 ownership. 
 
 To guard against the destruction of the 
 contingent remainders, either the land should 
 be conveyed to the use of the intended te- 
 nant during the joint lives of himself and the 
 tenant for life or in tail, being the intended 
 vouchee ; with remainder to the use of a 
 trustee, for the life of the vouchee, in trust 
 for the vouchee and his assigns ; remainder 
 to the vouchee in fee ; with a suitable de-^
 
 WRIT OF ENTRY. 113 
 
 tlaration of the uses of the recovery. See 
 Appendi.v, p. 336. 
 
 Or the lands should be conveyed by the 
 supposed tenant in tail, to A. for the life of 
 the supposed tenant in tail ; to the use of 
 the supposed tenant in tail, during the joint 
 lives of himself and the intended tenant to 
 the writ of entry, with remainder to the use[ 113] 
 of A. for the life of the supposed tenant 
 in tail, in trust for him and his assigns : 
 afterwards, by a distinct deed, the supposed 
 tenant in tail, who by these means will retain 
 the freehold under the limitation to his use 
 during the joint lives, should convey to the 
 tenant to the writ of entry, for the purpose 
 of suffering the recovery. See Appendix, 
 p. 332, 338. 
 
 Of these modes the latter is preferable ; 
 no question is raised on the title, on the 
 face of the recovery deed. Either of the 
 forms is sufficient for the purpose. In each 
 instance the freehold will be effectually 
 vested in the intended tenant to the writ of 
 entry ; and the estate limited to the trustee 
 in trust for the supposed tenant in tail, will 
 protect the contingent remainders from de- 
 struction. And either form, when adopted, 
 will supersede the necessity of a demise for 
 years. The estate in the trustee will be 
 a protection from the consequence of a for- 
 feiture, and also vest in him the power of
 
 114 ON THE TENANT TO THE 
 
 taking advantage of the forfeiture, for the 
 benefit of his cestui que trust. 
 
 In cases of this sort, no express declaration 
 should be added, for supporting contingent 
 remainders, unless the party means to pre- 
 clude himself from destroying them at a 
 subsequent period. 
 [114] The like or some such precaution is ne- 
 cessary, when A. is tenant for life, with a con- 
 tingent remainder in tail to himself or his 
 children, with remainder over in tail ; and 
 the tenant for life is willing to assist the 
 owner of the remote remainder in tail, in 
 sufferingacommon recovery, so as to enlarge 
 his estate-tail into a fee-simple; and is at the 
 same time anxious, (as he ought to be,) to re- 
 tain an estate of freehold for the purpose of 
 preserving the contingent remainders de- 
 pending on, and supported by, his estate. 
 A limitation, during the joint lives of the te- 
 nant for life, and of the tenant in the reco- 
 very, or of the tenant in the recovery and of 
 the vouchee, so that the tenant for life retains 
 his estate for life, by way of reversion, will 
 be sufficient for these purposes. 
 
 The form of a recovery deed adapted to 
 these purposes will be found in the Appendix. 
 
 There are some particular cases, in which 
 other cautions, besides those already sug- 
 gested, will be necessary. 
 
 For example, suppose A. and B. to be
 
 WRIT OF ENTRY. 115 
 
 seised for the life of C. in trust for her, with 
 contintxent remainders to the children of C, 
 for life ; Avith a limitation over, which leaves 
 it in doubt whether C. has not an estate- tail 
 in remainder : and suppose the reversion in 
 fee to be in A. : and the parties are anxious 
 to preserve the contingent remainders from 
 destruction, and also to give the children 
 estates-tail, on certain contingencies. To 
 accomplish all these objects, a recovery must 
 be suffered, or a fine be levied. Tiiis is ob-r 115 1 
 vious. Preference being given to a recovery, 
 it follows that the trustees must join to pass 
 the freehold. C. must be vouched to bar 
 the estate-tail, if any. A. must also con- 
 vey his inheritance, to guard against the 
 doubt, whether C. has, or has not, an 
 estate-tail. Although, by a conveyance 
 from A. B. and C. jointly, to D. in fee, the 
 estate for life of A, and B. would not be 
 merged ; yet there is reason to apprehend 
 the union of the estate of freehold, with the 
 inheritance, would be a destruction, at law, 
 of the contingent remainders, and thus one 
 of the objects would be defeated. 
 
 To obviate this objection, this plan may 
 be adopted. A. B, and C. should convey to 
 D., (the intended tenant,) for the life of C. : 
 to the use of D. during the joint lives of him- 
 self and C, with remainder to the uses after- 
 wards declared. It should then be expressed
 
 iJ6 ON THE TENANT TO THE 
 
 that the limitation made to the use of D. 
 diirina" the joint lives, &c. is to the intent 
 that a common recovery may be suffered. 
 The recovery should be suffered, — and by the 
 recovery deed declared to enure to the use 
 of A. and B. during the life of C. ; and 
 the intention having required that the 
 fee should be limited to A. and B. as trus- 
 [ 116 ] tees, the next limitation should be to the use 
 of E. for the life of C, to protect, and pre- 
 serve from destruction, the contingent re- 
 mainders limited by the will of, &c. ; re- 
 mainder to the children of C.for such estate, 
 &c. to which they are entitled under the 
 will, &c. with remainder to the use of A. 
 and B. in fee. 
 
 By this arrangement, the trustees will 
 retain their particular estate, free, under 
 their own conveyance, from all question of 
 merger. The interposed state of E. will 
 protect the original estate for life, from 
 merger, by reason of the fee, if any passes, 
 from C. 
 
 To make the inlieritance of A. subject 
 to these uses, and still to guard against the 
 question of merger of the particular estate, 
 is another object still to be attained. To 
 effectuate this object, A. and C. may by 
 another conveyance in the same deed, grant 
 to F. in fee, to the uses afterwards declared ; 
 that is to say, to the use of E. for the life
 
 WRIT OF ENTRY. UJ 
 
 of C, upon the trusts previously declared 
 of his estate ; and after the determination 
 of that estate, to the uses declared of the 
 recovery, in remainder after, and expectant 
 on, the determination of the estate of E. 
 By the conveyance to F. instead of D., and 
 by passing over the limitation to the use of 
 A. and B. for the life of C, there will not, 
 at any time, be an union of the inherit- 
 ance with the particular estate of A. and 
 B., so as to raise the question of merger, as 
 a consequence of even a momentary conso- 
 lidation of the estate of A. and B. during 
 the life of C, with the inheritance of either [ 117] 
 C. or A. While, if the grant had been 
 made to D., he would have had the freehold 
 and inheritance, simul et semel. And if the 
 use on the grant had been declared to A. and 
 B., these persons would have had their old 
 estate for the life of C, and another estate 
 for the same period, derived out of the in- 
 heritance of C. and A. or one of them. Such 
 circumstances would have raised the objec- 
 tion, that the original estate for life was 
 merged in the accessional estate for life. 
 
 It remains to be observed, that these pre- 
 cautions are not absolutely necessary when 
 the estate is merely equitable. The prin- 
 ciples of tenure, indiucmg forfeiture for tor- 
 tious alienations by particular tenants, do 
 not apply to alienations by tenants of equi-
 
 118 ON VOUCHER. 
 
 table estates. Nor are the precautions which 
 have been recommended, necessary in suf- 
 fering recoveries of lands of copyhold tenure 
 for the purpose of barring intails of the cus- 
 tomary tenure. Let it also be remembered, 
 that contingent remainders of the equitable 
 ownership, do not admit of destruction, by 
 the alienation of the particular tenant. As 
 equitable owners have not the same power, 
 as the owners of legal estates, to devest or 
 discontinue the remainder or reversion ex- 
 pectant on particular estates ; neither the 
 forfeiture of particular estates, nor the de- 
 struction of contingent remainders, forms a 
 part of the system of tenures adopted by 
 courts of equity. The analogy of the rules 
 of law, under these circumstances, is not 
 applicable, and therefore is not applied, to 
 equitable estates. 
 
 [118] On Voucher, 
 
 The voucher is that part of the proceed- 
 ings in a common recovery, by which a war- 
 ranty is supposed, and in consequence of 
 that warranty a person is vouched. The 
 vouchee admits the warranty. He takes the 
 defence on liimself. Thus, as between the 
 parties, he becomes the defendant ; and the 
 plaintiff counts against him, by stating the de- 
 mand against him as tenant by the warranty, 
 in like manner as he counted against the ori-
 
 ON VOUCHER. 119 
 
 ginal defendant as terre-tenant, or actual free- 
 holder. When the tenant vouches a person, 
 wiio makes default, this is a recovery with 
 simple voucher. As often as this vouchee 
 vouches another, who makes default, this is 
 a recovery with double voucher. And when 
 one person is vouched, w^io vouches ano- 
 ther, who vouches a third person, this is a 
 recovery with treble voucher. The conse- 
 quence of voucher is recommence ; in other 
 words, judgment to recover in value. 
 
 In recoveries suffered to bar estates-tail, 
 or remainders expectant on them, a voucher 
 by the person who is the donee or heir in 
 tail is essential. Without a voucher, the 
 estate-tail, or the remainders expectant 
 thereon, cannot be barred. Against the 
 issue in tail, the voucher, and consequently 
 recovery in value, in other words the recom- 
 pense, or possible recompense, is the cause 
 of the bar (g). The doctrine of recompense 
 is not considered as essential to bar the re- 
 mainder-men. Against them the common [II9] 
 recovery is treated as acommon assurance (A). 
 It follows that the issue cannot be barred, 
 unless the recompense, on the voucher, 
 will, in intendment of law, belong to them, 
 in the same order of succession as their 
 estate-tail, and as a substitution and equiva- 
 
 ig) Pi^tt on Recov. 31. {h) Per Willes, 1 Wlls. 
 
 Co. Litt. a73. a. Rep. 73.
 
 120 ON VOUCHER. 
 
 lent for that estate (/). The difference made 
 in some cases, between a recovery with 
 double, and a recovery with single voucher, 
 arises out of this doctrine ; and the doubt 
 whether a treble voucher is not neces- 
 sary under some circumstances, owes its 
 origin to the same learnino-. It is ajjreed 
 that a recovery suffered by tenant in tail, 
 by his own default, or by confession, will 
 not bar the estate-tail. It is not only 
 necessary that there should be a voucher, 
 but it is also material to the recovery, and 
 essential to its operation against the issue 
 and persons in remainder, that the tenant in 
 tail should vouch some person to warranty, 
 and have judgment to recover in value : 
 that there may be a recompense ^ to descend 
 in the same line as the estate-tail would have 
 descended {k). 
 
 To convey an estate, or to operate by 
 
 estoppel, a voucher is not essential. If there 
 
 be a voucher, it is not necessary that there 
 
 [ 120 ] should be a voucher over, so as to give title 
 
 to a recompense in value. 
 
 From these deductions it will always 
 be necessary to distinguish, whether the 
 recovery is to operate simply as a convey- 
 ance ; as a release of right ; or as an estop- 
 pel ; or is to be considered as the assurance 
 
 [i] raltarum's case, 12 I'M. [k) Co. Litt. 373. a. 
 
 IV. 14, 19,
 
 ON VOUCHER. 121 
 
 of tenant in tail, to bar his issue and those 
 who have a reversion or remainder expectant 
 on his estate. 
 
 A common recovery may, at the same 
 time, have two objects : one to bar an es- 
 tate-tail, &c. ; — the other to pass an estate, 
 as the jointure of a married woman; or 
 bar a right, as a title of dower ; or extin- 
 sjuish a collateral interest, as a rent-charge : 
 and though the recovery may be void against 
 the issue, for want of regular voucher, it 
 may be good as a conveyance, or release, 
 &c. The recovery may also and at the same 
 time be good, against the estate-tail, &c. 
 and operate as a conveyance, release, &c. 
 though the recompense is carried over 
 wholly to the estate-tail ; and of consequence 
 no benefit from the voucher, is derived by 
 any other person who has an estate, the 
 right or title, or the collateral interest (/). 
 
 In this place it may be called to mind, 
 that the law uniformly carries the recom- 
 pense, derived from a recovery in value, to 
 the persons by whom the loss is sustained. 
 For example, if two persons are vouched [ 121 ] 
 jointly, and one of them has nothing, the 
 recompense will belong to the person by 
 whom the loss is sustained {???). 
 
 (I) Eare v. Snow, Plowd, (?rt) Page v. Hat/wardy 
 
 514. 2 Salk. 570. 
 
 Pigott on Recov. 14. Pigott on Recov. 176, Co. 
 
 Litt. 376, b. 
 
 VOL. I. K
 
 121 ON VOUCHER. 
 
 And when the lands recovered were in- 
 tailed, the lands recovered as the recompense 
 ill vaine, will be considered as intailed in the 
 same manner, as the lands of which the re- 
 covery is suffered, {n) 
 
 In common recoveries this recompense is 
 merely nominal. The judgment to recover 
 in value is mere form : a form, however, to 
 be observed, that a common recovery may 
 have the semblance of a recovery in an ad- 
 verse action. 
 
 (n) Co. Litt. 252, a. ManxeVs case, at the end of 
 
 Plow. Com. 514, and Plow. p. 8.
 
 122 
 
 OF THE VOUCHEES. 
 
 COMMON RECOVERIES ARE WITH 
 
 I. Si7igle Voucher. 
 II. Double Voucher, 
 III. Treble Voucher. 
 
 I. Of Recoveries with Single Voucher. 
 
 A recovery with single voucher is in 
 modern practice very rarely used. The only 
 instance in which it has been used for many 
 years, is that which is to be found in Mr. 
 Fearne's Posthutnous Works (o). 
 
 In this recovery the writ is brought against 
 the tenant in tail himself, as a tenant of the 
 freehold : and the recovery will be effectual 
 to bar the estate-tail, only in the particular 
 instance in which the tenant is actually 
 seised of an estate-tail, conferring the right 
 to the immediate freehold, in other words, an 
 estate-tail in possession (p). 
 
 Any estate-tail which is devested or dis- 
 
 {o) p. 336. (p) Taltarum's case, 12 
 
 Ed. IV. 14, 19. 
 
 K 2
 
 123 OF THE VOUCHEES. 
 
 contiiuied will not be barred (q). Nor will 
 the recovery bar any estate-tail which has 
 been previously aliened (r), although the 
 party takes back an estate-tail, unless it be 
 the same estate-tail, upon his conveyance 
 {q). Nor will the recovery bar any estate- 
 tail, in remainder or reversion, after and ex- 
 pectant on an estate of freehold, though the 
 freehold, as a distinct estate, be in the te- 
 nant in tail himself (s), or though it be in a 
 different person, and both these persons are 
 named tenants (t). 
 
 For these reasons a decided preference is 
 due, and, in practice, is given to recoveries 
 with double or treble voucher. 
 
 Suppose A. tenant in tail in possession : 
 and he discontinues, or even conveys, and 
 takes back another estate-tail, and suffers 
 a recovery, in which he is named tenant, 
 and vouches over, this recovery will bar the 
 estate-tail taken under the discontinuance 
 or conveyance ; but the right under the 
 oriiijinal estate-tail will not be barred. The 
 very point was decided in 'raltariim's case, 
 already cited. So that the same issue may 
 [ 124 ]be barred as to one estate-tail, and their 
 
 {«/) Taltururti' s case, al- Owen v, Morgan, 3 Co. 5. 
 
 ready cited. C/ilhcro v. J<'rankiin,2Sa\\i, 
 
 (r) Lin. Col/, ca. 3 Co. 58. 5C8. 
 
 Peck V. Channel/, Cro. {t) Pif>ott on Recov. 35. 
 
 Eliz. 827. 3 Co. 0, h. 
 
 (s) Meredytli v. Leslie, 
 Bro. Par. Cas. 200.
 
 OF THE VOUCHEES. 124 
 
 right under another estate-tail may continue. 
 To effect a bar under the original intail there 
 must be a voucher of the donee in tail, or 
 the heir to the intail, and a voucher over. 
 
 On the subject of recoveries with sino-le 
 voucher, the cases applicable to husband 
 and wife must be called to recollection. 
 
 The following Points occur. 
 
 Husband makes a feoffment to the use of 
 himself for life, remainder to the use of his 
 wife for life, remainder to the use of the 
 heirs of their bodies ; and a praecipe is 
 brought against him and his wife, and they 
 vouch the common vouchee. This reco- 
 very does not bar the intail. The woman 
 is not a proper tenant to the praecipe {w). 
 
 So if lands are given to husband and wife, 
 and the heirs of the body of the husband, 
 remainder over, and the husband alone suffer 
 a recovery, in which he is tenant to the 
 praecipe, and vouches the common vouchee, 
 this recovery is not a bar to the issue or him 
 in remainder. The recompense cannot 
 enure to the estate. The wife having a 
 joint estate, and no moiety between them, 
 the husband is alone no good tenant to the 
 praecipe. The estate tail and remainder [ 1^5 ] 
 
 [w] Pig. Rec, 35.
 
 125 OF THE VOUCHEES. 
 
 depended on the estate of husband and wife^ 
 as on an entire estate, (a). 
 
 It is otherwise of a joint estate conveyed 
 to them before the coverture, for there one 
 moiety is barred [y). 
 
 All these cases suppose the recovery to be 
 defective, because the Imsband is named 
 tenant, and the recovery in value cannot go 
 immediately to the estate-tail, and in the 
 same line of succession as the estate-tail. 
 Had any otlier person been tenant, and the 
 husband been vouched, and lie had vouched 
 over, the cases admit that the estate-tail 
 v/ould have been barred {z). These cases 
 turn on a point of great nicety. The rea- 
 soning is incorrect, so far as the recovery 
 is assumed to be defective for want of a 
 good tenant to the writ of entry. 
 
 II. Of Recoveries with double Voucher, 
 
 In recoveries with double voucher, the 
 donee or heir in tail, instead of being named 
 tenant to the writ of entry, is vouched. 
 Plence the necessity, in most cases, of a 
 [ IgGlP^'^'V'O^'* conveyance, for the purpose of 
 making a tenant to the writ of entry. 
 
 (.r) Owen and 31orga7i's Ca. (c) Cuppledike* s case, 3 
 
 3 Co. 5. Co. 5. 1). 
 
 Pi^ott on llccov. o8. i''e7rir?7/ia?«'*case,6Co. 32. 
 
 (y)Murfpiiso/' Winchester's Hcllet v. launders, 3 Lev. 
 
 case, 3 Co. 1. 107.
 
 OF THE VOUCHEES. 1^26 
 
 A person who comes in as a vouchee, on a 
 common recovery, comes in of all e.^tates- 
 tail of which he is, or of which he ever was 
 seised : or, with the exception of contingent 
 or future interests, which he has in point of 
 right or title (a). This is a general rule of 
 law, and an universally acknowledged prin- 
 ciple. 
 
 Thus a recovery in which the tenant in 
 tail is vouched, and is vouched over, will 
 bar an estate-tail, of which he is actually 
 seised : it will also bar all intails, under 
 estates which have been devested, disconti- 
 nued, or previously aliened. Several estates- 
 tail, or the right to several estates-tail, by 
 one and the same operation may also be 
 barred {b). 
 
 All remainders and reversions expectant 
 on the intail, even though the estate-tail has 
 been previously barred by a fine with pro- 
 clamations levied by the tenant in tail, are 
 within the influence and barred by the ope- 
 ration of the recovery (c). And the better, 
 and at this day the generally received opi- 
 nion is, that a recovery suffered by the heir 
 in tail after the death of the ancestor, and 
 after a fine with proclamations levied by the 
 ancestor, which has effectually barred the 
 
 (a) Salk. 571. 2 Roll. Rep. 418. ManxeVs 
 
 Brook. Tail. Plea. 32. case at the end of Plow. p. 8. 
 
 [h) Sheffield v. Ratcliffe, (c) Barton v. Lever, Cro. 
 
 Eliz. 388. 1 Vez. 253.
 
 OF THE V017CHEES. 
 
 [ 127]intail, will bar all remainders and reversions, 
 which are, or were expectant on the estate- 
 tail (r/). 
 
 III. Of Recoveries with treble Voucher. 
 
 Recoveries sometimes, though not fre- 
 quently, are suffered with treble voucher. 
 
 The only possible case, in which a reco- 
 very with these vouchers can be necessary 
 is, in the instance in which tenant in tail 
 creates an estate-tail, derived out of his own 
 estate-tail ; and the two intails are, in point 
 of estate or of right, existing, at one time, 
 in distinct persons, and both intails are to be 
 barred . 
 
 In this instance, the owner of the deri- 
 vative estate-tail should be first vouched, 
 — he should vouch the owner of the original 
 estate-tail, — and that vouchee should vouch 
 the common vouchee : not, however, that 
 the order of the vouchers is essential, ex- 
 cept as a matter of form ; for, upon prin- 
 ciple, it is clear that if each tenant in tail 
 be distinctly vouched, and vouch over, his 
 intail will be barred, although he should 
 be vouched out of the order which is recom- 
 mended. 
 
 By the statute law there cannot in some 
 actions be a voucher out of the degrees ; 
 
 [d ) Fearne's Posthumous Works, 442.
 
 OF THE VOUCHEES. 128 
 
 but in the writ of entry in the post , on 
 which common recoveries are grounded, 
 there may be a voucher at large. See Booth 
 on Real Actions, 175 ; — and hence the pre- 
 ference given to recoveries on a writ of 
 entry, in the post. 
 
 A difference of opinion exists among con-[ 128 ] 
 veyancers, whether a recovery with treble 
 voucher be in any case necessary. Few 
 admit the necessity of vouching the two 
 tenants in tail distinctly. The majority, 
 relying on Page and Hayward[e), are of 
 opinion, it is sufficient that both tenants in 
 tail shall be vouched jointly. 
 
 The objection against this mode of vouch- 
 ing is, that the recompense cannot go to the 
 issue of both tenants in tail ; and that the 
 analogy to real adverse actions, in which 
 recompense is the foundation of the bar, is 
 sacrificed. On this point see fVatkins's Prin- 
 ciples, p. 134. Co. Litt. 102, (a), and 376, 
 (a & b). Piozvden's argument in the case of 
 Bassett and Morgan v. Manxel, published at 
 the end of his Reports. 
 
 In all other cases, it is conceded, the 
 voucher of a tenant in tail, jointly with 
 another person, will be effectual to bar the 
 estate-tail {/)- 
 
 The decision which established that point 
 
 {£) 2 Salk. 570. (/) Bare v. S'«ow, Plow. 
 
 514. Co. Litt, 376.b.
 
 129 O^ THE VOUCHEES. 
 
 proceeded on the ground, that the recom- 
 pense will go according to the title of the 
 persons by whom the recovery is suffered. 
 
 However, this is not a decisive answer to 
 the objection, which assumes the necessity 
 of a treble voucher : because in the case of 
 [ 129 ]an estate-tail derived out of an estate-tail, 
 it is impossible that the same recompense 
 should, consistently with the principles of 
 law, be a recompense to both classes of 
 issue. It is absurd to suppose that the 
 issue under the derivative estate-tail, are, in 
 the first place, to recover the recompense, 
 as upon a defeasible title, and that the issue 
 under the original estate-tail may recover 
 the recompense from them {g). 
 
 This mode, indeed, of compensating them 
 is a solecism, and impracticable in any legal 
 mode, known to the rules of law. The 
 issue under the original estate-tail, if they 
 can recover the recompense in any mode, 
 must recover it for their own benefit, against 
 the person whom they or their ancestors 
 vouch. 
 
 Nor is it possible that the recompense can 
 be divided between the different classes of 
 issue, to be a compensation to all of them. 
 The issue under the original estate-tail will 
 not have a recompense to the extent of 
 their title, unless they have other lands, 
 
 (g) See Mary Portington's case, 10 Co. 37.
 
 OF THE VOUCHEES. 130 
 
 equal to the full value of those originally 
 intailed, 
 
 To put the case in the most strikingpoint 
 of view, the recovery may be supposed to 
 be suffered by the tenants in tail them- 
 selves : so that the issue cannot derive their L 130 ] 
 title to the recompense, otherwise than 
 through their ancestors, or under any other 
 foundation than the judgment given upon 
 the different vouchers. The case is thus 
 disengaged from the supposition that the 
 issue under the original estate-tail, are the 
 only persons to be considered, in determin- 
 ing the title to the recompense. For as 
 between the two tenants in tail themselves, 
 it is clear that the owner of the derivative 
 estate-tail has an exclusive right to the re- 
 compense. 
 
 The answer which an eminent and liberal 
 gentleman, since dead, gave against the 
 necessity of vouching the tenants in tail 
 separately, was, that " had the vouchees 
 ** demanded a lien, that is, required the 
 '^ tenant to show what he had to bind them 
 " to the warranty, and what estate they 
 *' were bound to warrant, the recompense 
 '' could only have been according to the 
 '' estate to which the actual warranty was 
 ** annexed ; but in consequence of their 
 '^ entering into the warranty paramount, 
 " the writ oi execution of the land, recovered
 
 131 OF THE VOUCHEES. 
 
 " against the common vouchee, must be 
 *' general, for delivery thereof to the first 
 " vouchees, without expressing for what 
 ** estate ; and it appears by the books, 
 *^ that though the vouchees themselves are, 
 " by entering into the voucher jointly, 
 *' estopped from saying that they had not 
 [131]" 2i joint estate, their issue will not be 
 " estopped. The claims of both classes of 
 *' issue are upon one estate, and an estate 
 *' of equal value is awarded as a recom- 
 *' pense for it, and will be subject to the 
 *' same claims. After the death of their 
 " vouchees they must implead one another, 
 " and the recompense will go to those who 
 *' shall be adjudged to have sustained the 
 " the loss ; for if the issue are not estopped, 
 '^ no injury is done. The law remains 
 " open." The authorities relied on were 
 Co. Litt. 101 (b), and 376, (a & b).— The 
 case of Page v. Hayward, and Plowdeji^s 
 argument in the case of Bassett and Morgan 
 v. Manxel, published at the end ot his 
 Reports. 
 
 Of the authorities cited, that which bears 
 most on the argument is the passage in Co. 
 Litt. 376, b. The example in that case is 
 taken from Eare and Snow's case, in Plowd. 
 Comm. 514. The lani>ua«[e of Lord Coke is, 
 ** If tenant in general tail be, and a com- 
 *' moai recovery is had against him and his
 
 OF THE VOUCHEES. 132 
 
 *' wife, where his wife hath nothing, and 
 
 *' they vouch, and have judgment to reco- 
 
 " ver in value, tenant in tail dieth, and the 
 
 *' wife surviveth ; for that the issue in tail 
 
 *' had the whole loss, the recompense shall 
 
 " enure wholly to him ; and the wife, albeit 
 
 " she was party to the judgment, shall have 
 
 " nothing in the recompense, for that she[ 132] 
 
 " loseth nothinoj." 
 
 This observation does not relieve the 
 case under consideration from its difficul- 
 ties. In Lord Coke's case there was only 
 one estate-tail, and there was one recom- 
 pense sufficient to compensate it. In the 
 case under consideration, there were two 
 estates-tail, and only one compensation. 
 The issue claiming under one of the estates- 
 tail must be disappointed. Each of them 
 cannot have the recompense in value. For 
 if it should be given to the issue claiming 
 under the derivative estate-tail, the issue 
 under the original estate-tail would be 
 bound, without any equivalent. On the 
 other hand, in case the recompense in value 
 should be given to the issue under the ori- 
 ginal estate-tail, the issue under the deri- 
 vative estate-tail would be bound without 
 having any recompense. As between the 
 two classes of issue, no doubt the issue under 
 the original estate-tail ought to be preferred.
 
 133 OF THE VOUCHEES. 
 
 and they certainly would be preferred when- 
 ever their title came in competition. 
 
 Many cases may be put in which the 
 utmost confusion would arise from giving 
 the recompense to the tenant of the original 
 estate-tailor his issue, in exclusion of the 
 tenant of the derivative estate-tail, and his 
 [ 133 ] issue. Should the recompense be given to 
 the tenant under the derivative estate-tail, 
 or his issue, what ground is there for treat- 
 ins the original estate-tail with the remain- 
 ders expectant thereon, to be barred by the 
 operation of the recovery ? Suppose A., 
 being tenant in tail, to make a settlement 
 in favour of B. in tail, and a common reco- 
 very to be suffered, in which both shall be 
 vouched jointly. To give the recompense 
 to A. would be injurious to B., who as 
 between A. and B. is the rightful owner. 
 Or supposing A. after the settlement, to 
 have levied a fine and barred his issue, and 
 the issue and B. to be jointly vouched ; 
 what pretence is there for giving the recom- 
 pense to the issue of A. ? As between the 
 issue and B. the title is in B. and not in 
 the issue of A. In the latter case it might 
 be contended that the recompense should 
 go to B., and still that the recovery by the 
 issue in tail would bar the remainders over 
 expectant on his estate-tail, since the re-
 
 OF THE VOUCHEES. 134 
 
 mainders are barred without regard to the 
 recompense in value. Though this may 
 be an answer by way of estoppel, to the in- 
 stance in which the issue are vouched, it 
 cannot be an answer to the issue themselves, 
 when the recovery is suffered with the > 
 voucherof their ancestor, and the recovery 
 is produced as a bar to their claim. The 
 books seem agreed that recompense in 
 value is the only ground for barring the 
 issue; but the remainders may be barred [ 134] 
 without regard to the recompense, on the 
 ground that the recovery is a common 
 assurance. 
 
 It will now be proper to consider whether 
 there are any grounds Avhich render it pru- 
 dent, at least, if not necessary, that a re- 
 covery with treble voucher should be suf- 
 fered, in those instances in which there are 
 two estates-tail to be barred, and one of 
 these estates-tail is derived out of the other 
 of them. 
 
 The old books, and, among them, Co. 
 Litt. certainly placed the bar of the issue 
 of tenant in tail on the ground of recom- 
 pense ; and if recompense be really (as in 
 principle it is professed to be) the ground, 
 on which recoveries bar the issue, it is ob- 
 vious that two classes of issue, claiming in 
 opposition to each other, cannot have the 
 benefit of one and the same recompense.
 
 136 OF THE VOUCHEES. 
 
 One class of issue must be disappointed ; 
 since both classes of issue do not claim 
 under one and the same title, in the line and 
 course of remainder ; allowing the recom- 
 pense may be enjoyed first by the issue of 
 one tenant in tail, and afterwards, and by 
 way of remainder, by the issue of the other 
 tenant in tail. 
 
 The doctrine advanced in Page v. Hay- 
 ward does not bear on this point. The 
 greater part, if not all, the learning in that 
 case is warranted by former determinations. 
 Nor can it be denied, that when a tenant 
 [135] in tail is vouched, and vouches over, he 
 comes in in privity of all the estates he ever 
 had. And though a stranger be joined with 
 him, the recompense will belong to tlie 
 tenant in tail, exclusively of the stranger. 
 And when tenant in tail and the owner of a 
 remainder in tail, are vouched jointly, there 
 is no doubt of the efficacy of the recovery. 
 The voucher of the first tenant in tail alone 
 would have barred the remainder in tail. 
 The distinguishing circumstances of this 
 case are : 
 
 First. When one estate-tail is derived 
 out of another, the issue under the original 
 estate-tail will claim in exclusion of, and not 
 in .subordination to, the owner of the deriva- 
 tive estate-tail ; and 
 
 Secondly. The issue under the original
 
 OP THE VOUCHEES. 136 
 
 estate-tail are not strangers, nor are the issue 
 of the derivative estate-tail to be considered 
 in that light, till the gift creating their es- 
 tate-tail is avoided. Instead of denying the 
 necessity of distinct vouchers. Lord Holt 
 approved of them, as more regular. At 
 the same time, under the particular circum- 
 stances of the case of Page and Hayivard, 
 be considered the voucher of the tenant in 
 tail, jointly with another person, sufficient 
 to bar the intail. 
 
 The most diligent search has not pro- 
 duced any authority, in which it has been 
 asserted or denied, that a recovery with treble 
 voucher is necessary, in a case like that [136"] 
 under consideration, or in any case what- 
 ever. But ever since Page and Hayward, 
 recoveries with treble vouchers have been 
 occasionally used ; and Mr. Pigott, in p. 26, 
 if properly understood, does in cases in 
 which one estate-tail is, or may be sup- 
 posed to be, derived out of another estate- 
 tail, recommend a treble voucher. Though 
 he puts the case generally of a tenant for 
 life, with remainder to his son in tail, he 
 must have had in his contemplation an 
 ancient family-estate, in which the tenant 
 for life miofht have a dormant intail. When 
 the observations of Lord Holt, in Page and 
 Hayward, as reported in Pigott, pages IQlj 
 192, 193, 194, are taken with their context; 
 
 VOL. I. L
 
 137 OF THE VOUCHEES, 
 
 and the sense of the words *' in this manner^^ 
 are attentivel}^ weighed, that distinguished 
 lawyer is recommending the several and 
 distinct vouchers of different persons of the 
 family. And it would have been nugatory, 
 on the part of Mr. Pigott, to have ad- 
 vised a treble voucher, if a voucher of the 
 father and son jointly would have answered 
 every purpose. See also Cruise on Recove- 
 rieSy 219. Mr. Justice Blackstone in the 
 2d vol. of his Commentaries, p. 359, 
 certainly supposed, that the exigency of the 
 case might require a treble voucher. Such 
 voucher cannot be requisite in an}^ case, 
 imless it be requisite in a case attended witii 
 [137]lhe circumstances now under discussion. 
 'J' hough for the purpose of supporting re- 
 coveries as common assurances, the court 
 may determine tiiat both intails will be barr- 
 ed by a joint voucher, of several tenants in 
 tail, even when one of two estates-tail is 
 derived out of another ; in the same maimer 
 as a recovery on the voucher of a tenant in 
 tail, who has several estates-tail, or the right 
 of different intails, in the same land under 
 different titles (//), will bar all the intails; 
 yet the law on the point cannot be safely 
 acted upon, or considered as clear, till it 
 shall have received the determination of a 
 court of competent jurisdiction, and the 
 
 [h] Supra, 12G.
 
 OF THE VOUCHEES. J 38 
 
 question shall be decided by that determi- 
 nation. 
 
 By what Tenants in Tail a Recovery may he 
 suffered with Effect ; and to what Extent 
 in Point of Share. 
 
 First. It is now to be considered by what 
 tenants in tail a common recovery may be 
 suffered, so as to bar the estate-tail, and the 
 remainders and reversions expectant there- 
 on. In this division, which, in a great mea- 
 sure, is a summary, or review, of points 
 already noticed, it is impossible to avoid 
 the appearance of repetition. 
 
 A recovery is peculiarly the assurance by 
 which a tenant in tail may enlarge, or, more 
 properly speaking, convert, his estate-tail 
 into a fee, by barring the estate-tail, and 
 all remainders and reversions expectant on 
 that estate. Under such recovery there will 
 be acquired an ownershij), co-extensive with 
 that of the person by whom the estate-tail 
 was created. Ca'teris paribus, namely, with 
 the concurrence of the freeholder, a recove- 
 ry my be suffered with effect, either by the 
 tenant of an estate-tail in possession, or of 
 an estate-tail in remainder or reversion {i) 
 or by the person on whom an estate already 
 
 (»•) Supra, 16, and 2 R. Ab. 394, 1. 10.
 
 OF THE VOUCHEES. 
 
 alienated, devested, or discontinued, was 
 [ 139]entailed (j), and even by the issue in tail, 
 although the estate-tail has been previously 
 barred, by a fine with proclamations levied 
 by their ancestor (k) : or as a consequence 
 and deduction from the same principles, by 
 the statute of limitations, or warranty, &c. 
 
 But, as has already been observed, no one 
 except a tenant of an estate-tail in possession 
 can suffer with effect a common recovery 
 with single voucher; and then a recovery so 
 suffered will only bar this particular estate- 
 tail, and the remainders, &c. expectant on 
 that estate. A person who has a remote 
 estate-tail may, by merger, surrender, &c. 
 of the estate for life, or even disseisin (/) 
 of tenant for life, when the estate-tail is 
 immediately expectant on the estate for life, 
 become tenant in tail in possession. But in 
 Lincoln College Case {m) it was assumed that 
 the disseisor could not suffer an effectual re- 
 covery as tenant of the freehold. The ground 
 of the point, as found in Rollers Abridgment , 
 is, that the owner of the first estate of in- 
 lieritance does not, by the disseisin of the 
 tenant for life, devest the remainder in tail, 
 
 [j) ManxeVs case at the (A) Sui>ra, 12(;, and Hob. 
 
 end of Plf)\v. pa^e 8. 2")!J. 
 
 Shejjxeld V. Rutdift, Hob, (/) 2 R. Ab. 5. 395. 
 
 S34. [rn) 3 Co. 58. b. 
 
 Lincoln Colleqc case, 3 Co. 
 08. b.
 
 OF THE VOUCHEES. 140 
 
 or put it to a right. He is merely a dissei- 
 sor to tlie extent of the estate for life, and 
 then by the union of the two estates the 
 remainder in tail beco.raes an estate-tail in 
 possession. And it is material to this pur- 
 pose that a stranger may, by claiming the 
 estate of a tenant for life, disseise that 
 tenant and acquire the freehold, without 
 disseising the remainder-man or reversioner, 
 or devesting his estate. 
 
 The alienee of a tenant in tail, or the as- 
 sio'iiee of the crown, claimincf the estate of a 
 tenant in tail under an attainder for treason 
 (n) : cannot, in any case, bar the estate-tail 
 or the remainders by suffering a common 
 recovery. 
 
 The privilege of suffering a recovery is 
 given to the tenant in tail and his issue, and 
 h personal to them. 
 
 And a corruption of the inheritable blood 
 of the issue, by the attainder of their ances- 
 tor for treason {o), will preclude their right[ HO 
 to suffer a common recovery. After such at- 
 tainder they cannot bar the remainders. By 
 the corruption of the inheritable blood, the 
 issue are strangers. They forfeit the cha- 
 racter of heirs in tail. They are incapaci- 
 tated to take any benefit under the intail, 
 though the estate continues by reason of the 
 continuance of issue (/;). 
 
 («) Supra, 4. {p ) Hob. 345, 
 
 (o) Je Ilk. Cent. 25 U
 
 140 OF THE VOUCHEES. 
 
 And attainder of tenant in tail creates a 
 disability {q) to suffer a common recovery. 
 He is civiliter mortuus. Between the crime 
 and attainder, it should, from analogy, seem, 
 that a common recovery may be suffered (r). 
 
 A recovery suffered by an alien, who is 
 tenant in tail, will bar the remainders ex- 
 pectant on his estate [s], He is tenant in 
 tail till office found, and as tenant in tail he 
 has all the powers exerciseable in respect of 
 that estate. It is for the benefit of the 
 crown only, and not of remainder-men, 
 that there is any disqualification. 
 
 When the intail is of a subject which has 
 a limited duration, as a rent-charge, created 
 denuio, and limited for an estate-tail, with- 
 out any remainders over, then, as already 
 observed, the recovery of tenant in tail can- 
 not enlarge the estate beyond the period 
 prescribed for its duration {t). 
 
 And, it is apprehended that when an es- 
 tate-tail in lands is derived out of a qualified 
 or determinable fee, the recovery cannot do 
 more than acquire the ownership for the 
 time of that determinable or qualified fee (w). 
 
 In short, the fee acquired by means of 
 the recovery of the tenant in tail, cannot. 
 
 (q) See barton's case, 2 R. (r) Stevens v. Winning, 
 
 Al.. ;>9I, I. 37. (l.J Jar.) Jeiik. 2Wils.2l9. 
 €<'nt 250. I Kel>. 3!)8. cites {s) 4 Leon. 84. 
 
 liaiUni iniit lircmcr's Case, (/) Supra, 3. 
 
 (37 & ob Jiliz.) aii contra. (u) Supra, 2.
 
 OF THE VOUCHEES. 141 
 
 in any case, be larger than the ownership 
 out of which the estate-tail is derived. 
 
 It is also observable, that when a tenant 
 of a remote estate-tail suffers a common 
 recovery, in which he is vouched, and 
 vouches over, the effect of this recovery, 
 even supposiui^ it to be suffered concurrenti^ 
 bus lis qui in jure requiruntur, will be merely 
 to bar his own estate-tail, and the remainders 
 and reversions expectant thereon {v), and 
 all conditions and collateral limitations an- 
 nexed to his estate. 
 
 It will not affect prior estates-tail {w), or 
 any other prior estates. On the contrary, 
 the owner of a prior estate-tail may, after- 
 wards, by suffering a common recovery, bar 
 the fee, acquired through the medium of 
 the recovery, suffered by the owner of a 
 more remote estate-tail. 
 
 To these observations it may be added, 
 that no tenant in tail can, by suffering a 
 common recovery, bar any charges which 
 are an incumbrance on his own estate, nor 
 any estates derived out of his own etate-[ 142] 
 tail. On the contrary, he may give confir- 
 mation and siability to these estates and 
 charges, by suffering a common recovery {x), 
 
 {v) 3 Co. 6. {x] Goodright v. Mead, 3 
 
 Smith V. (Clifford, I T. Itep. Burr. 1703. 
 
 738. ' Si up I. tun v. StaplUoriy 1 
 
 Doe V. Hall^y, 8 T. Rep. Atk. 2. 
 
 10. and su i-d, 10. And .supra, 16. 
 
 (tt') Smith V. Clifford) al- 
 reatly cited.
 
 142 OF THE VOUCHEES. 
 
 The person also by whom the recovery is 
 suffered must be full and complete tenant in 
 tail, either in point of vested interest, or 
 of right to an estate which was once 
 vested. 
 
 In the first place, the owner of a contin- 
 (rent or executory interest in tail, cannot, it 
 is apprehended, by a common recovery, bar 
 either his own interest, (except by way of 
 estoppel) or the remainders, &c. expectant 
 thereon : much less can the issue in tail (y) 
 suffer a common recovery with effect in the 
 life-time of the ancestor. Whether a com- 
 mon recovery, suffered by a person who has a 
 contingent interest in tail, will be a bar to 
 his issue, as well as to himself, is one of the 
 many points which afford ground for doubt, 
 from the absence of decision, and the op- 
 portunity of adducing conflicting principles, 
 leaving it in uncertainty M'hich of them 
 shall prevail. The opinion formed by the 
 author is, that an estoppel, though binding 
 on the ancestor, would not bind the heir in 
 tail. The general rule is that the heirs in 
 tail are not bound by estoppels. 
 
 At the same time, it is observable, that 
 recovery suffered by tenant in tail, will bar 
 contingent remainders expectant on his 
 estate, and also terms of years, &c. 
 
 [ij] Apprise V. Apprise, Vin. Abr. Recovery Com* 
 
 Anderson AL mon, M. j)l. 1.
 
 OF THE VOUCHEES. 143 
 
 The owner of a contingent interest should 
 be very cautious how he suffers a recovery 
 or levies a fine, which may extinguish, even 
 as against himself, the contingent interest 
 in tail. It will prevent the vesting of the 
 estate, and as against himself at least, when 
 there is a recovery, and as against himself 
 and his issue, when there is a fine with pro-r 143 1 
 clamations, preclude the right of suffering 
 a recovery, Avhen the estate, unless extin- 
 guished, would have become vested. This 
 is understood to be a new point. 
 
 Secondly. A recovery will be good only 
 for that portion of estate which does or did 
 belong to the tenant in tail who is vouched. 
 
 Thus when several persons are tenants in 
 common, or joint tenants in tail, and one 
 of them is vouched, the recovery will be 
 good only for his share ; or if several are 
 vouched, the recovery will be good only for 
 their respective shares. 
 
 When a sole heir in tail suffers a recovery, 
 and the share is abridged by the birth of a 
 co-heir, it should seem that the recover}'- 
 would be void for the share of the co-heir. 
 And that a recovery by an heir .in tail, 
 whose estate is defeated by the birth of a 
 more immediate heir, would be avoided by 
 the avoidance of the descent. On recove- 
 ries suffered by a person who has a sole 
 seisin, which is afterwards subdivided
 
 144 OF THE VOUCHEES. 
 
 among other persons, taking as joint- 
 tenants or tenants in common, the appro- 
 priate observations will be found in a 
 former page {z). 
 
 As often as husband and wife are tenants 
 in tail by intireties, neither of them alone 
 in the life-time of the other of them, can, 
 by a common recovery, bar the estate-tail 
 (a), so as to prejudice the other of them, or 
 bar the issue in tail, or those in remainder 
 or reversion. In these and many other par- 
 ticulars, there is a difference between the 
 operation of a fine and recovery (b). But 
 when husband and wife are tenant in tail by 
 moieties, in other words, have an estate to 
 them and the heirs of their bodies before 
 their marriage, either of them alone before 
 the marriage, or the husband alone, during 
 [ 144 ]the coverture, may, by a common recovery 
 duly suffered, bar the estate-tail, in his or 
 her aliquot part (c). 
 
 And though the husband who suffered a 
 common recovery during the life of his wife, 
 should survive her, that circumstance will 
 not give validity to the recovery [d). A 
 common recovery, however, suffered by one 
 of the parents after the death of the other 
 of them, except so far as a wife is restiain- 
 
 {z) Su[>rii, 52. (b) liectnmonVs case, 9 Co. 
 
 [a] Owen Sf Morgan\s case, l;j!>, n(tl>. 'iO?, 
 3 to. 5. (c) Supra, 12.'). 
 
 She|>. Touch 45. [d] a (Jo, 5, b.
 
 OF THE VOUCHEES, 144 
 
 ed from suffering a recovery of lands in- 
 tailed on her by the provision of her hus- 
 band, or of his friends, will be effectual. 
 Wnh such exception, the right and power 
 of aiieiiation are in the surviving parent. 
 
 x\n alienation made by the husband alone 
 during the coverture, and defective on that 
 accontit, would be confirmed and rendered 
 complete, by his being duly vouched, and 
 vouching over, in a common recovery suf- 
 fered atier the death of his wife. 
 
 And in this place it is to be observed, the 
 recovery, to be good for a particular share, 
 must be with the concurrence of the person 
 in whom the freehold of that identical ^hdiVQ 
 resides. 
 
 Thirdly. A tenant in tail after possibility 
 of issue extinct, lias no longer the power of 
 barring the estate-tail, or the remainders 
 expectant, thereon. 
 
 For all the purposes of alienation, he is 
 considered merely as tenant for life (e). 
 His estate must necessarily determine with 
 his death. And if he forego the right of 
 suffering a common recovery, while com- 
 pletely tenant in tail, that right cannot be 
 exercised, when he is reduced to the situa- 
 tion of tenant in tail after possibility of 
 issue extinct. 
 
 [e] Co. Liu. 28. a. 11 Co. 80.
 
 143 OF THE VOUCHEES. 
 
 At the common law, every tenant in tail 
 had the power and the right of suffering a 
 common recovery. This right is so inse- 
 parably annexed to his estate, that it cannot 
 be restrained by condition, limitation, cus- 
 tom, or the like [f) 
 
 The statute law has introduced two ex- 
 ceptions, of which some notice has already 
 been taken. 
 
 The first exception is applicable to te- 
 nants in tail of the gift of the croion for ser- 
 vices performed, and in which the reversion 
 or remainder remains in the crown [g). 
 
 To bring a case within this exception, 
 there must be. 
 
 Firsts An estate-tail. 
 
 Secondly, It must be of the gift of the 
 crown, namely, the king for the time being, 
 while king ; or by the purchase, or provi- 
 sion of the crown [h). 
 
 Thirdly, It must be for services performed 
 [i) ; and at least, when the grant proceeds 
 from a subject, the consideration, &c. must 
 appear on record (A). 
 
 Lord Mansfield has advanced the doc- 
 trine, that in case of a gift by the crown, 
 
 (/■) Co. I.itt.224. a. &Butl. (//) Co. l.itt. 372. b. & 2 
 
 11. 1. • Co. 15. b. 
 
 Kriov\bh's Ai;;ii;nent in (i) Pcrk'ms v. SewcU, IBl. 
 
 Tai/hrv. Horde, 1 Mnrr. 83-4. Hep. (iiVl. 4 Burr. 2223. 
 
 ig) 34 II. 8. c. 20. Supra, 18. (/.-) Co. Lift. 372. b.
 
 OF THE VOUCHEES. 146 
 
 the services must, at a distance of time, be 
 presumed, and need not be proved (/). 
 
 Fourthly, The remainder or reversion in 
 fee or in tail {m), must be in the crown. 
 The restraint on the alienation continues so 
 long only as the remainder or reversion 
 remains in the crown. An alienation by 
 the crown, of the reversion or remainder, 
 leaves the tenant in tail at liberty to bar the 
 estate^tail, and the reversion and remainder 
 (n). While the estate-tail is protected from 
 being barred, all other subsequent estates in 
 other persons, are also protected (o) : for 
 unless the estate-tail can be barred, no 
 other estate admits of being barred. But an 
 estate-tail of the gift of the crown, though 
 it cannot be barred, either by fine or com-[ 146] 
 mon recovery, while the reversion or 
 remainder remains in the crown, may be 
 barred by non-claim on a fine, or by colla- 
 teral warranty, so as the tenant in tail is 
 not a party or privy (p ). But it is doubt- 
 ed whether any issue is barred for more 
 than his oivn time. Perhaps each succeed- 
 ing issue may have a new five years against 
 a fine. — Lord Nottingham seems to assume 
 that the bar will be only against the tenant 
 
 {/) Perkins \. Sewell, 1 Bl. (p) Stratford v. Dover, Co. 
 
 Rep. 054. Litt. 373. 
 
 {m) Co. Litt. 372. b. Lord Nottingham' MS.note, 
 
 (n) Ibid. ibid. n. 2. 
 (o) Co. Litt. 372, b.
 
 146 OF THE VOUCHEES. 
 
 in tail at the time of the fine levied — Let 
 it be admitted that the fine operates as 
 against him, and it will follow, that it will 
 operate as against each succeeding issue, at 
 least for his time. 
 
 The authorities afford no satisfactory 
 conclusion on this interesting point. The 
 i)ar/ of Derby^s case (</) is an authority, 
 only, that the issue is not barred by the 
 fine with proclamations of their ancestor, 
 being the donee or tenant in tail. 
 
 It has already been observed, that even 
 at the common law, a recovery by tenant in 
 tail, will not bar a reversion or remainder 
 in fee in the crown (r). The recovery will 
 operate only to the extent of converting 
 the estate-tail into a base or determinable 
 fee, and barring tlie issue [s). It will even 
 bar remainders in strangers (t) ; and also a 
 remainder after an estate-tail in the king (m). 
 No estate is protected by the common law, 
 from the operation of a recovery by tenant 
 in tail, except a remainder or reversion in 
 the crown [v). 
 
 The second exception applies to women 
 tenants in tail, ex provisione viri. {w) 
 
 (9) 2 Show. 104. [v] 2 Roll's Abr. 394. 1. 5. 
 
 (r) Su;»ra, 19. Sir Ifw^h C'homlcy^s case, 
 
 (») Neale v. JVihlhii^, IWiLs. Moor, tU2. 
 
 275. Bro. yjs.surunre, pi. 0. (v) H-^l>. 130. 
 
 (/) 2 Roll's Al.r. 394. 1. 1. (»/;) Jjlupru, 19. 
 £endloes, pi. 254.
 
 OF THE VOUCHEES. 147 
 
 By the Stat of 11 Hen. 7. c. 20, they are 
 restrained from suffering recoveries, &c. 
 either while sole, or under coverture with 
 any after-taken husband ; with the excep- 
 tion, that the act shall not extend to any[ 147] 
 recovery to be had with the heirs next inhe- 
 ritable to the woman, or with the con- 
 sent of the person next in remainder ; pro- 
 vided such consent appear on the record, or 
 be enrolled. To bring the case within the 
 exception, the heir in tail or the person in 
 remainder must be vouched, or their con- 
 sent must appear by a deed inrolled. 
 
 This act equally extends to equitable and 
 legal estates (>i). 
 
 But this act does not extend to restrain a 
 woman tenant in tail, ex provisione viri, from 
 suffering a recovery jointly with her hus- 
 band (3/), or with the issue in tail (z), un- 
 less the title of such issue be defeated by 
 the birth of a more immediate heir in 
 tail (a). 
 
 Nor does it extend to lands settled by 
 the wife (/»), or given by any of her friends, 
 or proceeding from the voluntary gift of a 
 stranger (c) ; nor to lands settled on the 
 
 (x) Clifton V. Jackson, 2 {a) 3 Co. 61, b. 
 Vern. 489. (b) Laughter v. Humphrey^ 
 
 (y) Kirkman v. Thompson, Cio, Eliz. 524. 
 Cro. Jac. 474. (c) Ward v. V/dlthew, CVo. 
 
 [z) Mackwilliarn' s case, Jac. 173. 
 Hob. 3.32. Lincoln College 
 case, 3 Co. 59.
 
 148-149 OF SEISIN TO RAISE THE USES. 
 
 wife in general tail, with lemainder to her 
 in fee [d) ; nor when she is tenant in gene- 
 ral tail, and the fee is limited to a stranger 
 [ 148 ](g). Jn short, the restraint on alienation is 
 merely for the benefit of the husband, his 
 issue, or heirs. 
 
 Nor does this statute extend to copyhold 
 lands (f). 
 
 [ ^^9^ Of the Necessity of' a Seisin in the Demandant 
 before any Uses can arise under the Recovery, 
 
 To perfect the legal title under a common 
 recovery, and to give a seisin to the de- 
 mandant in the recovery, a writ of seisin 
 (except in some particular cases, as where 
 there is a reversion expectant on a term of 
 years, and there is an entry or claim) must 
 be sued and seisin delivered (g) ; and until 
 such seisin is delivered, no uses can arise 
 under the recovery (h). Till there is a writ 
 of execution, and that writ is executed, 
 there is not any seisin in the demandant, as 
 the means of supplying a seisin to the uses : 
 and until there is such seisin, the person 
 claiming under the uses, hath no legal estate 
 
 {d) S»e 4 Co. 3, b. Gilb. Ten. 181. 
 
 (e) Foster V. Pitfall, Cro. [t^) Withum v. Lewis, 1 
 Eliz. 2. Wiis. 48. 
 
 Hutches V. Uuhb, Com. 4 Bro. P. C. 504. 
 Rep. :i( 9. (/i) Mo. 141, in Shelley's 
 
 [f) Jlarrini^ton v. Smith, case. 
 2 Siderl". 41, 7a.
 
 OP SEISIN TO RAISE THE USES. 150 
 
 admitting of an alienation by hinij by deed ; 
 but he hath an inchoate interest, which will 
 allow of his devising the interest by will {i). 
 
 The true ground of Selwyn v. Selwyn is, 
 that even before the recovery was suffered, 
 the testator had in him a title to a future 
 use, which gave him a power of testamen=- 
 tary alienation ; and his will operated on 
 this use in its fiduciary state, and also on 
 the estate itself, when the use was executed 
 by the statute for transferring uses into 
 possession [k). 
 
 Another ground of that case, and the [150] 
 ground to which it is more generally as- 
 cribed, is, that the recovery and recovery 
 deed formed parts of the same assurance. 
 
 Regularly, in preparing Abstracts of Title, 
 the time at which the writ of seisin is re- 
 turnable, and also the day on which seisin 
 is delivered, should be stated, for the pur- 
 pose of ascertaining the time at which the 
 title to the legal estate is complete : and 
 also of ascertaining, that there existed at the 
 time when a conveyance was made, by the 
 persons claiming a title under these uses, a 
 complete title to the legal estate. 
 
 It does not seem to be sufficient, that 
 seisin should be delivered, unless the writ 
 
 (i) Selwyn v. Selwyn^ 2 [k) 27 H. 8. c. 10. 
 Burr. 1131. 
 
 VOL. I. M
 
 131 OF THE kxf:cution. 
 
 of seisin be returned ; for the return is the 
 only evidence that seisin was delivered. 
 
 But it is apprehended, that a conveyance 
 made between the day on which seisin is 
 delivered, and the day on which the writ of 
 seisin is returned, would be operative and 
 efficient. The sole use of the return of the 
 writ of seisin, is to afford evidence of the 
 fact of seisin. 
 
 [ 151 ] Of certain Points relating to the Execution. 
 
 If judgment be given in the life-time of 
 the parties to the recovery, execution may 
 be sued by or against the heir (/). 
 
 By the common law, the writ of execution 
 and the return must have appeared on the 
 record. Now, by the statute 14 Geo. II. 
 c. 20, s. 4, the law has been remedied in 
 this respect. In some cases, at least, the 
 recovery deed is made evidence of the 
 recovery, to supply any defect in entering 
 the writ of seisin, &c. on record. 
 
 Hence the necessity, that the recovery 
 deed should be full and explicit, in pre- 
 scribing the mode in which the recovery is 
 to be suffered. And care should be taken, 
 that, in prescribing the mode of suffering 
 the recovery, no error shall be committed. 
 
 (/) Shellei/'s case, 1 Co. 93.
 
 AS- TO COPYHOLD LANDS. 152-153 
 
 The form in the Appendix may be safely 
 followed. It ^vill be found correct, not 
 only in prescribing the mode of suffering 
 the recovery, but in allowing a departure 
 from some of the prescribed ceremonies, 
 without deviating from the intention of the 
 parties : so that should there be any thing 
 to rebut the presumption arising from de-[ 152] 
 parture from the prescribed form, the alter- 
 nate provisions may account for that depar- 
 ture, without raising any objection against 
 the validity of the recovery. 
 
 Observations peculiarly applicable to Lands of I 153] 
 Copyhold Tenure. 
 
 Copyholds may, under a custom for that 
 purpose, be intailed (w). Unless there be a 
 custom to intail, words of gift to a man 
 and the heirs of his body, pass a conditional 
 fee {n). This doctrine is strenuously com- 
 bated by Mr. Watkins (o). When the legal 
 estate does not admit of a direct intail, the 
 rule is Mquitas sequitur legem ; and as the 
 property does not admit of an intail at law, 
 it equally excludes an intail in equity ; and 
 the intention of the parties, however strongly 
 expressed, cannot vary the law (p). Lord 
 
 [m] HeydorCs case, Co. 8. (o) Wntk. Copyholds, 153. 
 
 (n) Pullen v. Middleton, { p) Pullen v Middleton^ al- 
 
 9 Mod. 484. ready cited. 
 3 Lev. 327, contra per Hale. 
 
 M 2
 
 154 AS TO COPYHOLD LANDS. 
 
 Hardwicke expressly says, the trust estate of 
 a copyhold can in no case be capable of an 
 intail, where the legal estate is not, it being 
 necessary that there should be the same 
 rules concerning property in law and equity. 
 Instead then of attempting to intail, through 
 the medium of a trust, as recommended by 
 Mr. Watkins {q), there should be such a 
 trust, as is used to keep leasehold estates 
 and chattel interests in the same channel as 
 [ 154] real estates which are intailed. When copy- 
 holds are intailed at law, the customary 
 mode of barring the intail must be observed. 
 This may be by surrender (r), customary 
 recovery (s), forfeiture and regrant (t) ; and 
 one of these modes maybe concurrent with 
 any other, or each of the others of them (u). 
 For example, a custom to bar by surrender, 
 may be concurrent with a custom to bar by 
 recovery. And a surrender to the use of a 
 will (i) may have the effect of barring the 
 intail, as well as to accomplish the par- 
 ticular object in view. The right to bar an 
 intail, is incident to, and a necessary atten- 
 
 (ry) Watk. Copyliolds', 159. Pilk'mt^ton v. Stanhope, Si- 
 
 (r) Evcrall v. Smalley, 2 derf. 315. 
 
 Str. 1197. 1 W lis. '2(5. (h) Ever all w Smalley, &\- 
 
 [s] /Jell V. Higden, 4 Co. ready cited. 
 
 23. a. (-»") fVhite v. Thornburgh, 
 
 Dunn V. f.Vmj, 3 P. W. 10. 2 Vein. 702. 
 
 {t) <Jr(nrt/ium v. Copley^ et L'arr v. Singer, 2 Ves. 604. 
 
 al. 2 hauiid. 422. Moore v. Moore, 2 Ves. 59G. 
 
 Amb. 279.
 
 AS TO COPYHOLD LANDS. 155 
 
 dant on a right to intail ; and a custom to 
 restrain the right to bar an intail is void ( i/). 
 The object of the rule is to avoid perpetui- 
 ties ; and unless there be a custom point- 
 ing out a different mode, the intail may be 
 barred by surrender (z). A customary reco- 
 very, suffered in the lords' court, is the more 
 general, and it is the safe mode. It embraces, 
 in common practice, the effect of a surren- 
 der ; for at the end of the proceedings, at 
 least, unless in an earlier stage of them, 
 there will be a surrender by the vouchee, as 
 well as by the demandant, tenant, and com- 
 mon vouchee. When a recovery is necessary, 
 by the custom of the manor, it must havej] 155] 
 the like forms as are observed in a recovery 
 of lands of freehold tenure : — there must be 
 a demandant, tenant, and vouchee, and 
 voucher over ; and the vouchers must be in 
 like manner as if the lands were of freehold 
 tenure. The recompense in value must be 
 of lands within the same jurisdiction. 
 
 When the legal estate of copyhold lands 
 may be intailed, the equitable ownership 
 also admits of being intailed (a). 
 
 According to the earlier authorities [b), 
 an equitable intail of copyhold lands may 
 
 (y) Taylor v. Shaw, Car- Everall v. Smalley, 2 Str. 
 
 ter, 6. 22, 1197. 1 Wils. 20. 
 
 {z) Moore v. Moore, 2 Ves. (a) Pullen v. Middleton, 9 
 
 596. Mod. 484. 
 
 Carr v. Singer, ibid. G04. [b] 10 Viru Abr. 260,
 
 156 AS TO COPYHOLD LANDS. 
 
 be barred, without the formalities of a 
 customary recovery. 
 
 And Lord Hardr^icke (c) has been under- 
 stood to have laid it down as a general rule, 
 that at least an equitable intail of copyhold 
 lands may be barred by surrender. 
 
 In the following observations will be 
 found the result of frequent consideration 
 on this point, and a full examination of the 
 authorities. 
 
 ** It is quite clear that the trust or bene- 
 '' ficial ownership of copyhold lands, intail- 
 *' able at law, may be intailed in equity : 
 " and it is now settled, that the equitable 
 ** intail of copyholds lands must, with the 
 f 156 V exception, perhaps, (for the exception is 
 " not admitted,) of the case in which the 
 " equitable tenant in tail becomes the owner 
 " of the legal estate in fee, and the excep- 
 *' tion of particular cases like Otway and 
 *' Hudson, 2 Vern. 583, be barred by the 
 '* same means, as the intail of the legal 
 " estate must be barred. When a common 
 ■ * recovery is necessary to bar a legal intail, 
 " the practice has been to bar the equitable 
 " intail of copyhold lands by obtaining first 
 " a surrender to the cestui que trust, making 
 " him tenant in tail, and afterwards suffer- 
 " ing a customary recovery. But a reco- 
 ** \eyy may be suffered by the equitable 
 
 (c) Radford v. Wilson, 3 Atk. 815.
 
 AS TO COPYHOLD LANDS. 157 
 
 ** fenant in tail, while he continues merely 
 *' Kjuitable tenant in tail, since a recovery 
 ** by an equitable owner will have the same 
 •* effect on the equitable ownership, as a 
 ** comniqn recovery, by the tenant in tail, 
 ** of the legal estate, would have on the 
 ** legal ownership. And with Mr. Watldjis, 
 *' in his excellent Treatise on Copyholds, 
 " p. 181, it is agreed, ' that it should seem 
 ' a recovery suffered in the manor court of 
 
 * an equity in copyholds, is analogous to 
 
 * that relative to freehold property, and 
 
 * indeed that the same mode should be 
 
 * adopted for the barring of an equitable, 
 
 * as it would be necessary to pursue for the 
 ' purpose of destroying a legal intail/ 
 " This doctrine is fully warranted by the 
 '^ opinion of Lord Hardwicke in the case of 
 '' Pullen V. Lord Middleton, 9 Mod. 484, in 
 
 " which his lordshipsays,' If the estates had r l57] 
 
 * been intailed, it would have been necessary 
 
 * to have barred the intail by some proper 
 
 * means, either by a recovery suffered in the 
 
 * lords' court, if the custom of the manor 
 
 * admitted of it, or by a surrender ; and 
 ' though the intail had not been of the legal 
 
 * but of the trust estate, all possible endea- 
 
 * vours ought to have been used, to have 
 ' barred it in the ordinary way ; and the 
 
 * rules of the common law, in regard to the 
 
 * barring of such estates-tail, ought to have
 
 158 AS TO COPYHOLD LANDS. 
 
 ' been pursued, as near as possible.' " His 
 '' lordship, in this part of the case, adverted 
 '' to Otway and Hudson, 2 Vern. 583, a 
 '^ case depending entirely on the cir- 
 *' cumstance, that the tenant in tail had 
 *' done every thing in his power, for the 
 " purpose of barring his equitable estate- 
 " tail. 
 
 " The opinion also of Lord Loughbo- 
 rough, in Roe v. Lozve, 1 H. Black. 46l, in 
 *' answer to several cases which were cited, 
 *' to show that the equitable intail of copy- 
 " hold lands may be barred by a mere 
 " devise, was to this effect : ' Now though 
 ' it is true that the devise of an equity in 
 
 * a copyhold, requires no surrender, yet 
 ' that is, where the testator has a devisable 
 ' estate ; the intail must Jirst be barred ; the 
 ' party must have done some antecedent 
 
 * act to enable him to devise ; here no such 
 ' thing was done, and the will of Thomas 
 
 [158 J « Weston Harper did not operate long; 
 
 * there was no length of possession against 
 ' the intail, on which to presume a surren- 
 
 * der. But it is said that the intail was 
 
 * barred by the deed of the younger Thomas 
 ' Weston Harper ; but it would require a 
 
 * deal of argument to prove that a lease 
 
 * made by the equitable tenant in tail of a 
 ' copyh(jhl should be a bar of the intail. 
 
 * It is not clear then, that the estate-tail
 
 AS TO COPYHOLD LANDS. 159 
 
 * was de facto barred by any act of the 
 
 * tenant, if not, then Mary Weston Harper 
 
 * is intitled as heir in tail/ — 
 
 *' To these authorities may be added, 
 *' the decisions in courts of equity as to 
 ** freehold lands. There a recovery is 
 " considered, as absolutely necessary to 
 *' bar the equitable intail with remainders 
 *' over, although a contrary doctrine had 
 *' formerly prevailed in that court. See 
 " Harvey z;. Parker, 10 Vin. Abr. 266 ; and 
 *' Bridges v. Bridges, 3 Ves. jun. 120. The 
 *' observations of Lore? J /i^flw/ej/, then Mas- 
 " ter of the Rolls, in the latter case, are 
 *' very apposite to this purpose. His lan- 
 *' guage was, " This court has determined 
 
 * that such equitable estates are to be held 
 ' perfectly distinct and separate from the 
 
 * legal estate; they are to be enjoyed in the 
 
 * same condition ; intitled to all the same 
 ' benefits of ownership ; disposable, devi- 
 
 * sable, and barrable, exactly as if they were 
 
 * estates executed in the party. ^ 
 
 *' The observations of Lord Ilardwicke^r -^^g -j 
 *' in Radford v. PViison, (3 Atk. 815,) are, it 
 " should seem, (and such indeed is the pre* 
 " vailing opinion,) to be understood, as 
 " perfectly consistent with his language in 
 " PuUen V. Middleton. His observations 
 " merely imply that an intail, legal, or 
 " equitable, may be barred by surrender.
 
 160 AS TO COPYHOT-D LANDS. 
 
 ** when the custom of the manor does not 
 " prescribe a different mode of barring the 
 *' intail. 
 
 " At all events the customary mode of 
 " hariino- the intail of the legal estate of 
 ** copyholds lands, ought to be observed, in 
 '* barring the equitable intail of such lands: 
 " and it would not in any case be safe to 
 " adopt a difi>rent course of practice." 
 
 Lord Chief Justice Bridgmayi yd) seems to 
 have decided, that an estate-tail in copyhold 
 lands, may be barred by a fine, with procla- 
 mations, in the court of Common Pleas (e). 
 On this determination it is to be remarked, 
 that the lands (unless they are within a 
 peculiar jurisdiction) are within the jurisdic- 
 tion of the court of Common Pleas, though 
 they are more properly impleadable in the 
 lords' court, and in this respect they are 
 under a different predicament from lands 
 of the tenure of ancient demesne. This 
 point is noticed, as a means of avoiding the 
 [160 ] rapacity of some lords of copyhold manors, 
 wlio refuse to permit equitable owners to 
 suffer a recovery, or pass a surrender, in the 
 lords' court without beins admitted, or at 
 least paying fines as if they were admitted. 
 
 It is, however, to be observed, that some 
 
 [(I) Taylor v. Shaw. Carter, tions of Lord Ilurtlwicke in 
 6'2'2. J'ul/eii V. MiddUtm, 9 Mod. 
 
 (f) '-ce alho the obsrrva- 484.
 
 AS TO COPYHOLD LANDS. l60 
 
 gentlemen, whose opinion is entitled to the 
 highest respect, are not satisfied that a fine 
 of copyhold lands will bar the trust of a 
 married woman in those lands. Of course 
 it is not safe, under the circumstances which 
 have been noticed, to rely on a fine as a bar 
 to an intail. Still it is very proper that the 
 point should be kept in mind, and whenever 
 circumstances require it, pressed to a deci- 
 sion. Can a person claim any interest in 
 copyholds lands in opposition to his own 
 fine? Is he not estopped ? That the deci- 
 sion will be in support of the validity of the 
 fine, is a point on which little doubt is enter- 
 tained by the writer of these observations. 
 The same point applies to alienation by 
 married women of equitable interests in 
 copyhold lands. 
 
 A recovery in the courts of Westminster- 
 hall, however, will not have the same effect 
 as a customary recovery (/*) : since a custo- 
 mary recovery is the prescribed mode of 
 barring an intail. And a fine cannot, on 
 any principle, be urged as a bar of any other 
 interest than the intail in the conusor. On 
 the other hand, if the operation of the fine 
 be under the rules of the common law, and 
 by force of tlTe learning on estoppels, and 
 pot by force of the statutes giving operatioi) 
 
 (/) Oliver \. Taylor. 1 Atk.474.
 
 I6l OF RECOVERY DEEDS. 
 
 to fines with proclamations against heirs in 
 tail, then common recoveries and fines stand 
 on the same footing in this respect. 
 
 [ 151 ] Of the Recoveri/ Deed. 
 
 The tenant to the writ of entry may be 
 made by fine, feoffment, grant, bargain and 
 sale, lease and release ; or, in short, by any 
 assurance which will have the effect of pass- 
 ing the freehold to the intended tenant in 
 the recovery (g). 
 
 The point to be regarded is, that there 
 shall be a conveyance effectual for this pur- 
 pose ; and that it shall be made in due time. 
 In general also, and with great propriety, 
 there is a declaration of the uses of the 
 recovery, for the purpose of rendering the 
 title certain, by means of an express decla- 
 ration, instead of suffering it to depend on a 
 resulting use in favor of the tenant in tail, 
 or the averment of an use in fav^or of the 
 recoveror. 
 
 It has been noticed (h), that a fine levied 
 to a person, afterwards named tenant, in a 
 recovery, though at a distant period, will 
 be considered as originally levied, to the 
 use of the conusee, so that he may be deemed 
 a 4^ood tenant to the writ of entry. This 
 
 (jr) Siipni, :il. (/') Atifinm v. An'^hsey, 
 
 Cil^). Eq. Ca. 16. et supra, '30.
 
 OF RECOVERY DEEDS. 162 
 
 case supposes no uses to have been declared 
 in favor of the conusor, in the fine, or of any 
 other person than the conusee. 
 
 In treating of the recovery deed, it will[ 16*2 ] 
 be proper to consider, 
 
 1st, In what cases a recovery deed is 
 necessary. 
 
 2d, Its formal parts. 
 
 And 1st, When a fine is levied, and a reco- 
 very is to be suffered to the conusee, a deed 
 either of conveyance, or of declaration of 
 the uses of the fine, is not essential to the 
 validity of the recovery. 
 
 Also when the writ of entry is brought 
 against the person, who already is the owner 
 of the freehold, a conveyance by deed or fine 
 is not of absolute necessity. In practice a 
 conveyance is proper, and will frequently 
 occur, even in cases attended with these 
 circumstances. 
 
 In all other cases, since the intended 
 tenant would not have the freehold without 
 a conveyance made to him, it is of the first 
 importance that such conveyance shall be 
 made, and that the tenant shall have, or 
 appear to have, the freehold during the term, 
 in which the recovery is suffered. 
 
 To guard against the loss of recovery 
 deeds, &c. the statute of 14 Geo. II. c. 20, 
 hath enacted those provisions which have
 
 163 OF RECOVERY DEEDS. 
 
 been already noticed (i) ; and thus liath 
 made a period of twenty years, with enjoy- 
 ment under the recovery, presumptive evi- 
 dence of the existence of those deeds by 
 [ l6"3 ]which a tenant to the writ of entry might 
 have been made. — In many cases, from 
 circumstances, a presumption will be made 
 of a surrender of a prior estate for life, for 
 the purpose of supporting the validity of a 
 recovery. The rules of evidence which 
 govern the doctrine of presumption, are 
 noticed in a former page (A). 
 
 2dly, Of the formal parts of the recovery 
 deed. 
 
 These are, 
 
 1. The Date. 
 
 2. The Parties (/). 
 
 3. The Recitals [m). 
 
 4. The Testatum Clause, and Consider a~ 
 tion («). 
 
 5. The Operative Words (o). 
 
 6. The Parcels (p). 
 
 7. The Habendum (</) and Use (r). 
 
 [i] Supni, 85. {0) Infra, 182. 
 
 (k) Supra, 77. (/>) infra, 184. 
 
 (/) Infra, lOrj. (ry) Infra, 187. 
 
 (m) Infra, 177. (r) Infra, 189. 
 (k) Infra, 170.
 
 OF UECOVEKY DEEDS. l64 
 
 8. The D eclaration of the intention of the 
 Conveyance, and the Agreement to suffer the 
 Recovery [s). 
 
 9. The Declaration of the Uses (f). 
 
 1. Of the Date, 
 
 The rule of the common law which re- 
 quired the tenant to have the freehold 
 before judgment was given, has already 
 been noticed (m). The statute of 14 Geo. II. 
 c. 20, sec. 6, already cited, has enacted, 
 that " from and after the commencement [ 164] 
 " of this act, every recovery already suf- 
 " fered, or hereafter to be suffered, shall 
 " be deemed good and valid to all intents 
 *' and purposes, notwithstanding the fine 
 " or deed or deeds making the tenant 
 ** to such writ should be levied or exe- 
 " cuted after the time of the judgment 
 " given, in such recovery, and the award 
 *' of the writ of seisin as aforesaid, pro- 
 ** vided the same appear to be levied or 
 ** executed before the end of the term, 
 " great session, session or assizes, in which 
 *• such recovery Avas suffered ; and the 
 ** persons joining in such recovery had a 
 *' sufficient estate and power to suffer the 
 " same as aforesaid." 
 
 To bring a case within this statute, the 
 
 (*) Infra, 192. (u) Supra, 61. 
 
 {t) Infra, 194.
 
 165 OF HECOVERY DEEDS. 
 
 deeds should at least appear to be dated 
 within the term of which the recovery shall 
 be suffered. That the title may be free from 
 doubt, the deeds should be executed^ as well 
 as appear to be dated, within the term. 
 
 I- 1^^ ] 2. Of the Parties. 
 
 In a recovery deed, the proper parties, 
 either alone, or jointly with other persons, 
 as circumstances may require, are 
 
 1. The person who has the immediate 
 freehold. 
 
 2. The intended vouchee. 
 
 3. The intended tenant. 
 
 4. The intended demandant. 
 
 Other parties may be added, with a view 
 to give to the deed some other operation 
 besides that of sufferinsj an effectual reco- 
 very. 
 
 And Jirst, of the person who has the free- 
 hold. 
 
 When the freehold is in one person solely, 
 it is sufficient that there should be a con- 
 veyance from that person 
 
 When the freehold is in several persons, 
 they sliould all join in the conveyance, at 
 least for those shares of which the recovery 
 is to be suffered. The recovery will be 
 defective as far as there is the want of the 
 concurrence of the freeholder. Also when
 
 OF RECOVERY DEEDS. l66 
 
 there is a doubt whether the freehold is in 
 one person or in another, the concurrence 
 of each of these persons should be obtained, 
 or the title be considered as doubtful. As 
 often too, as the recovery is of an aliquot 
 part of the lands, care must be taken to 
 procure the concurrence of the person who 
 has the freehold in that particular share. [166] 
 Also when the object of the recovery is to 
 bar an intail of the legal estate, the atten- 
 tion must be directed to procure the con- 
 veyance from the person or several persons, 
 in whom the legal estate of freehold is vested ; 
 whether such person or persons is, or are, a 
 mortgaojee or mortoagees, trustee or trus- 
 tees, or beneficial owner or owners. And 
 when a recovery is to be suffered to bar an 
 intail of the equitable ownership, there is 
 equal necessity, and for that reason, there 
 should be equal anxiety, to have a convey- 
 ance from the person who is the owner of 
 the estate of freehold in the equitable or 
 beneficial ownership ; whether that owner- 
 ship is conferred by a legal or an equitable 
 estate. 
 
 It often happens, that the intended 
 vouchee has the freehold. When the same 
 person, who is to be the vouchee, has the 
 freehold, the number of parties will be re- 
 duced, and the observations respecting the 
 owner of the freehold are then, in reference 
 
 VOL. I. N
 
 l67 OF RECOVERY DEEDS, 
 
 to the freehold, equally applicable to the 
 tenant in tail. Though the freehold be in 
 one person, and another person is to be the 
 volichee, still it is the practice that the 
 tenant in tail should join in making the 
 conveyance to the intended tenant, in the 
 writ of entry. — This is rather advisable, in 
 compliance with general usage, and the cau- 
 [ l67]tionon which it is founded, than absolutely 
 necessary. — The recovery would be good 
 even though the tenant in tail should not 
 join in the granting words of the convey- 
 ance. The freehold would pass from the 
 person in whom it is vested : and this is 
 the essential point. — Beyond this object, 
 all is caution ; and the want of attention to 
 it cannot affect the validity of the title. In 
 cases which involve the doctrine of merger, 
 or the destruction of contingent remainders 
 intended to be preserved, care should be 
 taken that the tenant of the freehold, and 
 the tenant in tail, do not join in the same 
 conveyance ; or if they join, that they 
 create only a particular estate, so as to 
 leave a reversion in the freeholder. 
 
 Before a recovery shall be suffered, the 
 title should be thoroughly and minutely 
 investigated. To obtain the concurrence 
 of all those persons who can, by any con- 
 struction, or under any rule of law, or any 
 conveyance, will, mortgage, &c, be consi-
 
 OF RECOVERY DEEDS. 168 
 
 dered as having the freehold, is the point 
 principally to be kept in view. To these 
 observations there is the exception, already 
 stated, of the freehold in lessees under free- 
 hold leases (x) ; and also in persons who 
 have the freehold of certain parcels of a 
 manor (?/), when the recovery is suffered of 
 the manor, and the reversion remains parcel 
 of the manor. This previous investigation 
 will be a step towards rendering titles more 
 complete, and free from errors, than they 
 are now found to be. 
 
 The cautions proper for persons who 
 assist in suffering recoveries, in right of [ 16'8 ] 
 particular estates to which powers are an- 
 nexed, or who wish to guard against the 
 consequences of a forfeiture, or the merger 
 of their estates in the inheritance {z) ; or 
 the destruction of contingent remainders {a) ; 
 have been noticed in the former part of this 
 chapter. 
 
 Secondly. Of the Vouchee. — The intended 
 vouchee or vouchees should be the person 
 or persons by whom the recovery is to be 
 suffered, in respect of some intail. Though 
 in some cases, the tenant in tail may not be 
 a necessary party in the grant, yet, in the 
 declaration of the uses of the recovery, he 
 is, when he continues owner of the estate- 
 
 U) Supra, 67. (s) Supra, 107. 
 
 iy) Supra, 65. («) Supra, 111. 
 
 N 2
 
 169 OF RECOVERY DEEDS. 
 
 tail, materially interested. To the extent 
 of his ownership, he is the person from 
 whom the uses must move ; and for this 
 reason, his concurrence in the declaration 
 of the uses, is to be regarded as of the first 
 importance {b). 
 
 A doubt has sometimes been expressed 
 whether several persons being co-parceners, 
 or tenants in common, in tail, can join in 
 the same recovery. On that point, the 
 opinion of a highly eminent lawyer was to 
 this effect : " I always thought it doubtful, 
 " but rather inclined to think it bad in an 
 " amicable, as I think it would be in an 
 " adverse action, against all not claiming 
 *' merely under the parties, and, conse- 
 " quently, against the issue in tail, and 
 *' those in remainder." 
 [ 169 ] The answer to this objection was, That 
 one recovery by the co-heirs A. B. and 
 C. D. of their respective shares, in which 
 they shall be vouched, and vouch over will 
 bar their estate-tail in their respective 
 shares : for it must be remembered, that 
 these persons are co-heirs, and co-heirs not 
 only may be, but in point of form, ought 
 to be vouched jointly ; and the general 
 practice has been to join several co-heirs in 
 the same voucher(c). Indeed, it is said, that 
 
 [b) Roe V. Popfiamy DouijI. (c) Watkins on Copyholds, 
 
 24. 033. Edit. II.
 
 OF RECOVERY DEEDS. 170 
 
 upon warranty by the ancestor, one par- 
 cener cannot be vouched without the other, 
 Vin. Abr. vol. 22, p. 93, (L. a.) cites 11 
 Hen. IV. 20, b. ; but this must be under- 
 stood in a qualified sense, namely, that the 
 vouchee may, by special pleading, show 
 that he is only one of the several co-heirs, 
 and compel the tenant to vouch him, jointly 
 with the other co-heirs : but if he omits to 
 do this, still the recovery will be good 
 against the vouchee, and all persons claim- 
 ing under him ; and nothing is more com- 
 mon in practice, than for one of several co- 
 heirs to be vouched solely as to her share, 
 and no doubt was ever raised on the validity 
 of a recovery so suffered. The recovery 
 may, in a case thus circumstanced, be sup- 
 ported on the ground of a supposed war- 
 ranty, by the vouchee personally ; and there 
 being a voucher over, and recompense, the 
 issue and those in remainder, are precluded 
 from claiming vmder the old intail. And[170] 
 even a joint voucher of tenants in coiiimon in 
 tail, is wairanted by practice, and it is 
 apprehended by law. And Mr. Fearne's 
 opinion in his Posthumous Works, p. 338, 
 goes even further, that a common recovery 
 suffered on a voucher of two persons, who 
 have distinct estates-tail, in distinct parcels 
 of land, will bar the several estates-tail. 
 It is admitted, that in 22 Vin. Abr. 93,
 
 171 OF RECOVERY DEEDS. 
 
 (M. a) which cites 28 Edw. III. 90, b. it 
 is said, that two tenants in common cannot 
 vouch jointly. But this must be under- 
 stood, not as a substantive proposition, 
 founded on an objection in law, or on a 
 point of fojm, against a joint voucher by 
 tenants in common, but as admitting the 
 right, in the person whom they vouch, to 
 counterplead the warranty. And the case 
 in 42 Edw. III. l6, b. and 17, proves, that 
 if several are vouched jointly, and they 
 accept the tenancy of the intirety, they are 
 estopped from pleading several tenancy, 
 and in consequence, they are bound to 
 vouch jointly. And in the case of Morgan 
 V. Culpepper, reported in Keb. 863, and Si- 
 derf 241, four of eight persons, having a 
 joint freehold, and several inheritances in 
 tail, were vouched jointly, and vouclied 
 over, and no doubt seems to have been 
 entertained of their estates-tail, in their res- 
 pective shares, having been barred, although 
 [ iji ]the recovery did not bar the shares of their 
 companions in the tenancy. 
 
 On the whole, the impression is, that one 
 recovery sulfered on a joint voucher of se- 
 veral tenants in common, or of several 
 coparceners, is good in point of law, to bar 
 the estates-tail in their shares of the lands, 
 even although these shares are in distinct 
 tenements, and the tenements were intailed
 
 OF RECOVERY DEEDS. 172 
 
 by distinct gifts : for supposing they had by 
 one and the same deed, or by several deeds, 
 conveyed these lands to a tenant ; and the 
 demandant, having a title to all the lands, 
 were to demand them by one writ against the 
 tenant, and the tenant having a warranty 
 of all the lands, was to vouch the tenants 
 in tail, what objection exists against his 
 doing this, or against their vouching over'? 
 None presents itself; on the contrary, to de- 
 mand all the lands, by one writ, is consistent 
 with the title of the claimant, and avoids the 
 circuity of several actions, for that which 
 may as well be recovered by one action. 
 That a writ so brought, is good, is assumed 
 to be clear, from the circumstance that no 
 answer suggests itself ai^ainst the writ in 
 pointof form; and if the writ be well brought, 
 all the other proceedings seem of course. 
 There is a rule, indeed, that in all real ac- 
 tions, founded upon a title, as Escheat, 
 Forjnedon, &c. the demandant cannot join 
 lands, accruing by two several tenures, or by [ 172 ] 
 two several gifts, in the same writ ; Buckmere's 
 case, 8 Co. 86* : but the very rule, provided 
 for this particular case, proves that when the 
 action is not founded on a title, viz. on a 
 title to be disclosed by the xorit, one writ may 
 be of distinct parcels, comprised in different 
 gifts ; and a writ of entry, on which a reco- 
 very is suffered, is not founded on a title^
 
 173 OF RECOVERY DEEDS. 
 
 This very distinctionwastakeninJBMcA;«ere'^r 
 case, already cited. It is there saidj "but 
 '' such actions real, which are founded upon 
 *^ a tort or deforcement, and do not com- 
 " prehend any title in them, there the de- 
 *' mandant may demand in one writ, divers 
 *' lands and tenements, which come to him 
 " by several titles." The instance given 
 is, that *' if divers lands descend to me, from 
 " several ancestors, and I am disseised or 
 " deforced of them, I may have a writ of 
 " right, or a writ of entry, in nature of an 
 " assize, and comprehend all these rights in 
 *' one writ, because in these cases no title is 
 " 7}iade in the writ.''' 
 
 On the concurrence of two persons having 
 distinct estates-tail in distinct lands, one in 
 one tenement, the other in another tene- 
 ment, the opiiiioii of Mr. Fearne was, ''fieri 
 non dehuit, sed factum valet ^'' His reasoning 
 on the case will be found in his Posthu- 
 mous Works, p. 338. 
 
 Thirdly. Of the intended Tenant. — In ge- 
 neral, he should be named as a party in the 
 [ 17^ J deed to take the grant of the freehold. 
 Whether he takes the freehold, under an 
 immediate conveyance to him, or under a 
 declaration to his use, is of no consequence. 
 — Let liim have the freehold, and all that
 
 OF RECOVERY DEEDS. 174 
 
 re""ards him is accomplished. However, 
 when he is to have the freehold through the 
 medium of a declaration of use, instead of an 
 immediate conveyance to him, lie himself, 
 or another person, must be named as the 
 grantee ; since no use can arise without a 
 conveyance to supply a seisin to the use : 
 except in the cases of a covenantor to stand 
 seised, and then the use is supplied from the 
 seisin of the covenantor ; or in a bargain 
 and sale, in which latter case the bargainor 
 is seised to the use of the bargainee ; and the 
 use is, in each case, executed into estate by 
 the statute of 27 Hen. VHI. When the 
 tenant is to have the use under a declaration 
 on a conveyance, then the conveyance 
 must pass a seisin at the common law, and 
 not be open to the objection, that the use is 
 an use on an use, and for that reason a mere 
 trust. — This objection occurs when there is 
 an appointment under a power, and must be 
 distinguished from mere authority, or a bar- 
 gain and sale under the statute of inrolments, 
 to A. and his heirs, to the use of B. and his 
 heirs : the appointee or bargainee takes the 
 first use, and the ulterior use is a mere 
 trust ; an use in the 2d degree, not execut- 
 ed by the statute, as will be more fully [ 174] 
 shown in this and the subsequent chapters. 
 A person resident near the court, in which 
 the recovery is to be suffered, should be
 
 175 OF RECOVERY DEEDS. 
 
 named the tenant. By this arrangement, 
 the expence of a dedimus to take his war- 
 rant of attorney, or a journey to the court, 
 will be avoided. In general it is preferable 
 to name, one person, rather than two per- 
 sons. When two persons are named, the 
 writ of entry must be brought against both 
 these persons, and they must both appear 
 and vouch over. The want of appearance, 
 or voucher, by one, would vitiate the reco- 
 very to the extent of his share. 
 
 The recommendation of naming one per- 
 son instead of several persons to be the 
 tenant, must be understood with the qualifi- 
 cation, that only one recovery, or several 
 recoveries in one court, is or are to be suifer- 
 ed. As often as there are to be several re- 
 coveries, in distinct courts, there will be a 
 sjreat convenience and propriet}^, in naming 
 a tenant for the lands iu each distinct ju- 
 risdiction. In this instance, the lands in 
 each particular jurisdiction should be con- 
 veyed to, or at least, to the use of, the per- 
 son who is to be the tenant in the recovery 
 to be suffered in that jurisdiction. On this 
 point, the appropriate observations will be 
 found in a former part of this chapter (c). 
 r 175 1 ^^ ^^ usual for the tenant to execute the 
 recovery deed. This is proper. The want, 
 however, of his execution will not be a de- 
 
 (f) Supra, 32.
 
 OF RECOVERY DEEDS. 176 
 
 feet in the title. It is rather on account of 
 the declaration of uses, than the validity of 
 the recovery, that the deed is usually exe- 
 cuted by the tenant. As the uses are 
 to arise from a conveyance made to the 
 tenant, these uses arise on the recovery 
 without any other assistance from him, than 
 his acting as the tenant. By appearing to 
 the writ of entry he precludes himself and 
 all other persons from asserting that he 
 disagreed to the conveyance, and that no- 
 thing passed to him. And the judgment 
 against him draws out of him the estate 
 vested in him as tenant. 
 
 Fourthly. Of the Demandant. — Some- 
 times a purchaser, sometimes a friend, and 
 sometimes a stranger y is named the deman- 
 dant : and in some instances two persons are 
 named. In general no more than one per- 
 son is named. It has happened that one 
 person has been named in the recovery deed, 
 and another in the recovery ; and sometimes 
 the demandant has been required to execute, 
 and at other times his execution has been 
 disregarded. Neither of these particulars 
 will affect the title. So as a demandant or 
 demandants is or are named, in the proceed- 
 ings, towards the recovery, and the person [ 176] 
 or persons so named shall live till judgment 
 given, the recovery will be good. His 
 death before judgment would put an end to
 
 177 OF RECOVERY DEEDS. 
 
 the proceedings. When he lives till the pro- 
 ceedings are complete, the uses will arise, 
 without any concurrence by him in the re- 
 covery deed. The uses arise from the sei- 
 sin which passes to liim. He takes in modum 
 donantis, and is bound by the declaration of 
 uses in the recovery deed, so as this declara- 
 tion is in the common form. That the uses 
 may arise, seisin must be delivered. Should 
 the demandant die before seisin is delivered, 
 a writ of seisin must be awarded, and seisin 
 delivered to his heirs, and the writ of sei- 
 sin returned (d), as a means of the execu- 
 tion of the uses, under the statute for trans- 
 ferring uses into possession. 
 
 r ^«,i^-| 3. Of the Recitals. 
 
 The deed or will by which the intail is 
 created, ought, in most cases, to be recited, 
 or at least there should be a reference to the 
 same, and all such facts should be disclosed, 
 as show the right to suifer the recovery with 
 effect. This will greatly aid the title at 
 some future period. It will lead to a dis- 
 covery of the documents on which the title 
 is grounded ; or, should they be lost, or 
 destroyed by fire, the recital will tend to 
 satisfy future purchasers, that the title is 
 correctly deduced. 
 
 [d) Withum V. Lewis, 1 504. And supra, 149. 
 
 Wils. Rep. 48. 4 Bro. P. C.
 
 OF RECOVERY DEEDS. 178 
 
 The object should be to show, Jirst, that 
 the freehold is in the person by whom the 
 freehold is to be conveyed. For that pur- 
 pose the determination of all prior estates 
 which existed under the deed or will, by 
 which theintail was created, should be shown. 
 The creation of the estate-tail, and the con- 
 sequent right to suffer the recovery, should 
 also be stated ; and when the fact warrants 
 it, the determination or failure of all prior 
 estates-tail, the state of pedigrees, &c. 
 should be disclosed by the recitals. 
 
 This, it must be remembered, can be 
 done with prudence, in those instances only 
 in which the title rests on clear grounds, 
 and is not involved in difficulty. On the 
 one hand, no conveyancer of integrity will 
 state, as a fact, that which does not exist ; [ 178 ] 
 on the other hand, it is his duty to keep 
 his client's title free from a disclosure, 
 which, at a future period, might involve 
 that title in increased difficulty, or raise a 
 suspicion of its validity. 
 
 In general, other recitals are to be intro- 
 duced for the purpose of showing the agree- , - 
 ment to suffer the recovery. Such recitals 
 as are in general use will be found in the 
 forms of recovery deeds, contained in the 
 Appendix. Other varieties of these recitals, 
 adapted to particular cases, are also added 
 in the Appendix.
 
 OF RECOVERY DEEDS. 
 
 [179] 4. Of the Testatum Clause. 
 
 This clause generally shows the object of 
 
 the deed. For the most part that object is 
 
 expressed in these, or the like terms. " And 
 
 for docking, barring, and destroying all estates- 
 
 tail, of and in the lands and heredita- 
 
 ments hereinafter described, and also released, 
 or otherwise assured, or intended so to be, and 
 all reversions and remainders expectant or de- 
 pending on the same estates-tail, and all con- 
 ditions and collateral limitations annexed 
 thereto, or affecting the same, and for settling 
 and assuring," See. And when different ob- 
 jects are within the scope of the deed, these 
 objects also, are for the most part added. 
 This is form, and not substance ; and the 
 omission is immaterial. 
 
 Nor is any consideration necessary to the 
 validity of a recovery deed, as such, with 
 the exception that a bargain and sale can- 
 not raise any use, and, it follows, cannot 
 pass any estate to the intended tenant, unless 
 it be founded on a consideration of money or 
 money's worth. Therefore, that a recovery 
 deed, grounded on a bargain and sale, 
 which must operate as such, or be ineffec- 
 tual, may be good ; there must be a consi- 
 deration of money, or money's worth. An 
 instrument, in the form of a bargain and
 
 OF RECOVERY DEEDS. 
 
 sale, may, no doubt, operate as a grant. [180] 
 As often, then, as the bargain and sale is 
 void, as such, either for want of a proper 
 consideration, or inrohnent within due time, 
 it should be considered, whether the in- 
 tended bargainor had an estate in remain- 
 der or reversion. Admitting he had a re- 
 mainder or reversion, or that the subject of 
 the deed was an incorporeal hereditament, 
 as a rent or advowson, the deed may be 
 treated as operating as a grant {e), not- 
 withstanding the want of any consideration 
 or inrolment. In Barker v. Keat (/'), the 
 tenant to the writ of entry was made by an 
 instrument in the form of a lease and release. 
 No consideration was expressed in the clause 
 of grant in the lease. In the reddendum, 
 a pepper corn, which is money's worth, 
 was reserved. On this ground, the lease 
 was considered as a good bargain and sale 
 for a year : so that there was an estate for 
 a year capable of enlargement ; and it was 
 enlarged by the release ; and the releasee had 
 the freehold, and the recovery was duly, 
 suffered, since the writ of entry was brought 
 against this releasee. 
 
 This part of the deed is intimately con- 
 nected with the two divisions, which treat of, 
 1st, the person who has the freehold (g), and 
 
 (e) Supi-a, 41. {g) Supra, 165. 
 
 (/) 2 Mod. 249.
 
 OF RECOVERY DEEDS. 
 
 2dly, the intended tenant {h) ; for the office 
 [ 181 ]of this clause of the deed is to introduce an 
 effectual grant from the person who has the 
 freehold to, or in favor of the person who is 
 intended to be, the tenant ; or, at least, it 
 must introduce a grant, in favor of some 
 other person, to uses, under which the free- 
 hold may be vested in the tenant. 
 
 From subsequent parts of this treatise, it 
 will be collected that a grant may be good, 
 thou£[h the name of the s^rantor is omitted, 
 in the words of the intended grant from 
 him, provided the intention, that he should 
 grant, can be collected from the deed. 
 
 So a grant may be good, though the gran- 
 tee is named in the habendum, and not 
 in the grant ; and even though some other 
 person is, by mistake, named in the grant. 
 
 On this and other subjects connected 
 with the form of the grant, the observations 
 in the chapter Release, will afford the neces- 
 sary information. That the deed should be 
 sufficient to pass the freehold, is the object 
 to be regarded, both in preparing the reco- 
 very deed, and considering the effect of the 
 recovery, with a view to support its vali- 
 dity. 
 
 {h) Supra, 172.
 
 OF RECOVERY DEEDS. 
 
 5. Of the Operative Words. [ 182] 
 
 These words ought, in point of fornij to 
 vary with the nature and mode of opera- 
 tion of the recovery deed. They must be 
 sufficient to pass the estate. — In the more 
 early period of the history of the laws of 
 property in this country, particular words 
 were allowed only a particular import, and 
 were considered as peculiarly adapted to 
 particular assurances. In modern times, 
 this rule has been relaxed. No more is 
 now regarded, than that there should be 
 such words as declare a manifest intention 
 to convey. Such words, however informal, 
 will operate. 
 
 The rules which now prevail, are *' Be- 
 '* nigne faciendcB sunt interpretationes char- 
 " tariim, propter simplicitatem laicorum, ut 
 " res ?nagis valeat qxiam per eat. — Verba in- 
 *' tentioni, et non e contra debent ifiservire. — 
 " Deeds intended, and made to operate 
 " one way, may operate another way, if 
 *' the intention of the parties cannot take 
 *' place, unless they operate a different way 
 *' from what they were intended. — Judges 
 *' ought to be curious and subtle, to invent 
 " reasons and means to make acts effectual, 
 *' according to the just intention of the 
 " parties. — More consideration is to be 
 
 VOL. I. o
 
 183-184 OF RECOVERY DEF.DS. 
 
 " had for the substance, to wit, the passing 
 " of the estate according to the intent of 
 [ 183]'' the parties, than the shadow, to wit, the 
 " manner of passing it (g)." The applica- 
 tion of these rules will be shown in the 
 chapter on Releases. 
 
 The words of grant ought to proceed 
 from a person as grantor, in favor of the 
 person named as grantee. The observations 
 respecting the nomination of these persons 
 and mistakes in these particulars, will be 
 found in the chapter to which reference has 
 been lately made. 
 
 [ 184] 6. Of the Parcels. 
 
 In all deeds, and in none more than in 
 recovery deeds, particular attention should 
 be paid, that all the parcels intended to 
 pass, should be included, and that none 
 should be included which it is the inten- 
 tion of the parties to omit. — The points 
 proper to recovery deeds, are, — not to in- 
 clude more lands than are intended to pass 
 — to comprise, either by general or special 
 words, all the lands to which the recovery 
 is to extend, — and to restrani general words 
 to those townships, parishes, &c. which 
 are to be named in the recovery. 
 
 It is said, that the issue in tail may de- 
 
 (^) Roe V. Trunmer, Willes's Rep. (582.
 
 OF RECOVERY DEEDS. 185 
 
 mand the parcels according to their quality 
 at the time of the intail, without regard to 
 any alteration made in these parcels by the 
 defendant (h). 
 
 When the parcels are of considerable 
 length, or the description of them is at- 
 tended with nicety, or involved in any diffi- 
 culty or uncertainty, general words should 
 be added, extending to all the townships, 
 parishes, &c. named, or to be named, in the 
 recovery, so as to embrace, under these ge- 
 neral terms, any parcels omitted out of the 
 particular description. Many a title has 
 been supported under these general words, 
 which would have been defective, or at least 
 doubtful, as far as it depended on the par- 
 ticular description. 
 
 Such general words may be to this effect : 
 
 — And all other the manors, messuages, 
 
 farms, lands, tenements, and hereditaments, 
 
 situate, lying, and being in the several towns, 
 
 parishes, and places of A. B. C. and D. in the 
 
 said county of , of which the said > 
 
 is tenant for an estate-tail, either in posses- 
 sion, reversion, or remainder, under or by vir-^ 
 tue or means of the said hereinbefore men- 
 tioned or recited , and every part and 
 
 parcel of the same, ivith their, and ex>€ry of 
 their rights, members, und appurtenances , 
 
 ih) Dyer, 47. a. pi. 6. 1 Burr. 145. 
 
 o 2
 
 186 01' RECOVIllY DEEDS. 
 
