cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements (wherein a variety of uses and designations is very often expedient,) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements in the vast and intricate machine of a voluminous family settlement. And if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As if A tenant in tail, with reversion to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; that is what by law he has no power of doing effectually, while his own estate tail is in being. He therefore usually, after making the settlement proposed, covenants to levy a fine (or if there be any intermediate remainders to suffer a recovery) to E, and directs that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall enure to the uses so specified, and no other. For though E, the cognizee or recoveror, hath a fee-simple vested in himself by the fine or recovery; [364] yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the use of B, C, and D, in successive order: which use is executed immediately, by force of the statute of uses *. Or, if a fine or recovery be * This doctrine may perhaps be more clearly illustrated by example. In the deed or marriage settlement in the Appendix, N° II. § 2. we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers other remainders over, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, viz. to Abraham and Cecilia Barker till the marriage of John Barker with Katherine Edwards, and then to John Barker for life; remainder to trustees to preserve the contingent had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered in consequence of a deed directing it's operation to those particular uses. For by sta tute 4 & 5 Ann. c. 16. indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds 29 Car. II. c.3. to the contrary. (8) usual it is by no means necessary: see Forrester, 167.) that in order to make a good tenant of the freehold or tenant to the praecipe, during the coverture, a fine should be levied by Abraham, Cecilia, and John Barker; and that the recovery itself be suffered against this tenant to the praecipe, who shall vouch John Barker, and thereby bar his estate-tail, and become tenant to the fee-simple by virtue of such recovery; the uses of which estate so acquired are to be those expressed in this deed. Accordingly the parties covenant to do these several acts (see pag.viii.); and in consequence thereof the fine and recovery are had and suffered (N° IV. and N° V.) of which this conveyance is a deed to lead the uses. (8) In a note by Mr. Sugden on Gilbert's Uses and Trusts, p. 111. 3d edit., the learned editor mistakes this passage as stating that the statute of frauds had enacted that all trusts should be declared in writing at, and not after the levying or suffering the fine or recovery, which created them. But the author only infers what the statute of Anne states, that doubts had arisen on the construction of the statute of frauds. Mr. Sugden observes, that by the 4 & 5 Ann. c. 16. trusts can only be declared after suffering the fine or recovery by deed; the author uses the term indentures, which is not in the statute, nor are they absolutely necessary. The remark upon common recoveries, which Mr. Christian has cited from Willes C. J. in the case of Martin v. Strachan and another, 1 Wilson, 73. is very just. CHAPTER THE TWENTY-SECOND. OF ALIENATION BY SPECIAL WE are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates as are holden in antient demesne, or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold. Nor are they transferable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds : but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyance by surrender, and their consequences. SURRENDER, Sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A and his heirs; to the use of his own will; and the like. The process, in most manors, is, that the tenant comes to the steward, either in court, (or if the custom permits, out of court,) (1) or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such person's and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender, in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use (who is sometimes, though rather improperly called the surrenderee), to hold by the antient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty. In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alienee of a copyhold had merely jus fiduciarium, for (1) Even without a special custom, the lord or his steward may take surrenders out of court, or even out of the manor. Dudfield v. Andrews, 1 Salk, 184. Tukely v. Hawkins, 1 Lord Raym. 76. which there was no remedy at law, but only by sub-pocna in chancery. When therefore the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant's will, the chancery enforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV. ", was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; "quando "hasta vel aliud corporeum quidlibet porrigitur à domino se "investituram facere dicente: quae saltem coram duobus va"sallis solemniter fieri debet:" and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which, we may fairly conclude, that had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestibly prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen. THIS method of conveyance is so essential to the nature of a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law, but we must surrender to each other's use, and the lord will admit us accordingly. If I would devise a copyhold, I must surrender it to the use of my last will and testament and in my will I must declare my intentions, and |