on.

It was an action, either actual or fictitious; and in it the lands were recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, bound all persons, and vested an absolute fee-simple in the plaintiff. Thus, supposing David Edwards to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding: to effect this, Golding brought an action against him for the lands, alleging that Edwards, here called the tenant, had no legal title to them; but that he came into possession after one Hugh Hunt had turned the plaintiff out. Hereupon the tenant appeared, and called upon one Jacob Morland, who was supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prayed, that Morland might be called in to defend the title which he had so warranted. This was called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland was called the vouchee. Upon this, Morland appeared, and defended. Whereupon Golding, the plaintiff, desired leave of the court to imparl, or confer with the vouchee in private, which was allowed him. And soon afterwards Golding returned to court, but Morland made default. Whereupon judgment was given for the plaintiff, Golding, now called the recoverer, to recover the lands in question against the tenant, Edwards, who was now the recoveree: and Edwards had judgment to recover of Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default. This was called the recompense, or recovery in value. But, Morland having no lands of his own, being usually the crier of the court, who, from being frequently thus vouched, was called the common vouchee, it is plain that Edwards had only a nominal recompense for the lands so recovered against him by Golding; which lands were now absolutely vested in the said recoverer by judgment of law, and seisin thereof was delivered by the sheriff of the county. So that this collusive recovery operated merely in the nature of a conveyance in fee-simple, from Edwards, the tenant-in-tail, to Golding, the purchaser.

The supposed recompense in value was the reason why the issue in tail and remainder were barred by a recovery. For, if the recoveree had obtained a recompense in lands from the

common vouchee, which there was a possibility in contemplation of law, though no probability of his so doing, these lands would have supplied the place of those so recovered from him by collusion, and would have descended to the issue in tail and in remainder; who thus sustained no actual loss by the proceedings of the tenant-in-tail; who by this fictitious proceeding might convey the lands held in tail to the recoveror, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions.

To such awkward shifts were our ancestors obliged to have recourse, in order to get the better of that stubborn statute De Donis. The design, for which these contrivances were set on foot, was certainly laudable, the unriveting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth. But, while we applaud the end, we cannot admire the means; and many expedients were accordingly suggested to get rid of these empty forms; the most obvious remedy being to vest in every tenant-in-tail of full age the same absolute fee-simple at once, which he might obtain whenever he pleased, by the collusive fiction of a common recovery. But fines and recoveries continued nevertheless to flourish in unabated exuberance until the reign of William IV.; when the Fines and Recoveries Act was passed; which enables every actual tenant-in-tail to dispose of the lands entailed, either for a fee-simple absolute or any less estate, as against all persons claiming either under the entail, or in remainder, or reversion, including the crown, by a simple disentailing deed; the exercise of the power thus given being subject only to certain necessary restrictions, for the preservation of existing interests. The explanation of this being matter more for the practising conveyancer than for the student, need not be entered into here except on one point; viz.: the passing of the estates and interests of married women, which could not, on account of the incapacity arising from coverture, have been otherwise effectually bound. The statute enables every married woman effectually to dispose of any estate; but her husband must concur in the deed; and it must be acknowledged by her before a judge, or before commissioners appointed for the purpose;

on which occasion she is examined, apart from her husband, as to her knowledge of the deed, and whether she voluntarily and freely consents to it, a ceremony which was used when a married woman was cognizor in a fine; and the object of which is too obvious to call for comment.

4. Another kind of assurances which may be classed among those by matter of record, are the orders of the High Court; by which property may be transferred from one individual to another; such, as the orders vesting property in trustees, substituted for others who have become incapacitated, as by lunacy. The same principle applies in bankruptcy, the real property of the bankrupt now vesting at once in the trustee by virtue of his appointment only.

The awards of the Inclosure commissioners, and commutations of tithes by the Tithe commissioners, or of manorial rights by the Copyhold commissioners, may also be classed among assurances by matter of record. The proceedings do not depend on the act and consent of the parties themselves, but must be ratified by the commissioners; documents sealed with whose common seal are receivable in evidence without further proof, and are also conclusive as to every formality required for their validity, having been duly observed.

5. Under this head also may be placed the short conveyances in a statutory form, used to transfer property by an entry merely on the Land Registry, which thus exhibits a species of record of the transmissions of the property.

CHAPTER XIX.

OF ALIENATION BY SPECIAL CUSTOM.

ALIENATION by special custom is confined to copyhold lands, and such customary estates as are holden in ancient demense, or in manors of a similar nature; which were originally no more than tenancies in villenage, and never alienable by deed; for, as that might tend to defeat the lord of his seigniory, it

is therefore a forfeiture of a copyhold. Nor are they transferable by matter of record; but only in the court-baron of the lord, and by a proceeding called surrender and admittance.

Surrender, sursum redditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, to the use of A and his heirs; to the use of his own will; and the like. In most manors, the tenant comes to the steward, or else to two customary tenants of the same manor, provided there be a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such persons and for such uses as are named in the surrender and the custom of the manor will warrant. If the surrender be made out of court, then, at the next or some subsequent court, the jury or homage present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender, in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestui que use, who is sometimes called the surrenderee, to hold by the ancient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admittance he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.

In this manner of transferring copyhold estates, we may plainly trace the feudal institutions. The fief is inalienable without the lord's consent. For this purpose it is surrendered into his hands. Custom, and the law, which favours liberty, now gives the tenant a right to name his successor. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the licence of alienation. Add to this the investiture, by delivering the symbol of seisin in presence of

the other tenants in open court; and, to crown the whole, the oath of fealty, the bond of feudal subjection.

This method of conveyance is so essential to the nature of a copyhold, that it cannot be transferred by any other assurance. No feoffment or grant has any operation thereupon. Formerly, indeed, if a man would devise a copyhold he must have surrendered it to the use of his will; and therein he must have declared his intentions, and named a devisee, who would then be entitled to admission. But wills are now by statute as effectual without a previous surrender as they would have been with one. And the lord cannot refuse to admit when a surrender is made; the surrender and admittance being now merely forms to complete the investiture; and by 4 & 5 Vict., c. 35, actual presentment is not necessary, and admittance may be made at any time or place without holding any court for the purpose.

CHAPTER XX.

OF ALIENATION BY DEVISE.

THE last method of conveying real property is by devise, or disposition contained in a man's last will.

It seems sufficiently clear that, before the Conquest, lands were devisable by will. But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feudal doctrine of non-alienation without the consent of the lord. The ancient Athenian law directed that the estate of the deceased should descend to his children; or, on failure of descendants, to the collaterals; which kept up an equality, and prevented the accumulation of estates. When Solon made a slight alteration, by permitting testators, on failure of issue, to dispose of their lands by testament, this produced an excess of wealth in some, and of poverty in others; which led to popular dissensions; and these in due course to tyranny, and the extinction of liberty; quickly followed by a subversion of the state. It would seem hard, however, on account of some abuses, to debar the owner of lands from distributing