 The language of this ohiuse may require 
 considerable variation ; as words of restrict 
 tion, — or words to embrace lands taken 
 under exchanges, made under inclosure acts, 
 — partition, — lands purchased, and settled 
 to the like uses, &c. &c. 
 
 When lands have passed by will under a 
 general denomination, the recovery should 
 have the parcels from the last purchase deed : 
 or if the parcels are materially and substan- 
 tially varied, then a new description. There 
 should be general words, co-extensive, in 
 effect, with the words of the will, — at least 
 as far as the recovery is to comprise the 
 lands. The modern description should be 
 connected with the ancient description. 
 Thus the identity of the parcels, and the 
 application of the more early title deeds, 
 will be rendered obvious, and free from any 
 doubt arising in consequence of the change 
 in the description of the parcels. 
 
 In relation to the parcels, another object 
 to be kept in view, is, to have the lands 
 sufficiently ascertained by particular de- 
 scription, or by general words, to render 
 the intention to include them free from all 
 doubt. This attention will facilitate an 
 application to amend the parcels in tlie 
 recovery, should circumstances render it 
 necessary to make such an application to 
 the summary and discretionary jurisdiction
 
 OF RECOVERY DEEDS. 187 
 
 «f the court, in which tlie recovery is suf- 
 fered. 
 
 The recovery deed, to be formal, should 
 also have the clause of the *' reversion," 
 &c. — Also the clause of " all the estate," 
 &c. except a particular estate, and not the 
 whole interest of the parties is intended to 
 pass. 
 
 As often as the sole object is to suffer a 
 recovery, the clause granting deeds, is un- 
 necessary, and even informal. On the other 
 hand, when the recovery deed is part of a 
 transaction, for the assurance to a pur- 
 chaser, the usual clause of grant of deeds, 
 will, with great propriety, be added. 
 
 7. Of the Habendum. [ 11)7] 
 
 Thehabendum should be thesame in form, 
 in this, as in other deeds ; looking only to 
 the object of passing an estate of freehold, 
 to the person who is to be the tenant in the 
 recovery. 
 
 Frequently, and indeed generally, the fee 
 is conveyed to the tenant. Whether he 
 takes the fee, or any other estate, so as the 
 same be an estate of freehold, is immaterial. 
 The recovery will be equally free from ob- 
 jection. Even the lowest denomination of 
 an estate of freehold is sufficient to support 
 the recovery, as far as its validity can come
 
 183 OF UECOVERY DEEDS. 
 
 in question. Even though a mere estate of 
 freehold passes by the deed, the fee may be 
 conveyed by the united operation of the 
 deed and recovery. The freehold will pass 
 by the deed, and the fee by the recovery. 
 The uses declared of the recovery will 
 transfer that estate to the person, in whose 
 favor these uses are declared. This follows 
 upon the rule, that whoever comes in as 
 vouchee, comes in of all estates of which he 
 is or ever teas seised. 
 
 These observations suppose the party 
 who has the fee, to be named as tenaut, or 
 as vouchee. In case a person who has the 
 fee conveys 2i partial estate, and is no party 
 to the recovery, there will remain in him so 
 [ 188 ]much of his estate as he has not conveyed. 
 
 These observations will suo'gest, that in 
 some cases the fee should be conveyed. 
 Should circumstances of caution require it, 
 this estate may be conveyed, and uses de- 
 clared, and under these uses a particular 
 estate may be limited to the use of the 
 intended tenant, and ulterior uses may be 
 declared, according to the intention of the 
 parties (?'). See form in the Appendix. 
 
 It is to be observed, that no benefit will 
 arise from this practice or caution, except 
 in those instances in which the uses shall be 
 
 {i) Supin, 11-1.
 
 OF UECOVERY DEEDS. 1S8 
 
 declared in favor of persons not named as 
 parties in the recovery. Nor in this place 
 must it be passed over unnoticed, that the 
 estate arising from a declaiation of uses 
 upon a conveyance, cannot be larger than 
 the seisin conveyed to serve these uses. 
 
 There are few instances, however, in 
 which the operation of a recovery is not to 
 give a fee, under the doctrine of disseisin 
 by the tortious alienation of particular 
 tenants {j). 
 
 On a late occasion, a very learned gen- 
 tleman had difficulties, whether a common 
 recovery was duly suffered, after tenants for 
 life had levied a fine, amounting to a for- 
 feiture of their estates, lie supposed, that 
 the freehold mio;ht have been in the trus- 
 tees under the usual limitation for support- 
 ing contingent remainders. The answer to 
 the objection was, that, as the trustees had 
 not entered, they could not have more than 
 a mere right of entry ; and the freehold was 
 in the person who claimed under the uses 
 declared of the fine. 
 
 Of the Use. 
 
 When the grant is to the tenant, to the 
 intent that a common recovery should be 
 suffered, the legal estate will vest in him^ 
 
 ij) Seethe Author's Argu- te7; I Taunt, 578« Co, Litt. 
 ment in Goodright v. Forcs^ 251. a.
 
 189 OF RECOVERY DEEDS. 
 
 without any express limitation of use in his 
 favor. — The declared purpose will prevent 
 the use from resulting, and the grantee will 
 be seised, by the rules of the common law. 
 [ 189 ]^/M«;7? and Anglesey {k),Roe v. Popham (I), 
 Thrustout V. Peake (m), are authorities in 
 point, and support this conclusion, were 
 the proposition not sutficiently clear in 
 itself. As often, however, as the title of 
 the tenant to the writ of entry, is to arise 
 from, or to depend immediately on, a de- 
 claration of use, that use must be effectual 
 for the purpose. In the first place, there 
 must be a grant adequate in operation to 
 supply a seisin to the uses ; and there must 
 not be any prior use, which will either pre- 
 vent the execution of the use in favor of 
 the tenant, or confer on any other person 
 a title to the immediate freehold. 
 
 As often as the title of the tenant to the 
 freehold is to arise from an use, which is 
 expressly declared, the nature of the con- 
 veyance must admit of a declaration of use, 
 to be executed into estate, and such use 
 must be declared. On a bargain and sale 
 to A., to have its effect under the statute of 
 uses, the bargainee will take the use, and 
 his estate will be executed by the statute. 
 A subsequent declaration of use, in favor of 
 
 [k] Gilb. Eq. Cases, 10. [m] Str. 12. 
 
 {/) Doujrl. 25.
 
 OF RECOVERY DEEDS. 
 
 B. will be an use of the estate of A., — an 
 use on an use (n), and cannot be executed [ 190 ] 
 by the statute. Supposing the estate to be 
 le<>al, the legal estate will abide in A., and he 
 and not B., is the proper person to be named 
 tenant of the freehold. It is, on one hand, 
 to all bargains and sales. by owners of the 
 legal estate, to operate under the statute of 
 uses, or through the medium of that sta- 
 tute ; and, on the other hand, to those as- 
 surances only which are to operate on the 
 legal ownership, and under the statute of 
 uses, or through its medium, that these 
 observations are applied. 
 
 Perhaps, in support of an equitable reco- 
 very, a court of equity would consider the 
 equitable freehold as passing to B. The 
 intention of the parties is evidently directed 
 to the object of placing the equitable free- 
 hold in him, and in equity, the intention 
 and object of the parties, rather than the 
 form of the instrument, is regarded : and 
 the transaction requires, that B. should 
 have the equitable freehold, as the only 
 means of giving full effect to the intention. 
 Under these circumstances, also, it may 
 be necessary to recur to the point, that the 
 instrument, even as a legal assurance, may 
 be attended with circumstances, which will 
 allow of its operating as a grant at the com- 
 
 (n) TyrrelVs case. Dyer, 155. a.
 
 191 OF HECOVKllY DEEDS. 
 
 mon law {o) : and any instrument which may 
 operate as a grant, will pass a common law 
 seisin, and uses may be declared with effect, 
 and arise on that seisin. In many cases, 
 this construction might have been resorted 
 to with success, and a title supposed to be 
 £ 191 ] defective, as to the legal estate, might, by 
 this application of the rules of law, have 
 been supported. It remains only to be ob- 
 served, that on bargains and sales to ope- 
 rate under the rules of the common law ; as 
 bargains and sales, — by executors who have 
 an authority to sell, — by commissioners of 
 bankrupt, 1 — and under land-tax, and other 
 acts of parliament ; uses may be declared. 
 These bargains and sales pass a common 
 law seisin, and not an use, and uses may be 
 declared of that seisin. 
 
 Also, though a bargainee, whose estate is 
 executed by the statute, has no seisin of 
 which uses can be declared with effect, to 
 be executed by the statute, otherwise than 
 under a new conveyance, or a new contract, 
 proceeding from him ; yet uses may, in a 
 bariiain and sale, be declared of the seisin 
 acquired by the demandant, or recoveror, 
 in the recovery. — Uses of the latter descrip- 
 tion, arc free frOm the technical objection 
 of being uses on an use. These uses arise, 
 in point of law, from the seisin of the de- 
 
 (0) Suj)ra, 41, k 180.
 
 OF RECOVEHY DEEDS. 192-193 
 
 mandant- — In short, they arise from a new 
 conveyance, produced by the effect of the 
 common recovery. 
 
 Appointments made through the medium 
 ofa power in, or arising under, a convey- 
 ance to uses, are open to observations very 
 like to those made on bargains and sales. — 
 The appointee takes the immediate use : 
 and all ulterior uses declared of his estate 
 are uses on uses, and have no effect on the 
 legal estate. They are good only as trusts, 
 conferring an equitable ownership. For 
 instance, when A. has a power over the use, 
 and he appoints to B. and his heirs, to the 
 use of C. and his heirs, B. takes the use, 
 and the use declared for the benefit of C. 
 is merely a trust. This subject will be 
 more fully considered in the chapter on 
 Appointments. 
 
 When circumstances require that a par- 
 tial estate of freehold should be limited to 
 the intended tenant, and that other uses 
 should be declared, these uses may be de- 
 clared in the mode which has already been 
 pointed out for that purpose (/?), and as 
 shown in the form in the Appendix, p. 489, 
 491. 
 
 B. Of the Agreement to suffer the Recovery. [ 193 ] 
 In every well drawn deed, the agreement 
 
 [p] Supra, 114.
 
 194 OF RECOVERY DEEDS. 
 
 to suffer the recovery should be fully and 
 clearly expressed. — The common form of 
 this clause is in the Appendix. 
 
 A .short form is also added. The varia- 
 tions in the form, arising from circum- 
 stances, are noticed in the notes. 
 
 [194] 9- Of the Declaration of Uses. 
 
 To the clause prescribing the mode of 
 suffering the recovery, there is generally 
 added a declaration of the uses of the reco- 
 very itself. ^ — This declaration should be in 
 the form in the Appetidix, or to that effect, 
 jnutatis mutandis — It seldom happens, that 
 a declaration of this nature is omitted. 
 When omitted, the use will result [q], unless 
 from the consideration paid by the de- 
 mandant, or from some other circumstance, 
 the beneficial ownership is evidently to re- 
 main with him. The cases of Moxon v. 
 Moxon, and Hodges v. Foivkr, in the Ex- 
 chequer, 1777, and Com. Dig. Uses, D. 2, 
 p. 622, are authorities that the use will 
 result, and it will result to the different 
 parties, according to their former owner- 
 ship, that is, to tenant for life, for life, &c. 
 &c. with this difference only, that a tenant 
 in tail, instead of taking back an estate-tail 
 
 (7) Armxtrcmg v. Wohcy, Jones v. Morley, 1 Ld. 
 
 2 Wils. IJ). Raym. 291. 
 
 ' Co. Litt. 23. a; 271. a.
 
 OF KECOVERY DEEDS. 195 
 
 by resulting use, will take back an estate 
 in fee, depending on the title to his estate- 
 tail. 
 
 Mr. Cruise, in his Essay on Uses, p. 205, 
 adverts to the title, depending on the 
 resulting use, as doubtful. He assumes, 
 that it is not clear whether the use which [ 195 ] 
 results is in tail or in fee. The cases do not 
 admit of any reasonable doubt on this point. 
 Though they say the recovery shall enure 
 to the " former uses (r)," nothing more is 
 meant, than that the parties shall take ac- 
 cording to the estates they had at the time 
 of suffering the recovery [s). — Indeed, Mr, 
 Cruise considers the case of Nightingale v. 
 Ferrers [t), as a direct and positive autho- 
 rity, that where a tenant in tail suffers a 
 common recovery without any declaration 
 of the uses, the resulting use is to him in 
 fee. — One, however, of our best read law- 
 yers doubted on this point. — But there were 
 special circumstances in the case before him, 
 namely, a partial declaration of the uses^ 
 without any declaration of the use of the 
 fee : and on the contrary, a declaration that 
 the recovery should not enure to any other 
 uses. On the same case Mr. Fearne gave an 
 
 (r) Waker v. Snow, Palm. [s] Argol v. Cheney, Latch. 
 
 359. 82. *(] 
 
 (0 3 P. W. 207.
 
 196 OF RECOVERY DEEDS. 
 
 Opinion in these terms. — " I conceive that 
 *' where a tenant in tail is vouched in a com- 
 '* mon recovery, it bars the estate-tail, and 
 '* all remainders and reversions thereon 
 *' depending and expectant, and expands 
 ** the estate into a fee- simple, abstracted 
 *' from the declaration of the uses of such 
 [ 196 ] '< recovery, because a fee-simple is reco- 
 '* vered. And therefore where no use of 
 '^ the fee is declared in such a case, and 
 ** there is no consideration to raise the use 
 " in the recoveror, it results to the tenant 
 '' in tail in fee, 2 Roll. Abr. 789, pi. 1. 
 ** Godbolt, ISO.— Bmy v. Tai//or, Gilb. 
 " Law of Uses, 61, 64. And if such reco- 
 ** very be with the concurrence of a pre- 
 '* ceding tenant for life, then the use also 
 " results to him for his life. Vide Waker v. 
 ** Snozv, Palm. 359- And consequently, I 
 ** apprehend, that where the use of such 
 *' recovery is only partially, and not com- 
 *' pletely limited, as far as the limitation 
 " fails, that is, the unlimited use results in 
 " the same manner as the whole use would 
 " have done, if there had been no limitation 
 " of any part of it." 
 
 Titles frequently depend partly on a 
 recovery, and partly on a will, made bv the 
 person who suffers the recovery. As a will 
 is revoked by the recovery, if suffered sub-
 
 OF RECOVERY DEEDS. 197 
 
 ^equently to the will {ii) the attention should 
 be directed to s^ee, either that the will is 
 subsequent to the recovery, or if prior, that[ 1971 
 it has been republisiied since the recovery : 
 and in general it is prudent to advise a 
 person, who suffers a recovery, to repub- 
 lisli his will, if he has previously made 
 any. 
 
 \nSelwyn v. Selwyn {v), the will was made 
 before the recovery was suffered, but after 
 the deed to lead the uses was executed. 
 — In that particular case the will w'as 
 supported, on the ground already no- 
 ticed. 
 
 The prevailing opinion, some few years 
 ago, was, that as the tenant in tail, by suf- 
 fering a common recovery, acquired d^ fee- 
 simple, this fee-simple was a new estate. 
 For this reason, the owner of the estate 
 was considered as the Jirst purchaser, and 
 his estate as descendible, in all cases, to his 
 heirs ex parte pater7id.-— The law is now set- 
 tled on this point, and the distinctions 
 which are established are : 
 
 First. If tenant in tail hy purchase suffer a ^ 
 
 {u) Dister v. Dister, 3 Lev. N. P. 267 ; 3 Wils. 6 ; 7 Bro. 
 108. P. C. 177. 
 
 Marwood v. Turner, 3 P. Jones v. Leigh, Dom. Pro. 
 
 W. 103. 1744. 
 
 i>arley v. Darlevy Buller's [v] 2 Burr. 1131. Supra, 
 
 149.
 
 198 OF RECOVERY DEEDS. 
 
 common recovery, to the use of himself in 
 fee ; as he was tenant in tail by purchase, the 
 fee taken under the recovery will descend 
 from him to his heirs ex parte pralernd(w). 
 Though upon principle, the case of copy- 
 [ 198 ] hold lands appears to be very distinguish- 
 able from the case of freehold lands* 
 In one case there is a surrender and a 
 re-surrender ; two distinct common law 
 conveyances, like a feoffment and re-enfeoff- 
 ment, or a fine sur grant et render. In the 
 other case, there is, in point of law, merely 
 a conveyance to uses : and it is wholly 
 under the doctrine of courts of equity, as 
 distinguished from the doctrine of the com- 
 mon law, that the use, in its fiduciary state, 
 and now, since the statute of uses, the old 
 use, whether it is taken under an express 
 limitation, or its results, descends in the 
 same manner as the estate was descendible 
 prior to the conveyancce. 
 
 Secondly. If tenant in tail by descent from 
 his mother, or any other ancestor, suffer a 
 common recovery, to the use of himself in 
 fee, the person in xvhose favor the intail was 
 originally created, shall be considered as the 
 purchasing ancestor. The fee, taken under 
 the recovery, will be descendible exactly in 
 
 (w) Martin v. Strachan, Willes R. 444 ; 5 T. Rep.107, 
 Str. !17»; I Wils. 2, (iO ; iu a note ; 4 Bro. P. C. 480.
 
 OF RECOVERY DEEDS. 199 
 
 the same manner, as if the donee in tail had 
 been the purchaser of an estate in fee-sim- 
 ple, instead of being the purcliaser of an 
 estate tail (v). The reason of this rule in 
 courts of equity, and its adoption by courts 
 of law, will be considered in the Essay on 
 the Quantity of Estates^ when that work 
 shall be re published. This distinction has 
 been applied as well to copyhold as freehold 
 lands (2). 
 
 This point should be particularly re- [199] 
 garded in those cases, in which the title is 
 derived by descent from a tenant in tail. 
 Indeed, in every case in which a title is 
 made by a person as heir, care should be 
 taken to see that such person is heir to the 
 former owner, as far as respects the estate in 
 question. 
 
 This chapter will be closed with the 
 observation, that in investigating a title, as 
 depending on a recovery, the attention 
 should be particularly directed to these 
 points — 
 
 First. That there appears to have been a 
 good tenant to the writ of entry at the time 
 of suffering the recovery, or before the end 
 
 [y) Abbot V. Burton, 2 Salk. (s) Roe clem. Crow v. Bald' 
 
 590, n Mod. 181. were, 5 lenu R«p. 104, al- 
 
 Martin v. Strachan, and ready cited. 
 Roe dem. Crow v. Baldwere. 
 
 VOL. I. P
 
 199 01* RECOVERY DEEDi>. 
 
 of the term, in which the recovery is suf- 
 fered. 
 
 Secondly, That the person who is vouched 
 had either in point of estate, or in point of 
 right under an estate once vested, an estate- 
 tally and that he vouched over. 
 
 Thirdly. That execution has been sued, and 
 seisin delivered on the recovery : and 
 
 Fourthly. That all the proceedings are 
 regular.
 
 200 
 
 CHAP. II. 
 
 On Fines. 
 
 A FINE is ail assurance by matter of 
 record. It is for the most part founded on 
 a supposed previous existing right. Hence 
 the writ which requires the party to per- 
 form his covenant, is the foundation of the 
 fine, and the commencement of the pro- 
 ceedings {a). 
 
 The parties to a fine are. 
 
 First. The plaintiff, frequently denomi- 
 nated the conusee. 
 
 Secondly. The deforceant, generally deno- 
 minated the conusor {b). 
 
 Sometimes the plaintiff conusee or grantee 
 is the person who is to have the benefit of 
 the fine. More frequently he is named, 
 merely for the purpose of receiving the 
 estate, that uses may arise from his seisin. 
 
 The deforceant is the person by whom[201J 
 the fine is acknowledged, and consequently 
 the person who is the grantor in the fine. 
 
 There are several sorts of fine, viz. 
 
 1st, A fine sur conuzance de droit co?ne ceo, 
 &c. 
 
 in) 2 Black. Com. 34!). [b) Shep. Touchst. 2, 
 
 p 2
 
 202 ON FINES. 
 
 2d, A fine sur done grant et render. 
 
 3d, A fine sur conuzance de droit tanfum. 
 
 4th, A fine stir concessit. 
 
 The Jirst of these fines is in more general 
 use, and is to be preferred, except in parti- 
 cular cases, in which a forfeiture might be 
 inciured by levying it. — For if a person who 
 has merely an estate for life (c) of the iegaJ! 
 estate, either of a corporeal or incorporeal 
 hereditament (d), or who has an estate for 
 life, with a remote estate of inheritance 
 after, and subject to intermediate estates 
 of inheritance (e), levy his fine, he will for- 
 feit his estate for life. — So if he accept a 
 fine of this description ; for by the accept- 
 ance he admits the inheritance to be in the 
 conusor {J'). — So if two tenants for life levy 
 a fine of this sort (g), or one of them levy 
 the fine, and the other accept it (^) both 
 their estates will be forfeited. The concur- 
 rence of the person who has the immediate 
 r 2Q2 Testate of inheritance, will prevent the fine 
 from operating as a forfeiture {i). 
 
 On this point there is a ditference between 
 fines and recoveries ; for if tenant for life 
 having a remote estate of inheritance sutfers 
 
 (c) Co. Litt. 251, b, (/) 2 Lev. 202 ; Co. Litt. 
 
 (d) I}>id. 252, a ; 1 Leo. 264. 
 
 (e) Pelham's case, 1 Co. {g) 1 Leon. 2n2. 
 
 lOL (h) 1 I>eo. 264. Smith v. 
 
 Carrett v. Blizard, 1 Roll. Abell, 2 Lev. 202. 
 
 Ab. 855. (J) Bredon's case, I Co. 76-
 
 ON FINES. 202 
 
 a recovery, there will r.ot be any forfeiture 
 of tiie estate for life [k) : no forfeiture will 
 be incurred by a fine levied by an equitable 
 teuaiit for life (/). 
 
 In Smith on dem. Richards v. Clyfford, the 
 same person had the several estates for life 
 and in tail, and the same circumstances 
 occurred in Peiham's case (m) ; each case 
 arose on a common recovery : it was decided 
 in one case that there was not any forfeiture ; 
 and in the other case it was decided that 
 there was a forfeiture. These cases are 
 completely at variance ; and no sound law- 
 yer, versed in the rules of property, will 
 feel any difficulty in assenting to the doc- 
 trine in Pelham's case, as most consistent 
 with our system of tenures. 
 
 The fine come ceo, 8zc. is an acknowledg- 
 ment on record of a previous gift or feoff- 
 ment, and takes its name from this circum- 
 stance (n). Prima facicy and without any 
 words of limitation, it passes a fee (o). It 
 admits however of words of express limita- 
 tion for life or in tail (p) : and when there 
 are words of express limitation, the fine will 
 pass that estate only which is expressed in 
 
 ik) Smith dem. Richurds («) 2 Black. Com. S48, 352. 
 
 ». Clyfford, 1 Term Rep.738. (o) Co. Litt. 9 b. 
 
 Supra, 111. (P) Hunt v. Bourne, 1 
 
 (/) LelhieuUier v. Traci^, Salk. 340. 
 
 3 Atk. 730. Bio Abr. Fine, pi. 12. Co, 
 
 (m) 1 Co. 14 b. Read. 2,
 
 203 ON FINES. 
 
 the concord ; being the clause of grant. And 
 as often as the grant is confined to that 
 decree of interest, of which the conusor is 
 the owner, no forfeiture will be incurred, 
 because there is no assertion of ownership 
 to the disinheritance of the reversioner. 
 Such assertion of ownership is the cause of 
 forfeiture. 
 [ 203 ] This is that species of fine which is almost 
 invariably levied by the owner of an estate 
 in fee-simple, or of an estate in fee-tail, either 
 in possession, reversion or remainder. When 
 levied by tenant in tail in possession, it has 
 the operation of a feoffment, and except in 
 particular cases, (see Com. Dig. title 'Discon- 
 tinuance^ it creates a discontinuance of the 
 estate-tail [q) ; that is, it puts an end to, or 
 discontinues, the title under the estate-tail, 
 and gives a new title depending on the ope- 
 ration of the fine, considered as effecting a 
 tortious alienation. 
 
 As often as this fine is levied by a person 
 who is seised of an estate, it gives or trans- 
 fers the seisin, either for an estate in fee, 
 or for the time expressed in the concord of 
 the fine ; and uses may be, and generally are 
 declared of this seisin. — If no uses be de- 
 clared, the use will result (r), unless the grant 
 be for a particular estate, or except there be 
 
 (7) Co. I -iff, .'32o, a; 2. Armstrong v. Wolsei/, 2 
 
 Iribt. o:jr> ; 10 Co, J)G. AVils. ID. 
 
 (r) Co.Litt.23,a;271,a&b.
 
 ON FINES. £04 
 
 some circumstance to keep the seisin in the 
 conusee. — When the use results to the for- 
 mer owner, it will result accordins: to the 
 ownership he had at the time of levyincr the 
 fine, except that his estate-tail, if any, will, [204 ] 
 in case there be a discontinuance, be a fee- 
 simple, and if there be discontinuance, a 
 determinable fee (.9). 
 
 So if uses be declared only of part of the 
 estate, or of part of the lands, the use will 
 result for the residue of the estate, or for the 
 residue of the lands [t) : unless such resulting' 
 use would be contrary to the implication of 
 law, as immediately annihilating a particu- 
 lar estate expressly limited to the conusor, 
 or there be some circumstance, or expres- 
 sion of intention, to rebut the resulting: use. 
 
 Whenever the use results to the conuzor 
 in fee, or is expressly limited to him, this 
 use will be descendible (except, perhaps, in 
 the case of a discontinuance, for that point is 
 doubtful), exactly in the same manner as if the 
 first purchaser of the estate of which the party 
 was seised, at thetime of levying the fine, had 
 been the first purchaser of the estate aris- 
 ing from the use so limited or so resulting {u). 
 
 {s) Per Holt in Machell v. Clerc's case, 6 Co. 17. 
 
 Clerk, Lord Raym. 778. [u) Fenwick v. Mitford, 1 
 
 Doe ex dein. Gregory v. Leon. 18'2. 
 Whicelo, 8 T. Rep. 21 L ' Earl Bedford's case, Poph. 
 
 [t] Co. Litt. 22, b; 23, a; 3. 
 271, a. & b. Abbot v. Burton, 2 Salk. 
 
 Woodliff V. Drury, Cro. 590. 
 E. 439.
 
 205 ON FINES. 
 
 Respecting the discontinuance, which may 
 be created by this line, it must bt remem- 
 bered, that no one except the person actually 
 seised of an estate-tail in possession, being an 
 [205 lestate conferring a right to the immediate 
 freehold, can discontinue the estate-tail (3/). 
 In Seymour's case (2), tlie tenant in tail had 
 made a bargain and sale in fee, and after- 
 waids levied a fine, as a peifcctly distinct 
 transaction, to the barginee : and it was 
 held that this fine did not create any dis- 
 continuance.— The ground of that determi- 
 nation was, that tlie ttiiant in tail was not at 
 the date of the fine seised of the estate-tail, 
 but had before the fine parted with his-* 
 estate by the bargain and sale. 
 
 In Doe ex dem. Ordiane v. Whitehead {a), 
 the tenant in tail conveyed by indentures of 
 lease and release, and afterwards, in pursu- 
 ance of a covenant contained in the inden- 
 ture of release, hekvied a fineto the releasee; 
 and it was adjudged that the lease, release, 
 and fine, were several parts of the same as- 
 surance, and that tlie fine created a discon- 
 tinuance of the estate-tail. Thus in fact, or 
 in construction of law, the fine was by a 
 person seised of an estate-tail in possession. 
 It is frequently material to advert to the 
 question, whether a fine does or does not 
 
 (y) Bredon s case, I Co.7(). (a) 2 Burr. 70-1. 
 
 \z) 10Co.U5.
 
 ON FINES. 206 
 
 create a discontinuance, for a discontinuance 
 varies the remedies of the persons not barred 
 by the fine. And it is to be remembered, 
 that if A be tenant for life, with remainder 
 to B. in tail, a fine levied by B. with or[206] 
 without the concurrence of A., will not cre- 
 ate a discontinuance {b). And no disconti- 
 nuance can be created of an estate in rents, 
 or other incorporeal hereditaments (c\ 
 
 After a discontinuance, the issue in tail, 
 if not birred by tiie operation of the fine, 
 &c. or the persons in remainder or reverbion, 
 have merely a right of action, and cannot 
 recover the lands, otherwise than by a J'or^ 
 77icdo7i in descender, remainder, or reverter^ 
 according to the nature of their title {d). 
 
 Of consequence they cannot maintain an 
 ejectment [e). Another consequence is, that 
 the persons who had the remainder or re- 
 version cease to have any estate They have 
 merely a right of action. This right of 
 action cannot be transferred by grant, nor, as 
 it is apprehended, is it devisable. It may be 
 extinguished by release, fine, &c. The 
 question whether a right of entry, or of 
 action, is devisable, was considered in Good- 
 right V. Forrester (/). In the King^s Bench 
 it was decided that the right of entry was 
 
 [b) Carth. 110. [t) \hA. 
 
 [c) Co. Litt. 3-32. (/) 8 East, 562; 1 Taunt. 
 
 [d) Doe V. Whitehead, 2 578. 
 Burr. 704.
 
 207 ON FINES. 
 
 not devisable. The point was made in the 
 argument in the Exchequer Chamber. In 
 that court, the case was disposed of, princi- 
 pally, on the point, made for the first time, 
 that the plaintiff was barred by the statute 
 of non-claims on fines. Ch. J. Mansfield, 
 who presided, declared that since it would 
 be unnecessary to decide on any of the 
 points argued in the court of King's Bench, 
 it need not be at all inferred or supposed 
 that the authority of the judgment of that 
 court was in any respect impeached by the 
 decision in the Exchequer Chamber. 
 
 It is sometimes necessary to advert to 
 these points of discontinuance, in consider- 
 ing the state of titles under abstracts, and in 
 cases for opinion ; also in considering the 
 remedies to be pursued for recovering any 
 [207] lands which have been intailed ; or the 
 defence to be made to a suit brought for 
 establishing a claim to an intailed estate. 
 
 Sometimes also, particularly, and it is 
 believed exclusively, in the case of fines by 
 tenants for life {g) of the immediate freehold, 
 a fine devests an estate without discontinu- 
 ing it. When the fine devests the estate, 
 there is merely aright of entry, and no estate 
 in the persons who have the remainder or 
 
 [ir] Per JIale in Focus v. Litt. sec. 415. Co. Litt. 
 
 Saiisbury, Hard. 400. 251, 327 b. 
 
 Whelsione v. IVndworthj 1 Co. 140. 1 R. Ab. C70 
 
 Dyer 72 b, in margin. (G) pi. 3.
 
 ON FINES. 208- 
 
 reversion. Except there be a discontinu- 
 ance, or devesting, the person who has the 
 remainder or reversion in fee continues seised 
 of that estate, and is competent to alien 
 the same, in the same manner as he might 
 have done if the fine had not been levied. 
 
 A tenant in fee, or even of a base or 
 determinable fee, cannot either devest or 
 discontinue the inheritance. 
 
 And the issue in tail, unless barred by 
 the fine, or the person in remainder or re- 
 version, when their right of entry com- 
 mences, may lawfully enter, and, as a con- 
 sequence, may maintain an ejectment. 
 
 In the particular case of a fine with pro- 
 clamations, which devests the estate, for 
 every fine does not devest the (estate [h) — ) 
 or of a fine levied after estate is devested, 
 an entry must be made for the express and 
 declared purpose (i) of avoiding the fine, 
 before an ejectment can be maintained {k) : 
 and the demise in the ejectment must be 
 laid on some day subsequent to the time at 
 which the entry is made. 
 
 And upon principle, and even the autho-[ 208 ] 
 rity of decided cases and of the text writers, 
 it may safely be concluded that when the 
 person who had the remainder or reversion, 
 
 (/i) Carhampton v. Car- [i) Clerke v. Rowell, 1 Mod. 
 
 hampton, 1 Irish Term Rep. 10 ; I Vent. 42. 
 S67. (A;) Doe ex dem. Compere 
 
 Podger's case, 9 Co. 104. v. Hicks, 7 Term Rep. 433.
 
 209 <'Jl^ FINES- 
 
 has merely a right of entry, he cannot, after 
 his estate is turned into a right of entry, 
 make any alienation (/). 
 
 A person who has merely a right of action, 
 orof entry, or acontingent remainder, or other 
 future or executory interest, whic i does 
 not give a vested estate, should cautiously 
 avoid levying this species of fine (?n), unless 
 he means to extinguish his interest, for as 
 rights of action, &c. cannot be transferred^ 
 the conusee in the fine cannot derive any 
 advantage from the fine. 
 
 On the other hand, strangers to the fine, 
 that is, persons not parties to it, may avail 
 themselves of the fine, to preclude the title 
 of the conusor in the fine : and a party will 
 not be allowed in opposition to his own fine 
 to assert a title to the lands [n). — The con- 
 sequence is, the fine enures to the benefit 
 of the persons to whom the right, &c. 
 mi<dit have been released, exactly the same 
 as if the fine had been a release. — Hence the 
 resolution in Buckler's case (o) ; that if the 
 [ 209 ]disseisee levy a fine to a stranger, the dis- 
 seisor shall hold the lands for ever ; for the 
 disseisee, against his own fine, cannot claim 
 
 m Perk. 3. 05, 65,80. 157. Coodright v. Forrester, 8 
 
 Litt 8. 347. l^a^t- 5'^-' 1 '^'•^""t- •^^'^• 
 
 Co. Litt. 48 b. 214 a, 2GG a. {m) Sl.ep. T. 14. 
 
 She.). Touchst. :J-25 ; iVeol^ v. Lower, Polexf. o4. 
 
 tro C;ii.:}()4;ll Mod. 128. {u)FAlwards v. Rogers, 
 
 1 Burr. U3; 8 VesB. J. 282. Sir W. Jones, 456. 
 
 (o) 2 Co. 56 a.
 
 OF FINES. 210 
 
 the land, and the conusee cannot enter, and 
 the right which the conusor had cannot be 
 transferred to him, but by the fine the 
 right is extinct, whereof the disseisor shall 
 take advantage. 
 
 In March, 10-5, it is reported in a short 
 note, that this point was called in question, 
 and de^^ed to be law. Tlie decision in Moor's 
 case {p) is agreeable to the resolution in 
 Buckler^ s case, and the weight of authorities 
 supports the resolution. And although in 
 Vick V. Edwards {q), Lord Talbot seems to 
 have entertained an opinion, that trustees 
 who had a contingent remainder, might 
 transfer that remainder, and make a good 
 title to the same by the operation of a fine ; 
 that opinion does not appear to have been 
 well considered, or to be reconcileable with 
 the established authorities (r). 
 
 A fine sur concessit for years, or a demise 
 by indenture for years, will not extinguish 
 the right. — It will merely bind the estate 
 when it shall vest [s). 
 
 It follows, that in all cases in which it is 
 an object to preserve the contingent interest, [ 210 ] 
 or the right, and at the same time to bind 
 the contingent interest, when it shall vest, or 
 the right when restored, resort should be 
 had to a fine sur concessit for years, or to 
 
 (p) 21 Roll's Rep. 311. (r) Infra, 302. 
 
 Palm. .'ji-5. M Weak v. Lower, Pol- 
 
 ( 9) 3 P. Will. 372. lexf. 54.
 
 211 ON FINES. 
 
 a demise by indenture for years, as the 
 only effectual means of attaining the object. 
 As often as a contingent interest in tail, or 
 right in tail is to be bound, a fine sur conces- 
 sit with proclamations will be necessary, 
 with reference to the issue in tail. 
 
 In extinguishing the right, &c. a fine 
 sur conuzance de droit tantuw^ or a fine sur 
 grant et render, or a fine sur concessit in 
 fee, will have the same operation as a fine 
 sur conuzance de droit come ceo, S{c. 
 
 Secondly, A fine sur grant et render is now 
 nearly obsolete in practice. — It consists of 
 two parts — 
 
 1st, Of a grant ; 
 
 2d, Of a render ; 
 And has the like operation as a feoffment 
 and re-enfeoffment. 
 
 Hence if a man seised in fee, ex parte ma- 
 ternd, grant to A. and his heirs (f), who ren- 
 ders the same lands to the original conusor 
 and his heirs, the estate taken under the ren- 
 der will be descendible to the heirs, ex parte 
 paternd, because the conusee in the render is 
 [ 139 ]the first purchaser of that estate. He takes 
 the same by a conveyance at the common 
 law, and not under an use arising from his 
 former ownership. 
 
 By the rules of the common law, a man 
 cannot grant to himself, or to his wife, 
 
 CO Dyer, 237, b. Price v. Langford, 1 Salk. 337.
 
 ON FINES. 212 
 
 (who is considered as part of himself,) nor 
 can he grant to a stranger, reserving to 
 himself a particular estate. 
 
 For this reason, prior to the statute of 
 uses, settlements were made by feoffment 
 and re-enfeoffment, or by fine sur grant et 
 render, or by demise and re-demise. Since 
 that statute, which enables the party to 
 raise an use from the seisin of the conusee, 
 to be executed into estate by the statute, 
 these doublefines,&c. have fallen intodisuse. 
 
 And there are many purposes to be accom- 
 plished by a conveyance, or a fine, to uses, 
 which are not to be effected by a feoffment 
 and re-enfeoffment, or a fine, sur grant et 
 render. — As the re-enfeoffment, and the ren- 
 der in the fine, are assurances at the com- 
 mon law, and the grantees are seised by the 
 rules of that law, no powers of leasing, join- 
 turing, &c. shifting or springing uses, can 
 be annexed to their estates, as far they are 
 legal estates at the common law ; while such 
 powers, &c. may be raised by a declaration 
 of the uses of the conveyance or fine. 
 
 It is true, that as the conusees on the 
 render are seised by the rules of the common 
 law, uses might be declared of their seisin ; 
 but this would be to do by circuity and by [ 212 ] 
 two assurances, that which may be accom- 
 plished with equal effect, by one assurance. 
 
 Besides, a conveyance to uses is attended
 
 213 ON FINES. 
 
 with less expence than a conveyance and 
 re-convevance. Hence the preference i>:iven, 
 in modern practice, to conveyances to uses. 
 
 The points which have arisen on this 
 double fine are noticed by Mr. Cruise in his 
 Essay on Fines. As this fine has fallen into 
 disuse, the learning on the subject is become 
 rather a matter of curiosity than of utility. 
 
 Thirdly. A fine sur conuzance de droit tan- 
 turn, professes to give, or transfer, only the 
 right or estate which is in the conusor. It 
 asserts no positive right. It is generally 
 used to pass a reversionary interest, or to 
 surrender the life-estate of a tenant for life. 
 
 It seems also to be a proper fine to be 
 levied by a person, who has an estate for 
 life, with a remote estate of inheritance, and 
 wishes to convey both estates, so as to avoid 
 the forfeiture of the estate for life. As each 
 of these objects may be attained l^y the fine 
 sur concessit, the fine sur conuzance de droit 
 tantum is now very rarely levied. 
 
 Uses may be declared of a seisin transfer- 
 ed by this fine, when it passes a seisin. 
 [ 213 ] Fourthly . A fine sur concessit may be either 
 for years, for life, in tail, or in fee (w). In 
 one case {v) it was admitted that it may be 
 by the general words " All and whatsoever 
 else the conusor hath in the premises." 
 
 («) Dmmmond w. Ludlow, (»') Pigoltv.EarlofSalis' 
 
 2 Tauut. fc4, hury, 2 Mod. 109.
 
 ON FINES. 213 
 
 In a late case, the court of Common Pleas 
 \vould not permit a fine in these general 
 terms to be passed [xa). The object of the 
 fine in the last-mentioned instance was to 
 embrace lands held for life, and also lands 
 held in fee. 
 
 The fine sur concessit is in frequent use, 
 for the purpose of conveying the estates of 
 married women who are tenants for life, or 
 for creating ter^ns for years, which are to be 
 binding, by way of estoppel, on contingent, 
 or executory interests. 
 
 Fines are also distinguished as of two sorts. 
 
 1st, Fines at the common law. 
 
 2d, Fines with proclamations. 
 
 It rarely happens that a fine is levied with- 
 out proclamations. When a fine is so levied, 
 it cannot be used either as a bar to the issue 
 of tenant in tail, or as a bar by non-claim. 
 
 On the other hand, a fine without pro- 
 clamations, operating merely and simply as 
 a conveyance, has the same effect as a fine 
 with proclamations. 
 
 And a fine so circumstanced will also 
 create a discontinuance, when levied by a 
 tenant of an estate-tail in possession [x). 
 No actual entry is necessary to avoid this 
 fine [y). 
 
 [ic) Seymour v. Barker, 2 [y] Jenkins v. Prkhard, 2 
 
 Taunt. 198. AVils. 4:"). 
 
 [x] Hunt V, Bourne, 1 
 Salk. 339. 
 
 VOL, I. O
 
 ON FINES. 
 
 In short an actual entry is now necessary 
 [214 ]only in the single instance of a fine with 
 proclamations. 
 
 Fines with proclamations, are fines at the 
 common law, with the addition only of pro- 
 clamations made, for the sake of notoriety, 
 in pursuance of several statutes (z). 
 
 Two objects are to be attained by the 
 proclamations. 
 
 First. To protect, by reason of non-claim 
 on the fine, a defective title from dormant 
 claims. 
 
 Second/i/. To bar the issue in tail when 
 the fine is levied by tenant in tail. 
 
 The general objects for which fines are 
 levied are : 
 
 1st. As a conveyance by married women. 
 
 2d. As a conveyance by issue in tail. 
 
 3d. To gain a title, or confirm one, by 
 non-claim. 
 
 First. A married woman cannot conve}^ 
 her freehold, or inheritance, so as to bind 
 herself or her heirs without some assurance 
 of record, as a fine or common recovery : 
 and except in those instances in which a re- 
 covery is to be suft'ered for some other pur- 
 pose, as to bar an estate-tail with remainder 
 over, ^c. a fine is generally levied by the 
 [ ^15 ] husband and wife, when they are to alien her 
 freehold or inheritance. In no other instance 
 
 {z) 4 Hen. Vll. c. 24. 32 Hen. VII. c. 36.
 
 OF FINES. 215-216 
 
 is a fine necessary by the common law, 
 merely and simply as a conveyance. 
 
 The line levied for the pnrpose of being 
 a conveyance, may be either with or without 
 proclamations ; for the proclamations are 
 not necessary when the sole object of the 
 fine is to pass the estate of the wife. — For the 
 security of the title, and to obtain the pro- 
 tection of thestatuteof non-claim, it isalways 
 advisable to have the fine proclaimed. 
 
 The fine is equally necessary, whether the 
 wife has an estate for life only, or an estate 
 of inheritance. 
 
 But no fine is necessary when the wife 
 has merely an authority not coupled with 
 an interest, or when a power of appointment 
 is given to a married woman, to be exercised 
 notwithstanding her coverture, or which, 
 from the nature of tiie power, is to be ex- 
 ercised during the coverture. In Burnaby 
 v. Griffin, [a) Lord Chancellor Loughborough 
 decided, that a woman who hada separate 
 estate, by way of trust, which gave her the 
 equitable ownership of the freehold, was 
 competent to transfer the same without a 
 fine. 
 
 Secondly. In consequence of the statuter 216] 
 de donis, which restrained alienations by 
 tenant in tail, and declared, ^^Ltsijinis super 
 *' hujus modi tenementum in posterum levetur, 
 
 (a) 3 Ves.jun.26G. 
 Q 2
 
 217 ON FINES. 
 
 '* ipso jure sit nullus" tenant in tail was in- 
 capacitated from alienating intailed lands, 
 otherwise than by means of a feigned reco- 
 covery, till the statutes of 4 Hen. VII. and 
 32 Hen. VIII. were passed, and enabled 
 him to alien the intailed lands by a fine 
 with proclamations. 
 
 The statute of the 4 Hen. VII. which is 
 the statute of non-claim on fines, enacted 
 that, the proclamations so made as therein 
 mentioned, the said fine should be final, and 
 conclude as well privies as strangers, except 
 women covert, other than parties to the said 
 fine, every person then being within the age 
 of twenty-one years, in prison or out of this 
 realm, or not of whole mind at the time 
 of such fine levied, not parties to such 
 fine. 
 
 And in the 19 Hen. VIII. {b), the majo- 
 rity of the judges were of opinion, that a 
 fine levied by tenant in tail, according to 
 the statute of Hen. VII., was a good bar to 
 his issue. Some of the judges, however, 
 argued that the issue were not barred by the 
 [ 217 ] fiiie of their ancestor, not being privy to him, 
 but claiming the estate immediately from 
 the donor per formam doni. 
 
 To obviate the doubt entertained of the 
 operation of the statute of 4 Hen. VII., the 
 
 [b) Br. Abr. Finel; Dyer, 2. b; 4 Reeves, 334; Harg. 
 Co. Litt. 121 a. n. I.
 
 ON FINES. 218 
 
 statute of 32 Hen. VIII. was passed. — It 
 
 expressly recites that doubts had arisen 
 
 respecting the statute 4 Hen. VII. as to 
 
 barring the issue in tail, and enacts, *' That 
 
 " all and sinoular fines, as well heretofore 
 
 '* levied as hereafter to be levied with pro- 
 
 " clamations according to the statute, by 
 
 *^ any person or persons of full age, of one 
 
 ** and twenty years, of any manors, &c. 
 
 ** before the time of the said fine levied, in 
 
 " any wise intailed to the person or persons 
 
 ** so levying the said fine, or to any of the 
 
 " ancestors of the same person or persons, 
 
 ** in possession, reversion, remainder, or in 
 
 " use, shall be immediately after the same 
 
 ** line levied, ingrossed, and proclamations 
 
 *' made, adjudged, accepted, deemed, and 
 
 " taken, to all intents and purposes, a suf- 
 
 '' ficient bar and discharge for ever against 
 
 " the said person and persons and their 
 
 '' heirs, claiming the said lands, tenements, 
 
 " hereditaments, or any parcel thereof, only 
 
 " by force of such intail, and against all 
 
 *' other persons claiming the same or any 
 
 *' parcel thereof, only to their use, or to the 
 
 " use of any manner of heir of the bodies [ 218 ] 
 
 '■' of them, any ambiguity, doubt, or con- 
 
 '' trariety of opinion, risen or grown upon 
 
 " the said statute to the contrary notwith- 
 
 '' standing." 
 
 It is clear, under this act, that tenant in
 
 219 ON FINES. 
 
 tail of a vested estate, either in possession, 
 remainder (c), or reversion, may, by a fine 
 with proclamations, alien that estate so as to 
 bind his issne. 
 
 So if he has merely a contingent or exe- 
 cutory interest in tail, he may, by levying 
 a fine with proclamations, bar his issue in 
 tail, or, according to the nature of the as- 
 surance, bind them by estoppel. — So he 
 may bar his issue, though the estate-tail be 
 discontinued, or devested (d), or previously 
 conveyed (e). 
 
 In short, the words of this statute are so 
 strong and comprehensive, that the issue in 
 tail can never claim a ri2;ht to succeed to 
 lands intailed, in opposition to the fine of 
 their ancestor or parent who is within the 
 line of the intail, even though the fine be 
 levied, while the person levying the same 
 [ 219 ]has merely a hope, or chance of succession, 
 as is the situation of the issue in tail in the 
 life-time of his ancestor (/). 
 
 And even as between collaterals (g), the 
 fine will be a bar, if levied by the person on 
 whom, or on whose issue, the intail, or the 
 right to the intail, afterwards descends. 
 
 (c) Shep. T. 25 ; (» Jenk. Archer's case, 3 Co. 90. a. 
 
 Cint. OC' ; Ciisti of Fines, 3 [e) Coodrii^ht v. Mead, 3 
 
 Co. 8», Co. Lilt. 372. ii. Burr. 170:3. ' 
 
 [d Zouc/i V. Bumjield, 3 {J") Arrlier''s case, 3 Co, 
 
 Co. i)'X a. 90 ; 1 1 oh. 333. 
 
 Jenk. Cent. 275. (g) Co. Lilt. 372. Hob. 258.
 
 ON FINES. :22() 
 
 Thus if A. be tenant in tail, and has issue 
 
 B, C. and D., and B. levies a nne with pro- 
 clamations in the life-time of his father ; 
 this fine will, at all events, bar his own issue ; 
 and, if he or his issue should survive the 
 father, it will also bar C. and D. and their 
 issue. But if B. should die without issue 
 inheritable to the intail, and in the life-time 
 of his father, his fnie will not be any bar to 
 
 C. or D. or their issue. — So if C. the second 
 son should levy a fine in the life-time of his 
 elder brother, though this fine would have 
 no effect as against B. or his issue, whether 
 his father was living or dead ; yet, if C. or 
 his issue should survive A., and also B. and 
 his issue, the fine would be a bar to D. and 
 his issue. So that the bar of the fine, as 
 between collaterals, depends on the fact, 
 that the person levying the fine becomes 
 the person on whom the intail, if existing, 
 would have devolved {h). 
 
 Also a fine levied by one of two parents, [220 
 when the intail is to both parents, will bar 
 the intail (i). In this particular a fine and 
 a recovery have a different application {j). 
 The operation of the fine has its peculiarity 
 by force of the statutes of H. VII. & H. 
 
 (h) Duncombe v. Wingjield, (i) BemimonVs case, 9 Co, 
 Hob. 254. 138. 
 
 Mac William's case. Hob. Baker v. Willis, Cro. Car, 
 332. 476. 
 
 {j) Supra, 143.
 
 220 ON FINES. 
 
 VIII. of non-claim, and the construction 
 which that statute has receiv^ecl. 
 
 In this respect there is a departure from 
 the rules of the common law, by which the 
 heirs or the issue could never be barred or 
 bound as to any share, except by the act of 
 alienation of the parent or ancestor who 
 was the owner of that share. 
 
 This construction of the statute H. VII. 
 and H. VIII. gave rise to the decisions to be 
 found in Beaumont's case, 9 Coke In. which 
 was reviewed in Baker v. Willis, Croke Ch. 
 and which led to some of the most abstruse 
 points, and some of the first difficulties in 
 the History of Titles. 
 
 For though the fine of husband will, 
 under these circumstances bar the issue, 
 it will not bar the wife on death of hus- 
 band. The wife will be entitled to the 
 whole, if husband and wife were tenants 
 by intireties, and to a moiety if they were 
 joint-tenants ; and yet the wife will have an 
 estate which cannot descend to the heirs in 
 tail as such ; still, however, her estate retains 
 those qualities of the ancient entail, and it 
 should seem she is qualified to sufter a 
 recovery, and by that means bar those who 
 Jiave interests in reversion or remainder, 
 expectant on the gift of the estate-tail to 
 her and her husband. 
 In point of law the husband by force of
 
 GN FINES. 220 
 
 statute precludes the heirs in tail as such 
 from taking under the gift, but he leaves 
 the title of the wife in all other respects in 
 the same condition as if this enactment 
 had not given this extraordinary operation 
 to the fine of the husband. 
 
 A fine levied by the issue of tenant in tail 
 will have no effect, unless they are the issue 
 inheritable to the intail. Thus, when the 
 intail is to the male or female descendants, 
 a fine levied by the issue of the other sex, 
 will not be of avail, to bar the intail (k). 
 
 And a fine levied by a daughter, or by an 
 uncle, &c. being heir pro tempore (I), and 
 whose title, as heir, is afterwards defeated 
 by the birth of a nearer heir to the intail, 
 will not bar the more immediate heir, or his 
 issue. 
 
 From these observations it will be col- 
 lected, there are several instances, in which 
 a fine will be effectual to bar the issue in 
 tail, although under similar circumstances 
 a common recovery would not bar them. 
 Resort should for this purpose be had to the 
 chapter on Common Recoveries, as to 
 owners of contingent, or executory, and 
 future interests in tail, &c. 
 
 To these observations it may be added, 
 that a fine levied by tenant in tail, after pos- 
 sibility of issue extinct^ is considered as a-^ 
 
 (A) Shep. T. 20. (/) Hob. 333.
 
 ON FINES. 
 
 [221 Jfiiie levied by tenent for life, and will incur 
 ^forfeiture of his estate [m). 
 
 Also when there is an estate-tail, of the 
 gift of the crown, for services performed, and 
 the reversion or remainder is in the crown, 
 the issue in tail is protected from the bar of 
 the fine of their ancestor (w). 
 
 And when a woman has an estate-tail of 
 the provision of her husband, or any of his 
 ancestors, and under the circumstances 
 already noticed in discussing the learning 
 on recoveries (o), as it applies to this subject, 
 a fine with proclamations, levied by the 
 woman alone, will not be a bar to the heir 
 in tail, or even a discontinuance of the 
 estate-tail, or, as a consequence, of the 
 reversion or remainder expectant on that 
 estate. 
 
 Thirdly, By the stat. 4 Hen. VII. c. 24, 
 it is enacted that fines shall be proclaimed 
 in manner therein mentioned. And by the 
 2d section of that act, it is enacted, '^ that 
 '* the proclamations so had or made should 
 '* be final, &c. with a saving to every per- 
 " son and persons, and to their heirs, other 
 ** than the parties to the said fine, of such 
 " light, title, and interest, as they have to 
 " or in the lands, tenements, or other here- 
 
 (m) Co. l.ilt. 28. a. (o) Supra, p. 19. 
 
 (h) 32H<.i.VllI. C.3C, S.4. 
 Go. Litt. 372.
 
 ON FINES. 222 
 
 '' ditaments, at the time of such fine en- 
 
 " grossed ; so that they pursue their title, 
 
 " claim, or interest, by way of action or 
 
 *' lawful entry within five years next after 
 
 " the same proclamations had and made," 
 
 with a further isaving " to all other persons, 
 
 '* of such action, right, title, claim, and 
 
 " interest, in or to the said lands, tene- 
 
 " ments, or other hereditaments, as shall 
 
 ^^ Jirst grow, rems'n, or descend, or come to 
 
 "them, after the said fine engrossed, and [222] 
 
 ** proclamations made, by force of any gift 
 
 " in tail, or by any other cause or matter, 
 
 " had and made before the said fine levied, 
 
 " so that they take their action, or pursue 
 
 " their said right and title, according to 
 
 " law, within Jive years, next after such 
 
 *' action, right, claim, title, or interest 
 
 " to them accrued, descended, fallen, or 
 
 " come." 
 
 And by the statute of 4 Anne, c. l6, s. 16, 
 it is enacted, " that no claim or entry to be 
 " made of or upon any lands, tenements, or 
 *' hereditaments, shall be of any force or 
 " effect to avoid any fine levied, or to be 
 *' levied with proclamations according to 
 '* the form of the statute in that case made 
 " and provided, in the court of Common 
 " Pleas, or in the courts of sessions in any 
 " of the counties palatine, or in the courts 
 *' of grand sessions in Wales, of any lands,
 
 223 ON FINES. 
 
 '' tenements, or hereditaments, or shall be a 
 " sufficient entry or claim within the sta- 
 " tute of limitations, unless upon such 
 '■' entry or claim an action shall be com- 
 *' menced within one year next after the 
 '' making of such entry or claim, and pro- 
 *' secuted with effect." 
 
 That a fine may operate to give title by 
 nonclaim, it is necessary that an estate of 
 freehold should be in some or one of the 
 parties to the fine, at the time of levying 
 the same. Unless the freehold be in one of 
 [ 223 ]the parties at the time of levying the fine, 
 the fine, as to the purpose of barring by 
 nonclaim, seems to be actually void, or 
 voidable by the plea that ^' partes finis nihil 
 habuerunt tempore finis levati {p).^' Hence 
 a fine levied by a person who has an estate 
 at will or a term for years, or other like 
 chattel interest, as an estate by statute 
 staple, &c., without first acquiring the 
 freehold by means of a feoffment, will be 
 meiely void, or at least voidable [q). 
 
 So a fine levied covinously by a tenant 
 for years, who continues the possession and 
 pays rent, will be void, notwithstanding he 
 
 \p) a Wils. 249; Dvtr [q] Bac. Abr. Remainder 
 •215. " G. 
 
 Smith V. Pavkhurst, 3 Atl<. Smith v. Packhurst, 3 Atk. 
 
 141. 141. 
 
 Jiowe V. Potvcr, 2 Ni*w 
 ;U',., 1.
 
 ON FINES. 224 
 
 lias previously made a feoffment (r). This 
 objection against the fine is grounded on 
 the rule of the common law, which sup- 
 presses and counteracts all fraud. 
 
 So a fine levied by a cestui que trust, will 
 be void, as against all persons who have a 
 title to the leoal estate, unless the lej^al 
 estate of freehold be acquired before the 
 fine is levied ; for a fine cannot operate 
 against a legal estate, unless it has legal 
 qualities and legal efficiency, and an equit- 
 able freehold will not support the legal 
 operation of a fine( s). 
 
 But it seems, as between cestuis que trust 
 a title may be gained by non-claim, by 
 means of a fine with proclamations, under 
 the like circumstances, as it might be gained 
 at law, as between the owners of the legal 
 estate. And a fine with proclamations by a 
 person in possession, as owner of an equity 
 of redemption, will, it should seem, bar 
 those who might dispute the title to this 
 
 equity (0- 
 
 The general rule is that a fine will not 
 operate as a bar by non-claim, unless the 
 estate to be barred, be previously devested, 
 or be devested by the operation of the fine [224 ] 
 
 (r) Fermor's case, 3 Co. [s] 27 Hen. VIII. 20. Bro. 
 77. Abr. Fine, pi. 4. 
 
 Bac. Abr. Remainder G, {t) 2 Freeman, 21.
 
 224 ON FINES. 
 
 (m). Hence the necessity of that which has 
 been called adverse possession, in order that 
 a fine may operate by non-claim. 
 
 It is agreed, that if one pretending title 
 to land, entereth and disseiseth the rightful 
 owner, and afterwards with an intent to 
 bind the disseisee, he levieth a fine with 
 proclamations, this fine may operate by 
 non-claim [v). 
 
 So if a man enter under a devise which is 
 void, he by his entry gaineth the freehold by 
 abatement, and a fine levied by him with 
 proclamations may be used as a bar by non- 
 claim. Or if the heir at law enter notwith- 
 standing a devise in favor of some other perr 
 son, and levy a fine with proclamations, non- 
 claim on this fine will run with effect against 
 the devisee [w). 
 
 So when a bargain and sale is made, and 
 forwantofinrolment, misnomer, or the like, 
 it is void, but the bargainee enters, and 
 levies a fine with proclamations, under these 
 circumstances, as the intended bargainee 
 gaineth a freehold by his entry, this fine 
 may become a bar to the title of the bar- 
 gainor (;r). 
 
 The like observation is applicable to all 
 
 (m) Podger's case, 9 Co. {w) Hulm v. Hey lock, Cro. 
 
 104. Car. 200. 
 
 Suffyn's case, 5 Co. 123. [x] Croft v. Howell, Plow. 
 
 (w) 3 Co. 79, a & b. 5.3G.
 
 ON FINES. 
 
 other conveyances which import to pass the[ 225 ] 
 freehold, and which are void for want of 
 some ceremony attending them ; and the 
 intended alienee enters, by force of such 
 defective conveyance, and gains the freehold 
 by disseisin, and afterwards levies a fine with 
 proclamations. 
 
 So if tenant for life, having the imme- 
 diate freehold, levy a fine with proclama- 
 tions, and such fine imports to be a grant 
 of the fee, this fine may be used as a bar by 
 non-claim (3/). 
 
 So if any person enter claiming the free- 
 hold ; or enter on a vacant possession claim- 
 in«[ the freehold ; or enter under a void con- 
 veyance, purporting to pass the freehold ; 
 and thus acquire a freehold, either by 
 abatement, intrusion, or disseisin ; in all 
 these cases a fine levied by that person after 
 his entry, will be a good foundation for the 
 commencement of a title by non-claim. A 
 mere instantaneous seisin, as if a person 
 steps on the land and withdraws, leaving 
 the rightful owner in possession, will not 
 suffice {z). 
 
 But a person who has a f?ie?'e naked posses- 
 sion, or who dispossesses a tenant for years, 
 and claims the term, or any other chattel 
 
 (y) Laund v. Tucker, Cro, (2) Per Lord Hardwicke, in 
 
 Eliz. 254 ; 3 Co. 78 b ; Good- Townshend v. Ash, 3 Atk, 
 
 right V. Forrester, 8 East, 339. 
 
 552. 1 Taunt. 578. .j
 
 ON FINES. 
 
 interest, or who merely receives the rertt of 
 [226 ]iny tenant (a), while he continues niy tenant 
 {b), does not gain any freehold which will be 
 a foundation for a iine. On the latter point 
 the law is, that the possession of the tenant 
 is the possession of him in remainder or re- 
 version (c). 
 
 On this account it is frequently prudent 
 to oust the tenant, and, in some cases, even 
 to make a feoffment preparatory to levying 
 a fine (d). 
 
 So if A. be tenant for life, remainder to 
 B. for life, remainder to C. in fee. A fine 
 by B. will not devest the estate of A. (e) It 
 may confirm, not defeat, the particular estate. 
 
 Twisfs case (/") depends on this distinc- 
 tion, and it is questioned in 2 New Rep. 37, 
 withoutsufficientconsideration. The ground 
 of Twisfs case is, that the tenant for life and 
 remainder-man have portions of one estate, 
 and are connected in privity ; and unless 
 the fine of the remainder-man barred the 
 title of dower, the dowress might establish 
 her title of dower against the tenant for life, 
 and as a consequence against the remain- 
 der-man. 
 
 («) Co. Litt. 323, 324. [d] Litt. s. Gil. 
 
 [b] Torvnsend v. Jsh, 3 {e) Co. Litt. 251 b ; Bray- 
 Atk. 3o(>. broo/ce\s case, 1 Leon, 40. 
 
 Umith on the dcm. of Dor- line. Abr. Remainder, 832. 
 mer v. Fac/.hurst, 3 Atk. 141. {/) Shep. Touclist. 27. 
 
 (c) Co. Litt. 24^ fi, 324. 
 Plow. Coiu. 19 L
 
 ON FINES, £26 
 
 And although there be an estate to A. 
 for years, remainder to B. for life, remain- 
 der to C. in tail, &c. a fine levied by B* 
 while A. is in possession, will not devest the 
 remainders, so as to bar them (^). The ground 
 of this case is that the continuance of A. in 
 possession is, a continual claim by C, or ra- 
 ther the possession of A. is a continuance of 
 the seisin to C. 
 
 Sometimes the fine, instead of operating as 
 a bar by non-claim, will operate in confirm- 
 ation of the title of those v/ho are connected 
 in privity of estate^ with the person by whom 
 the fine is levied. Therefore, when A. is 
 tenant for life, with remainder to B. for life, 
 with remainder to C. in tail ; and C. during 
 the life of A. and while A. is in possession, 
 levies a fine, and, on A.'s death, enters and 
 continues in possession for seven years, be- 
 fore any entry is made by B., this fine will 
 not operate as a bar to B. {h), nor is it ne- 
 cessary for him to make any entry to avoid 
 it [i). 
 
 So if a man has the fee subject to an 
 executory devise, and levies a fine, this fine 
 does not devest the interest of the person 
 intitled under the limitation over. It con- 
 
 [g] 2 New Rep. 20, cites Focus v. Salisbury, Hard. 
 
 Knight V. Grenville, Skin. 262. 400. 
 
 (A) Carhampton v. Car- Rowe v. Power, 2 New 
 
 hampton, 1 Irish Term Rep. Rep. 1. 
 
 567. (i) lb. and 7 Term Rep. 435. 
 
 Co. Litt. 298, a. 
 
 VOL. I. R
 
 227 ON FINES. 
 
 firms that interest as part of the same seisin 
 or ownership, for the fee and the executory 
 interest are parts only of the same fee- 
 simple. 
 
 But a fine levied after the fee had been 
 defeated by the limitation over, would, if 
 levied by the first devisee or his heir, be a 
 fine grounded on an adverse title, and might 
 operate with effect ; especially if a feoff- 
 ment should be made after the determina- 
 tion of the estate, so as clearly to acquire 
 the seisin under a new title ; for without a 
 feoffment, it may be doubted whether the 
 continuance of possession by sufferance 
 would be a disseisin to the rightful owner ; 
 for after the determination of an estate of 
 freehold, no fee is acquired by continuance 
 of possession, unless there be a feoffment ; 
 and even an heir entering as such has been 
 deemed a mere trespasser. 
 [227] The grounds of the case of Carhampton 
 v. Carhcimpton, a case replete with valuable 
 learning, are. 
 
 First. In order to render a fine with non- 
 claim a bar to the right of a stranger, the 
 estate of that stranger must be devested and 
 put to a riglit. 
 
 Secondly. Though the latter part of the 
 position is disputed, when understood in 
 tlie sense of depriving the party, affected by 
 the fine, of recovering his estate by a writ of
 
 ON FINES. 228 
 
 entry, and of confining him merel}^ to an 
 action, yet it is agreed, tliat the estate or 
 interest of the person whose title is meant 
 to be barred, must be so far affected, that 
 he must be deprived of the possession, 
 either before the fine is levied, or by the 
 operation of the fine itself, and a possession 
 inconsistent with his former rio;ht must be 
 acquired f/cj. 
 
 Thirdly. The parties yNQYe not, quoad their 
 estates, mere strangers to each other. They 
 had such privity of estate as enabled them 
 to take benefit, each from the situation and 
 acts of the other. And it was said, that if the 
 possession of the first tenant for life had been 
 devested by the operation of the fine, either 
 standing singly, or connected with any acts 
 preceding the fine, and he had within five 
 years made an actual entry, the possession 
 of the second tenant for life would have 
 been as completely restored, as if he had [228] 
 entered himself, and the bar arisino- from 
 the non-claim would, as to B., have been as 
 completely prevented. So also as the pos- 
 session of A. was not affected, nor he put to 
 his actual entry, to gain what he had not 
 lost, the continuance of the possession of A. 
 was, as to the preservation of the right of 
 B. a continuance of the right of B. And 
 lastly, as the circumstances at the time of 
 
 [k] Butler's Co. Litt. 3-32, b, n. 1. 
 R 2
 
 228 ON FINES. 
 
 levying the fine, were such as prevented him 
 from having the capacity of affecting B/s 
 right of possession, a possession gained some 
 years afterwards by C. would not give it an 
 operation of which it Avas not originally 
 capable ; for the possession must be dis- 
 placed as soon as the line is completed, or 
 not at all. 
 
 From the principle of this case, and also 
 from 1 Cruise, 253, it is inferred, that if 
 tenant in tail levy a fine, which operates 
 merely to pass a determinable fee, and not 
 to devest the remainder or reversion ; in 
 short, whenever the fine operates as a con- 
 veyance, and not by discontinuance ; such 
 fine never can be used as a bar by non- 
 claim against those in remainder or rever- 
 sion. 
 
 But if a disseisor make a lease for life, and 
 afterwards levy a fine with proclamations 
 to a stranger, this fine with non-claim will 
 bar the disseisee, and consequently give 
 stability to the reversion of the disseisor, and, 
 as a consequence, to the estate of the lessee 
 depending on the same title (/). 
 
 The principle of this case is the same as 
 that of Ccirhampton v. Carhawpton ; it goes, 
 however, one step further, namely, the fine, 
 
 {/) Jenk. Centuries, 254. Co. Litt. 2»8. a.
 
 ON FINES. 229 
 
 instead of barring the prior estate, con- 
 nected in privity with the estate of the 
 person who levies the fine, will operate, by 
 way of non-claim, against those who have 
 adverse claims, and thus strengthen the title 
 of the person in possession, as well as of 
 the person who levies the fine. 
 
 Twist's case [m) belongs to this head, and 
 is to be accounted for and supported on 
 these principles. As dower is merely a right 
 or title, a fine levied by a person claiming 
 under the husband, either as heir, or as a 
 purchaser or assignee, will be a bar to the 
 title of dower. 
 
 And although the fine be levied by pro- 
 clamation, by the husband to a purchaser 
 or assignee, such fine may eventually, by a 
 non-claim after his death, become a bar to 
 the wife ; and yet such fine, at the time it 
 was levied, did not devest the title of dower, 
 nor was the possession of the purchaser or 
 assignee, in strictness, inconsistent with the 
 title of the wife to dower (n). 
 
 It would have been more consistent with 
 principle to have decided that the fine of 
 the husband should not have operated as a 
 bar to the wife, thus rendering it necessary 
 in order to bar the wife, that there should 
 
 [m] Shep. Touch. 27. Su- Damport and wife v. 
 
 pra 226. Wright, Dver 224 a, Moor 
 
 (h) Dyer 72 b. pi. 3 ; 2 Co. 53. 
 93; IOC©. 49.
 
 229 ON FINES. 
 
 have been a fine after her right of dower 
 was complete by the death of her husband. 
 
 If a fine had been levied by a person who 
 disseised the husband, then it would have 
 been reasonable that the wife should be 
 barred by the fine with proclamation or 
 non-claim during five years after the death 
 of her husband, since her title was disturbed 
 by the disseisin of her husband. While on 
 a conveyance by husband, the purchaser 
 takes the seisin subject to the wife's title of 
 dower, and his seisin is never, as it is under 
 a disseisin, adverse to the title of dower of 
 the wife. 
 
 The necessity of adverse possession is also 
 illustrated by the case oi Goodrighf ex dem. 
 Hare v. Board and Jones [a). 
 
 In that case the lands were demised to a 
 tenant for twenty-one years, at a yearly rent ; 
 and for securing an annuity, A. the rever- 
 sioner demised the same lands to B. for 
 ninety-nine years, and, in pursuance of an 
 agreement for that purpose, the lands were 
 re-demised to A. by B. for ninety-eight years 
 and eleven months, and afterwards A. sold 
 the lands, and conveyed them by lease and 
 release to Jones in fee, without any notice 
 of the annuity ; and Jones being in posses- 
 sion, (for so the case is stated, but query, 
 
 (o) 1 Cruise, 249. See also Com. Di^. Feoffment, B. 7. 
 Jones's Rep. 457. 3 Term Kep. 102.
 
 OF FINES. 
 
 whether he had more than the receipt of the[ 230 j 
 rents, and from the judgment, it may be 
 collected that he was merely in receipt of 
 the rents collected,) levied a fine with procla- 
 mations, and five years having passed, the 
 question was, whether the fine operated as a 
 bar to the title of B. On the ground that 
 the term of B. was not devested or turned 
 to a right, and that it remained after the 
 fine, just as it did before, and on the resolu- 
 tion in Margaret Podger's case, 9 Co. IO6, a, 
 (which Lord Mansfield treated as a general 
 rule in law, founded in good sense, without 
 any exception,) that no fine or warranty shall 
 bar any estate in possession, reversion, or re- 
 mainder, which is not put to a right, it was 
 decided that the term of B. was not barred. 
 From one part of the judgment delivered 
 by Lord Mansfield, he seems to have consi- 
 dered the case of B. as the case of a title to 
 a rent-charge; but to apply the whole judg- 
 ment to the circumstances of the case, it 
 can be supported only on the grounds that 
 B. could not enter on the lands, the lessee 
 for twenty-one years being in possession ; 
 that the possession of the lessee for twenty- 
 one years was the possession of B., as having 
 the reversion for ninety-nine years ; that at 
 the time of the conveyance to Jones by A., 
 A. had no adverse possession ; and that the [231 ]
 
 231 ON FINES. 
 
 payment of rent to Jones, instead of A. did 
 not devest the estate of B. 
 
 From the rule, which requires an adverse 
 possession, or in other words, that the 
 estate should be displaced, or devested, 
 there are to be deduced the following con- 
 clusions. 
 
 First, a rent-charge, or other collateral 
 interest, or easement, or right, to sue exe- 
 cution under a judgment, cannot be barred 
 by non-claim on a fine (p). Nor can an 
 interesse termini while it remains such (q), in 
 other words, till it gives a present right of 
 entry ; nor a condition (r), till it operates 
 by giving a right of entry ; nor a power, or 
 rather an authority given to executors to sell 
 {s), be barred by non-claim on a fine, since 
 in all these instances there is not any adverse 
 possession. 
 
 In the first case, notwithstanding the fine, 
 the lands are subject to the charge, easement, 
 judgment, &c. and the possession is not 
 inconsistent with the right to receive the 
 charge, easement, or sue the execution, &c. 
 And in the other instances there is not any 
 estate to be devested ; but after an interesse 
 termini confers a right of entry, the posses- 
 
 [p] 5 Rep. 124, a; Shep. (r) Plow. Com. 373. 
 
 T. 22 ; Cruise oa Fines 24(i. [s] Mo. C05. Willis v. 
 
 [q) Saunders v. StanJ'ordy Shorral^ 1 Atk. 474. 
 Cro. Jac. GO. 5 Co. 124.
 
 ON FINES. 
 
 i^ion may be adverse, and non-claim on a fine 
 will run, though the fine be levied before[232 
 there existed a right of possession under the 
 term (0 ; but, even in this case, it is appre- 
 hended, a distinction must be made between 
 a fine by the lessor, and by a stranger : for 
 a fine levied by the lessor, while the interest 
 continues executory, will not run against the 
 lessee ; but if a stranger enters adversely, and 
 ousts the person in possession, and levies a 
 fine with proclamations, this fine will run 
 against the term, from the time at which the 
 right of entry accrues. This seems to be 
 the true ground of distinction between 
 Saffin's case, 5 Co. 123, 6, and Cro. Jac. 60 ; 
 and Focus v. Salisbury ^ Hard. 400: — but this 
 point, or the distinction, cannot be relied 
 on. 
 
 In Sqffin^s case the fine was levied by the 
 reversioner, after the right of entry under 
 the interesse termini commenced ; and in 
 Focus V. Salisbury, the case was decided 
 partly on the ground that the termor was, 
 by express declaration, a trustee for the 
 person who levied the fine. 
 
 In the case of an authority to sell, it is 
 observable, there is not any estate till the 
 authority is exercised. The lands are merely 
 subject to that authority. There cannot 
 
 [t) See Cro. Jac. 60.
 
 233 ON FINES. 
 
 be any adverse possession till the authority 
 is exercised, nor till a right of entry exists 
 under an estate given by the authority. In 
 [ 233 ] the mean time, the possession of the person 
 by whom the fine is levied, is perfectly con- 
 sistent vv^ith the right to exercise the autho- 
 rity. 
 
 On the same ground, and for the same 
 reasons, non-claim on the fine of a trustee 
 will not bar the title of the cestui que trust 
 (u) ; nor will non-claim on the fine of a 
 mortgagor {a) or mortgagee {b) bar the right 
 of the other of them. — But if a cestui que 
 trust enter, and claim to hold adversely, as 
 against his trustee, (and to do this, he ought 
 regularly to make a feoffment before he 
 levies a fine,) this fine, with non-claim, may 
 become a bar at law to the estate of the 
 trustee: and equity would disturb the legal 
 title only so far as some other person was 
 concerned in interest. 
 
 It seems also to be settled, that the fine 
 of one cestui que trust may be a bar to ano- 
 ther of them {v) ; and that as between two 
 persons claiming to be entitled to an equity 
 of redemption, one of them may be barred 
 
 (») Gilb. Ch. 02. (b) 1 Vei)t. 132. 1 Lev. 
 
 J'ocus V. SuUshiiry, Hard. 272. 2 Ves. 482. 
 400. [v] Basket v. Pierce, 1 
 
 (a) Weldon v. J)uke of Veni. 22(i. 
 York, 1 Vern. 132, 2 Verii. Clifford v. Ashley, 1 Ch. 
 
 189. Ca. 208.
 
 ON FINES. 234 
 
 by the fine of the other [w). It is also a 
 general and leading rule, that whenever a 
 trustee is barred by the operation of a fine, 
 then, except in cases of fraud, infancy, &c. 
 (x) the cestui que trust will also be barred : 
 and Lord Redesda/e has laid down the rule to 
 be, whenever a person comes in by a title, 
 opposite to the title to a trust estate, or 
 comes in under the title to the trust estate 
 for a valuable consideration, without fraud 
 or notice of fraud, or of the trust ; a fine and 
 non-claim may be set up as a bar to the 
 claim of a trust {y). 
 
 With respect to equitable titles, there is 
 another distinction, Jirst, where the equity 
 charges the lands only, as is the case, as 
 between a stranger and the cestui que trust, 
 a fine and non-claim is a good bar : secondly, 
 when it charges the person only, in respect 
 of the lands, as in the case between the 
 trustee and the cestui que trust, the fine and 
 non-claim are not a bar (2). 
 
 In short, any right or title of entry, from 
 whatever cause it arises, may be barred by 
 a fine with non-claim ; as a right of entry in 
 trustees for the purpose of raising a sum of 
 money after the birth of a child [a). In 
 
 {10) 2 Fivem. 21. 2 Vern. [z] \ Ch. Ca. 278 ; 2 Atk. 
 
 189. 390. 
 
 [x) AUe.fn V. Sayer, 2 (a) Thomasin v. Mack^ 
 
 Vern. :;^>^. wortA, Carter, 7^. 
 
 [y] Mitford's Pleadings,203.
 
 235 ON FINES. 
 
 that case, it is to be observed, the fine was 
 levied after the right of entry accrued. 
 
 So a fine with proclamations may bar a 
 remedy by action, as the right to bring error 
 to avoid a fine (b). 
 
 It is now to be considered, what persons 
 may be barred by a fine, and non-claim 
 thereon, and the times at which the bar will 
 be complete. 
 
 Generally speaking, all persons who have 
 an absolute estate, and all corporations who 
 have an absolute ownership, conferring an 
 unlimited power of alienation (c), may be 
 barred by non-claim on a fine. In some 
 cases, the bar will be partial, so as to operate 
 only against the owner for the time being, 
 by reason of his own non-claim (d). 
 
 In the first place, it is apprehended, the 
 king (e) cannot be barred by non-claim on 
 a fine. Nor can ecclesiastical corporations^ 
 aggregate or sole, quasi corporations (/'), be 
 barred by non-claim on a fine. But eccle- 
 siastical persons (g), being sole corporations, 
 
 (b) Bartholomew v. Bel- (/) 1 Eliz. c. 19. 
 field, Cro. J. 332. 13 Eliz. c. 10. 
 
 (c) Croft V. Howell, Plow. 1 Jac. 1. c. 3. 
 
 ^)'i6. Magdalen College case, 
 
 (d) 11 Co. 78. b. 11 Co.78. b. 
 
 \e) Co. Litt. 90: 1 Bl. Com. (g) Shep. Touch. 21 ; 
 
 247 ; 3 Inst. 188. Croft v. Howel, Plow. 538.
 
 ON FINES. 
 
 236 
 
 may be barred, in respect of their ownership, 
 by their non-claim, as in thecase of a bishop, 
 parson, or vicar : and each successor will also 
 be barred, unless he avoids the fine within 
 five years after his title accrues (Ji) : also the 
 head of a corporation aggregate of many (i), 
 may be barred by his non-claim on a fine, 
 and by that means the remedy of the cor- 
 poration may be suspended, while he conti- 
 nues the head of the corporation. 
 
 The same rule applies to lands annexed [ 236] 
 to offices for life, and fines levied of such 
 lands. The officer for the time being may 
 be barred by five years non-claim. The 
 non-claim however of one officer will not 
 bar or conclude his successor (^"). 
 
 It follows that no title, depending on 
 non-claim, can ever be good, as against an 
 ecclesiastical corporation, aggregate or sole, 
 if the title depend merely on a fine and non- 
 claim : though in the case of such corpo- 
 ration a good title may be gained, while the 
 particular person, being a sole corporation, 
 continues to represent the corporation ; or 
 the head of a corporation, aggregate of 
 many, by whom there has been five years 
 
 (A) Croft V. Howel, Plow. Magdalen College case, 
 
 538. 11 Co. 78, b. 
 
 (i) Stowel V. Zouch, ibirl. Howlett v. Carpentery ' 
 
 375. b. Ventr. 311. 
 
 (;■] Plowd. 538.
 
 237 <^F FINES. 
 
 non-claim, remains at the head of the cor- 
 poration. 
 
 But a title may, it is submitted, become 
 good under the general statutes of lirnitution ; 
 since in these statutes there is not, either 
 in fact, or in principle, any saving for the 
 successor. The successor is without remedy, 
 unless he can show a seisin within the limited 
 period. 
 
 Secondly. All persons, except infants, 
 persons of unsound mind, women under 
 coverture, persons out of the realm, and 
 persons in prison at the time of the last pro- 
 clamation made^ and also, except persons 
 who have not a present right of entry, are 
 bound to avoid the line within five years 
 after the last proclamation made. 
 
 And persons who are infants, &c. are 
 bound to avoid the fine within five years 
 after their disabilities are removed ; and per- 
 [ 237 ] sons who have not a present right of entry, 
 or claim, are bound to make entry or claim 
 within five years after their right of entry 
 or claim arises; unless they labour under 
 disabilities, and in that case, within five 
 years after their disabilities are removed. 
 And if several persons have severally present 
 rights, as termor for years, and freeholder, 
 lord and copyholder (/.), it has been said the 
 
 [k) Co. Copyh. s. 55 ; Co. 105, b ; Plowd. 374.
 
 ON FINES. 238 
 
 fine will run against each at the same time. 
 But this distinction is now exploded (/). 
 
 When several persons are joint-tenants, 
 co-parceners, or tenants in common, the 
 fine may run as against those who are free 
 from disabilities, and in respect of their 
 shares, although its operation be suspended 
 as against such of them as labour under dis- 
 abilities, and for their shares {m). 
 
 In all cases, when a person claims in 
 opposition to a fine, it becomes necessary 
 to consider at what time his right of entry, 
 &c. commenced, unless that person laboured 
 at the time his right commenced, under 
 one of the disabilities mentioned in the 
 statute. As soon as it shall be ascertained 
 that any such disability existed at the time 
 when the right of entry commenced, the [238] 
 next inquiry should be, at what time the 
 disability ceased. 
 
 In case of persons having immediate 
 rights, the fine begins fo run from the last 
 proclamation on the fine. 
 
 From these observations, several conclu- 
 sions may be drawn, and the observations 
 may be illustrated by their appropriate 
 cases. 
 
 First. No one is bound to enter, &c. till 
 
 {/) Bac. Abr. Remainder G. Brandlyn v. Ordy 1 Atk. 
 
 p. 830. 571. 
 
 Whaley v. Tankard, 2 Lev. (m) Roe v. RowlstoUy 2 
 
 52, 1 Vent. 241, 2 Vent. 234. Taunt. 441.
 
 239 ON PINES. 
 
 his right of entry, &c. cominences. And 
 therefore non-claim on a fine does not run 
 against a per'^oa who has an intcrcsse termini, 
 till the time at which the right to enter 
 under the term arrives f7^). — So if there be 
 a term, and the ownership of that term be, 
 at the time when the last proclamation is 
 made, or the right accrues (o), vacant, for 
 want of letters of administration of the 
 effects of the last owner, no right of entry 
 exists till letters of administration are ob- 
 tained. — Till that time there is not any 
 adverse possession, or any existing right ; 
 and till there is an existing right, no entry 
 is necessary, or indeed could be made with 
 effect. 
 
 Acrain, when there is an estate in remain- 
 der or reversion, after an estate of freehold, 
 or even for years (/>), the fine will not begin 
 to run aofainst the owner of the remainder 
 [239 1^** reversion, till the time arrives, at which 
 this estate is to give a right to the posses- 
 sion {(/). 
 
 So if tenant in tail aliens, so as to discon- 
 tinue (r) or devest [s) the estate-tail, and his 
 
 («) Saffun's ciise, 5 Co.l23. Whaley v. Tankard, 2 Lev. 
 
 Cro. Jac GO. 5-2. Ventr. 241. 2 Vent. 334. 
 
 (o) Sanders v. Standford, ci- [q] Plovvd. 374. 
 
 ted t'lo. Jac. Gl. (') 3 Co. 87, a & h. 
 
 ( p] Laund V. 1 uckir, do. (s) Penyston v.Lyster, Cro. 
 
 Eliz. 254. Eliz. 890. 
 
 Brandlyn v. Ordy 1 Atk, 
 571.
 
 ON FINES* 240 
 
 tilienee levies a fine with proclamations ; or 
 the issue in tail accepts rent (^) reserved on 
 a rightful conveyance made by tenant in 
 tail ; and afterwards a fine is levied by the 
 owner who claims under that conveyance ; 
 in the first instance, during the life of the 
 tenant in tail by whom the conveyance is 
 made, and in the second instance, during 
 the life of the issue by whom the rent is 
 accepted, there is not any person by whom 
 the fine can be avoided. For this reason, 
 the operation of the fine, as a bar by non- 
 claim, will commence in the former case, 
 on the death of the tenant in tail, by 
 Avhoni the conveyance is made, and in the 
 latter case, on the death of the issue, by 
 whom the rent is accepted. It is observa- 
 ble, that when the fine is levied, there is 
 not 2i\\Y adverse possession. There is, how-> 
 ever, an adverse title quoad the future issue, 
 and this seems to have been allowed suf- 
 ficient to call the fine into operation against 
 them ; and so far there is a qualification of 
 the general rule, which requires the posses-[ 240] 
 sion to be adverse when the fine is levied. 
 
 It is also to be remarked, that when two 
 rights exist in the same person, for distinct 
 causes ; as in the instance of a person who 
 has a remainder or reversion in fee, after an 
 estate for life, forfeited by a fine levied ; the 
 
 [t] Shep. Touch. 31. 
 VOL. I. S
 
 240 ON FINES. 
 
 entry to avoid ilie fine may he made, either 
 within five years after tiie fine is levied, on 
 the ground of forfeiture, or within five years 
 after the death of the tenant for life, on the 
 ground that his estate is determined {«). 
 
 But v/hen there are several remedies for 
 one right, as in the instanee of a disconti- 
 nuance for a life or lives, with a subsequent 
 alienation of the reversion in fee by fine 
 with proclamation, the persons in remainder 
 or reversion must avoid the fine within five 
 years after the right first accrues, Sawie v. 
 Ciearke {a). And yet if no fine had been 
 levied, a bar by the statute of limitations^, 
 21 James I. of the remedy by formedon 
 would not have been any bar to the right 
 of entry by reason of the estate-tail or 
 remainders, when the discontinuance ceased 
 by the determination of the lives, (being the 
 estate for which the discontinuance was 
 originally made.) Flicrif v. Boiir {b). 
 
 And observe 1st, That a discontinuance 
 may be enlarged by warranty, as in Little- 
 ton, and Sawle v. Clcarkc. 
 
 And on the other hand, 2dly, A discon- 
 tinuance may cease by the surrender, mer- 
 ger, or entry, for a forfeiture of the parti- 
 cular estate, during which the discontinu- 
 
 (?/) Whaley v. Tankard, - Goodright v. Forrester, 8 
 
 Lev. 52, Ventr. 241, 2 Vent. East. 552, I Taunt. 578. 
 
 S33. («) Sir William Jones, 208. 
 
 3 Co. 78, b. Bac. Ab. Rem. [b} I Br. Pari. cas. 48. 
 850.
 
 ON FINES. 240 
 
 ance was affected. So the discontinuance 
 may be enlarged by the tortious alienation, 
 as an alienation by feoffment or fine of the 
 particular tenant, claiming under the dis- 
 continuance. 
 
 iSo when there are in the same person 
 distinct rights of entry, under distinct 
 estates, or distinct titles (z;), the owner may 
 enter, so as to save his more remote estate, 
 when the time arrives at which that estate 
 is to confer a right to the possession, al- 
 though he neglected to enter to save his 
 right, under the more immediate estate {w). 
 This is more particularly important, in the 
 case of titles depending on cross remainders, 
 since the right may, in that case, exist under 
 some of the remainders, though it be barred 
 as to others of them. 
 
 A teaant in tail demises for years, and 
 then conveys in fee, and a fine is levied by 
 the alienee. It will deserve consideration 
 whether the issue have two periods of claim ; 
 one after the term, as well as one duriiig 
 the term (a). It may be contended they 
 have the two periods for claim : the first 
 
 (v) Shep. Touch. 32. more remote estate. ^Jr. 
 
 [w] See Plowd. -ST^ ; and Cruise thinks he may; but 
 
 query if the person who has the ciise he puts is not full in 
 
 the present rioht, and is bar- point. 8te Cruise on Fines, 
 
 red, can claim under tlie more p. 214. 
 
 remote estate. Catline and (.r) See Co. Litt. 'J98 a; 
 
 Weston, J. denied that he can Salvia v. Clerk, Cro. Car. 
 
 make any claim under tiie 15(5. 
 
 s 2
 
 241 ON FINKS. 
 
 on the ground that they are not bound by 
 the term, the second on the ground that 
 the heirs have a right to enter on the de- 
 termination of the term. Tliis case is dis- 
 tinguishable from Salviii v. Clerk. In that 
 case the estate for life caused a disconti- 
 nuance ; and the reversioner had only one 
 title, and one period for avoiding the fine, 
 r 241 1 '^^^^ point now imder discussion is equally 
 applicable, when the same person has two 
 distinct estates ; as in tail, and in fee ; or for 
 life and in fee. 
 
 Secondly. If the right devolve on an in- 
 fant, or other person under disability, it is 
 sufficient that he enter within five years 
 after his disabilities are removed (y). But 
 if there are several disabilities, existing in 
 the same person, at one and the same time(2), 
 or there are several disabilities arising at 
 different periods, and one of tliem succeeds 
 the other without any interval, (as is the 
 case of infancy and imprisonment, or in- 
 fancy and marriage [a), and consequently 
 coverture during infancy,) the fine will not 
 run while any one of these disabilities con- 
 tinues. Or if there be a succession of dis- 
 abilities in distinct persons, having succes- 
 sive rights, under the same estate, as in the 
 
 {i/) Stat. 7 Hen. IV. c. 24. (a) Hulm v. Ihylock, Cro. 
 
 sec. 6. Jac. '2U0. 
 
 {z) Pluwd. 375.
 
 ON FINES. 242 
 
 case of an ancestor and heir, tht; fine will 
 not run against the ancestor or the heir, 
 while any disability continues. But though 
 the fine never besjan to run a2;ainst the 
 ancestor, by reason of his death, wlnle 
 labouring under some disability, it may, not- 
 withstanding the doubt forme; ly entertained 
 on this point (6), begin to run against the 
 heir, if adult, &c, at all events from the 
 time at which his disabilities, if any, 
 cease (c). 
 
 Thirdli/, Whenever a fine begins to run 
 against a person, it will continue to run[242] 
 against him, and in case of estates of in- 
 heritance, either in fee, or in tail, &c. against 
 his heirs, and in case of chattel interests, 
 &c. against his executors, &c. notwith- 
 standing any subsequent disability (d). And, 
 therefore, if the five years commenceagainst 
 a person who is adult, &c. they will conti- 
 nue to run against that person, though he 
 becomes imprisoned, insane, &c. ; and 
 though he dies either free from any dis- 
 ability, or under a disability, leaving for 
 his heir, issue, or personal representative, 
 a person wlio is either an infant, under 
 coverture, insane, or imprisoned, or though 
 he dies intestate, and no letters of ndministra- 
 
 [h) Cotton s case, 2 Inst. [d] Doe v. Jones, 4 T. Rep. 
 
 519. 1 Lev. 211. 301. 
 
 [c] Dillon V. Leman, 2 H. Stotvell v. Zouch, Plow. 
 
 Black. 584. 350.
 
 243 ON FINES. 
 
 tion are taken, the five years non-claim will 
 continue to run. 
 
 It follows, that in investigating a title, 
 depending upon non-claim, the first inquiry 
 to be made, is for the lime at which the 
 right of entry, &c. commenced ; the second, 
 whether the person then intitled to enter, 
 had a pariicular estate, or an estate in fee- 
 simple ; thirdly, whether he at that time 
 laboured under any disability ; and if he 
 did, then, fourthly, at what time that dis- 
 r 243 "lability ceased ; and if the person died under 
 a disaoihty, then, fifthly, whether the right 
 devolved on a person who. at that time, 
 was adult, &c. or laboured under some dis- 
 ability ; and if so, then, sixthly, at ^vhat 
 time that disability ceased, and so on. And 
 if the person against wdiom a fine has run, 
 had only a particular estate, the inquiry 
 must be extended still lurther. First, to 
 ascertain whether the particular estate is 
 determined ; and if it be determined, then 
 to whom the remainder, &c. belonged ; and 
 whether that person at the time when his 
 right, under the remainder, &c. commenced, 
 labouied under a!iy disability of asserting 
 his claim : and so on, mutatis )nutandis, till 
 it ran be shown that each person who had 
 any e.s' ate, either under the first or any other 
 , moie remote estate, has suffered the statute 
 of non-claim to run against his title, and
 
 ON FINES. 244 
 
 bar the same. Till this can be shown the 
 title will be defective. 
 
 Sometimes, however, by calling in the 
 aid of a tenant in tail, or the heir in tail, 
 so as to obtain his concurrence, as voucln^e 
 in a common recovery, this person, though 
 barred by the operation of the statute of 
 non-claim, may enable the person in pos- 
 session to make a good title against tliose 
 who have any right existing, under more 
 remote estates, either in remainder or rever- 
 sion {e). 
 
 Sometimes one of the statutes of limita-L ^^4 J 
 tion, and the statute of non-claim on a fine, 
 may, at tlie same time, be running against 
 the same claimant ; and if lie be barred by 
 either means, it is sufficient. 
 
 In t^eneral the line will cause the bar, as 
 the bar under the fine is complete in five 
 years from the time the fine begins to run. 
 The bar is always effected by the fine, when 
 the fine and the statute of limitations begin 
 to run from the saine period. It may 
 sometimes happen that the bar under the 
 statute of limitations is comolete, before 
 the fine begins to run, or at least before the 
 bar under the fine is accomphshed. Thus 
 suppose A. is tenant in tail and free f om 
 disabilities, and the statute of limiiations 
 begins to run against Iiim, and he then dies, 
 
 [e] Supra, 120. 139.
 
 245 ON FINES. 
 
 leaving an infant of the age of one year, 
 and a fine is levied with proclamations. 
 The fine will not be^in to run aj^ainst the 
 infant until he be of age, but the statute 
 will continue to run notwithstanding the 
 minority of the issue. So also the statute 
 of limitations may have run for a given 
 time, say sixteen years or upwards, so as to 
 effect a bar before the five years, under the 
 statute of non-claim, shall be complete. 
 
 No title requires a more minute investi- 
 gation than a title depending on non-claim. 
 Whoever deduces a title, and relies on a 
 fine and non-claim as its support, must be 
 [ 245 ] prepared to show by clear and distinct 
 evidence, that the fine has performed its 
 office, of bar, by non-claim, against all per- 
 sons who might have claimed in opposition 
 to the fine. 
 
 Whoever, therefore, levies a fine with an 
 intent to gain a title by non-claim, should 
 endeavour, by all means in his power, to 
 ascertain the persons who are to be afl:ected 
 by the operation of the fine ; that he may 
 be able to sliow at what time the fine has 
 completed the title, under the statute of 
 non-claim. 
 
 These observations are applicable only 
 as between a jnirchaser and seller. As be- 
 tween adverse parties, the person who claims 
 in opposition to the fine, must adduce evi-
 
 ON FINES. 246 
 
 dence, to bring himself within the excep- 
 tion of the statute ; so as to save himself 
 from the bar of the statute. In short, tlie 
 burthen of the proof lies on him. The fine 
 is presumptively a bar after five years non- 
 claim, till the contrary shall be shown. 
 
 Before a right is asserted in opposition to 
 a fine, it is proper to consider very atten- 
 tively, whether the claimant has a right to 
 avoid the fine, merely by entry, or by action. 
 
 In all cases, it is apprehended, (except 
 two, namely, 1st, a discontinuance by the 
 alienation of tenant in tail, eitiier by force 
 of the alienation, or by reason of a warranty ; 
 or, 2dly, a descent which toils entry,) the[ 246 ] 
 claimant may enter. In the case of a 
 discontinuance (/), or a descent which tolls 
 entry [g), he cannot enter. He is driven to 
 his real action. And as the claimant is now 
 l)ound (Ji) to prosecute his entry or his claim, 
 within one year after his entry or claim is 
 made, (unless he can make a new entry or 
 claim within five years, for this is the con- 
 struction of the statute,) he may, by mistak- 
 ing his remedy, as by making an entry and 
 prosecuting an ejectment, instead of bring- 
 ing his real action, lose his right : for if he 
 3hould enter towards the end of the five 
 years, and be non-suited in his ejectment, 
 
 (/) Litt. s. 592, 596. (A) 4 Anne, c. 16, s. 16,- 
 
 { g) Ibid. s. 385.
 
 !^47 ON FINES. 
 
 on the ground that he had merely a right 
 of action, and, not a right of entry ; and the 
 five years should elapse before the non- 
 suit, he might, unless he shall take the pie- 
 cautions which are recommended, be de- 
 prived of all remedy, since his claim made 
 and action brought, after the five years are 
 expired, will be too late. 
 
 In all doubtful cases, therefore, the party 
 should prefer a real action to an ejectment; 
 or if he bring an ejectment, as the more 
 easy remedy, he should also make his 
 claim, and within the year prosecute his 
 real action. 
 247 ] ^^ fi^^G with proclamations, which re- 
 quires to be avoided by entry, can be avoided 
 without an actual entry, and this is the 
 only case in which an actual entry (i) is now 
 requisite. That an entry may be eftectual 
 to avoid a fine, it must be made for tliat 
 expressed and declared purpose (j). 
 
 It is not universally true that a fine with 
 proclamations cannot be avoided without an 
 actual entry. The rule is, merely, that when 
 a fine zcnfJi proclamations is levied, and there 
 is a right of entry, no ejectment can be 
 maintaiiied, without an actual entry to avoid 
 the fine, and the demise in the ejectment 
 
 (/) Berriv^ton v. Park- [j] Clerhe v. Powell. 1 
 
 /mrA7, '2 8tr.'l08'j, 4 Bro. V. S'aund. :il9. VV ill iauis's note. 
 C. 58. 1 Mod. 10.
 
 ON FINES. 247 
 
 must be laid on some day subsequent to the 
 entry, 
 
 A fine with proclamations must be avoid- 
 ed by an actual entry, as the means of lay- 
 in<r a foundation for an ejectment ; while a 
 fine at the conmion law may be avoided 
 without an actual entry, and the confession 
 of lease, entry and ouster will be sufficient 
 {Ji). In one case the statute has application 
 so as to make a lawful, that is an actual, 
 entry absolutel}^ necessary. In the other 
 case the statute is irrelevant, and the rules 
 of the common law, as modified by modern 
 practice, supersede the necessity of an 
 actual entry. 
 
 But though lease, entry and ouster are 
 confessed, there are three instances, in which 
 the confession does not preclude the 
 ri2!;ht of the defendant to dispute the com- 
 petency of the remedy by ejectmen' ; for 
 
 1st. When a fine with proclamations is 
 levied, and the seisin is devested, (for this 
 is essential,) the defendant may put the 
 plaintifl: to prove an actual entr}^, before 
 the day of the demise laid in the ejectment. 
 2dly. When the entry is tolled by des- 
 cent ; or 
 
 3dly. When there is a discontinuance, so 
 that a real action, and not an ejectment, is 
 the proper remedy, the defendant may non- 
 
 {k) Supra, 213.
 
 247 ON FINES. 
 
 suit the plaintiff" in the ejectment, on the 
 ground that no ejectment lies. And yet 
 the confession of lease, entry and ouster, if 
 carried to its utmost extent, would enable 
 the parties to try the mere question of title, 
 since the confession of the lease is tlie 
 admission, in strictness, of an actual seisin 
 in the plaintiff's lessors. 
 
 And no one, except the .person who is 
 the owner of the reversion when the fine is 
 levied, or his heir, can take advantage of a 
 forfeiture incurred by levying the fine. 
 The right of entry for the forfeiture cannot 
 be transferred to an assignee (/). 
 
 And if an entry made by the person 
 entitled to a particular estate is effectually 
 made and prosecuted with success, so as to 
 avoid the fine as against himself; his entry, 
 (with the exception of an entry by tenant 
 for years, when the persons entitled in re- 
 mainder or reversion have only a right of 
 action {???) — ), will restore the seisin of all 
 persons in remainder or reversion, expectant 
 on his estate. Of consequence no bar by 
 non-claim can ever be set up under the 
 same fine : but the persons in remainder or 
 reversion may, when their estates become 
 estates in possession, enter as if no fine had 
 been levied (?z). 
 
 (/) Fcmi\. Smart, 12 East, [n] W^illiams's notes to 1 
 
 444. Sannd. .'310. 
 
 (m) Litt. s. 411, Hawk. Co. 
 Lilt. 337.
 
 ON FINES. 248 
 
 In regard to actions to avoid a fine, it is 
 sufficient that the action shall be commenc- 
 ed within the five years, although judgment 
 be not obtained till a subsequent period. 
 The action must be prosecuted with effect, 
 or a new action brought within the five 
 years : for if an action be brought and dis-[ 248 ] 
 continued, and the five years elapse before 
 another action is brought, the non-claim 
 will be a bar. 
 
