[118]

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.

On Voucher.

The voucher is that part of the proceedings in a common recovery, by which a warranty is supposed, and in consequence of that warranty a person is vouched. The vouchee admits the warranty. He takes the defence on himself. Thus, as between the parties, he becomes the defendant; and the plaintiff counts against him, by stating the demand against him as tenant by the warranty, in like manner as he counted against the ori

ginal defendant as terre-tenant, or actual freeholder. When the tenant vouches a person, who makes default, this is a recovery with single voucher. As often as this vouchee vouches another, who makes default, this is a recovery with double voucher. And when one person is vouched, who vouches another, who vouches a third person, this is a recovery with treble voucher. The consequence of voucher is recompence; 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 recompense, or possible recompense, is the cause of the bar (g). The doctrine of recompense is not considered as essential to bar the remainder-men. Against them the common [119] recovery is treated as a common assurance (h). 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

(g) Pigott on Recov. 31. Co. Litt. 373. a.

(h) Per Willes, 1 Wils. Rep. 73.

lent for that estate (i). 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 necessary under some circumstances, owes its origin to the same learning. It is agreed 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 conveyance; as a release of right; or as an estoppel; or is to be considered as the assurance

(i) Taltarum's case, 12 Ed. (k) Co. Litt. 373. a. IV. 14, 19.

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 estate-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 extinguish 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 recompense, 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 (m).

And when the lands recovered were intailed, the lands recovered as the recompense in value, will be considered as intailed in the same manner, as the lands of which the recovery 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 adverse action.

(n) Co. Litt. 252, a Plow. Com. 514,

and

Manxel's case, at the end of
Plow. p. 8.