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 Still it is very proper that the point should be kept in mind, and whenever circumstances require it, pressed to a decision. Can a person claim any interest in copyholds lands in opposition to his own fine? Is he not estopped? That the decision will be in support of the validity of the fine, is a point on which little doubt is entertained by the writer of these observations. The same point applies to alienation by married women of equitable interests in copy hold lands.

A recovery in the courts of Westminsterhall, however, will not have the same effect as a customary recovery (f): since a customary 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 the learning on estoppels, and not by force of the statutes giving operation

(f) Oliver v. Taylor, 1 Atk. 474.

[161]

to fines with proclamations against heirs in tail, then common recoveries and fines stand on the same footing in this respect.

Of the Recovery 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 passing 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 purpose; 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 declaration, instead of suffering it to depend on a resulting use in favor of the tenant in tail, or the averment of an use in favor 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 good tenant to the writ of entry. This

(g) Supra, 34,

(h) Altham v. Anglesey, Gilb. Eq. Ca. 16. et supra, 36,

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[ 162 ] 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 recovery 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

been already noticed (); and thus hath

made a period of twenty years, with enjoyline of popsionment under the recovery, presumptive eviEnjoyment hath dence of the existence of those deeds by

502

[163 ]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 (k).

2dly, Of the formal parts of the recovery deed.

8. The Declaration of the intention of the Conveyance, and the Agreement to suffer the Recovery (s).

9. The Declaration of the Uses (t).

1. Of the Date.

The rule of the common law which required the tenant to have the freehold before judgment was given, has already been noticed (u). 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 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 this statute, the

(s) Infra, 192. (t) Infra, 194.

(u) Supra, 61.