 Let it be remembered that an entry or 
 action is necessary only when a title is le- 
 gal. — In cases of fines levied of trust estates, 
 the fine, as against the cestui que trust, must 
 be avoided by a bill in equity : at least, 
 unless the legal effect of the fine be av^oided 
 by the entry or action of the trustee ; and 
 if the trust affects the land and not \he per- 
 son, the proper remedy is an entry or 
 action by or in the name of the trustee. 
 But on this point query, and see 1 Cruise, 
 303. 
 
 So the fine itself may be avoided for 
 error in the fine : and if tlie fine be avoided, 
 the proclamations, and consequently the 
 operation of the fine, as a bar by non- 
 claim wdl be also avoided. 
 
 So if there is any irregularity in the pro- 
 clamations, though the fine remains in force, 
 (o) it cannot have any effect uncier the sta- 
 tute of non-claim. 
 
 (o) Dyer 182 b, 216 a.
 
 249 ON FINES. 
 
 And in the case of a fine levied in West- 
 minster-hall, of lands in ancient demesne^ 
 the fine may be avoided by writ of disceit. 
 [ 249] On the rule propounded by Lord Bacon, 
 ■'' non potest adduci excepfio ejusdem rci cujus 
 *' petitur dissolution'^ no non-claim will run 
 against the lord upon this particular fine(y;) ; 
 but under a second fine levied of these lands 
 in the court at Westminster, with procla- 
 mations, non-claim for five years will bar 
 the lord of his remedy by a writof disceit [q], 
 
 A fine to be avoided by a writ of error is 
 merely voidable ; while a fine levied in a 
 court which has no jurisdiction (as in the 
 case of a fine levied in the court of West- 
 minster of lands within a peculiar jurisdic- 
 tion, as a county Palatine, &c.) is actually 
 void (r). And a fine which is actually void 
 (.v) can never be a bar by non-claim, nor is 
 an entry or claim necessary on account of 
 the fine. 
 
 It remains oidy to be observed, that 
 care should be taken to see that the procla- 
 mations appear regular on the record, and 
 pursuant to the statute. As the proclama- 
 tions can be made only under tiie statute, a 
 fme levied in some courts, as courts of an- 
 cnt demesne, &c. cannot be proclaimed, and, 
 
 (/)) Piowd. 370, b. Cock- gin; Owen 21, Bac. law Tr. 
 
 waw V, /^arrcr, T. Kay m. 4(jl. oO. 2 Inst. 518; T. Kaym. 
 
 Zonrh V. Tliumpson, 1 Lord 4l2. 
 Jtavm. 177. (r) 4 Inst. 205, 223. 
 
 (V) See Plow d.370,b.in mar- (4) 2 lust. 518, 023.
 
 ON FINES. 
 
 as a consequence, they cannot operate either [ 250 ] 
 by noil claim, or as a bar to the issue in 
 tail. (0- 
 
 In the observations already offered on 
 fines, a summary view has been taken of 
 this important learning. The student is 
 recommended to pursue the subject in those 
 books which are written professedly on this 
 assurance, including the chapter on Jines in 
 Sheppard's Touchstone. 
 
 With a view to the immediate business of 
 
 the practical conveyancer, the following 
 
 points will be considered : 
 
 1.— By whom (w)> u i • ^ 
 
 ^ m 1 / ua line may be levied. 
 2. — 10 whom {v}} ^ 
 
 3. — In what court {xv). 
 
 4. — On what writs [x). 
 
 5. — Of what parcels [y), 
 
 6. — By what names {z). 
 
 7- — The parts of a fine {a). 
 
 8. — At what time a fine is complete. 
 
 First, As a conveyance (/»). 
 
 Secondly, As operating under the statute 
 of proclamations, either as a bar to issue in 
 tail, or by non-claim (c). 
 
 (/) Hunt V. Bourne, \^-a\k. (*/) Infra, 2G9. 
 
 339. [z] Infra, 270. 
 
 (m) Infra, 251. [a] l.ifra, 273. 
 
 [v] Infra, 265. (/>) Infra, 291. 
 
 (tr) Infra, 2G6. (c) Infra, 295. 
 (a) Infra, 268.
 
 231 ON FINES. 
 
 9. — The difference between a fine, as 
 First, A conveyance (d). 
 [ 251 ] Secondly, An estoppel ((')• 
 
 Thirdly, A bar to issue in tail (/'). 
 Fourfh/y, A bar under the statutes of 
 non-claim (g). 
 
 10. — On what fines uses may be declared 
 
 1 1 . — By w horn the uses of a fine may be 
 declared {i). 
 
 12. — Of resulting uses [j). 
 
 13. — Of deeds leading ; and 
 
 14. — Of deeds declaring the uses of a fine 
 
 1. By whom a Fine may be levied. 
 
 With the exception of the king, and cor- 
 poraiio^N aggregate of many, a fine may be 
 levied hv all persons either alone or jointly 
 with others ; even infants, idiots, and mar- 
 ried women, may levy fines. Infants or 
 idiots ought not, however, to be permitted 
 to levy a fine, (with the exceptif}n of an in- 
 fant who is a trustee within the pro- 
 visions of the 7 Anne, c. 19- — (0 — ) ; but, 
 having levied a fine, it will be good [m) : 
 
 (d) Infra, 298. ij) 1"^'^, 3l6. 
 
 (<?) Infni, ;i01. * (k) Infra, Vol. II. 
 
 (/) Infra, aOG. (/) Ex parte Muit, S Atk, 
 
 (ff) iniVa, nm. 47y. 
 
 (/i) Infiii, aiO. (7rt) Cavendish v. Wotsley» 
 
 [i] Infra, 311. cited 12 Co. 133.
 
 ON FINES. 252 
 
 with the saving that an infant may, during 
 his minority, reverse a fi.ie levied by him - 
 while an infant (/?)• 'i'he trial of infancy 
 must be by inspection of the judges of the 
 court in which the fine is levied; but the^ " -^ 
 court will receive evidence, by examination 
 of witnesses, as the godfather and god- 
 mother (o), church books, &c. (/?), to assist 
 their judgment. And if the inspection 
 take place during the minority, the reversal 
 founded on that inspection may be subse- 
 quent to the period of majority (q): and it 
 may be at the instance of the paily him- 
 self or his /ieir; and by the heir, notwith- 
 standing the conusor dies during minority. 
 To secure to the infant the benefit of Ids 
 non-age, the inspection may be recorded 
 before the fine is engrossed [a). 
 
 In case an infant becomes adult, or dies 
 before inspection, the heir is without re- 
 medy (r). 
 
 The fine of idiots is also binding on them 
 and their heirs. There are not any legal 
 means of avoiding this fine. Although the 
 conusor in the fine be found to have been 
 an idiot, a nativitate (s), the fine will be 
 deemed sjood at law. It is immaterial also 
 
 (n) 17 Ass. 17: 2 Roll. (9) Co. Lilt. 131. Kelce- 
 
 Abr. 15; Atme Hungate's icicli s case. 
 
 . ca^c, 12 Co, 122. («) Moore, 173. 
 
 (o) Bro. Ab. Error, pi. 60. (r) 2 It. Ab. 15. 1 2 Co. 122. 
 
 {p) 2 R. Abr. 573. Anne [s] Mcntisfield' s casCy 12 Co. 
 
 .Hungate's case, 12 Co. 122. 123. 
 
 VOL. J. T
 
 253-254 ON FINES. 
 
 whether the fine is obtained frqm an idiot, 
 or from a person under a temporary depri- 
 vation of intellect. The law ib the same 
 with rei^ard to those who liave lost their 
 [ 253] understanding, as to natural idiots who 
 never had any {f). 
 
 In some cases (ii) equity has relieved by 
 . decreeing a re-conveyance. In another case 
 it relieved against a fine levied upon a pos- 
 session obtained under a forged deed {v). 
 And Lord Hardwicke observed though a 
 fine has been levied, yet if it has been under 
 circumstances of fraud, the court ought to 
 prevent the stealing away an estate in this 
 manner (t£^). 
 
 Persons who are born deaf, dumb, and 
 blind (.i), are in the same predicament with 
 idiots. Persons denrived of onlv one or two 
 senses, and who could express their mean- 
 in<y bv writinj:^, orsi"*ns, have been allowed 
 to be competent to levy fines(i/). 
 
 Nor can duress of iinprisonment, or the 
 like, be alleged at law as an answer to the 
 operation of a tine (z). 
 
 The rule of court (a), which requires an 
 
 aflidavit of one of the commissioners, before 
 
 [254] whom a fine is acknowledged, that the par- 
 
 (/) 4 Co. 124. (x) Co. Lift. 42, b. 
 
 [u] 2 Veri). 078. (y) Elliott's case, Cartef, 
 
 [v] Cartwright v, Pidtneij, 53. 
 2 Atk. 281, (?) Chetwynd on Fines, 49. 
 
 (w) Halter v. Pritcliard, 2 Inst. 48o, Shep. Touch. C. 
 fi/lus Hosier, 2 Atk. tl87. (a) Hil. 17 Geo. II.
 
 ON FINES. 254 
 
 ties are of age, aiul competent understand- 
 ing, has given great protection agaii.st the 
 frauds formerly practised, in obtaining fines 
 from minors, &c. 
 
 A fine by a married woman diXone, without 
 the concurrence of her husband, ought not 
 to be received, except, perhaps, under pecu- 
 liar circumstances, as where her husband is 
 banished for life ; or as in Moreau's case (bj, 
 where the husband had sold, and he cove- 
 nanted that he and his wife, when of age, 
 should levy a fine. She attained her age of 
 21 ; and at first refused to levy the fine. Her 
 husband afterwards went abroad, and then 
 she consented to levy the fine ; and hei: 
 acknowledgment, as ?Lj'c?ne sole, was received 
 by the Chief Justice of the Common Pleas. 
 This fine was levied without prejudice to 
 the husband's right to avoid the same. In 
 short, the court could not by any means 
 preclude his right to question the validity 
 of the fine. All the Chief Justice did, was 
 to enable the wife to bind herself, by re- 
 ceiving the fine from her, as if she had been 
 2ifeme sole. 
 
 So a fine from a married woitian alone 
 was allowed to pass, because the husband 
 and wife had conveyed, and the purchase 
 
 [h] 2 Black sn Rep. 1205, 
 
 T 2
 
 254 GN FINES. 
 
 money was paid, and the husband after- 
 Wards became non coivpos mentis (c). 
 
 In Mrs. Abney''s case the husband had 
 become bankrupt, and had absconded from 
 his creditors; she levied a fine as ^ feme 
 sole, and the court, on an appHcalion, re- 
 fused an order that the fine should pass, 
 but Mr. Justice Heath gave his allocatur to 
 the fine. 
 
 The affidavit of acknowledgment was 
 made by one of the commissioners, and had 
 these additional clauses. " And thisdepo- 
 *' nent, the said VY. A., further saith, that 
 ^' he verily believes the said E. A. is not a 
 ** single woman, but the wife of R. A. late 
 *' of &c. brickmaker, dealer and chap- 
 '* man ; and that a commission of bankrupt, 
 " under the great seal of the United King- 
 *' dom, bearing date at Westminster, the 
 ** 9th day of August, 1805, was duly issued 
 *' against the said R. A., and that he was 
 ** thereupon found and declared a bank- 
 " rupt ; and that he, this deponent, has 
 '' been informed, and believes, that the 
 *' said R. A. never surrendered himself 
 " under the said comuiission, but abscond- 
 '' ed, and fled beyond the seas, to some 
 " part of North America. Aiu\ this depo- 
 '' nent further saith, that the said E. A., at 
 
 (c) Stead V. Ixmrd, New Rep. 312.
 
 ON FINES. 255 
 
 ** the time of acknowlt'dji'm^ the said ^ne, 
 *' stated to this deponent and the said 
 " S. W., that by reason of the before-men^ 
 " tioned situation of the said R. A. her 
 " hii'sband, she was desirous, and intended 
 *' to acknowledge tlie said fine, and pass the 
 '* premises therein comprised, as a feme 
 " sole ; and that this deponent and the 
 *' said S. W. took her acknowledgment 
 " provisionally, and subject to the opinion 
 *' and direction of this honourable court, 
 ** wdiether or not the same ou£j;ht to be 
 " allowed to pass." 
 
 Though a married woman ought not to 
 be allowed to Levy a fine, unless her husband [ 255] 
 joins as a party ; yet if she levy a fine as 
 if slie were a J'et?ie sole, in other words, 
 w^ithout disclosing by the record, that she 
 is under coverture, this fine will be good 
 against her and her heirs (af), vmless it shall 
 be avoided by her husband. He may avoid 
 it during coverture. When avoided by 
 him during coverture, the fine will be also 
 avoided against the wife and her heirs {e) ; 
 and it is said, a husband entitled to be 
 tenant by the curtesy may, pro interesse suo, 
 avoid a fine, even after the death of his 
 wife. 
 
 And when it appears by the record, that 
 
 {d) Co. 1 itt. 4r>, a; 2 Roll. {ej Co. Litt. 46. a. 
 
 Ab. 20 ; Perk, s. 20 ; Shep.T..7.
 
 256 ON FINES. 
 
 a fine is levied by a married woman, for 
 example, by A. the irifc of B., without 
 the concurrence of her husband, this fnie 
 will be voidable for error, apparent on the 
 record. It may be avoided accordingly, 
 even by the wife or her heirs. Under these 
 circumstances her fine is said to be merely 
 void {f). And if a fine executory shall be 
 levied by a woman as a feme sole, and ex- 
 ecution be sued against husband and wife, 
 and she be received for his default, she may 
 defeat the fine, by showing her coverture. 
 [256 ]It is said, this is for the benefit of her hus- 
 band (g). 
 
 Marriage by a woman after she has ac- 
 knowledged a fine, will not avoid the fine. 
 It may be made out in her name as a Jhne 
 sole [h). 
 
 And a fine levied by a husband and wife 
 will remain in force, notwithstanding the 
 marriage between them should be dissolved 
 by a divorce [i). 
 
 It is observable, that as fines are binding 
 on idiots, &c. ; and also on infants, unless 
 avoided during minority ; and by married 
 women, unless avoided during coverture ; 
 deeds executed by them declaring the uses 
 of theae fines are also supported. So long 
 
 (/) Sidf-rf. 122. (h) Shop. T. 18. 
 
 ig) Co. Keaaing. 7 Co.Litt. [i) 2 Ko. Abr. 20. 
 
 353.
 
 ON FINES. 257 
 
 as the fine, which is the principal, remaiiis 
 in force, tlie deed of uses, which is only the 
 accessary, will continue to be effectual (j). 
 
 Particular persons by whom fines may 
 be levied, and whom it will be proper to 
 notice, are 
 
 The quee7i (k), whether sole or consort, 
 except a queen regent. 
 
 Soie corporations (/). And though eccle- 
 siastical persons {m) are restrained from [257] 
 alienation, their fines are sjood ac^ainst them- 
 selves (w), and voidable only and not void 
 as against their successors (o). 
 
 Persons attainted of treason or felony (/>), 
 may levy fines to bind themselves and their 
 heirs, not the king or lord. So a fine by 
 an ali€7i will be good as against all persons 
 except the king ; and against him till otKce 
 found (q). Also persons outlawed in per- 
 sonal actions may levy fines. 
 
 Particular persons by whom fines cannot 
 be levied, are. 
 
 First, The King (r). The reason is be- 
 cause no writ of covenant can be brought 
 against him. When he is conusee in a fine, 
 
 [j) Mansfield's case, 12 Co. [o] M'li^dalen College case, 
 
 123. 2 Co. '58. 10 Co. 42, b. 11 Co. 78, b. 
 
 (A:) Co. Litt. 3,133a: Densh (p) She[-. T, G; 8 Afsize, 
 
 on Fines, 12. pi. '^5, West. Symb. s. 13. 
 
 {/) Co. Read. 7, 8. {^J Densh Rei.J. on Fines, 
 
 (m) 1 Eliz. c. 19. 13 Eliz. 13; Co. Ri cd. s. 17. 
 c. 10. (r) 7 Co. 32. Cio. Car. 96, 
 
 (n) Co. Litt. 45 a. Supra, 97. 
 235.
 
 258 ON FINES. 
 
 he may render the lands, and thus indi- 
 rectly levy a fine. By statute law he is 
 now restrained from alienation, otherwise 
 than for a limited period, and in particular 
 cases. 
 
 Secondly. Corporations agregate of many 
 [s]. But according to I Leon. 184, corpo- 
 f 258 ] rations of this description may levy a fine 
 by aUorney. 
 
 This is contrary to Lord Coke's opinion 
 in his Readings. He observes, that the 
 statute de modo levandi Jines requires that the 
 parties to a fine should appear personally 
 before the judges. These observations 
 apply to the persons, &c. by whom fines 
 may be levied, in respect of personal or 
 political qualifications. 
 
 It is also to be considered, by whom a 
 fine may, or may not, be levied, in point of 
 estate, and to what extent, in respect of 
 share. 
 
 First Tb.at a fine may be free from the ob- 
 jection, {h'di partes Jinis nihil habiierunt, there 
 must be an estate of freehold in one of the 
 par'ies (/). Whether it be in the conusor 
 or conusee is of no material consequence. 
 And whether this estate be of inheritance, 
 or merely of freehold iu) ; and, when of 
 
 (j^ Co Rrad. 7. (»f) Focus v. Solpblirr/f 
 
 (/) :i V.ils. 24!); Dyer, 215 ; Hard. 44H ; Davies' case. 
 2 In»t. 52(i ; 5 Co. 123. l^yer> 3, b. in a note.
 
 ON FINES. 259 
 
 freehold, whether it be of a superior or in- 
 ferior degree ; and whether it be by right or 
 wroiiii ; and notwithstandint^ it be ^lounded 
 on a defeasible title (r) ; and whether the 
 estate ol freehold be in possession, or in re- 
 version, or remainder {w) ; — is of no con-r259 ] 
 sequence. Indeed, a fine by a remainder- 
 man, or reversioner, though it cannot bar 
 the tenant of the prior estate, while he 
 continues in the seisin, may bar strangers, 
 and operate for the benefit of the tenants 
 .of the prior estate ( x). 
 
 As between the parties, and also privies, 
 such as heirs and issue in tail, a fine will 
 be good, although the freehold is not in 
 either of the parties (?/). But as against 
 strangers, in other words, the rightful 
 owners, and as a bar by non-claim, the line 
 may be avoided by this plea. 
 
 This is considered as a disability from 
 want o^ sufficient estate. It is rather a dis- 
 ability to levy a fine for a particular pur- 
 pose, than a positive and absolute incapa- 
 city A fine levied, under the circumstances 
 that the freehold is not in either of the 
 parties, has, in truth, no operation on the 
 freehold. It cannot amount to a convey- 
 
 («) Carter v. BarnardUton, Touch. 27. Co. Litt. 298, a. 
 
 1 P. W. 5; 5. Jenk. Cent. 254. 
 
 (w) Jenk. Cetit. 254. Supra, (y) Granrs case, 10 Co. 50 ; 
 
 229. Jojmsonv. Bellamy f 2 Leo. 30; 
 
 [x] Twist's case, Shep. Jenk. Cent. 274.
 
 £60 ON FINES. 
 
 ance, because there is not any estate in the 
 parties to be conveyed. If levied by a mere 
 stranger, it cannot pass any estate, though 
 it may operate by conclusion and as a:i es- 
 [ 260 ] toppel ; and if levied by tenant for years, 
 or by a copyholder, it is a forfeiture of his 
 interest. 
 
 The persons disqualified, in point of 
 estate, fi'oni levying a fine, are. 
 
 First, Persoiio having chattel interests {z) ; 
 as, 
 
 Termors for years. 
 
 Tenants for uncertain interests, as till 
 debts are paid. 
 
 Tenants by statute merchant. 
 
 . staple. 
 
 elegit. 
 
 Tensyits at will. 
 
 Secondly, Copyholders (a). 
 
 The fines of all these persons are good as 
 against themselves, by way of estoppel. 
 These fines, however, have no operation to 
 carve out a title by non-claim grounded 
 on the fine. They do not operate even as 
 a conveyance of their respective estates, but 
 as an extinguishment of them. That a 
 termor, or a copyholder, may, by means of 
 a fine, acquire the fee by non-claim, a 
 feoffment should be made to gain the free- 
 liold, and the fine be levied at a subsequent 
 
 [z\ .3 Co. 77. (a) Co. Copyli. s. 55.
 
 ON FINES. 261 
 
 period (/»), and as of a term subsequent to, 
 and not preceding the feoffment, and so 
 that it may appear from the record that 
 the fine was preceded in date, (measured 
 by the return of the writ,) by the date of 
 the feoffment. When a fine is preceded by 
 a feoffment, the fine will be free from the 
 objection that partes finis niliil habuerunt : [ 261 ] 
 for the estate of freehoUl is acquired by 
 the forcible operation of the livery of 
 seisin. 
 
 VYhen a person has merely a right of ac- 
 tion, or a title of entry (c), or a contingent 
 interest [d], he is not in a situation to levy 
 a fine, so as to make a conveyance. His 
 fine, if levied to a stranger, will be void as 
 a conveyance, since partes 7iihi/. habuerunt ; 
 if levied to the person in possession, it will 
 operate as a release of right ; and if levied 
 to a stranger, the person in possession may 
 take advantage of it as an estoppel against 
 the conusor, and by that means it will 
 amount to a virtual release, or rather con- 
 clusion of his title (e). For this reason, a 
 person having such right or title, should 
 take care, by entry or action, to restore his 
 
 (i' Co. Co;nb. s. 55 ; Mar- theic, Noy, 123. Cro. J. 175 ; 
 
 jtaret Fodi^er's case, 9 Co. 3 Co. 90 "a ; Supra 208. 
 
 104. (d) Grant's case, 10 Co. 50. 
 
 Focus V. Salisbury^ llardr. 3 Lev. 227. 
 
 401. (e) Buckler's case, 2 Co. 55. 
 
 (c) Buckler's case, 2 Co 55. Palm. 305 ; Weale v. Lower, 
 
 Ward V. Mathew, alias JVal- Pollexfen, 55.
 
 262 ON FINES. 
 
 seisin before he levies a line, except in 
 those instances in which it is his intention 
 to extinguish such his right or title. Per- 
 sons havincf continsjent interests should also 
 cautiously refrain from levying a fine which 
 imports a grant in fee, unless they mean to 
 extinguish these interests. They may levy 
 [ 262] fines which give a particular interest, as for 
 years. When the intention is to create a 
 particular interest, a fine for years will 
 attain the end, and such fine, though it will 
 bind the interest when vested, will not con- 
 clude the title to the fee ( /'). 
 
 So cestui que trusts have no freehold at 
 law: they have a freehold in equity. A fine 
 by a cestui que trust {g) will, as against the 
 heirs and issue in tail, have the same opera- 
 tion in equity as the fine would have had 
 on their estates, if they had been legal and 
 the cestui que trust had had the legal estate ; 
 with the exception only that a fine by a 
 cestui que trust will not, it is apprehended, 
 operate as a discontinuance against persons 
 in reversion or remainder, so as to render 
 their interests unalienable. The doctrine 
 of discontinuance is understood to be con- 
 fined to legal estates, and to be a conse- 
 quence of the rules of tenure. At law, the 
 fine of a cestui que trust, as such, will not 
 
 (/) tVeale v. Lower, Pol- Ch. Ca. 2(i8; SuJishnri/\. B<t- 
 lexf. 5o. froi, 1 Ch. C;i. 278; Mitl'or.l'* 
 
 (6') CVi/Tort/ V. Asbfei/, 1 iNeadings, 201 ; Supra 233.
 
 ON FINES. 263 
 
 have any operation. To lay a proper foun- 
 dation for any legal operation of a fine by 
 a cestui que trust, he ought to make a feoft- 
 ment, that his fine may not be exposed, as 
 it otherwise would be {h), to the objection 
 that partes finis nihil, &c. Many fines, levied [ 263 ] 
 with a view to gain a legal title by non-claim 
 are open to this answer, and are not to be 
 relied on. This observation has equal ap- 
 plication to fines by persons entitled to the 
 equity of redemption of lands mortgaged in 
 fee, if they are to be used as a bar to stran- 
 gers, having legal interests. It is well 
 understood that a fine by a mortgagor, or 
 mortgagee will not bii d the other party [i). 
 
 I'hat a stranger may be barred, the mort- 
 gagee, as having the freehold, should levy 
 the fine, or he and the mortgagee should 
 levy the fine. A fine by a person who has 
 merely an equity of redeinption, would be 
 avoidable by the plea of partes riihil, &c. 
 
 When the mortgagee has a term of years,, 
 and the mortgagor retains the fee, then the 
 fine should be by the mortgagor, and not by 
 the mortgagee. 
 
 Let it be remembered, however, that a 
 person who has an equity of redemption, 
 may levy, and often does levy, a fine as an 
 assurance by way of alienation as distin- 
 
 (A) Essay on Estates, p. 51. (i) 1 Vent. 82. Welden v 
 
 Duke of York, 1 Vein. 132.
 
 263 ON FINE. 9. 
 
 guished from a fine to operate by way of 
 noii-claim. 
 
 Suppose a mortgage in fee, and then 
 the mortgagor makes a feoffment and 
 levies a fine to a stranger to the use of 
 the mort2;a2fee, v.ithuut his concurrence, 
 would the plea of partes nihil avail ? On 
 the one hand it may be said, the feoffment 
 did not devest, and w^as fraudulent ; on the 
 other hand, that sometimes a mortgagor 
 aware of a defect in his title, is anxious to 
 levy a fine to operate by non-claim without 
 disclosing thic defect to the person who has 
 a mortgage in fee of the property. Under 
 these circumstances, he should levy a fine 
 to the mortgagee, and declare that the uses 
 shall operate to confirm the mortgage. By 
 levying the fine to the mortgagee, though 
 ignorant of the transaction, the fine will be 
 kept free from the objection, that partes 
 fifiis nihil ^ &c. &c. 
 
 It is allowed in equity, that a fine by one 
 equitable owner, with non-claim, may be 
 pleaded as a bar in equity to the right of 
 another equitable ow^ner ( ;) : and that a fine, 
 levied by a person claiming an equity of 
 redemption in fee, may be a bar to another 
 person who has a right to that equity (A), 
 
 It is observed by Mr. Cruise (/) that a fine 
 
 [j ] 1 Ch. Oil. 49, 278. (/) On Fines, IOC 
 
 (Aj 2 I'reeinuii 21.
 
 ON FINES. ' 264 
 
 Itevied before entry or receipt of rent, will be 
 void on the same principle, — viz. want ot 
 freehold. 
 
 This observation must be understood 
 with the qualification, that the freehold is in 
 some other person. A tine by a person who 
 has a seisin, in point of fact, as by actual 
 possession ; or in law, as an heir on the 
 death of his ancestor, and before any abate- 
 ment by a stranger (w) ; or by construction 
 of law, as a person who is intitled to the re- 
 version or remainder expectant on an estate 
 in the possession of his tenant, or of a per- 
 .son connected with him in privity of estate L 2o4 J 
 may levy a fine with effect. In all these 
 instances the freehold is in the person 
 levying the fine, and the plea oi partes finh 
 nihil, &c. will be irrelevant. In Lord 
 Townsend v. Ash (??), the persons who in- 
 sisted on the efficacy of the fine, were per- 
 sons who had a defeasible title, under an 
 estate gained by adverse possession. They 
 had levied a fine, but having levied the 
 fine before they had any seisin, in fact, or 
 in law, the fine did not avail them. 
 
 And a fine levied under a possession ob- 
 tained by fraud, though good at law, has 
 in a court of equity been restrained from 
 accomplishing its object {0). 
 
 [m] Ilemsley v. Price, Cro. (o) Cartivright v. Pvlteny, 
 
 EIjz. 039. 2 Atk. .380. Baker v. Pritc'h- 
 
 [n] 3 Atk. 336. ard, 2 Atk. 387.
 
 ^65 oN FINES. 
 
 Tenants in common^ coparceners, aild joint" 
 tenants, have an ownership only in their 
 aliquot parts, and the operation of a fine bt/ 
 them, will be confined to their respective 
 shares. Though joint tenants are seised 
 per my et per tout, a fine levied by a joint- 
 tenant of the intirety, will be good only for 
 a moiety. It will sever the joint-tenancy {p). 
 
 These observations apply to the tenants 
 of this description only while the joint- 
 tenancy, &c. continues. When one joint- 
 tenant, tenant in common, or coparcener 
 disseises his companion, and by that means 
 £^5 ] acquires a sole seisin [q), the fine will ope- 
 rate to the extent of the share acquired by 
 disseisin, as well as the original share. 
 Whether there has been a disseisin, is, fre- 
 quently, a question of fact, and is to be 
 collected from circumstances. 
 
 Lord Mansfield's observations in Doe v. 
 Prosscr [r), o\\ this point, are deserving of 
 particular attention. So are those of Lord 
 Kenyan, in Peaceable v. Head and others^ 
 1 East, 56'8. 
 
 And it is concluded, that a fitie, levied 
 to operate by non-claim, may run as against 
 one joint-teiiant, tenant in common, or 
 co})aicener, who is free from disabilities, 
 
 (p) 1 Cruise, 104. G Mod. 217. 1 Inst. 243, b. 373, b. 
 
 45. 374 a. 
 
 [n) lunrcluim v. Shackleton, Ford v. I^ord Grey, 6 
 
 :> Burr. 2i,(M. Mod. 44. 
 
 Doe V. Prosscr^ Co^yp. (r) Cowp. 217.
 
 ON FINES. 
 
 266 
 
 although OH account of disabilities it 
 cannot run against another joint-tenant, 
 tenant in common, or coparcener (5). The 
 point is decided on the statute of limita- 
 tions, of 21 Ja. 1 ; and as all the statutes of 
 limitations are made iii pari materia, the 
 decision on one of tiiose statutes seems 
 equally applicable to the others of them. 
 
 2. To whom, a Fine may he levied. 
 
 All persons who may be grantees iu a 
 deed may be conusees in a fine. 
 
 The king may be a conusee {t). 
 
 So ma}' an infant, a married woman, &c. 
 And when a married woman is merely a 
 conusee, it is not necessary that she should 
 be solely examined apart from her husband, 
 for she cannot be prejudiced. But when 
 there is a fine to a married woman, and the 
 render is from her, she ought to be solely 
 examined, since the render may be a preju- 
 dice to her [li). 
 
 When a wife is merely 7i grantee in a fine, 
 the fine may be levied to her alone : but 
 her husband during the coverture, and on[26'6j 
 his death, the v/ife herself, may avoid the 
 fine by di sagreeing to it ; so may her heir 
 
 [s] Row V. Bowlston, («) 2 Jnst. 515. 2R0IK Abr. 
 
 2 Taunt. 441. Supra, '237. 17. (M) pi. 9. 
 
 [l] Densh. 12. 7 Co. 52. 
 
 VOL. I. T'
 
 267 ON FINES. 
 
 after her death without having agreed to 
 the fine. When the wife is to render the 
 lands, it is apprehended her husband ought 
 to be a grantor jointly with her in the 
 render. 
 
 So a person attainted may be a conusee in 
 a fine (r). 
 
 So may a corporation sole or aggregate [w], 
 
 3. In xvhat Courts a Fine may he levied. 
 
 The fine must be levied in a court having 
 jurisdiction over the lands. 
 
 A fine levied in the court of Common 
 Pleas at Westminster, of lands in a county 
 palatine, is coram non judice, and void [x). 
 
 So is such fine when levied of lands in 
 Wales y &c. 
 
 On the other hand, a fine levied in the 
 court of Common Pleas of lands in ancient 
 demesne, is not void. But the lord will have 
 a right to reverse the fine by a writ of dis- 
 ceit, to restore the lands to his jurisdiction 
 (y). It is said that the lands are not within 
 the jurisdiction of the superior courts [z). 
 That position is at least questionable. If 
 the lands are not within the jurisdiction, 
 [267] how can the fine remain in force between 
 
 (v) West. Svmb. 81.5. (y) Supra, 248. 
 
 («') Deiish. Head. 12. [z) I Cruise, 97. 
 
 fr) 4 Inst. 205, 22:^.
 
 ON FINES. 267 
 
 itie parties ? How can it change the tenure, 
 even for a time, into frank-fee^ And how 
 can a second fine opeiate even as a bar by 
 non-claim against the lord ? 
 
 All that can be said is, that as between 
 the lord atid the tenant, it is an infringe- 
 ment on the franchise of the lord, to levy 
 the fine in any other court than that of the 
 lord. 
 
 So a fine levied of copyhold lands, in the 
 court of Common Pleas, is not open to the 
 objection of being coram non judice. That 
 court has jurisdiction over the lands, though 
 the copyholder ought to be impleaded in 
 the lord's court. This is said, in applica- 
 tion to those instances in which the court 
 of Common Pleas has jurisdiction over the 
 lands, as far as they are of freehold tenure ; 
 so that the lord may implead or be im- 
 pleaded in that court. 
 
 The courts in England have no jurisdic 
 tion over lands in Ireland [a). So the courts 
 in this country have no jurisdiction over 
 lands in the West Indies. Sometimes, how- 
 ever, a fine of lands in the West Indies is 
 levied in the courts of Westminster-hall. 
 This is done merely because the courts in 
 the plantations respect such fine, as a spe- 
 cies of solemn conveyance. 
 
 (a) Densh. Read. 3, 
 U 9
 
 268 ON FINES. 
 
 Admitting the court to have jurisdiction 
 over the lands, a fine may be levied in, 
 
 1. The court of Common Pleas. 
 [ 268] 2. The court of King's Bench ; at least 
 when a suit is depending in that court on a 
 ivrit of error from the court of Common 
 Pleas (/^). And a fine levied in the court 
 of King's Bench, on a writ returnable in 
 that court, is voidable only, and not 
 void (c). 
 
 3. Courts of Great Sessions in Wales. See 
 34 and 35 Hen. VIII. c. 26'. s. 40. 
 
 4. Counties Palatine, viz. 
 Lancaster; see stat. 37 Hen. VIII. c. I9. 
 Chester ; see stat. 2 and 3 Ed. VI. c. 28. 
 
 43 Eliz. c. 15. 
 
 Durham; stat. 5 Eliz, c. 27- 
 
 5. Court of ancient demesne. 
 
 6. Inferior courts, by usage, confirmed 
 by act of parliament, as in some cities, 
 boroughs, &c. [d). 
 
 4. On what Writs a Fine may be levied, 
 
 A fine may be levied on every writ by 
 which lands may be demanded, charged, or 
 hound ; or which in any sort concern lands, 
 as a writ of 
 
 Mesne (e), 
 
 {}>) 1 Cruise 73. Densli. (</) To. Read. R. 
 
 Read. ••{. [(■] II). 10. 
 
 (r) C<,. Read. 8. Yin. 
 W.v. Fine, 217.
 
 GN FINES. 269 
 
 Warrantia chartcX? (/'), 
 
 De consuetiidinibus et servitiis [g), 
 
 Quod perniittat (A), [ 26*9 ] 
 
 •Quid juris clamat («'), 
 
 Right of advowson (j), 
 
 Quare impedit(A), 
 
 Assize (/), 
 
 Praecipe quod reddat (w), 
 
 Right, close or patent (w). 
 
 Dower (0), 
 
 Covenant (j9). 
 
 Annuity (^q). 
 
 In modern practice the writ of covenant 
 is in general, and almost invariably, made 
 the ground-work of the fine. 
 
 5. Of what Parcels a Fine may he levied. 
 
 A fine may be levied of all things of 
 'which a pra'cipe quod reddat will lie (r) ; 
 viz. 1, Land in all its varieties, 2, Of other 
 things, as 
 
 Advowson, 
 
 Right of presentation, 
 
 (/) 2 R. Abr. 14. (F.) pi. («) Hunt v. Bourn, 1 Sa!k. 
 
 14. 040. 2R.Abr. 11. (F.) pi. II. 
 
 [g] Ibid. pi. 12. [o) 2 R. Abr.l4. (F.) pi. 20. 
 
 [h] Co. Read. 10. (>) Co. Read. 10. 2. R. 
 
 (i) 2 R. Abr. 15. (F.) pi. 22. Abr. 14. (K) pi. 9. & 15 (G.) 
 
 ( ;') I Cruise^ 18. pi. •'>. 
 
 (/.■) 2 R. Abr. a4. (F.) pi. [q] 2 R. Abr. 14. (F.) pi. 
 
 13. 10 
 
 ,(/) Ibid. pi. IG. (r) Sheo. Toacli. p. 9. 
 
 •m) Ibid. 1)1. 19,
 
 ^70 ON FINES- 
 
 Rent- charge, 
 
 Chief rent, 
 
 Office, 
 [27O] Thincjs in prendre, if to be ascertained 
 with sufficient certainty. 
 
 And of lands, wliether they are held in 
 possession, or in remainder or reversion. 
 
 Tithes, 
 
 New River shares, 
 
 Undivided part. 
 
 But a fine cannot, it is said, be levied of 
 
 Common in gross sans nombre (s). 
 
 Annuity (/). 
 
 But a judgment on a writ of annuity willj 
 it is apprehended, bind the interest of the 
 parties, and even of a married woman, in an 
 annuity. And there are many instances of 
 fines levied of annuities ; and some of theoi 
 on a writ of covenant (m). 
 
 Office of dignity. 
 
 6. By what Names a Fine may be levied. 
 
 In fines, as in adverse actions, the par- 
 cels ought to be demanded by their legal 
 names. 
 
 The description, then, should be of a 
 
 («) 1 Cruise, 121. («} 2 R. Abr. 15. (G.) pi. 1. 
 
 (/) Shep. Touch, pi. 11.
 
 ON FINES. 271 
 
 given number of messuages, acres, &c. 
 {v) : and not by the name of Sijarm, tenementj 
 &c. as in deeds. 
 
 But as to the quantities, &c. great lati-[27l ] 
 tude is given by tlie courts now, since fines 
 are considered as common assurances. The 
 deed leadinij or declarinsj the uses of the 
 fine is considered as part of the assurance, 
 and the intention of the parties, respecting 
 the parcels, will be collected from the 
 deed [w). 
 
 It seems almost to be a general rule that 
 in fines and common recoveries, the lands, 
 &c. will pass by any denomination the 
 parties shall give them, so as the intention 
 to comprise them be clear {x). 
 
 In Dyer 47, and 1 Burr. 144, 145, it is 
 assumed that buildings on land may be 
 recovered by a writ demanding the lands, 
 (the defendant having built on the land,) 
 since the plaintiff has demanded them by 
 the quality of which they were under his 
 title. The ground seenis to be, that he has 
 a right to treat the buildings as a nuisance, 
 or encroachment. Sed vide infra 273. 
 
 A fine of lands will, it should seem, bar an 
 intail of rent : but a fine of rent will not be 
 
 (v) Massey v. Rue et a I Eijfon v. Eyton^ 1 Bio. 
 
 Cowp. 340. P. C. 151. 
 
 [iv] Fuoeiei/ V. Eastoii, Cio. (a) Massey v. Rice, Cowp. 
 
 €ar.2G9, 276. 346.
 
 S72 ON FINES. 
 
 bindino- on the issue, clciimin^ under an 
 in tail of the lands (y), 
 
 Thecertainty of t lie lands may be made oui 
 by averment, and of course proved by parol 
 evidence, or from the deed of uses. As 
 where a person who has two manors of the 
 same name, levies a line of a manor of that 
 name, without any circumstance of distinc- 
 tion (::). But unless there were circum- 
 stances, as evidence, to show in certainty 
 which manor was to pass, the fine would be 
 void for uncertainty. 
 
 The deed [a) by which the uses of a fine 
 are declared, is the measure by which juries 
 are governed in ascertaining the description 
 of property of which a fine is levied. And 
 r 272 I courts of justice constantly allow the fine 
 to be amended, as to the parcels, from the 
 deed of uses. In particular, they will not 
 suffer a fine to pass more lands than were 
 intended to be included ; although the 
 parties may have a greater quantity of lands 
 than are enumerated in the parcels of the 
 fine, and such lands are within the descrip- 
 tive terms of the fine. 
 
 It is also said that a fine Mill not pass a 
 greater number of acres than are contained 
 
 (V) Ueliot V. Saunders, Cio. (c) Cilh. I'.vid. :38. 2 R. Ab. 
 
 Jac. 700. C7(). |)1. II. 
 
 («) 1 IJro.P. C. 1.51.
 
 ON FINES. 273 
 
 in the writ and concord, although the deed 
 of uses mentions more (/»). 
 
 There are cases, however, to the con- 
 trary. 
 
 In 6' Co. 67, it is stated to have been ad- 
 judged in Sir John Bruyn^s case, in the 
 beginning of the reign of Elizabeth, that in 
 a common recovery, (which is had by agree- 
 ment and consent of the parties,) of acres of 
 land, they shall be accounted according to 
 the customary and usual measure of the 
 country, and not according to the statute 
 de terris mensurandis. 
 
 In 12 Vin. Ahw Evidence (c), there is 
 this passage. 
 
 '' On a trial in the north, whether lands 
 were comprised in a common recovery or 
 not : being, as described, but 28 acres ; yet 
 the fact was they were 120 acres. Yet bene: 
 because the intent of the party, is, what is , 
 to govern in these cases, and tliese 28 acres 
 shall not go according to statute, but the 
 estimation of the parties. Per King, Ch. 
 Tr. Vac. 1727.'^ 
 
 And in Eyton v. Eyton {d), it was argued 
 on the part of the defendant, (and the argu-[ 273 ] 
 ment seems to have prevailed,) that the 
 deed of uses, and not the fine and recovery, 
 
 (b) Jeiik. Cent. 254. [d) 1 Bro. P. Ca. 15h 
 
 (c) P. 240.
 
 273 ON FINES. 
 
 was the measure by which the jury were 
 governed. 
 
 At all events, the rule is to amend the 
 recovery by the deed of uses, when the lands 
 are described by name, in the deed of uses ; 
 or it was evidently the intention of the 
 parties to comprehend them. An affidavit 
 is now required, of the intention to include 
 the parcels, which are omitted out of the 
 fine, &c. (e) unless there be a manifest inten- 
 tion disclosed by the deed to include the 
 parcels in question. Under such circum- 
 stances of intention, it should seem the 
 affidavit will be dispensed with, v/hen by 
 reason of the death of the parties it cannot 
 be made(/). At least an affidavit of the 
 belief of an intention to comprise the par- 
 cels, will be sufficient. 
 
 In all cases of amendment, it is an essen- 
 tial circumstance that the lands shall be 
 included either under a special denomina- 
 tion, or by general words in the deed of 
 uses ig). 
 
 A recovery comprised 42 messuages, and 
 two acres of land : forty-four messuages 
 were built on the scite : and application 
 was made to amend the recovery. 
 
 [e] JVhrcler v. Ileselline, Loggia v. Pullen, Barnes, 
 
 2 Bos. iiiKi Pull. 5(i0. 21. '' 
 
 Douse \'. J\(cvc,ih.7)7f^. (^.) Pearson V. Brovghmun, 
 
 if] IShllmnIc V. Jollttfe, I 11. ijlatk. 7a. 
 
 2nos. and Pull, 580: \i\Notis.
 
 ON FINES. 274 
 
 The court, after hearing the affidavit read, 
 and precedents of amendment, said, the 
 whole land being conveyed, containing the 
 forty-four messuages, gives a good title to 
 the grantee, for the whole, and therefore 
 the amendment is unnecessary. 
 
 But if the amendment were necessary, it 
 could not be made in this case, there beino- 
 nothing to amend by, it cannot be made by 
 tlie deed, stated in the affidavit, to make a 
 tenant to the precipe ; because that would 
 not authorize the amendment : and there is 
 no deed stated, to lead the uses of the re- 
 covery, from whence the amendment could 
 be made. But clearly the title of the 
 grantee is good, without any amendment. 
 
 This decision supports the former autho- 
 rities, (h) that buildings on land will pass by 
 the name of the land : and it goes still 
 further ; as the decision is on a general prin- 
 ciple, and not on the restricted point, that 
 the right of the demandant was to the land, 
 before the buildinofs were erected. 
 
 7- The Parts of a Fine, 
 
 The parts of a fine are, 
 
 1st. The original writ. [274] 
 
 2d. Licentia Concordandi. 
 
 Sd. The concord. To which are added, 
 
 [h] Supra, 271.
 
 27«^ ^N FINES. 
 
 4th. The note of the fine. 
 
 5th. The foot of the fine. 
 
 The three first are the material and essen^ 
 tial parts. 
 
 First. The original writ is essential to 
 the validity of a fine. Unless there be an 
 original writ, there is not any basis or 
 ground work, for the fine («'). A fine without 
 an original writ will be voidable (j), and 
 not void (k), for error. And, jio parcels 
 can be introduced into the fine, besides 
 those in the writ. Unless theie be a writ 
 there cannot be either a plaintiff or defen- 
 dant, in other words, a conusor or conusee. 
 
 These circumstances must concur in the 
 writ. There must be. 
 
 1st. A plaintiff or demandant. 
 
 2d. A tenant or deforceant. 
 
 3d. The parcels, with the proper return, 
 &c. teste, &c. so as to appoint a time for 
 the appearance of the parties in court, and 
 to give authenticity to the writ. The 
 writ must have remained in force till its re- 
 r 2751tui'n • and it must be returnable on a law- 
 day, and not on a dies non jnridicus, as 
 Sunday, &c. 
 
 A retraxit (/) puts an end to the legal 
 
 [i] Wcst'Synib. s. 23. Co. '1 R. Ah. 14. pi. C. Plow. Com. 
 
 Jiead. 1,10. ' 3»-J. b. , V , 
 
 (i\ 18 Ed. 1 Stat. 4. 2 I^^t. (/) IJio. Ahv. Judgm. pi. 
 
 513. l\'L Fine, pi. &-2. 
 
 [k] Count Lcstrau-res case.
 
 ON FINES. 27i 
 
 virtue of the writ. And at the common 
 law, the force of the writ would have been 
 determined by the death of the king (?/?), 
 before the return. Now by the statute of 
 1 Anne, c. 8, s. 5, no original writ, &c. shall 
 abate by the demise of the king or queen. 
 
 Still, however, the deiitii of either of the 
 parties ^e/bre the return of the writ [n], will 
 determine the authority conferred by the 
 writ. Of course, a fine levied on the foun- 
 dation of a writ, when the only plaintiff, or 
 only deforceant dies before the return of the 
 writ, will render the proceedings erroneous, 
 and liable to be avoided for error. But if 
 there are several plaintiffs or several deforce- 
 ants, and one of the plaintiffs or deforceants 
 dies before the return of the writ, the fine 
 will be erroneous as against that person, only 
 who shall die. The fine is generally ac- . 
 knowled^ed before the writ of covenant is 
 sued out; and this writ may, as to the , 
 courts of Westminster-Hall, be sued out in 
 vacation, returnable of a preceding term, 
 so that the fine thouijhacknowledwd in the 
 vacation, may be good, notwithstanding the [ 276 ] 
 death of one of the parties before the 
 term, provided the writ of covenant be 
 made returnable, as of the preceding term. 
 
 (m) Bro. Abr. Fine, 85. Wright v. Mayor of 
 
 («) Clements v. Langharne, Wickham, Cro. Eliz= 408."^ 
 2 Lord Raym. 872.
 
 ^J6 ON FINES. 
 
 In Wales, and the counties palatine, it 
 was a great inconvenience, that all fines were 
 heretofore acknowledged in the vacation, 
 and levied as of the next great sessions, &c. 
 when the writ of covenant was made return- 
 able ; so that no purchase could be safely 
 completed during the vacation : but these 
 courts seem now to have conformed their 
 practice to that of the superior courts. 
 
 This is done in Lancashire, upon a sus^ges- 
 tion that some of the conusors are ill, and 
 doubts are entertained of their living till 
 the next assizes. The Jiat of the vice- 
 chancellor must be obtained for the pur- 
 pose. The additional expense is from £3 
 toi:4. 
 
 Secondly. Of the Licentia Concordandi'. 
 
 The licentia concordandi is the licence 
 given by the crown for the accommodation 
 of the suit. On the original writ a fine 
 called the premier-fine, and on the licence 
 to accommodate, a fine called the post-fine, 
 or in modern times the king's silver, is due. 
 
 Both these fines are now assessed at the 
 same time, at the Alienation office. The 
 time of payment, and mode of entering, are 
 regulated by the statute of 32 Geo. II. c. 14; 
 and by this statute, s. 2, it is enacted that 
 *' no fine, until the same be marked with 
 " the sum to which the post-fine amounts 
 " in the Kiui^'s Silver Office shall be effec-
 
 ON FINES. 277 
 
 " tual ill law." And the officer of the 
 King's Silver Office or his deputy is now 
 restrained from receiving any writ of cov^e- 
 nant, unless it appear by the mark and 
 indorsement of such receiver, that the post- [277] 
 fine has been paid. 
 
 The licence to accord, or king's silver, is 
 entered to this effect. 
 
 " Robert Drury, Esquire, gives to our 
 " lord the king, seven pounds for licence 
 " to accord with Thomas Tey, Esquire, 
 *' and Elizabeth his wife, of a plea of cove- 
 *' nant of the manors of, &;c." 
 
 Such entry ought to contain the follow- 
 ing particulars. 
 
 1st. The sum given for licence to com- 
 pound. 
 
 2d. The party who pays it. This should 
 be the person in whom the fee is to be 
 vested. 
 
 3d. The plea, and between whom as par- 
 ties. 
 
 4th. The lands for which the fine is paid (0). 
 
 Any error in the entry of the king's sil- 
 ver as to the parcels, is amendable {p). 
 
 Thirdly. The concord, which is the formal 
 part of the contract between the parties. 
 and of the essence of the fine. 
 
 The concord is the substance of the fine. 
 
 {0) Tey's case, 5 Co. 39, a. (p) Bohun's ca.se, S Co, 43 
 
 ICruise, 1.32.
 
 278 ON FINES. 
 
 It contains the acknowledgment ; and is t& 
 be made in person, either in court, or before 
 commissioners under the authority of a writ 
 of dtdimus potestatem, or before the chief 
 justice of the court of Common Pleas, (who, 
 by virtue of his office, and without any writ 
 of dedimtis, may take the acknowledgment 
 of a fine,) or before justices of assize. In 
 case of an acknowledgment taken by jus- 
 tices of assize, it is the practice to sue 
 out a writ of dediuius potestatem to them 
 after the acknowledgment is taken ; but 
 this course, though usual in practice, is not 
 deemed absolutely necessary. 
 
 The concord in a fine sur conuzance de 
 droit come ceo, is to this effect. 
 
 And the agreement is such to wit, that 
 the aforesaid A. hath acknowledged the 
 iiforcsaid messuage, with the appurte- 
 nances, to be the right of the said C, as that 
 which the said C. hath of the gift of the 
 aforesaid A. And the same messuage, with 
 the appurtenances, the said A. hath remised 
 and quit-claimed, from him the said A. and 
 bis heirs, to the aforesaid C. and his heirs, 
 for ever. And moreover the said A. hath 
 granted, for himself, and his heirs, that he 
 will warrant to the aforesaid C. and his 
 heirs, the aforesaid messuage, with the ap- 
 purtenances, against him the said A. and 
 his heirs, for ever. And for this, &c.
 
 ON FINES. 279 
 
 Taken and acknowledged the 
 
 day of 
 in the year of the 
 
 rei<ni of Kins; Geori^e the 
 Third, before 
 
 ANOTHER FORM. 
 
 And the agreement is such, that is to say, 
 that the said A. and C. have acknowledged 
 the tenements aforesaid, with the appurte- 
 nances, to be the right of the said D., as 
 those which the said D. hath of the gift of 
 the said A. and C. And those they have 
 remised and quit-claimed, from them, the 
 said A. and C, and their heirs, to the afore- 
 said D, and his heirs, for ever. And more^ 
 over, the said A. and C. have granted, for 
 themselves, and the heirs of the said A, that 
 the}^ will warrant to the aforesaid D, and 
 his heirs, the aforesaid tenements, with the 
 appurtenances, against them, the said A. 
 and C, and the heirs of the said A. for ever. 
 And further^ the said A. and C. have granted 
 for themselves, and the heirs of the said C, 
 that they will warrant to the aforesaid D, 
 and his heirs, the aforesaid tenements, with 
 the appurtenances, against them, the said 
 A. and C, and the heirs of the said C, for 
 ever. And for this, &c. 
 
 Taken, &c. 
 
 VOL. I. X
 
 280 ON VINES. 
 
 ANOTHER FORM. 
 
 Ar.d the agreement is such, that is to say, 
 that the said A. and C. D. and F, and G. 
 have acknowledged the aforesaid tenements, 
 and common of pasture, with the appurte- 
 [ 280 jnances, to be the right of the said J. and L, 
 as those which the said J. and L. have of 
 the gift of the said A. and C, D. and F, and 
 G. Jnd those they have remised and quit- 
 claimed, from the said A. and C, D. and F, 
 and G, and their heirs, to the said J. and 
 L, and the heirs of the said J, for ever. And 
 moreover, the said A. and C. have granted, 
 for themselves, and the heirs of the said C, 
 that they will warrant to the said J. and.L, 
 and the lieirs of tlie said J, the aforesaiti 
 tenements, and common of pasture, with 
 the appurtenances, against tliem, the 
 said A. and C, and the heirs of the said 
 C, for ever. And further, the said D. and 
 F. have granted, for themselves, and the 
 heirs of the said F, that they will war- 
 rant to the said J. and L, and the heirs of 
 the said J, the aforesaid tenements, and 
 common of pasture, v»'ith the appurtenances, 
 against them the said D. and F, and the 
 heirs of the said F, for ever. Afid also the 
 said G. hath granted, for himself, and his 
 heirs, that he will warrant to the aforesaid 
 J. and L, and the heirs of the said J, the
 
 ON FINES. 281 
 
 aforesaid tenements, and common of pas- 
 ture, with the appurtenances, against him 
 the said G, and his heirs, for ever. And 
 for this, &c. 
 Taken, &c. 
 
 The following is the form of concord in a 
 fine sur conuzance de droit tantiim. [ 281 ] 
 
 And the agreement is such, to wit, that the 
 aforesaid E. hath acknowledsjed the afore- 
 said tenements, with the appurtenances, to 
 be the right of the said C. And he hath 
 granted, for himself and his heirs, that the 
 aforesaid tenements, with tlie appurte- 
 nances, which W. R. and A. his wife hold 
 for the term of the life of the said A, of the 
 inheritance of the said E, on the day on 
 which this agreement is made, and which, 
 after the decease of the said A, ought to 
 revert to the said E. and his heirs ; shall 
 after the decease of the said A, entirely re- 
 main to the said C. and his heirs, for ever. 
 And the aforesaid E. hath granted for him- 
 self, and his heirs, that he will warrant to 
 the said C. and his heirs, the aforesaid tene- 
 ments, with the appurtenances, in such 
 manner as is aforesaid, against him the said 
 E, and his heirs, for ever. And for this, &c. 
 
 Or instead of the grant there may be a 
 release from one and his heirs, to the other 
 and his heirs. 
 
 X 2
 
 282 ON FINES. 
 
 A fine sur concessit for years may be in 
 this form. 
 
 And the agreement is such, to wit, that 
 the aforesaid C. H. and E. have granted to 
 the aforesaid A, the aforesaid tenements, 
 with the appurtenances. To have and to 
 hold the aforesaid tenements with the 
 appurtenances to the said A, from the feast 
 of the Annunciation of the blessed Vir- 
 gin Mary, last past, until the full end and 
 term of twenty -one years, from thence next 
 [ 282 ] ensuing, and fully to be complete and ended'. 
 Yielding and pai/ing, therefore, yearly, to 
 the aforesaid C. and E, and the heirs of the 
 said C, one pepper-corn, at the feast afore- 
 said, during the term aforesaid, if it be 
 demanded, and two fat capons at the feast 
 of Easter yearly, during the term aforesaid^ 
 And the aforesaid C and E. have granted 
 for themselves, and the heirs of the said C, 
 that they will warrant to the aforesaid A. 
 the tenements aforesaid, with the appurte- 
 nances, against them the said C. and E, and 
 the heirs of the said C, during the term 
 aforesaid. And for this, &c. 
 
 Taken, &c. 
 
 The form of a fuic stu^ concessit for life, 
 hy a tenant in remainder. 
 
 And the agreement is such, to wit, that the 
 aforesaid A. and B. have granted the tenc-
 
 ON FINES. 282 
 
 merits aforesaid, with the appurtenances., to 
 the said C. and D. and the heirs of the said 
 
 C. To have and to hold the said tenements, 
 with the appurtenances, to the said C. and 
 
 D. ard the heirs of the said C, for and dur^ 
 ing the hfe of the said B, without impeach- 
 ment of waste, and for and during all and 
 wliatsoever else the said A. and B. have in 
 the tenements aforesaid, with the appurte-^ 
 nances, but subject, and without prejudice 
 to the estates, which were limited by, and 
 are now subsisting under the last will and 
 testament of the Rii^ht Honorable Robert 
 late Earl of E, the father of the said B, and 
 bearing date on or about, &c. to commence 
 and take effect prior to the estate by the 
 same will limited to the said B, for her life, 
 in the tenements aforesaid, with the appurr- 
 tenances. And the said A, and B. have 
 granted for themselves, and the heirs of the 
 said B, that they will warrant the said tene- 
 ments, with the appurtenances, to the said 
 C. and D. and the heirs of the said C. dur- 
 ing the term of the natural life of the said 
 B, to commence and take effect in posses- 
 sion when the estates limited by the said 
 will of the said Robert Earl of E, prior to 
 the estate thereby limited for the life of the 
 said B. shall be determined. /i;2fl( for this, 
 &c.
 
 282 ON FINES. 
 
 This fine passed. There is no form of 
 the sort among the precedents. 
 
 Form of a fine sur concessit for lives, to 
 preserve a reversion in tenant for life, hav- 
 ing power of leasing. 
 
 And the agreement is such, to wit, that the 
 said John and Susanna have granted to the 
 said A. B. the tenements aforesaid, with 
 the appurtenances. To have and hold the 
 aforesaid tenements, with the appurtenances, 
 imto the said A, and his heirs, until the 
 death of the survivor of and 
 
 or which shall first happen until the death 
 of the survivor of the said John andSusanna. 
 
 And the said John and Susanna have 
 granted for themselves that they will war- 
 rant to the said A, and his heirs, the tene- 
 ments aforesaid, with the appurtenances, 
 during the term aforesaid, against them the 
 said John and Susanna, and the survivor of 
 them. 
 
 A fine sur grant et render is generally in 
 this or the like form ; varying according to 
 circumstances. 
 
 And the agreement is such, to wit, that the 
 aforesaid M. hath acknowledged the afore- 
 said tenements, with the appurtenances, to 
 be the right of the said J, as those which
 
 ON FINF5;. 285 
 
 the said J. hatli of the gift of the aforesaid 
 M. And those lie hath remised and quit- 
 claimed, from himself, the said M, and his 
 heirs, to the aforesaid J. and his heirs, for 
 €ver. And moreover the said M. hath granted 
 for himself and his heirs, that he will war- 
 rant the aforesaid tenements, with the 
 appurtenances to the said J. and his heirs, 
 against himself the said M. and his heirs, 
 for ever. And for this acknowledgment, [ 283 
 remise, quit-claim, and warranty, fine and 
 agreement the said J. hath granted and 
 rendered {q) to the said M. the aforesaid tene- 
 ments, with the appurtenances, in the same 
 court, To have and to hold the said tenements, 
 with the appurtenances, to the said M. and 
 the heirs which the said M. shall beijet on 
 the body of L., his now wife. And if it shall 
 happen that the said M. shall die without 
 heirs begotten by him on the body of the 
 said L., then the aforesaid tenements, with 
 the appurtenances, entirely to remain to 
 the said L, during her life, and after the 
 decease of the said L, the aforesaid tene- 
 ments, with the appurtenances, entirely to 
 remain to the said J. and his heirs, for ever. 
 
 The parties to every concord are 
 1st. The conusor, and 
 l2d. The conusee. 
 
 iq) This furm differs from the pretedenta.
 
 284 ON FINES. 
 
 The concord must name or refer to the 
 parties and the parcels, and contain words of 
 grant, limitation, &c. and the warranty to 
 be entered into between the parties. 
 
 Of the Parties. 
 
 [ 284 ] The fine must be between the same per- 
 sons as are named parties in the original 
 writ (r). A stranger to the writ cannot be 
 the grantee of an immediate estate {s). To 
 this general rule there are these exceptions. 
 
 Viz. a reversioner received on default {t) 
 by a tenant for life, or a person who comes 
 in as vouchee [u) in a real action, may be the 
 conusor ; for the reversioner or vouchee be- 
 comes party to the suit, and stands in the 
 place of the person against whom the writ 
 was sued. But a vouchee cannot, with effect, 
 lew a fine to a strauQ-er. 
 
 Such fines, however, are voidable only, 
 and not void (i^). 
 
 i\nd in a fine sur grant et render, the ren- 
 der may be to a stranger, by way of remain- 
 der after a particular estate [iv). The ren- 
 der, however, of the first or immediate estate 
 must be to a person who is a party to the 
 writ [x). If a render of the immediate es- 
 
 (r) Co. Rrad. 0, {v) lift. § GGO. Co. Litf. 
 
 (.v) :j Co. 5. .353. 
 
 {t) Co. lU-afl. 11. [w] Co. Head. 0. 
 
 (u) 3 Co. 29, b. (r) a Co. 5.
 
 ON FINES. 283 
 
 tate be to a person not party to the fine, 
 the fine is voidable only, not void (y). So 
 if the render be to two, of whom only one 
 is named in the writ, the tine is voidable, as 
 to him, for error {z). 
 
 Of the Parcels. 
 
 No parcels besides those comprised in the 
 writ, can be included with effect in the con-r OQo ] 
 CO] d of the fine. These alone are the lands 
 of which the courts have jurisdiction by 
 virtue of the writ. A fine levied of any 
 other lands (a) is levied without a proper 
 authority to warrant it, and to this extent, 
 the fine will be erroneous. But in a fine sur 
 grant of lands, there may be a render of 
 rent issuing out of the same lands (/»). For 
 as a suit is depending of these lands ; a rent 
 issuing out of these lands, may be rendered 
 by the conusee to the conusor of the lands. 
 
 So when the grant is of the intirety, the 
 render may be of a third part ; but if the 
 grant is of a third part, the render cannot 
 be of any larger or other share (c). 
 
 So in all fines the concord may distribute 
 the parcels, by granting a divided part to 
 
 [y] Owen v. Morgan, 3 {b) Co. Read. 11. 2 R. 
 
 Co. 5. Ahr. IG. 2 inst. 514. 
 
 {s) Owen V. Morgavy 3 [c] 2 R. Abr. 16, pi. 11. 1 
 
 Co. 5. Cruise (>«!, 07. 
 
 (a) Co. Read. 11. 2 R. 
 Abr. 14.
 
 286 ON FINKS. 
 
 one and the residue to another ; or an un- 
 divided share to one, and an undivided 
 share to another. 
 
 80 when the grant is in fee, the render 
 may be for a particular estate. But the 
 render cannot be in fee, when the grant is 
 expressly, or by construction of law, for a 
 particular estate. 
 
 Lord Coke (d) propounds the rule in these 
 [ 286]terms; A. may grant and render to B, a rent 
 of the same manor contained in the fine, 
 but not out of any other land ; neither can 
 the grant and render be of any thing co//a- 
 terai to the land, &c. contained in the writ, 
 or of another nature, and neither issuing out 
 of, nor incident to the land, &c. contained 
 in the original. 
 
 When the parcels lie in different counties, 
 the practice used to be, to have several writs 
 of covenant ; one for the parcels in each 
 county ; and only one concord and one 
 fine {e). The practice now, in pursuance of 
 a regulation which has lately taken place, 
 is to liave a distinct concord and distinct 
 fine for the lands in each county. In conse- 
 quence of an order of Lord Chancellor Hat- 
 ton ( /'), several owners of distinct tenements 
 will not be allowed to join in the same fine; 
 
 {d] 2 Inst. 514. (/) Wils. 47. 1 Cruise, 32. 
 
 {e) 2 Inst. 512. Dyer, 227. 
 1 C'rui>e, Jjl.
 
 ON FINES, 287 
 
 unless the lands are under the value of 200/. 
 and there is an affidavit to that effect. 
 
 This rule has an exception of coparceners, 
 joint-tenants, and tenants in common ; and 
 the rule is merely for the regulation of the 
 conduct of the officers, and if not enforced, 
 the fine will be effectual. 
 
 Of Words of Limit at io7i. f 287 1 
 
 In a fine sur conuzance de droit come ceo, 
 &c.the fee will pass without any words of 
 inheritance [g). Words of limitation, how- 
 ever, if added, will confine the effect of the 
 fine, to the particular estate which is ex- 
 pressed, as for life, in tail, &c. (h). 
 
 So no words of limitation are necessary 
 in a fine sur conuzance de droit tantum (i) ; 
 but being added, they will have the effect of 
 the intention they express. 
 
 In fines sur grant et render and fines sur 
 concesseruni , words of limitation are gene- 
 rally added : and they are necessary, when 
 more than an estate for life is to pass : for a 
 grant, by fine, of the tenements, will not, 
 without express words, pass more than an 
 estatti for life. 
 
 Except as to lands of the tenure of gavel- 
 
 ig) Co. Litt. 9, b. 340. Dyer, C9. 8hep. Prac. 
 
 (/i) Hunt V. Bourne, 1 Salk. Couns. 155. Co. Read. 2. 
 
 {i) Co. Read. G,
 
 288 ON FINES. 
 
 kind (j) the judges will not allow lands to 
 be limited to two and their heirs {k). They 
 require the fine to be to two and the heirs 
 of one of them (/). 
 
 Certainty is the alleged ground of insist- 
 ing on this practice, since it is the object of 
 [ 288 ] fines to settle the possession, not only for the 
 present, but for the future, in the most cer- 
 tain and secure manner. But what reason 
 is there for allowing a fine of lands of gavel- 
 kind tenure to be levied to two and their 
 heirs, which does not equally apply to ethef 
 lands % May not two persons bti equally 
 interested as the grantees or coparceners [m] 
 of other lands, as well as those of gavelkind 
 tenure? Tliough other lands descend to 
 one son, while gavelkind lands descend to 
 all the sons as one heir, yet other lands may, 
 in some cases, descend to several females, 
 and even to several males being the descend- 
 ants of females, as coheirs. 
 
 Besides, the grant to ttvo is totally un- 
 connected with any reason which concerns 
 a grant Z>i/ tivo ; and there is an apparent 
 absurdity in supposing that the right can- 
 not be acknowledged as in two, wheji the 
 law recognizes and sanctions a grant to two^ 
 as joint tenants in fee. This practice then 
 
 {j) Rob. Gavelk. 132. (/) Ibid, and 2 Co. 74 b. 
 
 (/c) 2 Roll. Abr. Fine 18 [yn] 2 lioU. Abr. Fine 1& 
 
 (0.) pi. 8; 19 (P.) pi. 4, 5, 8. (P.) pi. 1. 
 6 Co. 08 b. 2 Mod. 49.
 
 ON FINES. 289 
 
 is one of those anomalies wliicli destroys the 
 beauty of the juridical system, by intro- 
 ducing a case totally void of foundation in 
 principle. 
 
 Accordingly, a fine though levied to two 
 and their heirs will be allowed to be of 
 force («). The rule is Jieri non debuit sed\_^^9 '\ 
 factum valet (o). 
 
 vSo it is said a single fine ou2;ht not to be 
 levied on condition (p) ; and yet if the fine 
 pass, it will be effectual [(j) : and in a ren- 
 der it is allow^ed, that a condition shall be 
 inserted. And it is also said, that a fine 
 ought not to be with an exception, a clause 
 of saving, of re-entry, &c. But in practice 
 an exception is allowed, and it would be 
 absurd if it were not : and in fines sur grant 
 €t render, a clause of re-entry may be intro- 
 duced in the rendering part of the fine. 
 
 A fine maybe good with or without a 
 warranty. 
 
 In general a warranty is added ; and it 
 should be adapted to the circumstances of 
 the case, and the intention of the parties. 
 
 As between a purchaser and seller, or 
 even a settler for the benefit of other per- 
 sons, the warranty ought not to extend be- 
 yond the agreement of the parties. 
 
 A warranty in a fine by husband and wife, 
 
 (h) 2 Mod. 49. (p) 5 Co. 38, b. 
 
 (oj 5 Co. 38, b. \ii) Ibid.
 
 290 ON FINES. 
 
 will enable the conusee to maintain an action 
 of covenant against the wife (r). 
 
 When the fine is to two and the heirs of 
 [ 290 ] one, the warranty ought to be conformable 
 to the grant. 
 
 It is said that a warranty from two and 
 their heirs ought not to be allowed [s). To 
 this there is an exception, when the lands 
 are of gavelkind tenure. 
 
 In practice, the general rule, that there 
 cannot be a warranty from two and their 
 heirs, is avoided by taking distinct warran- 
 ties from each and his heirs ; or one warranty 
 from both, for themselves and the heirs 
 of one of them, and another from both, for 
 themselves and the heirs of the other of 
 them. Thus that is accomplished by indi- 
 rect means, which is not allowed in direct 
 terms. 
 
 Fourthly. The note of the fine is only an 
 abstract of the writ of covenant, and of the 
 concord. It names the parties, the parcels, 
 and the agreement. 
 
 Fifthly. The foot of the fine includes the 
 whole matter. This is in truth the chiro- 
 graph, and the document of which the in- 
 dentures are a transcript, or at least from 
 which they are made. 
 
 It begins with these words, 77^/* is the 
 
 (r) Wotton V. Hale, 2 (.») 2 Roll. Abr. Fine l». 
 Saiind. 177. pl. J>.
 
 ON FINES. 291 
 
 final agreement, and it rehearses the names 
 of the parties, the parcels, and the day, 
 year, and court in which, and before whom, 
 the fine is levied. 
 
 When a chirographer makes out the[ 291 ] 
 indentures, the fine is said to be engrossed, 
 and the chirograph is conclusive evidence 
 of the fine {t). 
 
 The fine, however, is perfect before it is 
 engrossed, — and evidence may be given of 
 it without producing the indentures. 
 
 Of the proclamations, when there are any, 
 evidence must be given by producing and 
 proving an examined copy of them. The 
 usual indorsement on the indentures will not 
 be received as evidence, in a court of jus- 
 tice, of the proclamations (?/). 
 
 The chirographer is the officer intrusted 
 by law to transcribe the indentures from 
 the records ; and full credit is, for that rea- 
 son, to be i^iven to the authenticity of these 
 indentures. 
 
 No such authority resides with him in 
 regard to the proclamations. 
 
 8. When a Tine is complete. 
 
 First, Asa conveyance. 
 
 Till the writ is rcturnabls the court has 
 
 (0 Gilb. Evid. 24. BuUer's (m) Gilb. Evid. 2-5. Buller's 
 N. P. 229. N. P. 229.
 
 292 ON FINES. 
 
 no jurisdic'tion ; for this reason, till the 
 writ is returnable, a fine is not complete. 
 The death of the parties, either of ail the 
 plaintiffs, or all the dcforceants, bef >re the 
 writ of entry is returnable, will avoid the 
 fine (7;). But the death of one of several 
 conusors, or of one of several conusees, be- 
 fore the writ is returnable, ^v\\[ avoid the 
 [292 ] fine only as against the deceased party. It 
 is sometimes said that the fine is not com- 
 plete till payment of the king's silver. On 
 this point it is to be observed, that the 
 king's silver is not payable till the writ of 
 covenant is returnable. It cannot be con- 
 sidered as paid at an earlier period. And 
 when the party dies, after the writ of cove- 
 nant is returnable, but before the king's 
 silver is paid, a caveat against the fine may 
 be entered, and the fine will be stopped ; 
 but if the king's silver be paid, even after 
 the death of the party, on a writ of cove- 
 nant made returnable in his life-time, the 
 fine will be complete, and there are not 
 any means of impeaching it(w). 
 
 Tlie acknowledgment of the concord is 
 the principal act of the parties (.r). This 
 concord and the payment of the king's sil- 
 
 (v) Wright V. Muyor of {w) 2 Inst. 511. Farmer's 
 fVickhani, Cro. Eliz. 4(38*. case. Hob. y:}0. 
 
 Clements v. Lanskarnc, 2 Harnics v. Micklethwaite, 
 Lord Ruym. 872. ^ Barnes, 214. 
 
 (x) 2 Inst. 511.
 
 ON FINES. 293 
 
 ver are the only substantial parts proceed- 
 ing from the parties. 
 
 It is true there must be an original writ. 
 That writ must be sued out, and be return- 
 able, before liie entry of the king's silver 
 can be made on the same. 
 
 But this writ may, as to fines levied in 
 the court of Common Pleas, be made re- 
 turnable as of a preceding, or as of a subse- 
 quent term. 
 
 If it be returnable of a preceding term,[ 293 ] 
 the fine will be good, and may be recorded, 
 notwithstanding the death of one of the 
 parties during the vacation, and even before 
 actual payment of the king's silver, so as 
 the king^s silver be paid : and, as already 
 noticed, the king's silver may be paid after 
 the death of the party, unless prevented by 
 a caveat entered for that purpose at the 
 king^s silver office [y). 
 
 But if the writ of covenant be made re- 
 turnable as of the next term, or of any par- 
 ticular return in a term, then the death of 
 one of the parties in the mean time, will, as 
 to him, vitiate the fine. As far as he is 
 concerned, there is not any longer a conusor 
 or conusee [z). 
 
 The practice is to take the acknowledg- 
 ment in the vacation, and to iiave the writ 
 
 {y) Barbel' y. Nun, Barnes, Cases & Op. 1 vol. 4:J4. 
 218. [z] i Cruise, 48. 
 
 VOL. I. y
 
 294 ON FINES. 
 
 of covenant returnable, sometimes as of the 
 preceding, and sometimes as of the suc- 
 ceeding term. This practice is exempt from 
 error; for the time when tiie fine is acknow- 
 ledi^ed is immaterial. 
 
 The writ of covenant, as of a succeeding 
 term, may be returnable as of the first day 
 of the term, or any other return day ; and 
 [294] the fine, when levied, will have relation, in 
 point of legal operation, to that day, with- 
 out any regard to the time at which the fine 
 was acknowledged, or the king's silver 
 paid. 
 
 \\\ Lloyd v.Say S; Sek{a), a fine acknow- 
 ledoed in March, and recorded as a fine of 
 Michaelmas term, was allowed to be free 
 from the objection that it did not make a 
 good tenant to a writ of entry in a recovery 
 suffered of Michaelmas term. 
 
 This doctrine of relation has been carried 
 so far, that a conusee of a fine levied of a 
 preceding term, will avoid a statute entered 
 into in the vacation, and before the fine was 
 acknowledged (/>). 
 
 And in Pcerc Williams's lleports, 3 vol. 
 170, in a note, a fine levied on a writ of 
 covenant returnable as of a subsequent 
 term, is considered as a revocation of a will 
 
 (<t) Llot/d V. Saif and Sch, [b] Jciik. Cent. 250. 
 I biowii, V. Ca. :i7y.
 
 ON FINES. 295 
 
 published after the fine had been acknow- 
 ledged, and the deed of uses executed. 
 
 A doubt is now entertained whether this 
 point be law. The case o^Se/wi/nv. Selwyn 
 (c) appears to afford a principle, on which 
 that doubt may be supported. — Why should 
 not the fine and deed of uses operate as parts 
 of the same assurance, and have relation to 
 the deed of uses, as the principal part of[ 295 ] 
 that assurance^ 
 
 On account of the cases, concern ins: the 
 relation of fines, to the return day of the 
 writ of covenant, it will be prudent, when a 
 fine is levied to gain a title by non-claim, 
 and a feoffment is to be made to acquire the 
 freehold, as a foundation for the fine, that 
 the fine should be so levied, that the rela- 
 tion may be subsequent to the date of the 
 livery on the feoffment. 
 
 A purchaser, relying on a fine, as the effi- 
 cient part of a conveyance, by a married 
 woman, or by a tenant in tail, should, before 
 he pays his purchase-money, take care that 
 the fine is acknowledged, that the writ of 
 covenant on which it is levied is returnable, 
 and that the king's silver has been paid, 
 
 (c) 2 Burr. 1131, 
 
 Y 2
 
 i96 ON FINES. 
 
 Secondly, When a fine is cbinplete as operate 
 ing wider the statute of proclamations. 
 
 By the several statutes of proclamations, 
 two objects are to be obtained, 
 
 1, To bar heirs in tail [d). 
 
 2, To gain a title by non-claim (e). 
 
 1. To bar heirs in tail, there must be 
 [ 296 ] proclamations. Hence tines levied in courts 
 of ancient demesne, or in other courts, not 
 having the power by statute law of pro- 
 claiming their lines, will not bar the issue 
 claiming under an estate-tail (/'). These 
 proclamations may be made in the life-time, 
 or after the death, of the conusor or conu- 
 see ; and even after a claim has been made 
 by the issue in tail (g) : and as soon as the 
 proclamations are made, the operation of 
 the fine as a conveyance^ conferring a good 
 title against the heirs of the intail, has rela- 
 tion to the return of the writ of covenant. 
 
 In a former part of this chapter [h), it 
 has been considered by whom a fine may 
 be levied, so as to bar the issue in tail. 
 This subject will be resumed and more 
 fully treated on in a subsequent part [i). 
 
 It is not sufficient, that the person by whom 
 the fine is levied is merely Ti parent y &c. (^'). 
 
 [d] .Stilt, of 4 H. VII. 32 H. (A) Sui)ni, 218. 
 
 VII J. (i) lufni, 300. 
 
 {€) 4 H. Vll. {,;) Sl.ep. T. 20. Hob. 333. 
 
 {/) Hunt V. Bourne, Salk. Edwards v. Rogers, W. 
 
 3.31). Jones 450. 
 
 (if) Pur slow' s cus€, 3 Co. 
 
 W^ I.. •
 
 ON FiNliS. 2^J 
 
 He must be an ancestor connected in pri- 
 vity of estate, or of title. 
 
 2. To bar strangers by non-claim, tl>e 
 proclamations are an essential part of 
 the assurance. The period of non-claim 
 begins to run from the time when the last 
 proclamation is made. Of course it is from 
 that time that the period of limitation pre- 
 scribed by the statute of non-claim must be 
 computed ; unless perhaps when the fine is 
 executory : for when the fine is executory 
 it has been doubted, whether the period of[ 2971 
 non-claim will begin to run till the fine shall 
 be executed {k). According to Lord Coke, 
 the period of non-claim on a fine at the com- 
 mon law, ran on an executory fine, from the 
 time at which the fine was levied (/). 
 
 The proclamations may be void for error 
 in them : as not made at the period pre- 
 scribed by the statutes by which they are 
 regulated ; or as made, according to the 
 entry, on a dies nonjuridicus, as on a Sunday, 
 or out of the term, which is contrary to 
 the statutes. Notwithstanding an error in 
 the proclamation, the fine may be good by 
 the rules of the common law, as a common 
 law conveyance, or as an estoppel (w). The 
 
 {k) Per Lord Redesdale, 1 (m) Dyer, 216, a. I Bulst 
 
 Sch. & Lef. 2-28 206. 
 
 [I] Co. Read. 14. But see 
 2 Inst, 517.
 
 298 ' ON FINES. 
 
 issue in tail, however, are not bound by 
 estoppels. When the fine itself is avoided 
 for error, the fine will lose its efiect, under 
 the statute of non-claim, and also the 
 statutes for barring entails, as well as at the 
 common law. 
 
 These observations must, as to heirs in 
 tail, be understood to be confined to error 
 in the form of the fine ; in short, to the 
 want of an efficient fine. For though a fine 
 may be avoided as to strangers, and as far 
 as relates to its common law operation, by 
 the p\e3, of pai'les JiJies nihil, &c. or defeated 
 [ ^^98 ] by the entry of a person who has some right 
 independent of the intail, (as by a tenant 
 for life who was dissiesedj ; or if the heir in 
 tail makes his claim after the fine is levied, 
 and befi)re the proclamations are made ; yet 
 in all these instances the proclamations, 
 when made, will be a bar to the issue {n). 
 
 In regard to persons to be barred by 
 nonclaim, it will be competent to them to 
 plead, in answer to a fine, that partes fines 
 niliil habuerimt . By that plea, supported by 
 evidence, the fine, and, as a consequence, 
 the effect of the proclamations will be 
 avoided. 
 
 (n) Hunt V. King, Cro. Parslow's case, 3 Co, 00, b. 
 Eliz. 589, 610.
 
 ON FINES. 299 
 
 9. The differ erice between a fine, as a con- 
 •veyance, an estoppel, a bar to issue in tail, and 
 a bar under the statute of non-claim, is now 
 to be considered. 
 
 First, as a conveyance. 
 
 A fine, as a conveyance, must proceed from 
 the seisin of the part3^ It is in general 
 use as a conveyance by a married woman. 
 On account of her coverture, she is not 
 competent to convey without some act of 
 record, on which she may be privately 
 -examined. 
 
 When a fine is levied by a tenant in fee, 
 it, like every other ordinary conveyance, 
 merely passes the estate vested in the party. 
 When levied by a tenant in tail, it passes a 
 base or determinable fee (0), except when he[ 299 ] 
 has an estate-tail in possession. In the ex- 
 cepted case, instead of operating as a con- 
 veyance, it discontinues the estate-tail, and 
 passes the fee-simple under a new title [pY 
 
 If the tenant in tail has previously con- 
 veyed a base fee, his fine, as a distinct as- 
 surance, operates rather as a confirmation 
 or release, in extinguishment of the intail, 
 than as a conveyance. No discontinuance 
 will under these circumstances beeffected {q). 
 That the tenant m tail is no longer seised 
 
 [o] Seijmon.rs case, 10 Co. Driver v. Hussey, 1 U. 
 
 95, Buic-kbt -260. 
 
 [p] Doe V. WhileheacL 2 [q] Seymour's case, 10 Cu. 
 
 Burr. 704, 95.
 
 300 ON FINES. 
 
 by force of the intail, is the ground of this 
 distinction. No other tenant in tail, except 
 a tenant of an estate-tail in possession, 
 can create a discontinuance. For this rea- 
 son, a tenant of an estate-tail, after a sub- 
 sisting estate for life, cannot discontinue 
 the estate-tail, even although the tenant for 
 life join in the fine (r). 
 
 But when a lease and release are made by 
 a tenant in tail, and a fine is afterwards 
 levied, in pursuance of a covenant contain- 
 ed in the indenture of release, and as part 
 of the same assurance, the fine will be a 
 discontinuance {s). 
 [ 300 ] A fine by tenant for his own life, if the 
 limitation in the fine be confined to the 
 period of his life, will operate merely, and 
 simply, as a conveyance, and not as devest- 
 ing the remainders or reversion. 
 
 So a fine by a tenant for life in remainder, 
 after another estate for life, importing the 
 grant of a larger estate, may cause a forfei- 
 ture, but cannot devest any estate, when 
 the owner of the prior estate continues in 
 possession (t). 
 
 But if tenant for his own life in posses- 
 sion levy a fine, which imports to convey 
 
 (r) Driver v. Hussey, 1 [t] Car/iampton v. Cav- 
 
 il. Bliickbt. 209. hampioii. 1 Irish Term Rep. 
 
 firedun's case, 1 Co. 70. !}()?. 
 
 (s) Doe V. Whitehead, 2 
 Burr. 701,
 
 ON FINES, 301 
 
 an estate in fee, in tail, or for another life, 
 it will operate to devest the estate of those 
 in remainder (w). Of course it passes a tor- 
 tious estate, and turns the estate of those 
 in remainder or reversion into a right of 
 entry. On this point Mr. Sergeant Williams, 
 in one of his very useful notes, observes (z;), 
 '' It seems to be an establisiied rule, that 
 *' an actual entry is necessary to avoid a 
 *'* line," (with proclamations it must be un- 
 derstood) " levied by tenant for life. 
 *' However, in the case of Doe, lessee of 
 '' Compere v. Hicks, it was said by counsel 
 *' in argument, that doubts had been enter- 
 •' tained, whether a fine, levied by tenant 
 *' for life, had any operation. But however 
 *' such doubts may have arisen, there seems [ 301 ] 
 '' no foundation for them." 
 
 Let it be remembered that the fine of a 
 tenant for years, a copyholder, or owner of 
 any chattel interest, has not any operation 
 on the freehold. Unless the freehold be 
 acquired by means of a feoffment, no estate 
 will be devested. Any attempt to set up 
 the fine as a bar, may be answered by the 
 plea of partes Jinis nihil habuerunt {xv). 
 
 [u) Focus V. Salisbury, Fermor*s case, 3 Co. 77. 
 
 Hard. 400. Co. Litt. 251, a, b. Smith v. Parkhnrst, 18 Vin. 
 
 [v) 1 iSaund. 319. 413. 
 
 {w) Focus V. Salisbiiri/f 
 Hard. 400.
 
 302 ON FINES. 
 
 Secondly, 'Estoppel. 
 
 As often as a fine is levied by a person 
 Avho has no estate or seisin, it may operate 
 as an estoppel : in other words, as a coiiclu- 
 sion, on any right he might oilierwist have 
 had, or on any claim he might otherwise 
 have asserted. 
 
 Thus a fine levied by a person wlio after- 
 wards becomes heir^ will be an estoppel to 
 his claim as heir ; and yet a release by him 
 by deed, while he had merely a hope or 
 chance of succession, would not have barred 
 his title \x). 
 
 So a fine levied by a person who has a 
 contingent interest will, in some cases, bar ; 
 in others, bind that interest (3/). 
 
 And if a person who has merely a right 
 of entry, as a disseisee, or a right of action 
 as a discontinuee, levies a fine to a stranger, 
 the person in possession may take advan- 
 tage of this fine, to preclude the party from 
 claiming the land in opposition to his own 
 fine [z). 
 
 On the authority of Vick v. Edzvards (a), 
 there was, at one period, a prevailing prac- 
 tice, to require a fine froni two persons, 
 when an estate was limited to them and the 
 survivor of them and his heirs, in the hopes 
 
 (x) Sir JMdrniad. Wivefrs ( //) Jl'fale v. Lou-er, Fol- 
 
 case, Hob. 45. 1 Roll. Abr. Itxt". 51. 
 
 4S2. (S.) |.l. 2. [z] Buckler's c:i>i;2CoJ:^. 
 
 Morse V. lutufhicr, 1 Aiistr. [a] li V. W. ti72. 
 
 11. a. T. lit-i,. ao5.
 
 ON FINES. 303 
 
 of acquiring the fee by means of the estoppel. 
 On that practice the following observations 
 may be deemed relevant. They have more 
 than once been allowed their weight in 
 practice, by gentlemen in whose opinion 
 confidence is deservedly placed. 
 
 " The more this title is considered, the 
 *' more reason there is lo be satisfied that 
 " it is neither marketable, nor can be ac- 
 " cepted with safety, either by a mortgagee, 
 '^ or a purchaser, if the conclusion drawn 
 *' in a former opinion, that the fine levied 
 " by J. N. and A. his wife, extinguished 
 *' their contin"*ent remainder in fee, be well 
 *' founded. Now that the remainder was 
 ** extinguished seems to flow from the na- 
 " ture and operation of fines, and the prin- 
 ^^ ciple of tenures, and to be a direct conse- 
 *' quence of the sixth resolution in £mcA^-[303] 
 "' lev's case, 2 Co. 55, a. and from Weak 
 '' and Lower, Pollexfen, 54, and Moor's 
 " case, Palmer, 365. It was resolved in 
 *' the first of these cases, that if the dis- 
 " seisee levy a fine to a stranger, the dis- 
 *' seisor shall hold the land for ever ; for 
 *' the disseisee against his OAvn fine cannot 
 " claim the land, and the conusee can- 
 *' not enter. The right which the conusor 
 *' had cannot be transferred to him, but 
 *' the right by the fine is extinct, whereof 
 ** the disseisor may take advantage. And 
 " in the second of these cases, that if the
 
 304 ON FINES. 
 
 *' fine had been levied by Thomas in fee, 
 '' this would have barred the estate of the 
 *' heir, destroyed the contingent use, and 
 " operated to the benefit of the possession, 
 " as the fine of a disseisee to a stranger. In 
 " the third case, baron and feme were te- 
 '^ nants in special tail, with remainder to A. 
 *' in tail ; the baron discontinued and died ; 
 •' then the wife levied a fine ; and it was 
 *' resolved that there was a discontinuance, 
 " and that the fine had strengthened the 
 '* discontinuance, so that the feme could not 
 ''' enter, nor be remitted. Upon the same 
 '* principle, a feoffment by a person who 
 •'*' has a mere right or title of entry, though 
 '' made to a stranger, will extinguish that 
 '' title. Sir Mayle Finch's case, 6 Co. 70. 
 " The only authorities in opposition to 
 r304l" *^^^^ doctrine, are, first, the dictum in 
 " March, p. 105, and that opinion is found- 
 *' ed on other cases, which, properly under- 
 *' stood, do not authorise the opinion ; and, 
 " secondly, the opinion of Lord Talbot, in 
 «' Vick v. Edwards, 3 Peere -Wms. 372. 
 *' This latter opinion proceeded on reason- 
 *' ing which it is impossible to support ; 
 •' for in the first place, though it be true 
 *' that the contingent interest of the heir of 
 "■' the survivinji trustee would be bound 
 '' by the fine of his ancestor, it does not fol- 
 " low that the title of the trustees wouldnot, 
 *' as to the fee, have been extinguished by
 
 ON FINES 305 
 
 *' the operation of their fine : and if extin- 
 ** guished, the joining of the testator's heir 
 ** was necessary, not only for supplying the 
 " want of proving the will, but to pass the 
 " fee vested in him as the heir. And when 
 " the Chancellor relied on Weak and Lower, 
 " as a ease where a fine was adjudged to 
 ** pass an estate, not vested, by way of 
 ** estoppel, and to convey the interest of 
 *' such estate, which accrued by the con- 
 " tingency happening afterwards, he did 
 " apply that case with his usual judgment 
 ** and nice discrimination. 
 
 '' The case of Weale and Lower, so far 
 *' from supporting this proposition, as ap- 
 ** plicable to the facts in Vick and Edwards, 
 *' and the purpose for which it was adduced, 
 ** is founded on a distinction between a 
 '* fine sur concessurent for years, which, 
 '' from its partial operation, binds the in- 
 '' terest, when it shall vest, instead of extin- [ 305 ] 
 " guishing the title, and a fine sur conu- 
 " zance de droit, &c. or other fine which 
 *^ extends to the whole fee, and which, as it 
 " cannot pass the right to the fee, is held to 
 *' operate by way of extinguishment. In 
 " short it should seem, Ihe fine, as being a 
 " public document, of which a stranger 
 " may take advantage, enables the person 
 " in possession, (in other words the person 
 " who has the seisin or estate,) to resist a
 
 306 ON FINES. 
 
 *' claim by the conusee of the fine, on the 
 '' ground that the conusor had not any 
 " estate which he could transfer : and to 
 *' resist the claim of the conusor or his 
 " heirs, by showing that the conusor has 
 " precluded himself and his heirs, of all 
 " title which might otherwise have been 
 '' claimed by them.'^ 
 
 Sometimes a fine operative by way of 
 estoppel, is levied to another and his heirs, 
 and embraces the fee ; at other times it is 
 confined to a term for years. When the 
 fine extends to the fee, the right is wholly 
 extinguished ; at least there is a complete 
 estoppel against it [b). But when a fine is 
 for years, it is an estoppel only during the 
 term. It binds the estate, when it vests, 
 without concluding the title to the fee (c). 
 [SOj] From these deductions, it follows, that 
 there are many cases in which a fine, sur con- 
 ccsserunt for years, may be recommended, 
 when it would be extremely injurious to 
 conclude the title by a fine of the inheri- 
 tance. This is particularly the case when 
 there is a continijent interest of inheritance, 
 or 2i joint-tenancy of the inheritance : and it 
 is an object that the contingent inheritance 
 shall not be destroyed ; or that the joint- 
 tenancy shall not be severed. 
 
 [b) fiucklcr^s case, 2 Co. 55. f r) Weak v. Loicer, Pol- 
 
 lex f. 00.
 
 ON FINES. 307 
 
 Thirdly, As a bar to the heirs in tail. 
 
 The bar of the heirs in tail depends on 
 the statutes of 4 H. VII. and 32 H. VIII. 
 That the heirs in tail may be barred, it is 
 necessary only, that a fine should be levied 
 by an ancestor, and duly proclaimed. The 
 fine may be effectual, whether the person 
 by whom it is levied, has a vested estate in 
 possession, reversion or remainder {d) ; a 
 contingent interest [e) ; or only a title of 
 entry, or of action (/') ; and the fine of a 
 person within the line of the intail will bar 
 his own issue, even though the fine should 
 be levied before the intail descend on him 
 (o), or should be levied after alienation (li). 
 It will, under these circumstances, even bar[307 ] 
 all collaterals, claiming under the same 
 intail, so as the right of the intail devolve 
 to the person, or some one of his descend- 
 ants, by whom the fine is levied ; or, in . 
 other words, so as he or some one of his 
 issue become heir de facto to the intail (i) ; 
 and the issue in lineal descent may be barred 
 by the fine of their parent, being within 
 the extent of the gift in tail, although the , 
 parent never becomes the heir (/). 
 
 [ti] Co. Litt. 372. Case of [g] [lob. 285. Jenk. Cent. 
 
 J'ines, 3 Co. 84. Il^y. 
 
 Jenk. Ceut. 274. Shep. [h] 3 Co. 90. a. 
 
 Touch. 2.5. [i) Hob. 258, 332. Jenk. 
 
 [e) Granfs case, 10 Co. Cent. 274. 
 
 »0, a. [j] Archer's case, 3 Co. 90, 
 
 [f] Zouch V. Hamfiehl, 3 a. Macktcilliam' s case. 
 
 Co, 88, 90, a. Jeuk. Cent. 275. Hob. 333, Moor 2-32, contra.
 
 308 ON FINES. 
 
 On this construction of the statutes, a 
 fine levied by one ancestor alone (/c), when 
 the gift in tail is to both parents, will be a 
 bar to the issue, so as to extinguish the 
 intail. At the same time, that the heirs 
 are barred under these circumstances, the 
 line will not affect the interest of the other 
 ancestor, further than to take from the estate- 
 tail its descendible qualities. The other 
 ancestor will have a base or determinable 
 fee, instead of an estate-tail. The other 
 collateral qualities, as the right of suifering 
 a common recovery, will remain ; and the 
 estate of the other ancestor may descend to 
 the issue as his general heir, though not as 
 heir to the intail. The sole effect of the fine 
 is to preclude the issue from claiming as 
 issue in tail. But a fine by ?i father when 
 the gift is to the mother^ and her heirs of 
 [ 308 ] her body begotten by the father, will not 
 bar the intail. He is merely a parent^ not 
 an ancestor. The lands are not in tailed on 
 him. He is named merely to describe those 
 particular heirs of the body of his wife, who 
 are within the scope of the intail. 
 
 So a gift to a man and his heirs of his 
 body, will enable the son, after the death 
 of the father, to bar the intail, so far as to 
 exclude his brothers and sisters, and their 
 
 (/.;) Beuuvwnt's case, 9 Co. 138- Baker v. Willis, Cro. 
 C;ir. 470.
 
 ON FINES. 309 
 
 issue, as well as his own issue (/) ; but unless 
 the intail had descended on him or his issue, 
 his brothers or other collaterals would not 
 be barred by his fine if levied in the life- 
 time of the donee (/;?,). So when a gift is 
 made to a man and the heirs males of his 
 body, with remainder to him and the heirs 
 females of his body ; a line levied by him 
 will bar both estates tail. He is the ances- 
 tor to both intails. But when a s^ift is made 
 to a man, and the heirs males of his body, 
 with remainder to him and the h^'ws females 
 of his body, and he dies, leaving a son and a 
 daughter ; a fine levied by the son, though it 
 will bind his own issue, will not bind his sis- 
 ter or her issue ; for each of the children 
 has a distinct estate-tail, and the daughter, 
 and her heirs, are to take the estate in tail 
 female, independently of the son or of his issue 
 (w). So if limitations are made in favor of 
 the first and other sons, successively, in tail, 
 a fine levied by the elder son or his issue,[ 309] 
 will not by force of the statutes of procla- 
 mations bar the younger sons or their issue. 
 Each son has a distinct intail ; and the 
 younger sons and their issue do not claim 
 under the same intail which gave an estate- 
 tail to the person by whom the fine is levied, 
 
 (/) Co. Litt. 372, a. Cro. Car. 434. Hob. 258, 
 
 [m] Bradstock v. Scovell, 333. 
 
 (n) Shep. T. 20. 
 
 VOL. I. Z
 
 310 ON FINES. 
 
 thout^h they claim under the same will or 
 settlement. Also, though on a different 
 ground, a fine by a younger brother or his 
 issue, will not bar the elder brother or his 
 issue claiming under the same intail ; nor 
 will the fine of the elder brother or his issue 
 bar the younger brother or his issue, unless 
 the elder brother or his issue becomes heir 
 to the intail, either before or after the fine 
 is levied (o). So a fine levied by a sister or 
 an uncle, who is pro tempore^ the heir in 
 tail, will not bar a more immediate heir, who 
 afterwards comes into existence (/>). 
 
 From these points, it will be collected, 
 that a fine may be levied with effect so as to 
 bar the intail, when a recovery could not 
 be suffered to bar it effectually. 
 
 Fourthly, As a Bar by Non-claim. 
 
 That a fine may operate as a bar by non- 
 claim it must be duly proclaimed. It is 
 essential also that one of the parties should 
 have an estate of freehold, that the plea of 
 partes Jinis nihil habuerunt, may not be rele- 
 [510 j vant ; with the exeception, that an equitable 
 freehold in one of the parties, will, it should 
 seem, be sufficient to support the fine against 
 
 [o] Hob. 258, a3;J. [p] Hob. 333. Shep. Touch. 
 
 25.
 
 ON FINES, 310 
 
 persons claiming under equitable remain- 
 ders, &c. Such estate of freehold may be 
 either in possession, remainder, or rever- 
 sion. 
 
 In Salvin v. Clerk [q) the conusor in the 
 fine had an estate in reversion, expectant 
 on his own lease for life made by disconti- 
 nuance, and the fine operated by nonclaim 
 to bar the reversion in fee under the right- 
 ful seisin. There are other cases of the 
 like description, in which also the like 
 decision was pronounced. In all these 
 cases the estates to be barred were devested 
 before the fine was levied ; as when a dissei- 
 sor made a lease for life and afterwards levied 
 a fine (r) ; or a discontinuor, by means of 
 a particular estate, had gained a new rever- 
 sion by wrong. Anne Twisfs case [s] in- 
 volves the same considerations. 
 
 That a fine may operate by nonclaim, 
 there must also be an adverse possession, 
 understood with the qualifications which 
 have been noticed in a former part of this 
 chapter [t). 
 
 10. On what Fines Uses may be declarecL 
 
 On every fine which transfers an estate, 
 even on a fine sur grant et render, uses may 
 
 {q) Cro. Cur- 156. U) Shep. Touch. 27. 
 
 (r) Co. Litt. 298. a. [t] Supra, 224. 
 
 z 2
 
 311 ON FINES. 
 
 be declared (/<). By the render a common 
 law seisin is transferred, and a declaration 
 of uses will be valid. It seldom happens, 
 that a fine sur grant et render is levied to 
 uses. When uses are to be declared, all 
 that can be accomplished by the render in 
 the fine, or by the render united with the 
 declaration of uses, may be accomplished by 
 the declaration of the uses alone. On this 
 point it is observable, that the question 
 has been raised, whether uses may be de- 
 clared on the estate rendered by a fine, and 
 that question has been decided in favor of 
 the declaration of uses. A case in Claytorfs 
 Reports, which may seem to the contrary, 
 is reconciled by considering the interval 
 which elapsed as affording the conclusion 
 that the grantee in the render took to his 
 own use. 
 [311] That a common law seisin passes, and 
 that tliere is a declaration of uses, are the 
 two essential circumstances to call the 
 statute of uses into operation. When no 
 estate passes by the i\nQ : when its opera- 
 tion, instead of passing an estate is to re- 
 lease a title, or extinguish a right ; then no 
 uses are admissible. In short, there is not 
 any estate to supply a seisin to these uses. 
 
 (m) Moor. 45. Popli. 105.
 
