or suit at law, against the other, generally an action of covenant, by suing out a writ of præcipe, called a writ of covenant, the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement, the action is brought. On this writ there is due to the king by ancient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one-tenth of the annual value. The suit being thus commenced, then follows,

2. The licentia concordandi, or leave to compromise the suit. For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plantiff, who, accepting them, but having, upon suing out the writ, giving pledges to prosecute the suit, which he endangers if he now deserts it without license, he therefore applies to the court for leave to make the matter up. This leave is readily granted; but for it, there is also another fine due to the king by his prerogative, which is an ancient revenue of the crown, and is called the king's silver, or sometimes the post fine, in reference to the primer fine before mentioned, and it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land, that is, three-twentieths of the supposed annual value.

3. Next comes the concord or agreement itself, after leave obtained from the court; which is usually an acknowledgment from the deforiants, or those who keep the other out of possession, that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied, the cognizee. This acknowledgment must be made, either openly in the Court of Common Pleas, or before the Lord Chief Justice of that court, or else before one of the judges of that court, or two or more commissioners in the country, empowered by a special authority called a writ of dedimus potestatem, which judges and commissioners are bound by statute 18 Edward I., |

4. To take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined, whether she does it willingly and freely, or by compulsion of her husband.'

By these acts all the essential parts of a fine are completed; and if the cognizor die the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable, still the fine shall be carried on in all its remaining parts, of which the next is,

'The note of the fine, which is only an abstract of the writ of covenant, and the concord naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute.

The fifth part is the foot of the fine, or conclusion of it, which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied. Of this there are indentures made, or engrossed, at the chirographer's office, and delivered to the cognizor and the cognizee, usually beginning thus:— "This is the final agreement," and then reciting the whole proceedings

at length; and thus the fine is completely levied at common law.' Several additional solemnities are also added by statute, in order to render the fine more generally public. As, that the note of the fine shall be read openly in the Court of Common Pleas, at two several days in one week, and during such reading all pleas shall cease * All proceedings on fines shall be enrolled of record in the Court of Common Pleast. The fine, after engrossment, shall be openly read and proclaimed in court, (during which all pleas shall cease,) once in the term it is made, and once in each three succeeding terms; and these proclamations are to be endorsed on the back of the record. By this humbug, all rights to the land are barred and bound, unless claim be made within five years after the last proclamation; except such persons as have not a right of entry at that time, as persons who have estates in remainder and reversion, (against whom the five years are not to be computed, until the time at which the estate, in remainder or reversion, shall give a right to the possession); and except also feme-coverts, infants, prisoners, persons beyond sea, and such as are not of whole mind,-who all have five years allowed them, in which to make their respective claims, from the time of the removal of their several disabilities before enumerated: so that in fact, the fine, after all, bars only the estate of the person levying it; the exceptions including every other person in the word,-at least for five years. And note that these fines are of four different kinds; each suited, with great propriety no doubt, to meet the particular case in which it should be employed.

The reader will by this time begin to see the beauties of fines, which is all this undertaking will afford. We shall now, therefore, pass to a short description of a recovery, in order to see which has the greater claim to absurdity; for they neither of them possess any other claim than that-unless, indeed, they are considered as an extraordinary means of extracting the money from the pockets of the unfortunate.

A Common Recovery is so far like a fine, that it is a suit or action either actual or fictitious, and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjuration of the right, binds all persons, and generally vests a free and absolute fee-simple in the recoveror. The following description is taken from Blackstone :-"Let us in the first place suppose 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 is to bring an action against him for the lands, and he accordingly sues out a writ, called a præcipe quod reddat, because those were its initial or most operative words when the law proceedings were in Latin. In this writ the demandant Golding alleges that the defendant Edwards, here called the tenant, has no legal title to the land, but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. The subsequent proceedings are made up into a record or recovery roll, in which the writ and complaint of the demandant are first recited; whereupon the tenant appears, #31 Eliz, c. 2,

* 27 Edw. I., c, 1, +5 Hen. IV., c. 14–23 Eliz., c.3.

and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher (vocatio), or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, desires leave of the Court to imparl or confer with the vouchee in private, which is (as usual) allowed him; and soon afterwards the demandant, Golding, returns to court; but Morland, the vouchee, disappears, or makes default. Whereupon, judgment is given for the demandant Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree; and Edwards has judg ment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default, which is agreeable to the doctrine of warranty at common law. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the cryer of the court, (whỏ, from being frequently thus vouched, is called the common vouchee,) it is plain that Edwards has only a nominal recompense for the lands so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law. Seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple from Edwards the tenant in tail to Golding the purchaser.

"The recovery here described is with a single-voucher only; but sometimes it is with double, treble, or further voucher, as the exigency of the case may require. And, indeed, it is usual always to have a recovery with double voucher at the least, by first conveying an estate of freehold to any indifferent person, against whom the præcipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee for if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised; whereas, if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. If Edwards, therefore, be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland, the common vouchee, who is always the last person vouched, and always makes default; whereby the demandant, Golding, recovers the land against the tenant, Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee, who recovers the like against Morland, the common vouchee, against whom such ideal recovery in value is always ultimately awarded."

