A difference of opinion exists among conveyancers, whether a recovery with treble voucher is necessary in any case. Few admit the necessity of vouching the two tenants in tail distinctly. The majority, relying on Page and Hayward, are of opinion, that it is sufficient that both tenants in tail shall be vouched jointly.

The objection to this mode of vouching is, that the recompense cannot go to the issue of both tenants in tail; so that the analogy to real adverse actions, in which the recompense is the foundation of the bar, does not exist. On this point see Watk. prin. p. 135. Co. Litt. 101 (b), and 376, (a & b). Plowden's argument in the case of Bassett v. Morgan, published at the end of his reports.

In all other cases, it is true that the voucher of a tenant in tail, jointly with another person, will be effectual to bar the estatetail (f).

That decision proceeds on the ground, that the recompense will go accordingly to the title of the persons by whom the recovery is suffered.

This, however, is not a decisive answer to the objection, which requires a treble voucher: because in the case of an estate-tail derived

(e) 2 Salk. 570.

(ƒ) Eare v. Snow, Plow. 514. Co. Lit. 376, b.

out of an estate-tail, it is impossible that the same recompense can, consistently with the principles of law, be a recompense to both classes of issue; since it is absurd to suppose that the issue under the derivative estate-tail, are, in the first place, to recover

the

recompense, as upon a defeasible title, and that the issue under the original estate-tail may recover the recompense from them (g).

Indeed this mode of compensating them is a solecism, and impracticable in any legal mode known to the rules of law; because the issue under the original estate-tail, if they can recover the recompense in any mode, must recover it for their own benefit against the person whom they or their ancestors vouch.

Nor is it possible that the recompense can be divided between the different classes of issue, so as to be a compensation to all of them; since the issue under the original estate-tail will not have a recompense to the extent of their title, unless they have other lands, to the full value of those originally intailed.

To put the case in the most striking point of view, the recovery may be supposed to be suffered by the tenants in tail themselves:

(g) See Mary Portington's case, 10 Co. 37.

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so that the issue cannot derive their title to the recompense, otherwise than through their ancestors, or than the foundation of the judgment given upon the different vouchers; thus disentangling the case from the supposition that the issue under the original estate-tail are the only persons to be considered in determining the title to the recompense. For as between the two tenants in tail themselves, it is clear that the owner of the derivative estate-tail has an exclusive right to the recompense.

The answer which an eminent and liberal gentleman since dead, gave against the necessity of vouching the tenants in tail separately, was, that " had the vouchees de“manded a lien, that is, required the tenant "to shew what he had to bind them to the "warranty, and what estate they were bound "to warrant, the recompense could only "have been according to the estate to which "the actual warranty was annexed; but in

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consequence of their entering into the war"ranty paramount, the writ of execution of "the land, recovered against the common "vouchee, must be general for delivery "thereof, to the first vouchees, without ex

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pressing for what estate; and it appears by the books, that though the vouchees "themselves are, by entering into the voucher jointly, estopped from saying that they had

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"not a joint estate, their issue will not be estopped. The claims of both classes of "issue are upon one estate, and an estate of " equal value is awarded as a recompense "for it, and will be subject to the same "claims. After the death of their vouchees "they must implead one another, and the recompense will go to those who shall be adjudged to have sustained the loss; for if "the issue are not estopped, no injury is "done. The law remains open." The authorities relied on were Co. Litt. 101 (b), and 376, (a & b).-the case of Page v. Hayward, and Plowden's argument in the case of Bassett and Morgan v. Mansell, published at the end of his Reports.

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Of the authorities cited, that which bears most on the argument is the passage in Co. Litt. 376, b. The example in that case is taken from Eare and Snow's case, in Plowd. Comm. 514. The language of Lord Coke is, "If tenant in general tail be, and a common 66 recovery is had against him and his wife, "where the wife hath nothing, and they "vouch, and they have judgment to reco

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ver in value; tenant in tail dieth, and the "wife surviveth: so that the issue in tail had "the whole loss, the recompense shall enure wholly to him: and the wife, albeit she was party to the judgment, shall have no

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"thing in the recompense, for she loseth "nothing."

But this observation does not relieve the case under consideration from its difficulties. In Lord Coke's case there was only one estate-tail, and there was one recompense sufficient to compensate it. In the case under consideration, there were two estates-tail and only one compensation, so that the issue claiming under one of the estates-tail must be disappointed, since each of them cannot have the recompense in value; for if it should be given to the issue claiming under the derivative estate-tail, the issue under the original estate-tail will be bound, without having any equivalent. On the other hand, in case the recompense in value shall be given to the issue under the original estate-tail, the issue under the derivative estate-tail will be bound without having any recompense, As between the two classes of issue, no doubt the issue under the original estate-tail ought to be preferred, and they certainly would be preferred whenever their title came in competition.

But many cases may be put in which the utmost confusion would arise from giving the recompense to the tenant of the original estatetail or his issue, in exclusion of the tenant of the derivative estate-tail and his issue; and in