 ON FINES. 312 
 
 11. Bij ivhom Uses may be declared. 
 
 Whoever conveys an estate by fine may 
 declare the uses, to the extent of his owner- 
 ship under the estate he conveys [v). Thus 
 tenant for life may declare the uses, during 
 his estate for life ; tenant in tail may declare 
 the uses of the fine so loui^ as the estate 
 which passes from him, shall continue ; and 
 tenant in fee-simple may declare the uses 
 of that estate ; and the tenant of a remote 
 estate in remainder or reversion, may de- 
 clare the uses of such remote interest ; and 
 each of several joint-tenants, tenants in 
 common, and coparceners (xo), may declare 
 the uses of the fine as to his particular share. 
 When several persons join in a fine, and in 
 the declaration of the uses, the uses will [312"] 
 proceed from each person, and depend on 
 his estate, according to the nature and rela- 
 tive degree of his ownership. Thus if 
 tenant for life, with remainder to another 
 in tail, with remainder to another in fee, 
 join in a fine, and in a declaration of the 
 uses, the uses will proceed from the tenant 
 for life during his interest : from the tenant 
 in tail durinii the continuance of the owner- 
 ship under the intail ; and from the owner 
 of the fee, after the ownership under these 
 
 [v] Beckwi/h'scase,2Co.57. {w) 2 Co. 58, a. Palm. 405^ 
 
 Dougl. Rep. 25. 3 P. W. 210»
 
 Si^ ON FINES. 
 
 particular estates is determined, and in the 
 mean time subject thereto. By this distri- 
 bution the persons claiming under the uses, 
 will have a title in the same manner as if it 
 was derived under a joint conveyance, made 
 by the tenant for life, the remainder man in 
 tail, and the remainder man or reversioner 
 in fee ; and under such joint conveyance 
 there is not any merger, notwithstanding 
 there is an union of estates {x). 
 
 The next rule is that one person cannot 
 declare the uses of a fine, levied by another. 
 
 Thus if two joint-tenants concur in levy- 
 ing a fine, neither of them singly can declare 
 the uses of more than his share ( y). 
 
 The same point is equally applicable to 
 coparceners, and tenants in common. 
 
 So when tenant for life and the remainder- 
 
 [3l3]nian in fee, join in a fine, a declaration 
 
 of the uses by one of them, will not supply 
 
 the want of a declaration of uses by the 
 
 other (z). 
 
 And where tenant for life, a tenant in 
 tail, and a tenant in fee, joined in a fine, a 
 declaration of uses by the tenant for life, 
 and tenant in tailjiad no operation on the 
 uses of the ultimate remainder in fee. The 
 use of that estate resulted to its former 
 owner, for want of a declaration by him (a), 
 
 (x) BredorCs rase, 1 Co, 70. iz) Dougl. 25. 
 
 TreporCs case, (» Co. 14. (a) Roe v. i^op/m?M, Dougl. 
 
 [y) 2 Co. 58, a. 24.
 
 ON FINES. 314 
 
 And on principle, a fine levied by a person 
 who has an estate, and one who has merely a 
 right or title, will operate as an extinguish- 
 ment of the right, and leave the uses com- 
 pletely in the power of the owner. And 
 under a fine by the owner and a stranger ^ 
 the uses will result to the owner alone, or 
 he alone may declare them {b). 
 
 To the general rule, there is an exception, 
 or rather the semblance of an exception, 
 arising from the peculiar connexion between 
 husband and wife, when a fine is levied by 
 them, of lands which they hold in right of 
 the wife. The rules respecting the uses 
 of their fine are, 
 
 1st. The wife alone cannot declare the 
 uses of her fine (c). 
 
 2d. The husband alone cannot declare the[ 314 ] 
 uses, against the consent of his wife, appear- 
 ing by deed, or by any act in pais. 
 
 3d. The husband alone may declare the 
 uses, unless his wife disagrees to these uses 
 during the coverture [d). 
 
 4th. They may jointly declare the uses. 
 
 5th. When there are several declarations 
 by them, and they are different, these uses, 
 as far as they are different, will be void [e). 
 
 But as far as they agree in declaring the 
 
 [h] BeckeVs case, 2 R. A. [d] Ibid. 
 
 789. [€) I bid. 
 
 (c) Beckwith^s case, 2 Co. 
 57.
 
 315 ON FINES. 
 
 uses of the fine, either as to part of tlie 
 lands, or as to part of the estate of the lands, 
 so far the uses will be good. They will be 
 rejected only so far as there is a \ariance 
 in their several declarations. If they dis- 
 agree in declaring the use oi i\\e first estate 
 of any part of the lands ; all the ulterior 
 uses declared of that part, notwithstanding 
 they concur in the declaration of these ulte- 
 rior uses, Avill be void. This is all that 
 was decided in BecJcwith's case ; though the 
 conclusion drawn from that case, has been, 
 that the first use will be void, although the 
 husband and wife agree in declaring that 
 use, provided they differ in the ulterior 
 uses. It will be difficult, however, to sup- 
 port that inference from Beckzi^ith's case "; 
 and still more difficult to reconcile it with 
 [ 315 ]P»'iii^Jple. It is true Lord Coke calls the 
 attention of the reader to the distinction 
 between an aiiTeement in the uses declared 
 by the husband and wife of part of the land 
 and of part of the estate: but taking this 
 distinction with its context, it must be 
 understood as referable to the particular 
 case of a variation in the first use, from the 
 legal impossibility (jf there being such a 
 reversion as the wife intended to reserve, 
 or su( h a lemainder as she intended to limit, 
 if her husband's declaration of the use were 
 to be established. The lan";ua«;e of the
 
 ON FINES. 316 
 
 resolution more clearly leads to this con- 
 clusion, or rather interpretation of the 
 context. All that is said in reporting the 
 resolution is to this effect : 
 
 *' Although the variance was in the first 
 " particular use, (the wife limiting it to 
 *' herself only for her life, and the husband 
 '^ limitino; it to him and his wife for their 
 " lives,) and all the other uses in remainder 
 ^' limited in both the indentures, are ac- 
 '* cording to both their consents, yet all 
 *^ the uses are void. But if there be two 
 " joint-tenants, or two having several es- 
 " tates, and they join in a fine, and one 
 " declare the use in one manner, and the 
 '^ other in another manner, the same is 
 " good for each of their parts ; for the 
 *' declaration of the use shall be directed 
 " and governed according to their estates 
 " and interests. But between husband and 
 *' wife, the estate is only in the wife, and so [ 316 ] 
 *' is the difference. But if the husband and 
 *•' wife agree in the limitation of the use of 
 *' part of the land, and vary in the limita- 
 " tionforthe residue of the land, it is good 
 ** for part, and void for the residue. So 
 " note, reader, a difference between va- 
 " riance, touchisig the limitation of the use 
 " oi part oftlie estate of the land, and toucli- 
 *' ing the limitation of the use oi part of the 
 " land itself.'^
 
 317 ON FINES. 
 
 Now in this resolution, there is not a sin- 
 gle syllable which denies the validity of 
 the declaration of the uses, when the hus- 
 band and wife agree in limiting an estate 
 for life to A, though they do not agree in 
 the limitation of the ulterior uses. The 
 language of Lord Bacon is, if they sever, 
 then it is good for so much of the inherit- 
 ance, as they concurred in (/). 
 
 When the wife agrees with the husband 
 in the limitation of the ulterior uses, but 
 differs from him in limiting the first use, it 
 is possible, and even probable, that all the 
 ulterior uses, unless they contravene the 
 rule against perpetuities, may be support- 
 ed as springing uses. 
 
 12. Of resulting Uses. 
 
 It is also to be observed that as far as no 
 uses shall be declared, or the use of the fee 
 shall be limited in contingency («), the use 
 will result to the former owner, according 
 to the estate he had at the time of levying 
 the fine. Or if several persons who have 
 £ 317] distinct estates, as tenant for life and re- 
 mainder-man in fee, or as joint-tenants who 
 hold to them and the heirs of one, join in 
 a fine, without declaring any uses, the uses 
 
 (/) Bac. on Uses, 67. {g) 2 Roll. Abr.789. 2 Co. 
 
 58.
 
 ON FINES. 317 
 
 will result according to the former owner- 
 ship, (h) The exceptions are, that no use 
 will result on a fine sur grant et render or on 
 the grant of a particular estate (?) ; and that 
 the conusee in a fine may aver an use in 
 himself, or more correctly speaking exclude 
 the resulting use, notwithstanding there is 
 not any express declaration (j) ; and also 
 that a tenant in tail, instead of having his 
 old estate-tail under a resulting use, will 
 have a fee-simple, in case the fine operates 
 as a discontinuance ; and a base or deter- 
 minable fee, in case the fine operates merely 
 and simply as a conveyance. 
 
 The books are involved in some obscurity 
 on this point. They say, the fine shall 
 enure to the old or former uses {k). 
 
 These book are to be understood with 
 the qualification that the uses result accord- 
 ing to the former ownership, and not so as 
 to revive the in tail. This point has been 
 expressly decided as to recoveries, and is 
 equally relied on as to uses resulting from a 
 fine (/). 
 
 Suppose a tenant in tail and the owner 
 
 (A) 2 Co. 58. Mo. 40. 352. Argol v. Cheney, Latch 
 
 (i) Mo. 10(). 2 Co. 76. 82. Dougl. 25. 
 
 (j) Altham v. Anglesey, [l] Hodges v. Fowler, in 
 
 Gilb. Eq. Ca. 17. iT Mod. the Exch. 1777. Moxon v. 
 
 210. Roe V. Popham, Dou^l. Moxon, ib. Com. Di^. Uses, 
 
 24. Thrust out v. Peake, Str. D. 2. Nightingale v. Ferrers, 
 
 12. 3 P. W. 207. 
 
 (k) Waker v. Snow, Palm.
 
 317 ON FINES. 
 
 of the reversion in fee to join in a fine, and 
 the use to result to them according to their 
 former ownership ; it is an interesting and 
 curious point, involving a laige portion of 
 learning to be drawn from first principles, 
 whether the tenant in tail or his heir can 
 afterwards by suffering a common recovery 
 bar the reversion. He might have done 
 this before the fine. Strono- are the argu- 
 ments against his right, after the fine, to 
 exercise this incidental power annexed to 
 his estate-tail. 
 
 In point of law his estate-tail is extin- 
 guished by union with the fee. It is under 
 rules of courts of equity, and the statute of 
 uses working on these rules, that he has a 
 like interest, corresponding as near as may 
 be to an estate-tail, and not the same iden- 
 tical estate, — that the use results for a base 
 fee. It seems that in equity, before the 
 statute of uses, there would not have been 
 an equitable estate-tail: and if there would 
 not have been an equitable estate-tail, there 
 would not have been a right to bar the re- 
 mainder or reversion. 
 
 In answer, however, to this argument it 
 may be urged, that even at law, and so in 
 equity, an estate-tail, though converted into 
 a base fee, confers the right on the donee 
 in tail or his heir to enlarge the base fee 
 into a fee-simple, to the prejudice, and in
 
 ON FINES. 318 
 
 exclusion of the reversioner or remainder- 
 man (/;/). But this reasoning does not seem 
 sufficiently cogent to establish the right in 
 the former tenant in tail to bar the remain- 
 der man by a common recovery. The point, 
 however, is one of difficulty and of con- 
 siderable nicety, and may be decided either 
 way without much sacrifice of principle. 
 
 When the use of the fee results, that fee 
 will be descendible from the first purchaser 
 of the estate. For this reason, a fee which 
 descended ea: parte f/iaterna, will, under the 
 resulting use, be descendible in like man- 
 ner (n). 
 
 So if an estate-tail be taken by descent 
 ex parte paterna, the fee taken by resulting 
 use will be descendible, as if the donee in 
 tail had taken the fee, as the purchasing 
 ancestor (o). 
 
 And whether the use results, or is ex- 
 pressly declared, the same course of descent 
 will prevail. 
 
 But a fee taken under the render of a fine 
 is a new estate, and the conusee in the ren- 
 der will be deemed the purchasing ancestor. 
 The fine sur grant et render is a double con- 
 veyance. It partakes of the nature, and 
 
 fm) Supra, 139. (o) Roe d. Crow v. Ba/d- 
 
 (n) Ahbut V. Burton, Sulk. were, 5 T. Rep. 104. Martin 
 
 590. Fenwick v. Mitford, v. 6Vrac/mtt, 5 T, Rep. 107,in 
 
 1 Leo. 182. Co. Litt. 22. b. a note.
 
 319 ON FINES. 
 
 has the effect of a feoffment and re-enfeoff- 
 ment (/>). 
 
 Of Deeds to lead, and Deeds to declare the 
 Uses of Fines. 
 
 When a fine is levied after, and in pur- 
 suance of, a covenant or agreement to levy 
 a fine and declare the uses thereof, the deed 
 containing such declaration or agreement 
 [ 319 ] is correctly denominated a deed to lead the 
 uses of the fine ; while a deed declaring the 
 uses of a fine, takes its denomination from 
 the circumstance that the deed is subse- 
 quent in date to the fine, and executed after 
 the fine has been levied. 
 
 The subject of deeds to lead, and of deeds 
 to declare the uses of fines, is of considerable 
 interest to the profession. These deeds 
 frequently occur in practice, and produce a 
 material change in the title. To state the 
 cases, and the rules of law on which they 
 are grounded, and give the proper forms of 
 deeds, will require more space than can be 
 allotted for them in this volume. This 
 learning will be the subject of the first 
 chapter of the next volume. 
 
 (p) Price V. Lang ford, Salk. 337.
 
 321 
 
 APPENDIX. 
 
 FORM I. 
 
 Form of Recovery Deed of Lands in different Counties, for 
 the joint lives of the Tenant and Vouchee (a) . 
 
 This indenture, of three parts, made 
 the day of in the 63 Geo. III. 
 
 and in the year of our Lord 1813 ; Between E.^^^'^'^^- 
 M. of, &c. l^the intended vouchee^~\ of the first part ; 
 A. B. of, &c. [the intended tenant~\ of the se- 
 cond part ; and C. D. of, &c. [the intended de- 
 mandant^^ of the third part. Whereas by in-REcixAt, 
 dentures of lease and release, bearing date respec- tjo,j ^f '^esfate. 
 tively on or about the 9th and 10th days of May, ^^ i" s'™^ "f 
 
 / , - *^ , '^ the parcels. 
 
 m the year 174-9, and made, or expressed to be 
 made between H. M. of, &c. tinman, and Han- 
 nah his wife, of the one part ; and W. K. of, &c. 
 gent, of the other part, The messuage and 
 hereditaments hereinafter in part described to be 
 situate in the parish of T. in the said county of 
 W. were conveyed and assured, after divers 
 estates for life, and in tail, which are all now 
 determined, to the use of the said E. M, therein 
 described as the daughter of the said H. M. 
 by the said H. his wife, and the heirs of her 
 
 (a) See the Text, p. 104.
 
 322 APPENDIX. 
 
 body lawfully issuing. And whereas by other 
 indentures of lease and release, also bearing 
 
 oti^r^^^'"l ^^^^ respectively, on or about the 9th and iOth 
 days of May, 174'9, and made or expressed to be 
 made between the said H. M. and H. his wife, 
 of the one part, and K. M. of the other part; 
 All those, the messuage and hereditaments herein- 
 after in part described to be situate in the parish 
 of H, in the county of W, w^ere conveyed and 
 assured, after and subject to several particular 
 estates for life and in tail, all of which are now de- 
 termined, to the use of the said E. M. and the 
 
 Desire to suf- j^^.jj-g Qf \^q^> bodv, lawfully issuingr. And where- 
 
 ter recoveries, . *^ _ f '^ 
 
 AS the said E. M. is desirous of suffering two or 
 more common recoveries, for the purpose of 
 barring the several estates tail, limited to her as 
 aforesaid, and enlarging the same estates tail, 
 
 and to include into estates in fee simple. And whereas the 
 said E. M. is seised of divers other messuages, 
 lands, tenements, and hereditaments, hereinafter 
 described : and although it is understood that the 
 said E. M. is seised of the same messuages and 
 hereditaments for an estate in fee-simple, it is 
 deemed advisable that the same hereditaments 
 should be comprised in the recoveries hereinafter 
 agreed to be suffered, for the purpose of barring 
 all estates tail, if there be any, of the said E. M. 
 
 WITNESSETH jn thc samc messua2:es and hereditaments. Now 
 
 that for barr- ^ i ^ i i • 
 
 ingintails, THIS INDENTURE WITNESSETH that lOr dOCKUlg, 
 
 barring, and destroying all intails of and in the 
 
 messuages and other hereditaments hereinafter 
 
 released, or otherwise assured, or intended so to 
 
 and remain- be, and all reversions and remainders, expectant 
 
 ' *" on the same intails, and all conditions, and col-
 
 XIECOVERY DEED. 3-3 
 
 lateral limitations annexed thereto, or affecting 
 the same; and also in consideration of 10s. of ,^"J cousilkra- 
 lavvful money of the united kingdom of Great tion, 
 Britain and Ireland, current in Great Britain, to 
 the said E. M. well and truly paid by the said 
 A. B, immediately before the execution of these 
 presents, (the receipt whereof is hereby acknow- 
 ledged,) She the said E. M. hath granted, bar- Tenant in tail 
 gained, sold, released, and conrtrmed, and by 
 these presents doth grant, bargain, sell, release, 
 and confirm unto the said A. B. (in the actual 0"^^^^^f=^ *« 
 
 ^ _ _ lease tor a 
 
 possession of the said A. B. now being, in virtue year) 
 of a bargain and sale thereof made to him by the 
 said E. M, in consideration of 5s. paid to her by 
 the said A. B, by indenture bearing date on the 
 day next before the day of the date, and executed 
 before the execution of these presents, for one 
 whole year, to be computed from the day next 
 before the day of the date of the same indenture 
 of bargain and sale, and by force of the statute 
 made for transferring uses into possession,) All 
 THAT messuage or tenement, and all houses, oat- parcels. 
 houses, buildings, barns, stables, gardens, orchards, 
 curtilages, and appurtenances whatso'i-ver there- 
 unto belonging ; And also all those four several 
 closes, pieces, or parcels of land, meadow, or pas- 
 ture ground, now or formerly commonly called or 
 known by the several names of, 
 
 or by any other name or names, whatsoever, con- 
 taining in the whole by estimation about twelve 
 acres, be the same more or less : situate, lying, 
 and being in the parish of T, and county of W, 
 and near the highway leading from cross, 
 
 VOL. I. A A
 
 324 APPENDIX. 
 
 towards in the same parish, heretofore 
 
 in the tenure or occupation of J. H, late in the 
 tenure or occupation of J. A, his assigns, or 
 under-tenants, and now or late of . And 
 
 also all that messuage, or tenement, formerly in 
 the possession of W. L, but afterwards of R. C, 
 together with all barns, stables, buildings, houses, 
 outhouses, shops, gardens, orchards, yards, fold- 
 j-ards, and backsides, to the said last mentioned 
 messuage or tenement belonging. And all those 
 two closes, leasows, meadow, or pasture ground, 
 heretofore into five parts divided, containing in 
 the whole by estimation eleven acres or there- 
 abouts, be the same more or less. All which said 
 messuage or tenement, buildings, lands, closes, 
 pasture-ground, and premises last mentioned, 
 are now or were formerly called or known by the 
 name of the and were heretofore 
 
 in the tenure or occupation of the said W. L,'his 
 under-tenant or assigns, but afterwards of the said 
 R. C, his under-tenants or assigns, and are situate, 
 lying, and being in 
 
 or in one of them, in the parish of H, in the 
 county of W, between the lands formerly of T. L, 
 Esq., the lands formerly of T. A, the lands for- 
 merly of R. M., and the lane or roadway leading 
 from towards and 
 
 another lane there lyir.g and being at the upper 
 end of the said closes and pastures, on or near all 
 Sweeping })arts thereof. A7id also all other the lands, tene- 
 ciause. uicnts, and hereditaments, whatsoever, formerly 
 
 of 1. P. and E, his wife or one of them, and now 
 of the said E. M, in which she hath any estate, 
 right, title, or interest, cither in possession, rever-
 
 RECOVERY DEED. 325 
 
 sion, or remainder, situate, lying, and being in 
 aforesaid, in the said county of 
 W, with their and every of their appurtenances. 
 And also all that parcel of arable land, containing other parcels', 
 by estimation two acres and an half, formerly in 
 the tenure or occupation of T. G, and afterwards 
 in the tenure or occupation of J. S, lying and 
 being in the parish of B, in the said county of W, 
 in a field there called Kay field, between the land 
 of M. L.on the one part, and the land of G. K. 
 on the other part, being in breadth, and extending 
 in length from the land formerly of T. F. and after- 
 wards of J. W. at the one end, unto the land for- 
 merly of T. E, Esq. heretofore in the tenure or 
 occupation of A. C. widow, and afterwards of S. 
 B. at the other end. One other close or pasture 
 called Kayfjeld Close, containing by estimation 
 four acres, formerly in the tenure of J. M, and 
 afterwards of J. S, and being in the parish of B, 
 and county of W, between the land formerly of 
 R. L. and afterwards of W. S, and some other 
 land heretofore in the tenure of A. C. and after- 
 wards of W. S, on, or nearly on all parts. All which ^^^'^^j^'^^ ^ 
 said last mentioned lands and premises were lately purchase, 
 in the occupation of the said J. S, and are the 
 premises which were conveyed and assured to the 
 said H. M. his heirs and assigns for ever, by cer- 
 tain indentures of lease and release, bearing date 
 respectively on or about the twenty-eighth and 
 twenty-ninth of December, one thousand seven 
 hundred and forty-four. And also all those two ^^^^^'^ P^^*^^*^- 
 closes of ground and other lands, situate at 
 
 and called And also 
 
 all that piece or parcel of land containing about 
 
 A A 2
 
 326 APPENDIX. 
 
 two acres and an half, now in the tenure or oc- 
 cupation of R. H ; v/hich said last mentioned 
 lands v/ere on a division or inclosure of the com- 
 mon and waste lands within the said manor and 
 parish of B. allotted to the owner or proprietor of 
 the said lands next hereinbefore described, for 
 and in respect of the same, and are now better 
 known and described, as all those several closes 
 of land situate at in the parish of 
 
 B, in the county of W, and now or late in the 
 tenure or occupation of J. T. And also all, &c. 
 lor ianns. And all liouses, outhouses, edifices, buildings, 
 barns, stables, yards, gardens, orchards, closes of 
 land, meadow, and pasture, feedings, woods, un- 
 derwoods, and the ground and soil thereof, com- 
 mons, and common of pasture, and of turbary, 
 and other commonable rights, hedges, ditches, 
 fences, mounds, ways, paths, waters, watercourses, 
 liberties, privileges, easements, profits, commo- 
 dities, advantages, and emoluments whatsoever 
 to the said messuages and other hereditaments 
 hereby released, or otherwise assured, or intended 
 so to be, or any of them, respectively, belonging, 
 or in any wise appertaining, or accepted, reputed, 
 deemed, taken, known, held, occupied or enjoyed, 
 as, part, parcel, or member of the same, or any of 
 (ie)ieral them respectively. And all other the messuages, 
 
 cfaa<e. "^ lauds, tenements, and hereditaments, situate, 
 lying, and being in the several towns, parishes, 
 and places of T. li. 13. B. in the counties of 
 Warwick and Worcester, and each or either of 
 them, in which the said E. M. hath any estate 
 or interest in tail at law, or in equity, and every 
 p;ijt and parc<il of the same, with their and every
 
 RECOVERY DEED. 327 
 
 f)f their riarhts, members, and appurtenances. And^^^-^ the re- 
 
 , . .... , version, &c. 
 
 the reversion and reversions, remainder and re- 
 mainders, yearly, and otiier rents and profits of 
 the said several messuages and hereditaments 
 hereby released, or otherwise assured, or intended 
 so to be, and every part and parcel of the same, 
 with their and every of their rights, members, and 
 appurtenances (a). To have and to hold the Habendum 
 said messuages, hereditaments, and all and singularj,*^i,ft nverof"^ 
 other the premises hereby released, or otherwise s^^"^*^^ '"^"'^ 
 
 '■ _ "^ grantee. 
 
 assured, or intended so to be, and every part and 
 
 parcel of the same, with their and every of their 
 
 rights, members, and appurtenances, unto and to 
 
 the use q/" the said A. B. and his assigns, during 
 
 the joint natural lives of the said A. B. and E. M. 
 
 To THE INTENT that the said A. B. may be^^«^;^^^J;;^^|;" 
 
 tenant of the freehold, of all and singular the said freehold, 
 
 messuages and hereditaments, hereby released, or 
 
 otherwise assured or intended so to be, and every 
 
 part and parcel of the same, with their rights, 
 
 members, and appurtenances ; to the end that two ^^at two com- 
 
 . . , inon recove- 
 
 or more good and perfect common recoveries, witn ries may be 
 double voucher, may be had and suffx^red of the ^^'^'^^'^^ " 
 same messuages and hereditaments. And for that 
 purpose it is hereby directed, declared, and agreed 
 by and between all the said parties to these 
 presents, as far as they respectively are interested, 
 that the said A. B. shall permit and suffer the said 
 C. D, or some other person or persons, at the costs 
 and charges in all things of the said E. M, her heirs, 
 executors, or administiators, at any time or times 
 
 (a) In this form the clauseof '* all the estate" to Le omitted.
 
 328 
 
 APPKNDIX. 
 
 One wiit to 
 be sued foi- 
 the lands in 
 the county of 
 Warwick, 
 
 and another 
 v.- lit for the 
 lands in the 
 county of 
 Worcester, 
 
 Mode of 
 prosecuting 
 the recoveries 
 prescribed. 
 
 hereafter, to sue forth and prosecute, against him 
 the sajd A. B. out of Jiis Majesty's high court of 
 Chancery, two or more writs of entry sur disseisin 
 en le post, returnable before his Majesty's justices 
 of the court of (.^ommon Fleas at Westminster ; 
 and by one of the said writs, demand of the said A. 
 B. the said messuages, and hereditaments, hereby 
 released or otherwise assured or intended so to be, 
 with the rights, members and appurtenances, which 
 are situate in the said covmty of Warwick, by the 
 names and descriptions of two messuages, two 
 gardens, 40 acres of land, 40 acres of meadow, and 
 •40 acres of pasture, with the appurtenances in T ; 
 and by the other of the said writs, demand of 
 the said A. B. the said messuages, and heredita- 
 ments, hereby released, or otherwise assured or 
 intended so to be, which are situate in the said 
 county of Worcester, with their rights, members, 
 and appurtenances, by the names and descrip- 
 tions of : or by such other apt, 
 good, sufficient, and proper names, number of 
 messuages, and acres, quantities, qualities, and 
 other descriptions as shall be deemed necessary, 
 proper, sufficient, and requisite to comprise the 
 same. And that the said' A. B. shall in his own 
 person, or by his attorney or attornies lawfully 
 authorised in that behalf, appear to each of the 
 same M'rits respectively, and vouch to warranty 
 the said E. M. And that the said E. M. shall in 
 her own person, or by her attorney or attornies 
 lawfully authorised in that behalf, appear gratis, 
 and freely enter into the warranty of the said 
 A. B ; and, taking the same upon herself, vouch
 
 RECOVERY DEED. 329 
 
 over to warranty the common vouchee of the court 
 of Common Pleas, for the time being; who shall 
 appear gratis, and freely enter in to the warranty 
 of the said E. M, and after imparlance make de- 
 fault. So that judgment may be given upon each 
 of the said writs respectively, for the said C. D, 
 or other demandant or demandants, to recover all 
 and singular the said messuages, and heredita- 
 ments, hereby released, or otherwise assured, or 
 intended so to be, and every part and parcel of 
 the same, with their rights, members, and a])pur- 
 tenances, by such names, quantities, qualities, 
 and other descriptions as aforesaid, against the 
 said A. B. ; and for the said A. B. to recover in 
 value against the said E. M ; and for the said E, 
 M. to recover in value against the common 
 vouchee, as is usual in such cases. And that 
 upon all and every recovery and recoveries to be 
 suffered as aforesaid, execution may be sued and 
 prosecuted by, and seisin had, taken, and dehvered 
 unto the said C. D, or other demandant or de- 
 mandants, accordingly. And that every other 
 act or thing requisite or proper to be done or exe- 
 cuted, for the purpose of suffering and perfecting 
 a common recovery or recoveries, of the messuages, 
 and hereditaments, hereby released or otherwise 
 assured, or intended so to be, with double, treble, 
 or other \'ouclicr, to bar the estate or estates, 
 interest or interests in tail, of the said E. M, of and ^"'^^^^'^^ 
 
 , . estates-taS, 
 
 jn the same messuages, and hereditaments, and ali&c 
 reversions and remainders over and expectant 
 upon the same estate or estates, interest or' inter- 
 ests in tail, may be made, done, and executed. 
 And by way of direction, and declaration, and Directiost
 
 ;30 
 
 APPENDIX. 
 
 ihatrecove- not of cOveiiaiU, it IS hereby granted, declared and 
 sufficed! ^"^ agreed, by and between the parties to these pre- 
 sents, as tar as they respectively are interested, 
 and they hereby, for themselves, severally and 
 respectively, and for their several and respective 
 heirs, executors, and administrators, and accord- 
 ing to their respective estates, rights, and interests, 
 in the premises, consent and agree that the reco- 
 veries hereby agreed to be sufiered shall be suf- 
 fered and perfected w^ith all possible dispatch ; 
 and that par- ^yi^ that they respectively, and their respective 
 
 ties will give , . , / ^ . •" .,, / . 
 
 fiUct to the heu's, on their respective parts, will use tneir ut- 
 sume. niost cndeavours to give effect to the same reco- 
 
 veries, and also to these presents, and the grant, 
 release, confirmation, or other assurance hereby 
 Deciahation made. And it is hereby further direct- 
 veriesvvhen ED, declared, and agreed by and between all the 
 suffered, parties to these presents, as far as they respectivety 
 have any right, title, or interest in the premises, 
 that immediately upon and after judgment obtained, 
 and seisin had and taken, upon each such recovery 
 as aforesaid, each recovery respectively so as afore- 
 said, or in any other manner, or at aii}^ other time or 
 the lease for a times, to be suffered ; and also the bargain and sale 
 year, and the fop a year bcarinsT dat;' Oil the day next before the 
 
 pr. Sf nt deed, jo J 
 
 an; all other day of the date of these presents; and also these 
 
 Allies CVCa 
 
 presents, and the assurances hereby made ; and all 
 and ev( ry other fine and fines, recovery and reco- 
 veries, and other assurances whatsoever, at any 
 time or times heretofore, and to be at any time 
 and from time to time hereafter, had, made, done, 
 levied, suffered, executed, and perfected, of, or 
 concerning all or any |)ait of the said messuages, 
 and hereditaments hereby released, or otherwise
 
 ^ UECOVERY DEED. 331 , 
 
 assured, or intended so to be, cither by themselves, 
 solely and alone, or jointly and together with any 
 other lands, tenements, or hereditaments, by or 
 between all and every, or any or cither of the per- 
 sons, who are parties to these presents, or to which 
 they, or any or either of them, is or are, or shall 
 or may be parties or privies, or a party or privy, 
 shall, as to all the said parties to these presents, 
 respectively, as far as they respectively can law- 
 fully or rightfully direct the uses of the same, fine 
 or fines, common recovery or recoveries, and other 
 assurances, be and enure, and be adjudged, ex- shall enure ; 
 pounded, deemed, and taken to be and enure ; and 
 that the same was and were meant, and intended, 
 and is and are hereby directed and declared to be 
 and enure ; and that the person or persons to whom And that per- 
 
 1 /. /. • sons shall 
 
 such fine or fines, common recovery or recoveries, g^^j^^ ggisg^ • 
 and other assurances respectively, have or hath 
 been or shall or may be levied, suffered, made, 
 and executed, shall stand and be seised ; As to, As to parcel* 
 for, and concerning the said messuages and heredi- '^^"^^^^ ' 
 taments hereby released, or otherwise assured or 
 intended so to be, and every part and parcel of the 
 same, with their rights, members, and appurte- 
 nances. To the use of the said E. M. her heirs To the use of 
 and assigns for ever; and to no other use, nor for ^'^^^ ^'^ "^ 
 any other end, intent, or purpose whatsoever. In 
 witness., &c.
 
 332 
 
 APPENDIX. 
 
 FORM IL 
 
 Form of a Conveyance to he made previous to suffering a 
 Recovery, or executing a Recovery Deed, hy a Person, 
 when it is doubfj'ul ivhether he is Tenant J or Life, or in 
 Tail ; and when, ij'.he be Tenant for Life, there is a contin- 
 gent Remainder to one of his Sons. The Object being, to 
 bar the JEstate-tail, if any, and to protect the JEstate for 
 Life, if any, from the Lonsequejices of Jtorfeiture, and in 
 that case to preserve the contingent Remainders, if any, from 
 Destruction [b). 
 
 THIS INDENTURE, made the day 
 
 40 Geo. 111. and in the year of 
 our Lord 180] ; Between T. B. B. of, &c. gent, 
 of the one part ; and A. B. of 
 
 [some other person than the tenant^ of the other 
 part. Whereas the said T. B. B. is either tenant 
 that grantor for hfe, or in tail, of all, or some of the messuages, 
 tenant for famis, lands, tenements, and hereditaments, here- 
 life or in taiJ. jp^after released or otherwise assured or intended so 
 to be, and as to such parts thereof, if any, of which 
 he is tenant for life, doubts are entertained whe- 
 there there is a contingent remainder in favour of 
 his eldest son for the time being, or some or one 
 of his sons, under or by virtue of the will of 
 
 bearing date on or about the day of 
 
 and i)rovcd in the court of 
 
 Desire to on or about the day of And 
 
 sufR^rareco- whereas the Said T. B. B. is dcsirous, and hath 
 
 Recital 
 
 b Sec the text, p. 112.
 
 RECOVERY DEED. 333 
 
 determined, to suffer a common recovery of the 
 said messuages, farms, lands, tenements, and here- 
 ditaments ; and it is deemed expedient that, prior 
 to his execution of the necessary conveyance ^^r ^^^ ^j^^^ .^ .^ 
 making- a tenant to the writ of entry, for suf- deemed ex- 
 fering such recovery, he should convey the free- eonvTy, so 
 hold of the said messuages, farms, lands, tenements, J)^^ ^^J^^^^ 
 and hereditaments, so and in such manner that immediate ^ 
 he may take back the immediate freehold for freehold' re- 
 the joint hves of himself and A. B, with re- "^^i"*!^^ to a 
 
 •' trustee. 
 
 mainder to the snid A. B. for the life of the said 
 T. B. B, in trust for the said T. B. B. and his 
 assigns during his hfe. Now this indenture iJ^^^^^^J^p^j!*" 
 WITNESSETH, that for the purposes hereinbefore poses afore- 
 expressed, and in consideration qf 10s. of lawful nom'iual con- 
 money of the united kingdom of Great Britain ®*'^^'^^^°"' 
 and Ireland, current in Great Britain, to the said 
 T. B. B. paid by the said A. B, immediately 
 before the execution of these presents (the receipt 
 whereof is hereby acknowledged,) The said T. '^^^^ ''^^'^ 
 B. B. hath granted, bargained, sold, aliened, re- 
 leased, and confirmed, and by these presents doth 
 grant, bargain, sell, alien, release, and confirm 
 unto the said A. B. his heirs and assigns, (in the (reference to 
 actual possession of the said A. B. now being, in year.) 
 virtue of a bargain and sale thereof made to him bv 
 the said T. B. B., in consideration of ^s. paid to 
 him by the said A. B. by indenture bearing 
 date on the day next before the day of the date, 
 and executed before the execution of these pre- 
 sents, for one whole year, to be computed from 
 the day next before the day of the date of the same 
 indenture of bargain and sale, and by force of the 
 statute made for transferring uses into possession)
 
 334 APPENDIX. 
 
 TARCELs. ^j^j^ ^j^g messuages, farms, lands, tenements, and 
 hereditaments of the said T. B. B. situate in the 
 several parishes of in the 
 
 county of and hereinafter par- 
 
 ticularly described, that is to say. All, &c. 
 
 lor farms. And all houses, cottages, outhouses, edifices, 
 
 buildings, barns, stables, yards, gardens, orchards, 
 closes of land, meadow, and pasture, feedings, 
 woods, underwoods, and the ground and soil 
 thereof, commons, and common of pasture, and 
 of turbary, and other commonable rights, hedges, 
 ditches, fences, mounds, ways, paths, waters, 
 water - courses, liberties, privileges, easements, 
 profits, commodities, advantages, and emoluments 
 whatsoever, to the said messuages, farms, lands, 
 tenements, and hereditaments, hereby released or 
 otherwise assured, or intended so to be, or any of 
 them respectively, belonging, or in any wise ap- 
 pertaining, or accepted, reputed, deemed, taken, 
 known, held, occupied, or enjoyed, as part, par- 
 cel, or member of the same, or any of them re- 
 
 Andthere- spectivclv. And the reversion and reversions, 
 
 version, &c. . , , ■ ^ , , . 
 
 rcmamder and remamders, yearly, and other rents 
 and profits of the said messuages, farms, lands, 
 tenements, and hereditaments, hereby released, or 
 otherwise assured, or intended so to be, and every 
 part and parcel of the same, with their and every 
 Habendum of their riii^hts, members, and appurtenances. To 
 
 to /-ran tee ^ ..u -J f 
 
 and his heirs HAVE AND TO HOLD the said messuages, lamis, 
 gran[or"^ lauds, tenements, hereditaments, and all and sin- 
 gular other the premises hereby released or other- 
 wise assured, or intended so to be, and every 
 part and parcel of the same, with their and every 
 of their rights, members, and appurtenances unto
 
 RECOVERY DEED. 335 
 
 the said A. B, and his heirs, for and during thv To the use 
 natural hfe of the said T. B. B, To the uses and the joint lives 
 upon the trusts hereinafter declared, that is to say, ^^^""^''^^1^ ^"'^ 
 To the use of the said T. B. B. and his assigns, 
 during the joint natural lives of the said A. B. and 
 T. B. B. And from and immediately after the de- 
 termination of that estate, by forfeiture, surrender, 
 or otherwise, then To the use of the said A. B. and ^^JT^"'^*''' . 
 
 ' to the use of 
 
 his heirs, for the natural life of the said T. B. B, grantee, for 
 In trust for the said T. B. B. and his assions. And_ ^^ ^^" "^' 
 
 o In trust for 
 
 to no other use, and upon no other trust whatso- grantor. 
 ever. In witness, &c.
 
 336 
 
 APPKNDIX 
 
 FORM III, 
 
 In a Case in ichirh the Defect appeared on the Recovery 
 Deed, the Uses were limited as follows. 
 
 Habekdum 
 To A. B. in 
 
 fee, To uie.1. 
 First, to con- 
 firm an an- 
 nuity. 
 
 And subject 
 thereto. 
 
 To the use of 
 A. B. during 
 the joint lives 
 of himself and 
 the grantor. 
 
 Remainder 
 To the use of 
 trustees for 
 the life of the 
 grantor, to 
 protect 
 ag-ninst for- 
 feiture. 
 
 Keinainder 
 
 HABENDUM to A. B. his heirs and assigns 
 for ever. To the uses hereinafter declared thereof, 
 that is to say, In ihe Jirst place to revive, restore, 
 confirm and give effect to the annuity of ^20, to 
 which the said E. M. is entitled, and all powers 
 for recovering and enforcing the payment thereof. 
 And subject thereto, To the use of the said A. B. 
 during the joint natural lives of the said A. B. and 
 M. R, and to the intent, and for the purposes 
 hereinafter mentioned. And from and after the 
 determination of that estate. To the use of the said 
 E. I-", and G. II, their heirs and assigns during 
 the life of the said ^I. R., Upon trust, and to the 
 intent, that the estate limited to the said E. F. and 
 G. H. their heirs and assigns, may be a protection 
 from forfeiture of the estate of the said M. R. for 
 her life, so that the same messuages, &c. may 
 during her life, be subject to the uses and trusts 
 hereinafter limited, expressed, and declared of, 
 and concerning the same. And from and after the 
 decease of the said M. li., and in die mean time 
 subject and without prejudice to the estate here- 
 inbefore limited, the same messuages, &c. shall
 
 RECOVERY DEED. 337 
 
 remain, continue and be To such uses, &c. as are to uses after- 
 hereinaltcr limited, expressed and declared con- ^^J"^^ *^®" 
 cerning the same. And it is hereby directed, &c. 
 that the estate hereinbefore limited to the use of ^jo^^'^jhat the 
 the said A. B. and his assions, for the joint lives ^^^^^^ ^^ ^^- 
 
 1-1 • 1 A T» 1 Ti T r» • 1 • • 1 • mited to A. B. 
 
 of the said A. B. and M. K, is hmited to him and to make him 
 them, to the intent, &c. *""^"' '''}^'' 
 
 ' ' proecipe, &c.
 
 338 APPENDIX- 
 
 FORM IV. 
 
 Form of Recovery Deed to Uses, to prevent a Title of Dower : 
 suffered hy the conveying Party in the Form, No. II. 
 
 THIS INDENTURE, of three parts, made the 
 day of 41 Geo. ill. and in the year 
 
 lARTiEs. of our Lord 1801 ; Between T. B. B. of 
 
 gent., and P. his wife [the intended vouchees] of the 
 jfirst part ; R. P. of the Inner Temple, London, Esq. 
 [the intended demandant] of the second part ; and 
 C. D. of [the intended tenant] of the third 
 
 WITNESSETH part, WITNESSETH, that for docking, barring, and 
 ing es*tate:r"' ^extinguishing, ail estates and interests in tail, 
 tail, &c. reversions, and remainders, thereupon expectant 
 and depending, of and in the messuages, farms, 
 lands, tenements, and hereditaments hereinafter 
 released, or otherwise assured, or intended so to 
 extinguishi2ig be ; And, for extinguishing the dower, right, and 
 ""^^' title of dower, of the said P. B. of and in the same 
 
 messuages, farms, lands, tenements, and heredita- 
 and limiting ments ; And for conveying, limiting, and assuring 
 uses, " ^^^^' same messuages, farms, lands, tenements, and 
 hereditaments, to the uses, upon the trusts, and 
 for the ends, intents, and purposes hereinafter 
 hmited, expressed, and declared, of and concerning 
 and for a the sauic ; And in consideration of 10s. of lawful 
 »ider'atioMr' "^<^"f'y ^^ the united kingdom of Great Britain 
 and Ireland, current in Great Britain, to the 
 said T. \l. B. and P. his wife, paid by the said
 
 RECOVEllY DEED. 339 
 
 C D, immediately before the execution of these 
 })reseiits, (the receipt whereof is hereby acknow- 
 ledged,) The said T. B. B. and P. Iiis wife, haveTeuant iu tail 
 and each of them hath, granted, bargained, sold, Ji'r^i^'^i^'' 
 aliened, released, and confirmed, and by these *^^- 
 presents do, and each of them doth grant, bargain, 
 sell, alien, release, and confirm unto the said C D. 
 his heirs and assigns for ever, (in the actual pos- 
 session of the said C. D. now being, in virtue of a (Reference ta 
 baro-a in and sale thereof, made to him by the said ''^''"^''/"'' " 
 T. B. B. and P. his wife, in consideration of 5s. 
 paid to each of them by the said C D, bv inden- 
 ture bearing date on the day next before the day 
 of the date, and executed before the execution 
 of these presents, for one whole year, to be com- 
 puted from the day next before the day of the 
 date of the same indenture of bargain and sale, and 
 by force of the statute made for transferrino- uses 
 into possession,) All the messuages, farms, lands, tarcels. 
 tenements, and hereditaments of the said T. B. B. 
 situate in the several parishes of 
 
 in the county of and 
 
 hereinafter described, that is to say. All, &c. &c. 
 And all houses, cottages, outhouses, edifices, General words 
 buildings, barns, stables, yards, gardens, orchards, ^°^ ^^""^' 
 closes of land, meadow and pasture, feedings, 
 woods, underwoods, and the ground and soil there- 
 of, commons, and common of pasture, and of tur- 
 bary, and other commonable rights, hedoes, 
 ditches, fences, mounds, ways, patiis, waters, 
 water-courses, liberties, privileges, easements, 
 profits, commodities, advantages, and emoluments 
 whatsoever, to the said messuages, farms, lands, 
 tenements, and hereditaments, hereby released or 
 
 VOL. 1. B B
 
 $40 APPENDIX. 
 
 Otherwise assured, or intended so to be, or any of 
 them respectively, belonging, or in anywise ap- 
 pertaining, or accepted, reputed, deemed, taken, 
 known, held, occupied, or enjoyed as part, par- 
 cel, or member of the same, or any of them re- 
 v"rsion!&c. spectively. And the reversion and reversions, 
 remainder and remainders, yearly and other rents 
 and profits of the said messuages, farms, lands, 
 tenements, and hereditaments, hereby released, or 
 otherwise assured, or intended so to be, and every 
 part and parcel of the same, with their and every 
 AU tiie estate, of their rights, members, and appurtenances. And 
 **-• all the estate, right, title, interest, use, trust, 
 
 inheritance, term and terms for life or lives, pro- 
 perty, possession, benefit, and equity of redemp- 
 tion, claim, and demand whatsoever at law and 
 in equity, or otherwise howsoever, of the said 
 T. B. B, and dower and right, and title of dower 
 of the said P his wife, of, into, and out of the 
 said messuages, farms, lands, tenements and here- 
 ditaments, and every part and parcel of the same, 
 with tlieir and every of their rights, members, and 
 Habendum to appurtenances. To HAVE AND TO HOLD the said 
 c. D. m iee. j^^j^gsuages, farms, lands, tenements, and heredita- 
 ments, and all and singular other the premises 
 hereby released, or otherwise assured, or intended 
 so to be, and every pait and parcel of the same, 
 M'ith their and every of their rights, members, and 
 ap))urtenances, unto the .said C D. his heirs and 
 assigns for ever, to the only proper use and behoof 
 of the said CI), his Jieirs and assigns for ever. 
 To make him 'l'^ TH«: INTENT that the said CD. may be te- 
 t ii.mi to t'lc J ^^l• ^^Q freehold of all and sinprular the said 
 
 pi.ccipc. " 
 
 mes.suages, farms, lands, tenements, and heredita-
 
 RECOVERY DEED. 341 
 
 ments hereby released, or otherwise assured, or 
 intended so to be, and every part and parcel of 
 the same, with their rights, members, and appur- 
 tenances ; to the end that one or more good and 
 perfect common recovery or recoveries, with dou- 
 ble voucher, may be had and suffered of the same 
 hereditaments. ^w(/ for that purpose it is hereby ^9^16 of suf- 
 
 ferinj? the re- 
 
 directed, declared, and agreed by and between covery pre- 
 all the said parties, to these presents, as far as they ^*^^^^^' 
 respectively are interested, that the said C. D. 
 shall permit and suffer the said R. P, or some 
 other person or persons, at the costs and charges 
 in all things of the said T. B. B. his heirs, exe- 
 cutors, or administrators, at any time or times 
 hereafter, to sue forth and prosecute against the 
 said C. D, out of his majesty's liigh court of 
 Chancery, one or more writ or writs of entry sur 
 disseisin en le post, returnable before his majesty's 
 justices of the court of Common Pleas at West- 
 minster ; and thereby demand of the said C. D. 
 the messuages, farms, lands, tenements, and here- 
 ditaments hereby released, or otherwise assured, 
 or intended so to be, with their and every of their 
 rights, members, and appurtenances, by the names? 
 and descriptions of-[as in the writ of entrif\-ox by 
 such other apt, good, sufficient, and proper names? 
 number of messuages, and acres, quantities, quali- 
 ties, and other descriptions as shall be deemed 
 necessary, proper, sufficient, and requisite to 
 comprise the same. And that the said C. D. 
 shall in his own person, or by his attorney or at- 
 tornies, lawfully authorised in that behalf, appear 
 to the same writ or writs, and vouch to warranty 
 the said T. B. B. and P. his wife. And that the 
 said T. B. B. and P. his wife shall, in their 
 
 B B 2
 
 APPENDIX. 
 
 own pcrsonH, or by their attorney or attoniieSi,. 
 lawfully authorised in that behalf", appear gratis, 
 and freely enter into the warranty of the said 
 C. D, and taking the same upon themselves vouch 
 over to warranty the common vouchee of the said 
 court of Common Pleas for th(^ time being ; who 
 shall appear gratis, and freely enter into the war- 
 ranty of the said T. B. J>. and P. his wife, and 
 after imparlance make default. So that judgment 
 may be given upon the said writ or writs, and 
 every of them, for the said U. P, or other deman- 
 dant or demandants, to recover all and singular the 
 said messuages, farms, lands, tenements, and 
 hereditaments hereby released or otherwise as- 
 sured, or intended so to be, and every part and 
 parcel of the same, with their and every of their 
 rights, members, and appurtenances, by such 
 names, quantities, quahties, and other descrip- 
 tions as aforesaid, against the said C. D.; and for 
 the said C. D. to recover in vahie against the said 
 T. B. B. and P. his wife ; and for them the said 
 T. 15. B. and P. his Avife, to recover in value 
 against the connnon vouchee, as is usual in like 
 cases. And that upon all and every recovery and 
 recoveries to be suffered as aforesaid, execution 
 may be sued and prosecuted by, and seisin had, 
 taken, and delivered unto the said 11. P. or other 
 demandant or demandants, accordingly. And 
 that every other act or thing needfvd, requisite, 
 or pr(^]ier to be done and executed for th(^ purpose 
 ofsuflering and perfecting a connnon recovery or 
 recoveries of the said messuages, farms, lands, 
 tenements, and lu^-editaments hereby released, 
 or otherwise assured, or intended so to be, with 
 d(juble, treble, or other voucher, to bar the estate
 
 RECOVERY DEED. 343 
 
 or interest in tail of the said T. B. B, of and in the to bar the 
 same messuages, farms, lands, tiMiements, and af,^,fj*;^*^t'x.]|^_'^ 
 hereditaments, and all reversions and remainders fe^'^'^ ''o^^er 
 
 , , of the wife. 
 
 over and expectant upon the same estate or in- 
 terest in tail, and to extinguish the dower, right 
 and title of dower of the said P. 13. may be made, 
 done, and executed. And by way of direction direction 
 and declaration, and not of covenant, it is hereby ^'^'^f, y^^"^'^""-^ 
 
 •^ shall be sufFer- 
 
 granted, declared, and agreed by and between the ed ; 
 said parties to these presents, and they hereby 
 for themselves severally and respectively, and for 
 their several and respective heirs, executors, and 
 administrators, and according to their respective 
 estates, rights, and interests in the premises con- 
 sent and agree, that the recovery hereby agreed 
 to be suffered shall be suffered and perfected with 
 all possible dispatch; and that they respectively, and that par- 
 ;uid their respective heirs, on their respective eJScr to th^' 
 parts, will use their utmost endeavours to give^^™'*- 
 effect to the same recovery, and also to these pre- 
 sents, and the grant, release^ confirmation, or 
 other assurance hereby made. And it is iiERii-nECLAKAnoN- 
 
 ,11 , , , that recoven- 
 
 BY FURTHER D iRECTE D, declared, and agreed by when sufflretJ 
 and between all the parties to these presents, as 
 far as they respectively have any right, title, or 
 interest in the premises, that immediately upon 
 and after judgment obtained, and seisin had and < 
 taken upon such recovery as aforesaid, the same 
 recoverv^ and also these presents, and the assu- tlie present 
 
 ," , 1 1111 n .deetl, and all 
 
 ranee hereby made, and all and every nne and fines, &c. 
 fines, recovery and recoveries, and other assu- 
 rances whatsoever, at any time or times heretofore, 
 and to be at any time, and from time to time 
 hereafter, had, made, done, levied, suffered, exe- 
 cuted, and perfected, of or concerning all or any
 
 344 
 
 APPENDIX. 
 
 shall enure. 
 
 and that per- 
 sons shall 
 stand seised, 
 
 As to the par- 
 cels conveyed. 
 
 To the use of 
 such persons 
 as f^rfuitor 
 shall by deed 
 appoint. 
 
 part of the said messuages, farms, lands tene- 
 ments, and hereditaments hereby released, or 
 otherwise assured, or intended so to be, either by 
 themselves solely and alone, or jointly and toge- 
 ther with any other lands, tenements, or heredita- 
 ments, by or between all and every, or any or 
 either of the persons who are parties to these pre- 
 sents, or to which they, or any or either of them 
 is, or are, or shall, or may be parties or privies, 
 or a party or privy, shall, as to all the said parties 
 to these presents respectively, as far as they re- 
 spectively can lawfully or rightfully direct the 
 uses of the same fme and fines, common reco- 
 very and recoveries, and other assurances, be and 
 enure, and be adjudged, expounded, deemed, 
 decreed, and taken to be and enure, and that the 
 same was and were meant and intended, and is 
 and are hereby directed and declared to be and 
 enure ; and also that the person or persons to 
 whom the said fine or fines, common recovery or 
 recoveries, and other assurances respectively, 
 have or hath been, or shall or may be levied, suf- 
 fered, made, and executed, shall stand and be 
 ■seised. As to, for, and concerning the said mes- 
 suages, farms, lands, tenements, and heredita- 
 ments hereby released, or otherwise assured, or 
 intended so to be, and every part and parcel of 
 the same, with their and every of their rigiits, 
 members, and appurtenances, To the uses, upon 
 the trusts, and for the ends, intents, and purposes 
 hereinafter limited, expressed, and declared of and 
 concerning the same, (that is to say) To the use 
 of such person or persons, for such estate or es- 
 tates, and lor such interest or interests, by way 
 of annuity, rent-charge, or otherwise, and in such
 
 RECOVFRY DEED. 345 
 
 parts, shares, and proportions, and upon such 
 trusts, and for such ends, intents, and purposes, 
 and charged and chargeable in such manner, and 
 either absolutely or conditionall}^, and subject to 
 such powers of revocation and of new appointment, 
 and other powers, provisoes, conditions, restric- 
 tions, limitations, declarations, and agreements, 
 as the saidT, B. B. at any time or times, and from 
 time to time, by any deed or deeds, to be sealed 
 and delivered by him in the presence of, and at- 
 tested by one, two, or more credible witness or 
 witnesses, shall direct, limit, or appoint. And in l" default of 
 
 1 T . ,. appointment, 
 
 deiault of such direction, hmitation, and appoint- 
 ment, and in the mean time, and from time to 
 time until the same shall take effect, and from 
 time to time subject to such uses, estates, trusts, 
 charges, and interests as shall have been directed, 
 limited, or appointed by the said T. B. B. then'^" ^^^"se oi 
 To the use of the said T. B. B. and his assigns for life, 
 any during the term of his natural life, y^/ic? Remainder 
 from and after the determination of that estate by 
 any means. To the use of the said R. P. his heirs To the use of 
 and assigns, during the natural life of the said nfg of jjrantor 
 T. B. B, Upon trust for, and for the sole benefit ^°P''^^^"<^ 
 of the said T. B. B. and his assigns, and to the 
 intent that the present or any future wife of the 
 said T. B. B. may not be entitled to dower, y^/io? Remainder, 
 from and after the determination of the estate 
 hereby limited to the use of the said R. P, his 
 heirs and assigns, for the life of the said T. B. B. 
 then To the use of the said T. B. B. his heirs and To the use of 
 assigns for ever. And to, for, and upon no other^^*°^"^^* 
 use, trust, intent, or purpose whatsoever. In, 
 witness, Sfc,
 
 346 APPENDIX. 
 
 FORM A 
 
 Eelcase in Fee of Lands, partly Freehold, and partlt/ of 
 the Tenure of ancient Demesne, that Common Recoveries 
 may be suffered thereof to Uses : zvith a Release of Right. 
 
 THIS INDENTURE, of six parts, made the 
 
 day of in the forty fifth year of the 
 
 reign, &c. &c. and in the year of our Lord 1805 ; 
 
 FARTiEs. Between J. R. H. of, &c. yeoman, of the first 
 part; W. B. of, &c. gentleman, of the second part; 
 C. C. of, &c, gentleman, and A. his wife, (late 
 A. H, spinster,) of the third part; J. S. of, &a. 
 gentleman, of the fourth part; T. S. of, &c. of the 
 fifth part ; and J. E. of &c. Esq. of the sixth part. 
 
 Recital of a WiiEREAS by indentures of lease and release, 
 
 marriage set- , . , . , i , , 
 
 tlement, ere- Dcarmg date respectively ou or about the 1st and 
 tatSjarin'' -^ ^^'"^y^ ^^ September in the year 1727, the in- 
 partofthe denture of release being tripartite, and made, or 
 expressed to be made, between J. N. and JNI. his 
 wife, of the first part ; W. C. and J. II. of the 
 second part ; and J. N. the younger and M. liis 
 wife of the third part ; (being a settlement made 
 in consideration of the inarriao-e then intended to 
 be, and afterwards solemnized, between the said 
 J. N. the younger, and IVI. his wife,) the messuage 
 or tenement and hereditaments hereinafter de- 
 scribed to be called and situate in H, in the 
 parish of O, in the county of S, were conveyed.
 
 RECOVERY DEED. 347 
 
 settled, and assured, after, and subject to uses for 
 the life of the said J. N. the younger, and M. his 
 wife, (both of whom long since departed this life) 
 to the use of the first son of the body of the said 
 J. N. the younger, on the body of the said M. 
 Iiis wife begotten, or to be begotten, in tail gene- 
 ral, with divers remainders over. And Where- 
 as J. N. was the eldest son of the said J. N. and 
 M. his wife. And Whereas the said J. N,wm of tenant 
 being seised as tenant in tail of the said messuage"' ^'^ ' 
 or tenement and hereditaments, situate in H. ; and 
 being also seised to him and his heirs in fee sim- 
 ple of a messuage or tenement and hereditaments 
 with the appurtenances, called otherwise 
 
 farm, as the devisee in fee thereof 
 named in the will of W. D. his grandfather; and 
 being also seised to him and his heirs in fee-sim- 
 ple of another messuage, farm, lands, and heredi- 
 taments called otherwise 
 
 farm : did by his last will and testament in 
 writing, duly executed and attested for the devise 
 of lands of inheritance, and bearing date on or 
 about the l6th day of December in the year 17^0, 
 give and devise his said messuage or tenement, devising farm 
 farm, lands, and premises, situate in H. aforesaid, (jau^hterM. 
 and now called otherwise i" tail, 
 
 (charged with an annuity of £ to his wife 
 who is since deceased, for her life,) as soon as his 
 daughter M. should attain the age of twenty-one 
 years, unto his said daughter and her assigns for 
 her life ; and from and after the decease of his said 
 daughter, he gave and devised the same unto the 
 heirs of her body, lawfully issuing. But in case 
 the said daughter should not live to attain the
 
 348 
 
 APPENDIX. 
 
 Death of tes' 
 tator. 
 
 age of twenty-one years, or leave issue of her body 
 lawfully begotten, then the said testator devised 
 his said messuages, lands, and hereditaments at 
 H. in manner therein mentioned. And the said 
 J. N. by his said will, also gave and devised all 
 that his messuage or tenement, farm, lands, and 
 premises in H. aforesaid, called or known by the 
 name of when and as soon as his 
 
 said daughter M. should attain her age of twenty- 
 one years, unto his said daughter, her heirs and 
 assigns for ever. But in case his said daughter 
 should not live to attain the age of twenty-one 
 years, or leave issue of her body lawfully begotten, 
 then he devised the same messuage or tenement, 
 farm, lands, and premises last mentioned in man- 
 ner in the said will expressed. And Whereas 
 the said J. N. departed this life on or about the 
 day of in the year of our Lord 
 
 without having in any manner altered or 
 revoked his said will, leaving his said daughter 
 M. his only child and heir at law. And the said 
 in part recited w^ill of the said J. N. was, after his 
 decease, and on or about the 6th day of July, in the 
 year duly proved in the Consistory Court 
 
 of the Lord Bishop of W. at W. And where- 
 as the said M, the daughter of the said J. N. in- 
 Settlement of termarried with D. H. And whereas by in- 
 the estates on j ^ |^^.^j.jj l^tg on or about the 29th day of 
 
 daughter s & •^ 
 
 December, in tlie year 1781, and made or express- 
 ed to be made between the said D. H, and the 
 said M, then the wife of the said D. H, of the one 
 part, and W. B. of the other part ; and by a fine 
 SU7- conuzance dc droit cowe ceo, &c. levied in pur- 
 suance of an agreement contained in that inden- 
 
 Probate of 
 will. 
 
 3Iamaee of 
 daughter. 
 
 husband.
 
 RECOVERY DEED. 34.9 
 
 ture, in the court of ancient demesne of the manor 
 and hundred of O, of which the said messuages, 
 farm, lands, and hereditaments called are 
 
 holden. All those three several messuages or tene- 
 ments, farms, lands, and hereditaments hereinafter 
 described, to be called by the names of 
 with the appurtenances, were, or were expressed 
 or intended to be settled and assured to the use 
 of the said W. B. and D. H. their heirs and as- 
 signs, nevertheless, as to the estate and interest of 
 the said W. B. and his heirs, of and in the said 
 hereditaments and premises, in trust for the said 
 D. H. his heirs and assigns. But as a fine levied Fine inefFec- 
 in the court of ancient demesne is not a fine within estates-tail. 
 the statutes under which proclamations are made, 
 such fine was not an effectual bar to the said es- 
 tates-tail. And Whereas J. H. formerly of, will of J. H. 
 &c. surgeon, by his last will and testament in ^f^^'jjj^ofd"*^^ 
 writing duly executed and attested for the devise tenure to D. 
 of lands of inheritance, and bearing date on or 
 about the 12th day of June, 1782, (amongst other 
 things,) gave and bequeathed unto his son, the 
 said D. H, all his (the said testator's) lands and 
 premises, held by copy of court roll in C, includ- 
 ing the tenements then inhabited by S. H. and E, 
 and his house and land in D, likewise the house 
 inhabited by F. J. And Whereas the said J.Deathoftes- 
 H. departed this life on or about the day of 
 1782, without having in any manner altered 
 or revoked his said will, leaving T. H. his eldest 
 «on and heir at law. And the same will was, Probate of 
 after the death of the said J. H. and on or about ^'^^• 
 the seventh day of March, in the year of our Lord 
 1791, proved in the court of And
 
 350 APPENDIX. 
 
 Admission to Whereas at a court held for the manor and hun- 
 
 copyland r-i - ■ 
 
 lands. dred of C. aforesaid, on or about the 28lh day of 
 
 October, in the year 1782, the said D. H. as the 
 son and devisee of the said J. U, was admitted 
 tenant to the several lands, tenements, and here- 
 ditaments, late of the said J. H, holden of the 
 said manor and hundred of C by copy of court 
 roll ; to hold to him and his heirs for ever, ac- 
 cording- to the form and effect of the said will, and 
 according- to the custom of the manor and hun- 
 
 wiiJ. surrendered all the same lands, tenements, and 
 
 hereditaments, to the use of such person or per- 
 sons as he in and by his last will and testament 
 should give, devise, direct, limit, and appoint. 
 
 D. H. thede- And A7hereas in the devise contained in the 
 
 visee took . 
 
 only an estate said lu part rccitcd wiU of the said J. H, of his 
 
 Avant of words ^^^^ lauds held by copy of court roll and other 
 
 of inheritance, hereditaments, to his said son D. II. no words of 
 
 inheritance were used, and it is apprehended that 
 
 the said D. H. took only an estate for life in the 
 
 said lands and hereditaments under that devise. 
 
 D. H. was And Whereas the said D. II. was possessed of 
 
 possessed of . . n ■ i i i • i ,. 
 
 ground and oi' Otherwise well entitled to tlie piece or parcel of 
 buildnigs for a orround, with the dwelline--house, edifices, and 
 
 tenn, . o ' ' 
 
 buildings thereon erected, situate and lying in the 
 parish of C. aforesaid, hereinafter described and 
 also assigned, or otherwise assured, or intended so 
 to be, with the appurtenances, for the residue of 
 a certain term of five hundred years, therein cre- 
 ated by indenture, bearing date on or about the 
 WillofD. 11; lOth day of March in the year 174j. And 
 Whkreas the said 1). II. [)y his last will and 
 testament in writing, duly executed and attested
 
 RECOVERY DEED. 351 
 
 ibr the devise of lands of inheritance, and bearino; 
 
 date on or about the l6th day of December in tlovisinp his 
 
 1 1 1 • i I • 1 1 copyholds to 
 
 the year 1784, gave and devised unto his daughter his daui?htcr 
 il. her heirs and assigns for ever, all that his copy-^'^"' *" 
 hold messuage or tenement, buildings and here- 
 ditaments, then in the occupation of J. D. and 
 himself, situate and lying in D — street, in C, 
 aforesaid, called or known l)y the name of 11. 
 (being all or part of the said copyhold heredita- 
 ments, which were devised to the said D. H. as 
 aforesaid.) And he desired that the lords of th(- 
 manor of C. aforesaid, or their steward, would 
 admit his wife and his brother-in-law J. M. as 
 guardians of his said daughter H. during her mi- 
 nority. And the said testator also rave and-'^"'^'^^^'^i"S- 
 
 1-1 1-1 A 1 1 • 1 • ^^'^^^ treehold 
 
 devised unto his daughter A. her heirs and assigns and copyhold 
 for ever, all those his freehold messuages, lands, J|'^|j^j^^^^j."^ 
 tenements, and hereditaments, with their appur-i"^ee. 
 tenances, situate in in C. in the occupa- 
 
 tion of W. C. labourer, and in in C. afore- 
 
 said, in the occupation of F. G. labourer ; And 
 also all those his ten copyhold tenements, with 
 the buildings, gardens, and appurtenances there- 
 unto belonging, situate and lying in C. aforesaid, 
 and then in the occupation of S. C. and others : 
 to hold to his said daughter A. her heirs and as- 
 signs for ever. And the said testator desired that 
 the lords of the manor of C. or their steward. 
 would admit his said wife and his said brother-in- 
 law J. M. as guardians of his said daughter A. 
 during her minority. And the said testator gJ^ve ^,^^1 devising 
 and devised unto his son and his heirs, all those ^o ^"^^on, m 
 
 , tee, other tree- 
 
 his three several freehold farms, with the mcs- hold lands, 
 suages, buildings, lands, hereditaments, and appur-
 
 352 APPENDIX. 
 
 tenances thereto belonging, situate and lying at H, 
 in the parish of O, then in the occupation of 
 himself and H, C. respectively, with the stock, 
 rights, members, and appurtenances, thereto be- 
 longing, (subject to certain annuities to the said 
 Subject to an testator's wife.) But in an event which happened, 
 
 executory ... rr ' 
 
 devise to his namely, in case his said son should hajipen to 
 iiffe^. ^^ depart this life before his attainment of the age of 
 twenty-one years, without leaving any lawful 
 issue of his body then living, the said testator gave 
 and devised all his said freehold farms, lands, here- 
 ditaments, and premises situate at H. aforesaid 
 unto his said daughter H. her heirs and assigns, 
 And subject subject to a further annuity to his said wife. And 
 
 to an execii- ... . . 
 
 tory devise if all his said children should happen to depart 
 tates tT.h^ii. *h^^ ^'^^ during their minorities, without leaving 
 H. .1. M. and any lawful issue of their, his, or her bodies or 
 body then living, then the said testator gave, 
 devised, and bequeathed all and every his real 
 and personal estates whatsoever and wheresoever 
 (subject as aforesaid), unto his nephews, the 
 said J. R. H. and J. M. the younger, and F. T. 
 their heirs, executors, administrators, and assigns, 
 for ever, equalh' to be divided between them, 
 share and share alike, they paying thereout certain 
 annuities thereby given to his said wife. And 
 the said testator appointed his wife M. and his 
 brother T. 11, and his brother-in-law J. M. exe- 
 cutors in trust of his will, and guardians of all his 
 Codicil to the said children. And Whereas the said D. H. 
 
 last mention- • i n i i i i 
 
 td will. by a cotlicjl to his said will, duly executed and 
 
 attested for the devise of lands of inheritance, and 
 bearing date on or al)out the 12th day of May, in 
 the year 178j, in case his said daughters H. li.
 
 RECOVERY DEED. 353 
 
 and A. H. and his son J. N. H. and all and every 
 of them, should happen to depart this life, without 
 leaving any lawful issue of their, her, or his bo- 
 dies or body then living, gave, devised, and be- 
 qeathed the whole of his estate aud effects, both 
 real and personal, of what tenure, nature, or kind 
 soever, unto his said nephews J. R. H, J. M. the 
 younger, and F. T, their heirs, executors, admi- 
 nistrators, and assigns for ever, to be equally di- 
 vided between them, share and share alike, and 
 they to take as tenants in common, and not as 
 joint-tenants, subject to the several payments in 
 his said will expressed, and to all other incum- 
 brances and pavments. And Whereas the said ^^^*'' o^ ^^s- 
 
 ^ "^ tator. 
 
 D. H. departed this life on or about the 
 
 day of without having in any manner 
 
 altered or revoked his said will, otherwise than by 
 the said codicil thereto, and without having altered 
 or revoked that codicil, leaving his said daugh- 
 ters, H. H. and A. H, and his son, the said J. N. 
 H, him surviving; And the said in part recited Probate of 
 
 .,,,,.., ^ 1 , , will and codi- 
 
 Will and codicil were afterwards, and on or about di. 
 the day of duly proved in the 
 
 CO urt of A N D W H E R E A S by Conveyance 
 
 indentures of lease and release, bearing date re- purchased' 
 spectively on or about the 28th and 29th days of^'^JJ^^^ "'[^'the 
 September, in the year 1786, and made or ex- "^e of the in- 
 
 11 11 1 • I rr> TT n 1 i^"^ children 
 
 pressed to be made between the said 1. H. of theofD. H.in 
 one part, and the said M. H. and J. M. (and*^^" 
 which said M. H, J. M, and T. H, are therein 
 described to be executors in trust named in the 
 said will of the said D. H.) of the other part ; it 
 is witnessed, that in consideration of £ to 
 
 the said T. H. paid by the said M. H. and J. M,
 
 354 APPENDIX. 
 
 being part of the trust money arising under the 
 will of the said D. H, the two messuages or tene- 
 ments hereinafter mentioned to have been pur- 
 chased of and from the said T. H, with the api)ur- 
 tenances, were conveyed and assured by the said 
 T. II. unto the said M. H. and J. M ; in trust 
 for, and to the nse of the said J. N. II, H. II. 
 and A. H, the infant children of the said D. H. 
 Assignment their helrs and assigus for ever. Amd Whereas 
 
 of leasehold , • , , r- • ^ i_ • i ^ 
 
 lands in trust by nideuture or assignment, bearing date on or 
 
 Intl^^ '"' "'^^"^ ^^^^^ 2^^^^ ^^y ^^' September, in the year 1786, 
 and made or expressed to be made between the 
 said T. H. of the one part, and the said M. H. 
 and J. M. (and which said T. H, M. H. and J. M, 
 arc therein described as executors as aforesaid,) 
 of the other part ; the four pieces or parcels of land 
 hereinafter described, and assigned, or otherwise 
 assured or intended so to be, with the appurtenan- 
 ces, were, for the considerations therein mentioned, 
 assigned by the said T. H. unto the said M. H. 
 and J. M. their executors, administrators, and 
 assigns for the residue of two several terms of one 
 thousand years, and one thousand years therein, 
 in trust for the said J. N. H, H. H. and A. H, 
 their respective executors, administrators, and 
 assigns, subject to the rents and covenants in the 
 Feoffment ol" original indentures of demise contained. And 
 SoTm. Whereas by indenture bearing date on or about 
 '^' ^'*'<^- the 1 (ith day of March, in the year 1787, and made 
 
 or expressed to be made between H. L. of the 
 one part, and the said J. M. of the other part, and 
 by livery of seisin made according to the form and 
 effect of the same indentures the messuage or tene. 
 naeut and hereditaments hereinafter mentioned to
 
 RECOVERY DEED. 355 
 
 liave been purchased of and jrom the said H. L, 
 and hereinafter released, or otherwise assured or 
 intended so to be, with the appurtenances, were, 
 in consideration of £ paid by the said 
 
 J. M. to the said H. L, granted, enfeoffed, and 
 conveyed by the said H. L. unto and to the use 
 of the said J. M. his heirs and assigns for ever. 
 And Whereas by a deed poll, or memorandum J^^^^^j^^P^J,' 
 indorsed on the last in part recited indenture, and trusts under 
 being under the hand and seal of the said J. M,]3. h. 
 and bearing date on or about the 14th day of July, 
 in the year 1791, after reciting that the sum of 
 £ , paid to the said H. L. by the said J. M, 
 was not the proper money of the said J. M, and 
 that the same was part of the residue of the per- 
 sonal estate and effects of the said D. H. and by 
 him given and bequeathed as aforesaid, the said 
 J. M, in consideration of the premises, did declare 
 and agree, that the same messuage, hereditaments, 
 and premises, were granted and conveyed to, and 
 his name used only, in trust with them the said 
 T. H. and M. H, for such uses, intents, and pur- 
 poses, as were mentioned, expressed, and declared 
 in the said will of the said D. H, of and concern- 
 ing other the messuages, hereditaments, and pre- 
 mises, in the said will mentioned. And he did 
 thereby declare and agree, that the said messuage, 
 hereditaments, and premises should at all times 
 thereafter remain, continue, and be to the same 
 uses, upon the same trusts, and for the same ends, 
 intents, and purposes as other the messuages or 
 tenements, hereditaments and premises, late of 
 the said D. H. were subject and liable to under 
 and by virtue of his said will, freed and absolutely 
 
 VOL. I. C C
 
 356 APPENDIX. 
 
 discharged from all manner of incumhrances 
 
 made, done, or suffered, or thereafter to be made, 
 
 done, or suffered by him the said J. M. his heirs, 
 
 Death of the executors, administrators, or assigns. And 
 
 underage, and Whereas the said J. N. 11/ departed this hfe on 
 
 withoutissue. ^j. ^i^Q^j ^}^g j^^^^i^ ^^y of August in the year 1791, 
 
 under the age of twenty-one years, and without 
 
 leaving any issue of his body lawfully ])egotten. 
 
 Death of H, a A N D Whereas the said H. H. departed this life 
 
 D.'aunaer ou or about the 27th day of March, 179^, under 
 
 age and v.ith- |.|-,g ^-g ^f twentv-onc vears, and without leavins; 
 
 out issue. o v •- *— 
 
 A. the other ^"7 ^^^^^ ^^ ^^^^' '^^^Y lawfully begotten. And 
 daughter of W HERE AS the Said A. II. attained the age of 
 
 D. H. attained ^ i i r t\ 
 
 21, and mai- twenty-one years on or aoout the 3a day ot Ue- 
 ^'"'^' cember, in the year of our Lord 1803, and on or 
 
 about the 7th day of May in the year 1805, inter- 
 DeathofT. H.i^iarried w'ith the said C. C. her husband. And 
 j.K. ii. is Whereas the said T. H. departed this life on. or 
 
 heir to J. H. * . 
 
 about the , day of m the year or 
 
 our Lord 180.5. And the said J. 11. H. is the 
 
 eldest son, and li(Mr at law, and customary heir of 
 
 the said W Ii : and as such is the customary heir 
 
 Election of of the said J. 11. And Whereas the said J. R. 
 
 ike copyhold ^' ^ath elected to take the said several copyhold 
 
 ani to release and other hereditaments, wliich under the devise 
 
 his title to . . . -n ,- i • i t tt 
 
 other estates, lu the Said in part recited will or the said J. 11. 
 passed to the said 1). if. for his life only, and to 
 which the said J. II. IJ. is now become entitled 
 as the heir at law of the said J. H. as aforesaid^ 
 and to disclaim and release all his estate, right, 
 title, aiifl interest in and to the share to which he 
 is entitl''d, suf)ject to such contingency as afore- 
 said, und<>r the will of the said {). 11, of and in 
 th(.* other real estates, late of the said 1). I f, and
 
 RECOVERY DEED. 357 
 
 which have been purchased by and out of his 
 personal estate since his decease as aforesaid, and 
 also of and in the residue of the personal estate 
 late of the said D. H, and hath agreed to release 
 his share, estate, and interest, of, in, and to all 
 other the real and personal estates, late of the 
 said D. H. unto the said A. C. her heirs, execu- 
 tors, administrators, and assigns, or in such man- 
 ner as she shall direct or appoint. And Wh ere as Desire of par=. 
 the said C. C. and A. his wife are desu'ous ofj'^'overiesl'' 
 suffering a common recovery of the several mes- 
 suages, farms, lands, and hereditaments herein- 
 after described and released, or otherwise assured 
 or intended so to be, and called by the respective 
 names of otherwise and 
 
 otherwise with the appurtenances in the 
 
 court of ancient demesne, whereof the same are 
 holden ; and a recovery of the other messuages, 
 lands, and hereditaments hereinafter described 
 and released, or otherwise assured or intended so 
 to be, (not being of that tenure) in his majesty's 
 court of Common Pleas, at Westminster ; and of and to settle 
 settling the same messuages, farms, lands, tene-JJ^^.^^"'^^ ^^ 
 ments, and hereditaments respectively, as far as 
 they are interested therein, to the uses hereinafter 
 expressed and declared of and concerning the same 
 hereditaments respectively. And the said J, R . Agreement of 
 H. hath at their request agreed to join the con- jjin j,, tiie 
 veyance of the several niessuaoes, farms, lands, '"^"^^y^"'^^' 
 
 *' -1 ^"^^ to release 
 
 tenements, and hereditaments, respectively, for his interest, 
 the purpose of releasing and extinguishing all his 
 estate, share, and interest therein, and also to 
 assign and release unto the said C. C. and A. his 
 wife all his share and interest in the personal 
 
 c c 2
 
 358 APPENDIX. 
 
 estate, late of the said D. H. in such manner as is 
 Agreement of hereinafter expressed. And the said VV^ B. hath 
 
 theconusee of , . . . , /• i 
 
 fine to join ill also agreed to join hi these presents tor the pur- 
 
 conveyance. p^^^ ^^ transferring all the estate (if any) in the 
 
 said lands of the tenure of ancient demesne, and 
 
 comprised in the said fine which are now vested 
 
 WiTNEssKTii in him. Now this indenture witnesseth, 
 
 that for bar- i r> i i • i ■ i i • n 
 
 ring estates- that for docKHig, barring, and destroying all estates 
 tail, &c. ^^^ interests in tail of and in the several mes- 
 suages, farms, lands, and hereditaments hereinafter 
 described, and hereby released or otherwise assur- 
 ed or intended so to be, and all reversions, and 
 remainders expectant or depending on the same 
 estates or interests in tail, and all conditions and 
 collateral limitations annexed thereto ; and for 
 and settling settling and assuring the same messuages, farms, 
 uses, and giv-l^"ds and hereditaments respectively, to the uses 
 iiig effect to hereinafter limited and declared of and concerning 
 
 election. ^ , . " 
 
 the same, and for giving effect to such election of 
 
 the said J. R. H> as hereinbefore recited ; And 
 
 and for norm- also in consideration of ten shillines of lawful 
 
 nal considera- ■ ^^ i^ • • i ,- i 
 
 tioiis. money, current in Great Britain, to each of them 
 
 the said J. R. H, W. B, C. C. and A. his wife, 
 well and truly paid by the said J. S. immediately 
 before the execution of these presents, (the receipt 
 
 _ , whereof is hereby acknowledared,) The said J. R. 
 
 The parties "^ o v 
 
 according to H. and W. B, (at the request and by the direction 
 eir cs a es, ^^j appointment of the said C. C. and A. his wife, 
 testified by their respective executions of these 
 presents,) and also the said C. C. and A. his wife, 
 according to their respective shares, estates, rights, 
 and interests in the premises, but no further or 
 
 rflra'sc to .I.S. otherwise, have^ and each and (ivery of them hat/i., 
 bargained, sold, and rt^leayed, and by tliese presents
 
 RECOVERY DEED. 359 
 
 do, and each and every of them doth bargain, sell, 
 and release unto the said J. S. his heirs and as- 
 signs, (in the actual possession of the said J. S. (reference tx> 
 
 Iphsp for 3 
 
 now being, in virtue of a bargain and sale thereof year) 
 made to him by the said J. R. H, W. B, C. C. 
 and A. his wife, in consideration of five shillings, 
 paid to each of them by the said J. S, by indenture 
 bearing date on the day next before the day of the 
 date, and executed before the execution of these 
 presents, for one whole yt^ar, to be computed from 
 the day next before the day of the date of the 
 same indenture of bargain and sale, and by force 
 of the statute made for transferring uses into pos- 
 session), All, &c. \^Here the parcels were inserted. ~\ pauckls. 
 And all houses, cottages, outhouses, edifices. General words 
 buildings, barns, stables, yards, gardens, orchards, '^^ ^'^^^' 
 closes of land, meadow and pasture, feedings, 
 woods, underwoods, and the ground and soil 
 thereof, commons, and common of pasture, and of 
 turbary, and other commonable rights, hedges, 
 ditches, fences, mounds, ways, paths, waters, 
 water-courses, hberties, privileges, easements, pro- 
 fits, commodities, advantages, and emoluments, 
 whatsoever, to the said messuages, farms, lands, 
 and hereditaments hereby released, or otherwise 
 assured or intended so to be, or any of them re- 
 spectively belonging, or in any wise appertaining, 
 or accepted, reputed, deemed, taken, known, held, 
 occupied, or enjoyed, as part, parcel, or member 
 of the same, or any of them respectively. ^;w/ Reversion, &c 
 the reversion and reversions, remainder and re- 
 mainders, yearly and other rents and profits of the 
 said messuages, farms, lands, hereditaments, and 
 premises hereby released, or otherwise assured, or
 
 S60 APPENDIX. 
 
 intended so to be, and every part and parcel of 
 the same, with their and every of their rights, 
 
 All the estate, members, and appurtenances. And all the estate, 
 right, title, interest, use, trust, inheritance, term, 
 and terms for liie or lives, property, possession, 
 possibility, benefit, and equity of redemption, 
 claim, and demand, whatsoever, at law and in 
 equity, or otherwise howsoever, of them, the said 
 J. R. H, W. B, and C. C, and A. his wife, and 
 of each and every them, of, in, to, and out of 
 the said messuages, farms, lands, hereditaments, 
 and premises hereby released, or otherwise assured, 
 or intended so to be, and every part and par- 
 cel of the same, with their and every of their 
 
 J ^^^jj'j^^g!**' rights, members, and appurtenances. To have 
 AND TO HOLD the Said messuages, farms, lands, 
 hereditaments, and all and singular other the pre- 
 mises hereby released, or otherwise assured, .or 
 intended so to be, and every part and parcel of 
 the same, with their and every of their rights, 
 members, and appurtenances, unto the said J. S, 
 
 discharged \^\^ heirs and assi2:ns ; discharo^ed of and from all 
 
 from all the . , . ^ . 
 
 right of J. R. estate, right, title, and interest, of the said J. R. 
 
 ' H. in or to the same messuages, farms, lands, and 
 
 hereditaments, or any of them, or any part or 
 
 but without share thereof: but subject and without prejudice 
 
 prejudice to _ ^\ . . 
 
 therightsof to any rigiit, title, or interest, which the said J. 
 r persons, jyj ^^^| j r^ ,^^^^ ^^,^^j^ ^^ either of them, can or 
 
 may have, or claim, under or by virtue of the last 
 will and testament of the said D. H, Nevertheless, 
 to the uses, and for the ends, intents, and purposes, 
 hereinafter expressed and declared (that is to 
 As to lands ^ay) As to, for, and concerning such, and so many, 
 
 of illlClfllt , , , -. ' 1 • , 
 
 demesne, and sucli part and parts, oi the said messuages,
 
 RECOVERY DEED. S6l 
 
 farms, hinds, hereditaments, and premises hereby 
 released, or otherwise assured or intended so to be, 
 as are within the jurisdiction of the court of 
 ancient demesne of the manor and hundred of O. 
 aforesaid, with the appurtenances. To iJie use ofTotheuseof 
 the said J. S. his heirs and assigns, for ever, -^wf^i'iidas to%he 
 as to^ for, and concerning all other the messuages, ^t^her lands, 
 farms, lands, liereditaments, and premises hereby 
 released or otherwise assured or intended so to be, 
 with the rights, members, and appurtenances, not 
 being within the jurisdiction of the said court of 
 ancient demesne, To the use of the said T. S. his To the use of 
 heirs and assigns for ever. To the intent that ' •"*^«- 
 the said J. S. and T. S. respectively may be them tenants 
 tenants of the freehold of all and sinoular the mes- J° ^iV''"'"^'^ 
 
 o tor suilenng 
 
 suaffes, farms, lands, hereditaments, and premises two recove- 
 
 hereby limited in use to them the said J. S. and 
 
 T. S, respectively, and every part and parcel of 
 
 the same respectively, with their respective rights, 
 
 members and appurtenances, to the end that two 
 
 or more good and perfect common recoveries, 
 
 with double voucher, may be had and suffered of 
 
 the same lands and hereditaments respectively. 
 
 And for that purpose, it is hereby directed, de- one recovery 
 
 clared, and agreed, by and between all the said ^^^ ^*^ JVj^^J.^^ 
 
 parties to these presents, as far as they respectively "g^t dose, im 
 
 , , , • 1 T o 1 1 1 1 ~^^^^ court of 
 
 are interested, that the said J. h. shall permit and ancient de- 
 suffer the said J. E. or some other person or per-*^^^^"^^ 
 sons, at the costs and charges in all things of the 
 said C. C. his heirs, executors, or administrators, 
 at any time or times hereafter, to sue forth and 
 prosecute against him the said J. S. out of his 
 majesty's high court of Chancery one or more writ 
 or writs of right close directed to the of
 
 363 APPENDIX. 
 
 the said manor and hundred of O, and to be duly 
 returned, and make protestation to prosecute the 
 same writ in nature of a writ of entry, sur disseisin 
 en le post, and thereby demand of the said J. S. 
 such and so many and such part and parts of the 
 several messuages, farms, lands, hereditaments, 
 and premises hereby released or otherwise assured, 
 or intended so to be, as are within the jurisdiction 
 of the said court of ancient demesne, and hereby 
 limited in use to the said J. S. with their and every 
 of their rights, members, and appurtenances, by 
 such apt, good, sufficient, and proper names, num- 
 ber of messuages and acres, quantities, qualities, 
 and other descriptions as shall be deemed neces- 
 sary, proper, sufficient, and requisite, to comprise 
 The other the same; and the said T. S. shall permit and 
 be siiiTeied on suff*^!' the said J. E, or some other person or 
 entr-S^'ti P^^'^^^s, at the costs and charges, in all things 
 Common of tlie Said C. C. his heirs, executors, or ad- 
 ministrators, at any time or times hereafter to 
 sue forth and prosecute against him the said T. S, 
 out of his majesty's high court of Chancery, one 
 or more writ or writs of entry, siir disseisin en le 
 post, returnable before his majesty's justices of 
 the court of Common Pleas at Westminster, and 
 thereby demand of the said T. S. such and so 
 many, and such part and parts, of the messuages, 
 farms, lands, hereditaments, and premises hereby 
 released, or otherwise assured or intended so to be, 
 as are not of the tenure of ancient demesne, and 
 as are hereby limited in use to the said T. S, 
 with their rights, members, and appurtenances, by 
 such good, sufficient, and proper names, number 
 of messuages, and acres, quantities, qualities, and 
 
 Pleas.
 
 RECOVERY DEED. 363 
 
 Other descriptions, as shall be deemed necessary, 
 proper, sufficient, and requisite to comprise the 
 same. And that the said J. S. and T. S. respec- ^^ode of 
 
 ,,,,.,. 1 , . prosecutinc 
 
 tively shall m their own persons, or by their at- both recove- 
 torney or attornies, lawfully authorised in that"|^P''^*'^"*'" 
 behalf, appear to the same writs respectively, and 
 vouch to warranty the said C. C. and A. his wife. 
 And that the said C. C. and A. his wife shall in 
 their own persons, or by their attorney or attor- 
 nies lawfully authorised in that behalf, appear 
 gratis and freely enter into the warranty of the 
 said J. S. and T. S. respectively ; and taking the 
 same upon themselves, vouch over to warranty 
 the common vouchee for the time beino- of the 
 said courts of ancient demesne and Common Pleas 
 respectively. And such common vouchees respec- 
 tively shall appear gratis, and freely enter into 
 the warrant}'^ of the said C. C. and A. his wife; 
 and after imparlance make default. So that judg- 
 ment may be given upon the said writs respectively, 
 and every of them for the said J. E. or other de- 
 mandant or demandants therein respectively, 
 to recover all and singular the said messuages, 
 farms, lands, hereditaments, and premises hereby 
 released, or otherwise assured or intended so to 
 be, and every part and parcel of the same, with 
 their and every of their rights, members, and ap- 
 purtenances, by such names, qualities, quantities, 
 and other descriptions as aforesaid, against the 
 said J. S. and T. S. respectively ; and for them re- 
 spectively to recover in value, against the said C.C. 
 and A. his wife; and for the said C. C. and A. 
 his wife to recover in value against the common 
 vouchees respectively, as is usual in such cases.
 
 364 
 
 APPENDIX. 
 
 to bar the 
 
 estates-tail, 
 
 &c. 
 
 and transfer 
 and settle the 
 lands to uses. 
 
 Direction 
 that recove- 
 ries shall be 
 suffered, 
 
 and that par- 
 ties will ^\\c 
 cfTc'-t to the 
 tame. 
 
 And that upon all and every recovery and reco- 
 veries, to be suffered as aforesaid, execution may 
 be sued and prosecuted by, and seisin had, taken, 
 and delivered unto the said J. E. or other deman- 
 dant or demandants accordingly. And that every 
 other act or thing requisite or proper to be done 
 or executed for the purpose of suffering and per- 
 fecting two or more common recoveries of the 
 several messuages, farms, lands, hereditaments, 
 and premises respectively hereby released or 
 otherwise assured or intended so to be, with dou- 
 ble, treble, or other voucher, to dock the estates or 
 interests in tail of the said A. C. of and in the 
 said several messuages, farms, lands, heredita- 
 ments, and premises, and all reversions and re- 
 mainders over and expectant upon the same estates 
 or interests in tail, and to transfer and settle the 
 same messuages, farms, lands, and hereditaments 
 to the uses hereinafter limited, expressed, and 
 declared thereof, may be made, done, and execut- 
 ed. And by way of direction and declaration, 
 and not of covenant, it is hereby granted, declared, 
 and agreed, by and between the parties to 
 these presents, and they hereby for themselves, 
 severally and respectively, and for their several 
 and respective heirs, executors, and administra- 
 tors, consent and agree, according to their respec- 
 tive estates, rights and interests, in the premises, 
 that the recoveries hereby agreed to be suffered, 
 sliall be suffered and perfected with all possible 
 dispatch ; and that they respectively and their 
 respective heirs, on their respective parts, will 
 use their utmost endeavours to give effect to the 
 same recoveries, and also to these presents, and
 
 RECOVERY DEED. 36*6 
 
 the grant, release, confirmation, or other assurance 
 
 hereby made. And it is hereby further Declaration 
 
 DIRECTED, declared, and agreed, by and between comies whea 
 ail the parties to these presents, as far as they re- ^"^^^*^'^ ' 
 spectively have any right, title, or interest in the 
 premises, that immediately upon and after judg- 
 ment obtained, and seisin had and taken upon each 
 of such recoveries as aforesaid, each of the recove- 
 ries respectively, so as aforesaid, or in any other 
 manner, or at any other time or times, to be suffer- the lease for 
 ed ; and also the bargain and sale for a 3^ear, bearing present deed, 
 date on the day next before the day of the date of 
 these presents ; and also these presents, and the as- 
 surance hereby made ; and all and every other fine and all otlier 
 and fines, recovery and recoveries, and other assu- "^^' ^' 
 ranees whatsoever, at any time or times heretofore, 
 and to be at any time, and from time to time here- 
 after had, made, done, levied, suffered, and perfect- 
 ed, of or concerning all or any part of the said mes- 
 suages, farms, lands, hereditaments, and premises, 
 hereby released, or otherwise assured or intended 
 so to be, either by themselves, solely and alone, 
 or jointly and together with any other lands, 
 tenements, or hereditaments whatsoever, by or 
 •between all and every, or any or either of the 
 persons who are parties to these presents, or to 
 which they or any or either of them is or are, or 
 shall or may be parties or privies, or a party or 
 privy, shall, as to all the said parties to these 
 presents respectively, as far as they respectively 
 can lawfully or rightfully direct the uses of the 
 same fine or fines, common recovery or recoveries, 
 and other assurances, be and enure, and be ad- shall enuie, 
 judged, expounded, deemed, decreed, and taken
 
 566 APPENDIX. 
 
 to be and enure, and that the same was and were 
 
 meant and intended, and is and are hereby directed 
 
 and persons and declared to be and enure ; and also that the 
 
 shall stand ^ u i /• /• 
 
 seised, persou or persons to whom such nne or fines, com- 
 
 mon recovery or recoveries, and other assurances, 
 respectively, have or hath been or shall or may 
 be levied, suffered, made, and executed, shall 
 
 As to the stand and be seised. As to^ for, and concerning^ the 
 
 lands convey- i i , ,• , 
 
 ed said messuages, larm.s, lands, hereditaments, and 
 
 premises, hereby released, or otherwise assured 
 or intended so to be, and every part and parcel of 
 the same, with their and every of their rights, 
 members, and appurtenances, (subject, and with- 
 out prejudice as aforesaid) To the uses, upon the 
 trusts, and for the ends, intents, and purposes, 
 hereinafter limited and declared of and concerning 
 To the use of the Same, that is to say, To the use of such per- 
 &c aThus"^' ^^" ^^ persons, for such estate or estates, and for 
 band and wifeguch interest or interests, by way of annuity, 
 
 shall jomtly , , . i • , i 
 
 appoint. rent charge, or otherwise, and m such parts, snares, 
 and proportions, and upon such trusts, and for such 
 ends, intents, and purposes, and charged and charge- 
 able, in such manner, and either absolutely or con- 
 ditionally, and subject to such powers of revocation 
 and of new appointment and other powers, provi- 
 soes, conditions, restrictions, limitations, decla- 
 rations, and agreements, as the said C. C. and A. 
 his wife, at any time or times, and from time to 
 time, during their joint lives, l)y any deed or 
 deeds, instrument or instruments in writing, to 
 be sealed and delivered by them in the presence 
 of two or more credible witnesses, and attested by 
 the same witnesses, shall jointly direct, limit, or 
 
 In default of appoint. And in default of such direction, limi-
 
 RECOVERY DEED. 367 
 
 tation, and appointment, and in the mean time and appointment. 
 
 from time to time, until the same shall take eflect, 
 
 and from time to time subject to such uses, trusts, 
 
 charges, and interests as shall have been directed, 
 
 limited or appointed by the said C. C. and A. his 
 
 wife jointly ; theuTothe use of the said C. C. and A. To the use of 
 
 . . ^ husbanu and 
 
 his wife, their heirs and assigns, forever; and to no wife, in lee. 
 
 other use, and upon no other trust, nor for any other 
 
 end, intent, or purpose whatsoever. And this indenture 
 
 INDENTURE ALSO WITNESSETH that in pur- *'"^'^"^*^ 
 
 ^ WITNKSSF.TH 
 
 suance and further performance of the said agree- that for nomi- 
 ment on the part of the said J. R. H, and inti'oaJ. R. H. 
 consideration of lOs. of like lawful money as ^■'^'!^^'^^^^"'^ 
 
 *' _ assigns to 
 
 aforesaid, to the said J. R. H. well and truly paid husband and 
 by the said C. C. and A. his wife, immediately 
 before the execution of these presents, (the re- 
 ceipt whereof is hereby acknowledged,) The said 
 J. R. H. hath remised, released, quit-claimed^ 
 and also bargained, sold, and assigned, and by 
 these presents doth remise, release, quit-claim, 
 and also bargain, sell, and assign unto the said 
 C. C. and A. his wife, their heirs, executors, ad- 
 minstrators, and assigns. All the estate, right, all his estate, 
 title, interest, term and terms of years, benefit, ^^J^j^IJ^J^*^" 
 property, and possiblity, at law and in equity, or leasehold 
 
 1 • ^ p 1 • 1 • 1 T T-» TT ^messuages. 
 
 Otherwise howsoever, oi hrni the said J, R. H, of&c. 
 in, to, and out of all the said freehold and lease- 
 hold messuages, lands, tenements, hereditaments, 
 real estate, and residue of the personal estate and 
 effects, and other property late of the said D. H, 
 devised and bequeathed by his said will and codicil, 
 or which were purchased in manner hereinbefore 
 mentioned, and of, in, to, and out of every part
 
 358 APPENDIX. 
 
 and parcel of the same, so and in such manner, 
 that the said J. R. H. may henceforth be ex- 
 cluded of and from all share, right, and interest, 
 of, in, and to the same real and personal estates, 
 and the same may be discharged of and from all 
 claims and demands whatsoever, of him the said 
 Covenant by J. R. JJ. ANDthe said W. B. doth hereby foF 
 
 a releasing i /- i • i • i i • • " 
 
 party that he himseli, his hcirs, cxecutors, and admniistrators, 
 cumbered'"" covenant, declare, and agree, to and with the said 
 C. C. and A. his wife, their heirs and assigns, 
 that he the said W. B. hath not at any time or 
 times heretofore made, done, executed, commit- 
 ted, or willingly or knowingl}^ suffered any act, 
 deed, matter, or thing whatsover, whereby or by 
 reason or means whereof the said messuages, farms, 
 lands, and hereditaments, hereby released, or 
 otherwise assured or intended so to be, or any 
 pant thereof, are, is, can, shall, or may be impeached 
 charged, incumbered, or in any wise affected in 
 The like by title, charge, estate, or otherwise howsoever. And 
 another party, ^.j^^ g^i^l j^ p^^ n ^]^th by thcse presents for him- 
 self, his heirs, executors, and adminstrators cove- 
 nant and declare to and with the said C. C. and A. 
 his wife, their heirs, executors, administrators, and 
 assigns, that he the said J. il. II. hath not at any 
 time or times heretofore, made, done, executed, 
 committed, or willingly or knowingly suffered 
 any act, deed, matter, or thing whatsoever, where- 
 by, or by reason or means \vhereof, the said mes- 
 suages, farms, lands, hereditaments, and premises 
 hereby releasc^l, or otherwise assured or intended 
 so to be, or thi; said leasehold pieces or parcels of 
 land, and other the personal estate hereby released and
 
 RECOVEllY DEED. 369-370 
 
 assigned or intended so to be, or any part of the same 
 respectively, shall or may be impeached, charged, 
 incumbered, or in any wise affected in title, charge, 
 estate, or otherwise howsoever. In witness, ^'c. 
 
 FORM VI. 
 
 Recovery Deed for three Recoveries, in different Counlies, of 
 Sfia?'es in the New River, ivhen the Object is to preserve 
 Contingent Remainders ; and also to prevent Merger ; and 
 correct the Intention of a Testator in the Dispositions made 
 by his Will. 
 
 Though this deed tvas supposed to concern equitable Estates, 
 yet as that ivas not ascertained, it was prepared as if the 
 Estates had been legal (a). 
 
 THIS INDENTURE of seven parts, made the 
 2d day of July A. D. 1805, and 4o Geo. III. &c. 
 Between J. W. of, &c. Esq. and J. F. of, &c. p^Rt its- 
 merchant, of the first part ; E. W. of, &c. spinster, 
 of the second part; the said J. W. of the third 
 part ; J. H. of, &c. gentleman, of the fourth part ; 
 J. M. of, the same place, gentleman, of the fifth 
 part; E. G. of, &c. merchant, of the sixth part; 
 and J. G. of, &c. Esq. of the seventh part. 
 Whereas J. W. late of, &c. Esq. deceased, was REnxEs the 
 at the date and publication of his will, hereinafter 'T" "' ^""^ "^ 
 
 ^ ' a former 
 
 recited, and also at his death, seised of, or other- owner of a 
 
 • 1 1 • , p . ,/'. I /I • moietv of 
 
 wise intitled to a moiety ot two Joth parts, (being difFereut 
 a share he purchased of the Ri^-ht Honorable f?^-^T*' "\^!^*' 
 
 1 ~ king s moiety, 
 
 Elizabeth Lady Viscountess B.) and a moiety of and adven- ' 
 one other J6th part, (being a share he purchased moLty, of 
 of W. P. H. Esq. and others,) and a moietv of one *^^ ^'^''' ^^' 
 
 (o) See p. 114 of tlic text.
 
 371 
 
 APPEN/)IX. 
 