All this is very excellent; and as it is our wish to introduce a little amusement into so grave and serious a subject, we shall give the reasons laid down in our books for the operation of a recovery by tenant in tail, in barring the estate tail, and the remainders and reversion thereon. These may be distinguished into four. The first is the recompense in value, which is supposed to be recovered by the

66

tenant in tail against the donor or his heirs, whom he is supposed to vouch, in lieu and stead of the entailed lands recovered against the tenant in tail; which recompense, as it is supposed to go in the same entailed line and course of descent as the entailed lands recovered against the tenant would have done,-is considered as an equivalent and compensation to the issue, for the entailed lands which such issue was deprived of by the recovery *. Yet it is by no means agreed, that the same principle is applicable to the barring the remainders or reversion; this, on the contrary, is denied by many authorities t. The next reason assigned, which is particularly applied to the effect of a recovery as barring the remainders and reversions, is this;-that the recoveror comes in" in continuance of the estate tail (which is absolutely barred); for that the recovery enlarges the estate tail, which by supposition of law has a continuance ‡. This reason," observes Mr. Fearne, one of the most profound lawyers who ever lived, "is curious, and savours much of legal magic. It is said to have its foundation in the astuteness' of the judges; and who but judges could have been so astute it may be difficult to say. It certainly proceeds from a depth beyond the reach of common apprehensions; to me, at least, so far from explaining an iota of the matter, it calls for such an explanation itself as I despair of, to render it intelligible." The next reason given is, "that whenever a person comes in vouchee in a common recovery, and enters into the warranty, he is considered as coming in, not merely of the estate which he may then have in the lands, but in privity of all estates he ever had before, though the precedent estate on which the voucher depends is divested, discontinued, and turned to a right §." The fourth and last reason was delivered from the Bench by Chief Justice Willes, in these commendatory words: "Mr. Pigot has confounded himself, and every body else who reads his book, by endeavouring to give reasons for and explain common recoveries. I only say this to shew that when men attempt to give reasons for common recoveries they run into absurdities, and the whole of what they say is unintelligible jargon and learned nonsense. They have been in use some hundreds of years-have gained ground by time and we must now take them, as they really are, common assurances."

By such means as these "the statute of great men is laughed at by tenants in tail, who thus defraud their issue and the persons in remainder and reversion. For the particular distinctions between fines and recoveries, and of the particular occasions on which the one is to be employed and the other avoided, read Preston | passim; and unless you do read him passim you'll know little about it.

Of Recoveries you will find it thus written in the said treatise on Conveyancing: "No instrument prepared by the conveyancer requires more attention than this assurance." Again, in the same work, vol. i.

Pigott on Recoveries, 22.

See, amongst others, Salk. 569. 1 Wils. 73. 1 Burr. 115.

Pig. 21.

Pig. 114.

1 Prest. on Conveyancing; the whole of which volume (592 pages) is concerning fines and recoveries.

p. 28: "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, whether a recovery, defective as against 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."

Thus we see the harmony and beauty of our law, and the wisdom and ingenuity of our lawyers-against whom even parliament may contend in vain. Well might an eminent conveyancer, at a meeting recently convened to consider the best mode of stifling the revolutionary endeavour of altering, or, as some have called it, amending, our law-declare, that "he would sooner part with his bowels than give up fines and recoveries."

We, however, not being possessed of the lights by which that distinguished conveyancer was guided, do presume to propose, that fines and recoveries be wholly abolished. We do not, moreover, think that there is any necessity to substitute even any simple deed in their place: for we propose also, that the statute de donis be repealed; for of what use can that statute be at this day, when every tenant in tail has power, in its very defiance, to cut off the entail-unless, indeed, it is to be preserved as a laughing-stock to remind us of the wisdom of our ancestors. We would repeal all the statutes (of which there are several) relating to fines. All this, we presume to think, the country has a right to demand. At one blow we would level the whole chaos of absurdities relating to this branch of our law.

Nor will it be necessary to preserve either fines or recoveries, to enable married women to pass their lands. As the law now stands, our readers must observe, no married woman can pass her lands so as to destroy the right of her heir-at-law to take her descendable estate after her decease, without the assistance of a fine or recovery; unless, indeed, she has what is called "a power of appointment" over her estate, which is a "special matter," at this time not necessary to enter into. So that, in fact, a married woman has only the advantage of an estate for life; for she cannot even make a will during coverture. The reason for her not being able to dispose of her estate as another person can, is, lest her husband, who has "dominion over her," should exert that influence to the prejudice of the wife's heir. And even the husband himself, on these grounds, can never get any benefit of the wife's estate after her death, unless he had issue by the wife, born alive, which could have inherited the land; and then, in this case, he may hold the estate of inheritance which was the wife's, as "tenant by the curtesy,"-by favour, of this kingdom. The reason why the wife is enabled by the means of fine or recovery alone to pass her lands during her coverture is, that she is presumed to go through these forms by her own free will, and not through the coercion of her husband. ascertain this fact, she is examined, as it is called, by a judge or commissioner in private. She cannot, however, exercise even these modes of conveyance, without the assent of her husband. The consent of the

To