 Will of the 
 
 former 
 
 «wner, 
 
 devising his 
 share called a 
 
 Other 36tli part, (being a share he purchased of the 
 Honorable F. W. and C. liis wife,) of and in 
 that moiety or half part of the New River water- 
 cut and stream brought from C. and A. in the 
 counties of H. and M. or one of them to L. and 
 other places adjacent, commonly called the 
 King's Moiety, and the profits, advantages, and 
 hereditaments thereto belonging ; And was also 
 seised of or intitled to one full S6th share of that 
 moiety of the said Avater-cut and stream and here- 
 ditaments, which is called the Adventurer's Moiety. 
 And Whereas the said J. W. by his last will 
 and testament in writing duly executed and 
 attested for the devise of lands of inheritance, and 
 bearing date on or about the .ilst day of March in 
 the year 1803 ; (amongst other things) gave, de- 
 King's sliare, visccl, and bequeathed unto his dear son, the said 
 Another *^for" ^' ^^' ^^^^ ^o his friend, the said J. F. and the 
 the benefit of survivor of them, and to the heirs of such survivor, 
 
 his daughter 
 
 andherchil- all that his (the said testator's) part or share, com- 
 monly called a King's Share, of and in the New 
 River, with the rights, members, and appurte- 
 nances : Upon trust to pay the interest, dividends, 
 and produce arising therefrom, unto his daughter 
 the said E. W. for and during her natural life. 
 And from and after her decease, he gave and de- 
 vised the said part or share called a King's Share, 
 with the appurtenances, unto and amongst the 
 children of his said daughter in equal shares and 
 pn)j)()rtions, and if but one child, then to such 
 only child. But in case his said daughter should 
 happen to die M'ithout leaving issue, then he gave 
 and devised the said jiart and share called a 
 King's Share, with the appurtenances unto his 
 
 dren :
 
 KECOVEKY DEED. 372 
 
 said son J. W. his heirs and assigns, or in case of 
 his death, to his children, share and share alike. 
 And ai'tor bequeathinGr divers pecuniary le2racies,3"<^'^'^yj^'"?„ 
 
 ^ , , . . , ... , • 1 , the residue of 
 
 the said testator, by ins said will, gave, devised, and his real and 
 
 bequeathed all the rest, residue, and remainder P^J'^JJl'J'j^jjji^ 
 
 of his real and personal estate, whether freehold, son. 
 
 copyhold, or leasehold, or of whatever nature or 
 
 kind soever, or wheresoever, which he might be 
 
 j)ossessed of, or any ways intitled to, at the time 
 
 of his decease, unto his son the said J. W, his 
 
 heirs, executors, administrators, and assigns for 
 
 ever, according to the nature and tenure of his 
 
 said estates and ejects. And the said testator 
 
 appointed his said son J. W. to be sole executor 
 
 of his said will. And Whereas the said testator Death of tes- 
 
 J. W. departed this life without having in any 
 
 manner revoked or altered his said in part recited 
 
 last will and testament. And the same last will and^"f P^°'?,f^ 
 
 01 his will 
 
 testament, was after his decease, and on or 
 about the day of dul}^ proved in 
 
 the Prerogative Court of the Archbishop of 
 Canterbury. A x d w h ere as it is apprehended, Apprehended 
 that the devise to the said J. W. and J. F. upon vise'extended 
 trust as aforesaid, contained in the said in part J^^^Hg^j^i^g^'g^ 
 recited will, may be construed to extend to the in the kmg's 
 
 , , 1 1 ■ 1-17 -1 nioiety. 
 
 whole ot the share and interest which the said 
 
 testator J. W. had at the time of his decease in 
 
 that part of the New River called the King's ^ 
 
 Moiety ; and that die said E. W. is seised of an 
 
 estate-tail in remainder under the limitations or 
 
 dispositions contained in the will of her said 
 
 father. And whereas the legal estate of the said ^egal eitate 
 
 , , . . vested in the 
 
 New River water-works and shares therein is or company 
 is understood to be vested in the Governor and 
 
 VOL. J. D D
 
 373 APPENDIX. 
 
 Company of the said New River in then* corporate 
 Agreementto (-apacity. And WHEREAS the Said E. W. is 
 
 suiter recove- i ^ 
 
 ly to rectify fully satisfied that the intention of her said father 
 mStake fn i" making such devise was to give to the said 
 thewiu. j^ \y ^j^^ j_ Y, in trust for her and her children 
 
 as aforesaid, a share or shares equal to one 36th 
 part or share of the said King's Moiety in the said 
 New River and no more, y^nd the said E. W. is 
 desirous and hath agreed, in order to remove all 
 doubts and difficulties which may arise upon the 
 construction of the said devise, to settle and assure 
 all the shares and interests late of her said father 
 in the King's Share of the said New River, accord- 
 ing to such his supposed intention, and for that 
 purpose to suffer a recovery of the said shares and 
 f,^^^™^"^i ^^ hereditaments. And whereas in order to ren- 
 
 the son and 
 
 tlie other Jer such recovcry effectual as far as the said 
 
 join. J. W. is interested, he and (at the 'request of -the 
 
 said J. W. and E. W.) the said J. F. have agreed 
 
 to join in these presents in such manner as here- 
 
 witnesseth inafter is expressed. Now this indenture 
 
 that lor bar- ' . 
 
 ring estates- WITNESSETH, that in pursuance of the several 
 ^^ '^' agreements hereinbefore mentioned, aaid for dock- 
 ing, barring, destroying, and extinguishing all 
 estates-|ail, of and in the several parts; shares, and 
 interests in the New River, and the profits there- 
 of and other hereditaments hereinafter mentioned, 
 and released or otherwise assured or intended so 
 to be, and all reversions and remainders expectant 
 upon such estates-tail, and all conditions and 
 and settling collateral limitations annexed thereto; and for 
 
 the shares to . 
 
 uses, settling and assuring the same parts, shares, and 
 
 hereditaments, respectively, to the uses, upon the 
 trusts^ and for tlie ends, intents, and purposes
 
 RECOVERY DEED. 374 
 
 hereinafter limited, expressed, and declared of and 
 concerninsf the same ; and in consideration of ten ^", °'' "^"''' 
 shillings of lawful money current in Great Britain tion. 
 to each of them the said J. W, J. F. and E. W, 
 well and truly paid by the said J. II, immediately 
 before the execution of these presents, (the re- 
 ceipt whereof is hereby acknowled2:ed,) The said Trustee, by 
 
 r ,. , . , • ? , direction of 
 
 J. b. at the special mstance and request, and the son and 
 with the privity, consent, and approbation, and ^"^ ^^^' 
 by the direction and appointment of the said J. 
 W. and E. W, testified by their severally execut- 
 ing these presents, hath bargained, sold and re- releases; 
 leased, and by these presents doth bargain, sell, 
 and release; And the said J. W. and E. W,^"^^ the son 
 
 ■ . , . . . , , and daughter 
 
 according to their respective estates, rights, and 
 interests in the premises, have and each of them 
 hath granted, bargained, sold, ahened, released, S"^™^' ^'^ 
 ratified, and confirmed, and by these presents do 
 and each of them doth grant, bargain, sell, alien, 
 release, ratify, and confirm, unto the said J. H. 
 his heirs and assigns, (in the actual possession of [j^g^'^^^j,'^^ *° 
 the said J. H. now being, in virtue of a bargain year) 
 and sale thereof made to him by the said J. F, 
 J. W. and E. W, in consideration of five shillings 
 paid to each of them by the said J. II, by inden- 
 ture bearing date on the day next before the day 
 of the date, and executed before the execution of 
 these presents, for one whole year, to be com put- \ 
 ed from the day next before the day of the date 
 of the same indenture of bargain and sale, and by 
 force of the statute made for transferring uses into 
 possession,) All that one full and equal iTfioiety,^,^"^^^!^'^' 
 half part, or share, late of the said J. W. of, in shares;, 
 and to all those two full and intire six-and-thir- 
 
 D D 2
 
 375 A P I' E N D I X . 
 
 And a moiety tieth parts or shares; And all that one full and 
 
 or another ' 
 
 36th share, equal moiet)% half ])art, or share, late of the said 
 J. W. of, in, and to all that one other full and 
 
 Thehke, jntirc six-and-thirtieth part or share; And also 
 all that one full and equal moiety, half part, or 
 share, late of the said J. W. of, in, and to all that 
 one other fiili and intire six-and-thirtieth part or 
 
 ift the Sing's share, of and in All that moiety or half part of the 
 
 :?iIoietv of the ^^ t» • i 
 
 Kew River. iS ew Kiver water-cut and stream, and the profits 
 thereof, brought from C. and A. in the counties 
 of H. and M. or one of them, to L. and other 
 places adjacent, commonly called the King's 
 Moiety, (the said moiety or half, into six-and- 
 thirty parts, or equal shares to be divided,) and 
 also of and in the King's Moiety of all heredita- 
 ments whatsoever relating unto or concerning the 
 said New River cut or stream, and of and in all 
 manner of profits, advantages, and commodi-tie.'j 
 whatsoever, thereof, or by means or reason thereof, 
 in any sort to be paid, raised, and gotten ; And 
 also of and in the King's Moiety or half part of all 
 fines, sums of money, rents, reversions, benefits, 
 and commodities whatsoever, which at any time 
 or times hereafter shall or may be raised, had, 
 made, levied, or gotten, by means of the said New 
 River Avater or water-works, or of, or l)y reason of 
 the conveyance of the water thereof, in or by any 
 parts or places, or unto or for any person or per- 
 And all other sons whomsoever, And all and singular other 
 the testator in ^h^ parts, shares, and interests, late of the said 
 the same j^ \y ^f jj.^ j^j^j j^q ^j^^^ ^j^jj nioicty, or half part, 
 
 moiety. ]_ . •' . 
 
 called the King's moiety, of the said New River 
 water-cut and stream, and the profits thereof, and 
 the commodities, hereditaments, and appurte-
 
 KECUVEHY DEED. 
 
 376 
 
 nances, to the same belonging or appertaining. 
 
 And the reversion and reversions, ren^ainder and Reversion, &c 
 
 remainders, yearly and other rents and profits of 
 
 the said hereby, or hereby intended to be released, 
 
 parts, siiares, and hereditaments, and every part 
 
 and parcel of the same, with the appnrtenances. 
 
 To HAVE AND TO H OLD the Said parts Or sharcs Habendum to 
 
 hej'einbefore mentioned, and hereby released, or'ijeii.g'a„c] a^. 
 otherwise assured, or intended so to be, of and in ^'IS"f.„^'^^^''f 
 
 ' ^ . the bfe of tn« 
 
 the said moiety of the said New River water-cut daughter, 
 and stream, and the profits thereof, called the 
 King's Moiety, hereditaments, and all and singu- 
 lar other the premises hereinbefore mentioned, and 
 hereby released, or otherwise assured, or intended 
 so to be, and every part of the same, with ^ 
 their and every of their rights, members, and 
 appurtenances, unto the said J. fl. his heirs and 
 assigns, during the natural life of the said E. W. 
 To the uses hereinafter limited and declared ; that 
 is to say. To the use of the said J. 11. and his assigns To the use ot 
 during the joint natural lives of the said J. H. thejoliit"iTv^s 
 and E. W. And from and after the determination Q[onnmse\UxniX 
 
 the daughter. 
 
 that estate, and in the mean time subject thereto, Remainder 
 and until the recoveries hereby agreed to be suf- 
 fered shall be suffered, To the uses hereinafter li- To uses de- 
 
 1 , J , 1 <• » • dared of the 
 
 mited and declared or the recoveries hereby agreed recovery. 
 to be suffered. And it is hereby declared ^eclara- 
 
 i 1 , , 1 1 1- • 1 , TioN that the 
 
 and agreed, that the estate hereby limited to the estate is limit- 
 use of the said J. H. and his assigns, during the ^f j \v^ for 
 joint lives of himself and the said E. W, is so the joint lives 
 
 1- •. 1 . 1 • 11 m J • , to make him 
 
 Innited to hmi and them, lo the intent that tenant to tlie 
 the said J. H. may be tenant of the freehold of allP"^*^'?"' 
 and singular the said several parts and shares here- 
 by released, or otherwise assured, or intended so 
 to be, of and in the said King's Moiety, of the
 
 377 APPENDIX. 
 
 said New River water-cut and stream, and the 
 profits thereof, hereditaments, and premises, and 
 every part and parcel of the same, with their 
 for suffering rights, membei's, and appurtenances ; to the end 
 veries. that three or more good and perfect common re- 
 
 coveries, with double voucher may be had and 
 suffered of the same parts, and shares, and heredi- 
 taments. And for that purpose it is hereby di- 
 rected, declared, and agreed, by and between all 
 the said parties to these presents, as far as they 
 respectively are interested, that the said J. H. 
 shall permit and suffer the said J. M. or some 
 other person or persons, at the costs and charges 
 in all things, of the said J. W. his heirs, executors, 
 .. or administrators, at any time or times hereafter 
 to sue forth, and prosecute against him the said 
 J. H, out of his majesty^s high court of Chan- 
 cery, three or more writs of entry, sur disseisin. en 
 le post, returnable before his majesty's justices of 
 One writ to x\\Q court of Common Pleas, at A¥estminster ; and 
 
 be sued for , . . , 
 
 the parts by One or more oi the said writs, demand of the 
 
 Suiuy of h!^^^^ J. H. the parts and shares hereby released or 
 
 otherwise assured, or intended so to be, of such 
 
 and so many, and such part and parts of the said 
 
 King's Moiety of the New River water-cut and 
 
 stream, profits, and hereditaments, as are situate, 
 
 lying, and being, or arising and to be had and 
 
 taken in the said county of II, with the appur- 
 
 One for the tcuanccs ; and by one or more of the said writs, 
 
 coimtyof^l. ^^emand of the said J. II. the parts and shares 
 
 hereby released, or otherwise assured, or intended 
 
 so to be, of such, and so many, and such part 
 
 and parts, of the said King's Moiety of the said 
 
 New River water-cut and stream profits, and here-
 
 RECOVERY DEED. 372 
 
 ditaments as are situate, lying, and being, or aris- 
 ing and to be had and taken in the said county of 
 M. : and by one or more of the said writs, demand ^^^ ^"'^ f^r 
 
 "' the part in 
 
 of the said J. 11. the parts and shares hereby the city of L. 
 released or otherwise assured, or intended so to 
 be, of such, and so many, and such part and parts, 
 of the said King's Moiety of the said New River 
 water-cut and stream, profits and hereditaments 
 as are situate, lying, and being, or arising and to 
 be had and taken wjthin the city of L. ; and demand 
 the said shares respectively, by such apt, good, 
 sufficient, and proper names, quantities, qiiahties, 
 and other descriptions as shall be deemed neces- 
 sary, proper, sufficient, and requisite to comprise Mode of 
 the same. And that the said J. H. shall in his PJ^^^'^'^s. 
 own person, or by his attorney or attornies, law- v"?es pre- 
 
 scribed- 
 
 fully authorised in that behalf, appear to each of 
 the same writs respectively, and vouch to war- 
 ranty the said E. W. And that the said E. W. 
 shall in her own person, or by her attorney or at- 
 tornies, lawfully autliorised in that behalf, appear 
 gratis, and freely enter into the warranty of the 
 said J. H. ; and taking the same upon herself, 
 vouch over to warranty the common vouchee of 
 the court of Common Pleas, for the time being; 
 who shall appear gratis, and freely enter into the 
 warranty of the said E. W, and after imparlance 
 make default. So that judgment may be given 
 upon each of the said writs, for the said J. M, or 
 other demandant or demandants, to recover all and 
 singular the parts and shares hereby released or 
 otherwise assured, or intended so to be, of and in 
 such and so many and such part and parts of the 
 moiety of the said New River water-cut and
 
 576 APPENDIX. 
 
 Stream, profits and hereditaments, railed the 
 King's Moiety, as shall be demanded by the same 
 writs respective!}', with their rights, members, and 
 appurtenances, against the said J. li. ; and for the 
 said J. H. to recover in value against the said 
 E. W. ; and for the said E. W. to recover in value 
 against the common vouchee, as is usual in such 
 cases. And that upon all and every recovery and 
 recoveries to be suffered as aforesaid, execution 
 may be sued and prosecuted by, and seisin had, 
 taken, and delivered unto the said J. M. or other 
 demandant or demandants accordingly. And that 
 every other act or thing needful, requisite, or pro- 
 per to be done or executed for the purpose of suf- 
 fering and perfecting a common recover}'' or re- 
 coveries of the parts and shares, hereditaments 
 and premises, hereby released, or otherwise as- 
 sured, or intended so to be, with double, treble, -or 
 
 to bar the Other vouchcr, to bar the estate tail of the said 
 bae-ai,-c. £^ AV. of and in the said parts, sliares, heredita- 
 ments, and premises, and all reversions and re- 
 mainders over and expectant upon the same estate, 
 
 Direction that 1^1 ay be made, done and executed. And hy way 
 
 recoveries , ,. . i i i • i ,- 
 
 shall be suf- ot direction and declaration, and not or covenant, 
 ' it is hereby granted, declared, and agreed, by and 
 
 between the parties to these presents, as far as 
 they respectively are intercsto^d, and they hereby 
 or themselves, severally and respectivel}^ and for 
 their several and respective heirs, executors, and 
 administrators, consent, and agree, according to 
 their respective estates, rights, and interests, in 
 the premises, that the recoveries hereby agreed to 
 be suft'ered, shall be suffered and perfected with 
 
 and that the all possible dispatch; and that they respectively,
 
 'RECOVERY DEED. 
 
 380 
 
 and their respective heirs, on their respective parties will 
 parts, will use tlieir utmost endeavours to aive"'^^'^*^^'*^^ ^'* 
 effect to tiie same recoveries, and also to these 
 presents, and the grant, release, confirmation, or 
 other assurance hereby made. And it is iiere-dkclara- 
 EY FURTHER DIRECTED, declared, and ajireed bv'^'°^' that th* 
 
 , , 11 I • I *' recoveries, 
 
 and between all the parties to these presents, as 
 
 far as they respectively have any right, title, or 
 
 interest in the premises, that immediately upon 
 
 and after judgment obtained, and seisin had and 
 
 taken upon each such recovery as aforesaid, each 
 
 recovery so as aforesaid or in any other manner, 
 
 or at any other time or times to be suffered; and the lease for a 
 
 also the bargain and sale for a year, bearing date ^j^olent deed,'^ 
 
 on the day next before the day of the date of these ^^"^ ^^^ «^^'^'' 
 
 ,11 " ,1 fines. Sec. 
 
 presents ; and also these presents, and the as- 
 surance h'^reby made ; and all and every other fine 
 and fines, recovery and recoveries, and other as- 
 surances whatsoever, at any time or times hereto- 
 fore, and to be at any time, and from time to time 
 hereafter, had, made, done, levied, suffered, exe- 
 cuted, and perfected, of or concerning all or any 
 part of the said parts and shares, hereditaments 
 and premises, hereby released, or otherwise as- 
 sured or intended so to be, either by themselves 
 solely and alone, or jointly and together, with any 
 other lands, tenements, or hereditaments, parts 
 or shares, by or between all and every, or any or 
 either, of the persons ^vho are parties to these pre- 
 sents, or to which they, or any, or either of them 
 is, or are, or shall, or may be parties or privies, 
 or a party or privy shall, as to all the said parties 
 to these presents respectively, as far as they 
 respectively can lawfully or rightfully direct the
 
 381 APPENDIX. 
 
 uses of the same fine or fines, common recovery 
 or recoveries, and other assurances, be and enure, 
 
 shall enure, ^^^^ j^g adjudged, expounded, deemed, decreed, 
 and taken to be and enure, and tliat the same was 
 and were meant and intended, and is and are 
 hereby directed and declared to be and enure ; 
 
 and that per- and also that the person or persons to whom such 
 
 sons shall n n ■ i 
 
 stand seised, nue or nnes, common recovery or recoveries, and 
 
 other assurances respectively, have or hath been, 
 
 or shall or may be, levied, suffered, made, and 
 
 As to the executed, shall stand and be seised, as to, lor, and 
 
 shares con- concerninQ' the said several parts and shares here- 
 
 veyed. ° 
 
 by released, or otherwise assured or intended so 
 to be, of and in the said moiety of the said New 
 River water-cut and stream, profits, and heredita- 
 ments, .called the King's moiety, and every part 
 and parcel of the same, with the appurtenances ; 
 To the uses, upon the trusts, and for the eads, 
 intents, and purposes hereinafter limited, expressed, 
 and declared, of and concerning the same, (that 
 To the use of is to say) To the use of the said J. W. and J. F. 
 J. w. and J. their heirs and assigns, during the life of the 
 F. tor life of gaid E. W, upon the trusts hereinafter declared 
 
 tlie daughter. . ^ ^ 
 
 of their estate. And from and after the determina- 
 Kemainder, tiou of that estate by arw means, To the use of the 
 
 To the use of . -^ ^ . ' 
 
 another trus- said L. G. his hcnrs and assigns, during the natural 
 Jhedaugill'er!^^'^*^ of the said E. W, U/wu trust to support and 
 in trust to preserve the contins^ent interests limited to the 
 
 Miiiijort the . 
 
 contin.ront ciiildreu of the said E. W, by the will of her 
 d!T7he^vi^' ^'^^^ father. And from and after the decease of the 
 Kemai!)dcT, «aid E. W, To the use of the said J. W. and J. F. 
 To the use of llicir heirs and assigns for ever, upon the trusts 
 
 the trustees , . . , , i <• i • . ^ / • • i 
 
 .1. w. and J. iK'reinalter declared or their estate. And it is nere- 
 j.nifee. |j^ directed, declared, and agreed by and between
 
 RECOVERY DEED. 382 
 
 the parties to these presents, as far as they respec--^<"c/am;w;t 
 
 • . . • 11 , , ,■ • • that tliecs- 
 
 tively are interested, that the several luTiitationstates areiu 
 hereinbefore made to the use of the said J. W. and [i'^^'^^Vj^J;^, 
 J. F, their heirs and assigns, for the hfe of the and J. F. the 
 
 trustees. 
 
 said E. W, and in fee, are made to them Upon , ■ . ' -c 
 
 'to indetnniry 
 
 trust and to the intent and purpose that they the them for hav- 
 said J. W. and J. F. their heirs, executors, and ad- thf Jouvey-" 
 ministrators, and every of them, shall and may, by, ""^'^• 
 with, and out of the profits of the said several parts 
 and shares, or otherwise by a mortgage or mort- 
 gages, sale or sales, of the same parts and shares, or 
 a competent part of the same parts and shares, be 
 well and sufliciently reimbursed and satisfied, and 
 also indemnified and saved harmless, of, from, and 
 against all damages, losses, costs, charges, ex- 
 penccs, suits, claims, and demands, which at any 
 time or times, and from time to time, hereafter, 
 shall or may be incurred, or sustained by, or made 
 upon, or brought or instituted against, the said 
 J. W. and J. F. or either of them, their, or either 
 of their heirs, executors, or administrators, for or 
 on account of their having joined, (as trustees 
 under the said in part recited will of the said J. 
 W.) in the conveyance or assurance made or in- 
 tended to be made by these presents. And from ^J^^^^^^i^^^ 
 
 "^ ^ _ thereto, 
 
 and after full reimbursement and satisfaction of 
 and for all such damages, losses, costs, charges, 
 expences, suits, claims, and demands, and in the 
 mean time subject thereto; As to, for, and con- As to a moi- 
 
 ' • . 1 in . 1 r. , ety of two 
 
 cerning one moiety, half part, or share, or two 3(ith parts 
 six-and-thirtieth parts or shares, (making together ,^™^^"[^^ ^"^. 
 one full six-and-thirtieth part or share,) of and in 
 the said moiety called the King's moiety of the 
 said New River water-cut and stream, and the
 
 S83 APPENDIX, 
 
 profits thereof, and other hereditaments, with the 
 
 appurtenances (being the part or share which was 
 
 purchased by the said J. W. of and from the said 
 
 Upon trust for £^ Lady Viscountess B,) Upon trust that they the 
 
 the separate ■^ ' '' . r i 
 
 and personal said J. Vv. and J. r, and the survivor oi them, or 
 daughter for ^is heirs, do and shall from time to time, during 
 her life. the natural life of the said E. W. retain and take 
 
 the rents, income, and profits arising from the 
 same parts or shares, and hereditaments ; and 
 stand and be possessed thereof, for the sole use of 
 the said E. W, separate and apart from, and ex- 
 clusive of any husband with whom she may from 
 time to time intermarry, and so, and in such man- 
 ner, that the same may not be under the controul, 
 or subject or liable to the debts, contracts, forfei- 
 ture, or engagements of any such husband ; and 
 in such manner that the receipt of her the said 
 E. W, or any person or persons to whom she may 
 appoint the same rents, income, and profits when 
 due, may be good and effectual disclrarges for the 
 money which shall be thereby expressed to be 
 received ; yet nevertheless so that tlie said E. W. 
 may not at any time hereafter anticipate, charge, 
 or assign all or any part of the same rents, income, 
 and i)rofits, before the same shall become due and 
 Remjdndtr, payable. And from and after the decease of the 
 In trust for said E. W, then Upon trust lor the child, if only 
 
 her chiklren as •,• ,i i- -i i i -i i ' 
 
 entitk'd under ^'^^' ^^ '* uiore than oue, for the several children 
 the will. of the said E. W, who are or sliall become intitled 
 to the same parts, shares, and hereditaments, 
 und(M- or by virtue of tlie said in part recited will 
 of the said J. W, and for such estates and in such 
 shares and proportions as such child or children 
 ran claim to be intitled to hare, in the same parts,
 
 KECOVERY DEED. 384 
 
 shares, and hereditaments under or by virtue of 
 
 the same will. And from and after the determi- Remainder. 
 
 nation of the estates and interests of the same 
 
 children respectively, then In trust for the child, intrust for 
 
 if only one, and if more then one, then all the J^J„ant7'i\i 
 
 children of the said E. W, lawfullv to be bco-otten.^o"^™on in 
 
 ' feo, 
 to be equally divided between or among the same 
 
 cliildren, if more than one, share and share alike, 
 
 as tenants in common, and not as joint-tenants, 
 
 and the heirs and assigns of the same child or 
 
 children respectively, in tee, and not in tail. ^^y^r/Andif any of 
 
 r- I III 1 II them die im- 
 
 in case any one or more or such children should^er age, with- 
 depart this life under the ao-e of twenty-one years °"' '*^^""§' . 
 
 ^ ... - .' issue at their 
 
 without leaving any issue of his, her, or their body deaths, \yith 
 or bodies hnvfully begotten, living at his, her, or Jjo^ns between 
 their death or respective deaths, tlien as, to, for, them m fee 
 and concerning the original part or share of and in 
 the parts or shares and hereditaments hereinbefore 
 limited for the benefit of the said children ; and 
 also the part or share, or parts or shares thereof, 
 which from time to time shall belono- to, or vest 
 in, or be taken by, the same child or children re- 
 spectively, by virtue of this present provision, in 
 the nature of cross remainders, Upon trust for the 
 other or others of the same children, to be equally 
 divided between or among them, if more than one, 
 share and share alike, as tenants in common, and 
 not as joint-tenants, and his, her, and their heirs 
 and assigns for ever. And in case there shall not ^^"'^ if ""j 
 be any child of the said E. W, or if all such chil- all die under 
 dren, if any, shall depart this life under the aafe of j^se without 
 
 ' *^ ' * _ ^ o leaving issue 
 
 twenty-one 3'ears, and neither of them shall leave 'it their 
 any issue of his or her body lawfully begotten, ' ' 
 hving at his or her death, then Upon trust for the In trust for
 
 385 
 
 APPENDIX. 
 
 J. W. in fee. 
 As to the re- 
 maining 
 shares. 
 
 In trust for 
 J. W. in fee. 
 
 Proviso that 
 the trusts are 
 declared for 
 the chUdren 
 
 upon the 
 term? of their 
 confinnhic: 
 the trust de- 
 clared for J. 
 
 and that on 
 default, the 
 shares of the 
 children re- 
 
 said J. W. his heirs and assigns for ever. And as 
 to^ for, and concerning the remaining parts and 
 shares hereby released, or otherwise assured or 
 intended so to be, of and in the said moiety called 
 the King^s Moiety of the said New River water- 
 cut or stream, and the profits thereof, and other 
 hereditaments, with the appurtenances, In trust 
 for the said J. W. his heirs and assigns for ever. 
 And to, for, or upon no other use, trust, intent, or 
 purpose whatsoever. Provided always^ and it is 
 hereby declared and agreed by and between the 
 parties to these presents, as far as they respec- 
 tively are interested, that the trusts hereinbefore 
 declared in favor of each and every of the chil- 
 dren of the said E. W, (other than and except 
 the trusts declared for his or her benefit far the 
 purpose of restoring to him or her the estate or 
 interest to which the same child respectively 
 may be entitled under the will of the said J. W,) 
 are so declared, upon the terms that the same 
 child shall confirm and give eifect to the trust, 
 secondly h( jrein])efore declared for the benefit 
 of the said J . VV^ his heirs and assigns, and that 
 the same child shall upon the request and at the 
 cost and charges of the said J. W. his heirs or 
 assigns, do all such acts, and make and execute 
 all such assurances as shall be necessary or 
 deemed advisable for the purpose of conveying^ 
 and assuring to the said J. W. his luirs and as- 
 signs, the parts, shares, and hereditaments, 
 secondly hereinbefore limited, in trust for the 
 said J. W. his heirs and assigns. And further, 
 that on default by eat^li, any, or either of the 
 same chiidien to make such confirmation, or to
 
 RECOVERY DEED. 38(J- 
 
 <lo such acts, or make or execute such assurances, fusing shall 
 
 the part or share, inchiding the surviving, as j*^ ^'^r ^r"'''^ J*'*" 
 
 well as the original share of each child, by whom 
 
 such default shall he made, shall be held, in trust 
 
 for the said J. W. his heirs and assigns. And Indenture 
 
 ^, ^ ,. FURTHER 
 
 THIS INDENTURE ALSO WITNESSETH, that, lOr „riTNESSETH 
 
 the considerations hereinbefore expressed, and ^^^^\ ^^^ p*^"" 
 
 '■ veying the 
 
 by way of further assurance ; and so as to con- iiiheritance to 
 vey the inheritance of and in the said shares and J^^cLred'^ 
 hereditaments, and every of them, to the uses and for nomi- 
 hereinafter limited of the same shares and heredi-"jo„'^'^"^' ^^*'' 
 taments ; and also in consideration of ten shillings 
 of like lawful money, to each of them, the said 
 E. W. and J. \V, well and truly paid by the said 
 J. G, immediately before the execution of these 
 presents, (the receipt whereof is hereby acknow- 
 ledged,) The said E. W. and J. W, (subject. The daughter 
 nevertheless, and without prejudice to the grant '?J|jJ ^™j.^^"^"" 
 hereinbefore contaiined,) have, and each of them former grant) 
 hath granted, bargained, sold, and aliened, and 
 by these presents do, and each of them doth Qj-^nt to J. G, 
 grant, bargain, sell, and alien, unto the said J. G. 
 his heirs and assigns, All those the parts, or Then- shai-es 
 shares of them, and each or either of them the n^oiety of th« 
 said E. W. and J. W, of and in the said moiety, of ^*^^^ ^'^'^'^' 
 the said New Riv^er water-cut or stream, and other 
 hereditaments hereinbefore mentioned, or de- 
 scribed, and all other the hereditaments herein- 
 before described and mentioned, and intended 
 to be hereby released to the said J. JI. and his 
 heirs, during the life of the said E. W, and every 
 part and parcel of the same, with the appurte- 
 nances, yind the reversion and reversions, re- Reversion, &c. 
 mainder and remainders, yearly and other rents
 
 387 APPENDIX. 
 
 ' and profits, of the said lieroby, or hereby intended 
 
 to he, granted, or otherwise assured parts of 
 
 shares, and hereditaments, and every part and 
 
 parcel of the same, with their and every of their 
 
 HABEN-DLMtoj-JCTJ^ts, members, and appurtenances. To have 
 
 the grantee '^ , •. i i t 
 
 in fee. AND JO HOLD the Said parts, shares, heredita- 
 
 ments, and all and singular other the premises 
 hereby granted, or otherwise assured, or intended 
 so to be, and every part and parcel of the same with 
 their and every of their rights, members, and appur- 
 tenances, unto the said J. G. his heirs and assigns, 
 To the uses, upon the trusts, and for the ends, in- 
 tents, and purposes hereinafter limited, expressed, 
 and declared, or referred to, (that is to say) in the 
 To the ufc of first place, To the use o^ the said E. G. his heirs 
 of thedangh- ^J^d assigns, during the life of the said E. W. so as 
 ter, to confirm j.^ ^j^^ effect to and confirm the estate hereinbefore 
 
 the estate '; 
 
 before hni it- limited to the use of the said E. G. his heirs and 
 assigns, during the life of the said E. W, never- 
 theless upon, under, and subject to the trusts here- 
 Remainder. iiibeforc declared of that estate. And from and after 
 the determination of that estate, and in the mean time 
 Totliei'seof subject thereto ; To the nsc of the said J, W. and 
 J, w^'and^j. •^- 1'- t^i^^'i' heirs iind assigns for ever, upon the 
 F, upon the tfusts, and for the ends, intents, and purposes 
 d(:(]ami. hereinbefore expressed and declared of and con- 
 cerning the estate in fee hereinbefore limited 
 lo their use, and for more effectually confirming 
 and giving effect to that estate, and the trusts, 
 ends, intents, and purposes hereinbefore limited 
 Sevmiai. and declared thereof. Atid each of them the 
 f\"o*pcr6ons*''^S'»i^l J. W. and E. \V. severally, separate, and 
 apart from the other of them, doth by these presents,
 
 RECOVERY DEED. 
 
 388 
 
 for himself and herself respectively, and his and her 
 respective heirs, executors, and administrators ; and 
 as to, and concerning only his and her own acts, 
 deeds, and defaults, covenant, promise, and agree 
 to and with the said J. 11. his heirs and assigns, for further 
 that they, the said J. W. and E. W, respectively /^^"^*"*^^' 
 shall and will, from time to time, and at all times 
 hereafter, upon every reasonable request of the per- 
 son or persons intitled by virtue of these presents 
 to any estate or interest in the parts, or shares, and 
 hereditaments hereby released, or otherwise assured, 
 or intended so to be, or any or either of them, and at 
 the costs and charges of the person or persons by 
 whom such request shall be made, make, do, ac- 
 knowledge, levy, suffer, execute, and perfect, or 
 cause or procure to be made, done, acknowledged, 
 levied, suffered, executed, and perfected, all sucli 
 further and other lawful and reasonable acts, 
 deeds, devices, conveyances, and assurances, in 
 the law whatsoever, either by fine or fines, with 
 or without proclamations, common recovery or 
 recoveries, deed or deeds, inroUed or not inrolled, 
 release, confirmation, or other assurance what- 
 soever, for further, better, more perfectly, law- 
 fully, and absolutely, or satisfactorily granting, 
 releasing, confirming, or otliervvise assuring the 
 said parts, shares, and hereditaments hereby re- 
 leased, or otherwise assured, or intended so to 
 be, and every part and parcel of the same, with 
 the appurtenances, to the uses, upon the trusts, 
 and for the ends, intents, and purposes herein- 
 before limited, expressed, and declared of and con^- 
 cerning the same, according to the true intent and 
 meaning of these presents, as by the person or per* 
 VOL. I, ^ E
 
 389-390 
 
 APPENDIX. 
 
 sons so mtitled, and making such request, or his^ 
 her, or their counsel in the law, shall be reasonably 
 devised, or advised, and required, and tendered to 
 be made, done, and executed, In witness, &c. 
 
 FORM VII. 
 
 Release in Fee of three vndiv'rded sixth Paris, being a Moietij 
 of a Messuage Farm, Sjc. in T. and S. in the Parish of S. 
 cVc m the Cotintij of Y. that a common Recovery may be 
 suffered thereof to bar the Estates-tail, if any, and to ex- 
 tiuguish the Title of Dower, of the Wife of one of the 
 Owners : with a Declaration, as to one sixth Part, of Uses, 
 to prevent a new Title of Doicer ; and as to the two re- 
 maining sixth Parts, of Uses in Favor of the Owners in Fee, 
 
 THIS INDENTURE of five parts made the 
 PARTIES. day of 180.3. Betavken T. B. of, &c. 
 
 gentleman, and E. his wife, of the first part ; B. C. 
 of, &c. gentleman of the second part ; M. S. of, 
 &c. spinster, of the third part; C. R. of, &c. Esq,, 
 of the fourth part; and W. B. of, &c. gentleman, 
 RKciTEsthe of the fifth part. Whereas the said T. B. is the 
 
 titles of three , i i • i i i • • • i r- t t-. 
 
 persons by Only SOU and heir at law, and heir in tail, oi J. B. 
 
 Zlnif/"^ one of the daughters of M. S, late of, &c. gentle- 
 man, deceased, and a devisee named in his will 
 hereinafter mentioned. And whereas the said 
 B. C. is the grandson, heir at law, and heir in tail 
 of M. C, one other of the daughters oi' the said 
 M. S, and a devisee named in his said will. And 
 WHEREAS the said M. S. is the grandaughter, heir 
 at law, and heir in tail of T. S, one of the sons of 
 the said M. S, and a devisee named in his said 
 
 niifi their will. And as such, (J. S. the eldest son, and heir 
 
 main in tail,
 
 RECOVERY DEED. 391 
 
 at law, and a devisee in tail, named in the will of (under a vnH) 
 
 1 • , m T /^ 1 • 1 • 1 • I • \ ^i i" three sixtlx 
 
 the said M. S, having died without issue,) the par^^ of tj^^ 
 said T. B, B. C. and M. S. are seised in fee-simple^;^^=^^^'^' 
 or fee-tail, of three sixth parts, of and in the mes- 
 suages, lands, and hereditaments hereinafter de- 
 scribed, and hereby released, or otherwise assured, 
 or intended so to be, with their and every of their 
 rights, members, and appurtenances, under or by 
 virtue of the last will and testament of the said 
 M. S, bearing date on or about the Sth day of 
 October, in the year 174-8, and after his death, and 
 on or about the 12th day of February, 17-5S, proved 
 
 in the court of And whereas Desire to 
 
 the said T. B, B. C. and M, S. are desirous, and ^^"J^'" ^ '^°- 
 have determined to suffer a common recovery of 
 their respective shares of and in the said mes- 
 suages, lands, and hereditaments, and to limit the 
 same shares to the uses hereinafter declared of and 
 concerning the same respectively. And whereas Agreement of 
 the said E. B. hath agreed to join in the common fo^ extii-"* 
 recovery, hereinafter as^reed to be suffered, for the ^"^^'^"'g^^^ 
 
 ^ ~ _ dower. 
 
 purpose of barring and extinguishing her dower, 
 right, or title of dower, in the said share of her 
 said husband of the same hereditaments. NowWitnesseth 
 
 THIS INDENTURE WITNESSETH, that, for docki Ug, ijanjng es- 
 
 barrinff, and dcstroyino- all estates and interests tates-tail,&c. 
 in tail of and in the said several and respective 
 three sixth parts of and in the messuages, lands, 
 and hereditaments hereinafter mentioned, and all 
 reversions and remainders expectant or depending 
 on the same estates or interests in tail, and all con- 
 ditions and collateral limitations annexed thereto : and for set- 
 
 1 P 1- I -1 tling the 
 
 and tor settling and assuring the same parts or shares to uses, 
 shares of and in the said messuages, lands, and 
 
 £ £ ^
 
 392 APPENDIX. 
 
 hereditaments to the uses and for the ends, inteiit«^» 
 
 and purposes hereinafter expressed and declared 
 
 and for Concern insT the same; and in consideration of tew 
 
 nominal con- , . , , . "^ , . • i i • i 
 
 siderations, shillings ot lawtiil money ot the united kingdom 
 of Great Britain and Ireland, current in Great 
 Britain, to each of them, the said T. B, B. C. and 
 M. S, well and truly paid by the said W. B, imme- 
 diately before the execution of these presents, 
 (the receipt whereof is hereby acknowledged,) 
 
 The three The said T. B, B. C. and M. S, according to their 
 
 tenants hi . , . / ' i i 
 
 tail, grant, &c. respective sharcs and interests, lutue^ and each 
 fee^ ^ "^ and every of them /m//i granted, bargained, sold, 
 aliened, released, and confirmed, and by these pre- 
 sents do^ and each and every of them doth grant, 
 bargain, sell, alien, release, and confirm unto the 
 vsaid W. B, his heirs and assigns, (in the actual 
 (reference to possession of the Said W. B, uow beine, in virtue 
 
 lease tor a ^ . . i "^- i i 
 
 year) of a bargain and sale thereof made to him by the 
 
 said T. B, B. C. and M. S. in consideration of five 
 shillings paid to each to them by the said W. B. 
 by indenture bearing date on the day next before 
 the day of the date, and executed before the exe- 
 cution of these presents, for one whole year, to be 
 computed from the day next before the day of the 
 date of the sanic indenture of bargain and sale, 
 and by forc^ of the statute made for transferring 
 
 Three sixth uses iuto posscssiou,) All those three undivided 
 
 equaUoone^ sixth parts, or shares of them, the said T. B, B. C. 
 
 moiety) of and M, S, respectively, (the whole into six equal 
 parts to be divided,) and being equal to one moiety, 
 
 A farm. or half part, of and in. All that messuage or tene- 
 
 ment, farm, and those several cottages, closes, 
 pieces, or parcels of land, intacks and heredita- 
 ments, situate, lying, and bt^ing at or in S, in the
 
 recoVehy deed. 39s 
 
 f>arish of S, in the said county of Y, and the tovvn- 
 !Ship or iiiunkt of T, in the said county of Y, and 
 Containing by estimation 159 acres, or thereabouts, 
 be the same more or less, which were late the 
 inheritance of the said j\L S. deceased, and are 
 now or were lately in the several tenures or occu- 
 pations of 
 
 And also of and in all and all manner of tithes. The tithes 
 tenths, oblations, obventions, and other dues, 
 great and small, arising, coming, increasing, and 
 renewing, upon, from, and out of the heredita- 
 ments hereinbefore described, or any of them. 
 And also of and in all those several closes, pieces. Closes of land. 
 and parcels of land, and hereditaments situate, 
 lying) and being in the township of T, near R, in 
 the said count}^ of Y^, now or formerly called by 
 the several names of and a garden ad- 
 
 joining to Great F, or the scite of the same garden, 
 and containing together by estimation, including 
 the broken ground adjoining to the cliff, twenty- 
 one acres and t\N'o roods, or thereabouts. Which Referciice to 
 said messuage, lands, and hereditaments first 
 hereinbefore described, are the same messuage, 
 lands, and hereditaments, which by a different 
 description were conveyed and assured to and to 
 the use of the said M. S. his heirs and assignsv 
 by certain indentures of lease and release, bearing- 
 date respectively on or about the ninth and tenth 
 days of April, in the year 1732, and made, or ex- 
 pressed to be made, between J, U. of, &c. mariner, 
 of the one part, and the said M. S. then of, &c. 
 gentleman, of the other part. And ichich said last 
 mentioned closes, pieces, and parcels of land and 
 hereditaments are the same hereditament? which
 
 APPENDIX, 
 
 General 
 words for 
 farms. 
 
 Sweeping 
 clause. 
 
 were conveyed and assured to and to the use of 
 the said M. S. liis heirs and assigns for ever, by 
 certain indentures of lease and release, bearing 
 date respectively on or about the tenth and ele- 
 venth da3's of March, in the year 1707, and made, 
 or expressed to be made^ between T. W. of, &c. 
 gentleman, of the one part, and the said M. S. 
 therein described as M. S. of, &c. mariner, of the 
 other part. And also of and in all houses, cot- 
 tages, outhouses, edifices, buildings, barns, sta- 
 bles, yards, gardens, orchards, closes of land, 
 meadow, and pasture, feedings, woods, under- 
 woods, and the ground and soil thereof, commons, 
 and common of pasture, and of turbary, and other 
 commonable rights, tithes, tenths, wrecks of the 
 ,sea, scar-dues, land covered with water, cliffs, 
 hedges, ditches, ft^ices, mounds, ways, paths, 
 waters, water-courses, liberties, privileges, ease- 
 ments, profits, commodities, advantages, and emo- 
 luments whatsoever to the said messuages, or 
 tenements, lands, and hereditaments, hereinbefore 
 described, or any of them respectively, belonging, 
 or in any wise appertaining, or accepted, reputed, 
 deemed, taken, known, held, occupied, or enjoyed, 
 as part, parcel or member of the same, or any of 
 them respcctivel}^ Aud of and in all other the 
 freehold messuages or tenements, lands, tithes, 
 and hereditaments situate, lying, and being, or 
 arising in '1\ S, or the parish of S, or any of them, 
 in the said county of Y, which were devised by 
 the said M. S. in and by his last will and testa- 
 ment, bearing date on or about the 8th October, 
 1748, to his the said testator's two sons, J. S, T. S, 
 and to his four daughters therein named, and 
 
 '<■'!<:-.
 
 RECOVERY DEED. 395 
 
 ^fandson M. S, as therein mentioned, as tenants 
 in tail. Excepting, and always reserving, out of Exception of 
 the grant or release hereby made, so much and^^^^g^J^" 
 such parts of the said fields or closes of land now 
 or formerly called Lanefield, as have been taken 
 out of the same fields, or closes of land, for making 
 a road to R, and have been sold for that purpose. 
 And t\\e reversion and reversions, remainder and Reversion, &c. 
 remainders, yearly and other rents and profits of 
 the said hereby, or hereby intended to be released 
 parts or shares of the said messuages, lands, and 
 hereditaments, and every part and parcel of the 
 same, with their and every of their rights, mem- 
 bers, and appurtenances, except as aforesaid. 
 And bW the estate, right, title, interest, use, trust, AH the estate, 
 inheritance, term and terms for life or lives, pro- 
 perty, possession, benefit, and equity of redemp- 
 tion, claim, and demand whatsoever, at law and 
 in equity, or otherwise howsoever of them, the 
 said T. B, B. C. and M. S, respectivel}^ of, in, 
 to, and out of the same parts, or shares of the 
 same messuages, lands, and hereditaments, and 
 every part and parcel of the same, with their and 
 every of their rights, members, and appurtenances, 
 except as aforesaid. To have and to hold theHABE^DUMto 
 
 • , V , 11- 11 1 . , W. B. in fee. 
 
 said hereby or hereby mtended to be released or 
 otherwise assured parts or shares of and in the 
 said messuages, lands, and hereditaments, and also 
 all and singular other the premises hereby released, 
 or otherwise assured, or intended so to be, and 
 every part and parcel of the same, with their and 
 every of their rights, members, and appurtenances, 
 (except as aforesaid,) unto the said W. B. his 
 heirs and assis^ns. To the use of the said W, B,
 
 oi)6 APPENDIX. 
 
 ''^^'"^'^^^'"^ his hoirs and assigns. To the intent that the 
 
 tenant to the "^ 
 
 prasdpe for said W. B. may be tenant of the freehold, of all 
 common ?e- ^'""^^ singular the said hereby, or hereby intended 
 covery. ^q \y^ released or otherwise assured parts or shares 
 
 of and in the said messuages, lands, and heredi- 
 taments, and ev'ery part and parcel of the same, 
 with their rights, members, and appurtenances ; 
 to the end that one or more good and perfect 
 common recovery or recoveries, with double 
 voucher, may be had and suffered of the same 
 Modeofsuf- parts, shares, and hereditaments. And for that 
 
 lerin" the 
 
 recovery pre- purpose it is hereby directed, declared, and agreed 
 scribed. ^^^^ ^^^ between all the said parties to these pre- 
 
 sents, as far as they respectively are interested, 
 that the said W. B. shall permit and suffer the 
 said C. R, or some other person or persons, at 
 the costs and charges in all things of the said T. B, 
 B. C, and i\I. S, their heirs, executors, or ad- 
 ministrators, at any time or times hereafter, to 
 sue forth and prosecute against him the said 
 W. B, out of his majesty's high court of Chancery 
 one or more writ or writs of entry sui- disseisin en 
 le post, returnable before his majesty's justices of 
 the court of Common Pleas at Westminster ; and 
 thereby demand of the said W. B, the said hereby 
 or liereb}^ intended to be released or otherwise 
 assured parts or shares of and in the said mes- 
 suages, lands, and hereditaments, with their and 
 every of their rights, members, and appurtenances 
 by the names and description of one moiety of 
 four messuages, lour gardens, 180 acres of land, 
 60 acres of meadow, 50 acres of pasture, 1'2 acres 
 of wood, 1'2 acres of underwood, 60 acres of 
 moor, 60 acres of furze and heath, and common
 
 hecoveuy deed. 397 
 
 of pasture, for all manner of cattle, common of 
 turbary, aud wreck of the sea, with the appurte- 
 nances, in T. S, and in the parish of S, and of 
 and in all and all manner of tithes and tenths 
 whatsoever, yearly arising, increasing, and renew- 
 ing out of, upon, and from the said tenements in 
 S. aforesaid, or b}' such other apt, good, sufficient, 
 and proper names, number of messuages and acres, 
 quantities, qualities, and other descriptions as 
 shall be deemed necessary, proper, sufficient, and 
 requisite to comprise the same. And that the 
 said W. B. shall in his own person, or by his 
 attorney or attornies lawfully authorised in that 
 behalf, appear to the same writ or writs, and 
 vouch to warranty the said T. B. and E. his wife, 
 B. C. and M. S. And that the said T. B. and 
 E. his wife, B. C. and M. S, shall in their own 
 persons or by their attorney or attornies lawfully 
 authorised in that behalf, appear gratis, and freely 
 enter into the warranty of the said W. B. ; and 
 taking the same upon themselves respectively, 
 vouch over to warranty the common vouchee of 
 the said court of Common Pleas for the time 
 being ; who shall appear gratis, and freely enter 
 into the warranty of the said T. B. and E. his 
 wife, B. C. and M. S, and after imparlance make 
 default. So that judgment may be given upon 
 the said writ or writs, and every of them, for the 
 said C. R, or other demandant or demandants, 
 to recover all and singular the said parts or shares 
 of the said messuages, lands, and hereditaments, 
 and every part and parcel of the same parts or 
 shares, with their and every of their rights, mem- 
 bers^s and appurtenances, by such names, quanti-
 
 398 APPENDIX. 
 
 ties, qualities, and Dtlier descriptions as aforesaid, 
 against the said W. B. ; and for the said W. B. 
 to recover in value against the said T. B. and E. 
 his wife, B. C. and M. S. ; and for the said T. B. 
 and E. his wife, B. C. and M. S, to recover in 
 value against the common vouchee, as is usual in 
 such cases. And that upon all and every reco- 
 very and recoveries to be suffered as aforesaid 
 execution may be sued and prosecuted by, and 
 seisin had, taken, and delivered unto the said 
 C. R, or other demandant or demandants, ac- 
 cordingly. And that every other act or thing 
 needful, requisite, or proper to be done or exe- 
 cuted for the purpose of suffering and perfecting 
 a common recovery or recoveries of those parts 
 or shares of the said messuages or tenements, 
 lands, and hereditaments, which are hereby re- 
 leased, or otherwise assured or intended so to be, 
 to bar the es- with double, treble, or other voucher, to dock 
 ^" ' "the estates-tail of the said T. B, B. C. and M. S, 
 of and in the same parts or shares, and all rever- 
 sions and remainders over and expectant upon 
 the same estates-tail, and to extinguish the 
 andextin- dower, right, and title of dower of the said E. B, 
 guish dower. j^^,, made, done, and executed. And by way 
 
 Direction •' ' , 
 
 that recovery of direction and declaration, and not of covenant, 
 fered. ^ ^^ ' it is hereby granted, declared, and agreed, by and 
 between the parties to these presents, as far as 
 they respectively are interested, and they hereby 
 for themselves severally and respectively, and for 
 their several and respective heirs, executors, and 
 administrators, according to their respective 
 estates, rights, and interests in the premises, 
 consent and agree, that the recovery hereby agreed
 
 RECOVERY DEED. 399 
 
 to be suffered, shall be suffered and perfected, 
 
 with all possible dispatch; and that they respec- and that par- 
 
 tively, and their respective heirs, on their respec- efFec7 to the^ 
 
 tive parts, will use their utmost endeavours to*^'"^- 
 
 give effect to the same recovery and also to these 
 
 presents, and the grant, release, confirmation or 
 
 other assurance hereby made. And it is here- Declaration 
 
 BY FURTHER DIRECTED, declared, and agreed, covery, 
 
 by and between all the parties to these presents 
 
 as far as they respectively have any right, title or 
 
 interest in the premises, that immediately upon 
 
 and after judgment obtained, and seisin had and 
 
 taken upon such recovery or recoveries as 
 
 aforesaid, the recovery or recoveries so as 
 
 aforesaid, or in any other manner, or at any other 
 
 time or times to be suffered; and also the bar- f''^ the lease- 
 
 gam and sale tor a year, bearing date on the day and the pre- 
 
 next before the day of the date of these presents ;*^"^*^^^*^' 
 
 and also these presents, and the assurance hereby 
 
 made; and all and every other fine and fines, re-^"*^ ^„°*^^^ 
 
 . , , i"»es, &c. 
 
 covery and recoveries, and other assurances 
 whatsoever, at anytime or times heretofore, and to 
 be any time, and from time to time hereafter had, 
 made, done, levied, suffered, executed, and per- 
 fected, of or concerning all or any part of those 
 parts or shares of the said messuages, lands, and 
 hereditaments which are hereby released, or other- 
 wise assured, or intended so to be, either by diem- 
 selves solely and alone, or jointly and together 
 with any other part of the same messuages, lands, 
 and hereditaments, or jointly and together with 
 any other lands, tenements, or hereditaments, by 
 or between all and every, or any or either of the 
 persons who are parties to these presents, or to
 
 400 
 
 APPJiNDIX. 
 
 which they, or any or either of them, is or are, of 
 shall or may be parties or privies, or a party or 
 privy, shall, as to all the said parties to these pre- 
 sents respectively, as far as they respectively can 
 lawfully or rightfully direct the uses of the same 
 fine and fines, common recovery and recoveries, 
 and other assurances, be and enure, and be ad- 
 judged, expounded, deemed, decreed, and taken 
 to be and enure, and that the same was and were 
 meant and intended, and is and are hereby directed 
 and declared to be and enure ; and also that the 
 person and persons to whom the said fine or fines, 
 common recovery or recoveries, and other assurances 
 respectively, have or hath been, or shall or may 
 be levied, suffered, made, and executed, shall 
 stand and be seised. As to, for, and concerning 
 one of the said three undivided sixth parts, (being 
 the part or share of the said T. B,) of and in the 
 said messuages, lands, and hereditaments, with 
 To the use of ^\^q riohts, members, and appurtenances, To the use 
 
 such persons, ^ * , 
 
 &c. as T. B. of such person or persons, tor such estate or 
 appoint ^^' estates, and for such interest or interests, by way 
 of annuity, rent-charge, or otherwise, and in such 
 parts, and proportions, and upon such trusts, and 
 for such ends, intents, and purposes, and charged 
 and chargeable in such manner, and either abso- 
 lutely or conditionally, and subject to such 
 j)Owers of revocation and of new appointment, and 
 other powers, provisoes, conditions, restrictions, 
 limitations, declarations and agreements, as the 
 said T. 15. at any time or times, and from time 
 to time, by any deed or deeds, instrument or in- 
 struments in writing, to be sealed and delivered 
 f>y him in the presence of two or more credible 
 
 thall enure, 
 
 and persons 
 shall stand 
 seised. 
 
 As to one 
 sixth part 
 (being the 
 share of T. B.)
 
 RECOVERY DEED. 40| 
 
 witnesses, and attested by the sanae witnesses, 
 
 shall direct, hmit, or appoint. And in default of for default oj 
 
 , , . . .... , . ^ ^ , appointment. 
 
 such direction, hmitation, and appointment, and 
 
 in the mean time and from time to time until the 
 
 same shall take effect, and from time to time 
 
 subject to such uses, estates, trusts, charges, and 
 
 interests as shall have been directed, limited, or 
 
 appointed by the said T. B. ; then To the use ofTo the use o^ 
 
 the said T. B. and his assigns for and during the 
 
 term of his natural life. And from and after the Remainder, 
 
 determination of that estate by any means, then 
 
 To the use of the said C. R. his heirs and assigns, To the use of 
 
 during the natural life of the said T. B. : Upoti of t.b. 
 
 trust for, and for the sole benefit of, the said T. B. l" trust for 
 
 and his assigns; and to the intent that the pre-prevenT ^'^ 
 
 sent or any future wife of the said T. B. may'^^^^^'"- 
 
 not be entitled to dower. And from and after Remainder. 
 
 the determination of the estate hereby limited to 
 
 the use of the said C. R. his he-rs and assiofiis, 
 
 for the hfe of the said T. B. ; then To the use ofTotheuseot 
 
 the said T. B. his heirs and assigns for ever. 
 
 And as to, for, and concerning one other of the As to another 
 
 said three undivided sixth parts, (being the un- (being the 
 
 divided part or share of the said B. C,) of and in^^''*'"^"^'^- ^0 
 
 the same messuages, -lands, and hereditaments, 
 
 with the rights, members, and appurtenances, 
 
 To the use of the said B. C. his heirs and assigns To the use of 
 
 for ever. A?id as to, for, and concerning thcAstothe^^ 
 
 other of the said three undivided sixth parts, ^?™f"""g 
 
 . . . * sixth part 
 
 (being the undivided part or share of the said M. (being the 
 S,) of and in the same messuages, lands and^ areo i . ji 
 hereditaments, with the rights, members, and 
 appurtenances, To the use of the said M. S. her "^o the use of 
 
 1 - 1 • /» r • o M. S. ill fee. 
 
 neirs and assigns tor ever. In witness, &c.
 
 402 APPENDIX. 
 
 FORM VIII. 
 
 Mode of introducing the Limitation of Uses declared of a 
 Recovery, suffered by some only of several Tenants in 
 Common in tail, with Cross Remainders ; so as to preserve 
 the Identity of Title. 
 
 A. tenant for life, remainder to her seven children in tailt 
 with cross remainders between them in tail. A. conveyed 
 her interest in the intirety, and five of the seven children 
 their respective shares, to the tenant to the prcecipe. The 
 limitation of the use of each share was introduced by the 
 following words : 
 
 As to, for, and concerning one undivided 
 seventh part or share, of and in the -said mes- 
 suage, &c. hereby released, &c. (being the one 
 seventh part of which the said K. L. is the first 
 tenant in tail,) And as to, for, and concerning 
 one undivided fifth part or share, of those two 
 seventh parts or shares of the same messuage, &c. 
 of which the said R. L. and E L. [a) are the first 
 tenants in tail, (which shares make together one 
 full /ifth j)art of the intirety) To the use, &c. 
 
 (a) These were the two children who were not parties to the 
 recovery and conveyance.
 
 RECOVERY DEED. 
 
 403 
 
 FORM IX. 
 
 Bargain and Sale of divers Manors, Sfc. in the County of 
 K, for the joint Lives of the Tenant in Tail and Bar^ 
 gainee, that a Common Recovery may be suffered thereof 
 to the Use of the Tenant in Tail, in Fee. 
 
 ^*^ This may he considered as one of the most simple 
 forms, and adapted to all cases not attended with special 
 circumstances. 
 
 The alteration from a bargain and sale to a release grounded 
 on a lease for a year, may be easily made. 
 
 THIS INDENTURE of three parts made the 
 27th day of November, 46th George III. A. D. 
 1805. Between G. P. of, &c. Esq. of the first partiss, 
 part ; J. W. of, &c. gentleman, of the second part ; 
 and T. R. S. of the same place, gentleman, of the 
 third part. Whereas the said G. P. is, under Recital thai 
 and by virtue of the last will and testament of ^^j.^" ^^[, ""' 
 C. P. Esq. deceased, his late father, bearing date tenant in tail 
 
 , ,1 ^ X -,^^ 1 -in possession, 
 
 on or about the 23d day of June, 1789, and certam 
 codicils thereto annexed, all proved in the Pre- 
 rogative Court of the Archbishop of Canterbury on 
 or about the day of instant, or some 
 
 or one of them, seised of an estate-tail in posses- 
 sion of the manors, messuages, farms, lands, tene- 
 ments, and hereditaments hereinafter bargained 
 and sold, or otherwise assured, or intended so to 
 be, with their rights, royalties, members, and ap-
 
 404 APPENDIX. 
 
 WITNESSETH purtenanccs. Nowthis indenturewitnesseth 
 ring estates- ^^^^^ ^*^*' docking, barring, and destroying all 
 tail, &c. estates-tail of and in the manors, messuages, 
 farms, lands, tenements and hereditaments herein- 
 after bargained and sold, or otherwise assured, 
 or intended so to be, and all reversions or re- 
 mainders expectant or depending on the same 
 and for set- estates-tail ; and for settling and assuring the 
 manors on Same mauors, messuages, farms, lands, tenements, 
 the owner ^^^f^ hereditaments, to the use of the said G. P. 
 
 m fee, and lor 
 
 nominal con- his heirs and assigns for ever ; and in considera- 
 tion of ten shillings, of lawful money of the united 
 kingdom of Great Britain and Ireland, current 
 in Great Britain, to the said G. P. well and truly 
 paid by the said J, W, immediately before the 
 execution of these presents, (the receipt whereof 
 Tenant in tail ^^ hereby acknowledged,) He the said G. P. hath 
 grants to J. granted, bargained, and sold, and by these .pre- 
 sents doth grant, bargain, and sell, unto the said 
 All the '^' ^' All and singular the manors, messuages, 
 
 manors, &c. farms, lands, tenements, and hereditaments, situ- 
 
 in ^Gvcrnl 
 
 parishes ^te, lying, and being in the towns, places, or 
 whereof he i. parishes of C. C. D. O. S. W. S. A. K. K. H. 
 
 sf lied ni tail. ' 
 
 C. K. E. otherwise E. S. F. and R, in the said 
 county of K, or any of them, of wliich the said G. 
 P. is, or at any time heretofore hath been, tenant 
 for an estate-tail, either at law, or in equity, under 
 or by virtue or means of the last will and testament 
 of the said C. P. his deceased fluher, or any 
 codicil or codicils thereto, or under or by virtue 
 or means of any other will, deed, or settlement 
 whatsoever, and every part and parcel of the 
 
 General words ^^"^^- ^'^^^ ^^' ^"^^ singular messuages, forms, 
 fyr n:anor8. cottagcs, houscs, outliouscs, cdificcs, buildjngs,
 
 RECOVERY DEED. 405 
 
 Stables, barns, coach-houses, clove-cotes, yards, 
 gardens, orchards, backsides, tofts, crofts, lands, 
 meadows, pastures, heaths, moors, marshes, 
 wastes, waste-grounds, folds, fold-courses, and 
 liberty of fbldage, feedings, parks, warrens, com- 
 mons, common of pasture, common of turbary, 
 mines, minerals, quarries, mills, mulcturos, fairs, 
 markets, customs, tolls, duties, furzes, trees, 
 woods, underwoods, and the ground and soil 
 thereof, mounds, fences, hedges, ditches, free- 
 boards, ways, waters, water-courses, lands cover- 
 ed with water, fishings, fisheries, fowlings, courts 
 leet, courts baron, and other courts, perquisites 
 and profits of courts, view of frank-pledge, and 
 all that to view of frank-pledge doth belong, re- 
 liefs, heriots, fines, sums of money, amerciaments, 
 goods and chattels of felons and of fugitives, and 
 of felons of themselves, and of outlawed persons, 
 deodands, waifs, estrays, chief-rents, quit-rents, 
 rent-charges, rents seek, rents of assize, fee farm 
 rents, boons, services, royalties, jurisdictions, 
 franchises, liberties, privileges, easements, pro- 
 fits, commodities, emoluments, hereditaments and 
 appurtenances whatsoever to the said manors, 
 messuages, farms, lands, tenements, and heredita- 
 ments respectively, hereby bargained and sold, 
 or otherwise assured, or intended so to be, or 
 any of them respectively, belonging, or in any 
 wise appertaining, or with the same or any of 
 them respectively, now demised, leased, held, 
 used, occupied, or enjoyed, or accepted, reputed, 
 deemed, taken, or known as part, parcel, of mem- 
 ber of ihem or any of them, or appurtenant 
 thereunto, with their and every of their appur- 
 
 VOL. I. F F
 
 406 APPENDIX. 
 
 Reversion, teiiances. Jnd the reversion nnd reversions, 
 ^^' remainder and remainders, yearly and other rents 
 
 and profits of the said manors, messuages, farms, 
 lands, tenements and hereditaments, hen by bar- 
 gained and sold, or otherwise assured, or intended 
 so to be, and every part and parcel of the same, 
 with their and every of their rights, royalties, 
 Habexdcm to members, and appurtenances. To have and 
 fOTSe'ioint ^^o HOLn the Said manors, messuages, farms, lands, 
 lives of him- tenements, hereditaments, and all and singular 
 
 self and tenant i i i ■ ^ i i i 
 
 in tail. Other the premises hereby bargained and sold, 
 
 or otherwise assured, or intended so to be, and 
 every part and parcel of the same, with their and 
 every of their rights, royalties, members, and 
 appurtenances, unto and to the use of the said 
 J. W. and his assigns, for and during the joint 
 To make him natural lives of the said G. F. and J. W. To thk 
 tenant to the j^^^tent that the Said J. W. mav be tenant of. the 
 
 jircecijie, 
 
 freehold of all and singular the said manors, 
 messuages, farms, lands, tenements, and heredita- 
 ments, hereby bargained and sold, or .otherwise 
 assured, or intended so to be, and every part and 
 parcel of the same, with their and every of their 
 rights, royalties, members, and aj)])urtenances, 
 for suiTenng ^^ ^/^^ g^^^/ ^\^^^ Q^^^ q^ luorc Qood aiid perfect 
 
 a common "^ ' 
 
 recovery. commoii rccovcrv or recoveries with double 
 
 voucher may be liad and suffered of the same 
 
 Modoofsuf- hereditaments. And for lliat purpose \\.\s hereby 
 
 fenn«-there- (^iij.(p(.f-(-.(l declared, and agreed, by and Ijetween all 
 
 recovery pre- ' f^ ' j 
 
 wriljcd. the said parties to these presents, as iar as they 
 
 respt ctively are interested, that the said J. W. 
 shall |M iiiiit and siilli r the said 'l\ W. S, or some 
 other p'l'son or ])ers(iiis, at \\\v costs and charges 
 \\\ all lliiiv's of the said (i. W his heirs, executors^
 
 RECOVEHY DEED. 407 
 
 or administrators, at any time or times hereaftei* 
 to sue forth and prosecute against him the said J« 
 W, out of his majesty^s high court of Chancery, 
 one or more writ or writs of entry, sur disseisin en 
 le post^ returnable before his majesty's justices of 
 the court of Common Pleas, at Westminster ; and 
 thereby demand of the said J. W. the manors, 
 messuages, farms, lands, tenements, heredita- 
 ments, and premises hereby bargained and sold, 
 or otherwise assured, or intended so to be, and 
 every part and parcel of the same, with their and ' 
 
 every of their rights, royalties, members, and 
 appurtenances, by such apt, good, sufficient, and 
 proper names, number of messuages and acres, 
 quantities, qualities, and other descriptions as 
 shall be deemed necessary, proper, sufficient, and 
 requisite to comprise the same. And that the 
 said J. W, shall in his own person, or by his at- 
 torney or attornies lawfully authorised in that 
 behalf, appear to the same writ or writs, and 
 vouch to warranty the said G. P. And the said 
 Ir. P. shall in his own person, or by his attorney 
 or attornies lawfully authorised in that behalf, 
 appear gratis, and freely enter into the warranty 
 of the said J. W. ; and taking the same upon him- 
 self, vouch over to warranty the common vouchee 
 of the said court of Common Pleas for the time 
 being : who shall appear gratis, and freely enter 
 into the warranty of the said G. P. ; and after 
 imparlance make default. So that judgment may 
 be given upon the said writ or writs and every of 
 them for the said T. R. S, or other demandant or 
 demandants, to recover all and singular the said 
 manors, messuages, farms, lands, tenements, and 
 
 F F 2
 
 408 APPENDIX. 
 
 hereditaments, hereby bargained and sold, or 
 otherwise assured, or intended so to be, and every 
 part and parcel of the same, with their and every 
 of their rights, ro^^alties, members, and appurte- 
 nances by such names, quantities, qualities, and 
 other descriptions as aforesaid, against the said 
 J. W. ; and for the said J. W. to recover in value 
 against the said G. P. ; and for the said G. P. to 
 recover in value against the common vouchee, as 
 is usual in such cases. And that upon all and 
 every recovery and recoveries to be suffered as 
 aforesaid, execution may be sued and prosecuted 
 by, and seisin had, taken, and delivered unto the 
 said T. R. S, or other demandant or demandants 
 accordingly. And that every other act or thing 
 needful, requisite, or proper to be done or executed 
 for the purpose of suffering and perfecting a com- 
 mon recovery or recoveries of the manors, mes- 
 suages, farms, lands, tenements, and hereditaments 
 hereby bargained and sold, or otherwise assured, 
 or intended so to be, with double, treble, or other 
 to barthe voucher, to bar the estates-tail now or late of the 
 ' said G. P, oi and m the same manors, messuages, 
 farms, lands, tenements, and hereditaments, and 
 all reversions and remainders over and expectant 
 upon the same estates-tail, may be made, done, 
 Direction that and executed. And by way of direction and 
 shaii'ije sS- declaration, and not of covenant, it is hereby 
 fercd. granted, declared, and agreed, by and between 
 
 the said parties to these presents, as far as they 
 respictively are interested, ;uk1 they hereby for 
 tliemselves, severally and respectively, and for 
 their several and respective heirs, executors, and 
 administrators, consent and agree, according to
 
 RECOVERY DEED. 409 
 
 their respective estates, rights, and interests in 
 
 the premises, that the recovery hereby agreed to 
 
 be suffered shall be suffered and perfected with 
 
 all possible dispatch; and that they respective!}^, and that par- 
 
 and their respective heirs, will, on their respective effect to ?he 
 
 parts, use their utmost endeavours to give effect to'^^™'^ 
 
 the same recovery, and also to these presents, and 
 
 the grant, bargain, and sale, or other assurance 
 
 hereby made. And it is hereby further Declaration 
 
 DIRECTED, declared, and agreed, by and between ^^y^*^^ ^^" 
 all the said parties to these presents, as far as they 
 respectively have any right, title, or interest in 
 the premises, that immediately upon and after 
 judgment obtained, and seisin had and taken 
 upon such recovery or recoveries as aforesaid, 
 the recovery or recoveries so as aforesaid, or in 
 any other manner, or at any other time or 
 times to be suffered ; and also these presents, andand thepre- 
 
 ^, , , , 1111 sent deed, and 
 
 the assurance hereby made; and all and everyaii other fines, 
 other fine and fines, recovery and recoveries, and^^ 
 other assurances whatsoever, at any time or times 
 heretofore, and to be at any time, and from time 
 to time hereafter had, made, done, levied, suffer- 
 ed, executed, and perfected, of or concerning all 
 or any part of the said manors, messuages, farms, 
 lands, tenements, and hereditaments hereby bar- 
 gained and sold, or otherwise assured, or intended 
 so to be, either by themselves solely and alone, 
 or jointly and together with any other lands, 
 tenements, and hereditaments, by or between all 
 and every, or any or either of the persons who 
 are parties to these presents, or to which they or 
 any or either of them is or are, or shall or may be 
 parties or privies, or a party or privy, shall, as to
 
 410 APPENDIX. 
 
 all the said parties to these presents respectively, 
 as far as they respectively can lawfully or right- 
 fully direct the uses of the same fine or fines, 
 common recovery or recoveries, and other assur- 
 
 shall enure, ances, be and enure, and be adjudged, expound- 
 ed, deemed, decreed, and taken to be and enure, 
 and that the same was and were meant and in- 
 tended, and is and are hereby directed and declared 
 
 and persons to be and enure ; and also that the person or per- 
 'sons to whom the said fine or fines, common reco- 
 very or recoveries, and other assurances respectively, 
 have or hath been, or shall or may be levied, suf- 
 fered, made, and executed, shall stand and be 
 
 As to the seised, y^5 /o, for, and concernine' the said manors, 
 
 manors, &c. r i i " i i i • 
 
 conveyed, messuages, lamis, lands, tenements, and heredi- 
 taments, hereby bargained and sold, or otherwise 
 assured, or intended so to be, and every part and 
 parcel of the same, with their and every of their 
 
 To the use of rights, royalties, members, and appurtenances. To 
 
 m feT/" "^ ^^*^ ^**^ ^^ ^^^ ^^^^ ^' P- ^^^ heirs and assigns for 
 ever. And to no other use, nor upon or for any 
 other trust, intent, or purpose whatsoever. In 
 witness, &c^
 
 IIECOVEIIY DEED. 4ii 
 
 FORM X. 
 
 a^covery Deed, by Lease uiid Release, with various Uses by 
 Way of Family Arrangement. 
 
 THIS INDENTURE of four parts, made, &c. 
 I79S. Between C. H. of, &c. Esq. and M. hisi-^J^TiEs. 
 wife, of the first part ; G. S. of, &c. Esq. of the 
 second part ; J. P. of, &c. gentleman, of the third 
 part ; and W. W. of, &c. Esq. of the fourth 
 part. WITNESSETH that for barring, blocking, ^^^^^^^^iJ^J^"* 
 destroying, and extinguishing all estates-tail, and ring estates- 
 all reversions and remainders thereupon expec- ' 
 tant or depending, of and in the manors, lands, and 
 hereditaments hereinafter granted and released, 
 or mentioned so to be ; and for extinii,-uishinoextin,j?iuslung 
 
 I ^ dower, 
 
 the dower, right, or title ot dower ot the said 
 
 M. H. therein ; and for limiting and assuring the and limiting 
 
 , , TIT 1 manors to 
 
 same manors, lands, and hereditaments, to the uses; 
 uses hereinafter particularly mentioned and ex- 
 pressed ; and in consideration of ten shillings, and for nonii- 
 
 ,.,,>, ,, „ , • 1 r-i TT -11 "al ctinsidera- 
 
 or lawiul money, ot, &c. to the said C 11. paid byuon. 
 the said G. S, at or before the sealino- and deli- 
 
 very of these presents, (the receipt whereof is 
 hereby acknowledged). They the said C. H. and Tenant in 
 M. his wife, have and each of them /m^/i granted, ^^ ^"^ ^
 
 412 
 
 APPENDIX. 
 
 wife grant, 
 &c. to G. S. 
 in fee. 
 
 Manors. 
 
 Advowson, 
 
 Mansion. 
 
 Sweeping 
 clause. 
 
 General 
 wo/ds. 
 
 bargained, sold, released, and confirmed, and by 
 these presents do and each of them dolh grant, 
 bargain, sell, release, and confirm unto the said- 
 G. S. his heirs and assigns, in his actual possession 
 as hereinafter is mentioned. All those the lord- 
 ships or manors of W. E. and N. in the county of 
 W, with their and every of their rights, royalties, 
 franchises, members, and appurtenances. And 
 also all those the two several manors, or reputed 
 manors of Great C. in the said county of W, the 
 one called Y. and the other W. G, with their 
 and every of their rights, royalties, franchises, 
 members, and appurtenances. And also the-ad- 
 vowson, donation, right of presentation, and 
 patronage of the churches of Great C. and B, in 
 the said county of W, with all rights, privileges, 
 and appurtenances, thereunto belonging. And 
 also the capital or chief mansion-house of W. 
 aforesaid. And also all other the manors, mes- 
 suages, farms, lands, meadows, leasovvs, pastures, 
 grounds, mills, fishings, tithes, commons, dona- 
 tions, rents, hereditaments, duties, rebels, waifs, 
 estrays, deodands, and all other the hereditaments 
 whatsoever of him the said C. H, situate, lying, 
 and being in the manors, townships, parishes, 
 precincts, and liberties of W. E. N, Great C, 
 Little C. P. \V. and B. in the county of W, or 
 in any of them, or elsewhere in the said county 
 of W. Together with all and singular houses, out- 
 houses, edifices, buildings, barns, stables, dove- 
 houses, orchards, gardens, backsides, privileges, 
 profits, commodities, emoluments, and heredita- 
 ments, \vliatsocvcr, to the said several manors, 
 lands, hereditaments, and premises belonging, or
 
 RECOVERY DEED. 413 
 
 in any wise appertaining, or accepted, reputed, 
 taken, or known as part, parcel, or member there- 
 of. (Except^ nevertheless, and always reserved Exception of 
 
 " , two messua- 
 
 out ot this present release, two messuages, and ges, &c. held 
 two yard lands, and a toft of land in the said^°^^^^^^* 
 parish of E. which are copyhold, and held by grant 
 from the Dean and Chapter of W. for three lives, 
 in trust for the said C. H.) All which manors, Reference to 
 lands, hereditaments, and premises, (except aSygar. ^^^ 
 before excepted,) are now in the actual possession 
 of the said G. S, by virtue of a bargain and sale 
 thereof made to him by the said C. H. and M. 
 his wife, for the term of one whole year, in consi- 
 deration of five shilhngs paid to the said C. H. 
 and M. his wife by the said G. S, by indenture 
 bearing date the day next before the day of the 
 date, and executed before the execution of these 
 presents, and b.y force of the statute made for 
 transferring uses into possession : and were devised 
 to the said C. H. in tail, (after several estates and to will by 
 now determined,) in or by the last will of his gg^^^g_^^y ^^^^ 
 father E. H, formerly of W. H. aforesaid, Esq. created. 
 deceased, bearing date on or about the eleventh 
 day of January, 1766, and proved in the Preroga- 
 tive Court of the Archbishop of Canterbury on 
 or about the fifth day of INIay next following. 
 And the reversion and reversions, remainder and Rev ersion,6v:c. 
 remainders, yearly and other rents, issues, and 
 profits thereof, and of every part thereof, y^/^c? All the estate, 
 all the estate, right, title, interest, trust, property, 
 claim, and demand whatsoever at law and in 
 equity of them, the said C. H. and M. his wife, of, 
 in, to, or out of the said manors, lands, heredita- 
 ments, and premises, every, or any part or parcel
 
 414 APPENDIX. 
 
 HaB£nI)UM to i^l-jpj-Cof. To HAVE AND TO HOLD the Said 
 
 grantee in tee . 
 
 manors, lands, hereditaments, and all and singular 
 other the premises v^'ith their and every ot" ttieir 
 appurtenances unto the said G. S. his heirs and 
 assigns for ever. To the use of the said G. S. his 
 To make him \^^\y^ ^^-^^\ assigns for ever. To the intent that 
 
 tenant to the o 
 
 praecipe, for the said G. S. may be perfect tenant of the free- 
 common re- hold of the same manors, lands, hereditaments, and 
 covery. premises, to the end that one or more good and 
 
 perfect common recovery or recoveries may be 
 thereof had and suffered in manner hereinafter 
 5iodeofsuf- mentioned. And for that purpose it is hereby 
 cOTenr p^re-' declared and agreed by and between the said par- 
 scribed, jjgg tQ these presents, as far as they respectively 
 are interested, that it shall and may be lawful to and 
 for the said J. P, at the costs and charges of the 
 said C. H, before the end of this present Easter 
 term, to sue forth and prosecute out of his majes.ty's 
 high court of Chancery, against the said G. S, 
 one or more writ or writs of entry sur disseisin en 
 le post, returnable before his majesty's justices of 
 the court of Common Pleas at Westminster, and 
 thereby demand by apt and convenient names, 
 quantities, qualities, number of acres and other 
 <lescriptions, the said manors, lands, heredita- 
 ments, and premises, with the appurtenances, 
 lo which said writ or writs of entry the said 
 G. S. shall appear gratis in his own ])erson, and 
 vouch to warranty the said C, If. and M. his wife; 
 who shall also appear gratis in their own persons, 
 ■or by their attorney or attornies thereto lawfully 
 authorised, and enter into the warranty, and 
 vouch over to warranty the common vouchee of 
 the same court ; who shall also appear gratis, and
 
 RECOVERY DEED. 415 
 
 after imparlance make default. So that j udgment 
 may be given for the said J. P. to recover the 
 same manors, lands, hereditaments, and premises, 
 with the appurtenances, against the said G. S. ; 
 and for the said G. S. to recover in value against 
 the said C. II. and M. his wife; and for the said 
 C. H. and M. his wife to recover in value against 
 the common vouchee, as is usual in like cases. 
 And that execution shall and may be thereupon 
 had and awarded accordingly ; and all and every 
 other act and thing done and executed which is 
 needful and requisite for suffering and perfecting 
 such common recovery or recoveries with 
 vouchers as aforesaid. And it is hereby de-Declara- 
 
 CLARED AND AGREED by and between all the these pre- 
 
 said parties to these presents, as far as they ^®"^^' ^"^ *^^ 
 ' . . recovery, 
 
 respectively are interested, that immediately after 
 suffering and perfecting the said common reco- 
 very or recoveries, these presents and the assu- 
 rance hereby made ; and also the said recovery and 
 recoveries so as aforesaid or in any other manner 
 or at any other time or times suffered or to be 
 suffered; and all and every other recovery and and all other 
 
 n -I n 1 recoveries, 
 
 recoveries, nne and tines, conveyances and assu-&c. 
 
 ranees in the law whatsoever at any time or times 
 
 heretofore, and to be at any time, and from time 
 
 to time hereafter had, made, levied, suffered, or 
 
 executed of the said manors, lands, hereditaments, 
 
 and premises, or any part thereof, b3^ or between 
 
 the said parties to these presents, or any of them, 
 
 or whereunto they, or any or either of them are, 
 
 or is, or shall be parties or privies, or a party or 
 
 privy, shall be and enure, and shall be adjudged, shall enure, 
 
 deemed, construed, and taken, and is and are
 
 416 APPENDIX. 
 
 and was and were meant and intended, and is and 
 are hereby directed, declared, and agreed by and 
 between all the said parties to these presents, to 
 be and enure, and the recoveror and recoverors 
 in the said recovery or recoveries, named or to be 
 named, and his and their heirs shall stand and be 
 
 manors con- s^'^^*^- ^* ^'^' ^^^^ ^"^ concerning the same 
 veyed, manors, lands, hereditaments, and premises, and 
 
 every part thereof, with the appurtenances. To, 
 for, and upon such uses, intents, and purposes, and 
 under and subject to such powers, provisoes, 
 limitations, and agreements as are hereinafter 
 expressed and declared of and concerning the 
 th" ^?"i^"l same, (that is to say,) in the first place. In coti- 
 E. H. to re- Jimiation of the right of E. H, eldest sister of the 
 Ss,^^"""" said C. H, to have, take, and receive thereout the 
 clear annual sum of £ to commence from 
 
 the fifth day of January now last past, and to 
 continue thenceforth during so long time as she 
 the said E. H. shall live in the said mansion- 
 house at W, in which she now resides ; and also 
 in confirmation of the ri2:ht of the said E. H. if 
 she should quit the said mansion-house, and go 
 to reside elsewhere to have, take, and receive out 
 of the said hereditaments the clear annual sum of 
 £ to commence from the time of her so 
 
 quitting the said mansion-house, and to continue 
 during the term of her natural life, instead of the 
 granted by a afoix'said annual sum of £ Which saitl an- 
 
 deed referred 
 
 to. unities or yearly rent charges or j£ and 
 
 £ were granted, created, and made payable 
 
 in and by one indenture tripartite bearing date on 
 or al)Out the day of January last, made 
 
 b(,'tvveen the said C. II. ol" the first part; the said
 
 RECOVERY DEED. 417 
 
 E. H. of the second part ; and the said W. W. of 
 the third part. And also in confirmation of such ^"'^ t'^^ 
 powers of distress and entry for nonpayment of securing the 
 the said annuities, as in the same indenture are^^'"'^' 
 for that purpose particularly mentioned and ex- 
 pressed. And subject to, and charged and charge- ^"'^ subject 
 able with the said annuities of £ and £ 
 during the continuance of the same annuities 
 respectively, and also subject to and chargeable 
 with the powers and remedies limited or given 
 to the said E. H. and her assigns, for securing 
 and enforcing the payment of the same annuities, 
 To the ufte of the said C. H. and his assigns, for To the use of 
 and during the term of his natural life, without ^' ^" ^''^^*^^' 
 impeachment of waste. And from and after the Remamder^ 
 decease of the said C. H, To the use of the said'^^^^^ "^^ ^^ 
 
 ■Kr rr n i 1 • 1 • • , ,. M. H- for the 
 
 M. H, for and durmg the joint natural lives ofjomt lives of 
 the said M. H, and E. H. A?id in case the saidg^'^- ^"'^ 
 M. H. should di'e in the life-time of the said E.AndifM. H. 
 H, and the said E. H. should survive the said j'^.f j^^^;;;^ 
 C. H, then from and after the several deceases of E- H. shall 
 
 .1 -i/^TT iA/ri- -i" m J • survive C. H, 
 
 the said C H. and M. his wire, lo the use, intent, then 
 and purpose that the said E. H. shall thenceforth That E. H. 
 during the term of her natural life have, receive, aiTannuUy^of 
 take, and enjoy one annual sum or yearly rent-?jp*^^* ^'^'"^^^" 
 charge of ^300 of lawful money, &c. to be yearly 
 issuing and payable out of, and charged and 
 chargeable upon all and singular the said manors, 
 lands, and hereditaments hereby released, or 
 otherwise assured, or intended so to be, and to be 
 payable and paid to the said E. H. and her assigns 
 at or in the common dining hall of the Inner Tem- 
 ple, London, on the 5th day of April, the 5th day 
 of July, tlie 1 0th day of October, and the 5th day
 
 418 APPENDIX. 
 
 of January, by even and equal portions, without 
 any deduction or abatement whatsoever thereout, 
 or out of any part thereof, for or in respect of any 
 taxes, charges, rates, impositions, or outgoings 
 whatsoever, at any time or times heretofore, and 
 to be at any time, and from time to time, hereaf- 
 ter, taxed, charged, assessed, or imposed on the 
 said manors, lands, and hereditaments, hereby 
 released, or otherwise assured, or intended so to be, 
 or any of them, or any part thereof, or on the said 
 annual sum or yearly rent charge of ^,'300 of 
 any part thereof, or on the said E. H. or her as- 
 signs, in respect of the same, either by authority 
 of Parliament or otherwise, or for or in respect of 
 any other matter, cause, or thing whatsoever; the 
 first payment of the said annual sum or yearly 
 rent charge of ^,100 to become due and be made 
 on such of the said da3's of payment as shall hap- 
 pen next after the decease of the survivor of the 
 in lieu of her said C. H. and jNI. his wife; and the same annual 
 ities. sum or yearly rent charge to be ui lieu, and tull 
 
 satisfaction and discharge of the then growing, 
 and also the future payments of the said annual 
 sums or veariy rent char^vs of £ and £ 
 
 and each or either of them, and also in full satis- 
 faction and discharge of any claim, annuity or an- 
 luiities, to which the said \\. II. is, or can or may 
 be entitled, iind^T riie said Avill ol' the said E. ]J.. 
 And if E. II. ////<•/ ill casL' the said \\. 11. should die in the 
 Hhalldi.be- jj,;. ,i,u(. of thesaid M. H. and the said M. IL 
 
 lore lU. II, 
 
 .irid M. H. should survive the said C. H, then from and after 
 
 Mliall survive , , , • i /-■< i i i t^ tt 
 
 c. II, then the several deceases of the said L. 11. and L. H, 
 jhiit.M.ii. y-^^ ^1^^ ^^^^ intent, and purpose that the said 
 
 rii;iy receive ' ' ' 
 
 i*ri aiuiuity of ;\1. ]{. shall tli'iicelurtli. diuinu' the term of her
 
 RECOVERY DEED. 419 
 
 natural life, have, receive, take, and enjoy one .'soo/. for her 
 annual sum or yearly rent charge of ^^500 of law- '^" 
 ful money, &c. to he yearly issuing, going, and 
 payable out of, and charged and chargeable upon 
 all and singular the said manors, lands, and here- 
 ditaments hereby released, or otherwise assured, 
 or intended so to be, and to be payable and paid 
 to the said M. II. or her assigns at or in the com- 
 mon dining hall of the Inner Temple, London, on 
 the fifth day of April, the fifth day of July, the 
 tenth day of October, and the fifth day of January, 
 by even and equal portions, and without any deduc- 
 tion or abatement on any account whatsoever, as 
 aforesaid ; the first payment of the said last-men- 
 tioned annual sum or yearly rent charge of ^500 
 to become due, and to be made on such of the 
 said last mentioned days of payment, as shall 
 happen next after the decease of the survivor of 
 the said C. II. and E. 11. And the same <m-J^^ll^/^;_ 
 uual sum or yearly rent charge of ^oOO, together ""i^}' "^'"'J^-H. 
 
 . , , /' , 1 • • "^ 1 1 ' ... to he in lieu 
 
 With the estate hereby hmited to the use or the of duwcr, &c. 
 
 said M. H. for the joint lives of the said M. II. 
 
 and E. II, to be in full satisfaction for the dower 
 
 and thirds at common law, and also the freebench 
 
 and customary estate, and all other estates, claims, 
 
 and demands which the said M. H. hath or can, 
 
 shall or may claim to have, of, in, to, and out of 
 
 all freehold, copyhold, and customary estates 
 
 of which the said C II. hath been, or shall or 
 
 may be seised at any time, and from time to time, 
 
 during the coverture of the said AI. II. by him. 
 
 Ajid to this farther use, intent, and purpose. Tower of JIs- 
 
 that wlicn and as often as it shall happen that the dSng^ aimui^ 
 
 said annual sum or yearly rent charge of £:}CA)^^-^°'-'^''^^'
 
 420 APPENDIX. 
 
 and joo/. hereby limited to the use of the said E. H. and 
 Jj2"j.g^^ ^^y^ her assigns, or the said annual sum or yearly rent 
 charge of £500 hereby limited to the use of the 
 said M. H. and her assigns, or any quarterly pay- 
 ment of the same, respectively shall be in arrear, 
 or unpaid in the whole, or in part, by the space 
 of fourteen days next over or after any one 
 of the days or times whereon the same respec- 
 tively are hereinbefore appointed to be paid, 
 as aforesaid ; then, and so often and from time 
 to time it shall, and may be lawful to, and for 
 the said E. H. and her assigns, in respect of 
 her said annual sum, or yearly rent of j^SOO, and 
 to and for the said M. H. and her assigns, in 
 respect of her annual sum or yearly rent of £500, 
 into, and upon the said manors, messuages, lands, 
 and hereditaments, out of which the same annual 
 sums or yearly rents of ^^300 and £500 respec- 
 tively are to be issuing and payable, or into and 
 upon any part thereof to enter, and distrain for 
 the same annual sums, or yearly rents respectively, 
 and all the arrears thereof respectively, and 
 the distress and distresses then and there found 
 to detain, manage, sell, and dispose of, in the 
 same manner in all respects, and upon the same 
 terms as distresses for rents reserved upon leases 
 for years may be, and are or ought to be detained, 
 managed, sold, and disposed of, and as if the said 
 annual sums, or yearly rents of ^.'3()0 and £500 
 respectively were rents reserved upon leases for 
 years, to the intent that the said E. H. and her 
 assigns, and also the said M. H. and her assigns, 
 ' shall thereby, therewith, or otherwise be respec- 
 tively and fully satisfied, and paid the said annual
 
 m arrear. 
 
 RiTCOVEKY DEED. 421 
 
 sums, or yearly rents of £300 and ^^500, and all 
 the arrears thereof, respectively, and all costs, 
 charges, and expences, to be occasioned to them 
 respectively by the nonpaymont tiHTcof at the 
 days or times hereinbefore a})pointed for the pay- 
 ment of the same respectively. And to Mw //rr-Po^er of en- 
 
 M, * 1 p • ^^^' for se- 
 
 er itse, intent, and purpose, that irom trnie to diriMg annnU 
 
 time when, and as often as it shall happen that ^^^ "q^^^^* 
 the said annual sums, or yearly rents of £300 )^'heii 21 days 
 and ^500 respectively, or any part of the same 
 respectively, shall be in arrear or unpaid by the 
 space of twenty-one days, next over, or after any 
 or either of the said days whereon the said sums, 
 or rents respectively are hereinbefore appointed 
 to be paid, as aforesaid ; then, and so often, and 
 from time to time, and either upon or at any time 
 after the expiration of the said twenty-one days, 
 it shall and may be lawful to and for the said 
 E. H. and her assigns, in respect of her said an- 
 nual sum or yearly rent of £300, and to and for 
 the said M. H. and her assigns, in respect of her 
 said annual sum or yearly rent of £500, (nlthough 
 no formal or legal demand shall have been made 
 of the said annual sums, or yearly rents of £30d 
 and £500 respectively,) into and upon the said 
 manors, messuages, lands, and hereditaments, out 
 of which the said annual sums, or yearly rents 
 are to be issuing and payable as aforesaid, or into 
 and upon any part of the same manors, messuages, 
 lands, and hiixditaments in the name of all the 
 same manors and hereditaments, to enter, and 
 the same to have, hold, and enjoj^ and the rents 
 and profits thereof, and of every part thereof to 
 receive and take, to and for their own use and 
 
 VOL. I. G G
 
 422 
 
 APPENDIX. 
 
 benefit, until they respectively shall thereby or 
 therewith, or otherwise be fully satisfied and paid 
 the said annual sums or yearly rents of ^300 
 and ^500 secured to them respectively, and 
 all the arrears thereof respectively, and also so 
 much of the same annual sums, or yearly rents 
 respectively as from time to time shall incur and 
 grow due to them respectively during such time 
 as they respectively shall continue in possession 
 of the premises after every such entry as aforesaid, 
 and also all such costs, losses, charges, damages, 
 and expences, as shall be occasioned by nonpay- 
 ment of the said annual sums or yearly rents re- 
 spectively, or of any part thereof, at the days and 
 times aforesaid ; and such possession, when taken 
 After deter- to be without impeachment of waste. And from 
 previous and after the determination of the estates hereby 
 estates, limited to the use of the said C. H. and his as- 
 
 during 
 
 sio-ns for his life, and to the said JM. H. 
 
 and subject 
 to the annui 
 ties. 
 
 the joint lives of the said M. H. and E. H. ; and 
 su])ject nevertheless to the said annual sums, or 
 yearly rent charges of ^£'300 and £500, provided 
 for the said E. H. and M. H. respectively as afore- 
 said, and to the powers and remedies hereby 
 given, limited, and created for securing and enforc- 
 To the use of ing the payment of the same respectively ; To the 
 use of the said W. W, his executors, administra- 
 tors and assigns, for and during the term or time 
 of two hundred years, to be computed from the 
 day next before the day of the date of these pre- 
 sents, and fully to be complete and ended, with- 
 out impeachment of or for any manner of waste, 
 Upon ihc. Irusts, nevertheless, and for the ends, in- 
 tents, and purposes hereinafter ex])ressed, declared, 
 
 W.W for 
 200 years.
 
 RECOVERY DEED. 423 
 
 ed, and contained of and concerning the same 
 
 term. And from and after the determination ofRemainder. 
 
 the said term of two hundred years, and in the 
 
 mean time subject thereto, and to the trusts 
 
 thereof, ^To the use of such person or persons, t^ ^jj^ ^g^ ^f 
 
 for such estate and estates, and for such interest ^"^j)Pf^°"^„ 
 
 as C. H. shall 
 
 and interests, by way of annuity, rent-charge, or by deed ap- 
 
 otherwise, and in such manner, parts, shares, and^'^"^* 
 
 proportions, and upon such trusts, and for such 
 
 ends, intents, and purposes, and charged and 
 
 chargeable in such manner, and either absolutely 
 
 or conditionally, and subject to such powers of 
 
 revocation and of new appointment, and other 
 
 powers, provisoes, conditions, restrictions, 
 
 limitations, declarations, and agreements, as the 
 
 said C. H. at any time or times, and from 
 
 time to time, by any deed, or deeds, to be 
 
 sealed and delivered by him in the presence of, 
 
 and attested by one, two, or more credible witness 
 
 or witnesses, shall direct, limit, or appoint, ^^^c? in default of 
 
 . , . . . appointment, 
 
 m default of such dn'ection, limitation, and ap- 
 pointment, and in the mean time, and from time 
 to time, until the same shall take effect, and from 
 time to time subject to such uses, estates, trusts, 
 charges, and interests as shall have been directed, 
 limited, or appointed by the said C. H. ; To ^/te To the use of 
 use of C. H. of , son of C. H. late of, &c. Esq. ^'j. ^f^ "'"'*^' 
 deceased, for and during the term of his natural 
 life, without impeachment of waste. And from and Remainder 
 after the determination of that estate by any means 
 To the use of the said G. S. and his heirs, during To the use of 
 
 G. S. for life 
 ot C. H. Jun, 
 * Sometimes it may be advisable that a joint power shall to preserve 
 precede the other uses. 
 
 G C S
 
 424 
 
 APPENDIX 
 
 contingent the iiatitral life of the said C. H. of Upon 
 
 reuiauiders. ' 
 
 trust to support and preserve the contingent uses 
 and estates hereinafter limited from being defeated 
 or destroyed, and for that purpose to make entries 
 and bring actions, as the case shall require, yet 
 nevertheless to permit and suffer the said C. H. 
 of , and his assigns, during his life, to re- 
 
 ceive and take the rents and profits of the same 
 manors, lands, and hereditaments, to and for his 
 Eemainder, and their own use and benefit. And from and after 
 To the use of the dcccasc of the said C. H. of then To the 
 
 c'i'Vm!''^usc of the first son of the body of the said C. I J. 
 m tail male, ^f ^ lawfully begotten, or to be begotten, 
 
 and the heirs male of the body of such first son 
 Remainder, lawfully issuing. Ajtd ou failure of such issue, 
 To the use of To the use of the second, third, fourth, fifth, and 
 and other sons ^^^ "^^^^ every Other, son and sons of the body of 
 ofc. H. Jun. the said C. H. of , lawfully bcootten and to 
 
 successively " . . ' 
 
 in tail male, be begotten, severally, and successively, in re- 
 mainder, one after the other, as they and every 
 of them respectively shall be in seniority of age 
 and j)riority of birlh, and the several and respec- 
 tive heirs male of the bod>', or several and re- 
 specti\'e bodies of the same son and sons respec- 
 tively, lawfully issuing, every elder of the same 
 sons, and the heirs male of his body issuing be- 
 ing always to be preferred to, and to tak(^ before 
 t^very younger of the same sons, and tiie heirs 
 Remainder, male of liis body issuing. And on failure of such 
 To the use of if^^iif", To the iisc of tlic persou or pei*sons who at 
 the poison ^|,j_. ^_]^..^^|j Qj- ^j^^, survivor of the said C II. party 
 
 .insweniiff the ^ 
 
 (ies.-ii!)iioiH)f jicrcto, aud C. ]l. of shall be tlie heir, or 
 
 Im'r at law to . . , • i / . i i .1 , 1 . i 
 
 c;.H.,hifcc. «:o-ii('irs or the said ( . II. party hereto, and the 
 iicirs, or assigns of the same person or person,
 
 KECOVEKY DEED. 425 
 
 respectively, to be divided between the same per- 
 sons, it' more than one, as tenants in common, 
 and not as joint-tenants, and in the same shares and 
 proportions, either equally or unequally, as they 
 would have been intitled to a real estate descend- 
 ing from the said C. H. party hereto, and vesting 
 at that time in them as his co-heirs. And it z^Dlclara- 
 hcreby declared and agreed^ by and between the term ot 200 
 parties to these presents as far as they res})ective-^'S'^''V^ ^^" 
 ly are interested, that the said term of two hundred 
 years hereby limited to the use of the said W. W^, 
 his executors, administrators, and assigns, is 
 limited to him and them upon the several trusts, 
 and for the several ends, intents, and purposes 
 hereinafter expressed and declared of and con- 
 cerning the same, (that is to say) Upon trust for Upon trust for 
 securing to the said E. H. and M. H. respec-rejruiar'^pay- 
 tively, and their respective assions, the due and "^'^"^f/ *H 
 
 "^ ^ o ' annuities 01 
 
 regular payment of the said annual sums or yearly 300/. and 
 rents of ^^300 and £500 hereby limited to the use" '" 
 of the said E. H. and M. H. respectively, when 
 and as the same annual sums or yearly rents res- 
 pectively shall become due and payable; and for and after 28 
 that purpose in case, and when and as often as '^^"^'^ ' 
 the said annual sums or yearly rents of ^300 
 and £500 respectively, or any payment thereof 
 respectively, shall be in arrear and unpaid, in 
 the whole, or in part, by the space of twenty- 
 eight days next after any one of the days or 
 times hereinbefore appointed for payment thereof 
 respectively, then and in that case, and from 
 time to time as often as it shall so happen, it 
 shall and may be lawful to and for the said W. W, 
 his executors, administrators, or assigns, by and
 
 426 APPENDIX. 
 
 out of the rents, issues, and profits of the said 
 hereditaments and premises hereby hmited to the 
 use of the said W. W. as aforesaid, for the said 
 term of two hundred years ; or by mortgage or sale 
 of the said hereditaments and premises, or of a 
 competent part thereof, for all or any part of the said 
 term of two hundred years ; or by bringing actions 
 against, or making distresses upon, all and every 
 or any of the present or future tenants of the said 
 hereditaments, and premises for the recovery of 
 the rents then in arrear ; or by making entries 
 upon the same hereditaments and premises ; or by 
 all and every or any one or more of the said ways 
 and means, or by any other lawful and reasonable 
 to raise the ways and means whatsoever, to levy and raise such 
 attendant^ex- arrears of the said aimual sums or yearly rents 
 pences. of £300 and a^500 respectively as from time to 
 
 time shall become due, and remain unpaid, 
 together with all such damages, costs, charges, 
 and expences, as the said E. H. and M. H. re- 
 spectively or their respective assigns shall incur, 
 expend, sustain, or be put unto by reason of the 
 nonpayment of the said annual sums or yearly 
 rents of £300 and £500 respectively, or any 
 part thereof respectively, together with the 
 costs, charges, and expences attending the exe- 
 cution of the trusts of the said term of two hun- 
 And in tnisttodred ycars. A)id upon this further trust that the said 
 miiiinirsothe |y ^y hjg exccutors and administrators, do and 
 
 triisUe his ' 
 
 expences, shall in the first place retain and reimburse to and 
 
 for himself and themselves, the costs, charges, and 
 
 expences of and attending the execution of the 
 
 amltnpayto trusts hereby reposed in him or them; and in the 
 
 anuuiuinu ncxt jjliicc ^iiiy diid satisfy to the said K. H. her
 
 RECOVERY DEED. 427 
 
 executors, administrators, or assigns, all arrears their several 
 of her said annual sum or yearly rent of a^300, succession." 
 and all costs, charges, damages, and expences 
 which she and they shall have incurred, suffered, 
 borne, sustained, and laid out by reason or on ac- 
 count of the nonpayment of her said annual sum, 
 or yearly rent of .^300, or in or about recovering 
 and enforcing the payment of the same ; and after- 
 wards do and sliall pay and satisfy to the said 
 M. H, her executors, administrators, and assigns, 
 all arrears of her said annual sum or yearly rent 
 of <£oOO, and all costs, charges, damages, and ex- 
 pences which she and they shall have incurred, 
 suffered, borne, sustained, and laid out by reason 
 or on account of the nonpayment of the said last 
 mentioned annual sum or yearly rent of ^500, or 
 in or about recovering and enforciiig the payment 
 of the same. And upon this farther trusty that after And upon 
 the determination of the several estates hereby ^"[^1^^)^^^^^^'^ 
 limited to the use of the said C. H, party hereto, ^ennination 
 for his life, and to the said M. H. for the jointof c. H. and 
 lives of herself, and the said E. II, and thence- J,^\?'/'"^^'^^ 
 
 ' C H. Jun. 
 
 forth until the said C. H, of shall attain shall attain 
 
 25 
 
 his age of twenty-five years, or the time shall ' 
 
 arrive when he would have attained that age in case 
 
 he had lived, (and subject and without prejudice to 
 
 the power of appointment hereinbefore contained) 
 
 the said W„ W, his executors, administrators, or to receive the 
 
 assigns, do and shall receive all the rents and annual ^"'^^^^'*^'^^"^' 
 
 income of the said manors, lands, hereditaments, 
 
 and premises comprised in the said term of two 
 
 hundred years, which shall remain after satisfying 
 
 the said several annuities of ^,300 and .^500, 
 
 <luring the continuance of the same annuities re-
 
 428 APPENDIX. 
 
 and apply the spectivel}^ ; and do and shall apply the same sur- 
 samemkeep- ^^^^ rcnts in keeping down the interest of the in- 
 
 in: down the ' X o 
 
 interest of cumbranccs, (if any,) then affecting the premises, 
 
 ii.i I nibrances, i i • v i ' • i . i 
 
 and red' icing and also HI cliscnarging SO much and such part 
 
 the principal, ^yf ^^le principal money of the same incumbrances 
 
 as can be satisfied out of any rents which shall 
 
 remain after discharging such interest as aforesaid. 
 
 And a^'^r C. And ujjoii this further trust, that after the said 
 
 at^a-n'-^I^^ C. H, of shall have attained the said 
 
 fn- til a-mui- tweuty-Hve ycars, or the time shall arrive when 
 
 tifs shallbeinhe, if living, would have attained that age, and 
 
 ' thenceforth in the mean time and until the said 
 
 annual sums or yearly rents of ^€300 and ^^oOO 
 
 or one of them, or some quarterly payment of 
 
 them or one of them shall be in arrear or unpaid, 
 
 in the whole, or in part, by the space of twcnt}'- 
 
 eight days after the time hereby api)ointed for pay- 
 
 and also when ntent of the same ; and also thenceforth and from 
 
 annuities shall , • , .• i , ,-, 11^.1 
 
 be satisfied,) ^^'"^^ ^^ Ume vvlieu find as otten as all the arrears 
 of the said annual sums or yearly rents of j^JOO 
 and .-^oOO or such of them as shall be subsisting, 
 and the said costs, charges, damages, and expences 
 
 to permit the fi[y^\\ he raised, or fully satisfied and paid ; the 
 
 persons in re- . 1 i ■ • 1 
 
 maiifirto said W. VV, his executors and administrators, do 
 
 and shall permit and suffer such person or persons 
 
 as for the time being shall be entitled to the re' 
 
 version or remainder of the same hereditaments 
 
 and premises, comprised in the said term of two 
 
 hundred years, expectant on the determination of 
 
 the same term, to receive and take the rents and 
 
 jirofits of the same hereditaments and premises, to 
 
 And to pay and for his and their own use and benefit. And 
 (, ; .r-iouH in y,^(,^j f/,ig further trust, that the said W. W, his 
 
 niiminder the ' ' , 1 ■ • . ^ i i i u i- 
 
 money re- cxtcutors and administrators, do and sliali, from 
 
 re( five the 
 rents
 
 KECOVERY DEED. 429 
 
 time to time, after paying the said annual sums ormaininginthe 
 yearly rents of a^30() and j^oOO when and as the^^^J^'J^j;^"^^'*' 
 same respectively sliall become due and payable, 
 and tlso after the said C H. of shall attain his 
 a>»e Of twenty-fiv^e years, or after the time when 
 h< , if living, would have attained that age; and 
 also alter paying, deducting, and retaining such 
 costs, charges, damages, and expences as afore- 
 said ; pay to the person or persons who shall be 
 entitled to the reversion or remainder of the said 
 hereditaments and premises, comprised in the 
 said term of two hundred years, expectant on the 
 determination of the said term, or to whom he, 
 she, or they shall direct or appoint, the money, 
 (if any,) which from time to time shall remain in 
 the hands of the said V\^. W, his executors or ad- 
 ministrators. Provided always, and it is hereby pro^igo for 
 declared and agreed, by and between the parties cesser ot the 
 
 , ' term ou pei- 
 
 to these presents, that after the decease of the tormance of 
 survivor of the said E. H. and M. PI, and pay-^^^ ''"'^'• 
 ment to them respectively, and their respective 
 executors, administrators, or assigns of the said 
 annual simis or yearly rents of ^300 and £500 
 and all the arrears thereof respectively ; and also 
 after the said C. H, of shall have attained 
 
 his age of twenty-five years, or the time shall 
 arrive when he, if living, would have attained that 
 age ; and payment of all costs, charges, damages, 
 and expences as aforesaid; and also after full 
 performance or discharge of the trusts of the said 
 term of two hundred years ; then and thenceforth 
 the said term of two hundred years, of or in the 
 hereditaments and premises comprised therein, or 
 so much of the same term as shall not be disposed
 
 430 APPENDIX. 
 
 of under the trusts hereby declared concerning 
 the same term, shall cease, determhie, and be void, 
 but without prejudice to any sale, mortgage, or 
 disposition, previously made of all or any part of 
 the hereditaments and premises comprised in the 
 said term of two hundred years, for any of the pur- 
 poses hereinbefore mentioned, in pursuance of the 
 trusts hereinbefore declared concerning the same 
 Proviso for term. And it is hereby provided, declared and 
 
 iademnitj' of , , . , 
 
 persons pay- agreed, by and between the parties to these pre- 
 
 thf tTrtee?'' ^^^^^^' ^"^^ ^h^ s^'d C. FI. party hereto, doth here- 
 b}^ direct and appoint, that the person or persons 
 who shall pay to the said W. W, his executors, 
 administrators, or assigns, all or any part of the 
 rents, issues, and annual profits of the said manors, 
 lands, and hereditaments hereby released, or other- 
 wise assured, or intended so to be, or advance any 
 money upon any sale or sales, or the security of 
 any mortgage or mortgages of the same manors, 
 lands, and hereditaments, or any part of the same, 
 or otherwise pursuant to the trusts hereinbefore 
 contained, shall not be obliged or required, to see 
 the appHcation of the said rents, issues, profits, and 
 money respectively, or any of them, or be answer- 
 able or accountable for the misapplication or nori- 
 Keceiptsof application of the same. And that all receipts 
 trustee to ^yhjch shall be o-iven by the said W. W, his exe- 
 
 ne good (lis- ~ ^ 
 
 charjj'cs. cutors, administrators or assigns, for all or any 
 part of the said rents, issues, profits, and money 
 respectively, shall be good and sufficient acquit- 
 tances and discharges, for the sum and sums of 
 money which by the said receipts respectively, 
 and evcTy of them, shall be acknowledged or ex- 
 pressed to be, or to have been received. And that
 
 RECOVERY DEED. 431 
 
 all sales and mortgages which shall be made, and and sales, &c. 
 contracts tor sale which shall be entered into, andj^^^bg^^" 
 conveyances which shall be executed, by the said 
 W. W, his executors, administrators, or assigns, 
 shall, without any further consent or concurrence 
 by, or on the part of the person or persons who for 
 the time being shall be intitled in reversion or re- 
 mainder as aforesaid, be binding and conclusive 
 on them respectively, in the same manner to all 
 intents and purposes as if such sales or mortgages 
 had been made, and contracts for sale entered into, 
 and conveyances executed by him or them re- 
 spectively. Provided a Iw a i/ s 2did it \s hereby de- power of 
 clared and agreed, by and between the parties to^^^^"^^^^^ 
 these presents, that notwithstanding any of the 
 uses hereinbefore declared, or the powers herein- 
 after contained ; but subject and without preju- 
 dice to any of the said annuities during the con- 
 tinuance of the same respectively, and also sub- 
 ject and without prejudice to the said powers 
 and remedies by distress and entry for recovering 
 and enforcing the payment of the same annuities ; 
 it shall or may be lawful to and for the said C. H. 
 party hereto, during his life, and after his decease 
 to and for the said M. H, during the joint lives of 
 herself and the said E. li, and after the determi- 
 nation of their several estates, to and for the said 
 C. n, of during his life, and also to and 
 
 for the guardian or guardians in socage for the 
 time being of any infant son of the said C. H. 
 the son, who for the time being shall be tenant in 
 tail in poss^^ssion under the limitations herein- 
 before contained during the minority of the same 
 son, or to or for the trustee or trustees, for the
 
 432 APPENDIX. 
 
 time being, of the said term of 200 years, when 
 there shall not be any such guardian or guardians, 
 or such guardian or guardians siiall refuse or declme 
 to act in the execution of this power, by indenture 
 or indentures to be sealed and delivered by him, 
 her, or them respectively, in the presence of and 
 attested by two or more credible witnesses, to 
 limit and appoint, by way of demise or lease, all 
 or any part or parts of the said manors, lands, 
 hereditaments, and premises hereby released, or 
 otherwise assured, or intended so to be, with the 
 appurtenances, except, &c. to any- person or per- 
 sons for any term or number of years not exceed- 
 ing twenty-one years, from the day of the date 
 of the indenture of limitation or appointment by 
 way of demise or lease ; and to take effect in 
 possession either immediately, or within three 
 years ; so as there shall be reserved on every such 
 limitation or appointment by way of demise or 
 lease, the best or most improved yearly rent or 
 rents, to be incident to the immediate reversion 
 oi' the hereditaments so to be limited or appoint- 
 ed, that can or may be reasonably had or gotten 
 for the same, without taking any fine, premium, 
 or foregift, for making thereof; and so as there 
 shall be contained in each such indenture of limi- 
 tation or appointment by way of demise or lease, 
 a condition of re-entry for non-payment of the 
 rent or rents, to be thereby respectively reserved, 
 by the sj^ace of twenty-one days after the same 
 rents resp(-'Ctively shall become due and payable; 
 and so as tlu^ person or persons respectively to 
 whom each such liniitation or appointment by 
 \\A\ or in the nature of demise or lease shall be
 
 RECOVERY DEED. 433 
 
 respectively made, shull execute a counterpart 
 ot the iiidentiire or indentures to be made to him, 
 her, or them respectively, and thereby covenant 
 for the due payment of the rent or rents, to be 
 thereby respectively reserved ; and so as the 
 person or persons respectively to whom each such 
 linn'tation or appointment shall be made, his, her, 
 or their executors, administrators, or assigns, 
 shall not by any clause or words to be contained 
 in any such indenture or indentures, be made 
 dispunishable for waste, or exempted from pu- 
 nishment for committing waste. Provided also, Vower fur E. 
 and it is hereby declared and agi-eed by and with*^J3oGo!^ 
 between the parties to these presents, that, sub- 
 ject and without prejudice to the said power of 
 leasing ; but notwithstanding any of the uses, 
 estates, or charges hercb}^ limited or created^ 
 (except the leases to be made as aforesaid) ; it 
 shall or may be lawful to and for the said E. H. 
 by any deed or deeds, instrument or instruments 
 in writinp^, to be sealed and delivered by her in 
 the presence of two or more credil)le witnesses, 
 and to be attested by the same witnesses, or by 
 her last will and testament in writing, or anv 
 writing in the nature of her last will and testa- 
 ment, or any codicil or codicils thereto, to be 
 respectively signed, published, and declared by 
 the said E. H, in the presence of thi-ee or more 
 credible witnesses, and to be attested in her pre- 
 sence by the same witnesses, to raise any sum 
 or sums of money, not exceeding £3000, for the 
 benefit of any person or persons, by charging tiie 
 same on all or any of the hereditaments mentioned 
 or comprised in the said indenture of the
 
 434 APPENDIX. 
 
 day of January last, (bting part of the heredita- 
 ments hereby released, or otherwise assured, or 
 intended so to be,) and that lor securing such 
 money with interest for the same, at any rate not 
 exceeding £5 per cent, per annum, it shall or may 
 be lawful to and for the said E. H, by the same 
 deed or deeds, instrument or instruments, will or 
 wills, codicil or codicils, or by any other deed or 
 deeds, instrument or instruments in writing, or 
 by her last will and testament in writing, or any 
 writing in the nature of her last will and testa- 
 ment, or any codicil or codicils thereto, to be 
 executed and attested as aforesaid, to limit and 
 appoint the hereditaments, so to be charged, to 
 any person or persons whomsoever, for any term 
 or terms of years, whatsoever ; so as the estate or 
 estates to be limited or appointed as aforesaid, 
 shall be made subject to redemption on payment 
 at an appointed day or time, days or times, of 
 the money so to be charged, and the interest 
 thereof, by the person or persons who shall be 
 intitled to the same hereditaments in remainder 
 or reversion immediately expectant on the ex- 
 piration of the same term or terms of years respec- 
 rowerfmC. tively. Provided also, and it is hereby further 
 withVi 0^000. declared and agreed by and between the parties 
 to these presents, that subject and without preju- 
 dice to the said power of leasing ; and also sub- 
 ject and without prejudice to the power hereby 
 given to the said E. II. to raise any sum not 
 exceeding £30i)0 as aforesaid ; and subject and 
 without pnjudicre to the term of years, if any, 
 which shall be limited under and by virtue of that 
 power; and notwithstanding any other of the
 
 RECOVERY DEED. 435 
 
 uses, estates, or charges hereby limited or created ; 
 it shall or may be lawful to and for the said C. H. 
 party hereto, by any deed or deeds, instrument 
 or instruments in writing, to be sealed and deli- 
 vered by him in the presence of tw^o or more 
 credible witnesses, and to be attested by the same 
 witnesses, or by his last will and testament 
 in writing, or any codicil or codicils thereto, 
 to be respectively signed, published, and de- 
 clared by him in the presence of three or more 
 credible witnesses, and to be attested in his 
 presence by the same witnesses, to raise any 
 sum or sums of money not exceeding j^ 1 0,000, 
 for his own benefit, or the benefit of any other 
 person or persons, by charging the same on all 
 or any of the hereditaments, hereby released, 
 or otherwise assured, or intended so to be : and 
 that for securing such money with interest for 
 the same, it shall and may be lawful for the said 
 C. H. party thereto, by the same deed or deeds, 
 instrument or instruments, will or wills, codicil 
 or codicils, or by any other deed or deeds, instru- 
 ment or instruments in writing, or by his last will 
 and testament, or any codicil or codicils thereto, 
 (to be executed and attested as aforesaid,) to 
 limit and appoint the hereditaments, so to be 
 charged by him the said C. H. party hereto as 
 aforesaid, to any person or persons w^homsoever 
 for any term or number of years whatsoever ; so 
 as the estate or estates to be limited or created by 
 the said C. II. party hereto as aforesaid, shall be 
 made subject to redemption on payment at an 
 appointed day or time, days or times, of the 
 money and interest so to be charged by the said
 
 436 
 
 APPENDIX. 
 
 C. H. party hereto, as aforesaid, by the person 
 or persons who shall be entitled to the heredita- 
 ments to be comprised in the same term or term* 
 respectively, in remainder or reversion, immedi- 
 ately expectant upon the expiration of the same 
 whok' * '^ ^^^'"^ ^^ terms of years respectively. Provided 
 ^10,000 shall further, and it is hereby declared and as^reed by 
 
 not be charq- ' , . * , '^' i " 
 
 edbyC. H.) and between the parties to these presents, that 
 in case the full amount of the said sum of i ] 0,000 
 shall not be charged by the said C. H. party 
 hereto, under the power hereby given or reserved 
 to him in that behalf, then subject and without 
 prejudice to the said annuities, and the several 
 other powers hereinbefore contained, and the 
 estates and interests which shall be limited, 
 charged, or created under, and by virtue of the 
 same powers ; but notwithstanding, any of the 
 
 ior.M.n. yg(.j. hereinbefore limited, it shall or may be 
 
 (iiotwitli- 
 
 standiiig- lawfui to and for the said M. H, either in the 
 co\er,iie,) hfc-time or after the death of her said husband, 
 and notwithstanding her coverture, by any deed 
 or deeds, instrument or instruments in writing, 
 to be sealed and delivered by her in the presence 
 of two or more credible witnesses, and to be at- 
 tested by tlie same witnesses, or by her last wilt 
 and testament in writing, or any writing in the 
 nature of, or })uri!ortiiig to be her last will and 
 testament, or any codicil or codicils thereto, to be 
 respectively signed, j)ublished, and declared by 
 her in the prestnce of three or more credible 
 witnesses, and to be attested in her presence by 
 the same witnesses, and t ither for her own b( nefit 
 tooharpt' or the benefit of any jjerson or persons Mhon;so- 
 withaiiysum ^.y^^.p^ jq cliargc any sum or sums of money on all
 
 RECOVERY DEED» 437 
 
 or any ot" the hereditaments hereby released, or 
 otherwise -assured or intended so to be, together 
 with interest for the same, tioni or at any time 
 after the death of the said C. II. party hereto, so ""\ff^^^*''^"f? 
 
 ' •' sC 5,000, 
 
 as the principal sum or sums of money tO' be 
 charged by the said M. II. shall not exceed 
 £6,000, or together with, and inclusive of the or including 
 principal money to be charged by the said C. Il.ed by'c. H. 
 party hereto, shall not exceed the sum of ^ U>,00(), ^''^^J'J^^J-''''"*? 
 and that for securing the money to be charged bv 
 the said iVI. H. as aforesaid, with interest for tlie 
 same, it shall or may be lawful to and for the saixl 
 M. II. by the stmie deed or deeds, instrimient or 
 instruments, will or wills, writing or writings, 
 codicil or codicils, or by any other deetl or deeds 
 instrument or instruments in writing, will or wills, 
 writing or writings, or codicil or codicils, to be 
 executed and attested as aforesaid, to limit an'd 
 appoint the hereditaments so to be charged by 
 the said M. H. to any person or persons whomso- 
 ever for any term or terms of years whatsoever ; 
 so as the estate or estates to be limited or created 
 by the said M. H. as aforesaid, shall be redeema- 
 ble on payment at an appointed day or time, days 
 or times, of the money and interest so to be 
 charged by the said M. II. as aforesaid, by the 
 person or persons who shall be intitled to the 
 hereditaments to be comprised in the same term 
 or terms respectively, in remainder or reversion 
 immediately expectant on the determination 
 of the same term or terms respectively. And Kmtal that 
 WHEREAS either under the said will of the said uued to col 
 K. H, or otherwise, the said C. H. party hereto Py'^^''^ T^" 
 
 . J •,.,,. . , . , snages, &c. 
 
 is seised or intitled in equity to the said tw^o mcs- for 3 lives, 
 suages, and two yard lands and toft of land in the 
 
 VOL. I. H H
 
 438 APPENDIX. 
 
 saul parish of E. \vbich are copyhold and held 
 by grant from the Deau and Chapter of W, tor 
 the hvcs of J. C. the said C. H. of , and J. W. 
 
 Indenture NoW THIS I>DENTURE ALSO WITNESSETH, and 
 
 andc h!"^"' it is hereby granted, dechired, and agreed, and 
 covenants, tj^g Said C. H. party hereto, doth hereby for him- 
 
 that he %\ ill "^ ' . . 
 
 surrender self, his heirs, executors, and admniistrators, 
 
 crjyholls covenant with the said G. S. his executors and 
 administrators, that he the said C. H. party 
 hereto, and his trustees shall or v^ 111 at the next 
 court, to be holden for the manor of which the 
 said copydiold messuages, lands, and premises are 
 parcel, either in person, or by attorney, surrender 
 into the hands of the lord or lords of the said 
 manor, according to the custom of the said manor, 
 the said two copyhold messuages, yard lands, and 
 toft of land, with the appurtenances, to the intent 
 that the same may be regranted to the said G. S. 
 
 that the same i^^d his licirs for the lives of the said J. C, C H. 
 
 may be re- ^^- and J. VF, to be held by copy of court 
 
 granted ty ' . , 
 
 G. s. roll, according to the custom of the same manor, 
 
 by the rents, suits, and services therefore due 
 and of right accustomed to bo paid. And that 
 and till such in the mean time, and until such surrender shall 
 '™eised" be made, he the said V. W. party hereto, and 
 upon the },i^ trustees shall stand and be seised or possessed 
 
 trusts after , • • i , i 
 
 declared. ot, or intitled to the same copyhold messuages, 
 lands and premises, with the appurtenances, upon 
 the trusts, and for the ends, intents and purposes 
 hereinafter expressed and declared of and con- 
 
 Declaration cemin"- the same. And it is hereby declared by 
 
 that when , , '^ , . . ^ , -^ 
 
 cDpyholds and between the parties to tiiese presents, that 
 
 ^Jj^JJ^'j?^™'^" when and as soon as the said copyhold messuages, 
 
 lie will stand hinds, and j)reinises, shall be granted to the said 
 
 ' (i. S, ijis heirs ^u^S assigns, the said G. S, his heirs
 
 RECOVERY DEED. 43^ 
 
 and assigns, sliall stand and be seised, or possessed 
 
 of, or intitled to the same, Upon trust for such Upon tmsf 
 
 £■ I J. ^ 1 ^ i. ^or such per- 
 
 person or persons, tor such estate and estates, gojis, ..^cc. as 
 and for such ends, intents, and ■ purposes, and in ^- ^^ • ^''''ly'^ 
 vsuch manner and form, parts, shares, and pro- appoint, 
 portions, as the said C. H. party hereto, eitlier 
 absolutely, or with or without power of revoca- 
 tion and new appointment, by any deed or deeds, 
 instrument or instruments, in writing, under his 
 hand and seal, to be attested by two witnesses or 
 by his last will and testament, in writing, or any 
 codicil or codicils thereto, to be severally and 
 respectively signed, published, and declared by 
 him in the presence of two or mOre credible wit- 
 nesses, and to be attested in his presence by the 
 same witnesses, shall direct or appoint. y^;/</ for And in do- 
 want of such direction or appointment, and in iljj^^^gj^'' 
 the mean time and until the same shall be made, 
 and take effect, and subject to such interests as 
 trom time to time shall have been directed or 
 appointed, then Upon such trusts, and for such Upon trusts 
 
 J . ^ ^ , -11 , eorresnondins- 
 
 ends,, mtents, and purposes as wili correspond ^vith the usl-s' 
 with the uses, trusts, ends, intents, and purposes, "Vi'*^ ^'"'^" 
 
 _ ' , 11' iioij estates. 
 
 powers, provisoes, declarations, and agreements 
 hereinbefore limited, expressed, and declared of 
 and concerning the manors, lands, and heredita- 
 ments hereby released, or otherwis(3 assured or 
 intended so to be. Akd it is hereby ruR-Power toap- 
 T h e r PROVIDED, declared , and aoreed, by and F°"'^ ^ ''^'^' 
 
 ' ft ' J trustee. 
 
 l)etvveen the parties to these presents, that in case 
 the said W. W, or any trustee, who for the time 
 being shall be appointed under this present pro- 
 vision in his place, shall depart this life, or be 
 desirous of beins; discharsred of and from the afore- 
 said trusts, or shall oo to reside bevond seas, or 
 
 H H 2
 
 140 "" APPENDIX.. 
 
 sliall neglect or refuse to aet in tlie said trusts, 
 before the said trusts shall be fully executed and 
 performed, then and in that case, and as soon and 
 as often as the same shall happen, it shall and 
 may be lawful to and for the said C. IK party 
 hereto, his executors or administrators, to nomi- 
 nate any fit person to supply the place of the 
 trustee so dying, desiring to be discharged, or 
 going to reside beyond seas, or refusing or neg- 
 lecting to act as aforesaid. And that immediately 
 after every such appointment, the said trust es- 
 tates shall be conveyed, surrendered, assigned, 
 and transferred, so and in such manner that the 
 same may vest in such new trustee, and in his 
 heirs, executors, administrators, and assigns, upon 
 the trusts hereinbefore expressed and declared 
 of and concerning the; same respectively. And 
 that every such new trustee shall have or may 
 exercise the saane powers, privileges, and autho- 
 rities, as if he had been appointed a trustee by 
 these presents, and as. if his name bad been in- 
 serted in these presents, instead of the name of 
 Proviso for tlic trustee hereby appointed. And it is here- 
 ti^ustl^s.*^ *'^ HY DECLARED and agreed, by and between all 
 the parties to these presents, that the said trustee 
 hereby nominated and appointed, and the trustee 
 to be appointed in pursiumce of the provision last 
 hereinbefore contained, and the heirs,, executors^ 
 administrators, and assigns of such, trustee for the 
 time being, shall be charged and chargeable only 
 for such money as he and they shall actually re- 
 ceive by virtue of the trusts hereby reposed in him 
 and them ; and shall not be answerable or account- 
 able for any bankx^r, goldsmith, broker, or other 
 peryon or persons with whoni or in whose hands
 
 hecoverv dekd. 441 
 
 titiy part of tlu* said trust money sliall or may be 
 deposited or lodged lor sate eiistody, or otherwise 
 ill the exeeiitiou of the trusts lR'reinl)efore con- 
 tained, nor for any other misfortune, loss, or da- 
 mage which may happen iu the execution of the 
 aforesaid trusts or in relation thereunto, except 
 the same shall happiMi by oi* tlnough his or their 
 own defaialt respectively ; and that in case of any 
 such loss or darnage by wilful default, the same 
 shall be answered and made good by the person 
 ©r persons only by whose default the same loss or 
 damage shall happen or arise. And also that it 
 shall and may be lawful to and for the said trustee, 
 his heirs, executors, administrators, and assigns, 
 by and out of the money which shall come to his 
 or their hands by virtue of the trusts aforesaid, to 
 retain and reimburse to and for himself an\l them- 
 selves respectively, all costs, charges, damages, 
 and expences which he at^d they, or any of them, 
 shall or may suffer, sustain, expend disburse, be 
 at, or be put unto, in or about the execution of 
 the aforesaid trusts, or in relation thereunto. 
 And the said C. H. party hereto, doth hereby for Covenant by 
 himself, his heirs, executors, and administrators, farther as- 
 covenant and agree to and with the said G. S.^"''*"^'^' 
 his heirs and assigns, that he the said C. II. party 
 hereto, and his heirs, and all persons whosoever, 
 lawfully or equitably and rightfully claiming, 
 or to claim, any estate, right, title, trust, charge, 
 or interest, at law or in equity, of, in, to, out of, 
 or upon the said manors, lands, hereditaments, 
 and premises, hereby released, or otherwise as- 
 sured, or intended so to be, or any of them, 
 or any part thereof, by, from, under, or in trust 
 for him or themj shall and will, from time to time,
 
 APPENDIX. 
 
 and at all times hereafter upon every reasonable 
 request, and at the costs and charges in all 
 things of any person or persons intitled to any be- 
 nefit under the uses or trusts hereinbefore declared, 
 make, do, acknowledge, levy, suffer, execute, and 
 perfect, or cause or procure to be made, done, ac- 
 knowledged, levied, suffered, executed, and per- 
 fected, all such further and other lawful and rea- 
 sonable acts, deeds, devices, conveyances, and as- 
 surances in the law whatsoever, either by fine or 
 fines, with or without proclamations, common 
 recovery or recoveries, deed or deeds, inroUed or 
 not uirolled, release, confirmation, or other assur- 
 ances whatsoever, for further, better, more per- 
 fectly, lawfully, and absolutely or satisfactorily 
 granting, releasing, confirming, or otherwise assur- 
 ing the said manors, lands, hereditaments, and 
 premises hereby released, or otherwise assured, 
 or intended so to be, and every part and par(^el of 
 the same, with their and every of their rights, 
 royalties, members, and appurtenances, to the 
 uses, upon the trusts, and for tlie ends, intentSj 
 and purposes, and under and subject to the powers, 
 provisoes, declarations, and agreements herein- 
 before limited, expressed, and declared of and 
 concerning the same, or as near thereto as may be, 
 and the deaths of parties, the change of interests, 
 and other intervening circumstances will admit, 
 and according to the true intent and meaning of 
 these presents, as by the person or persons by 
 whom such request shall be made, or his, her, or 
 their counsel in the law shall be reasonably devised, 
 or advised, and required, and tendered to be made, 
 done, and executed. In witness, &c.
 
 RECOVERY DEED. 444 
 
 FORM xr. 
 
 Jit'covcri/ Deed fur the joint Lives of the Tenant for Ljfe^ 
 and Teit^iit in tlie Writ of Entri/. 
 
 Husband and fV/Je seised in Iii:^/it of f/ie WiJ'e for hei 
 JJfe, join in the Conceyance to the Use of different Persons 
 
 as Tenants in different IVrits of Entri/, the Lands being 
 purtli/ in England, and pur/ li/ in f Vales : and Uses are declared 
 in Confrmution of the Estate fur Life, (Sc. 
 
 'JMIIS INDENTURE of five parts, made the 
 
 day of 46th Geo. III. 1806. Be-Pauties. 
 
 TWEEN A. iNI. of, &c. Esq. and E. his wife, (for- 
 merly the wife, and afterwards the widow of R. D. 
 of B. in the county of S, gentleman,) of the first 
 part; W. H. D. of, &c. Esq. of the second part ; 
 S. W, of, &c. gentleman, of the third part; A. B. 
 of the fourth part; and C. D. of the fifth part. 
 Whereas the said A. M. and E. his wife, in right Recital that 
 of the said E, are tenants for her life of the mes- ^'i?c'|in right 
 suao'es, lands, tenements, and hereditaments ^^^^^^^ ^'^''**-') 
 
 ^, \ . are ten.-iuts 
 
 hereinafter described, and hereby released, or for life. 
 otherwise assured or intended so to be. A n d ^"'^ *^''"*^ ^'^^• 
 
 1 • I Tir 1 r rx • 1 • -wtt H. D. is tenant 
 
 WHEREAS the said W. 11. D. is the son of W.mtail. 
 
 11. D. deceased, who was the nephew of the 
 
 said K. D, and as such the said W. H, D. party 
 
 hereto, is tenant in tail male of the same mes- 
 
 suages> lands, tenements, and hereditaments, with 
 
 the appurtenances. And whereas the said W. H. And hcri of a 
 
 D. party hereto, is also the great nephew and j^eiy ^o^'"^'^^^ o^"^"^-
 
 443 
 
 Af PENDIX. 
 
 That tenant 
 in tail is de- 
 sirous of 
 suffering re- 
 coveries. 
 
 That tenants 
 for life have 
 agreed to 
 join in con- 
 veyance. 
 
 WltJifESSFTH 
 
 that for bar- 
 ring estates- 
 tail, 6ic. 
 
 And for 
 nominal con- 
 sideration. 
 
 Tenants for 
 life. 
 
 and also te- 
 nant in tail. 
 
 release, &c. 
 to S. W. 
 
 at law of the said R. D. And whereas the said 
 W. H. D. party hereto, is desirous of suffering 
 two or more common recoveries of the said mes- 
 suages, lands, tenem^ats, and hereditaments, with 
 the appurtenances ; And at the instance, and 
 upon tiie request of the said W, H. D. party 
 hereto, the said A, M. and E. his wife have agreed 
 to join in the conveyance hereinafter contained, 
 for the purpose of enabling tlfe said W. H. D. 
 party hereto, to suffer the «ame recoveries w^ith 
 effect. Now this indenture witnesseth, that» 
 for docking, barring, and destroying ajl estates 
 tail of and in the messuages, farms, lands, and 
 hereditaments hereinafter described, and hereby 
 released, or otherwise assured, or intended so to 
 be^ and all reversions and remainders expectant 
 or depending on the same estates-tail, and all 
 conditions and collateral limitations annexed to 
 the same estates-tail ; and also in consideration of 
 ten shillings, of lawful money, current in Great 
 Britain, to each of them the said A. M. and E. his 
 wife, and W. H. D. party hereto, well and truly 
 paid by the said S. W. immediately before the exe- 
 cution of these presents, (the receipts whereof are 
 hereby acknowledged,) The said A. M. and E. 
 his wife, at the instance and request of the said 
 W. H. D. party hereto, testified by his execut- 
 ing these presents; and iilso the said W. II. D. 
 party hereto, according to their several and re- 
 spective estates and interests, have, and each and 
 every of them hath bargained, sold, and released, 
 A nd by these presents do and each and every of 
 them doth bargain, sell, and release unto the said S. 
 \V. and his assigns, (in the actual possession of
 
 RECOVERY DEED. /446 
 
 the said S. W. now beinj^, in virtue of a bargain and'(reforencc to 
 
 ipoop for A 
 
 sale thereof made to him by the said A.M. and E.year.) 
 his wife, and W. II. D. party hereto, in eonsidera* 
 tion of five shilhngs, paid to each of them by the 
 said S. W, by indenture bearing date on the day 
 next before the day of the date, and executed be- 
 fore the execution of these presents, for one whole 
 3^ear, to be computed from the day next before 
 the day of the date of the -same indenture of bar- 
 gain and sale, and by force of the statute made 
 for transferring uses into possession); All, &c. Parcels, 
 [premises in the counties of S. and F.^ And ^^^^andi'wal^ 
 houses, &c. \_ge7ieral words for farms] ; And the 
 reversion, &c. To have and to hold the said Habendum 
 
 to S. W for 
 
 messuages, farms, lands, hereditaments, and all and the joint lives 
 singular other the premises hereby released, Q^oi cestiugue 
 otherwise assured, or intended so to be, and every tenant in the 
 part and parcel of the same, with their and every 
 of their rights, members and appurtenances, unto 
 the said S. W. and his assigns, for and during the 
 joint natural lives of the said E. M. and S. W, ne- 
 vertheless To the uses hereinafter declared of and 
 concerning the same messuages, farms, lands, and 
 feereditaments respectively, with the appurte- 
 nances, (that is to say) As to, for, and concerningAs toiunds in 
 all such and so many, and such parts of the same "^ ^" ' 
 messuages, farms, lands, and hereditaments, with 
 the appurtenances as are situate in the said county 
 of S. To the use of the said S. W. and his as- To the use of 
 signs, for and during the term of the joint natural ?^j,]J^jjygg^^^ 
 lives of the said E. M. and S. W, and for the in- 
 tents and purposes hereinafter expressed and 
 declared of and concerning his estate ; And as to, And as to 
 for, and concerning all such, and so many and^^"'^'"'^^^"'
 
 447 APPENDIX, 
 
 such parts of the same messuages, farms, lands, 
 and hereditaments, with the appurtenances as are 
 To the use of situate in the said county of F. To the use of the 
 the joint lives, said A. B. for and during- the term of the joint 
 natural hves of the said E. M. and S. W, and to 
 the intents, and tor the purposes hereinafter ex- 
 pressed and declared of and concerning the estate 
 Declaua- of the said A. B. And it is hereby de- 
 
 TiON that the 
 
 landsareimiit- GLARED HUd agreed Dj and between the said 
 
 amr\^B^ parties to these presents, as far as they respec- 
 
 respectively, tivel}^ are interested, that the said messuages, 
 
 farms, lands, and liereditaments respectively, with 
 
 the appurtenances, so limited to the use of the 
 
 said S. W. and A. B. respectively, and their 
 
 respective assigns, are so limited to them respec- 
 
 to make each tively. To the intent that each of them the said 
 
 of them te- ,^ ttt i » i-, • i i • i 
 
 nanttothe h. Vv. and A. B. respectively may, as to the said 
 th^lands mcssuages, tarms, lands, and hereditaments re- 
 iimited to spectivelv, so limited to his use, and every part 
 
 him, ' ' 1 ,. 1 -IT 
 
 and parcel or the same with the appurtenances, 
 for suffering be tenant of the freehold thereof, To the end that 
 
 two recove- , , ,. 
 
 rjes. one or more good and perfect common recovery 
 
 or recoveries with double voucher, may be had 
 OiK> recovery and Suffered of the same hereditaments. And 
 on a'^writ^or^ ^o^' that purposc it is hereby directed, declared, 
 entry, for the j^,^ J iioTeed bv and betwecu all the said parties to 
 
 hinds in Eng- ~ " ■ i o ^xr in • i 
 
 hmd. these presents, that the said S. Vv . shall permit and 
 
 suffer the said C. D, or some odier person or 
 persons, at the costs and charges in all things of 
 the said VV^. I[. I). })arty hereto, his heirs, execu- 
 tors, or administrators, at any time or times here- 
 after to sue forth and prosecute against him the 
 said S. VV. out of his majesty's high court of 
 Chancery, one or more writ or writs of entry, aur
 
 KECOVEllY DEED. 448 
 
 'disseisin en le post, returnable before his majes- 
 ty's justices of tFie court of Couimon Pleas at 
 Westminster ; and thereby demand of the said 
 S. W. the said messuages, farms, lands, and he- 
 refiitaments, situate in the said county of S, and 
 hereinbefore limited to the use of the said S. W. 
 and his assigns, by the names and descriptions of 
 six messuages, nine stables, fourteen shippens, 
 six barns, one dove-cote, eight gardens, three hun- 
 dred acres of land, two hundred acres of meadow, 
 two hundred acres of pasture, and six acres of 
 land covered with water ; and common of pas- 
 ture for all manner of cattle, with the appurte- 
 nances in M. N. N. in H. and B. and in the pa- 
 rishes of N. in H. and D. in H. And that the The other 
 said A. B. shall permit and suffer the said C. D, suffJre/on a 
 or some other person or persons, at the costs and^?"\*^^* '^"°/ 
 
 * _ '^ ei dejorceat 
 
 charges in all things of the said W. H. D, party for the lands 
 
 hereto, his heirs, executors, or administrators, at 
 
 any time or times hereafter, to sue forth and 
 
 prosecute against him the said A. B. one or more 
 
 writ or writs of quod ei deforceat, in the nature ol 
 
 a writ or writs of entry, sar disseisin en le post, 
 
 and to be returnable before his majesty's justice 
 
 or justices of great session for the said county of 
 
 F. ; and thereby demand of the said A. B. the said 
 
 messuages, farms, lands, and hereditaments with 
 
 the appurtenances, situate in the said county of 
 
 F, and limited to the use of the said A. B. and 
 
 his assigns, by the names and descriptions of one 
 
 messuage, one stable, three shippens, two barns, 
 
 two gardens, one hundred acres of land, fifty 
 
 acres of meadow, fifty acres of pasture, and two 
 
 acres of land covered with water, and common of
 
 449 APPENDIX. 
 
 pasture for all manner of cattle, with the appiiN 
 tenances in M. G. and parish of M. G- Or each 
 of them the said S. W. and A. B. respectively^ 
 shall permit the said CD. to demand the same 
 messuages, farms, lands, and hereditaments re- 
 spectively, by such other apt, good, sufficient, and 
 proper names, number of messuages and acres^ 
 quantities, qualities, and other descriptions as 
 shall be deemed necessar}^ proper, sufficient, and 
 Mode of requisite to comprise the same. And that each 
 
 Erosecutmg * ' 
 
 othrecove- of them the said S. W. and A. B. respectively 
 ms prescn - gj^^|| -^^ ^-^^ ^^^^^ person, Or by his attorney or at- 
 
 tornies lawfully authorised in that behalf, appear 
 to the same writ or writs, and vouch to warranty 
 the said W. H. D. party hereto. And that the 
 said W. li. D. party hereto, shall in his own 
 person, or by his attorney or attornies lawfully 
 authorised in that behalf, appear gratis, and freely 
 enter into the warranty of each of them the said 
 S. W. and A. B. respectively; and taking the 
 same upon himself, vouch over to warranty the 
 common vouchee for the time being, of each of 
 the said courts respectively. And he shall appear 
 gratis, and freely enter into the warrant}^ of the 
 said W. H. ]). party hereto; and after imparlance 
 make default. So that judgment may be given 
 upon each of the said writs respectively for the 
 said C. ]), or other demandant or demandants, to 
 recover all and singular the said m('ssuag(^s, farms, 
 lands, and heretlitamcnts to be demanded by the 
 same writ respectively, and every part and parcel 
 of t\ui same, with tlie appurtenances, by such 
 ?iames, quantities, qualities, and other descri})tions 
 as atbrcsaid, against tli(^ t<'iiaut in the same writ ;
 
 RECOVERY DEED. 450 
 
 and for the tenant in the same writ to recover in 
 value against tlie said W. 11. D. party hereto ; 
 and tor him to recover in value against the com- 
 mon vouchee of the court in which the said writ 
 shall be returnable, as is usual in such cases. 
 And that upon all and every recovery and reco- 
 veries to be suffered as aforesaid, execution may 
 be sued and prosecuted by, and seisin had, taken, 
 and delivered unto the said C. D, or other de- 
 mandant or demandants, accordingly. And that 
 every other act or thing needful, requisite, or 
 proper, to be executed for the purpose of suffer- 
 ing and perfecting a common recovery or recove- 
 ries of the messuages, farms, lands, and heredita- 
 ments in each of the same counties respectively, 
 with double, treble, or other voucher, to dock the to bar the 
 estate-tail of the said W. H. C. party hereto, of^^f *^"**' 
 and in the same messuages, farms, lands, and here- 
 ditaments, and all reversions and remainders over 
 and expectant upon the same estate-tail, may be 
 made, done, and executed. And by way o^ JJ^atfiJe^e- 
 direction and declaration, and not of covenant, it coveries shall 
 is hereby granted, deckred, and agreed, by and 
 bet^veen the said parties to these presents as far 
 as they respectively are interested, and they 
 hereby for themselves severally and respectively, 
 and for their several and respective heirs, execu- 
 tors, and administrators, consent and agree accord- 
 ing to their respective estates, rights, and interests 
 in the premises, that each of the recoveries here- 
 by agreed to be suffered shall be suffered and 
 perfected with all possible dispatch; and that and that the 
 the parties respectively,, and their respective heirs ^^Jg^g^ect to 
 on their respective parts, will use their utmost the same.
 
 451 APPENDIX. 
 
 endeavours to give effect to the same recovery^ 
 
 and also to these presents, and tiic grant, release^ 
 
 and confirmation, or other assurance hereby 
 
 Deci-aha- made. And it is hereby flrtiier direct- 
 
 TioN that 
 
 recoveries, ED, declared, and agreed by and between all 
 the said parties to these presents as far as they 
 respectively have any right, title, or interest in 
 the premises, that immediately upon and after 
 judgment obtained and seisiu had and taken upon 
 each such recovery, as aforesaid, the recovery, so 
 as aforesaid, or in any other manner, or at any 
 other time or times, to be suffered ; and also the 
 aud the lease said bargain cind sale for a year, bearing date on 
 and the pre- ^hc day next before the day of the date of these 
 *f"*jjj^^'^'^"^'^ presents ; and also these presents and the assurance 
 &c hereby made, and all and every other fine and fines, 
 
 recovery and recoveries, and other assurances 
 whatsoever at any time or times heretofore, and to 
 be at any time, and from time to time hereafter, 
 had, made, done, levied, suffered, executed, and 
 perfected, of or concerning all or any part of 
 the said messuages, farms, lands, and heredita- 
 ments, hereby released, or otherwise assured, or 
 intended so to be, either by themselves solely and 
 alone, or jointly and together v»ith any other lands, 
 tenements, or hereditaments, by and between all 
 and every, or any or either of the persons who are 
 parties to these presents, or to which they or any 
 or either of them is or are, or shall or may be 
 parties or privies, or a party or privy, shall as to- 
 all the said parties to these presents respectively. 
 as far as they nspectively can lawfully or right- 
 liiily direct the uses of the same fine or fines, com- 
 mon recovery or recoveries, and other assurances,
 
 RECOVERY DEED. 452 
 
 be and enure, and be adjudged, expounded, deemed, shall enure, 
 decreed, and taken to be and enure, and that 
 the same is and are, and was and were meant and 
 intended, and is and are hereby directed and de- 
 clared to be and enure ; and also that the iierson ^"'^ thatper- 
 or persons to whom the said fine or nnes, common stand seised, 
 recovery or recoveries, and other assurances 
 respectively have or hath been, or shall or may be 
 levied, suffered, made and executed, shall stand, 
 and be seised, as (o, for, and concerning the said As to the 
 
 11 1 • 1 lands con- 
 
 messuages, farms, lands, and hereditaments here-veyed, 
 by released, or otherwise assured or intended so 
 to be, and every part and parcel of" the same, with 
 their and every of their rights, members, and ap- 
 purtenances ; To the uses, upon the trusts, and for 
 the ends, intents, and purposes hereinafter limited, 
 expressed, and declared of and concerning the 
 same messuages, farms, lands, and hereditaments, 
 (that is to say) To the use of the said E. M. and;^«th^"f f 
 
 *• _ ■^ / the tenant lor 
 
 her assigns, for and during the term of her natu- life, during 
 ral life, by way of restoration and confirmation of ^.^,ifli.„^'ation 
 her estate for hfe in the same messuag^es, farms, ^^'l^^^^^^^f 
 
 o ' for life, and 
 
 lands, and hereditaments with the appurtenances, of all power? 
 
 and also of all powers and privileges, if au}^, an- ti;^,^.^,^,,^ 
 
 nexed or belonging to the same estate for life of 
 
 the said E. M. Atid from and after the dctermi- ^^^■'"'^■'"'^"'• 
 
 nation of the estate of the said E. M. for her life, 
 
 and in the mean time subject thereto, and to the 
 
 said powers and privileges; To the if.ve of such To uses to 
 
 person or persons for such estate or estates, &c. [I[,'|yer!^ 
 
 fthe usual form to prevent a title of dower J. 
 
 And to, for, and upon no other use, trust, intent or 
 
 purpose whatsoever. In ivitness, &c.
 
 453 APPENDIX,. 
 
 FOllM XII. 
 
 Uses for Con/irmatioH of former Assurances. 
 
 To THE USE To THE USE, intent, and purpose to confirm and 
 uTconfirm^ ' give effect to the several indentures hereinbefore 
 prior deeds; recited, according to the effect, true intent, and' 
 meaning of the same indentures respectively; and 
 particularly in particular To the uses, upon the trusts, and for 
 marriage the ends, intents and purposes limited, expi-essed, 
 settlement, ^j^^j declared, of and concerning the same towns, 
 lands, tithes, and hereditaments in and by the 
 said hereinbefore in part recited indenture of re- 
 lease, or marriage settlement, bearing date on. or 
 about the 12th day of February, in the year 1811 : 
 Subject to Subject nevertheless to the prior estates, liens, 
 prior ^■^tate»;^j^^^.g.gg^ ^^^^j incumbrances, thon affecting the 
 
 said towns, lands, tithes, and hereditaments re- 
 and giving spcctively ; Nevertheless, and as it was the in- 
 aTermoT "tcution of the parties to the same indenture of 
 jears. rclcase, so it is hereby dechired and agreed by and 
 
 between the parties to these presents, as far as 
 they respectively are interested, and as far as they 
 respectively lawfully may or can, that tlu^ said 
 term of 400 years, limited or created in and by 
 the said last mentioned indenture of release and 
 marriage settlement, shall iiave precedence of, 
 and take eflect prior to the other estates and in- 
 terests limited or created in and by that indenture.
 
 RECOVERY DEED. 
 
 454 
 
 FORM XIII. 
 
 Uses and Provisions for confirming an Annuity^ and so as 
 to continue it iri Equity though it should be extinguished 
 at Law. 
 
 After uses for Joint appointment. And in de- 
 fault, &c. Then to the other uses and for the 
 other purposes hereinafter hmited and declared, 
 that is to say, To the use, intent, and purpose, to To the use 
 
 ^ f. , . , ^ , • 1 /-I lir -^ND INTENT 
 
 restore and confirm the right or the said (j. W . to confirm a 
 and her assigns to have, receive, and take, the said lent-charge, 
 annuity, or yearly rent-charge of £200, out of 
 the said hereby, or hereby intended to be released, 
 or otherwise assured, moiety or half part, of and 
 in the lands and hereditaments hereinbefore men- 
 tioned or described, and of and in their and every 
 of their rights, members and appurtenances in 
 common with the other hereditaments which are 
 liable to, or chargeable with, the payment of the 
 same annuity or yearly rent-charge ; and to restore and the 
 and confirm all powers and remedies by distress P"^![j^[^JJg 
 and entry, and the trusts of all terms of years, same. 
 which were respectively created for securing and 
 enforcing the payment of the said annuity or 
 yearly rent-charge of ^200 ; to the intent, and 
 so that the same annuity or yearly rent-charge 
 may be payable or paid, recovered or recover- 
 able, in the same or the like manner as if these 
 presents had not been made or executed, or the 
 
 VOL. I. II
 
 455 APPENDIX. 
 
 recovery hereby agreed to be suffered had not 
 
 thereto ^^'^'^ beeii suffered. And subject to the payment of 
 
 the said annuity or yearly rent-charge of ^^200, 
 
 and the powers aBd remedies fop recovering and 
 
 To the use of enforcing the payment of the same, To the use of 
 
 'the said W. W. his heirs and assigns for ever. 
 
 And to no other use, and upon no other trusty 
 
 Hcr for any other end, intent, or purpose whatso- 
 
 Agreement ever. And the said J. W. and W. W. do hereby 
 
 that the pre- , , , , , , • " 
 
 sent deed anddu'ect and declare, consent and agree, that nothmg 
 noTextniAiish*-^'"^'^^"^^ ^'^ thcse presents, or in the recovery 
 the rent- hereby aoreed to be suffered, is meant or intended 
 to extmguish the said annuity or yearly rent- 
 charge of of 200, or any part thereof, or any of the 
 powers or remedies for recovering or enforcing 
 the payment of the same, or to exonerate any of 
 the lands and hereditaments which, at the time 
 of the execution of these presents, are, or were, 
 charged or chargeable with the payment thereof. 
 aiuUhatthe ^^^^d farther, that, notwithstanding- any extin- 
 
 reiit-chari,re *^ ' . , 
 
 shall subsist guishment at law or the said annuity or yearly 
 though ex- ront-charge, the sune shall subsist in equity, in 
 thiguishedat the sauic or the like manner, and with the same 
 or the like })ovvers and remedies, and charged or 
 charoeable on the same lands antl hereditaments ; 
 and be raised or raisable under the trusts of the 
 term or terms for years, or other estate or estates 
 created for securing tlu^ said annuity or yearly 
 rent-charge, as if the said annuity or yearly rent- 
 charge had not been so extinguished, any law or 
 usage to the cowtrary in any wise notwithstanding.
 
 RECOVERY DEED. 456 
 
 FORM XIV 
 
 Limitation of Uses, adapted to the Circumstances of a Reco- 
 very suffered by two Persons; one having the Free'' 
 hold, and the other a remote Estate-tail. 
 
 To THE USE of the said M. G. B, and his as-To the use 
 sions, for and durino- the term of his natural hfe :?^^?: ^;.?'. 
 
 ^ " '^ ^ ' tor his bie, in 
 
 for the purpose of restoring and confirming, or confinnation 
 giving effect to the said estate for hfe of the said andean powers 
 M. G. B, and all powers and privileges annexed ^/'"f^^*^ 
 to that estate. And to the use, intent, and purpose, And to con- 
 to confirm and establish all other the uses and^^^^ ^"^*^^ 
 
 . . estates prior 
 
 estates, which were limited by the hereinbefore to the estates 
 in part recited last will and testament of the said^^ ' 
 M. B, prior to the estate-tail thereby limited to 
 the said W. B. party hereto, and the heirs male of 
 his body lawfully begotten ; and also to restore and and all pow« 
 establish all powers and authorities, which were^^^' *^'^* 
 by virtue of the same last will and testament 
 annexed to such prior uses, or exerciseable in 
 respect thereof, or during the continuance of the 
 same uses and estates, so being prior to the said 
 estate-tail of the said W. B. party hereto. And^e'^ai"'!^'"? 
 from and immediately after the determination of 
 the several uses and estates hereinbefore limited 
 and declared, restored or confirmed, and in the 
 mean time subject thereto, and to such powers 
 and privileges as aforesaid, and the estates and 
 interests to be made or limited in pursuance or 
 I I 2
 
 457 APPENDIX. 
 
 in exercise of all or any of the same powers and 
 As to part of authorities ; then, As to the said farm, lands and 
 hereditaments called B, otherwise Great B. ; and 
 also the said farm, lands, and hereditaments called 
 M.; and also as to the said tithes and tenths of the 
 same farms, lands, and hereditaments respectively ; 
 and also as to the said farm and lands called M, 
 and hereinbefore described to be in the occu- 
 pation of the said W. H, with their respective 
 To the use of rights, members, and appurtenances, 7o the use of 
 fooyeavt' ^hc said V. W. V. and T. S, their executors, ad- 
 from decease ministrators, and assigns, tor and during the full 
 term or time of .500 years, to be computed from 
 the day of the decease of the said M. G. B. ; and 
 thence next ensuing and fully to be complete and 
 ended, without impeachment of or for any man- 
 ner of waste ; nevertheless upon the trusts, and 
 for the ends, intents, and purposes, and subject to 
 the provisoes, declarations and agreements herein- 
 after expressed and declared of and concerning the 
 And as to the same term. And as (o, for, and concerning all the 
 lauds''* ^'^said manors, messuages, farms, lands, tenements, 
 and hereditaments hereby released, &c. and 
 every part and parcel of the same, with their and 
 every of their rights, members, and appurtenances, 
 other than and except the said farms, land, tithes, 
 and hereditaments, comprised in the said term of 
 and after tlio 600 years hereby limited or created; And i'rom 
 lands '^com-^''''^"^^ altcr the expiration or other sooner determi- 
 prised therein, nation of the same term, and in the mean time 
 subject thereto, and to the trusts hereby declared 
 th<reof, then also as to, for, and concerning the 
 farms, lands, tithes, and hereditaments comprised 
 ill the said terms of :iOO years with their and every
 
 RECOVERY DEED. 458 
 
 of their rights, members and appurtenances, To To the use of 
 the use of the said W. B. party hereto, his heirs J^'^'^" 
 and assigns for ever. And to, for, and upon no 
 other use, trust, end, intent or purpose whatso- 
 ever. And it is hereby declared and^^^^^^^^- 
 
 . TiON that the 
 
 agreed by and between the parties to these pre- term of 500 
 sents, as far as they respectively are interested, that J^S '^^'" 
 the said farms, lands, tithes, and hereditaments, 
 hereby hmited to the use of the said V. W. V. . 
 and T. S, their executors, administrators, and as- 
 signs, for the said term of 500 years as aforesaid, 
 are so limited to them, upo7i trust that they the ^1?°"*^"^^^^ 
 said V. W. V, and T. S, or the survivor of them, for m. G. B. 
 or the executors or administrators of such sur- 
 vivor, do and shall, as soon as conveniently may 
 be after the decease of the said M, G. B, or in his 
 life-time, either by selling or mortgaging all or 
 any part of the farms, lands, tithes, and heredita- 
 ments, comprised in the said term of 500 years, 
 for all or any part of the same term ; or by, with, 
 and out of the rents and profits of the same farms, 
 lands, tithes, and hereditaments ; or by making 
 entries thereon, and taking the rents and profits 
 thereof; or by all and every or any one or more of 
 the said ways and means, or by any other lawful 
 and reasonable ways and means whatsoever, levy 
 and raise the sum of j^ 10,000, and interest for 
 that sum, from the day of the decease of the said 
 M. G. B. at and after the rate of £6 for £l00, 
 by the year, until payment thereof. And do and 
 shall stand and be possessed of the same sum of 
 i; 10,000, and the interest thereof. Upon trust for 
 the said M. G. B, his executors, administrators, 
 and assigns, as part of his personal estate. Pro- Proviso for
 
 459 APPENDIX. 
 
 cesser of the vided always^ and it is hereby declared and agreed 
 by and between all the parties to these presents, 
 that when and as soon as all the trusts herein- 
 before declared of and concerning the said term 
 of 500 years shall in all respects be fully performed 
 and satisfied, and the said V. W. V. and T, S, 
 and each of them, their and each of their execu- 
 tors, administrators and assigns shall be fully 
 reimbursed and satisfied all costs, charges, and 
 expences, if any, to be occasioned by, or relating 
 to the trusts hereby reposed in him and them as 
 aforesaid, the said term of .500 years, as to such 
 and so many and such parts of the said farms, lands, 
 tithes, and hereditaments comprised therein as 
 shall not be sold or mortgaged for the purposes 
 aforesaid, shall cease and be void, to all intents 
 and purposes whatsoever ; and as to such and so 
 many and such parts of thr same farms, lands, 
 tithes, and hereditaments as shall have been 
 mortgaged for the purposes aforesaid, the same 
 term shall, subject to such mortgage or mortgages, 
 attend, wait upon, and go along with, the rever- 
 sion, freehold, and inheritance of the farms, lands, 
 tithes, and hereditaments, to be comprised in 
 the same mortgage or mortgages respectively. 
 That if the Provided also^ and it is hereby further declared 
 iri'theme-time^nd agreed by and between the parties to these 
 r^'^1 -^^ if' Pf'csents, as far as they respectively are interested, 
 down tlie ill- that if the said sum of i€ 10,000, or any part 
 Ke.'^"""^ of the same, shall be raised in the life-time of the 
 said M. G. B, he the said M. G. B. shall from 
 time to time keep down, discharge, and pay, all 
 the interest which shall accrue or become due in 
 his life-time, for the same sum, or such part or
 
 REGOVEKY DEED. 46"0 
 
 parts thereof as shall be raised as aforesaid. Pro- That no sale 
 vided also, and it is hereby further declared and j,j\ij^j?i™^jj^^^^ 
 agreed by and between the parties to these pre-^^^^-^* B. 
 sents, as far as they respectively are interested, 
 that no such sale as aforesaid shall be made in 
 the life-time of the said M. G. B. Nor shall any nor after his 
 s.uch sale be made at any time after his decease, ^J|f^^'y^!j^jg 
 without one year's ix)tice in writing, requiring thc"otice. 
 payment of the said sum of <£ 10,000 and the in- 
 terest thereof; nor imtil the default shall be made 
 in payment of the same in pursuance of such 
 notice. And it is hereby further declared and That the 
 agreed by and between the said parties to these n^Tt^laffe ^"^ 
 presents, as far as they respectively are interested, i^acle m the 
 
 \ ' , 1 " ,. 'life-tUTieof 
 
 that the costs, charges, and expences or, and m. g.b. shall 
 attending all and every mortgage or mortgages to {j^°"^*^^^ 
 be made in the life-time of the said M. G. B, for 
 the purpose of raising the said sum of „£ 10,000 
 and the interest thereof, shall be borne and de- 
 frayed by the said M, G. B, his executors, 
 administrators, or assigns. Here were added clauses 
 ef iiulemnity to purchasers arid mortgagees.
 
 461 APPENDIX. 
 
 FORM XV. 
 
 Uses declared of a Recovery, suffered hy a Daughter Tenant 
 in Tail in Remainder, for the Time being, whose Estate 
 was liable to be postponed by the Birth of a Son ; confirm- 
 ing all prior Estates. 
 
 HABENDCMto Xo HAVE AND TO HOLD tlic Said manor, &c. 
 
 A. B. fortfce , „ , • , i , • i u 
 
 joint Uves of and all and singular other the premises, hereby 
 tbrSighter. released, &c. and every part and parcel of the 
 same, with their and every of their rights, royal- 
 ties, members, and appurtenances, unto and to 
 the use of the said A. B. and his assigns, during 
 the joint natural lives of the said A. B. and.F. 
 To make him E. B. To THE INTENT that the said A. B. may 
 prSpe?&c.^ be tenant, &c. [Common recovery clause.'] To 
 Deciara- enure, &c. To the use, intent, and purpose, to 
 recXe\y^sh!S''es tore, confirm, and give effect to the said estate 
 enure, for the life of the said R. H. B, and all powers 
 
 S^e eTtSTof *^"^ privileges annexed to that estate, And to the 
 a tenant for further use, intent and purpose, to confirm and 
 powers an- establish all the other uses and estates, except 
 tw^o- ^^^^ estate-tail of the said F. E. B, which were 
 and all other rcsi:)ectively limited by the said hereinbefore in 
 *^^-''*'^f' a part recited indentures of lease and release, prior 
 
 pnor to the i .... 
 
 remainder in to the ultimate remainder in fee limited to the 
 the esStaii; said R. B. and to his heirs, And also to restore 
 and the j coiifirm all powe^rs and authorities, which, by 
 
 powers an- " i •/ 
 
 nexed to the virtue of the saiiic indentures, are annexed to such 
 
 same estates. i i. i. • i i • 
 
 prior uses and estates, or are exerciseable in
 
 RECOVERY DEED. A62 
 
 respect, or during the continuance of the uses and 
 estates, so being prior to the said ultimate remain- 
 der in fee to the said R- B. And subject to the ^j^g^gto"^ ■'^^ 
 estates and interests so confirmed or restored as 
 aforesaid, and also subject to such powers and 
 authorities as aforesaid, the said manor, messuages, 
 &c, with their and every of their rights, royalties, 
 members, and appurtenances, shall, (in heu of 
 the said estate-tail of the said F. E. B, and the 
 remainders and reversions expectant on that 
 estate, and as a substitution for the same estate- 
 tail, remainders, and reversions,) remain and be 
 
 To the use of such person or persons, for such es- '^^ the use of 
 
 , „ , . . such person, 
 
 tate or estates, and tor such mterest or mterests,&c. 
 
 by way of annuity, rent-charge, or otherwise, and 
 in such parts, shares, and proportions, and upon 
 such trusts, and for such ends, intents, and pur- 
 poses, and charged and chargeable in such man- 
 ner, and either absolutely or conditionally, and 
 subject to such powers of revocation, and of new 
 appointment, and other powers, provisoes, condi- 
 tions, restrictions, limitations, declarations, and ^* ^^ daugh- 
 ter, 
 
 agreements, as the said F. E. B. at any time or 
 times, and from time to time, after the death of 
 the said R. H. B. and A. his wife, and of the (after the 
 survivor of them ; or in the life-time of the said h. B, and a. 
 R. H. B. with his consent in writing^; or after !^' "^'^f' %i? 
 
 » ' nis or her liie- 
 
 the death of the said R. H. B. and in the life-time time, with 
 of the said A. B, with her consent in writing ; by consent,) 
 any deed or deeds, to be sealed and delivered by^'^''*^.^y *^^^ 
 
 '' . "^ appoint 
 
 her in the presence of one, two, or more credible 
 witness or witnesses, shall direct, limit, or ap- 
 point. And in default of such direction, limita- in default of 
 tion, and appointment; and in the mean time, ^PP'*'"^"'^"^'
 
 463 APPENDIX. 
 
 and from time to time, until the same shall take 
 effect ; and from time to time, subject to such uses, 
 estates, trusts, charges, and interests, as shall liave 
 been so directed, limited, or appointed, by the 
 
 To the use of said F. E. B, then To the use of the said F. E. B. 
 
 hrtalr^^'*'' ^nd the heirs of her body lawfully to be begotten. 
 
 Remainder, And in default of such issue. To the use of the 
 
 To the use of survivor of them, the said R. H. B, and A. B. 
 
 ofthedaugh- his Wife, and the said F. E. B, his or her heirs and 
 
 B^a^nd if his ^^^^»"* ^"^"^ ^^^^* F^OVIDED ALWAYS, and not- 
 
 wife, infee. withstanding any thing hereinbefore contained, 
 Proviso that, .jj-,(^ also notwithstanding' the said recovery to be 
 
 as against o _ ^ -^ 
 
 issue male of suffered as aforesaid, the right of the said F. E. 
 the dauo^hter' ^- to hcr portion, to be raiscd under the trusts of 
 shall remain ^|^g g^^j,^ tenw of 500 years, shall remain in full 
 
 entitled to her ^ ./ ^ 
 
 portion under forcc, agaiust any son or sons, or other issue 
 term. * male, of the said marriage. But the same portion 
 But the same shall be, and shall be considered as extinguished 
 tinguished'as ^^g'^inst all persons who, for the time being, shall 
 against per- be in titled to the said manor and other heredita- 
 
 sons clainnng 
 
 under the pre- men ts under the settlement hereby made thereof. 
 
 menL^ ^" ^"^ ^^^^ same portion, if once payable, and actu- 
 ally paid, shall not be liable to be refunded. Nor 
 shall the stipulations or declarations hereinbefore 
 contained preclude the said F. E. B, her execu- 
 tors, administrators, or assigns, from the right of 
 having the said portion raised at any time after the 
 birtli, and during the continuance of issue male, 
 in the same manner as the same might have been 
 raised in case no recovery had been suffered, or 
 in case these presents had not been executed. 
 In witness, &c.
 
 RECOVERY DEED. 
 
 464 
 
 FORM XVI. 
 
 Uses of a Recovery, suffered hij a Person having the Freehold 
 and a remote Estate Tail ; confirming prior Estates, and 
 after giving the former Tenant in Tail a Power of appoint- 
 ment, again limiting the Lands to him in tail, and restoring 
 the subsequent Estates. 
 
 To THE USE, intent, and purpose, to restore and To the use 
 
 ^ , . , r ^ 1-r I' ^ and intent to 
 
 give . eiiect to the said estate for the hie oi the restore the 
 said R. Lord C, and all powers and privileges ^^^^^^^.J^ J, ^® 
 annexed to that estate, and To the tisc, intent, and and all powers 
 purpose, to confirm and establish all the other thereto: 
 uses and estates, which were limited by the said and all other 
 hereinbefore in part recited indentures of lease and to the^estates- 
 release, prior to the estate-tail thereby limited to^^'^' 
 the use of the said R. Lord C, or to the use of 
 the heirs of his body lawfully to be begotten ; and and all powers, 
 also to restore and confirm all powers and autho- 
 rities which, under and by virtue of the same in- 
 dentures, are annexed to such prior uses, or exer- 
 cisable in respect thereof, or during the continu- 
 ance of the same uses and estates, so being prior 
 to the said estate-tail of the said R, Lord C. ^W And subject 
 from and after the determination of the several* "^*^' 
 uses and estates, hereinbefore limited and declar- 
 ed, restored or confirmed, and in the mean time 
 subject thereto, and to such powers and privileges 
 as aforesaid. To the use of, &c. [g-iuing a general to such uses 
 power of appointment.^ And in default of such ^f 3j["''*^ ^'^
 
 465 
 
 APPENDIX. 
 
 In default of direction, limitation, and appointment ; and in 
 
 appointment. . ^^ 
 
 the mean time, and until such direction, limita- 
 tion, and appointment shall be made and take 
 effect ; and from time to time subject to such 
 estates and interests as shall have been directed, 
 limited, or appointed by the said R, Lord C, 
 under, or by virtue of, and pursuant to his pow^er 
 To the use of hereinbefore contained; then To the use of the 
 tail. ' said R, Lord C. and the heirs of his body lawfully 
 issuing. And from and after the determination 
 of that estate, and in the mean time subject there- 
 Remainder, to ; To such uses, upon such trusts, and for such 
 uis lunit™^'^ intents and purposes, and under and subject to 
 subsequently such powers, provisoes, limitations, declarations, 
 
 to tbe estate- , . , • i i • i p 
 
 taiJ, and agreements, as by the said nerembetore in 
 
 part recited indentures were limited, expressed, 
 and declared, of, and concerning the said manors, 
 lordships, rectories, advowsons, messuages, lands, 
 tenements, tithes, parts, shares, and hereditaments 
 by way of remainder after, and expectant on, the 
 estate-tail thereby limited to the use of the said 
 H. Lord C, or as annexed or collateral thereto, 
 or to such and so many of the same uses, trusts, 
 intents, and purposes, powers, provisoes, limita- 
 tions, declarations, and agreements, as are now 
 subsisting, and capable of taking effect ; or as 
 near thereto as the deaths of parties, the change 
 of interests, or other intervening circumstances 
 will admit. And to no other use, and upon no 
 other trust, nor lor any other end, intent, or pur- 
 pose, whatsoever.
 
 RECOVERY DEED 
 
 466 
 
 FORM XVII 
 
 Deed on substituting another Person as Demandant in the 
 Place of the intended Demandant who died before the 
 Recovery teas suffered, (a) 
 
 THIS INDENTURE, &c. Between, &c. 
 [^the surviving parties to the deed making tenant to 
 the prcecipe^ and the new demandant. Recite that 
 deed shortly ; and the death of the intended de- 
 '}nandant.^ And Whereas no recovery hath 
 been yet suffered of the manors, &c. and on that 
 account it is become necessary that in the reco- 
 very to be suffered of those manors, &c. some 
 person should be named as a demandant in the 
 place or stead of the said [intended demandant^'] 
 and it is intended to name the said as such 
 
 demandant. Now this indenture witness- 
 ETH, and it hereby granted, declared, and agreed, 
 by and between all the parties to these presents, 
 that all and every recovery and recoveries, suffer- 
 ed, or to be suffered, either under or by virtue, 
 or means, or in consequence of the said herein- 
 before mentioned indenture of bargain and sale, 
 and in which the said is or shall be named a 
 
 (u) See the Text, p. 29.
 
 467 APPENDIX. 
 
 demandant instead of the said shall have the 
 
 same or the like force, effect, and operation in 
 Jaw to all intents and purposes, and shall enure to 
 the same or the like uses, intents and purposes, 
 in all respects, as if the name of the said had 
 been inserted in the said indenture of bargain and 
 sale, in the place or stead of the name of the 
 said as far as the said is or shall be named 
 
 a demandant, in the place or stead of the said 
 in any recovery or recoveries suffered, or to 
 be suffered, as aforesaid, any thing in the same in- 
 denture contained to the contrary thereof in any 
 wise notwithstanding. In witness^ &c.
 
 RECOVERY DEED. 
 
 468 
 
 FORM XVIII. 
 
 Demise to protect against Forfeiture, on suffering a Common 
 Recovery. 
 
 THIS INDENTURE of four parts, made, &c. 
 1800: Between T. H. of, &c. and J. \{. of, &c. parties. 
 of the first part ; J). L. of, »!fec. and A. his wife, of 
 the second part ; L. 11. of, &c. and M. his wife 
 of the third part ; and A. B. of, &c. of the fourth 
 part. Whereas the said D. L. and A. his wife, Recital of 
 and L. li. and M. his wife, have ao-reed to suffer ^'■^^'^"Vn" 
 
 ' c surrer a recn- 
 
 a common recovery of the messuages, farms, lands, very, 
 tenements, and hereditaments hereinafter described, 
 and also bargained and sold, or otherwise as- 
 sured, or intended so to be : and the uses of the Ki-ference to 
 same recovery are to be declared by an indenture^^^'^.'^'^^'),*^''" 
 
 •^ clamiiX the 
 
 of seven parts, already prepared, and dated or to uses of tUc in- 
 
 , T , 1 ,, I !• • tended reeo- 
 
 be dated on the day ot now in-yery. 
 
 stant, and made or intended to be made between 
 the said T. II. and J. II. of the first part ; the said 
 D. L. and A. his wife of the second pait ; the said 
 L. 11. and M. his wife of the third part ; the Ilev. 
 J. J. of, &c. clerk, of the fourth part : T. J, of, 
 &c. gent, and the Rev. H. R. of, &e. clerk, of 
 the fifth part ; K. B of &c. u'ent. of, the sixth
 
 469 
 
 APPENDIX. 
 
 part ; and of the seventh part, and to be 
 
 executed after the execution of these presents ; 
 and the said T. H. and J. H. who are trustees for 
 the said A. L. are to join in making a tenant to 
 the writ of entry on which the said recovery is 
 That it is ex- to be suffered. And whereas it is deemed 
 make a de- expedient that a bargain and sale, or demise for 
 "ears^U) ro- 7^^^^' should be made of the said messuages, 
 lect against farms, lands, tenements, and hereditaments, for 
 forfeiti^e. ^'^ the purpose of protecting the persons beneficially 
 intitled to the same messuages, farms, lands, tene- 
 ments, and hereditaments, from any claim on the 
 ground that a forfeiture may or shall be commit- 
 ted by means of such recovery, as to such of them 
 the said T. H, J. H, D. L. and A. his wife, and 
 L. R. and M. his wife, as are or may be deemed 
 WiTNEssKTH to be mere tenants for life. Now this inden- 
 
 that for af- ^ n i\^ i- 
 
 fording pro- TURK WITNESSETH, that tor ailording protcctiOR 
 aSnst su h ^8"^"^^^ ^"7 ^^^^^ claim of forfeiture, and in consi- 
 claimforfor- deration of ten shillings of lawful money, &c. to 
 for nominal ^^ch of them the Said T. H, J H, D. L. and A. 
 consideration, hjg ^^jfe^ ^nd L. R. and M. his wife, well and 
 truly paid by the said A. B. immediately before 
 the execution of these presents, (the receipt 
 1 lie trustees, whcreof is hereby acknowledged,) The said T. H. 
 (on iiomina- ^^^ J f| /qjj ^\^q nomination, and at the instance 
 
 tion of the ^ , , 
 
 owners,) and request, and by the direction and appoint- 
 ment, of the said D. L. and A. his wife, and L. R. 
 and M. his wife, testified by their severally exe- 
 
 and also the ^uting these presents,) And also the said D. L. 
 
 owners, and A. his wife, and L. R. and M. his wife, have, 
 
 , e , and each and every of them Iiath^ Cfranted, bar- 
 grant, etc. to . '^ , ' o ' 
 
 a trustee, gained, sold, and demised, and by these presents 
 do, and each and every of tlicm doih, grant, bar-
 
 RECOVERY DEED. 470 
 
 PARCELS, 
 
 gain, sell, and demise, to the said A. B, his execu- 
 tors, administrators, and assigns All, &c. [ j^^*'^^^*' iievgrsion 
 as in release^. And the reversion and reversions, &c. 
 remainder and remainders, yearly and otlier rents 
 of the said messuages, farms, lands, tenements, 
 and hereditaments, hereby bargained, sold and 
 demised, or intended so to be, and every pate and 
 parcel of the same, with their, and every of their 
 rights, members, and appurtenances, and all rent 
 charges payable thereout or charged thereupon. 
 To HAVE AND TO HOLD the Said messuages, farms, ^^^^^f"^?*^® 
 
 o ' a trustee for 
 
 lands, tenements, rent-charges, hereditaments, and loo years. 
 all and singular other the premises hereby bar- 
 gained, sold, and demised, or otherwise assured, 
 or intended so to be, and every part and parcel of 
 the same, with their and every of their rights, 
 members, and appurtenances, unto the said A. B, 
 his executors, administrators, and assigns, from 
 the day next before the day of the date of these 
 presents for and during the term or time of one 
 hundred years, thence next ensuing, and fully to 
 be complete and ended, if the estates and inter-if the estate 
 
 „, -lA T T T^ 1-vri- • n of the owners 
 
 ests Of the said A. L, L. R. and M. his wife, orshaUso long 
 any or either of them in the same premises respec- *^""*'""^' 
 tively, shall so long continue: Nevertheless only prot^ctwn 
 by way of protection against any forfeiture, to be^^^^"*^ ^°^'^^*' 
 claimed by reason or means of any recovery or 
 recoveries to be suffered as aforesaid, and for that 
 purpose to be held from time to time In (rust for and in trust 
 
 .1 1 /> 1 • 1 • T for persons 
 
 the person or persons who tor the time being, and entitled under 
 from time to time shall be entitled to the said iTies-*','^^"^^^/|jj^ 
 suages, farms, lands, tenements, and hereditaments, recovery, 
 according to the uses, trusts, ends, intents, and 
 purposes, powers, provisoes, declarations, and 
 agreements, contained, or to be contained in the 
 
 VOL. I. K K
 
 471 APPENDIX. 
 
 said indenture dated or to be dated on the 
 day of now instant, and to be thereby declared 
 of the same messuages, farms, lands, tenements, 
 and hereditaments; without any prejudice or 
 y eviction, at law or in equity, by reason or on ac- 
 
 count of any forfeiture which can, shall, or may 
 be claimed by reason of the recovery or recoveries 
 agreed to be suffered as aforesaid. And upon no 
 other trust, and for no other end, intent, or pur- 
 pose whatsoever. In witness, &c.
 
 RECOVERY DEED. 472 
 
 FORM XIX. 
 
 Another Demise of divers Messuages, S^c. previous to suffer- 
 ing a Recovery, for the Purpose of protecting against 
 Forfeiture. 
 
 THIS INDENTURE made, &c. 1S06. Be- - 
 TVVEEN J. T. of, &c. of the one part; and A. B. parties, 
 of, &c. of the other part. Whereas the said J. T.J'^cital of 
 
 \ ^ desire to sut- 
 
 is desirous of suffering a common recovery of the fer a recovery, 
 
 messuages, lands, tenements, and hereditaments 
 
 hereinafter described, and also bargained and sold, 
 
 or demised, or otherwise assured, or intended so 
 
 to be; audit is deemed advisable or expedient, an^l that it is 
 
 . ^ • [^ 111 expedient to 
 
 that a bargam and sale, or demise tor years, should make a de- 
 be made of the same messuages, &c. for the pur- ^j^.^^^^.^^^^ 
 pose of protectinp' the said J. T. and his assig^ns, against any 
 
 f: 1 • , 11 o c claim for for- 
 
 irom any claun on the ground that a lorieiturefeiture. 
 may or shall be committed by the said J. T. by 
 means of the recovery or recoveries intended to 
 be suffered by him, and on account of his being 
 considered as tenant for life only of the same he- 
 reditaments. Now THIS INDENTURE AV I TN ESS- WITNESSETH 
 
 ETH that for affording protection against any such }J^^]j,^"Jp/^^ 
 forfeiture, and in consideration of ten shillings of Section against 
 
 • 1 T T< 11 ^^ch. fbrfei- 
 
 lawful money, &c. to the said J. I. well and truly tme, and for 
 paid by the said A. B. immediately before the 'Jj^^'^^^^f^,^^^^^^ 
 execution of these presents, (the receipt whereof 
 is hereby acknowledged,) The said J. T. hath^^^^™^ 
 
 -J ID 'I grants, occ 
 
 granted, bargained, sold, and demised, and by to A. B. 
 
 K K 2
 
 473 APPENDIX. 
 
 these presents doth grant, bargain, sell, and demise, 
 vuito the said A. B, his executors, administrators, 
 All themes- and assigns. All the messuages, lands, tene- 
 dev?3b7a n^^nts, and hereditaments, situate, standing, lying, 
 will referred ^^i^ being in the several parishes of W, W, 
 T, and D. in the counties of S. and W, or else- 
 where within this realm, which by the last will 
 and testament of R. T. of W. in the county of 
 S. gentleman, deceased, were given and devised 
 unto C. N. the elder, of W. aforesaid, T. W. of 
 H. in the parish of S, in the county of S. or W. 
 or one of them, yeoman, R. T. of B. in the county 
 of W. toy-maker, and R. W. of W. in the said 
 county of S, and to the survivors and survivor 
 of them, and the heirs, executors, and adminis- 
 trators of such survivor, in trust, and for such 
 uses, ends, intents, and purposes, as are in the 
 said will expressed and declared, and every part 
 and parcel of the same. Which said will bears 
 date on or about the 3d day of September, in the 
 year 1781, and was duly proved in the 
 court of on or about the day of 
 
 And all houses, &c. [general words]. And the 
 Habendum reversion, &c. [as in other deeds'], To have and 
 toA. B. for HOLD the said messuao'es, lands, tenements^ 
 
 100 years, it O ' 7 ^ 
 
 the grantor and hereditaments, and all and singular other the 
 Qvc, ^^ " premises hereby bargained, sold, and demised, or 
 otherwise assured, or intended so to be, and every 
 part and parcel of the same, with their and every 
 of their rights, members, and appurtenances, unto 
 the said A. B, his executors, administrators, and 
 assigns, from the day next before the day of the 
 date of these ])rcsonts, for and during the term or 
 time of one hundred years thence next ensuing.
 
 KECOVERY DEED. 474 
 
 and fully to be complete and ended, if the said 
 
 J. T. shall so lonar live: Nevertheless only by way ^y ^^'"^y "^ 
 
 r. . . .. ^ • , , • 1 protection 
 
 ot protection agamst any torieiture to be clanned against for- 
 by reason or means of any recovery or recoveries ^*^^^"^^' 
 to be suffered by the said J. T. ; and for that pur- 
 pose to be held, //* trust for the said J. T. and and in trust 
 his assigns, without any prejudice or eviction, ^^^ ^ ^^^*'^' 
 by reason or on account of any forfeiture which 
 can, shall, or may be claimed, by reason of any 
 recovery or recoveries to be suffered of the same 
 messuages, lands, tenements, and hereditaments, 
 by the said J. T. And upon no other trust, nor 
 for any other end, intent, or purpose whatsoever. 
 Jn witness, &c.
 
 475 APPENDIX. 
 
 FORM XX. 
 
 Habendum creating Uses fo7- a Term to protect against For- 
 feiture; Remainder to a Tenant for suffering a Recovery- 
 
 Habendum to ^^ HAVE AND TO HOLD the said meSSUages, &C. 
 
 s. A. his heirs unto the said S. A. his heirs and assisrns, To the 
 
 and assigns. . rn i i • 
 
 To the use of ^"^^^j ^^' that IS to say, To the use of the said 
 A. B. for 100 A. B. his executors, administrators, and assigns, 
 
 years if the 
 
 grantor shall IVom the day next before the day of the date of 
 &o ong ve. |.}^ggg presents, for and during the term or time of 
 100 years, thence next ensuing, and fully to be 
 complete and ended, if the said C. A. shall so 
 In trust for l^"o ^^"^^- Nevertheless in trust only for the bene- 
 the persons f|j- of ^j^g person Or persons, who, for the time 
 
 entitled under . * . i • - 
 
 the uses aiter being, shall by virtue of the uses heremafter de- 
 ^^'^^ clared, be seised of, or intitled to, the reversion 
 
 or remainder of the same moiety of the same mes- 
 suages and hereditaments, expectant on tlie deter- 
 
 Remainder mination of the said term of 100 years. And from 
 and after the expiration or other sooner determi- 
 nation of the said term of 100 years, determinable 
 
 To the use of ,, . , i • ^i ^- i • ^ .1 
 
 s. A. his as aforesaid, and in the mean time subject thereto, 
 heirs and as- ^j^ j ^^ ^.j^^ trusts of the sauic term. To the use of 
 
 signs, to make 
 
 him tenant to the Said S. A, his hcii's and assigns, To the 
 
 the praecipe, 
 
 &c. INTENT, &C.
 
 RECOVEKY DEED. 
 
 476 
 
 FORM XXL 
 
 Demise for a Term, to operate hy Estoppel, and in trust 
 to attend the Inheritance ; and Covenant to levy a Fine 
 Sur Concesseriint, in Confirmation of the Term, and to 
 suffer a Common Recovery. 
 
 This Indenture of three parts made the day 
 of in the 47th year, &c. 1807. Between 
 
 W. B. of, &c. R. B. of, &c. H. B. of, &c. and 
 M. B. of, &c. of the first part ; I. C. of &c. of the"^''^'^'' 
 second part ; and J, B. of, &c. of the third part. 
 WITNESSETH that in pursuance and performance Witnesseth 
 
 .,.,,,„ 1-1 that tor biiul- 
 
 or an agreement ni tins behalf; and tor the pur- ing all present 
 pose of binding all present and future estates and ggJ^/^^^^^JJ^^j^g 
 interests, which the said W. B, R. B, H. B, and vendors, 
 M. B, respectively, or any of them, have in the 
 hereby, or hereby intended to be, demised moiety, 
 of and in the messuag^ss, lands, and hereditaments, 
 hereinafter described ; and in consideration of IO5. and fornonii- 
 of lawful money, current in Great Britain, to thetion,*^ 
 said W. B, R. B, IT. P>, and M. B, well and truly 
 paid by the said .1. P, immediately before the 
 execution of these presents, (The receipt whereof 
 is hereby acknowledged.) Thev the said W. B, 'P^^V^'"-'.""^ 
 R. B, H. B, and M. B, (on the nomination, at ot die pm- 
 tlie request, and by the direction and appointment ^'''^''^^^ 
 of the said J. C, testified by his executing these 
 presents) have, and each and every of them hath s-^nt, 5cc. to 
 granted; bargained, sold, demised, and to flirm"
 
 477 
 
 APPENDIX. 
 
 ?ARCELS. 
 
 Habendum 
 to J. P. for 
 
 iOOO years, 
 Sans waste. 
 
 At a pepper- 
 corn rent. 
 
 Declara- 
 tion thiit the 
 term is limit- 
 ed. 
 
 In trust for 
 the purcluiser 
 
 letten, And by these presents do, and each and 
 every of them doth, grant, bargain, sell, demise, 
 and to farm let unto the said J. P, his executors, 
 administrators, and assigns, All that undivided 
 moiety, or equal half part, (the whole into two 
 equal parts to be divided,) of them the said W . Bj 
 R. B, H. B, and M. B. the younger, or of M. B. 
 their mother, or of some or one of them, of and in 
 all, &c. [Parcels] And also of and in all houses, 
 &c. To HAVE AND TO HOLD the Said hereby, 
 or hereby intended to be demised moiety, of and in 
 the said messuage, lands, and hereditaments herein- 
 before described, and every part and parcel of the 
 same, and of and in their and every of their rights, 
 members, and appurtenances, unto the said J. P, 
 his executors, administrators, and assigns, from 
 the day next before the day of the date of these 
 presents, for and during the term or time of 1000 
 years, thence next ensuing, and fully to be com- 
 plete and ended, without impeachment of or for 
 any manner of waste ; Upon the trusts^ neverthe- 
 less, and for the ends, intents, and purposes, here- 
 inafter mentioned, expressed, and declared, of and 
 concerning the same. Yielding and paying 
 for the said demised premises, yearly and every 
 year during the said term, the rent of a pepper- 
 corn, if the same rent shall be lawfully demanded. 
 And it is hereby directed, declared, and 
 agreed, by and between the parties to these pre- 
 sents, as far as they respectively are interested, 
 that the said t(M-ni of 1000 years, hereby demised 
 to die said J. P, his executors, administrators, and 
 assinns, is so demised to him and them, In trust 
 for the said J. C, his heirs and assigns, and to
 
 RECOVERY DEED. 478 
 
 attend the inheritance of the said moiety of and his heirs and 
 in the said messuage, lands, and hereditaments, tend"he in-^" 
 hereinbefore described, as the same moiety hath ^^"'^''^"^'-; ^*^ 
 
 •^ conveyed to 
 
 been conveyed and assured, or is contracted, and iiim by tlie 
 agreed to be conveyed and assured, by the said^*" ^^^' 
 W. B, R. B, H. B, and M. B. and the said M. B. 
 their mother, to the use of the said J. C, his heirs, 
 appointees and assigns. x\nd each and every of Covenant by 
 
 the vendors 
 
 them, the said W. B, R. B, H. B, and M. B, party severally, 
 hereto, severally, separate, and apart from the 
 others of them, doth hereby, for himself and her- 
 self respectively, and his and her respective heirs, 
 executors, and administrators, and as to and con- 
 cerning only the acts, deeds, and defaults of him- 
 self and herself respectively, and his and her re- 
 spective heirs, covenant and agree with the said 
 J. C his heirs and assigns, in manner follov^^ing, 
 that is to say. That they, the said W. B, R. B, To levy a fine 
 H. B, and M. B, party hereto, or their heirs, shall runt*^forTooo 
 and will, at their own proper costs, and charges, y^^""^'."' <=on- 
 
 ' . , firmation of 
 
 m or as of Trmity term now last past, or before the present 
 the end of Michaelmas term now next ensuing, ^™^^^' 
 acknowledge and levy unto the said J. P, his 
 executors, administrators, and assigns, before his 
 majesty's justices of the court of Common Pleas 
 at Westminster, one or more fines or fines Sur 
 Concessenint, with proclamations to be thereupon 
 had and made, according to the form of the statutes 
 in that case made and provided, and the usual course 
 of fines in such cases used, of the said hereby, 
 or hereby intended to be demised, or otherwise 
 assured, moiety, of and in the messua^^e, lands, 
 and hereditaments, hereinbefore described, with 
 the appurtenances, and thereby grant the same
 
 479 APPENDIX. 
 
 moiety of and in the same messuage, lands, and 
 hereditaments, for a term of 1000 years, to com- 
 mence and be computed from the day next be- 
 fore the day of the date of these presents. To the 
 intent that the same fine may be a confirmation 
 of these presents, and of the term hereby granted, 
 And to suffer Or intended so to be. And also that they, the 
 
 a recovery on |^j ^ g ^ g j^ g ^j-^j ^^ g ^^^ hereto, Or 
 request. 777 i ^ 
 
 their heirs, when thereunto requested by the said 
 J. C, his heirs, appointees, or assigns, and with 
 his or their concurrence, as far as such concur- 
 rence shall be necessary, shall or will suffer, or 
 cause to be suffered, a common recovery, or com- 
 mon recoveries, of the hereby, or hereby intended 
 to be, demised moiety, of and in tlie messuage, 
 lands, and hereditaments, hereinbefore described ; 
 and by the same common recovery or common 
 recoveries, and by a deed declaring the uses there- 
 of, shall and will convey, settle, and assure, -the 
 same moiety of and in the same messuage, lands, 
 and hereditaments, to the use of the said J. C, 
 his heirs, appointees or assigns, or to such uses, 
 upon such trusts, and for such ends, intents, and 
 purposes, as he or they shall direct or appoint, 
 free and clear from all charges and incum- 
 brances, to be in the mean time committed or 
 sullbred by the said W. 13, R. B, H. B, and 
 M. B. party hereto, or any or cither of them, 
 or their, or any or either of their, heirs, or by 
 any person or persons whomsoever, claimino- or 
 to claim by, through, from, under, or in trust for 
 them, or any or either of them, odier tlian and ex- 
 cept the said term of 1000 years, and the fine to h^ 
 lc\ led in confirmation thereof. In u-ilncss, &;c.
 
 RECOVERY DEED. 4gQ 
 
 FORM XXII. 
 
 The £100,000 CImise ; being a Clause in a Recovery 
 Deed to cease the Estate limited by a Tenant for Life, for 
 the Purpose of assisting a Tenant in Tail in sujjering a 
 Recovery. 
 
 The Oliject of this Clause is in most cases to prevent a 
 Merger of the Estate for Life in the Ownership under the 
 Estate Tail : and to revive the Estate for Life, and all 
 Powers annexed thereto [a). This object is in most cases 
 better attained by the Limitation of an Estate for the joint 
 Lives. 
 
 PROVIDED ALWAYS, and these presents 
 are upon this express condition, that if the said 
 his executors, or administrators, shall not, on 
 the day of well and truly pay, or cause to 
 be paid, to the said or her assigns, the full sum 
 of ^100,000 of lawful money of the united king- 
 dom of Great Britain and Ireland, current in 
 Great Britain ; then the grant, bargain, and sale, 
 or other assurance, hereby made to the said 
 and his heirs, during the life of the said [or 
 *' during the joint lives of the said and "] 
 shall cease and be void to all intents and purposes, 
 so that the estate of the said may be dis- 
 
 charged of and from the limitation hereby made 
 for the life [^oi- "joint lives''] of the said — . 
 
 [a] See the Text. p. 109.
 
 481 
 
 APPENDIX. 
 
 FORM XXIII. 
 
 GENERAL FORM OF CLAUSE. 
 
 To the intent 
 that the gran> 
 tee may be 
 tenant to the 
 praecipe for 
 suffering a 
 common reco- 
 verj'. 
 
 Mode of suf- 
 fering the re- 
 covery pre- 
 scribed. 
 
 Declaratory of the Intention and Agreement to suffer a 
 common Recovery, and declare the Uses thereof with some 
 of the more ordinary Variations. For other variations, 
 see the appropriate Forms. 
 
 TO THE INTENT that the said 
 may be tenant of the freehold of the said 
 hereby released or otherwise assured, or intended 
 so to be, and every part and parcel of the same, 
 with their rights, members, and appurtenances, 
 to the end^ that one or more good and perfect 
 common recovery or recoveries, with double 
 voucher, may be had and suffered of the same 
 hereditaments. And for that purpose, it is 
 hereby directed, declared, and agreed, by and 
 between all the said parties to these presents, 
 as far as they respectively arc interested, that the 
 said shall permit and suffer the said 
 
 or some other person or persons, at 
 the costs and charge in all things of the said 
 his heirs, executors, or administra- 
 tors, at any time or times hereafter to sue forth 
 and prosecute against him, the said
 
 RECOVERY DEED. 
 
 482-483 
 
 (a) out of his majesty^s high court of Chan- 
 cery (6) one or more writ or writs of entry 
 sur dissemn en le post^ returnable before his 
 majesty's justices of the court of Common Pleas, 
 at Westminster ; and thereby demand of the said 
 the and premises hereby released, or other- 
 wise assured, or intended so to be, with their, and 
 every of their rights, members, and appurtenances 
 (c), by the names and descriptions of 
 or by such other apt, good, sufficient, and proper 
 names, number of messuages, and acres, quanti- 
 ties, qualities, and other descriptions, as shall be[ 
 deemed necessary, proper, sufficient, and requisite 
 to comprise the same [d). And that the said 
 
 (a) When the lands are in any 
 of the Welsh co'intiesJ] One 
 or more writ or writs of quod 
 ci deforceat, in the nature of 
 a writ or writ of entry sur 
 disseisin en le post, and to be 
 returnable before his majesty's 
 justice or justices for the said 
 county of — . 
 
 When the lands are in the 
 county palatine of Chester.'^ 
 Out of his majesty's court of 
 Exchequer at Chester, one or 
 more writ or writs of entry, sur 
 disseisin en le post, returnable 
 before his majesty's justice or 
 justices of Chester. 
 
 When the lands are in the 
 
 county palatine of Durham.'] 
 
 Out of the court of chancery 
 
 at Durham, one or more writ 
 
 or writs of entry, sur disseisin 
 
 en le post, returnable before 
 
 the justices of the court of 
 
 Pleas, at Durham. 
 
 When the lands are in the 
 
 county palatine of Lancaster.'] 
 
 Out of his majesty's court of 
 
 Chancery for the county pala- 
 tine of Lancaster, one or more 
 
 writ or writs of entry, sur dis- 
 seisin en le post, returnable 
 before his majesty's justices of 
 Assize for the same county 
 palatine. 
 
 [b] When the lands lie in 
 two or more counties.] Two 
 or more writs, &c. ; and by 
 one of the said writs demand 
 of the said the said 
 
 situate in the said 
 county of by the names 
 and descriptions of ; 
 
 and by the other of the said 
 writs demand of the said 
 , the said situate 
 
 in the said county of , 
 
 by the names and descriptions 
 of — . 
 
 (c) Sometimes the descrip- 
 tion is omitted. 
 
 {d) As to lands in Wales.] 
 And shall make protestation 
 to pursue the said writ or 
 writs in the nature of a writ or 
 writs of entry, sur desseisin en 
 le post at the common law, 
 acccrdinop to the statute in 
 that behalf. 
 
 483 ]
 
 484 APPENDIX. 
 
 shall in his own person, or by his attorney or at- 
 tornies, lawfully authorised in that behalf, appear 
 to the same writ or writs, and [e) vouch to warranty 
 the said And that the said 
 
 shall in his own person or by his attorney or at- 
 tornies, law^fully authorised in that behalf, appear 
 gratis, and freely enter into the warranty of the 
 said ; and taking the same upon himself, 
 
 vouch over to warranty the common vouchee of 
 the said court of (/) Common Pleas for the time 
 being ; who shall appear gratis, and freely enter 
 into the warranty of the said and after impar- 
 
 lance make default. So that judgment may be 
 [ 484 ] given upon the said writ or writs, and every ot 
 them, or the said or other demandant or 
 
 demandants, to recover all and singular the said 
 hereby released, or otherwise assured, or 
 intended so to be, and every part and parcel of 
 the same, with their and every of their rights, 
 members, and appurtenances, by such names, 
 quantities, qualities, and other descriptions as 
 aforesaid, (§') against the said ; and for the said 
 
 (e) When the Recover]/ is to toniey or attoniits lawfully 
 
 be u'ltli treble voucher, the authorised hi that behalf, ap- 
 
 form may be to this effect.'\ pear jrratis, and freely enter 
 
 Vouch to warranty the said into the warranty of the said 
 
 \^ first vouchee.'\ And lie [/?/-if vonchee'\\ and lakini;- 
 
 shall, in his own person, or the same on himself vouch over 
 
 by l)is attorney or attornles to warranty the common 
 
 lawfully authorised in that vouchee, &c. 
 belialf, apjicar i^^iatis, and (/") Great session, or 
 
 freely enter into tlie warranty Pleas, or of the said county 
 
 of the said \tenanC\ ; and palatine. 
 
 tukin<j the -same on himself, (g) fl'ben wilh treble vouch- 
 
 vouch to warranty the said er.] Against the said [tenant]; 
 
 [second vouchee]. And the and for the said [tenant] to 
 
 said [second vouchee] shall, in recover in value against tlie 
 
 hii> own person, or by his at- said [first vouchee] ; and for
 
 RECOVERY DEED. 485 
 
 to recover in value against the said 
 and for the said to recover in value against 
 
 the common vouchee as is usual in such cases. 
 And that upon all and every recovery and reco- 
 veries to be suffered as aforesaid, execution may 
 be sued and prosecuted by, and seisin had, taken, 
 and delivered unto the said or other de- 
 
 mandant or demandants, accordingly. And that 
 every other act or thing needful, requisite, or 
 proper, to be done or executed for the purpose of 
 suffering and perfecting a common recovery or 
 recoveries of the said hereby released or 
 
 otherwise assured or intended so to be, with dou- 
 ble, treble, or other voucher to dock the estate- 
 tail of the said of and in the same 
 and all reversions and remainders over 
 and expectant upon the same estate-tail [h) may be[ 485 ] 
 made, done, and executed. And by wav of di-^''"^'^*^'^" ^h*' 
 
 ~ *^ recovery 
 
 rection and declaration, and not of covenant, itshall be sufi. 
 is hereby granted, declared, and agreed, by and ^^^ 
 between the said parties to these presents, as far 
 as they respectively are interested, and they 
 hereby for themselves severally and respectively, 
 and for their several and respective heirs, exe- 
 cutors, and administrators, consent and agree 
 according to their respective estates, rights, and 
 interests in the premises, that the recovery [i) 
 hereby agreed to be suffered shall be suffered and 
 
 the said [^firxt voudiee^ to re- extitignish dower or coitvei/.'^ 
 
 cover in value asjainst the And to extinguish the dower, 
 
 said [second vouchee^; and right or title of dower, of the 
 
 for the said [second vouchee^ said and to pass the seve- 
 
 to recover in value against the ral estates of the said and 
 common vouchee, &c. his wife of and in, &c. 
 
 {h) When parties join to (i) Or recoveries.
 
 486 
 
 APPENDIX. 
 
 and that par- 
 ties will give 
 effect thereto. 
 
 Declara- 
 tion that 
 after judg- 
 ment ob- 
 tained^ 
 
 the recovery. 
 
 the lease for 
 a year, 
 
 the present 
 deed, 
 
 and all other 
 fines, &c. 
 
 r 486 
 
 perfected with all possible dispatch ; and that 
 they respectively and their respective heirs on 
 their respective parts will use their utmost en- 
 deavours to give effect to the same recovery (i) and 
 also to these presents, and the grant, release, con- 
 firmation or other assurance hereby made. And 
 
 IT IS HEREBY FURTHER DIRECTED, declared, 
 
 and agreed, by and between all the parties to 
 these presents as far as they respectively have 
 any right, title, or interest in the premises, that 
 immediately upon and after judment obtained, 
 and seisin had and taken upon such recovery or 
 recoveries as aforesaid, the recovery or recoveries so 
 as aforesaid, or in any other manner, or at any other 
 time or times to be suffered : and also the bargain 
 and sale for a year, bearing date on the day next 
 before the day of the date of these presents : and 
 also these presents, and the assurance hereby 
 made ; and all and every other fine and fines, reco- 
 il very and recoveries, and other assin-ances whatso- 
 ever at any time or times heretofore, and to be at 
 any time, and from time to time hereafter, had. 
 made, done, levied, suffered, executed, and perfect- 
 ed, of or concerning all or any part of the said 
 hereby released, or otherwise assured, or intended 
 so to be, either by themselves solely and alone, 
 or jointly and together witli any other lands, 
 tenements, or hereditaments (A:), by or between 
 all and every or any or either of the persons who 
 are parties to these presents, or to which they, or 
 any or either of tliem is, are, or shall, or may be 
 
 (/) Or recoveries. ther with any other part of 
 
 (/i) When an undivided the sariu". 
 share.'] Or jointly and toge-
 
 KEC6VERY DEED. 486 
 
 parties or privies, or a party or privy, sliall, 
 as to all the said parties to theso presents re- 
 spectively, so far as they respectively can law- 
 fully, or rightfully direct the uses of the same 
 fine and fines, common recovery and recove- 
 ries, and other assurances, be and enure, and be shall enmv ; 
 adjudged, expounded, deemed, decreed, and taken 
 to be and enure, and that the same was and were 
 meant and intended, and is and are hereby di- 
 rected and declared to be and enure ; and also And that tJie 
 that the person or persons to whom the said fine ^^"^j.l^^'JJ''' 
 or fines, common recovery or recoveries, and other stand seised. 
 assurances respectively have or hath been, or 
 shall or may be levied, suffered, made, and exe- 
 cuted, shall stand and be seised, (/) As to, for, andAsto the 
 concerning the said hereby released, or |,^'"^^ '^°"^'"''' 
 
 otherwise assured, or intended so to be, and every 
 part and parcel of the same with the appurtenances. 
 To the use, &C. To uses, &c, 
 
 (/) This cluiise of qualification should never be on.ittd. 
 
 VOL. 1. L L
 
 487 APPENDIX. 
 
 XXIV. 
 
 A more concise Form of a Declaration and Agreement to 
 suffer a Common Recovery* 
 
 TO THE INTENT that the said may be 
 tenant of the freehold of the said hereby 
 
 released or otherwise assured or intended so to be, 
 with the appurtenances, to the end that one or 
 more common recovery or recoveries with double 
 voucher may forthwith, and at the costs and 
 charges of the said be had and suffered of 
 
 the same premises, by the names and descriptions 
 of upon a writ or writs of entry sur dis' 
 
 seisin en le post, in which the said shall be 
 
 demandant ag^ainst the said , who shall vouch 
 to warranty the said , who shall vouch the 
 
 common vouchee, as is usual in such cases. So 
 that judgment may be given for the said to 
 
 recover the said hereby released, or other- 
 
 wise assured, or intended so to be, against the 
 said ; and for the said to recover in value 
 
 against the said ; and for the said to re- 
 cover in value aa^ainst the common vouchee. And 
 so tliat execution may be awarded, and seisin 
 taken, upon the recovery or recoveries to be suf- 
 fered as aforesaid, ac^cording to the usual form of 
 connnon recoveries used in like cases.
 
 KECOVERY DEED. 488 
 
 FORM XXV. 
 
 Skoit Declaration of Uses. 
 
 AND it is hereby directed, declared, and agreed, 
 by and between the parties to these presents, as 
 far as they respectively are interested, that after 
 the recovery or recoveries hereby agreed to be 
 suffered, shall be suffered, as aforesaid, or in any 
 other manner, the same recovery or recoveries, 
 and all fines levied and to be levied, and recoveries 
 suffered, and to be suffered, of the said here- 
 inbefore mentioned and intended to be hereby re- 
 leased, or any of them, either alone or jointly with 
 any other lands and hereditaments, shall, as to, 
 and concerning the hereinbefore released 
 
 with the appurtenances, operate, and enure, To the 
 use of the said her heirs and assigns for ever. 
 
 L L 2
 
 439 
 
 APPENDIX, 
 
 FORM XXVI 
 
 Mode of framing a Ticcovc7-y Deed when the Uses of the 
 Iltcovery arc declared in that part u-hicli contains the C'o«- 
 vej/ancc of the Estate. 
 
 The object of this form was to vest the legal estate in thg 
 owner, during the interval bettvcen the date of the recocery 
 deed, and the time of suffering the recovery. (Jonsequently all 
 mortgages, S^c, before the recovery will operate on the legal 
 estate. 
 
 HABENDLjito To HOLD, &c, unto the said Sir J. R. and his 
 fe(^_^^'^" '''^ "'heirs. To i he uses, &c. (/. e.) To the use of the 
 To the use of said C. D. aiid his assigns, for and during the 
 c.D.forjointj^jjj^ natural hves of the said Sir J. R. and C. D. ; 
 and for the purposes and to the intent, only, here- 
 inafter expressed and declared of and concerning 
 the estate hereby limited to the use of the said 
 iifinaiiider. C. D. and his assigns. And from and after the de- 
 termination of the estate hereinbefore limited to the 
 use of the said C. D. and his assigns for the joint 
 natural lives of the said Sir J. R. and C. D, and 
 in the mean time subject and without prejudice 
 to the same estate for life, To the use, &c. [o/* 
 Sir J. JR.'s (ippoinlmcnt, S^,'c. and to prevent dower, 
 in the usua I form .] A k d i t is h e ii e b y d e c l a r - 
 D-claration j^ n and agreed by and between the said parties to 
 
 that the OS- , ,> , 5 1 
 
 tate is limited tliese presents, as lar as they respectively are 
 
 C D\n'makc'"^^^^'^^^'*-'' ^'^^^- ^'^^ ^'^'*-* ^' ^' '"'^ ^^^^ aSsigUS, 
 
 him teriaiit tu shall Stand and be seised of the said messuage, 
 foTsXrmga&c. herciubcfore limited to the use of the said 
 recoverv. ^j y) ^ aud his assigus for the joint natural lives of 
 
 To the tisual 
 Kses for pre- 
 
 (lower.
 
 RECOVERY DEED. 490-491 
 
 the said Sir J. U. and C. D, To the intent, 
 Szc. [^ronunon form of Recovery Clau!\e.~\ The 
 declaration of uses is — To the uses, upon the trusts, The recovery 
 and for the ends, intents, and purposes, herein- enure. 
 before limited, expressed, and declared, of and 7'"^^"^^*' 
 concerning the same; save and except the estate cd, 
 hereinbefore limited to the use of the said C. D . "^'^'^i'*'"^' *'*« 
 
 II- ■ , , . . , ,. ^ limitation to 
 
 and his assigns tor the joint natural lives of the the use of 
 said Sir J. R. and C. D, it being intended that^'^^' 
 the same estate shall cease and be extinguished 
 as soon as the recovery hereby agreed to be suf- 
 fered shall have been sutfered ; and in all otlier 
 respects in confirmation of these presents, and for 
 tlie purpose of giving more full and complete 
 effect to the same. 
 
 FORM XXVII. |- 491 ] 
 
 Another Form of declarit^g the Uses of the nccorerij, hy 
 reference to that part of the Deed which contuiiis the 
 Convey avce of the Estate. 
 
 To, FOR, AND UPON THE USES, trustS, tcrms. ^o the uses 
 , . , > 1 • before nmit- 
 
 ends, intents, and purposes, ana subject to the cd, subse- 
 several provisoes, declarations, and agrcements, |.[j{^"' 5-JJj.*^Jj^g 
 hereinbefore limited, expressed, and declared, Jo"it lives, 
 concerning the same, and the respective parts and 
 shares thereof, after and expectant on the estate 
 hereby limited to the use of the said and 
 
 his assigns for the joint lives of the said and 
 
 , being an estate which is to cease and be 
 extinguished after the recovery or recoveries hereby 
 agreed to be suffered shall be suflered.
 
 492 APPENDIX. 
 
 FORM XXVIII, 
 
 Covenant to suffer a Coinmon Recovery. 
 
 AND also that in the first term which shall 
 happen next after the death of the said or 
 
 in her life-time, if the concurrence of the said 
 or her assigns can be obtained thereto, he 
 the said or his heirs in tail, shall or will, at 
 
 his or their own costs and charges make, do, and 
 execute, consent to, and concur in all such acts, 
 deeds, proceedings, and assurances, as shall be 
 necessary and proper for suffering a good, valid, 
 and effectual common recovery of the said 
 hereby granted and demised, or otherwise assured 
 or intended so to be, so as to bar the said estate- 
 tail of the said and the reversion in fee-sim- 
 ple, expectant thereon ; and enlarge the same 
 estate-tail mto an estate in fee-simple ; and also 
 for declaring that the same recovery when suffered, 
 shall, as to the hereby granted and demised, 
 or intended so to be, operate and enure To the use 
 of the said his executors, administrators, 
 and assigns, for all the residue of the said term of 
 500 years which shall be then to come and unex- 
 pired; in confirmation of, and for the purpose of 
 giving more full and complete effect to, these pre- 
 sents, and th(-' term hereby granted, subject never- 
 theless to the proviso or agreement tor redemp-
 
 RECOVERY DEED. 493-494 
 
 tion, hereinbefore contained. And it is hereby 
 further directed, declared, and agreed, by and 
 between the parties to these presents, that all fines 
 levied, and to be levied, and all recoveries suf- 
 fered and to be suffered, and all other assurances, 
 made and to be made of the said hereby 
 
 granted, or demised, or intended so to be, either 
 alone, or with other lands and hereditaments, 
 shall, as to the said hereby granted and 
 
 demised, or intended so to be, operate and enure 
 To the use of the said his executors, admi- 
 
 nistrators, and assigns, for the said term of 500 
 years, or the then residue thereof, according to 
 the true intent and meaning of these presents , in 
 confirmation of, and for the purpose of giving 
 eifect to the same term, subject nevertheless to 
 the proviso or agreement for redemption herein- 
 before contained. 
 
 FORM XXIX. [- 4g^ J 
 
 Desire of the Tenant of a remote Estate-Tail to svfftr a 
 Recovery. 
 
 AND WHEREAS the said J. B. is desirous 
 of enlarging the several estates-tail limited to him 
 as aforesaid, into estates in fee simple, subject to 
 the estate-tail of the said S. D.
 
 49 J APPENDIX. 
 
 FORM XXX. 
 
 Expediency of Recover i/. 
 
 AND WHERExVS it is deemed expedient that 
 a recovery should be suffered by the said B. B. 
 party hereto, for the purpose of barring his estate- 
 tail, if any, in the said &c. hereinafter re- 
 leased, &c. and the re\ersions and remainders over 
 and expectant upon such estate-tail. 
 
 [ 495 ] 
 
 FORM XXXI. 
 
 Request to join in snfferiug a Common Recoccry. 
 
 AND WHEREAS the said F. G. hath re- 
 jquested the said B. B. party hereto, and J. T. and 
 M. his wile to join with him in suffering a com- 
 m(jn recovery of the said hereafter released, 
 
 and in limiting the same to the use of 
 
 the said F. G. his heirs and assigns for ever, dis- 
 charged of the said estate-tail, and the reversions 
 and remainders over, and also dischai'gcd from the 
 dower, right, and title of dower of the said M. T.
 
 RECOVERY DEED. 4^6 
 
 FORM XXXII. 
 
 Short Recital of the Creutioa of the Kstale-Tail, and 
 Agreement to suffer a Recovery for the purpose of effecting 
 a Partition, 
 
 WHEREAS the said F. A. P. and E. M. are 
 
 the daughters and only children of J. A, late of, 
 &c. and as such are tenants in common, in tail, 
 of the messuRLres and hereditaments hereinafter 
 described, and also released or otherwise assured 
 or intended so to be, under and by virtue of 
 the last will and testament of 11. W, &c. bearing 
 date, &c. and proved in the prerogative court of 
 the archbishop of Canterbury, on, &c. And 
 WHEREAS the said W. P. and F. A. his wife, and 
 E. M. have agreed to join in suffering a common 
 recovery of the said messuages, &c. and have also 
 agreed upon a partition of the same messuages, &c. 
 and for those purposes have consented and agreed 
 that the same messuages, &c. shall be limited to 
 the uses hereinafter expressed and declared, of 
 and concerning the same.
 
 497 APPENDIX. 
 
 FORM XXXIII. 
 
 Deduction of Title into the intended Vouchee. 
 
 AND WHEREAS the said J. C. is the only 
 son and heir at law of the said L. C. deceased, 
 (formerly L. N.) by A. C. her husband deceased: 
 and the said L. C. was one of the three daughters 
 of R. N. deceased : and the said J. C, (being the 
 only surviving issue of the said R. N,) is seised 
 to him and his heirs of the said hereinafter 
 
 described, and hereby released, or otherwise 
 assured, or intended so to be, for an estate-tail in 
 possession, under or by virtue or means of certain 
 indentures of lease and release, bearing date, &c., 
 and made, &c. ; whereby the said were con- 
 
 veyed and assured, or appointed, to M. T. since 
 deceased for her life ; with remainder as to one of 
 the said to the use of W. N. for an estate- 
 
 tail which is determined by his death, without 
 issue ; with remainder to the use of the said R. N. 
 in tail, and as to the other of the said with 
 
 the appurtenances, to the use of the said R. N. in 
 tail.
 
 KECOVERY DEED. 498 
 
 FORM XXXIV. 
 
 Intention to suffer Recovery, and Agreement of Tenant 
 for Life to join in Recovery Deed. 
 
 AND WHEREAS the said is desirous to 
 
 bar the said estate-tail, and all remainders depen- 
 dant thereon, and hath requested the said to 
 do such acts as shall be necessary for vesting in 
 some person the freehold of the said premises 
 that he may become tenant thereof, and that one 
 or more common recovery or recoveries may be 
 sufibred of the same. And whereas the said 
 hath consented to grant and release the said 
 premises to in manner hereinafter mentioned, 
 yet so, as not to prejudice the use or estate by 
 the said recited settlement limited to her for lite, 
 for her jointure ; or any of the powers, remedies, 
 and privileges for her benefit therein contained. 
 
 N. B. The limitation was for the joint lives of the 
 jointress and tenant to the praecipe ; subject to a 
 condition to defeat the estate in default of pay- 
 ment o/^ 100,000 on a given day.
 
 499--'00 A P 1> E N D I X . 
 
 FORM XXXV. 
 
 Deduction of Title into lite intcndf.d Vouchee, and Determi'^ 
 nation to suffer Recovery. 
 
 AND WHEREAS under and by virtue of the 
 said will of W. 11. late of, &c. deceased, bearing 
 date, &c. and by the several deaths of A. the wife 
 of the said testator, and E, B, who were tenants 
 for life under that will, the said E. J. is tenant in 
 tail in possession of the messuage, &c. hereinafter 
 particularly described, and also released, or other- 
 wised assured, or intended so to be, and is desirous, 
 and hath determined to suffer a recovery thereof. 
 
 [ 500 ] FORM XXXVI. 
 
 Douhts of the Validity of a former Recovery. And Agree- 
 ment to suffer another Recovery. 
 
 AND WHEREAS doubts are entertained of 
 the validity of the said last recited recovery, for 
 want of the concurrence of the person in whom 
 the legal estate was vested at that time, and on 
 that account it is deemed expedient that another 
 rc^covery should be suffered ; and upon the ap- 
 plication, and at the instance and re(juest of the 
 said G. V. the said E. R. hath agreed to join in 
 the conveyance hereinafter contained, and to 
 suflfer another recovery of the said capital mes- 
 suage, &c.
 
 RECOVERY DEED. 601 
 
 FORM XXXVII 
 
 Vetermhiatlon to suffer a Recoverij, and consent of Dowresf 
 
 to Join. 
 
 AND WHEREAS the said J. A. hath deter- 
 mined to suffer a common recovery of the said 
 hereinafter described, and hereby released, 
 &c. and to settle the same to the uses, upon 
 
 the trusts, and for the ends, intents, and pur- 
 poses, hereinafter expressed and declared, con- 
 cerning the same ; and the said A. A. hath agreed 
 to join in the conveyance hereinafter contained, 
 and the recovery hereby agreed to be suffered, 
 for the purpose of extinguishing all such dower, 
 right, and title of dower, as she hath of and in 
 the same hereditaments.
 
 502 APPENDIX. 
 
 FORM XXXVIIL 
 
 Recital of Two Bargains and Sales, and Two Recoveries, 
 
 AND WHEREAS by two several indentures 
 of bargain and sale, of three parts, one bearing 
 date, on or about, &c. and the other bearing date 
 on or about, &c. and each made, or expressed to 
 be made, between, &c. and each duly inrolled 
 in his majesty's court of K. B. at Westminster, 
 and a common recovery suffered in Michaelmas 
 term, in the year of the reign of his pre- 
 
 sent majesty, in pursuance of a covenant or agree- 
 ment in that behalf, contained in the said inden- 
 ture of bargain and sale, bearing date on, or abput, 
 &c. and a common recovery suffered in Michael- 
 mas term, in the 39th, year of the reign of his 
 present majesty in pursuance of a covenant or 
 agreement in that behalf contained in the inden- 
 ture of bargain and sale, bearing date on or about, 
 &c. in each of which recoveries the said 
 was demandant ; the said tenant ; and the 
 
 said vouchee, who vouched over the com- 
 
 mon vouchee, all, &c. were conveyed, &c.
 
 RECOVERY DEED. 503 
 
 FORM XXXIX. 
 
 Recital of Recovery Deeds, and Recovery. 
 
 AND WHEREAS for better securing the 
 payment of the said principal sum of £ and 
 interest, and by indentures of lease and release, 
 bearing date, &c. and made, &c. and by a com- 
 mon recovery suffered in pursuance of an agree- 
 ment contained in the same indenture of release, 
 the said manors, &c. were limited and assured, to 
 the use of the said his heirs and assigns, 
 
 for ever ; subject, nevertheless, to such right, 
 power, and equity of redemption by, or in fa- 
 vor of the said his heirs, executors, admi- 
 nistrator or assigns, as was then subsisting of, in, 
 or upon the same manors, &c. under or by force, 
 or virtue of the said hereinbefore recited inden- 
 ture of re ease or mortgage.
 
 504 
 
 APPENDIX, 
 
 FORM XL. 
 
 Recital of Recover!/ suffered. 
 
 AND WHEREAS a common recovery was 
 suffered as of Trinity term in the said year of 
 our Lord 1782, and in that recovery the said 
 P. D. was duly vouched, in pursuance of the said 
 recited indenture of bargain and sale. 
 
 FORJM XLI. 
 
 Siiort Reference to a Recovery suffered; and the Uses 
 
 thereof. 
 
 AND WHEREAS the said R. L. hath in 
 due form of law sufiered a common recovery of 
 all the manors, &c. comprised in the said term 
 of 1200 years, and by virtue or means of the said 
 recovery, and the declaration of the uses thereof, 
 is now seised of the fce-sim})lc and inheritance of 
 the same lands and hereditaments.
 
 KECOVERY DEED. 
 
 505 
 
 FORM XLII. 
 
 yiode of introducing the Recital of a Lease, Release, Fine, 
 and Recovery, and Declaration of the Uses thereof. 
 
 AND WHEREAS by indentures of lease and 
 release, &c. made between, &c. and by a fine 
 levied, and common recovery sutlered, in pur- 
 suance of several covenants and agreements con- 
 tained in the said indenture of release, and by a 
 declaration of the uses of the same fine and com- 
 mon recovery respectively contained in the said 
 indenture of release, all, &c. were, &c. 
 
 FORM XLIII. 
 
 Recital of Recovery suffered after Death of Tenant for Life. 
 
 AND WHEREAS after the decease of the 
 said countess, the said J. earl of S. in order to 
 bar all estates-tail and remainders, and to acquire 
 to himself an absolute estate in fee-simple, did 
 by indentures of lease and release, bearing date 
 respectively on or about, &c. the indenture of 
 release being of three parts, and made or express- 
 
 VOL. I. M M
 
 506* APPENDIX. 
 
 ed to be made between, &c. grant, release, and 
 convey, all and singular the same hereditaments 
 and premises unto and to the use of the said 
 and his heirs, to make him tenant of the 
 freehold, in order that a common recovery might 
 be suffered thereof; and the same common re- 
 covery was by the said indenture of release, of, 
 &c. declared to enure to the use of the said J. 
 earl of S. his heir and assigns for ever: and a 
 common recovery in which the said J. earl of 
 v^. was vouched, was accordingly suffered and per- 
 fected as of Michaelmas term, 1797. 
 
 FORM XLIV 
 
 Recital of a Recoveri/ suffered with treble Voucher. 
 
 AND WHEREAS the said R. W, &c. did as 
 of the same Trinity term suffer a common re- 
 covery of the hereditaments comprised in the said 
 fine, and among them of th(^ said messuage or 
 tenement, &c. here])y released, ^c. ; and in the 
 said recovery II. W, gentleman, was demandant, 
 the said IT. R. tenant, the said R. W. was the first 
 vouch('(>, tlic said J. N. and M. his wife were 
 second vouchees, and the said J. N. and M. his 
 wife vouched over the common vouchee.
 
 IIECOVETIY DEED. 507 
 
 FORM XLV. 
 
 Recital of a Recovery svJJ'cred of Customari/ Lands, S,-c. 
 
 AND WHEREAS tor the purpose of extin- 
 guish iug all estates-tail and equitable interests in 
 the nature of an estate-tail, which the said C. J. C. 
 then had in the said parcel of customary land with 
 the appurtenances, and for barring all remainders, 
 and other estates expectant on the estates-tail or 
 equitable interests, the said C. J. C. did on or 
 about the day of now last past, duly 
 
 surrender the same parcel of customar^^ land to the 
 use of CD.; and a recovery hath since been 
 duly suffered in the court of the lord of the said 
 manor, of the same parcel of customary land, with 
 the appurtenances ; and in that recovery the said 
 A. B. was demandant, the said C. D. tenant, and 
 the said C.J. C. vouchee ; and he vouched over, 
 according to the usual customary mode of suffer- 
 ing recoveries, for barring intails of copyhold 
 lands, parcel of the said manor ; and the same 
 parcel of customary land hath been surrendered 
 by the said C. D. to the use of the said C. J. C, 
 his heirs and assigns, and he hath been read- 
 mitted thereto. 
 
 M M 2
 
 508-509 
 
 APPENDIX. 
 
 FORM XLVl. 
 
 Recital that it is expedient that a Tenant in a former RecO' 
 vert/ Deed sliould join in a Aeic Rccoccry Deed. 
 
 AND WHEREAS it is deemed proper that 
 the said E. E. should join in the release made 
 by these presents, of the hereditaments of the 
 said A. A, to the end that the said E. E. may 
 thereby pass out of him, any estate or interest in 
 the same hereditaments which may have vested 
 in him by force of the general clause following 
 the particular description of the parcels contained 
 in the indenture of lease and release of the 
 and days of now last past, and which 
 
 are hereinafter cited. 
 
 r 509 1 FORM XLVII. 
 
 Recital of Agrectuent to comprise other Lands in the Reco- 
 very, and declare the Uses of these Lands in another Deed. 
 
 AND WHEREAS it hath been agreed that 
 other lands and hereditaments of the said B. B. 
 party hereto, situate in the patish of L. in the 
 said county of L. and which are to be conveyed 
 to the said J. A. by other indentures of lease and 
 release, the indenture of lease bearing date, &c. 
 should be comprised in the said recovery, and 
 that D. the wife of the said B. B. })arty hereto, 
 .should join with the said B. B. in the said reco- 
 very : and that the uses of the lands in L. should 
 be declared to or in favour of the said J. A, his 
 heirs and assigns, by the said last mentioned inden- 
 ture of release.
 
 RECOVERY DEED. 
 
 510 
 
 FORM XLVIII. 
 
 Recital of Lease, Release, and Common Recovery, and Decla- 
 ration of the Uses thereof. 
 
 AND WHEREAS by indentures of lease and 
 release, bearing date respectively on or about the 
 and days of now last past, the inden- 
 
 ture of release being of four parts, and made or 
 expressed to be made between, &c. and by a 
 common recovery duly suffered in Michaelmas 
 term now last past, in which the said was 
 
 demandant, the said tenant, and the said 
 vouchee, who vouched over, and by a declara- 
 tion of the uses of that recovery contained in the 
 said last mentioned indenture of release: all the 
 said messuages, &c. are discharged of and from the 
 said estate-tail, and all reversions and remainders 
 over and expectant on the same estate-tail, and 
 now stand limited (subject nevertheless as here- 
 inbefore is mentioned), to the use of the said 
 his heirs and assigns tor ever.
 
 511 APPENDIX. 
 
 FORM XLIX. 
 
 Recital of Recovery suffered pursuant to Agreement. 
 
 AND WHEREAS a common recovery of the 
 said was suffered in Michaelmas term in 
 
 the year of the reign of his present majesty 
 
 king George the third, between the said F. F. 
 demandant, the said J. B. tenant, and the said 
 B. L. vouchee, pursuant to the said covenant or 
 agreement in that behalf contained in the said 
 last in part recited indenture of release, and in 
 that recovery the said B. L. vouched the com- 
 mon vouchee.
 
 RECOVERY DEED. 512 
 
 FORM L. 
 
 Recital that Recover}/ was voidable for want of the Concur- 
 rence of Tenant for Life. Expediency of another Recover i/. 
 Consent of necesaary Parties to join. 
 
 AND WHEREAS it is apprehended that the 
 said hereinbefore recited recovery was voidable 
 as far as the same related to or concerned the said 
 messuages, &c. hereby released or otherwise as- 
 sured, or intended so to be, for want of the con- 
 currence of the said J. B. in conveying the freehold 
 of the said messuages, &c. to the said H. B. ; and 
 it is therefore deemed expedient that another re- 
 covery should be suffered. And whereas the 
 said J, N. and M. his wife are willing to join in 
 the said recovery, and to be vouched for the 
 purpose of barring the estate-tail of the said M. N. 
 in the said messuages, &c. hereby released, &c.. 
 And WHEREAS the said J. S, J. N. and M. his 
 wife, have apphed to the said H. B. and J. B. and 
 requested them to join with the said in con- 
 
 veying the said messuages, &c. hereby released, 
 &c. unto and to the use of the said his heirs and 
 assigns, to the intent that he may be tenant of the 
 freehold of the same messuages, &c. and that a 
 recovery may be suffered thereof, to the use of the 
 said J. S. his heirs and assigns for ever ; upon the 
 trusts which by the said last hereinbefore recited 
 indentures of lease and release are declared of and 
 concerning the said messuages, &c. hereby re- 
 leased, &c.
 
 513 APPENDIX. 
 
 FORM LI. 
 
 Recital of Bargain and Sale and Common Recovery, and 
 Declaration of the Uses thereof. 
 
 AND WHEREAS by indenture quadrupar- 
 tite, bearing date on or about the day of 
 and made between, &c. and duly inrolled in the 
 court of on or about the day 
 
 of , and by a common recovery suffered in 
 
 pursuance of a covenant for that purpose con- 
 tained in the said indenture of bargain and sale, 
 and a declaration of the uses of that recovery, con- 
 tained in the same indenture of bargain and sale, 
 the said manors, messuages, lands, and heredita- 
 ments were discharged from the estate-tail of, &c. 
 and limited to the use of the said H. G. and F. G. 
 their heirs and assigns for ever.
 
 RECOVERY DEED. 514 
 
 FORM LII. 
 
 Recital of hulcntxires of Lease and Release, and (Jomjnon 
 Recovery, and Declaration of Uses. 
 
 AND WHEREAS under and by virtue of cer- 
 tain indentures of lease and release, bearing date 
 respectively, on or about the and days 
 
 of in the year and made or expressed 
 
 to be made between, &c. and by means of a 
 common recovery duly suffered in pursuance of 
 a covenant or agreement contained in the said 
 indenture of release, and a declaration of the uses 
 of that recovery contained in the same indenture 
 of release, all that manor, and those messuages, 
 &c. hereinafter mentioned, and described to be 
 situate in the county of N, and hereby granted, 
 &c. with their and every of their rights, members, 
 and appurtenances were conveyed or otherwis« 
 assured, to the use, &c.
 
 AN 
 
 ANALYTICAL DIGEST, 
 
 BY WAY OF 
 
 INDEX TO THE PRINCIPAL POINTS IN THIS VOLUME. 
 
 PAGfi. 
 
 ABATEMENT. The freehold is acquired by abate- 
 ment . . 224,225 
 A fine by an abator may operate by non-claim ibid. 
 
 ABATOR. An abator may by his fine, gain a title by 
 
 non-claim . . 224 
 
 ABEYANCE. Law careful to avoid abeyance of freehold 44 
 Query. If any occupancy of freehold till administra- 
 tion, when the administrator is to take as occupant ib. 
 The freehold of the church is in abeyance during the 
 
 vacancy of an incumbent . 45 
 
 See Contingency. Resulting Use. 
 
 ABSTRACT. When wills of reversioners after an estate- 
 tail should be required, to be added to abstract 15 
 Should be submitted to conveyancer, when preparing 
 
 recovery deed . , 28 
 
 The return of the writ of seisin should be shown 150 
 
 ACCELERATION. An estate is accelerated by merger 
 
 or surrender . . 48 
 
 Debts charged on the reversion accelerated by merger 10 
 
 Query. If this applies to equitable estates ib. 
 
 ACCEPTANCE of lease by remainder-man rebuts the pre- 
 sumption of a surrender . 84 
 
 ACKNOWLEDGMENT may be before the writ is sued 
 
 out . ' . 275 
 
 One of the principal acts of the parties in a fine 292 
 
 Time of acknowledgment is immaterial . 293 
 
 ACQUIESCENCE affords presumption of a surrender 83 
 
 ACTION REAL. Recovery is one in form . 8
 
 516 INDEX. 
 
 ACTION REAL,— Continued. 
 
 Discontinuance makes an action to restore the seisin 
 necess-aiy . . 13 
 
 Learning of real actions to be stu(^;ed, to understand 
 the doctrine of common recoveries . 49 
 
 Difference between real actions and common recoveries 
 as to lessees for lives . . 09 
 
 All conveyances by tenants io tail are to be avoided 
 by entry or action . . 93 
 
 Rule in real actions founded on a title . 171 
 
 The interest of issue in tail and those in remainder, 
 &c. is turned into a right of action, by discontinu- 
 ance . . 206, 246 
 
 Right of action cannot be transferred . 206 
 
 Is not devisable . ib. 
 
 May be extinguished by a release or by fine ib. 
 
 Not necessary, that an estate should be turned into a 
 right of action, to call the statute of non-claim into 
 operation . . 227 
 
 When there is a mere right of action an ejectment 
 cannot be brought . . 246 
 
 When the remedy is doubtful, a real action is prefer- 
 able to an ejectment . ib. 
 
 An entry by a particular tenant, will restore a seisin 
 to those in remainder, &c. where they have merely 
 a right of action . . 247 
 
 It is sufficient that an action is brought within five 
 years, though judgment be not obtained till a sub- 
 sequent period . . ib. 
 
 An action is necessary only when the title is legal 248 
 ADMEASUREMEINT of parcels . 272 
 
 There must be an affidavit of intention to include 
 them when an application is made to amend parcels 
 in a fine, &c. . . 273 
 
 ADiMINISTIt ATION. '^Vaut of title for want of letters of 
 
 administration suspends the statute of non-claim 238 
 
 But if it begins to run, it will not be suspended by 
 the want of letters of administration . 242 
 
 ADMINISTliATaUS, made occupants . 44 
 
 Occupancv till adnunistration . , ib. 
 
 ADVERSE POSSESSION is necessary that a fine may 
 
 operate by non-claim . . 224-7 
 
 A subsequent adverse possession will not support a 
 previous fine . . 228 
 
 Till there is a right of entry, there cannot be an ail- 
 verse possession . . 238 
 
 Acceptance of rent may prevent an adverse possession 239 
 
 A conveyance by tenant in tail, prcvtnts an adverse 
 possession as against iiim . . ib. 
 
 ADVOWSON. Fine inav belcviedof an advowBon 269
 
 INDEX. 0I7 
 
 t>A6B. 
 
 AFFIDAVIT. Affidavit of intent to include parcels in a 
 
 fine is required when an application is made to amend 273 
 
 AGREEMENT. Agreement of the {)artics should limit 
 
 the extent of the warranty . 289 
 
 ALIENATION. When an estate-tail is of the gift of the 
 crown, the tenant in tail is restrained from aliena- 
 tion . . . . 18, 144 
 Circumstances which cause the restraint . 145 
 Woman tenant in tail ex provisione viri restrained 
 
 fiom alienation by herself solely . 19, 146 
 
 Recovery may be suffered by tenant in tail after 
 
 alienation, or by issue . . 22, 138 
 
 An aliened in tail not barred by single voucher . 123 
 Tenant in tail after, &c. considered for the purposes 
 of alienation, merely as tenant for life . 1-14 
 
 ALIENS. An alien may bar remainders by recovery 140 
 
 An alien may levy a fine, which will be good against 
 all persons except the king . . 257 
 
 ALIQUOT PART. AVhen recovery is of an aliquot part, 
 the freehold, and estate-tail should be in the same 
 share . . . 144, 165 
 
 See Joint-tenants. Coparceners. Common, Tenants in. 
 
 AMENDMENT of fine, as to the parcels, must be by the 
 
 deed of uses . . . 272 
 
 An error in the entry of the king's silver is amendable 277 
 
 ANCESTOR. A fine by one ancestor to the intail, will 
 
 bar the issue . . . 307 
 
 Not so of a recovery . . . 143 
 
 One ancestor in tail not barred by the fine of the other 307 
 See Descent. 
 
 ANCIENT DEMESNE. Diff'erence between lands in 
 
 ancient demesne, and copyholds . 2CG' 
 
 Within the extent of the jurisdiction of the courts of 
 Westminstev-IIall . . . ib. 
 
 A fine in the Common Pleas of lands in ancient de- 
 mesne, may be avoided by a writ of rfiiceif 248, 266- 
 
 There can be no proclamations on fines levied in a 
 court of ancient demesne . . 249' 
 
 A fine of lands in ancient demesne levied in the Com- 
 mon Pleas is a voidable only, not void . 266 
 ANNUITIES charged on reversion, accelerated by a fine, 
 
 when the ownerslii|) under the estate-tail merges 10. 
 
 Fine maybe levied of an annuity, on a writ ot annuity, 
 or a writ of covenant . . 269,270 
 
 APPOINTMENT. First use declared in an appoititment, 
 
 is executed bv the statute » - 191
 
 518 INDEX. 
 
 I'AGE. 
 
 ASSIGNEE. A recovery cannot be suffered by assignee of 
 
 tenant in tail ... 4 
 
 ASSUKANCE. A recovery is a common assurance 8,95 
 
 t'ine and recovery may be several parts of" same as- 
 surance . . . 11 
 
 Wliether a recovery and recovery deed dated after the 
 term are one assurance as between the parties 103 
 
 As against a remainder-man, a recovery is a common 
 assurance . . . 119 
 
 Recovery and recovery deed form parts of the same 
 assurance . . . 150 
 
 Bargain and sale with a distinct assurance by fine, no 
 discontinuance . • . 205 
 
 Lease, release, and fine, being parts of the same as- 
 surance, are a discontinuance . . ib. 
 
 ATTAINTED PERSON. After crime and before attainder 
 
 a recovery may be suffered . . 140 
 
 Not after attainder . . . ib. 
 
 31ay levy fines to bind themselves and their heirs, but 
 
 not the king or lord . . 25^ 
 
 May be a conuseeina fine . . 2GG 
 
 ATTORNEY. Whether a corporation aggregate may levy 
 
 a fine by attorney . . , 258 
 
 ATTORNMENT obviated by the statute of Anne . 41 
 
 AUTHORITY. A married woman having a mere autho- 
 rity, need not levy a fine . . 215 
 An authority cannot be barred by nOn-claim . 231 
 In the case of an authority to sell, there is no estate 
 till the authority is exercised . . 232 
 
 AVERMENT. May identify parcels . . 271 
 
 The conusee in a fine may aver the use in himself 317 
 
 AVOIDANCE. The avoidance of a fine for want of free- 
 hold, will not be an avoidance for the benefit of 
 issue in tail . . . 298 
 
 B. 
 
 BANISiniENT. The wife of a banisht d husband may 
 
 levy a fine . . . 254 
 
 BARGAIN and SALE bars (juasi intail of freehokl for 
 
 hves . . . .18 
 
 Tenant may be ma(h' by bargain and sale . 34 
 
 On a l)argain and sale the use passes wstanlcr, but 
 
 subject to be avoided for want of enrolment . 38 
 
 Want of enrolment of a )):irgiiin and saU' f)r making 
 tenant, will vitiate the recovery . 37, 38
 
 INDEX. 519 
 
 BARGAIN AND H\LE.— Continued. 
 
 But enrolment within the six months will be suffi- 
 cient, though it be after the recovery suft'tred 38 
 The recovery will be good in tlie absence of enrol- 
 ment, if the deed can operate in another mode 89 
 Ma\' sometimes operate as a grant, &c, 39, 179, 190 
 Advantages of having bargain and bale, or deed inrolled39 
 No uses can be declared on the seisin of bargainee 40, 189 
 But uses may be declared of a recovery, in a deed of 
 
 bargain and sale . 40, 88, 191 
 
 And uses niay be declared of a bargain and sale, 
 
 which passes a common law seisin 40, 191 
 
 Shifting use not admissable in bargain and sale, unless 
 part of the consideration proceeds from the cestui 
 que use . . 91 
 
 The seisin of bargainor supplies the use 173 
 
 Must be founded on a consideration of money, or mo- 
 ney's worth . 179 
 In a lease, for a year a rent will raise an use 180 
 Barginee is the cestui que use . 190 
 Of bargain and sale of an equitable estate ib. 
 Bargain and sale with a distinct assurance by fine, do 
 
 not create a discontinuance . 205 
 
 An entry by the bargainee under a void bargain and 
 sale will gain the freehold, and his tine may bar the 
 bargainor . . 224 
 
 BARON AND FEME. See Husband and Wife. 
 
 BASE FEE. If there be no discontinuance, the fine of 
 
 tenant in tail passes a base fee 13, 299, 317 
 
 And when the same person has also the reversion in 
 
 fee, the base fee will merge in the reversion 13 
 
 A base fee created by tenant in tail detei mines ipso 
 
 facto, on his death without issue 100 
 
 When the issvie are not barred, they may defeat the 
 
 base fee by their entry . ib. 
 
 BISHOP. A bishop, as such may be barred by nonclaim 
 on a fine ; and his successor for the tmie being 
 will be barred, unless he avoid the fine within five 
 years . . 235 
 
 See Ecclesiastics. 
 
 C. 
 
 CAVEAT. A fine may be stopped by reason of death, 
 
 before payment of the king's silver 292 
 
 CERTAINTY. Parcels may be made out by averment 271 
 
 CESTUI QUE TRUST. A cestui que trust is not barred 
 
 by the fine of his trustee • 233
 
 520 INDEX. 
 
 CESTUI QUE TRVST.—Cimtmued. 
 
 May har his trustee . 233 
 
 One cestui que trust may '>ar another . i|>. 
 
 A cestui que trust is barred by tlie iiondaim of trustee, 
 
 except in the cases of fraud, uifancy, &c. ib. 
 
 To ijive legal operation to a fine levied by cestui que 
 
 trust, he must gain the freehold by ft-offment 2G2 
 
 CHARGES. Prior charge*, or charges on the estate-tail, 
 
 are not barred by recover)' . 10, 141 
 
 Charges derived out of remainders are barred by reco- 
 ver}' of prior tenant in lail . 21 
 
 CHATTEL INTEREST distinguished from freehold 42 
 
 Term of years is a chattel interest . 43 
 
 So is an interest until debts paid . ib. 
 
 A chattel interest is not a sufficient foundation for a 
 
 fine . . 223,225,301 
 
 See Termor for Years. 
 
 CHIEF-JUSTICE may take fine without a writ of dedimus 
 
 potestatem . - . 278 
 
 CHIROGRAPH is the same with the foot of the fine 290 
 
 Conclusive evidence of fine . . 291. 
 
 CHURCH. Abeyance while there is a vacancy of a 
 
 clerk . . .45 
 
 COLLATERAL INTEREST may be extinguished by re- 
 covery . . . O 
 Not barred if annexed to estate of donor of intail 17 
 Springing interest under varying shares, not considered 
 as collateral . . 53 
 
 COLLATERAL LIMITATIONS annexed to an estate- 
 tail may be barred by recovery of tenant in tail 2 
 But not a collateral limitation aimexed to the estate 
 of the donor of the intail . 9, 17 
 
 COLLATERAL ISSUE bound by fine if the estate-tall 
 
 descend on the conusor or his issue . 307 
 
 Not bound unless the intail so descends . 308 
 
 COMMON. A fine cannot be levied of a common in gross 
 
 sans nombre . . 270 
 
 COMMON LAW occupancy altered, and to what extent 
 
 by statute ... 44 
 
 At what time the tenant must have the freehold at the 
 common law . . . Gl 
 
 COMPUTATION of non claim is made from the last pro- 
 clamation, exce[)t in case of disabilities, and then 
 from the period when the disabilities cease 236, 238,290 
 And except in case of future estates, and as to them
 
 INDEX. 521 
 
 COMPUTATION.— Con/m?ter/. 
 
 from the time when they confer the right to the 
 possession . . 236,238,296 
 
 See Noiiclaim. 
 
 CONCORD, ils form und parts . . 277 
 
 Tlie parts of the concord . . 283 
 
 The concord may distribute the parcels . 285 
 
 Theie must be several concords for several counties 280 
 
 CONCURRENCE of leaseliolders for life at rents, unne- 
 cessary in recovery deeds . . 60, 67 
 
 Otherwise of tenants for life, under settlements, or 
 of teiiaiiis by curtesy or in dower . 69 
 
 No conveyance by tenant in a former recovery is ne- 
 cessary, when the intended conveyance for making 
 this person tenant is void . . 102 
 
 On the concurrence of persons having particular 
 estates ... . 107 
 
 CONCURRENT. Springing interest under varying shares 
 
 considered as concurrent rights not barrable 53 
 
 CONDITIONS. A recovci-y may bar conditions annexed 
 
 to estate-tail . . . 2-10 
 
 Tenant in tail cannot be restrained by condition from 
 
 suffering a common recovery . 144 
 
 A condition cannot be barred by fine, till it confers 
 
 a right to the possession . . 231 
 
 Ought not to be allowed in a single fine, but if the 
 
 tine pisses, it will be etl'ectual . . 289 
 
 Allowed in renders . . . ib. 
 
 CONFESSION. Recovery by confession is no bar to issue 
 
 or the remainders . , .119 
 
 CONFIRxMATION. There may be a coafinnntion of a 
 
 prior conveyance by a subs; queat recovery . 22-142 
 
 A fine sometimes operates in toutirrnation of the title 
 of those connected in privity of estate . 223 
 
 Tenant for life may be benefited by a fine levied by re- 
 mainder-man, et e converso , 228, 2. 9 
 
 CONSENT of equitable owner, whether equal to convey- 
 ance • . . , '26 
 
 CONSIDERATION, none neceshary in a recovery deed, 
 
 exce,)t when by bargain and sale . 179 
 
 CONSTRUCTION. A deed may operate in one mode 
 
 though it is not ehectual in another . 41 
 
 Of the word " appear" in statute of 14 Geo. 2. c. 20. Gi 
 Rules of cousti uctiou in deeds . . 182 
 
 CONTINGENT. Recovcy by person having coniinjfent 
 
 interest, extinguishes the interest . . 141 
 
 VOL. I, N N
 
 522 INDEX. 
 
 fags:. 
 CONTINGENT.— CoHfinwerf. 
 
 A contingent remainder may be destroyed by reco- 
 very . . . . IG, 142 
 
 A contingent interest, no estate , . 48 
 
 Remainders said to be destroyed by an union of es- 
 tate, though tliat union does not produce the effect 
 of merger . . . 115 
 
 No destruction of contingent remainders, when equi- 
 table . . . .117 
 
 Owners of contingent interests, cannot bar in tail by 
 recovery . . . . 142 
 
 Cautions against rec()\ ery by ihem . ib. 
 
 A fine by a person having contingent interest, may 
 operate as a release or extinguishment . 208, 261 
 
 A contingent interest may in some cases be barred, 
 in others bound by estoppel . . 209,301 
 
 A fine may be an estoppel, on the expectancy of an 
 heir , . . . ib. 
 
 Demise for years by fine or indenture, will bind, not 
 extinguish the interest . . 208, 262, 306 
 
 If the use of the fee be limited in contingency, it 
 will result to the former owner pro iuterresse suo 316 
 
 A contingent remainder may be extinguished by fine 208 
 
 Cannot be transferred by fine . 209, 2G1 
 
 CONVEYANCE. Tenant in tail may convey by fine 13 
 
 Conveyance not always necessary to make tenant to 
 writ of entry . • . 31 
 
 As between the parties, a recovery operates as a con- 
 veyance, though no good tenant to the writ of 
 entry . . . 5, 72, 92 
 
 Conveyance by tenant in tail has the same efi'ect 
 against him, as a conveyance by tenant in fee has 
 against that tenant . . .83 
 
 Operation of a defective recovery . . 95 
 
 A recovery defective against issue, may operate as a 
 conveyance . . . 101-120 
 
 The recovery being void, and the conveyance making 
 the tenant good, the tenant retains the freehold 102 
 
 Vouchee may declare uses of his estate on a recovery, 
 as on a conveyance by him . . 105 
 
 Joint conveyance by two persons, having distinct 
 estates, occasions no merger . . 107 
 
 Voucher not material in recoveries as conveyances or 
 estoppels . . . 119 
 
 Distinction between recoveries to operate as convey- 
 ance, release, estoppel, bar . . 120 
 
 Recovery may be good as a conveyance though it has 
 also the efiect of barring estates-tail, and giving 
 rec«)inpen(e to the issue . . ib. 
 
 When the tenant in a recovery is made by convey-
 
 INDEX. 523 
 
 CONVEYANCE.— Con*/nM«/. 
 
 ance, it must be efil'ctual to pass the freehold 
 to him .... 161 
 
 Of conveyances admitting- of uses . 189 
 
 Fine by persons seised operates as a conveyance 203 
 
 Without proclamation, may be a conveyance 218 
 
 There cannot be any conveyance of a right of action 200 
 A fine by tenant in tail as a conveyance, cannot ope- 
 rate by nonclaim . . . 228 
 A conveyance by tenant in tail, prevents an adverse 
 
 possession as against him . . 2J39 
 
 A fine cannot operate as a conveyance, unless there is 
 
 an estate . . . . 259 
 
 Conveyance cannot be made by fine, of a person 
 having a right of action, a title of entry, or a con- 
 tingent interest . . . 208, 261 
 A fine by tenant for life, for his own life, will operate 
 
 as a conveyance . . . 380 
 
 A fine by several pei'sons (as a conveyance) will en- 
 able such person to declare the use fro interesse 
 sua ... . 312 
 
 CONVEYANCER, his duty as to recovery deeds . 177 
 
 CONUSEE may be any person who may be a grantee in a 
 deed, as king, married woman, infant, attainted 
 person, corporations aggregate or sole . 265 
 
 COPARCENERS may be jointly or separately vouched 
 
 in recovery . . . 168 
 
 One coparcener may be barred by nonclaim on a 
 fine, or by the statute of limitations, though it does 
 not run against his companion . 237, 265 
 
 The fine of a coparcener, good only for his share, 
 unless there is a disseisin . . 264 
 
 Coparceners may join in the same fine . 286 
 
 A coparcener may declare the use as far as he 
 conveys . . . 311 
 
 If one of two coparceners levies a fine, he cannot de- 
 clare the use for more than his own moiety . 312 
 
 COPIES. Necessity of copies saved by deeds enrolled 39 
 
 COPYHOLD. Surrender by copyholder and voucher by 
 
 equitable tenant in tail . . 27 
 
 Copyhold lands purchased by the lord become parcel 
 
 of the manor ... 66 
 
 Do not require the precaution respecting contingent 
 
 remainders, forfeiture, &c. . . 117 
 
 Copyhold lands not within the statute which restrains 
 
 alienation by women, tenants in tail, ex prov. viri 148 
 May be intailed under custom . . 153 
 
 •— — not without . . . ib, 
 
 N N 2
 
 524 INDEX. 
 
 PAGE, 
 
 COPYHOLD.— Continued. 
 
 Equitable interest may be intailed, only in case the 
 legal estate admits of intail . . 153 
 
 Customary mode of barring intails, must be observed 154 
 
 One mode may be concurrent with another ib. 
 
 Surrender is a necessary mode, unless a different mode 
 is prescribed ... ib. 
 
 Custom to restrain the right to bar an intail is void ib, 
 
 A recovery of copyhold lands, must be in the same 
 form as of freehold lands . . 155 
 
 Intail of trust of copyhold, cannot be barred with- 
 out observing the customary mode . ib. 
 
 An equitable intail in copyhold lands, cannot be 
 barred by mere devise . . 157 
 
 Lease will not bar an equitable intail in copyhold 
 lands .... 158 
 
 Whether intail may be barred by fine . 159 
 
 Difference between copyhold and ancient demesne 
 lands ... ib. 
 
 Whether a fine by a married woman will bar her in- 
 terest in copyhold lands . . 160 
 
 Copyhold lands are within the jurisdiction of the su- 
 perior courts . . . 159, 267 
 
 But intail cannot be barred by a recovery in the 
 Common Ple.is . . . 160 
 
 A copyholder is bound by his fine as an estoppel 260 
 
 — — — — may extinguish his interest by a fine ib. 
 
 Cannot devest his estate by the mere operation 
 
 of a fine ; and the plea of partes, &c. is an answer 
 
 to his fine . . . 301 
 
 CORPORATION. A corporation sole may levy a fine 256 
 An ecclesiastical sole corporation may levy a fine ib. 
 
 Whether a corporation aggregate, may levy fine by 
 
 attorney . . . 257 
 
 Sole aggregate may be con usee in a fine 266 
 
 See Ecclesiactic. 
 
 COUNTER-PLEADER of voucher . . 170 
 
 COUNTIES. For lands in several counties there must 
 
 now be several fines . . 286 
 
 COURTS. Of the recovery deed, when several recoveries 
 
 are to be suffered in several courts . 174 
 
 Of the courts in which a fine may be levied 266 
 
 COVENANT may be maintained against a feme covert on 
 
 warranty by husband and wife . 289 
 
 Fines are generally levied on a writ of covenant 269 
 
 to stand seised. The seisin of the covenantor 
 
 sup[)licb the use . . ; 173
 
 INDEX. 525 
 
 PAGE. 
 
 COVERTURE at the time of the fine levied, or at the 
 commencement of a title of entry, protects against 
 the bar from nonclaim . , 236 
 
 But the period of nonclaim will commence when the 
 disability ceases . . ib. 241 
 
 COVIN. A fine may be void for covin . 223 
 
 CROSS REMAINDERS. A person takintj by cross re- 
 mainders has an estate in every part of the laud 54 
 Operation of a recovery on these interests ib. 
 
 CROWN. Reversion or remainder of crown is not barred 
 
 by recovery . . .19 
 
 Restraint of alienation by tenant in tail, because the 
 gift is by the crown for services performed 18 
 
 Difl^erence between common law and statute protec- 
 tion, as against issue and remainder-man 18, 19 
 
 Recovery cannot be suffered by tenant in tail of the 
 gift of the crown for services performed, so as to 
 bar the issue, &c. . . . 144 
 
 Circumstances to bring a case within the statute which 
 restrains alienations by tenants in tail 145 
 
 How far issue under an esttite-tail of tlie gift of the 
 crown may be barred by nonclaim on a tine 146 
 
 Effect of a recovery at the common law, when the 
 crown has the remainder or reversion . ib. 
 
 Tenant in tail of the gift of the crown, cannot by fine 
 bar the issue in tail, if the reversion or remainder 
 be in the crown . . . 221 
 
 CURTESY. Tenant by curtesy must join in making 
 tenant to writ of entry, if he has the immediate free- 
 hold .... 69 
 
 CUSTOM to restrain the right to bar an intail is void 145, 154 
 
 D. 
 
 DATE. Recovery deed should be dated within the term 62 
 Query. If the internal evidence of a recovery deed 
 
 is conclusive . . . ib. 
 
 Wlien the freehold is conveyed by a deed dated after 
 the term in which the recovery is suffered, the 
 freehold remains in the grantee . 103 
 
 General observations on the date of recovery deeds 163 
 
 DEATH. Writ does not determine by the death of the 
 
 king . . . 275 
 
 Death of one of the parties determines the writ as to 
 him . . . . ib.
 
 526 INDEX. 
 
 PAOK. 
 
 DEATH.— Continued. 
 
 There is error in a fine as against any of the parties, 
 
 who dies while the writ is depending 275, 291 
 
 A fine may stopped by reason of" death, before the 
 
 payment of king's silver . . 292 
 
 A fine, imless stopped, will be good, although the 
 
 king's silver is paid after the death of the party ib. 
 
 Death in vacation will not vitiate a fine, so as the 
 
 return is of a preceding term, and the king's 
 
 silver paid . . 270,291,293 
 
 DEBTS of reversioner accelerated by fine, and merger of 
 
 the estate-tail . . . 10 
 
 Debts on reversion, the acceleration is prevented by 
 
 a demise . . .12 
 
 DEDIIMUS not necessary for tenant if on the spot 174 
 
 DEED (RECOVERY.) Practice . . 31, 32 
 
 Parts of . . . 162, 163 
 
 When different jurisdictions . . 32 
 
 One recovery deed and several recoveries . ib. 
 
 Declaratory clause ... 33 
 
 Presumption of good tenant, from twenty years' 
 
 possession when the deeds are lost . 85, 162 
 
 Of recovery deed . . 161 
 
 In what case necessary . , 162 
 
 Of parties to recovery deed . . 165 
 
 Observation as to tenant . . 172 
 
 Recitals in . . . 177 
 
 Testatum clause . . . 179 
 
 Particulars vvliich it should contain . 180 
 
 Operative words in recovery deeds . 182 
 
 Of the parcels ... 184 
 
 Clauses of "the reversion," and "all the estate" when 
 
 to be inserted in the recovery deeds . 186 
 
 Of the grant of deeds . . ib. 
 
 Of the hahendum . . .187 
 
 Of the use . . . 188 
 
 Difference between deeds to lead and deeds to de- 
 clare the use of fines . . 318 
 
 DEFAULT. A recovery by default of tenant in tail, is 
 
 no bar to issue . . . 119 
 
 DEFEASIBLE. Of recoveries by persons whose estates 
 
 may be varied as to shares . . 52 
 
 DEFORCEA NT necessary in a fine . . 200 
 
 DEMANDANT. Formal party . . 29 
 
 Practice . . . . ib» 
 
 Death of . . . . ib. 
 
 annot claim to be exempt from uses declared of 
 
 any seisin he may acquire . . 90
 
 INDEX. 527 
 
 PAGE. 
 
 DEMANDANT.— Co«fin«ec/. 
 
 Who may be . . 175 
 
 Mistake of person not material . ib. 
 
 Nor is the want oi" his execution of the recovery deed ib. 
 His death before judgment is material . 176 
 
 DEMISE recommended when debts and judgments are 
 
 charged on reversion . . 12 
 
 To prevent forfeiture. Ill 
 
 The demise in ejectment mast be laid after entrj"^, 
 
 when entry is necessary to avoid a tine . 207 
 
 A demise by indenture for years, will bind, not extin- 
 guish the interest . . 209 
 
 DERIVATIVE ESTATE. See Fee-tail. 
 
 DESCENT. When there is tenant in tail, remainder in 
 
 fee by descent, a recovery is preferable to a fine 11 
 
 Tail— fine ... 13 
 
 Distinguished from occupancy . 43, 4G 
 
 Difi'erence between descent and purchase as to post- 
 humous child . . 45 
 
 Descent which tolls entry, renders an action neces- 
 sary to restore the seisin . . 245 
 
 When tenant in tail by purchase suffers a recovery, 
 and the use results to him, or is declared to him 
 in fee, his estate will be descendible froni him as 
 a purchasing ancestor . . 198 
 
 But if he had the tall by descent, the donee will be 
 deemed the purchasing ancestor . ib. 
 
 The resulting use on a fine will descend as the old 
 seisin. . . . 204, 318 
 
 So also if the use is expressly declared to the former 
 owner . . . ib. 
 
 The render of a fine passes a new estate with a new 
 descendible quality . . 210, 318 
 
 DETERMINABLE FEE. When merged in reversion 13 
 
 A determinable fee is taken under a resulting use 
 to tenant in tail, who levies a fine, which operates 
 as a conveyance . . 204 
 
 DEVEST. An estate devested is turned into a right of 
 
 entry . - 207 
 
 A fine levied by tenant for life may devest an 
 estate . • . ib. 
 
 Issue in tail may be barred by fine, though the estate 
 is not devested. . . 218, 259 
 
 An estate must be devested to give effect to non- 
 claim . . . 222, 223 
 
 If tenant for life in possession, levy a fine in fee, &c. 
 it will devest the estate of the remainder-men 300
 
 52B INDEX. 
 
 PAGE. 
 
 DEVEST.— Continued. 
 
 A tenant for years and a copyholder caDnot devest 
 an estate by the mere operation of a fine 301 
 
 DEVISE. Devise till debts paid a chattel interest 43 
 
 An inchoate interest under a use to arise on a reco- 
 very is devisable . . 149 
 An equitable iiitail in copyhold lands, cannot be 
 barred bj' mere devise . . 157 
 
 DEVISEE. A devisee entering under a void devise, gains 
 the fee by abatement, and may levy a line and gain 
 a title by non-claim . . 224 
 
 See Revocation, Will. 
 
 DEVISE EXECUTORY, cannot be barred by the reco- 
 very of a devisee in fee . . 2, 3 
 may be barred by a recovery of tenant in tail ib^ 
 
 DISAGREEMENT. None can be by a person who ha$ 
 
 acted as tenant . . 175 
 
 Of disagreement by husband and wife in declaring 
 the use of their fine . . 314 
 
 DISCEIT. A fine of lands in ancient demesne, levied in 
 the court of Common Pleas, may be avoided by a 
 writ of disceit . . . 248 
 
 DISCONTINUANCE by tenant in tail must be avoided 
 
 by action . . . 13, 93 
 
 May be by feoffment of tenant in tail . 203 
 
 By his fine sur conusance come ceo, &c. . ib. 
 
 Under a discontinuance the resulting use will be in 
 fee-simple . . 204,299,317 
 
 No one except tenant in tail in possession, can discon- 
 tinue estate-tail . . 20;j, 204, 299 
 
 A woman, tenant in tail ^.v provisione viri, cannot 
 discontinue . . . 221 
 
 Lease, release and fine, being [lart of the same assu- 
 rance, are a discontinuance . 205 
 
 Bargain and sale, with a distinct assurance by fine no 
 discontinuance . . ib. 
 
 No discontinuance can be made by the concurrence 
 of tenant for life witli next ren)ainder-man in tail 206 
 
 There cannot be a discontiimance of rents, or other 
 incorporeal hereditaments . . ib. 
 
 Nor of a remainder afti'r an estate of freeliuld 205 
 
 When th( re is a discontiniiaui e, the issue in tail, or 
 tiiose in remainder or leversion, have a right of ac- 
 tion by forntedon . . 206 
 
 Th«'y cannot maintain an ejectment . ib» 
 
 Alter discontinuance, there is merely a right, no es-
 
 INDEX. 529 
 
 PAGE. 
 
 DISCONTINUANCE.— Con/inw^(^. 
 
 tate ; such right cannot be transferred, but it may 
 
 be extinguished . . 206 
 
 A discontinuance changes the estate into a right of" ac- 
 tion, while an estate merely devested leaves a right 
 of entry . . -lOG, 207 
 
 The issue in tail may be barred by fine, though the 
 estate-tail is previously discontinued . 218 
 
 No estate can be barred by nonclaim on a fine, or war- 
 ranty, unless it is discontinued or devested 230 
 
 A fine may be avoided by entry in all cases, except 
 in the case of a discontinuance, or a descent which 
 tolls the entry . . 245 
 
 No discontinuance of equitable estates . 262 
 
 DISSEISIN. A feoffment by termor gains the freehold 59 
 A recovery against disseisee may be good b\' estoppel 91) 
 An estate in remainder may become an estate in pos- 
 session by disseisin of tenant for life . 139 
 A fine by disseisor may operate by nonclaim 224 
 The fine of joint-tenants, tenants in common, and 
 coparceners, good only for the sha'e of each of 
 them, unless there is a disseisin of the other shares 264 
 Disseisin is a question of fact . 265 
 
 DISSEISEE, DISSEISOR. The right of entry of a dis- 
 seisee is extinguished by his fine to a stranger 209, 302 
 
 A disseisee may be barred by nonclaim on a fine 
 levied by disseisor . . 224 
 
 A fine by disseisor who has made a lease for life will 
 operate so as to bar the disseisee, and coiifirm the 
 title of the lessee . . 228, 310 
 
 Issue barred by fine not benefited by the avoidance 
 of the fine by a disseisee . . 298 
 
 DIVISION of Estates into freehold, and not of freehold, 
 
 chattel interest, and not of chattel interest 42 
 
 DONOR. Recovery cannot gain a more ample estate than 
 
 the donor had . . 17 
 
 DIVORCE. A divorce does not defeat a fine levied by 
 
 husband and wife . . 256 
 
 DOWEK. Tenant in dower, must join in making tenant 
 
 to the writ of entry . . 69 
 
 No reci mpence will go to a mere dowress having a 
 
 title of dower . . 1.31 
 
 May be barred by recovery, o" by fine . 4, 269 
 
 Fine may be levied on writ of dower . 269 
 
 Dower may be barred by nonclaim . 229 
 
 DURESS. Duress of imprisonment caimot be alleged at 
 
 law, as an answer to the opei i^t.on of a fine 253
 
 530 INDEX, 
 
 E. 
 
 ECCLESIASTICS. There is a suspension of remedy, 
 
 when the liead of an ecclesiastical body is barred 235 
 
 Ecclesiastical corporations, aggregate or sole, cannot 
 be barred as to tlie uiheritance by nonclaim ib. 
 
 The individvial or head of the corporation may be 
 barred for his own time . . 235 
 
 It seems they may be barred by the statut oi limi- 
 tations . . • 236 
 
 EJECTMENT. No ejectment can be brought by the 
 
 issue, &c. while a discontinuance remains in force 206 
 
 Ejectment cannot be maintained after a fine with pro- 
 clamations, which devests an estate, without an 
 actual entry . . 207 
 
 The demise in ejectment, must be after entry, when 
 entry is necessary to avoid a fine . 208 
 
 An ejectment may be brought when there is a right 
 of entry . . 246 
 
 Not when there is a right of action . ib. 
 
 In what cases an actual entry is necessary, before 
 bringing an ejectment . . 247 
 
 ENGROSSMEMT. Of the engrossment of fines 291 
 
 ENLARGEMENT. Remote remainder . 16 
 
 Determinable fee . . 17 
 
 Defeasible fee . . ib. 
 
 Necessity in lease and release of estate to be enlarged 41 
 
 ENTRY. Errors in entry of proceedings, when rendered 
 
 immaterial . .75 
 
 All conveyances by tenants in tail are to be avoided 
 by the issue by entry or action . 93 
 
 Right of entry may be extinguished by fine, &c. 206 
 
 Entry may be made, when the estate is merely de- 
 vested . .207 
 
 There can be no alienation by a person in remainder 
 or reversion having a mere right of entry 208 
 
 No entry necessary to avoid a fine without proclama- 
 tions . • 213 
 
 An actual entry to avoid a fine is necessary only in 
 the case of a fine with proclamations, and it must 
 be for that express and declared purpose 207, 213, 247 
 
 Entry or claijii must be pursued within one year after 
 sucii enlry or clann . • -■*- 
 
 An estate de vested is turned into a right of entry 207
 
 INDEX. 531 
 
 PAOG. 
 
 "EmRY.— Continued. 
 
 An entry not necessary when there is no ouster or de- 
 vesting . . . 226 
 
 Entry by one tenant for life will revest the estate of 
 those in remainder . . 227 
 
 A right of entry may be barred by fine and nonclaim 234 
 
 Till there exists a right of entry, there cannot be an 
 adverse possession . . 238 
 
 A fine may be avoided by entry in all cases, except in 
 caseof a discontinuance, and a descent tolling entry 245 
 
 An entry by a particular tenant will restore the sei>in 
 of those in remainder and reversion, unless they have 
 merely a right of action . . 247 
 
 In what cases an actual entry is necessary, before 
 
 bringing an ejectment . . ib. 
 
 An entry is necessary only where the title is legal 248 
 
 Entry not necessary when a fine is void . 249 
 
 EQUITABLE RECOVERIES, no bar of legal estate 22 
 
 No objection that equitable freehold flows from legal 
 estate . . 23 
 
 Nor that the equitabble remainder is in trustee of le- 
 gal estate . . ib. 
 
 Nor thatth* equitable tenant in tail has the legal estate 28 
 
 Tenant of equitable freehold . ib. 
 
 Equitable remainder exists to some purposes though 
 extinguished in legal estate . ib 
 
 Double equity , 24, 27 
 
 Mortgagee . . 24 
 
 Conveyance by trustee and consent by equitable owner 26 
 
 Will be good though the vouchee has an equitable tail 
 and a legal fee . 28 
 
 Wife having freehold as separate estate, may make te- 
 nant in an eqviitable recovery . 34 
 EQUITABLE ESTATE. Query. Whether a charge on an 
 equitable estate will be accelerated by merger of 
 a prior estate . . . 11 
 
 No forfeiture, or destruction of contingent remainders, 
 of equitable estates . . 117 
 
 Equitable estates- tail ex prov. viri are within the sta- 
 tute which restrains alienation . 147 
 
 Equitable interest in copyhold lands may be intailed 
 only in case the legal estate may be intailed 153, 155 
 
 General rule as to a!ienations, &c. of equitable estates 158 
 
 Of a bargain and sale of an equitable estate 90 
 
 In equity the intention rather than the form is re- 
 garded . . . ib. 
 
 A fine by tenant for life of an equitable estate does 
 
 not operate as a forfeiture . . 202 
 
 Afine by cestui que trust is considered in equity as a 
 conveyance . , • 262
 
 532 INDEX. 
 
 EQUITABLE ES,T ATE.— Continued. 
 
 One equitable owner may be barred by the fine of 
 
 another .... 263 
 
 An equitable freehold will be sufficient to support a 
 
 fine of an equitable estate . . 310 
 
 EQUITY OF REDE31PTI0N. Persons having an equity 
 of redemption cannot levy a fine to bar by nouclaim 
 at law . . . . 263 
 
 But a fine by a person in possession, claiming the 
 equity of redemption adversely, will bar other claim- 
 ants of that equity . . 223, 233, 263 
 
 The mortgagee connot bar the mortgagor . ib. 
 
 ERROR. Power to bring a writ of error maj^ be extin- 
 guished by recovery . . 5 
 
 Reversal of fine for error will not vitiate a recovery 
 suffered in the mean time on a tenant made by the 
 fine .... 37 
 
 Errors in entry of procedings when rendered immate- 
 rial .... 75 
 
 Erroneous recovery is good till avoided . 95 
 
 Error in a fine will vitiate the proclamations, but an 
 errorin the proclamations will not vitiate the fine 297, 248 
 
 A second fine may bar the lord of a writ of dasceit, or 
 error under a former fine . . 24i> 
 
 It is error if the writ is returnable on a dies non jtiridicus^lb 
 
 A fine is erroneous as against parties who die while the 
 writ is depending . . . 285 
 
 A fine is erroneous as far as it comprises land, &c. not 
 mentioned in the writ . . 285 
 
 ESCHEAT. Escheated lands become parcel of a manor 66 
 Will of a manor will include lands subsequently es- 
 cheated . . . . ib* 
 
 ESTATE. A contingent interest no estate . 48 
 
 Clause of "all the estate" to be sometimes inserted 
 
 and sometimes omitted in recovtiy deeds . 186 
 
 After discontinuance no ejectment can be maintained 206 
 After discontinuance there is merely aright of action, 
 
 and no estate . . . ib. 
 
 And after the freehold is devested, the estates of the 
 
 rightful owners are changed into rights of entry 207 
 
 ESTOPPEL. . . . .4,6 
 
 Issue in tail, or remainder-man not barred by estoppel 6 
 Tenant in tail pcrsonallij bound by recovery though no 
 
 tenant . . . . 6, 86 
 
 Recovery good between the parties by estoppel, though 
 
 the name of the tenant was mistaken . 89 
 
 Issue not bound by cbtoppel . 4, 6, 92
 
 INDEX. 533 
 
 PACK. 
 
 ^^rOPVEl,— Continued 
 
 A Recovery by a person who has a right extinguishes 
 
 ilie right . . 95 
 
 General heirs estopped by a recovery without a te- 
 nant . . 98,99 
 A recovery by disseisee may be good by estoppel 99 
 A recovery defective against issue, may operate as a 
 
 conveyance . 101 
 
 Voucher not material in recoveries, as conveyances or 
 
 estoppels . 119 
 
 Distinction between recoveries to operate as convey- 
 ance, release, estoppel, bar , 120 
 Recovery may operate as a conveyance or estoppel 73 
 Strangers maj^take advantage of estoppels 208 
 Fine by estoppel operates as a release ib. 
 An estoppel for years is created by a fine sur con- 
 cessit for years . 305 
 A fine by a stranger may operate as an estoppel 259 
 — — by a stranger, or by a person having chattel in- 
 terests, &c. will operate by estoppel 260 
 A recovery, or fine, may be an estoppel on the expec- 
 tancy of an heir, contingent interest, a right, &c. 6, 301 
 An heir apparent is concluded by his fine ib. 
 Contingencies may in some cases be barred, in others 
 
 bound by estoppel . ib. 
 
 A disseisee is barred by his fine . 302 
 
 Of fines levied by two when an estate is limited to 
 
 them and the survivor . ib, 
 
 A fine for years binds ; a fine in fee bars ; by way of 
 estoppel . 305 
 
 EVIDENCE. Advantage of recovery in shortening evi- 
 dence of title . 14,15 
 
 Query. Whether the internal evidence of a recovery 
 deed is conclusive as to its execution 62 
 
 Possession for twenty years and recovery deed, evi- 
 dence of recovery . 74 
 
 The statute of 14 Geo. II. making the recbvery deed 
 evidence of the recovery, applies only when the re- 
 covery cannot be found . 70, 85 
 
 After twenty years, &c. a recovery is evidence of a 
 good tenant, if the reco\'ery deed is lost 85 
 
 Attornies' books admitted in evidence in some cases 82 
 
 The chirograph is conclusive evidence of a fine 291 
 
 Proclamations must be proved by an examined copy ib. 
 
 Infancy must be established by inspection 252 
 
 Extraneous evidence may be admitted . jb. 
 
 See Presumption. 
 
 EXCEPTION, when allowed in fines 28»
 
 5S4 INDEX 
 
 PAGE, 
 
 EXECUTION. Query. Whether the time of execution of 
 
 a recovery deed may be shown 63 
 
 Execution may be sued by or against the heir 151, 176 
 Statutable regulations respecting execution 151 
 
 Advisable to have recovery deed executed within the 
 
 term . . 164 
 
 Not necessary that the tenant or demandant in the re- 
 covery should execute the recovery deed 175 
 
 EXECUTORS. By devise to executors, until debts paid, 
 
 they have a chattel interest . 43 
 
 Made occupants . 44 
 
 When a fine begins, in the case of chattel interests, to 
 run against a person, it will continue to run against 
 his executors, &c. notwithstanding a subsequent 
 disability . . 242 
 
 EXECUTORY FINE. A married woman may defeat exe- 
 cution on a fine levied by her alone, whilst under 
 coverture . 255 
 
 Doubted whether the operation of nonclaim is sus- 
 pended on an executory fine . 296 
 
 EXECUTORY INTEREST. An executory interest may 
 
 be extinguished by fine . 208 
 
 Not sufficient that the tenant in a recovery has merely 
 an executory interest . 48 
 
 EXPECTANCY. A fine levied by an heir apparent may 
 
 operate by estoppel . 301 
 
 EXPENCE. Fine or recovery . 15 
 
 EXTINGUISHMENT. Rent, dower, &c. may be extin- 
 guished by recovery . 5 
 
 Equitable remainder exists to some purposes, though 
 extinguished in legal estate . 23 
 
 Title of dissiesee may be extinguished by his recovery 99 
 
 Consequence of extinguishment, and cautions against 
 it . . 142 
 
 Right of action or entry may be extinguished by fine 
 or release . 208 
 
 Termor or copyholder, &c. may extinguish his inter- 
 est by a fine . . 260 
 
 See Estoppel. 
 
 FEE. A recovery by tenant of a determinable fee operates 
 
 merely ai a conveyance . 2, 4 
 
 The defeasible quahty of a fee not barred by recovery 2 
 Dettrniinable fee, may merge in the reversion in fee- 
 tnnple « 13
 
 INDEX. 535 
 
 PAGE. 
 
 FEE.-— Continued. 
 
 A fee-simple passes when tenant in tail disconti- 
 nues ... 13 
 
 A base fee passes by the alienation of tenant in tail 
 when he conveys his estate . ib. 
 
 Tenant in fee, and his heirs bound by recovery though 
 no good tenant to the writ of entry . 80, 99 
 
 Reversioner in fee bound by his recovery , 88 
 
 A fee-simple depending on a new title is acquired by 
 discontinuance . . 203 
 
 FEME. See Husband and Wife 
 
 FEOFFMENT. Tenant may be made by feoffment 34 
 
 Difference between a feoffment and fine in making te- 
 nant . . 37 
 There must be livery . . 41 
 Feoffment by termor will gain the freehold 59, 260 
 Termor for years, or copyholder, &c. cannot levy a 
 
 fine with effect without making a feoffment 223, 226, 260 
 To gain a title by nonclain the feoffment should pre- 
 cede the fine . . 260,295 
 The practice of feoffment and re-enfeoffment super- 
 seded by the introduction of conveyances to uses 211 
 
 FINE distinguished from recoveries . 13 
 
 Tenant may be made by fine . 34 
 
 Husband seised in right of wife may make tenant with- 
 out fine . . ib. 
 
 A fine not necessary when the wife has the freehold, 
 as a separate estate . . ib. 
 
 A fine to make a tenant, may be in the same or a prior 
 term . • . 36 
 
 A fine will be presumed to be to the use of the co- 
 nusee if he is afterwards, notwithstanding an inter- 
 val of many years, named tenant in a recovery, and 
 no use declared in the mean time , ib. 
 
 Reversal of fine for error, will not vitiate a recovery 
 suffered in the mean time, on a tenant made by the 
 fine . . 37 
 
 Dift'ei'ence between a feoffment and fine in makinsr te- 
 nant . . ib. 
 
 Advantage of making tenant to recoveiy by fine 39 
 
 yV. fine in vacation as of a preceding term will support 
 a recovery in that term . 64 
 
 Notwithstanding the intail is barred by fine, a reco- 
 very may be suffered . . 126 
 
 Whether intn.il in copyholds may be barred by fine 159 
 
 Of fines of lands of ancient demesne . ib. 
 
 Whether a fine by a married woman will bar her in- 
 terest in copyhold lands . . 160
 
 536 INDEX. 
 
 TAGC. 
 
 FINE. — Continued. 
 
 A tine IS an assurance of record , 200 
 
 Is founded upon a writ . ib» 
 
 Parties and their denominations , jb. 
 
 THERE ARE SEVERAL SPECIES OF FINE, 
 
 1. Sur conuzance de droit come ceo, Sfc, 201 
 
 2. Sjir done grant et render . ib. 
 
 3. Sur conuzance de droit tantum , ib. 
 
 4. Sur concessit . . ib. 
 
 Except uj particular cases the fir^t is preferable ib. 
 
 If levied in fee by tenant for life of the legal es- 
 tate, or by tenant for life with a remote estate of 
 inheritance it is a forfeiture . ib, 
 
 ■ It is also a forfeiture if a tenant for life accepts 
 
 it . . . ib, 
 
 So likewise if two tenants for life levy this fine, 
 
 or one levies and another accepts it . 201 
 
 The forfeiture is prevented by the concurrence of the 
 person having the immediate estate of inheritance 202 
 
 Diffeience between fines and recoveries in this 
 
 respect . • . ib. 
 
 This fine if levied by an equitable tenant for life is not 
 a forfeiture . . ib. 
 
 It is an acknowledgment of a gift or feoffment on 
 
 record . . ib. 
 
 It passes the inheritance without words of li- 
 mitation . . ib. 
 
 But words of express limitation v/ill have eflPect ib. 
 
 It will be no forfeiture if confined to the interest of 
 conusor . . ib. 
 
 If levied by tenant in tail in possession, it creates a 
 discontinuance, and a tortious fee depending upon 
 a new title . 203 
 
 When levied by a person seised, it transfers the seisin 
 of which uses may be declared . ib. 
 
 The use if not declared will result unless the tine is 
 for a particular estate . ib. 
 
 It results according to the former ownership ib. 
 
 The use if declared of part of the estate only will re- 
 sult for the residue . . 204 
 
 The descent of the use when declared or resulting, 
 will be governed by the old seisin ib. 
 
 Bargain and sale, with a distinct assurance by fine, do 
 not create a discontinuance . 205 
 
 The fine sometimes devests the estate, and leaves a 
 mere right of entry . 207 
 
 Lease, release, and fine being parts of tlie same assur- 
 ance, create a discontinuance . 203» 
 
 When it doeii not devest or discontinue the estate
 
 INDEX. 537 
 
 FINE. — Continued., 
 
 there is a continuance of seisin in the person having 
 
 the reinaiuder or reversion in fee . 207 
 
 Unless barred by the tine, the issue in tail, &c. may 
 
 enter . • >'^« 
 
 An entry is necessary to avoid this fine when levied 
 
 with proclamations . ib. 
 
 A fine levied by a person having merely a right of 
 
 action, &c. will operate by extiiigulshaient 208 
 
 A fine may extinguish a right of action . ib. 
 
 of entry . ib. 
 
 a contingent remainder ib. 
 
 an executory interest ib. 
 
 Strangers may take advantage of tines operating by 
 
 way of extinguishment . ib. 
 
 So may a disseisor, of a fine levied by the disseisee 209 
 Contingent remainders cannot be transferred by fine ib. 
 But a fine sur concessit, for years, will bind the 
 
 estate when it shall vest . ib. 
 
 To bind a contingent interest or right in tail, a fine 
 
 sur concessit, for years, may be levied 210 
 
 Any fine which imports to pass a fee will extinguish 
 
 a right . • ^t). 
 
 The tine, sur grant €t render, operates as a double 
 
 conveyance . • '". 
 
 Parts of this fine . • ^o* 
 
 It changes the descent . ib. 
 
 The render of the fine may be to the grantor or his 
 
 wife . . . 211 
 
 Settlements may be made by tliis fine ib. 
 
 Uses may be declared on the render of this fine ib. 
 
 The fine sur conuzance de droit tantum, transfers 
 
 merely the estate, or extinguishes the right of the 
 
 conusor 
 
 is used to pass a reversionary interest, or as a 
 
 212 
 
 surrender . • ^ *o. 
 
 is proper for a tenant for life, with a remote 
 
 inheritance • • . * 
 
 Use may be declared on a seisin transferred by this 
 
 fine . . 'b. 
 
 The fine sur concessit, may be levied for years, for 
 
 life, in tail, or in fee . 213 
 
 Whether it may be levied with a clause of " all and 
 
 whatsoever," &c. . • *"• 
 It is used to pass the estates of married women, be- 
 ing tenants for life . • *"' 
 to create terms to bind executory interests by 
 
 estoppel . • *"• 
 
 Fines are further distinguished into 
 1st- Fines at common law ♦ 'v» 
 
 YOL. I. O O
 
 538 INDEX. 
 
 FA OB. 
 
 FINE. — Continued. 
 
 2d. Fines with proclamations . .213 
 
 A fine at the common law is no bar to the issue in 
 tail, or by non-claim . . ib. 
 
 . When used as a conveyance it may operate 
 
 without proclamations . ib. 
 
 No entry is necessary to avoid this fine . ib. 
 
 An actual entry is only necessary in the case of a 
 fine with proclamations . ib. 
 
 The object of proclamations is 
 
 1st. To protect a defective title by nonclaim 214 
 
 2d. To bar the issue in tail . ib. 
 
 The general objects of fines are 
 
 1st. As a conveyance by married women . ib. 
 
 2d. As a conveyance by the issue in tail . ib. 
 
 3d. To gain or confirm a title by nonclaim ib. 
 
 1st. A married woman cannot bind herself or her 
 heirs, as to her estate of freehold, &c. without fine ib. 
 
 Proclamations immaterial with this view . 215 
 
 A fine is not necessary, where the wife has a mere 
 authority . . ib. 
 
 Or a power dispensing with coverture . ib. 
 
 Or a separate estate by way of trust . ib. 
 
 Tenant in tail may alien by fine with proclamations 216 
 
 Whether he has an estate in possession, remainder, 
 
 or reversion . .218 
 
 Also he may bind contingent interests by estoppel ib. 
 
 And may bar his issue though the estate is discontinu- 
 ed, devested, or aliened . ib. 
 
 Or though levied by issue in the life-time of his an- 
 cestor . . ib. 
 
 Also between collaterals, the fine will be a bar if the 
 intail descends on the conusor or his issue 219 
 
 A fine will have no effect unless the issue are inherita- 
 ble to the intail . . 220 
 
 Nor will a fine by a person whose title as heir is de- 
 feated by a more immediate descent ib. 
 
 Difference between fine and recovery . ib. 
 
 A fine by tenant in tail after possibility, &c. is con- 
 sidered as a fine by tenant for life . ib. 
 
 A fine by tenant in tail of an estate of the gift of the 
 crown, &c. cannot bar the issue if the reversion 
 J. or remainder remains in the crown . 221 
 
 Women tenants in tail ex provisione viri, cannot bar 
 their issue by fine . ib. 
 
 Statute of nonclaim 4 H. VII. makes an action ox- 
 entry necessary, within five years ib. 
 
 By 4. Ann, c. 10. s. 10, it is necessary that such entry 
 or claim be pursued within one year 222
 
 INDEX. 539 
 
 HNE. — Continued. 
 
 A fine levied by cestui que trust, is void as against 
 the legal owners . . 233 
 
 by tenant for life, may gain the fee by non- 
 claim . . 225 
 
 A fine by an abator, intruder, or disseisor, may ope- 
 rate by non-claim . . ib. 
 
 An instantaneous seisin is not a sufficient foundation 
 for a fine . . ib. 
 
 A tenant for years, the owner of any chattel interest, 
 a person who has mere possession, or the receipt 
 of rent of another's tenant, has not a sufficient 
 foundation for a tine . 223, 226 
 
 A fine will sometimes operate in confirmation of the 
 title of those connected in privity of estate 226 
 
 No entry necessary, when there is no ouster or de- 
 vesting . . ib. 
 
 Adverse possession is necessary to the operation of a 
 fine by non-claim . . 227 
 
 Privity of estate may prevent a oar by non-claim ib. 
 
 An entr}^ by one may revest the estate of another ib« 
 
 A subsequent adverse possession will not support a 
 previous tine . . 228 
 
 A fine by tenant in tail as a conveyance, cannot ope- 
 rate by non-claim . . ib. 
 
 A fine by a disseisor who has made a lease for life, will 
 operate as bar to the disseisee, and a confirmation 
 of the title of the lessee . ib. 
 
 Necessity of adverse possession illustrated 229 
 
 No estate is barred by fine, unless it is devested or dis- 
 continued . . 230 
 
 A rent-charge, an interesse termini, a condition, an 
 authority, not barred by non-claim on fine 231 
 
 Non-claim will run, though the fine is levied before 
 there is a right of possession . ib. 
 
 A fine by a lessor while an interesse termini is exe- 
 cutory, will not bar it . 232 
 
 An interesse termini may be barred by the fine of a 
 stranger, after a right of entry has existed for five 
 years and non-claim . ib. 
 
 A fine by a trustee will not bar the cestui que trust 233 
 
 A cestui qiie trust having gained the legal freehold, 
 may bar his trustee by fine . ib. 
 
 One cestui que trust may also bar another ib. 
 
 A cestui que trust is bound by nouclaim of the trus- 
 tee, except in cases of fraud, infancy, &c. ib. 
 
 Difference when the equity charges the person, and 
 when the lands . . 234 
 
 A fine will bar any right or title of entry, by non-claim ib. 
 
 Also a remedy by action . . ib, 
 
 o o2
 
 540 INDEX. 
 
 pag2' 
 TlNE.-^Cojitinued. 
 
 Who may be barred by non-claim. 
 
 ^ — . ecclesiastical persons being sole corporations, 
 as a bishop, parson, kc. . 235 
 
 Also the successor for his time, unless he avoid the 
 fine . • . ib. 
 
 A corporation during the continuance of its head, 
 by the non-claim of its head . ib. 
 
 Who cannot be barred, 
 
 , the king, nor ecclesiastical corporations, ag- 
 
 o^regate or sole . • ib. 
 
 An officer for life may be barred for his time 23(> 
 
 A successor not barred by non-claim of his predecessor ib. 
 
 Observations on fines as against ecclesiastical corpo- 
 rations . • • ib. 
 
 A fine must be avoided within five years, except in 
 the cases of infancy, &c. and owners of future 
 ri_hts must claim within five years after their dis- 
 ability ceases, or right commences . ib. 
 
 Computation of non-claim is made from the last pro- 
 clamation . • ib. 
 
 State of the law when several persons have several 
 present rights . . 237 
 
 A fine may run against some, though not against 
 others of several joint-tenants . ib» 
 
 Against persons having immediate rights, a fine begins 
 to run from the last proclamation . ib. 
 
 Bui not against those who have future rights, till their 
 right of possession connnences . 238^ 
 
 Several rights or several estates, give several periods- 
 of non-claim for each estate, right, &c. 240 
 
 A fine may run against an heir, though the ancestor 
 died under a disability . 241 
 
 Subsequent disabilities will not suspend the period of 
 non-claim on fines, when it once commences 242 
 
 A recovery by tenant, &c. in tail, though barred by 
 fine, will bar the remainders, &c. . 243 
 
 The statutes of limitations, and non-claim on fines, 
 may be running at the same time . 244 
 
 The statute of limitations may sometimes operate be- 
 fore the fine begins to run . ib. 
 A seller relying on non-claim on a fine, must shew by 
 
 evidence the application of the bar . ib. 
 
 In adverse actions, non-claim is a bar till tlie contrary 
 
 is shewn • • 24e> 
 
 A fine may be avoided by entry, except in the case of 
 
 a discontinuance, or a descent toMing entry ib. 
 
 In the excepted cases, an action is necessary 246^ 
 
 Entrj' or claim on a fine must be prosecuted within 
 one year, or unew entry, &c, made withm the fivfe 
 year* . • il>-
 
 INDEX, 541 
 
 PAGE. 
 
 iFINE. — Contintied. 
 
 A-ctual entry is necessary for avol(lin2; a fine with 
 proclamations, where an e itry is sufficient 247 
 
 Entry by a particular tenant will restore a seisin to 
 the persons in remainder (wholuive a right of entry) 
 and no bar by non-claim can ever be set up under 
 a tine once avoided . . ib. 
 
 An entry or action to avoid a fine, is necessary only 
 when the title is legal . 248 
 
 Tines of trust estates must be avoided by bill in equity, 
 exception where legally voided . ib. 
 
 If trusts affect the land and not the pei'son, then to 
 avoid a fine, the remedy is entry or action in the 
 name of the trustee . ib. 
 
 A fine may be avoided for error, and erroneous 
 fine destroys the effect of the proclamations and 
 non-claim . . ib. 
 
 An error in the proclamations will not vitiate the fine ib. 
 
 Non-claim is avoided by an error in the fine, or in the 
 proclaijiations . . ib. 
 
 A fine in Westminster-hall of lands in ancient de- 
 mesne, may be reversed by writ of desceil ib. 
 
 A fine to be avoided by writ of error is voidable only 24U 
 
 If levied in a court not having jurisdiction, is void ib. 
 
 A fine actually void cannot bar by non-claim, nor is 
 entry, ike. necessary to avoid it . ib. 
 
 Fines not proclaimed, cannot bar by non-claim ib. 
 
 By whom a fine may not be levied. 
 
 ■ the king, corporations aggregate of njany 251, 257 
 
 By infants, ideots, married women . ib. 
 
 Fines of ideots are binding jipon them and their heirs 252 
 
 Of the relief atlorded by ecjuity, where a fine li3s 
 been levied under circumstances of fraud 253 
 
 Peisons born deaf, dumb, and blind, are consider.ed 
 as ideots . . ib. 
 
 — — — deprived of one or two senses only, are com- 
 petent to levy fines . . ib. 
 
 Duress of imprisonment is no answer to the operation 
 of a fine . . ib. 
 
 Benefit resulting from rule of court requiring an affi- 
 davit of age, &c. . . ib, 
 
 A married woman is not allowed tp levy a fine alone, 
 except i.i particular instances; but if levied, it is 
 voidable only . . 254-5 
 
 A fine levied by a married woman as a feme sole, is 
 binding on her and her heits, unle^s avoided by 
 her husband . . 255 
 
 A married woman may defeat execution on an exe- 
 cutory fine . . ib. 
 
 A fine may pass against a woman as a feme sole, who 
 marries afttr atknowledgment , 256
 
 542 INDEX, 
 
 PAGE 
 
 FINE. — Continued. 
 
 A divorce does not defeat a fine levied by hu&band 
 and wife . . 250 
 
 Deeds of uses, of fines levied by infants, &c. are good ib. 
 By whom fines may be levied. 
 
 By the queen, (except the queen regent,) sole corpora- 
 tions, though ecclesiastical persons, persons attaint- 
 ed, aliens, persons outlawed in personal actions 256-7 
 By whom a fine may belevied in point of estate. 
 
 That a fine may operate by non-claim, the freehold 
 must be in one of the parties, under a present or 
 remote interest, by right or by wrong, under an ab- 
 solute or defeasible title . . 258 
 
 The fine of a remainder-man or reversioner, will bar 
 strangers, but not the tenant of a prior estate 250 
 
 Between parties and privies, a fine will be good with- 
 out the freehold in either party . ib. 
 
 Otherwise as against strangers, and as a bar by non- 
 claim . . . . ib. 
 
 Ditierence between a fine as a conveyance, and an 
 estoppel . . . ib. 
 
 A fine levied by tenant for years, or a copyholder, is 
 a forfeiture . . . 2G0 
 
 Good against themselves . , ib. 
 
 Persons having chattel interests, tenants for uncer- 
 tain interests, by statute-merchant, staple, elegit, 
 or at will, are, in point of estate, disqualified to 
 levy fines . . . ib. 
 
 These fines are good against the parties by estoppel ib. 
 
 do not operate by non-claim, or as a convey- 
 ance, but by extinguishujent . . ib. 
 
 Copyholders and termois maj' gain the fee by non- 
 claim, first making a feoffment . . ib» 
 
 A conveyance cannot be made by the fine of a per- 
 son having a right of action, a title of entrs', or 
 a contingent interest . . 261 
 
 A fine for years will buid an interest without extin- 
 guishing it . . . 262 
 
 01' l\neHhy cestui que trust . . ib. 
 
 A person having an equity of redemption, cannot levy 
 a fine to bar by non-claim at law . 263 
 
 One equitable owner may be barred by the fine of 
 another . . . ib, 
 
 A fine by a mortgagor, or mortgagee, will not bind 
 the other . . . . ib. 
 
 . by a jierson before entry, or reccii)t of rent, is 
 
 vol<l, I'or wiiiit of tin.- freehold . . ib. 
 
 Fraud avoids a fine in e(piity . . 264 
 
 A fine by a joint-tenant, tenant in common, or co- 
 [>arcenr'r, good only for liis own share, unless he 
 disbcise his compuniun . . ib.
 
 INDEX. 
 
 543 
 
 fAQE. 
 
 IPlMl. — Contmucd. noA 
 
 Fine by a ioint-tenant, severs the tenaiicy ' . , ^^ 
 
 A rine may be levied to the king, an infant, a married 
 woman/an attainted person, a corporation sole o^^^^^ 
 aggregate 
 
 In what courts ^^^ 
 
 In courts having jurisdiction over the lands . l^^ 
 A fine in Westminster-hall of lands in a county pala 
 
 ■ I • io» 
 
 tme is void • • . • i 1 1 i ;u 
 
 Of lands in ancient demesne, is voidable only ib. 
 
 A fine of lands in the West Indies may be levied m ^^^ 
 
 Westminster-hall • . ,. .* a ' ^^,r 
 
 Admitting the court to have jurisdiction, a fine maj 
 be levied in the court of Common Pleas, Kings 
 Bench ; of great Sessions in Wales ; counties pala- 
 tine, as Lancaster, Chester, Durham . ^Jjf* 
 
 Of ancient demesne • • . f' ,^ 
 
 In i.iferior courts by usage sanctioned by act ot par- _^^ 
 
 liament . • * * -u 
 
 On what writs a fine may be levied • • 
 
 The writ of covenant is generally used 
 
 Of wliat parcels. ,j x -u r^ ;v. 
 
 Of all things of which a prcecipe quod reddat wdl he ib. 
 
 Of land in all its varieties • • }^^- 
 
 Of other things • •. ' 
 
 A fine cannot be levied of common in gross sans nom- ^^^ 
 
 6re, office of dignity *. , ^ ' •4.- * ;k 
 
 There are instances of fines levied of annuities ib. 
 
 Bv what names. j j i, +u«-.^ 
 
 In fines the parcels should be demanded by their ^^^ 
 
 lea:al names • •; v ' c -^ ' 
 
 The deed leading or declaring the uses of a fine, is 
 
 considered as part of the same assurance . 271 
 
 A fine may be amended, as to the parcel., by the d^ed ^_^^^ 
 
 Whether fines will pass* a greater* number of acres 
 
 than are contained in the writ •. 
 
 o ♦ f o finf. nrp the original writ, hcentia concor- 
 "^IVX the^co^c'rd; iioVof the fine, foot of the fine 274 
 The writ is a necessary foundation for a fane ib. 
 
 Requisites in the writ are a plaintiff, deforceant, ,^ 
 parcels, return and teste . . ,.* * •. * 
 
 The return must be on a dies juridicus . id. 
 
 If it be on a dies non juridicus it is erroneous 27& 
 
 A retraxit nuts an end to the writ ' r ^u 
 
 Death of either of the parties before the return of the 
 writ, determines it as to that party 
 Licentia concordandi, . ^ 
 
 A fine called the i>m«ier fine, is payable oa the writ.
 
 544 INDEX. 
 
 rAGt, 
 FINE. — Continued. 
 
 and another called the post fine on the licenUa 
 
 concorauiidi , , 270 
 
 No writ of covenant can be received, till post fine 
 
 is paid . . . il> 
 
 Of the entry of the licence to accord 277 
 
 Concord contains the acknowlei'.gment of tiie fine ib» 
 
 • before whom it must be made . ib. 
 
 The parties to the concord are, the conusor, the 
 
 cunitsee , . . 283 
 A stranger to the writ cannot be a party to the fine 284 
 \n\iy take b^^ way of remainder, but not as 
 
 immediate grantee, on a render in a fine ib. 
 A fine cannot be levied of parcels not in the writ 285 
 is erroneous as far as it comprises more parcels 
 
 than are in the writ . . ib. 
 
 The render in a fine may be of a particular estate ib. 
 Not of a larger estate than is granted. . ib. 
 
 Wlien lauds art- in different counties, there must be 
 
 different fines . . . 280 
 
 Several persons may join their parcels in the same fine, 
 
 if they are under a given valne . ib. 
 
 Coparceners, joint-tenants, and tenants in common, 
 
 may join in the same fine . . ib. 
 
 Words of limitation are usually added in fines sur 
 
 grunt et render, and fines sur concesserunt 287 
 
 Excei)t in gavelkind-tenure, lands may not be limited 
 
 to two and their heirs . , ib. 
 
 Condition, exception, saving, re-entry, when allowed 
 
 on fines . . . 280 
 
 A fine may be good, with or without warranty ib. 
 
 The warranty and grant should be conformable ib. 
 
 Noieof fine — iis nature . . 290 
 
 Foot of fine— what it is — its contents . ib. 
 
 Chirograph the same with the foot of the fine ib. 
 
 Of the indentures of fine . . 291 
 
 Cliiroj;raph is conclusive evidence of the fine ib. 
 
 Of the engrossment of fines . . ib. 
 
 A fiiie may be stopred by tlie death of u party, be- 
 fore the payineut of the king's silver . 292 
 A fine may he good, although the king's silver is paid 
 
 after ihe dyath of the party . . lb. 
 
 Acknowledgment, one of the j)rin'jipal parts of a 
 
 fine . . ib. 
 
 The time of acknowledgment is immaterial 293 
 
 A fii.t" relates to the return of the writ . ib. 
 
 Death in va<ation will not vitiate a fine, if the writ 
 
 was returnahU; of a preceding term, antl the king's 
 
 silver ])aid . . . ib, 
 
 A recovery was held good, though the tenant was
 
 INDEX. 545 
 
 Fl^K— Continued. 
 
 made by a subsequent fine, acknowledged of a 
 prior ierm . . . 294 
 
 Whtthei u will is revoked by the relation of a fine ilj. 
 
 To gain a title by non-claim, the fine should be levied 
 as of a term after the feoifment . 295 
 
 Objects of the statute of non-claim are to bar the issue 
 in tail, and to gain a title by non-claim . ib. 
 
 Proclauiations on a fine may be after the death of a 
 conusor or cunusce . . 296 
 
 Where proclamations operate by relation to the fine ib. 
 
 Comjjutation is made from the last pi-oclamation, ex- 
 cept the fine is executory . . ib. 
 
 Proclamations upon fines must be made according 
 
 to the statutes or they will be void . 297 
 
 . a fine notwithstandiiig an error in the proclama- 
 tions, will be good at common law as a conveyance 
 or an estoppel . . , ib. 
 
 The issue are bound by a tine, although there was no 
 freehold in the parties . . ib. 
 
 The \)\fi-a.oi partes Jinis, &c. cannot be pleaded by the 
 issue . . . ib. 
 
 The issue are not benefited by the avoidance of a fine 
 by the disseisee . . . 298 
 
 Strangers to a fine may plead partes finis. Sec. ib. 
 
 A tenant for years, or a copyholder, cannot devest an 
 estate, by the mere operation of a fine . 301 
 
 Partes yinis nihil, &.c. may be pleaded to their fine ib. 
 
 An heir apparent is concluded by his own fine ib, 
 
 A disseisee is bound by his own fine . S02 
 
 Of fines levied by two when an estate is limited to 
 them and the survivor, &c. . ib. 
 
 Joint-tenancy is not severed by a fine for years 306 
 
 A fine by one ancestor to the intail will bind the issue 307 
 
 ■ — One ancestor is not barred by the fine of an- 
 other . . . ib. 
 
 A fine levied by a parent not being an ancestor, will 
 not bind the issue . . ib. 
 
 Two classes of issue may be barred by one fine 308 
 
 A fine by a person entitled under one estate will not 
 bar issue entitled under a distinct esta'e ib. 
 
 The issue in tail may levy a fine with effect, where 
 they could not suffer a recovery . 309 
 
 An equitable freehold will suffice for an equitable 
 estate . . . 310 
 
 Uses may be declared on every fine tliat passes a;; estate ib. 
 
 Each person may declare the use according to his 
 estate . . 311 
 
 If oue of two joint-tenants levy a fine, he cannot de- 
 clare the use of more than his own moiety 312
 
 546 INDEX. 
 
 Fl^E.— Continued. 
 
 A stranger who joins in a fine, cannot declare the 
 uses .... 313 
 
 Declaration of the uses of a fine, by husband and wife ib. 
 
 when they agree . . ib. 
 
 when they disagree . . ib. 
 
 Averment may be made by a conusee on a fine levied 
 to himself . . . 317 
 
 Whether a tenant in tail, after having joined in a fine 
 with the reversioner in fee, and converted his estate- 
 tail into a determinable fee, can afterwards suffer a 
 recovery so as to bar the reversion . ib. 
 
 Of deeds to lead and deeds declaring the uses of 
 fines . . . . 318 
 
 FOOT OF FINE. What it is— its contents . 290 
 
 FORFEITURE. A recovery by tenant for life, may be 
 
 a forfeiture . . . Ill 
 
 No forfeiture when the tenant for life has a remote 
 
 estate-tail, or the owner of a remote estate-tail joins ib. 
 No forfeiture or destruction of contingent remainders, 
 
 when the estates are equitable . 117 
 Who may forfeit by fine . . 201 
 A fine of the fee by tenant for life, is a forfeiture ib. 
 Also acceptance of a fine exceptions . ib. 
 no forfeiture if confined to the interest of the 
 
 conusor . . . 202 
 
 assertion of title is the cause of forfeiture ib. 
 
 A fine by tenant for life of an equitable estate, is no 
 
 forfeiture . . . ib. 
 
 Difference between fines and recoveries ib. 
 
 A fine levied by a tenant in tail after possibility, &c. 
 
 will incur a forfeiture . . 220 
 
 On a forfeiture by a tenant for life, there are several 
 
 periods of non-claim . . 240 
 
 A fine levied by a temior for years, or a copyholder is 
 
 a forfeiture . . . 2G0 
 
 FORMEDON. Formedon is the proper remedy to restore 
 
 the right of action of tenant in tail . 206 
 
 FRAUD. Whether a termor may by a feoffment make a 
 
 good title to a writ of entry . GO 
 
 Non-claim on a fine may be avoided by fraud in pay- 
 ing rent . ' . . 223 
 
 Fraud will protect cestui que trust from being barred 
 by non-claim of his trustee . 233 
 
 Fraud affords jurisdiction to a court of equity against 
 fines . . . 253 
 
 Fraud in obtaining fines from infants is guarded 
 against by a rule of court . . 254
 
 INDEX. 547 
 
 PAGB. 
 
 TRAUD. — Continued. 
 
 Traud avoids a fine in equity . . 2G4 
 
 FREEHOLD. Estates of freehold distinguished from 
 
 chattel interests . . . ' 42 
 
 And from estates of inheritance . . ib. 
 
 Estates for life and of inheritance are freehold 45 
 
 Any estate of freehold, whether of superior or inferior 
 degree, is sufficient to make tenant to a writ of 
 entry • . • • • . 47 
 
 Tenant must have the immediate freehold . 48 
 
 Who can make a tenant . . 50 
 
 Under limitations of uses, and wills, the freehold 
 may sliift, so as to admit other persons to a parti- 
 cipation ... 52 
 
 Freehold may be gained by feoffment of termor 59 
 
 At what lime tenant must have tlie freehold . 61 
 
 Freehold lands distinguished from copyhold, on the 
 purchase by lord of a manor . . 60 
 
 When freeholder may by his concurrence give effect to 
 a second, recovery, notwithstanding a defect in a 
 former recovery . . .91 
 
 Recovery being void, and the conveyance making the 
 tenant good, the tenant retains the freehold 102 
 
 When it is doubtful whether the freehold is in one or 
 the other of two persons, both should join 108 
 
 The freehold of the identical share must be in the 
 person suffering a recovery of that share 144, 165 
 
 The tenant may have the freehold under a conveyance, 
 or declaration of uses . . 173 
 
 Unless the freehold be in one of the parties at the 
 time of levying the fine, the statute of non-claim 
 cannot opemte. . . 222, 258 
 
 See Tenant. 
 
 G. 
 
 GAVELKIND. A limitation to two and their heirs, is al- 
 lowed in fines of gavelkind lands . 287 
 There may be a warranty from two and their heirs in 
 a fine of gavelkind lands . . 290 
 
 GRANT. Bargain and sale may sometimes operate as a 
 
 grant . . . 39,41 
 
 Must be of a remainder, reversion, or incorporeal he- 
 reditament ... 41 
 Future use, though devisable, cannot be granted 149 
 Remainder or reversion may pass by bargain and sale 
 operating as a grant . . 180
 
 548 INDEX. 
 
 rAGK. 
 
 GRAf^T.— Continued. 
 
 A grant nasses a common law seisin . 190 
 
 A riglit oi action cannot be transferrer! by grant 206 
 
 A man cannot fj^rant to hiniheif or Ills wife . 211 
 
 Buta render iT!fy be toti;herby a fine . ib. 
 A render to two when the writ is only against one, is 
 
 vnidaole as to the person not a party . 284 
 
 Thje grant and warranty should be conformable 289 
 
 GRANTEE. A sti-anger cannot be a grantee in a fine 284 
 Exceptions . • - . ib. 
 
 H. 
 
 HABENDUM. Omission of the grantee's name in the 
 premises of a grant is not material, if the name is in- 
 serted in the habendum • • 181 
 In recovery deeds . . . 187 
 
 HEIR may be special occupant . . 40 
 
 Heirs of the body may be special occupants ib. 
 
 Heirs general estopped by a recovery without a tenant 98 
 
 Issue not considered as entitled in tail if their title is 
 defeated by the birth of a more immediate heir 14-3 
 
 An heir in tail whose title is defeated by a more im- 
 mediate descent, cannot bartheintail 54, 220, 309 
 
 Heir entering in opposition to a devisee, may, by le- 
 vying a fine with proclamations, gain a title by non- 
 claim . . . 224 
 
 Heir may be boimd by the fine of the devisee, under 
 a void devise . . . ib. 
 
 A fine may run against the heir, though the ancestor 
 dies under a disability . . 241 
 
 When a fine begins to run against a person, it will 
 continue to run against his heirs, notwithstanding 
 any subsequent disability , . 243 
 
 Heirs of a married woman are bound by her fine, levied 
 as a J'e7ne sole, unless the husband avoid it 255 
 
 An heir may avoid a fine levied by his ancestor, if 
 it appear on the record that the fine was levied by 
 her as a Jeme covert . . ib, 
 
 H«irs are baired by a fine, although there is no estate 
 of freehold in the parties levying it . 259 
 
 A Jinc may be an estoppel on the expectancy of an heir 301 
 
 An heir apparent is concluded by his fine . ib. 
 
 A release will not bar an heir apparent . ib. 
 
 Issue barred by fine may take as heir, tliough not as 
 issuf' .... .307 
 
 'Jjie heir of an infant cannot avoid the fine of the in- 
 fant, unless tile infancy is recorded during vun<>rity 25^
 
 INDEX. 549 
 
 PAGE* 
 
 UEIR.— Continued. 
 
 The heir of an ideot is bound by the fine of his an- 
 cestor . . . 251-2 
 
 HUSBAND AND WIFE. Woman tenant in tail ex pro- 
 
 visione viri, is restrained from ulienation 19, 146 
 
 Husband and wife may jointly alien tail ex provisione 
 
 vtri . . .20 
 
 So may wife and issue . . 21 
 
 Or wife and the first remainder-man when there is 
 
 no issue . . . ib. 
 
 Cases not within the statute . . 20,147 
 
 Though the husband, tenant in tail jointly with his 
 wife, &c. ca\uiot discontinue, he may bar the issue 
 by recovery, &c. . . 21 
 
 Ko fine necessary, on account of coverture, when a 
 
 recovery is suil'ered . , 34 
 
 Husband may convey the freehold to make tenant ib. 54, 55 
 Except of equitable freehold for the wife's separate 
 
 estate . . . .34 
 
 When the feme has a separate estate she may make 
 
 tenant .... 35 
 
 Wife having a separate estate to be considered a feme 
 
 sole .... 38 
 
 Ditfeteiit modes of seisin in them . 54 
 
 His power of alienation as to the freehold . ib. 
 
 Different ca^es in relation to recoveries by them 54-6 
 
 Where husband and wife are tenants of the freehold 
 by intireties, with an intail in the husband alone, 
 a recovery by the husband as tenaut will not bar 
 the issue . . . 55, 124 
 
 But if he comes in as vouchee, it will bar . 5fj 
 
 So will a recovery by the husband and wife as tenants 58 
 So will the husband's fine . . 220 
 
 Where they are tena its in tail by intirf'tie-, neither 
 
 of them alone c.ui bar the issue by a recovery 143 
 
 How far one of them m'ly bar the issnebv fine ib. 220, 307 
 Wife not barred unless she is vouched, &c. 50 
 
 Of voucher as applied to husband and v\;fe 124 
 
 Whether a fine by a married woman will bar her in- 
 terest in copyhold lands . . 160 
 A wife caimot convey her freehold so as to bind her- 
 self or her heirs without some assurance of record 214 
 A wife is equally bound by a fine with or without 
 
 proclamations . . . 215 
 
 A feme covert, except in particular cases, is not al- 
 lowed to levy a fine without her husband 254 
 Husband may avoid a fine levied by his wife 255 
 A married woman may defeat execution ni>on an exe-
 
 650 INDEX. 
 
 PA6B. 
 
 HUSBAND AND WIFE— Coiitimied. 
 
 cutory fine, levied by her alone whilst under conver- 
 
 ture . . .255 
 
 A divorce will not defeat a fine levied by husband and 
 
 wife . . . 256 
 
 A wife may be a conuseein a fine . 265 
 
 AVhen a conusee in a fine, and the render is from her, 
 
 she must be examined . . ib. 
 
 When she renders, the husband should be »arty 266 
 Feme may be bound by a warranty in a fine 289 
 
 Declaration of the uses of their fine . 313 
 
 When they agree . . , 314 
 
 When they disagree . . , ib. 
 
 See Heir. 
 
 I. 
 
 IDEOTS. Persons deprived of all their senses, are consi- 
 dered as ideots . . . 253 
 Otherwise of a person deprived of one or two only of 
 
 his senses . . . . ib. 
 
 A fine by an ideot will be good . 251 
 
 The heir of an ideot is bound by his fine . 252 
 
 See Equity. 
 
 IMPRISONiMEMT. Duress of imprisonment cannot be 
 alleged as an answer at law to the operation of 
 a fine . . . .253 
 
 Non-claim cannot begin to run against a person im- 
 prisoned . . . . 236 
 
 INCUMBRANCES accelerated . , 10, 14 
 
 Not barred ... 16 
 
 Barred . . . . ib. 
 
 INFANT, ought not to levy a fine, utjjess a trustee 251 
 
 But a fine by an infant, unless avoided during mi- 
 nority will be good . . ib. 
 Fine by him must be avoided during minority ib. 
 Or at least the inspection and trial of infancy must 
 
 be recorded during his minority . 252 
 
 May be conusee in a fine . . 265 
 
 Infancy, &c. will protect a cestui que tnist from being 
 barred by non-claim of his trustee . 233 
 
 INHERITANCE. Estate of inheritance distinguished 
 
 from estates by occupancy . . 46 
 
 All estates of iniit^itance are of freehold . ib. 
 
 INROLMENT. Want of inrolment of bargain and sale, 
 for making tenant, will vitiate the recorery, as far
 
 INDEX. 551 
 
 PAGE. 
 
 INROLMENT.— C'Qnfwmec/. 
 
 a$ the recovery depends on the validity of the bar- 
 gain and sale ... 38 
 
 But inrohnent within the six months will be sufficient, 
 though subsequent to the recovery . . ib. 
 
 Advantages of having a bargain and sale, or deed, in- 
 rolled .... 39 
 
 INSPECTION. Infancy must be tried by the inspection, 
 
 and the inspection be recorded during minority 251 
 
 INSTANT. A mere instantaneous seisin, will not be a 
 
 sufficient freehold for levying a fine . . 225 
 
 INTAIL, none of estates pour autre vie . . 17 
 
 See Issue, and other heads. 
 
 INTENT. An affidavit of the intent to include parcels, 
 
 is required, when an application is made to amend 273 
 
 INTENTION. In equity, the intention rather than the 
 
 form is regarded . . . 190 
 
 INTERESSE TERMINI. Convenience of renewing 
 
 leases by interesse termini . . .72 
 
 An interesse termini affected by nonclaim on a fine 
 only from the time there is a right of entry 231 
 
 A fine by lessor will not bar an interesse termini in 
 lessee while it is executory . . . 232 
 
 INTEREST. Whether springing interest under varying 
 
 shares may be barred by recovery . . 54 
 
 INTERMEDIATE ESTATE. A reversion remains in te- 
 nant for life, when he grants an estate for joint-lives 108 
 
 INTESTACY. Evidence of intestacy required when the 
 reversion after estates-tail constitutes part of the 
 title . . . . 15 
 
 INTIRETIES. Recovery suffered by husband (without 
 wife) when they are tenants by intireties, will not bar 
 the wife or the issue . . . 87, 143 
 
 How far he may bar the intail by fine 143, 220, 307 
 
 INTRUDER. A fine by an intruder may operate as a bar 
 
 by non-claim .... 225 
 
 IRELAND. Courts of England have no jurisdiction to 
 
 levy fines of lands in Ireland . . 267 
 
 ISSUE are not bound by estoppel . . 5, 92 
 
 Not barred when the intail is of the gift of the crown, 
 while, &c. . , . . 18,14^
 
 552 INDEX. 
 
 l^SVE.—Co7itinued. 
 
 But they may be barred by nonclaim on a fine 14G 
 
 Must join with the widow, tenant in tail, ex prov, 
 viri .... 20, 147 
 
 Not "bound by recover}' without a tenant of the free- 
 bold . . . . 86,88 
 
 But a recovery voidable by them may be good be- 
 tween the parties as a conveyance . 92 
 
 All conveyances by tenants ni tail are to be avoided by 
 entry or action ... 93 
 
 Recovery by issue, after entry in avoidance of a for- 
 mer conveyance by tenant in fail . 93, 100 
 
 Entry of issue, (when not barred) avoids a base fee 
 granted by tenant in tail . . 106 
 
 Issue may in pleading, shew there was no tenant 96 
 
 Recompence essential, as against issue, and the cause 
 of bar . . . lis, 119 
 
 Recovery by issue, is considered to bar remainder, 
 though the issue were previously barred by fine 1*26, 139 
 
 Issue in tail entitled to recompence on warranty 131 
 
 Whether several issues can be compensated by one re- 
 compence . . . . ib. 
 
 The issue of a person attainted of treason cannot suf- 
 fer a recovery . . . 139 
 
 Issue cannot suffer an effectual recovery in the life- 
 time of ancestor . . , 4, 142 
 
 Not considered as entitled in tail, if tlieir title is de- 
 feated by the birth of a iriore immediate heir 54, 143, 220 
 
 When there is a discontinuance, the issue cannot re- 
 cover otherwise than by a real action . 206, 207 
 
 Issue cannot be barred by a fine without proclama- 
 tions ... . 213,295 
 
 Issue bound by the fine of one of two ancestors 220, 307 
 
 It is otherwise of a recovery . . 143 
 
 Issue may enter notwithstanding an estate is de- 
 vested . •. . • . • 207,245 
 
 . cannot enter or maintain an ejectment, where 
 
 there is a discontinuance . . 206, 246 
 
 May be barred though the estate is neither devested 
 or discontinued . . .218 
 
 The issue whose title is defeated by a more immediate 
 descent, cannot bar the intail " 54, 143, 220, 309 
 
 Non-claim does not run against the intail, &c. where 
 the possession is held under a title derived under 
 the intail . . . . 239 
 
 When a line begins to run against a person, it will 
 continue against him and his issue, notwithstanding 
 a subsecjuent disability . . 242 
 
 The issue are bound by a fine although tlie freehold 
 is not in either of the purtiv's levying it . 259,297
 
 INDEX, 553 
 
 PAGS. 
 
 ISSUE. — Continued. 
 
 A parent (as such) cannot bar the issue . 29G 
 
 Issue are not heuetited by the avoidunce of a fine by 
 the disseisee . . . 297 
 
 An avoidance of a fine for want of freehold, will not 
 be an avoidance for the issue in tad . 298 
 
 To bar the issue, a fine must be by an ancestor and 
 proclaimed . . . 30G 
 
 The issue vviil be barred by a fine with proclamations 
 whether the an'.'estor has an estate or only a ri^ht, 
 a vested or contingent interest, or merely a hope 
 of su(Ct ssion, or the fine is levied after alienation ib. 
 
 Collateral issue bound, d" the estate-tail descends on 
 the conusor or his is^ue . . 307 
 
 The lineal issue bound, though the ancestor never 
 was the heir in tail . . . ib. 
 
 Issue barred by fiiie, may take as heir, though not 
 as issue . . . . ib. 
 
 Issue not within the line of intail cannot bar is>ue 
 within the intail . . . ib. 
 
 Two classes of issue may be barter! by one fine ib. 
 
 A fine by issue entitled vtiider one estate, will not bar 
 issue entitled under a distinct estate . 308 
 
 The more remote issue cannot bar the more immedi- 
 ate issue . . . . 309 
 
 Nor can an heir whose title is defeated by a more im- 
 mediate heir, bind such heir . . ib. 
 
 Issue may levy a fine with effect, where they could not 
 suffer a recovery . . . ib. 
 
 JOINT-LIVES. An estate for joint-lives may be created 
 
 out of an estate for life . . 103 
 
 JOINTLY. Freehold in two, and recovery against one 51, 8@ 
 
 -JOINT-TENANTS. Two being tenants, and one named 
 
 in recovery, the recovery is defective for a moiety 31 
 Cannot convey more ih:m their aliquot parts 50 
 
 A recovery on a writ ag-iinst joint-tenant, as sole 
 
 tenant, will be good only for a moiety . 15 
 
 Plea in abatement . . . ib. 
 
 Recovery, good only for the share of the vouchee 14.3 
 Joint-tenants, &c. should join in recovery deed 1<>5 
 
 A fine is good for the share of each joint tenant only 
 
 unless he disseises his companioiis . 264 
 
 One joint tenan<^ may be barred by non-claim on a 
 fine, or by the st-j>.':'c c*' limitations, though it does 
 not run against his companion . 2lj7, 265 
 
 ▼ot, I, p p
 
 554. INDEX. 
 
 JOINT TENANTS. — CoH/ittwerf. 
 
 A fine in fee by a joiuv-tei«ant, severs thejoint-tenaucy 2(54 
 Joint-tenants may join in the same fine , 286 
 
 A fine for years does not sever a joint-tenancy 306 
 
 A joint-tenant may declare the use, as far as he con- 
 veys . . .311 
 If two joint-tenants levy a fine, neither can declare the 
 use of more than his moiety . . 312 
 
 JUDGMENT. Lien of judgment may be extinguished by 
 
 recovery . . 5 
 
 Judgment on reversion accelerated by merger 10 
 
 i the acceleration is prevented 
 
 by demise ... 12 
 
 Rule of common law respecting tenant . 37 
 
 Recovery deed will be sufficient, though executed after 
 
 judgment, but during the term . 62 
 
 When judgment to recover in value is essential in a 
 
 recovery • . . 118 
 
 Judgment in recovery is sufficient if in the life-time 
 
 of the parties . . . 151 
 
 Draws seisin out of tenant . . 175 
 
 JURISDICTION. Different tenants may be convenient 
 
 on account of different jurisdictions . 32 
 
 Copyhold lands within the jurisdiction of the courts 
 
 of Westminster — not so, lands of ancient demesne 159, 
 
 267 
 Of recovery deed, when several recoveries in several 
 
 courts • . .174 
 
 When tliere is no jurisdiction, the fine is void 249 
 
 The superior courts have no jurisdiction over lands in 
 
 a county Palatine . . . 266 
 
 Nor in Ireland , . . 267 
 
 Nor in the West Indies . ib. 
 
 See Ancient Demesne. 
 
 JUSTICE OF ASSIZE. Justices of assize may take the 
 acknowledgment of a fine, but the practice is for a 
 writ of de po. to be afterwards sued out to them 278 
 
 JUSTICE, CHIEF, may take fines without a writ of de~ 
 
 dimus potestatem . . . ib. 
 
 K. 
 
 KING'S BENCH. Fines may be levied in King's Bench 
 
 on u writ of error do[)ending there . 268 
 
 KINCi'SSII.VEH, entry of . . 277 
 
 I'ailiculars in eiilry < . • ib.
 
 INDEX. 555 
 
 PAQE. 
 
 KING'S SILYER.—Contimced. 
 
 Error in entry of kini^'s silver is amendable 277 
 
 Not payable till the writ ot" covenant is returna- 
 ble ... . 292 
 
 A tine may be stopped by reason of death before the 
 payment of king's silver . . ib. 
 
 Fine will be good although the king's silver is paid 
 after the death of the party, so as the party was 
 living at the return of the writ , ib. 
 
 King's silver should be paid before a purchaser pays 
 his money, when the tine is an essential part of the 
 conveyance . . . 295 
 
 KING, cannot be barred by a fine, or recovery 19, 235 
 
 The king cannot levy a fine ; may render by fine ; is 
 
 restrained from alienation by the statute law 257 
 
 May be a conusee in a fine . . 265 
 
 A writ does not now determine by the death of the 
 
 king .... 275 
 
 See Crown. 
 
 L. 
 
 LEASES. Origin and convenience of leases for years de- 
 terminable on lives . . 72 
 
 Acceptance of lease from tenant for life rebuts the pre- 
 sumption of surrender ... 84 
 
 Recovery good, notwithstanding leases for lives 66 
 
 LEASEHOLDERS FOR LIVES, their surrender or con- 
 currence in recovery deeds rendered unnecessary 
 by statute law . . 67, 68, 167 
 
 Doubts whether their concurrence is not now sufficient 71 
 
 LEASE AND RELEASE. Tenant may be made by lease 
 
 and release . ... 34 
 
 Lease, release, and fine, when part of the same assur- 
 ance, by tenant in tail in possession, create a dis- 
 continuance . . . 205 
 
 LEGAL ESTATE. An entry to avoid a fine is necessary 
 
 only when the title is legal . . 248 
 
 See Recovery. 
 
 LESSOR. A fine by a lessor will not bar an interesse ter- 
 mini in lessee, while executory . , 232 
 
 LICENTIA CONCORDANDI. Of the licentia con- 
 
 cordandi . . . 276 
 
 p p 2
 
 556 INDEX. 
 
 met. 
 
 LIFE* A fine of the fee by a tenant for life, is a forfei- 
 ture . . . 201 
 Also 1 he acceptance of buch a fine . ib, 
 Except:o.is . . . ib. 
 Difftreiice btitween fines and recoveries . 202 
 A line '>y tenant for life of an equiiable estate, is no 
 
 forfeiture . . ib. 
 
 A finesiir concessit may be levied for life . 213 
 
 Tenant for liCernay ^ain the fee by non-claim 225 
 
 , may be benerited by the fine of a remainder- 
 
 man, and e converso . . 228, 229 
 
 ^ ■ ^ his fine for his own life will operate as a con- 
 veyance . . . 300 
 Tenant for life in remainder, cannot devest the free- 
 hold . . . . ib. 
 ,i in possession may devest . ib. 
 -. may declare the use as far as he convejs 311 
 
 LIFE ESTATE, distinguished from a term if A. shall so 
 
 long live . , . . 43 
 
 Varieties of . . . 45 
 
 Admission of a title in tenant for life, rebuts the pre- 
 sumption of a surrender . . 84 
 
 IMITATION. Statute of limitations may bar intail 8 
 
 Issue under an estate-tail, of the gift of the crown, 
 may be barred by non-claim . . 146 
 
 Persons labouring under a disabilitj', must claim 
 within five years after the disability is removed 241 
 
 and if there are several disabilities without an 
 
 interval, then within five years after all disabilities 
 are removed . . , ib. 
 
 Successive disabilities in the ancestor, or in the ances- 
 tor and the heir, suspend the operation of the doc- 
 tiine of non-claim . . ib. 
 
 A fine may run against the heir, notwithstanding the 
 ancestor died under a disability . ib. 
 
 The statute of limitations may sometimes operate be- 
 fore the fine . . 244 
 
 An entry or action must be prosecuted with effect, 
 or a new entry made or action brought within five 
 years . . . 247 
 
 Some fines, as the Jines sur conuzance de droit come 
 ceo.,<x\v\ sur conuzance de droit tantum,vi\\\ pass the 
 inhentaiK e wiijiftut words of lifnitation 202, 287 
 
 Vords of ex|)re^s limitation will be effectual ib. 
 
 i are necessary in a render, and 
 
 in the fine sur rnncesserunt . 287 
 
 A limitation to two and their heirs (except in gavel- 
 kind lands) is not sanctioned . ib.
 
 INDEX. 557 
 
 PAGB. 
 
 LIMITATION CONDITIONAL. See Recovery 2,9,10 
 
 LIMITATION COLLATERAL, not barred if annexed to 
 
 the estate of donor ot' intail . 17 
 
 LIEN. Lien of a judgment is extinguished by recovery 5 
 
 LIVERY. Essential to the validity of feoffment 41 
 
 M, 
 
 MANOR. A recovery of a manor will puss the reversion 
 
 of lands, )n lease for life . . 65 
 
 Escheated lands become uarcel of the manor 66 
 
 Will of a manor, will include escheated lands ib. 
 
 Cojjyhold lands purchased by the lord, become par- 
 cel of the manor . . . ib. 
 
 Not so of freehold lands . . ib. 
 
 The freehold m possession of lands, cannot be parcel 
 of the reversion of a manor . . ib. 
 
 Diticicnce between a recovery of the manor, and of 
 particular tenements parctl of the mai.or, as to tl e 
 concurrence of tenants for life, of the particular 
 tenements ... 71 
 
 On the dispensation with the concurrence of persons 
 having freehold of parcels oi a manor, when the re- 
 covery is of the manor . . 167 
 
 Where there are two manors of the same name, a?.d a 
 fine is levied of the one only, the ceriainty may be 
 made out by averment . . 271 
 
 MAXIM enforced via trita, via tufa . t3 
 
 MERGER of ownership under e?tate-tail, avoided by a 
 
 recovery . . . D 
 
 Also by fine and recovery . . 11 
 
 A demise may protect against the consequences of 
 
 merger . . . 12 
 
 Merger may be the cause of making a remote estate of 
 
 freehold, the immediate estate . 48 
 
 No merger when several estates are conveyed by the 
 
 same conveyance . 107 
 
 Reference to Essay on Merger . . lOS 
 
 Contingent remninders are destroyed by an union of 
 estates, thoHjih that union does not produce the ef- 
 fect ot merger . 115 
 An estate in remainder may become an esi^ate in pos- 
 session by surrender, merger, or disseisin of tenan 
 for life ... 139 
 Cautions against merger , . 167 
 There may be an union of estates without merg 31
 
 558 INDEX. 
 
 MORTGAGEE. If the freehold is in a mortgagee, he 
 
 must join in recovery deed . 24, IGG 
 
 Query. If the same rule applies to the mortgagee of 
 an equitable estate, when an equitable i-ecovery is 
 suffering . . .24 
 
 A fine by a mortgagor or mortgagee, will not bar the 
 right of the other . • 233 
 
 N. 
 
 NAMES. By what names parcels may be comprised in a 
 
 fine ... 270 
 
 Recovery good by estoppel, although the name of the 
 tenant was mistaken . . 89 
 
 NON-CLAIM on fines, will bar remainder . 8 
 
 Issue under estate-tail of the gift of the crown, may 
 be barred by non-claim . . 146 
 
 To effect a bar by non-claim on a fine, there must be 
 proclamations . . 213 
 
 Five years the period of non-claim . 221 
 
 An entry or claim must be pursued within one year 222 
 
 The freehold must be in one of the parties to the 
 fine, to eff"ectuate a bar by non-claim . ib. 
 
 The estate must be devested, or a fine will not ope- 
 rate as a bar by non-claim . . 223 
 
 A fine by an abator, intruder, or disseisor may ope- 
 rate by non-claim . . 224 
 
 A mere naked possession is not a sufficient foundation 
 for a fine, to operate by non-claim . 225 
 
 Nor is the estate of a tenant for years . ib. 
 
 Or of the owner of any other chattel interest . ib. 
 
 Or the mere receipt of rent . . ib. 
 
 A subsequent adverse possession will not support a 
 previous fine so as to operate by non-claim . 228 
 
 A fine by tenant in tail as a conveyance, cannot ope- 
 rate by non-claim . . ib. 
 
 A fine by disseisor who has made a lease for life, will 
 operate by non-claim . . ib. 
 
 A rent charge, an intercsse termini while such, a con- 
 dition as such, an authority, cannot be barred by 
 non-claim on a fine . . 231 
 
 A fine may bar any right or title of entry by non- 
 claim . . . 234 
 Who may not be barred by non-claim. 
 
 The king, bishops, ecclesiastical corporations, aggre- 
 gate or sole . . . 235 
 
 Heads of ecclesiastical bodies and officers intitled to 
 lands in right of their office, for life, may be barred
 
 INDEX. 559 
 
 NON-CLAIM.— CoM/e«w^f/. 
 
 by non-claim, but their non-claim will not nffect 
 their successors . . . 2.'}G 
 
 A vacant ownership cannot be barred by non-claim 2-38 
 Non-claim cannot avail, if there is an error in the fine, 
 
 or the proclamations . . 248, 297 
 
 Entry, &c. not necessary when a fine is void 241) 
 
 Non-> lalm cannot bej^ln to run against an infant, a 
 feme covert, non co)npos, or person out of the realm 
 or imprisoned . . . 23G, 241 
 
 When once a fine begins to run, it continues notwith- 
 standing subsequent disabilities . 242 
 
 NON-TEN]LJRE cannot be pleaded by a party to a reco- 
 very, after judgment . . U4, 100 
 Cannot be pleaded by the heir, when the ancestor is 
 
 a party . . . . ib. 
 
 May be pleaded by issue in tail . . 96 
 
 NOTE OF FINE, its nature . . 290 
 
 O. 
 
 OCCUPANCY, changed by statute . , 44 
 
 Termor might become freeholder by occupancy 43 
 
 Stranger might be occupant . . 44 
 
 Executors and administrators made occupants . ib. 
 
 Query. If any occupant till administration . ib. 
 
 Estates in which tiie heirs are to take as occupants, 
 
 are merely of freehold . . 40 
 
 OCCUPIER, might at the common law have been occupant 44 
 
 OFFICE, fine of .... 269 
 
 Non-claim bars only the officer for the time being in- 
 titled to lands in respect of an office for life . 236 
 
 OMISSION of the name of grantor in grant, not material 181 
 Nor of the grantee in the premises if he is named in 
 the habendum . . . ib. 
 
 OUSTER of tenant is proper as a foundation for a fine 226 
 
 OUTLAWED PERSONS. Persons outlawed in personal 
 
 actions may levy fines . . 257
 
 560 INDEX. 
 
 fA«H. 
 
 p. 
 
 PALATINE. Courts of Westminster have no jurisdiction 
 
 as to fines ove'- lands in a county palatine . 24© 
 
 Of fines in counties palatine . . 2G8 
 
 Id a county palatine, fines may now be levied, as of a 
 preceding term . . . 276 
 
 PARCEL AND PARCELS. Reversion of lands may be 
 
 pincel of manor in possession . . 65 
 
 Escheated lands become parcel of the manor . 66 
 
 Copyhcild lands purchased by the lord, become parcel 
 
 of the manor . . , ib. 
 
 Not so of freehold lands . . ib 
 
 The ireehold in possession of lands cannot be parcel 
 
 of tie reversion of a manor . . 65,06 
 
 When more iiarcels are in the recovery deed than in 
 
 the lecovery, tiie freehold recnains in the tenant 90 
 
 Caution lor restraining their extent . 105 
 
 Rules to be observed in describing parcels in recovery 
 
 deed .... 184 
 
 Identity of parcels to be shewn . . 185 
 
 Description of paicels . . . ib, 
 
 Constiuction of -eneral words, though no particular 
 
 intent to include the parcels • . 22notg 
 
 Of what parcels a fine may be levied . 269 
 
 By wh^t names . . . 270 
 
 How described . . . 271 
 
 — — by deed of uses . . . ib. 
 
 A fine may he void for uncertainty in the parcels ib. 
 
 A fine will not he suffered to pass more lands than 
 
 were intended to be included . 272 
 
 When theie were fewer acres than the actual admea- 
 surement . . . ib. 
 Parcels must be in the wit . . 274, 285 
 Of the parcels in the concord of the fine . 284 
 A fine cannot be duly levied of parcels not in the writ ib. 
 The parcels iray be distributed by the concord 285 
 Several larties may join their parcels in the same fine 
 
 if they are under a given value . 280 
 
 PARP>!VT, as such, cannot bar the issue in tail by fine 29G, 307 
 JLJu a hue levied by one of two parents who are ten- 
 ants in lad, will bar the issue . . 220 
 Not so of a recovery . . 143, ib. 
 
 PARSON. Abeyance during vacancy . . 45 
 
 PARTIES to common recovery are bound by estoppel 90
 
 INDEX. 561 
 
 PAGE. 
 
 PARTIES.— Continued. 
 
 Recovery ^ood Detween them, though no good tenant 102 
 Parties are bound by a fine, though the freehold is in 
 
 neithtr party . . . 259 
 
 Of the par'ues in the concord of a fine, and rules re- 
 specting them . . . 283 
 
 PARTICULAR ESTATE. A man cannot make a grant, 
 
 reserving a particular estate to himself . 211 
 
 A particular estate may be reserved to liim by a ren- 
 der on bis fine . . . ib. 
 
 PAYMENT. Mere payment of rent will not devest an 
 
 estate .... 230 
 
 PERPKTUITIES, avoided . . .154 
 
 PLAINTIFF is necessary in a fine . . 274 
 
 PLEA. When the plea of paries Jinis nihil habuerunt 
 
 may be used . . . 223 
 
 Observatioi:s upon the plea of partes, &c. 258 
 
 A previous feoffment obviates the plea of partes finis, 
 &c. . . . .201 
 
 Partes finis, S^c. cannot be pleaded by the issue in tail 
 as such .... 297 
 
 strangers may |)lead it . . 208 
 
 POSSESSION. See Adverse Possession. 
 
 A mere naked possession is not a sufficient foundation 
 for a fine . . . . 225 
 
 The possession of the tenant preserves the seisin of 
 those in remainder or reversion . 220 
 
 ■ for twenty years as purchaser, and recovery 
 
 deed, evidence ol recovery^ . . 74 
 
 after death of tenant for life, is ground for pre- 
 suming a surrender . . 84 
 
 POSSIBILITY. Tenant in tail after, &c. cannot bar re- 
 mainders by recovery . . 144 
 He is merely tenant for life, for the purposes of alien- 
 ation . . . ib, 
 
 POSTHUMOUS CHILD. Difference between descent 
 
 and purchase as to a posthumous child . 45 
 
 POUR AUTRE VIE. No actual intail can be of estates 
 
 pour autre vie ... 17 
 
 Baroaiii and sale, &c. by quasi tenant in tail will bar 
 
 the issue and remainders . . IS 
 
 Tenant pour autre vie may make a good tenant 43 
 
 Occupancy u.der common law, alteied by statute 44 
 
 See Occupancy. 
 
 POWERS. There can be no powers in a mere common 
 
 law conveyance , 211
 
 562 INDEX. 
 
 PAGB. 
 
 POWERS.— Coji/iwMerf. 
 
 No fine is necessary when a woman has a power to be 
 
 exercised, notwithstanding coverture : 215 
 
 May be extinguished by recovery . 5 
 
 Preserved by retaining a reversion . 108 
 
 Confirmed by declaration of uses . . 109 
 
 PRACTICE. Preference to be given to fine or recovery 15 
 Mortgagee of freehold must join in legal recovery 25 
 
 As to equitable recoveries . . ib. 
 
 Observations on a recovery good between the parties, 
 
 but voidable by issue, &c. . . 89 
 
 Cautions in making tenant . . 104 
 
 Cautions for restraining the extent of parcels in reco- 
 very deeds . . . 105 
 Demise to prevent forfeiture . . Ill 
 Limitations to correct contingent remainders . 112 
 Limitation of estate of freehold to protect against for- 
 feiture * . . . ib. 
 Convenience of full declaration of intention to suffer 
 recovery . . . .151 
 
 PRENDRE. Fines may be of things lying in prendre 270 
 
 PRESUMPTION of resulting use in a fine, is rebutted 
 by recovery afterwards sufiered, in which the co- 
 nusee is named tenant . . 36 
 
 The statute of 14 Geo. II. making the recovery deed 
 evidence of the recovery, applies only when the re- 
 covery cannot be found . . 76 
 
 Circumstances under which a good tenant will be pre- 
 sumed, viz. possession ; entry in attorney's books 77 
 
 But presumption may be rebutted . ib. 
 
 General rules ... 78 
 
 Power to suffer recovery, favours the presumption of 
 the validity of the recovery . . ib. 
 
 Re-conveyance by a trustee, may be presumed to sup- 
 port a recovery ... 79 
 
 Presum|jtion of regularity of recovery from circum- 
 stances ... lb. 
 
 To ground a presumption there must be facts and cir- 
 cumstances . • .81 
 
 When there is a power to bar by recovery, no presump- 
 tion is too large in favour of a recovery . ib. 
 
 Length of time no influence by way of presumption, 
 unless the possession is adverse, or there is at least a 
 possession ... 82 
 
 lieasons against the presumption of a surrender 84 
 
 I'osHi'ssicjii alter death of tenant lor life, is a ground 
 for presuming a surrender . . ib. 
 
 Acquiescence aflbrds presumption of a surrender 79, 84
 
 INDEX. 
 
 56^ 
 
 PAOB. 
 
 TRESUMPTION. -^Continued. 
 
 Admission of a title in tenant for life (as acceptance of 
 
 lease,) rebuts the presumption of a surrenderer 84 
 
 The statute law makes twenty years evidence of a 
 
 good tenant when the deeds are lost . 85 
 
 Production of deeds destroys the presumption ib. 
 
 Surrender may be presumed to support a recovery 77 
 
 PRIVIES will be bound by a fine, although the freehold 
 
 is not in either party . • 259 
 
 PRIVITY OF ESTATE. A fine may operate in confir- 
 mation of the title of those who are connected in 
 privity of estate . . . 22G 
 
 PREROGATIVE of the crown. See Crown . 19 
 
 PROCLAMATIONS. A fine, with proclamations, which 
 
 devest an estate, must be avoided by actual entry 207 
 A fine without proclamations, is no bar of the issue, 
 
 &c. or of strangers by non-claim . 213, 29G 
 
 Proclamations recommended, though no particular 
 
 occasion for them appears . . 215 
 
 Tenant in tail may bar his issue, and, in case of non- 
 claim, those in reversion or remainder, by a fine with 
 proclamations . . . 218 
 
 Wihere there are no proclamations, no entry is neces- 
 sary to avoid the fine . . 213 
 An estate-tail although in reversion, is barred by a fine 
 
 with proclamations . . . 218 
 
 Error in a fine, will vitiate the proclamations ; but 
 
 error in the proclamations will not vitiate the fine 248 
 No proclamations can be made upon fines levied 
 
 in a court of ancient demesne . 249 
 
 Must be proved by an examined copy . 291 
 
 The two objects of proclamations are, 
 1st. To bar the issue: 2d. To gain a title by non-claim 295 
 Proclamations may be made after the death of the 
 
 conusor or conusee . . 29G 
 
 Proclamations when made, have relation to the return 
 
 of the writ . . . ib. 
 
 When proclamations are made, the issue are bound 
 
 by relation . . . ib. 
 
 Computation of non-claim is made from the last 
 proclamations, except the fine is executory, or there 
 are disabilities, or the title arises under a remote 
 estate . . . 237, ib. 
 
 PRODUCTION of deeds destroys the presumption of a 
 good tenant afforded under the statute of 14 Geo. 
 II. c. 20 . . . .85 
 
 PROTECTION of issue and remainders when the gift is 
 
 from the crown for services performed . 18
 
 564 INDEX. 
 
 PJtSZ, 
 
 PROTECTION.— Co«Y/n«erf. 
 
 Of issue and remainders, when a woman is tenant in 
 tail ex provisione viri 
 
 against debts by a demise . ,12 
 
 ■ Forfeiture . . ib. 
 Judgments . . ib. 
 
 PURCHASE. By the purchase of copyhold lands by the 
 lord of a manor,' the copyhold tenure becomes par- 
 cel of the manor . . . 6G 
 Otherwise of freehold lands • . ib. 
 
 See Uses. 
 
 PURCHASER. When recovery to beat his expence 15 
 
 Construction of instrument . . 39 
 
 Cautions in accepting a title under a recovery when 
 
 the recovery deeds are lost . 85 
 
 In recovery deeds to the use of a purchaser, there 
 
 should be the grant of deeds . . 86 
 
 Observations respecting warranty between purchasers 
 
 and sellers . . . 289 
 
 King's silver should be paid before a purchaser pays 
 
 his money . . . 295 
 
 Q. 
 
 QUANTITIES in a fine . . . -271 
 
 QUEEN. The (queen not being regent) may levy a fine 256 
 
 R. 
 
 REBUTTER. Presumption of recovery may be rebutted 
 
 by evidence ... 77 
 
 RECEIPT. Receipt of rent, will not devest an estate 230 
 A fine by a stranger, before entry or receipt of rent, 
 
 is void for want of a sufficient seisin . 2G3 
 
 There may be a seisin without receipt of rent ib. 
 
 RECITAL. Its influence in an act of parliament 64 
 
 Form of in recovery deed . . 177 
 
 TJie creation of intail,. and subsequent facts, making 
 
 out the right to sutler a recovery, should be shewn ib. 
 Objects of recital in recovery deed . lb, 
 
 RECOMTENCE. A consequence of voucher . 118 
 
 Is material as agaiiit issue, and the cause of bar 118, 119 
 Not so as against remainder-men . 118, 134 
 
 The loss determines the right to recompence 121 
 
 Lands taken as a recompence for estate-tail will be in- 
 tailed , . . ib.
 
 INDEX. 566 
 
 PAOI. 
 
 RECO MPENCE.— Co« tinued, 
 
 Rtcoiapence is mtrely nominal . 121 
 Cousiciered with reference to two intails, one derived 
 
 out of" the other . . . 129 
 Of ihe ditficulty of applying the recompence, when 
 one estate-tail is derived out of another, and the 
 estates are in distinct persons, who are jointly 
 
 vouched . . . ib. 
 
 Issue in tail intitled to recompence on warranty 131 
 WhetiH^r several issues can be compensated with one 
 
 recompence . . . ib. 
 When a stranger is vouched jointly with tenant in tail, 
 the recompence will belong- wholly to the intail 131, 135 
 
 RE-CONVEYANCE. A re-conveyahce has been decreed 
 in equity as aj^ainst fines obtained from ideots, 
 
 and under fcgtcJ oeeds . , 253 
 
 RECOVERY, extFut of estate gained . 2 
 
 Detfnninable fee ... ib. 
 
 Defeasible fee ... ib. 
 
 Expectant estate . . , ib. 
 
 Vested estate . , , ib. 
 
 Executory devise . , . 2, 3 
 
 Rent . . . , 3 
 
 Ve^ted remainde." . . . 1, 4 
 
 By assitjnee of intail ... 4 
 
 Determinable fee . , , ib. 
 
 Issue . . . . ib. 
 
 Estoijpel . . ■ , , ib. 
 
 Dowress . . , . ib. 
 
 Fe.ue ; . , . ib. 
 
 Cjerating as a conveyai->ce . . 5 
 
 Operatini^ to exltinguish a rent . , ib. 
 
 ■- Judgment . ib. 
 
 ■ Power . ib, 
 
 Error . ib. 
 
 By persons having contingent ioterests, executory in- 
 terests, executory devise, contingent remainders G 
 Siiigle voucher ... 7 
 Double . . » . 6 
 T>ehle . . ,, . 7 
 P 'TIS of rerove-y ... 8 
 Recovery deed, preparatory step . , ib. 
 Common assuiance . , . ib. 
 Redl action . , . ib. 
 Springing and shifting use . . 9 
 Mertjer avoided . . , ib. 
 Distinguished f om fines . , 13 
 Advantage of r. covery in evidence of title 9, 14 
 When to be at purchaser's expence , 15
 
 566 INDEX. 
 
 FACE. 
 
 RECOVERY.— Continued. 
 
 By remote remainder-man in tail , IG 
 
 By prior tenant in tail . , 17 
 
 By tenant pour autre vie . . ib. 
 
 Jointress . . . . IS 
 
 Will bar all leases, charges, &c. derived ont of re- 
 mainder after the estate-tail . . 21 
 After alienation ... 22 
 Equitable recoveries . . ib. 
 Legal and equitable freeholder . 24, 25, 26 
 Cestui que trust . • . 27 
 Legal fee and equitable intail , . 28^ 
 One recovery deed and several recoveries . 32 
 Declaratory clause in recovery deed . ib. 
 When tenant is made by persons having varying shares 52 
 Fine in vacation as of a preceding term, will support 
 
 a recovery in that term . . 64 
 
 As between the parties a recovery operates as a con- 
 veyance, though no good tenant to the writ of entry 72 
 Recovery deed evidence of recovery after twenty years' 
 
 possession ... 75 
 
 Power to suffer a recovery favours the presumption of 
 
 the validity of the recovery . , 78 
 
 Recovery without a good tenant is voidable only 86 
 
 good against the party . 86^ 102 
 
 operates as a conveyance against tenant in 
 
 fee and also in tail . . 86 
 
 Recovery without a good tenant is voidable by issue 
 
 and remainder-men . . . ib. 
 
 Freehold in two jointly, and recovery against one, 31, ib. 
 Remains in force till avoided . . lOO 
 
 Distinction between recoveries to operate as convey- 
 ance, release, estoppel, bar . . 120 
 Recovery may be good as a conveyance or release, 
 thougii ineffectual against issue, &c. . ib. 
 
 may alho be good us a conveyance, though it has 
 
 the double effect of barring estates-tail, and giving 
 recompence against the issue . . ib. 
 
 Witii single, double, and treble voucher . 122 
 
 With double vourher . . 125 
 
 Several estates-ti'cil, &c. in the same persons barred by 
 
 one recovery . , . l37 
 
 Who may, and may not suffer recovery . 138 
 
 The privilcgf of suffering recovery is |)ersoual 139 
 
 May be snlVered dy donee in tail, so as to bar remain- 
 ders, &c. even after the intail has been barred by 
 iln(- .... 126 
 
 So (it seems) by the issue . . 126, l3t) 
 
 Assignee of tenant in tail cannot sufler a recovery ib.
 
 INDEX. 567 
 
 PAOB. 
 
 RECOVERY.— Confinwerf. 
 
 By remainder-man bars only his estate-tail, and the 
 expectant estates . . . 140 
 
 Prior estate not afi'ected by recovery . 141 
 
 Charges affecting estate- tail, not barred by recovery ib. 
 
 Cannot be suffered by the owner of a contingent in- 
 terest .... 142 
 
 Nor by the issue in their ancestor's life-time . ib. 
 
 Nor by tenant in tail after possibility . 144 
 
 Nor by tennnt in tail of the gift of the crown for, &c. ib. 
 
 Nor by woman tenant in tail, ex proi\ viri, except 
 with concurrence of the heir, &c. . 14G 
 
 Mode of suffering customary recoveries . 155 
 
 Cannot be suffered, of copyhold lands, in the Common 
 Pleas . . . .159 
 
 Legal and equitable recovery IGG 
 
 A recovery by a tenant in tail although he is barred by 
 non-claim on a fine, will, with the concurrence of 
 the person who has the freehold, bar all remainders 
 over , . . .243 
 
 Whether a tenant in tail, after having joined in a fine 
 with the reversioner in fee, and converted his estate- 
 tail into a determinable fee, can afterwards suffer 
 a recovery so as to bar the reverion . 317 
 
 RE-ENTRY. When and where a clause of re-entry is 
 allowed in fines . . . 289 
 
 RELATION applied to recoveries by persons having va- 
 rying shares ... 53 
 
 A fine has relation to the return of the writ 293 
 
 Statute may be avoided by relation of fine . 294 
 
 To gain a title by non-claim the fine should be levied 
 as of a term after the feoffment . . 295 
 
 The proclamations when made, have relation, as to the 
 issue in tail, to the return of the writ . 296 
 
 Subsequent proclamations operate by relation to the 
 fine ... ib. 
 
 When the proclamations are made, the issue are 
 bound by relation ' . . ib. 
 
 Whether a will is revoked by the relation of a fine 294 
 
 RELEASE. There must be an estate to be enlarged 41 
 
 Distinction between recoveries to operate as convey- 
 ance, release, estoppel, bar . . 120 
 Right of action may be extinguished by release 206 
 A fine by estoppel operates as a release . 208 
 A fine by a person having a right of action, a title of 
 entry, or a contingent interest, will operate as a re- 
 lease or extinguiiihment . . 261
 
 568 ' INDEX. 
 
 RELEASE. — Continued. 
 
 A release by an heir apparent, by deed, will not bar 
 
 h.m ... . 301 
 
 A fine by such heir, will bar him ib. 
 
 REMAINDER in things denovn, as rent . 3,4 
 
 Vested . . . . 1, 4 
 
 A recovery by a person having a contingent interest, 
 
 will not bar issue, &c. . . 6 
 
 Esto|jpels . . • « 5 
 
 Non-claim . . * 8 
 
 Limitation . . , ib. 
 
 Recovery by remote remainder-man in tail, bars all 
 
 subsequent remainders . . 16 
 
 "Will pass by grant . . ; 41 
 
 The case of cross-remainders distinguished from per- 
 sons having shares subject to variation . 53 
 Remainder in tail after an estate of freehold not bar- 
 red by recovery, against the tenant, as tenant to the 
 writ . . . .55, 123 
 Remainder-men not bound by recovery of prior tenant 
 
 in tail without a good tenant of the f eehold 86, 88 
 Necessity of retaining reversion to preserve contin- 
 gent remainders . . 114, 167 
 Contingent remainders destroyed by an union of es- 
 tate, though that union does not produce the eiFect 
 of merger . . . 115 
 No forfeiture or destruction of contingent remainders 
 
 when equitable . . .117 
 
 Remainders not barred by recovery without voucher 118 
 Remainders barred without regard to recom pence 134 
 
 An estate in remainder may become an estate in pos- 
 session by surrender, merger, or disseisin of tenant 
 for life . . . .139 
 
 A reeovery by remainder-man bars only the estate-tail 
 
 and expectant estates . . 141 
 
 Remainders under gift in tail by the crown for ser- 
 vices, protected from bar . . 146 
 See Crown, 
 
 Caution against destruction of contingent remainders 167 
 Remainder may pass by bargain and sale not enrolled, 
 
 as a grant . . .180 
 
 A fine snr comizancc de droit come ceo, &c. may be le- 
 vied of an estate in remainder . 203 
 A remainder is changed into a right of action by dis- 
 continuance . . . 206 
 Tenant in tail of a vested estate i n remainder, may 
 bar it by a fine with proclamations . 218
 
 INDEX. 569 
 
 REMAINDER.— CowfinMerf. 
 
 Continuance of seisin in a particular tenant preserves 
 the stisiii of those in remainder . 228 
 
 Tenant for life may be benefited by the Kne of a re- 
 mainder-man, and e coyivcrso . ib. 
 
 Tenant for life in remainder, cannot devest the free- 
 hold .... 300 
 
 REMAINDER-MAN. A fine levied by a remainder-man 
 
 will be a bar to strangers . . 250 
 
 A remainder-man may declare the use, as far as he 
 conveys . . , 311 
 
 REMITTER. To old intail . . 7 
 
 Of reniainder-man, &c. . . 1.3 
 
 REMOTE INTEREST. Ji remote interest is not barred 
 till non-claim for five years after it confers aright 
 to the possession, &c. &c. . . 238 
 
 A remote estate may be saved from non-claim, though 
 a more immediate estate in the same person is 
 barred ... 240 
 
 RENDER. Fines may be levied of things lying in render 270 
 If the wife is to render by fine, the husband should be 
 
 a party . . . 26G 
 
 Persons not named in the writ, may take by way of 
 
 remainder, on the render of a fine . 284 
 
 Rent may be rendered out of lands, granted by fine 285 
 The render may be of a particular estate, but cannot 
 
 be of a larger estate than is granted . ib^ 
 
 Clauses of condition, and re-entry allowed in renders 289 
 Uses may be declared on the render of a fine . 310 
 
 No resulting uses on the render of a fine . 317 
 
 RENEWAL. Convenience of reversionary leases by way of 
 
 interesse Urmini , , - 72 
 
 RENT, recovery of . . . 3, 140 
 
 Extinguishment by recovery . • 5 
 
 Recovery of land will not bar an intail of rent issuing 
 
 out of it . . . 6 
 
 Otherwise of a fine . • 271 
 
 Mere receipt of rent is no foundation for a fine . 225 
 Acceptance of rent may bind the issue . 239 
 
 May prevent the possession being adverse . ib. 
 
 Fines may be levied of rents . . 269 
 
 Rent may be rendered out of lands, granted by fine 285 
 
 RENT-CHARGE. A rent-charge cannot be barred by 
 
 non-claim on a fime . . 231 
 
 RESULTING USE. For want of a declaration, &c. the use 
 
 will result on a recovery to the former ovyners 194 
 
 VQ1*. I. Q Q
 
 570 INDEX. 
 
 fAOB. 
 
 RESULTING V^E.— Continued. 
 
 But the use resulting to a tenant in tail on a recovery 
 will be changed to a fee-simple . 194 
 
 A use resulting under a fine is changed from an estate* 
 tail into a fee-simple, if there is a discontinuance, 
 and if there is no discontinuance, then into a de- 
 teriTiinable fee . . 203-4 
 
 No resulting use, if the fine creates a particular estate 203 
 
 When uses are declared of part only of an estate, they 
 will result for the residue . . 204 
 
 Use results for want of a declaration, or if it is limit- 
 ed in contingency, to the former owner, pro interesse 
 sua . . . 313, 316 
 
 No resulting use on the render in a fine . 317 
 
 Resulting use on a fine descends as the estate would, 
 have done ... 204, 318 
 
 So if the use is expressly declared , ib. 
 
 RETRAXIT. Retraxit of a writ, puts an end to it 275 
 
 RETURN. The writ must be returnable on a dies juridicus ib. 
 
 Till the return of the writ, a fine is not complete . 291 
 
 Death of parties before the return of the writ avoids 
 the fine . . . . ib. 
 
 The writ may be returnable, as of a preceding or sub- 
 sequent term . . 292 
 Death in vacation, will not vitiate a fine so as the 
 return is of a preceding term, and the king' s silver 
 paid . . . . 293 
 
 Fine relates to the return of the writ . ib* 
 
 REVERSAL. Reversal of fine for error will not vitiate a 
 recovery suffered in the mean time, on a tenant made 
 by the fine . . . . 37 
 
 To reverse a fine for infancy, the infancy must be re- 
 corded during the minority . . 251 
 
 REVERSION. Advantages of barring the reversion in fee 
 
 by recovery . . .9 
 
 Recovery of manor will pass the reversion of lands in 
 
 lease for life . , 65 
 
 Reversioner in fee bound by his recovery . 88 
 
 A reversion remains in tenant for life, who creates an 
 
 estate for joint lives . . 108 
 
 Necessity of retaining reversion to preserve contingent 
 
 remainders . . 114 
 
 May pass by bargain and sale without inrolment, as 
 
 a trrant . . . 180 
 
 Cla\i>e of reversion to be inserted in recovery deeds 186 
 A fine sur cmiuzance dc droit come ceo, &c. proper 
 
 to be levied of an estate in reversion . 200
 
 INDEX. 571 
 
 REVERSION.— Condnuet?. 
 
 Tenant in tail of a vested estate in reversion, or re- 
 mainder, may bar it by a fine with proclamations 218 
 
 REVERSIONER. A fine levied by a reversioner, will bar 
 
 strangers . . , 259 
 
 has a seisin sufficient to support a fine 2G3 
 
 When received on default, may levy a tine, though no 
 party to the writ of covenant . . 284 
 
 REVOCATION. Whether a will is revoked by relation 
 
 of a fine . . . 294 
 
 Where a recovery revokes a will . 89, 149, 196 
 
 RIGHT. Recovery against a person who has a right, 
 
 extinguishes the right . . 95 
 
 A fine may be an estoppel, on the right of an heir 301 
 A person who has a right and joins with one wiio has 
 
 an estate cannot declare the use . 313 
 
 Right of entry, or of action, after a disseisin, or dis- 
 continuance, cannot be conveyed by grant, or fine 206, 
 
 208, 247, 201 
 Nor, as it seems, be devised . . 206 
 
 S. 
 
 SAVING. When and where allowed on fines . 289 
 
 SEISIN. The seisin is drawn out of the person named as 
 tenant by a recovery, though defective for want of 
 a good tenant . . . 92,100 
 
 Necessity of seisin in demandant . . 149 
 
 The return of the writ of seisin should be shewn in the 
 
 abstract .... 150 
 
 Seisin must be delivered, that uses may arise 149, 176 
 And must be delivered to demandant or his heirs 151, 176 
 Uses cannot be larger than the seisin which is con- 
 veyed . . . .188 
 Seisin transferred by fine , . 203 
 A mere instantaneous seisin, will not be a sufficient 
 
 freehold for levying a fine . . 225 
 
 An entry by tenant for life will restore the seisin of 
 
 those in remainder . . . 227 
 
 Continuance of seisin in a particular tenant preserves 
 the seisin of those in remainder, against the opera- 
 tion of a fine . . , 228 
 Seisin should be restored before a fine is levied, to ope- 
 rate as a conveyance . . . 261 
 There is not a sufficient seisin before entry or receipt 
 
 of rent, to support a fine to operate by non-claim 263 
 There may be a seisin without receipt of rent 264 
 
 Nouses can be declared of a fine that does not pass 
 a seisin . . , . 310 
 
 « « 2
 
 572 INDEX. 
 
 SEPARATE ESTATE. A wife having :i separate estate, 
 
 may make tenant of an equital^le freehold . 34 
 
 The separate estate of a married woman may be convey- 
 ed without fine . . . 215 
 
 SETTLEMENT by ten;nit in tail, is confirmed by a sub- 
 sequent recovery, suffered by him . 22 
 The concurrence of the freeholder, under the same 
 settlement, is not absolutely necessary to the vali- 
 dity of a recovery . . » 70 
 
 SEVERANCE. Means by which lands may be severed 
 
 from a manor . . . 65, 06 
 
 Joint-tenancy may be severed by fine . 264 
 
 A joint-tenancy is not severed by a fine for years 306 
 
 SHARES. Sole tenant ... 51 
 
 Tenant in common . . . 50,51,52 
 
 joint-tenant . , . 50, 51 
 
 Varying shares ... 52 
 See the several heads. 
 
 SHIFTING USE. Clause for determining the interest of 
 
 the tenant in a recovery deed . . 90 
 
 STATUTE. The lien of a statute may be avoided by the 
 
 relation of a fine . . . 204 
 
 STATUTES. 
 
 18 Ed. 1. (Quia Emptores) . . 06 
 St. 4. (Fines) . . 274 
 
 4 Heary VII. c. 24. (Non-claim) 8,214,210,217,221,295,300 
 
 11 — c. 20. (TiiW ex provisioyie viri) . 19,140 
 
 27 Iltn. Vlll. c. 10. (Uses) . . 40, 149 
 
 32 c. 28 (Husband) . . 21 
 
 c.30.iBartointails)8,214,216,217,221,295,306 
 
 34 and 35 Hen. Vili. c. 20. (Gift from the Crown) 18, 144 
 
 c. 20. (Wales) . 208 
 
 37 c. 19. (Lancaster) . ib. 
 
 2 and 3 Edw. VI. c. 28. (Chester) . ib. 
 
 1 Eliz. c. 19. (Ecclesiastics) . . 257 
 
 5 c. 27. (Durham) . . 208 
 
 13 c. 10. (Ecclesiastics) . . 257 
 
 43 c. 15. (Chester) . . 208 
 
 21 Jumes I. c. 10. (Liuii^itions) . 8, 205 
 
 29 Cliarlts IL c. 3. sec. 12. (S[.ecial occupant) 44 
 
 10 and 11 Will. IIL c. 10. (Posthumous children) 45 
 
 1 Anne c. 8. (Oeniise of crown) . . 275 
 
 4 and 5 Anne, c. 10. (Attoinmcnt) . 4 
 
 sec. 10. (Entry to avoid fines) 222, 246 
 
 7 c. 19. (Infant trust(r) . . 251 
 
 14 C»eo. II. c. 20. sec. 1. and 2. (Recoverv without 
 
 ^urniul.r (»f leases) 07, 68, 70, 71, 82
 
 INDEX. 573 
 
 STATUTES.— Continued. 
 
 14 Geo. II. c. 20. sec. 4. (Deed, evidence of recovery) 74, 
 
 151 
 
 sec. 5. (Recovery, evidence of tenant) 85, 
 
 1()2 
 
 ' sec. C. (Recovery deed during term) Ji9, 
 
 41, 01, 02, 104 
 
 sec. 9. (Special occupants) 44 
 
 32 (King's Sdver) . 276 
 
 STRANGERS. Gift to a woman in special tail by a stran- 
 ger, imposes no restiaint on alienation . 20 
 At the common law he might liave been an occupant 44 
 When vouched jointly witli tenant in tail, the recorn- 
 
 peuce will belong to the intail . 135 
 
 Strangers may take advantage of estoppels . 208 
 
 A right of entry may be extinguished by a fine to a 
 
 stranger . . . 209 
 
 Tenants for life, and remainder men are not strangers 
 
 to each other .... 227 
 
 A fine by a stranger passes no estate . 259 
 
 • may operate as an estoppel ib. 
 
 A stranger to the writ cannot be a party to the fine 284 
 Exceptions ... ib. 
 
 may take, by way of remainder on a render in a fine ib. 
 
 Not bound by fines without proclamations 296 
 
 A stranger wlio joins in a fine cannot declare the use 313 
 
 SUCCESSOR. The successor of a bishop, &c. may be 
 barred by nonclaim on a fine, unless he avoid it 
 within five years . . . 235 
 
 An officer for life, is not bound by the non-claim of 
 his predecessor . . . 236 
 
 SUNDAY. A fine on a dies non jtiridicus, or Sunday, is 
 
 erroneous . . . 275 
 
 SURRENDER. None necessary of leases for lives at rents 
 
 to make tenant to the writ of entry . 66 
 
 Otherwise of estates of tenants for life under settle- 
 ment, or of tenants by cor.rtesy or in dower , 63 
 
 Surrender may be presumed from collateral evidence 77, 163 
 
 A conditional surrender has been presumed after 
 forty years . . . .82 
 
 Reasons against the presumption of a surrender 83 
 
 Possession after death of tenant for life is ground for 
 presummg a surrender . . 84 
 
 Acquiescence afl^brds presumption of a surrender ib. 
 
 Admission of a title, in tenant for life, rebuts the pre- 
 sumption of a surrender . . 84 
 
 An estate in remainder may become an estate in pos- 
 session, by surrender, &c. , . 48, 139
 
 574 INDEX. 
 
 SURVIVOR. An intere-st limited to tlie survivor of two 
 
 persons, cannot be transferred by fine . 209 
 
 Of fines levied b}' two, when an estate is limited to 
 them, and the survivor and his heirs . 302 
 
 SUSPENSION. The remedy may be suspended because 
 
 the head of an ecclesiastical body is barred 235 
 
 T. 
 
 TAIL. Estoppels. . . 5,6 
 
 In one person ... 6 
 
 In different persons . . .7 
 
 Derivative . . . .6 
 
 Executory devise, springing use . . 9 
 
 Conveyance by tenant in tail has the same operation 
 
 against him as a conveyance by tenant in fee has 
 
 against that tenant . . .93 
 
 Tenant in tail personally bound by all acts, which are 
 
 binding on tenant in fee . . . 101 
 
 Estate-tail not barred without voucher . 118 
 
 Lands taken on voucher, as a recompence for tail will 
 
 beintailed . . . .121 
 
 Estate-tail in possession may be barred by recovery 
 
 with single voucher . . . 122 
 
 No estate-tail which is devested or discontinued will 
 
 be barred by a recovery with single voucher 123 
 
 Joint voucher of tenant in tail and stranger, will bar 
 
 intail .... 128 
 
 When stranger is vouched jointly with tenant in tail 
 
 the recompence will belong to the intail . 135 
 
 TENANT, who . . . .30 
 
 Practice . . . , ib. 
 
 Two persons . . . ib. 
 
 Two persons named in deed and one in recovery 31 
 
 Without ( onveyance . . . ib. 
 
 Lands in different jurisdictions . . 32 
 
 Uses . . . , ib. 
 
 By what means the tenant may be made . 34 
 
 No fine necessary on account oi' coverture . ib. 
 
 Husband may convey the IVeehold . ib. 
 
 Except an e({uitable freehold in the wife as a separate 
 
 estate . . , . ib. 
 
 Wlien the feme has a separate estate, she may make 
 
 tenant . . . . ib. 
 
 Sufficient at common law that there was a tenant be- 
 fore the return of the writ . . 37 
 Difference between a feoffment and fine in making 
 
 tenant . . . . ib. 
 
 Reversal of fine for error will not vitiate a recovery 
 
 suffered in the mean time, on a tenant made by 
 
 the line . , , ib.
 
 INDEX. 675 
 
 PAGE. 
 
 TENANT.— Cowimwfr/. 
 
 When made by bargain and Kile it will be sufficient^ 
 though the bargain and sale is not inroUed till after 
 
 the recovery suffered . . S8 
 General rule ' . . . 39, 40 
 
 Necessity of having the freehold during the term 41 
 Who shall be sufficient tenant to the writ in point of 
 
 estate . . . 42 
 
 Not a person who has a <.-hattel interest . 43 
 
 Must have the immediate freehold , , 48 
 
 Sole tenant to writ . . 50 
 
 Joint-tenant . . ib. 
 
 Tenants in common ... ib. 
 
 By entireties . . , ib* 
 
 Observations on the same ; . 51 
 Joint-tenants and tenants in common, cannot convej' 
 
 more than their aliquot parts . . 50 
 When the writ is against joint-tenant as sole tenant, 
 
 the recoveiy will be good only for a moiety 51 
 The recovery will be good, though one person is te- 
 nant, and several are named tenants . ib. 
 Each of several tenants must be named as tenant, or 
 
 convey to a person to be named . ib. 
 Nature of tenant made by persons having varying shares 52 
 
 By husband ... 54 
 
 Recovery against tenant in tail as tenant bars no other 
 
 estate than the one of which he is actually seised 55 
 
 By trustee . . . 58 
 
 Cannot be made by termor without feoffment 59 
 
 Freehold is gained by feoffment of termor ib. 
 At what time tenant must have had the freehold 
 
 at the common law , . CI, 162 
 Sufficient that the tenant has the freehold at any time 
 
 within the term . , , 61 
 Even after judgment . . .62 
 May be made by fine in vacation after the recovery 64 
 Cases in which the actual freehold may be in some 
 other person than the tenant, and yet the recovery 
 be good . . , 05 
 Tenants by curtesy and in dower must join 69 
 As between the parties a recovery operates as a con- 
 veyance, though no good tenant to the writ of en- 
 try . . 74 
 Statutable regulations resj^cting recovery deed ib. 
 Where the law admits the presumption that there was 
 
 a good tenant ... 77 
 
 Preuraption made by statute of 14 Geo. II. e. 20, 85 
 
 Application of that statute considered , ib. 
 
 Recovery without a good tenant is voidable only 86, 102
 
 bjS INDEX. 
 
 TAGt. 
 
 'TE^AfiT. -^Continued. 
 
 Tenant in tee and his heirs, bound by recovery, though 
 no good tenant . . 86 
 
 Issue and remainder man not bound by recovery, with- 
 out a tenant of the freehold . 86, 88 
 
 When tenant in a former recovery should join in a 
 second recovery deed, and when not necessary 90 
 
 Disseisee named as tenant . . 90 
 
 Cautions in making tenant . . 104 
 
 where there are contingent remainders to be 
 
 preserved . . . Ill 
 
 Tenant may be made by fine, feoffment, lease and re- 
 lease, or any other conveyance . 161 
 
 May be made by fine without any use declared l(i2 
 
 No conveyance necessary when the writ is brought 
 against the person in whom the freehold is vested ib. 
 
 Presumption of surrender . . 163 
 
 All should join m conveyance when it is doubtful in 
 whom the freehold IS vested . . 165 
 
 Observations on recovery deed as to tenant 172 
 
 May have freehold under a conveyance, or under a 
 derbiration of use . • 173 
 
 Who should be named tenant . 174 
 
 Of naming two persons . . ib. 
 
 \Vhen several recoveries in different counties ib. 
 
 The want of execution of recovery deed by the tenant 
 is not material . . 175 
 
 Execution draws seisin out of tenant . ib. 
 
 The possession of the tenant is tlie seisin of those in 
 remainder or reversion . . 226 
 
 TENANTS IN COMMON. A recovery by one, good only 
 
 for his share . . .143 
 
 May be jointly or se|)arately vouched 168 
 
 The fine of a tenant in common, good only for his 
 
 share, unless he disseise his companion 264 
 
 Several tenants in common may join in the same fine 286 
 One tenant in comn)on mav be barred by non-claim 
 on a fine, or by the statute of limitations, though it 
 does not run against his companion 237, 265 
 
 A tenant in common may declare the use, as far as 
 
 he conveys . . 311 
 
 If one of two tenants in common levies a fine, he can- 
 not declare the use of more than his own moiety 312 
 
 TENANT IN TAIL. A recovery by tenant in tail, though 
 he is barie<l l)y non-claim upon a fine, will bar 
 remainders, ike. . . l'i(>, 139, 243 
 
 A tenant m ViW may declare the use as far as he cou- 
 vey8 ". . .311 
 
 See Issue, Fines, Recovery, &c
 
 INDEX. 577 
 
 PAGB. 
 
 TERMOR FOR YEARS is not a good tenant to the writ 43, 59 
 Cannot make tenant to a writ of entry without a feoff- 
 ment .... 59 
 A termor for years has no seisin to support a fine 223, 225, 
 
 301 
 ■ I will be bound by his fine as an estoppel 2G0 
 may extinguish his interest by a fine ib. 
 
 TERM OF YEARS is a chattel, and not a freehold in- 
 terest .... 43 
 TERM. Necessity of tenants having freehold during the 
 
 term .... 41 
 
 Sufficient that the tenant has the freehold at any time 
 within the term ... 61 
 
 Recovery deed should be dated within the term 62, 164 
 
 Fine in vacation as of a precediug term, will support 
 a recovery in that term . . 64 
 
 When the freehold is conveyed by a deed dated after 
 the term in which the recovery is suffered, the free- 
 hold is supposed to remain in the grantee 103 
 
 State of title when a recovery deed is dated after the 
 term . . . . ib. 
 
 TIME. Length of time has no influence by way of pre- 
 sumption, unless the possession is adverse, or there 
 is at least possession . . 82 
 
 TITLE. Whoever takes under a joint conveyance for the 
 several hves of tenant for life and in tail, holds un- 
 der their several titles . . 108 
 The title should be investigated before a recovery is 
 suffered . . . .167 
 
 TREASON. The issue of a person attainted of treason, 
 
 cannot sufier a recovery . . 139 
 
 TRUST. Intailof the trust of copyholds, cannot be barred 
 
 without observing the customary mode . 155 
 
 Use on a use is a trust . . 173, 191 
 
 Fini s of trust-estates must be avoided by bill in equity 
 unless the legal etteci shall be avoided by the action 
 or entry of the trustee . . 248 
 
 If a trust affect the laitd and not the person, the reme- 
 dy is by action or entry, in the name of the trus- 
 tee . . . . ib. 
 Operation of fine by cestui que trust . 262 
 Cestui que trust should make a feoffment, before he 
 
 levies a fine to operate as a legal bar by non-claim ib. 
 See Eqjiitable Recoveries, and Equitable Estate. 
 
 TRUSTEE having the legal freehold uiust join in making 
 
 tenant to the writ of entry in a legal recovery 24, 166
 
 578 INDEX. 
 
 IRVSTEE.— Continued. 
 
 Trustee of the fee may be barred, as to an equitable re- 
 mainder in him, by the recovery of a prior equita- 
 ble tenant in tail ... 23 
 
 Joining in recovery deed with cestui que trust 2G 
 
 When he has only an office . . 28 
 
 Wliether he may safely join in making tenant in a re- 
 covery .... 58 
 
 Reconveyance by him may be presumed to support a 
 recovery in those instances in which it is reasonable 
 to suppose he had conveyed . . 79 
 
 To prevent forfeiture there should be a demise to a 
 trustee . . . .111 
 
 A fine levied by a trustee will not bar the cestui que 
 trust .... 233 
 
 An infant being a trustee, may be allowed to levy a 
 fine ... .251 
 
 U. 
 
 ITNCERTAINTY. A fine may be void for uncertainty in 
 
 the parcels . . • 271 
 
 UNION. There may be a union of estates without merger 312 
 
 USES. Fine will be presumed to be to the use of the co- 
 nusee, if he is afterwards, (notwithstanding an inter- 
 val of many years,) named tenant in a recovery, and 
 no use is declared in the mean time . 6 
 
 No uses can be declared of the estate of a bargainee 
 ill a bargain and sale inrolled . . 40 
 
 But uses of a recovery may be declared in a deed of 
 bargain and s.ale . . 40, 88, 191 
 
 And uses may be declared of a bargain and sale that 
 passes a common law seisin . 40, 191 
 
 Danger of different uses deters a purchaser from ac- 
 cepting a title depending on a recovery wher the 
 deeds are lost ... 85 
 
 may arise or result on a recovery, though no good 
 
 tenant . . ' . 98, 100 
 
 Whether uses can arise on a recovery when the deed is 
 dated after the term . . 103 
 
 When the fee is to be settled and the tenant is made 
 by a ])articidar estate . 104 
 
 Vouchee may declare uses of his estate on a recovery 
 
 as a conveyance by Inm 
 
 la*) 
 
 Form of uses when the tenant is made by a convey- 
 ance for joint lives . _ . 108
 
 INDEX. 579 
 
 VfiE^.-^Continued. 
 
 Mode of declaring the uses when the object is to pre- 
 vent merger and also to settle, &c. . 114 
 No use can arise on a recovery till seisin is delivered to 
 
 the demandant . . . 149 
 
 Future use, though devisable, cannot be granted ib, 
 
 A future use is devisable while in its fiduciary state ib. 
 The uses of a recovery should be declared rather than 
 
 be suffered to result, or depend on averment IGl 
 
 A tenant may be made by fine, without declaring uses 1G2 
 No use can arise without a seisin . . 173 
 
 Who may have the use . . . ib. 
 
 In a lease for a year a rent will raise a use . 180 
 
 Uses cannot be larger than the seisin . 188 
 
 Use to tenant in recovery deed, implied from the in- 
 tention . . . . ib. 
 If tenant is to have the freehold by a declaration of use, 
 
 a use must be effectually declared . 189 
 
 Of conveyances admitting of uses . ib. 
 
 Bargain and sale does not admit of a use on the seisin 
 
 of the bargainee under the statute . ib. 
 
 Uses on uses . . . 191 
 
 Use will result on a recovery, where there is no decla- 
 ration, &c. to the former owners, according to their 
 estates .... 194 
 
 But tenant in tail will take back an estate in fee ib. 
 
 Uses may be declared of a seisin passing by fine 203 
 
 The use resulting under a fine of a tenant in tail, is 
 changed from an estate-tail into a fee-simple, if there 
 is a discontinuance : if no discontinuance, into a 
 determinable fee . . 203-4 
 
 No use will result if the fine creates a particular estate 203 
 If uses are declared of part of the estate only, they 
 
 will result for the residue . . 204 
 
 The descent of a resulting use, is guided by the old 
 
 seisin . . . . ib. 
 
 In a fine siir grant et render, the conusee in the ren- 
 der takes by the common law, and the descent is 
 changed . . . 211 
 
 Feoffment and re- enfeoffment superseded by limita- 
 tions to uses . . . ib. 
 Uses may be declared on the render in a fine sur grant 
 
 et render . . . 211, 310 
 
 May be declared on every fine which transfers an es- 
 tate ... . 310 
 There cannot be a declaration of uses without a seisin 311 
 Uses may be declared by tenant for life, in tail, a re- 
 mainder-man, joint-tenant, tenant in common, co- 
 parcener . , . . ib. 
 By several persons having distinct estates . 312
 
 580 INDEX. 
 
 ?AG£, 
 
 USES,— Continued. 
 
 By husband and wife . . 313 
 
 Not by a stranger who levies a fine jointly with a 
 
 person who is seised . . . ib. 
 
 Nor by a person who has a right, and levies a fine 
 
 jointly with a person who has an estate . ib. 
 
 For want of a declaration, or if the use is limited in 
 
 contingency, the use results to the former owner 
 
 pro interesse suo . . ol3, 316 
 
 A declaration of uses may be by husband and wife 314 
 Of agreement and disagreement by them ib. 
 
 No use will result oa the tine sur grant et render 310 
 
 The resulting use on a fine will descend as the estate 
 
 was descendible . . . 318 
 
 So also if the u.se is expressly declared . ib. 
 
 Of the difference between deeds to lead, and deeds to 
 
 declare, the uses of a tine . . ib. 
 
 V. 
 
 VACATION. Fine may be levied in vacation, as of a pre- 
 ceding term or session , . 9, 275- G 
 A recovery cannot be suffered in vacation . 9 
 A fine in vacation, of a preceding term, will support 
 
 a recovery in that term . . G4 
 
 The writ may be sued in vacation returnable as of a 
 preceding term . . . 275 
 
 VACANT OWNERSHIP. When the ownership is vacant, 
 
 it cannot be barred by non-claim . 238 
 
 VARYING SHARES . . . 52 
 
 VIE. See Pour autre vie, 
 
 VOID AND VOIDABLE. Recovery without a good tenant 
 
 is voidable only ... 86 
 
 Observations on a recovery good between the parties, 
 
 but voidable by issue, &c. . . 89 
 
 Observations to shew that voidable recoveries may 
 
 operate as conveyances . . 93, 94 
 
 A recovery remains in force till avoided . 100 
 
 The recovery being void, and the conveyance making 
 
 the tenant good, the tenant retains the freehold 102 
 
 Recovery voidable when the deed is dated after the 
 
 term . . . .103 
 
 Uses declared on a fine by husband and wife will be 
 
 void as far as they disagree in declaring the uses 314 
 I'ines in a court not having jurisdiction are void 249 
 
 As a fine in the Common Pleas, of lauds in Wales, or
 
 INDEX. 581 
 
 PAOE. 
 
 VOID AND XOWABLE.— Continued. 
 
 a county palatine, or \u Ireland, or the West In- 
 dies . . . 249, 26G, 267 
 But a fine in the Common Pleas, of lands of ancient 
 
 demesne, is only voidable . . 266 
 
 A void fine is not any bar by non-claim . 249 
 
 A fine levied without any ori<^inal writ is voidable only 274 
 Fines between persons not proper parties are voidable 284 
 
 VOUCHER AND VOUCHEE. Of single voucher 118, 122 
 Of double voucher . . . 118,124 
 
 Oftreble . , . . 118 
 
 Of several tails and one voucher . . 7 
 
 Vouchee may declare uses of his estate on a recovery, 
 
 as a conveyance by him . . 105 
 
 Nature and use of voucher . . 118 
 
 Essential to bar tail and remainders . ib. 
 
 Voucher not material in recoveries operating as con- 
 veyances, or by estoppel . . 19 
 Effect of recovery with single voucher . 122 
 No estate-tail which is devested, or discontinued, will 
 
 Jae barred by a recovery with single voucher 123 
 
 An aliened tail, will not be barred by single voucher ib, 139 
 Preference due to recoveries . ith double voucher 123 
 
 EiFect of double voucher ui barring intails ib. 
 
 Of voucher as applied to husband and wife 124 
 
 A remainder in husband is not barred, as to issue, by 
 
 a recovery with single voucher . ib. 
 
 Recoveries with double voucher . . 125 
 
 Vouchee comes in of all estates, &c. which he lias or 
 
 ever had , . . 126', 135 
 
 Recoveries with treble voucher . 127 
 
 Case in which they are supposed to be necessary ib. 
 
 Observations in support of treble voucher ib. 
 
 Order of voucher . . . ib. 
 
 Whether two estates-tail, one derived out of the other^ 
 
 may be barred by joi lit voucher . 128 
 
 Joint voucher of tail and stranger will bar intail ib. 
 
 A treble voucher cannot be requisite in any case, ex- 
 cept of an estate-tail derived out of an estate-tail 136 
 Vouchee generally joins in conveyance to tenast, 
 
 though not always- necessary . 168,166 
 
 Should join in declaration of uses, when he retains a 
 
 seisin . . . .168 
 
 Tenants in coparcenary. &c. may be jointly vouched ib. 
 Vouchers of two persons have distinct estates-tail in 
 
 distinct lands . . . 170 
 
 Of joint voucher of tenants in common, &c ib. 
 
 Estate may pass from vouchee . 187 
 
 ^vouchee may be conusor in a fine, though no party 
 
 to the writ . . . 284
 
 582 INDEX, 
 
 PASS, 
 
 W. 
 
 WALES. Fines may be levied in Wales . 268 
 
 Whether fines may be levied in Wales as of a preced- 
 ii)g session . . . 276 
 
 WARRANTY. Voucher is a consequence of warranty 118 
 No estate can be barred by fine or warranty unless 
 
 it is discontinued or devested , 230 
 A fine is good with or without warranty . 289 
 Forms of warranty . . . ib. 
 Rules respecting warranty . . ib. 
 Agreement of parties should limit the extent of war- 
 ranty . . . . ib. 
 A feme covert may be made liable to action by war- 
 ranty in a fine . . ib. 
 Warranty should be conformable to the grant ib, 
 from two and their heirs, oug'ht not to be al- 
 lowed except in fines of gavelkind lands 290 
 
 WESTMINSTER-HALL. Of fines of lands in ancient de- 
 mesne and of copyhold lands . . 159 
 Of recovery of copyhold lands , 160 
 
 WILL of a manor will include lands subse<juently es- 
 cheated 66 
 Is revoked by a recovery, although there is no tenant 98 
 Or though the name of the tenant be mistaken 89 
 But a recovery does not revoke a will made subse- 
 quent to the recovery deed . 149 
 Whether a will is revoked by the relation of a fine 294 
 
 WRIT. A recovery deed will be sufficient, though dated 
 
 after the writ of seisin . . 74 
 
 On what writs, fines may be levied . . 2(i8 
 
 A writ is the necessary foundation for a fine : the re- 
 quisites are, a plaintiff, deforceant, parcels, return, 
 teste .... 274 
 
 Writ does not determine by the death of the king 275 
 
 Acknowledgment of a fine may be before the writ is 
 
 sued out . . . ib. 
 
 Writ may be returnable as of a preceding term or a 
 
 subsequent term . . 275, 292 
 
 A stranger to the writ cannot be a party to the fine 284 
 Exceptions . ^ . . , ib. 
 
 Fines not waranted by the writ are voidable . ib.
 
 INDEX. ' 583 
 
 PACK. 
 
 WRIT. — Continued. 
 
 Gives the court jurisdiction of the parcels contained 
 
 in it . . • • 285 
 
 Till the return of the writ, a fine is not complete 291 
 
 Y. 
 
 YEARS. A fine stir concessit may be levied for years 231 
 Tenant for years cannot devest an estate by the mere 
 operation of a fine ; and the plea oi partes, &c. is 
 an answer to such fine • • 301 
 
 See Termor for Years.
 
 INDEX TO THE PRECEDENTS. 
 
 PAGB. 
 
 AGREEMENT. That tenant for life, for whom a sum of 
 
 money is provided, under the trusts of a term in 
 
 remainder, shall keep down the interest during his 
 
 life ... 459 
 
 That no sale shall be made during his life ; nor shall 
 
 any sale after his death without a year's notice 460 
 
 That the charge of any mortgage in his life-time shall 
 be borne by him . . . ib. 
 
 ANCIENT DEMESNE. Recovery deed of lands, partly 
 
 freehold, and partly of the tenure of ancient demesne34(» 
 
 ANNUITY. Limitations of use to create an annuity or 
 rent-charge ; with powers of distress and entry ; and 
 a term limited to a trustee for security . 417 
 
 See Confirmation. Extinguishment. 
 
 B. 
 
 BARGAIN AND SALE for making a tenant to the pra- 
 cipe .... 
 
 C. 
 
 403 
 
 CESSER. Proviso for cesser of a term for years upon 
 
 performance of the trusts , . 429, 459 
 
 for cesser of an estate limited by tenant for 
 
 life, for the purpose of assisting a tenant in tail in 
 rernuintler in sufleringa recovery, usually called the 
 £100,000 clause . . .480 
 
 CONFIRMATION. Proviso that trusts are declared for 
 cliildren upon the terms of their confirming a trust . 
 declared for another person ; and that on default 
 the shares of those refusing shall go over . 385 
 
 Uses lor confirmation of an annuity . 336, 41G 
 
 and so as to continue it in equity, though it 
 
 should be extinguished at law . 454 
 
 of an estate for life and a remainder in fee, 
 
 limited by the i)rior part of the same deed , 387 
 
 of a term for years . . 1^3 
 
 Limitation of use to a tenant for life, joining with the 
 next remainder-man in tail in a conveyance for suf-
 
 INDEX TO THE PRECEDENTS. 585 
 
 PAUE. 
 
 COmiRMATlON.— Continued. 
 
 fering a recovery, in a confirmation of her estate 
 and all powers annexed thereto . 452 
 
 The like where a tenant for lift; joins with a remote 
 remainder-man in tail, confirming' all estates prior 
 to the intail . . 45G 
 
 of prior deeds, particularly a marriage settle- 
 ment; subject to prior estates, and givingprecedence 
 to a term for years . . 453 
 of all estates prior to the remainder in fee, ex- 
 
 cept the estate-tail ; where a recovery is sufiered by 
 a daughter, tenant in tail pro tempore, whose es- 
 tate is liable to be postponed by the birth of a son 461 
 of all estates prior to the intail, giving the 
 
 tenant in tall a general power of appointment, and 
 again limiting the lands to him in tail, and restor- 
 ing tlie subsequent estates . 464 
 The uses of a recovery declared in confirmation of the 
 uses limited upon a conveyance, in a prior part of 
 the same deed, so as to render the estate disposable 
 by the owner in the mean time . 489,491 
 
 CONTINGENT REMAINDERS. 
 
 See Forfeiture. Trust. 
 
 COVENANT. By each of two persons severally , 387 
 
 The like by four . . 478 
 
 1 hat a conveying party hath not incumbered J368 
 
 For further assurance . . 387, 441 
 
 To surrender copyholds; and until admittance of 
 
 surrenderee, to stand seised in trust . 43 
 
 To levy a fine sur eoncesserunt for years, in confirma- 
 tion of a demise . . . 478 
 To suffer a recovery on request . 479 
 By tenant in tail in remainder to suffer a recovery, in 
 confirmation of a term . . 492 
 
 D. 
 
 DEMANDANT. Deed on substituting another person as 
 demandant, in the place of the intended demandant, 
 who died before the recovery was suffered 46(5 
 
 DEMISE for a term of years, to protect against forfeiture, 
 
 l)reviously to suffering a recovery . 4()8, 472 
 
 For a term of years, to operate by estoppel on contin- 
 gent interests, in trust to attend the inheritance; 
 and covenant to levy a fine and sufier a recovery in 
 confirmation . . . 476 
 
 DOWER, Th.e usual limitation of uses to prevent do'.ver 344 
 
 VOL. I. R R
 
 586 INDEX TO THE PRECEDENTS. 
 
 DOWER. — Continued. 
 
 Declaration that an annuity and life»estate are limited 
 
 to a wife in lieu of dower . 41& 
 
 See Testatum Clauseo 
 
 E. 
 
 ESTATE. Clause of " all the estate" . 340, 359, 395 
 
 ESTOPPEL. Demise for a term of years, in trust to attend 
 the inheritance, to operate bj' estoppel cu coatln- 
 <Tent interests ; and covenant to levy a line and suffer 
 a recovery m conn r mat I on . . 4/o 
 
 EXCEPTION of parcels . . .395 
 
 EXTINGUISHMENT. Proviso that a recovery suffered by 
 a daughter, tenant in tail pro tempore, shall not ex- 
 tinguish her portion, as against ^ssue male 463 
 
 . that a recovery is not intended to extinguish 
 
 an annuity, and that the annuity shall subsist in 
 equity, though it should be extinguished at law 455 
 
 See Testatum clause. 
 
 F. 
 
 FINE. Form of a concord co7ne ceo, from one conusor to 
 
 one conusee . . 278 
 
 The like from two to one . • 279 
 
 . from three and the wives of two, to two and 
 
 the heirs of one . • • ib. 
 
 Concord de droit tantum, of a reversion in fee expectant 
 on an estate for life . . '-81 
 
 — • sur concessit for years . . ib. 
 
 .. for life by a tenant in remainder 282 
 
 . for lives, so as to preserve a re- 
 
 version in tenant for life having power of leasing ib. 
 
 Concord sur grant et render . . ib. 
 
 See Covenant. 
 
 FORFEITURE. Conveyance previously to suffering a re- 
 covery, when it is doubtful whether a person is te- 
 nant for lift: or in tail, and whether there is a con- 
 tingent remainder in his son ; with limitation of 
 an estate of freehold to a trustee, so as to protect 
 against forfeiture, and to preserve the contingent 
 remainder 
 
 Limitation of freehold uses to protect against for- 
 feiture, where the defect appeared in the recovery 
 derd . . . .336 
 
 Tiie like for a term of years . 475
 
 INDEX TO THE PRECEDENTS. 587 
 
 PAGI. 
 
 mRFElTVKE.— Continued. 
 
 Recovery deed framed to preserve contingent remain- 
 ders, and to prevent merger . . 3/0 
 Demise for years to protect against forfeiture 468, 472 
 
 G. 
 
 GENERAL WORDS. For farms 326, 334, 339, 359, 394 
 
 For manors, &c. . . . 404 
 
 For New River shares . . 375 
 
 GRANT. Bv several persons, according to their shares and 
 
 interest . . •i^ 358,374,392,445 
 
 By trustees at the instance of cestui qu€ trusts 374, 469 
 Of the inheritance^, subject to a grant of the immedi- 
 ate estate by the same deed . . 386 
 
 H. 
 
 HABENDUM. For joint Uves of the tenant to the prce- 
 
 cipe a.nd tenant in tail . 327, 406, 401 
 
 For joint lives of the tenant for life, and tenant to the 
 ■prcecipe . . • 440 
 
 Discharged from the right of one party, but without 
 prejudice to the rights of other persons . 360 
 
 flEIR. Limitation of use to the person who sliall answer 
 the description of heir at law, at the death of the 
 survivor of two persons, in fee . . 424 
 
 L 
 
 IDENTITY. Introduction to the limitation of uses, wl>en 
 there are diiferent shares, so as to preserve the 
 identity of title . . 383, 400, 401, 402 
 
 INDEMNITY. Trust declared of real estates to indem- 
 nify trustees for having joined in a conveyance 382 
 Proviso for indemnity of persons paying money to 
 
 a trustee of real estates under the trust of a term 430 
 Proviso for indemnity of trustees from the acts of ea<;h 
 other, &c. . . . 440 
 
 L. 
 
 LEASE FOR A YEAR, Reference to 323, 333, 339, &c. 
 
 M. 
 MERGER. See Forfeiture, 
 
 P. 
 PARCELS. Messuages and closes of land . 323
 
 588 INDEX TO THE PRECEDENTS. 
 
 VARCEL^.— Continued. 
 
 Manors, advowson, and mansion house , 412 
 
 Shares in the New Fiver ^ . 374 
 
 Three-sixths of a farm, tithes, and closes of land 392 
 
 General comprehensive des' iiptions 324, 32G, 375, 394, 
 
 404, 412. 473 
 PO'WERS. General pouer of appointment, in the usual 
 
 form of li-nitations to prevent dower 344, 400, 419 
 
 Joint power of appointment by husband and wife 3G6 
 Powpr of appointment given toa tenant in remainder, 
 to be exercised after the decease of tenants for life, 
 or in their life time with consent . 462 
 
 Powers of distress and entry, to secure annuities 419 
 
 Power of leasing- for 21 years, by tenants for life, and 
 by the guardians of infant tenants in tail, and on 
 their default by the trustee of a term . 431 
 
 Power to cliarge, not exceeding a given amount 433, 434 
 The like for a married woman, in case the whole of 
 a given sum shall not be charged by her hus- 
 band .... 436 
 Power to appoint a new trustee . . 439 
 
 R. 
 
 RECITALS. Agreement of party to join in a conveyance 
 
 for extinguishing his interest . 357 
 
 Of conusee in a fine to join in a conveyance for trans- 
 ferring his interest . . i 358 
 To suffer a recovery for rectifying a supposed mistake 
 in a will .... 373 
 
 for effecting a partition . 496 
 
 Of wife to join in a recovery for extinguishing her 
 
 dower . . . 391, 501 
 
 Of tenant for life to join in a conveyance with remain- 
 der-man in tail, for suffering a recovery 445, 498 
 To comprise other lands in a recovery, and to declaie 
 
 the uses by another deed . . 509 
 
 Assignment . . . 354 
 
 Codical .... 352 
 
 Copyhold. Admission to copyhold lands , 350 
 
 Recovery suffered of copyhold lands . 507 
 
 Surrender to use of a will . . 350 
 
 See Seisin. 
 Deed-poll .... 355 
 
 JlcsccnI. See Seisin. 
 
 Election to taice lands to which a person is entitled 
 as heir, and to disclaim those to which he is entitled 
 as devisee . . . 356 
 
 Feoffment . . . 354 
 
 Heir . .356 
 
 See Seisin.
 
 INDEX TO THE PRECEDENTS. 589 
 
 PAOK. 
 
 RECITALS.— CoHfiMweJ. 
 
 Life-estate. That a devisee took only a life-estate for 
 
 want of words of inheritance . . 350 
 
 That a grantor is either tenantybr life, or in tail, and 
 that doubts are entertained whether there is a con- 
 tingent remainder to his son . 332 
 And that it is expedient to convey, before suffering 
 a recovery, so as to take back the immediate free- 
 hold, with a freehold remainder to a trustee 333 
 Marriage-settlement . . 346, 348 
 Recovery. Desire to suffer a recovery 322, 357, 391, &c. 
 
 of a remote estate-tail . . 494 
 
 Expediency of recovery . . ib. 
 
 Expedient that a tenant in a former recovery deed 
 
 should join in a new recovery deed . 508 
 
 Request to join in suffering a recovery 495, 498 
 
 Doubts of the validity of a former recovery, and agree- 
 ment to suffer another . . 500 
 That a recovery was voidable for want of the concur- 
 rence of tenant for life, expediency of another 
 recovery ; consent of necessary parties to join 512 
 Various forms of recitals of recovery deeds, and re- 
 coveries suffered . 502-7,510-11,513,514 
 See Agreement. 
 Seisin in fee of a testator • . 370 
 
 in tail by descent . . 497 
 
 under a will . . 403, 496 
 
 of three persons claiming by separate de- 
 
 scents under a will . . 390 
 
 of husband and wife for life, in right of the 
 
 wife . . . 444 
 
 Equitable seisin of copyhold for lives 437 
 
 Tail. Creation of estate- tail . 321,496 
 
 . by marriage settlement 346 
 
 See Seisin. 
 Term. That a person was possessed of a term of 
 
 years . . 350 
 
 Trust. Conveyance of lands purchased under a 
 
 trust . . 353 
 
 Declaration of trust of lands purchased with trust- 
 money . . 355 
 Will . . . 347,349,350,371 
 
 RECOVERY. Clause declaring the intention and mode 
 
 of suffering a recovery . 340, 396, 406 
 
 — of lands in two counties . 327 
 
 in three counties • 876 
 
 partly freehold, and partly of the tenure of 
 
 ancient demesne . ... 361
 
 590 INDEX TO THE PRECEDENTS. 
 
 RECOVERY.— Coyitiyiued, 
 
 part in England, and part in Wales 447 
 
 , — general form with Variations . 481 
 
 ■■ short form . . . 487 
 
 Clause to declare the uses to which a recovery shall 
 
 enure . . 330, 343, 365, &c. 
 — — General form with variations . 485 
 Short form . . 488 
 
 See Covenants 
 
 RECOVERY DEED. By tenant in tail in possession 321, 403 
 
 By tenant for life and the next remainder-man in tail 444 
 
 By tenant for life and a remote remainder-man in tail 
 
 4C1, 404 
 
 By tenant for Wfe, and the next remaindcr-ma7i intail 
 pro tempore, whose estate was liable to be post- 
 poned by the birth of a son . . 461 
 
 So framed that the legal estate vests in the owner, and 
 is disposable during the interval between the date of 
 the recovery deed, and the time of suffering the 
 recovery ; the uses of the recovery beinfi;- declared 
 in confimiatinn . 490,491 
 
 When it is doubtful whether a person is tenant in 
 tial or tenant for li/e, with a contingent remain- 
 der to his children, and it is intended to preserve 
 the contingent interests . 332, 336 
 
 Introduction to the limitation of uses on a recovery 
 suffered by some only of several tenants in tail 
 with cross remainders . 402 
 
 For other forms, see the Table of Contents. 
 
 RELEASE of right in freehold and leasehold messuages, 
 
 &c. . . 367 
 
 For forms of releases grounded on a lease for a j'ear, 
 see the Table of Contents 
 
 RENT-CHARGE. See Annuity. 
 
 REVERSION. Clause of " all the reverion" 327, 340, 359, &c 
 
 S. 
 
 SURVIVORSHIP. Trust for children as tenants in 
 coiiiiiion, in fee, with cross limitations between 
 them in fee, giving benefit of survivorship, with 
 a contingent limitation over in fee . 384 
 
 T. 
 
 TAIL. Limitation of uses to the first and other sons suc- 
 cessively, in tail niale . • 424 
 Limitation M' use in tail general . 463, 465 
 S^fc Coafirmation. Recovery deed.
 
 INDEX TO THE PRECEDENTS. 591 
 
 PACE. 
 
 TERM. Limitation of use to a trustee for a term of 
 
 years . . . 42'2, 457 
 
 Habendum for a term of years . 477 
 
 Proviso for cesser of a term on performance of the 
 
 trusts . . . 429,459 
 
 See Demise, Trusts, 
 
 TESTATUM CLAUSE. For barring intails, &c. 322, 338, &c. 
 For barring intails, and settling the lands to the uses 373, 
 
 391,404 
 
 ■ and extinguishing dower 338, 411 
 
 and giving effect to election 358 
 
 For affording protection against forfeiture 469, 472 
 
 For binding future interests . 476 
 
 TRUSTS. To preserve contingent interests limited by a 
 
 will . . .381 
 
 The usual trusts to preserve contingent remainders 424 
 For the separate and personal use of a feme sole for life 383 
 For children as entitled under a will ; remainder to 
 children as tenants in common, in fee; with cross 
 limitations in fee, giving benefit of survivorship ; 
 with a limitation over in fee . . ib. 
 
 Of a term for securing annuities . . 425 
 
 And to receive surplus rents till a tenant for life in 
 remainder shall attain 25, and to apply them in 
 discharging interests of incumbrances, and reducing 
 principal ; and when he shall attain 25, to permit 
 the persons in remainder to receive the rents, and 
 to pay them the money remaining in the hands of 
 the trustee . , . 427 
 
 Of copyholds to correspond with uses of freehold 
 
 estates . . . 430 
 
 Of a term to raise a gross sum of money . 458 
 
 Of a term, by estoppel, for a purchaser, and to attend 
 
 the inheritance as conveyed , , 477 
 
 See confirmation. Forfeiture. Indemnity. 
 
 TRUSTEE. See Indemnity^ Power. 
 
 U. 
 
 USES. Of a recovery declared in fee . 331 
 
 To prevent dower . . 344, 400 
 
 To such uses as husband and wife shall jointly ap- 
 point, and for default of them in fee . 360 
 To such persons as shall answer the description of 
 heir at law , , , 424
 
 592 INDEX TO THE PRECEDENTS. 
 
 USES. — Continued. 
 
 Declared on a conveyance, by reference to the uses 
 declared of the recovey . 375 
 
 Declared of a recovery by referenee to the uses de- 
 clared on the conveyance . . 490 491 
 
 See Annuity. Confirmation. Forfeiture. Term. Trust.' 
 
 THE END. 
 
 \\'. I''liul, St. Sejjulcliie's, Loudon.
 
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