At the common law, every tenant in tail had the power and the right of suffering a common recovery. This right is so inseparably annexed to his estate, that it cannot be restrained by condition, limitation, custom, or the like (ƒ)

The statute law has introduced two exceptions, of which some notice has already been taken.

The first exception is applicable to tenants in tail of the gift of the crown for services performed, and in which the reversion or remainder remains in the crown (g).

To bring a case within this exception, there must be,

First, An estate-tail.

Secondly, It must be of the gift of the crown, namely, the king for the time being, while king; or by the purchase, or provision of the crown (h).

Thirdly, It must be for services performed (i); and at least, when the grant proceeds from a subject, the consideration, &c. must appear on record (k).

Lord Mansfield has advanced the doctrine, that in case of a gift by the crown,

the services must, at a distance of time, be presumed, and need not be proved (1).

Fourthly, The remainder or reversion in fee or in tail (m), must be in the crown. The restraint on the alienation continues so long only as the remainder or reversion remains in the crown. An alienation by the crown, of the reversion or remainder, leaves the tenant in tail at liberty to bar the estate-tail, and the reversion and remainder (n). While the estate-tail is protected from being barred, all other subsequent estates in other persons, are also protected (o): for unless the estate-tail can be barred, no other estate admits of being barred. But an estate-tail of the gift of the crown, though it cannot be barred, either by fine or com-[146] mon recovery, while the reversion remainder remains in the crown, may be barred by non-claim on a fine, or by collateral warranty, so as the not a party or privy (p). ed whether any issue is than his own time. Perhaps each succeeding issue may have a new five years against a fine.-Lord Nottingham seems to assume that the bar will be only against the tenant

or

tenant in tail is
But it is doubt-
barred for more

(p) Stratford v. Dover, Co. Litt. 373.

Lord Nottingham's MS.note, ibid. n. 2.

in tail at the time of the fine levied -Let it be admitted that the fine operates as against him, and it will follow, that it will operate as against each succeeding issue, at least for his time.

The authorities afford no satisfactory conclusion on this interesting point. The Earl of Derby's case (q) is an authority, only, that the issue is not barred by the fine with proclamations of their ancestor, being the donee or tenant in tail.

It has already been observed, that even at the common law, a recovery by tenant in tail, will not bar a reversion or remainder in fee in the crown (r). The recovery will operate only to the extent of converting the estate-tail into a base or determinable

fee, and barring the issue (s). It will even bar remainders in strangers (t); and also a remainder after an estate-tail in the king (u). No estate is protected by the common law, from the operation of a recovery by tenant in tail, except a remainder or reversion in the crown (v).

The second exception applies to women tenants in tail, ex provisione viri. (w)

(q) 2 Show. 104.

(r) Supra, 19.

(s) Neale v. Wilding, 1Wils. 275. Bro. Assurance, pl. 6. (t) 2 Roll's Abr. 394. 1. 1. Bendloes, pl. 254.

(u) 2 Roll's Abr. 394. 1. 5. Sir Hugh Chomley's case, Moor, 342.

(v) Hob. 339.
(w) Supra, 19,

By the stat of 11 Hen. 7. c. 20, they are restrained from suffering recoveries, &c. either while sole, or under coverture with any after-taken husband; with the exception, that the act shall not extend to any [147] recovery to be had with the heirs next inheritable to the woman, or with the consent of the person next in remainder; provided such consent appear on the record, or be enrolled. To bring the case within the exception, the heir in tail or the person in remainder must be vouched, or their consent must appear by a deed inrolled.

This act equally extends to equitable and legal estates (r).

But this act does not extend to restrain a woman tenant in tail, ex provisione viri, from suffering a recovery jointly with her husband (y), or with the issue in tail (z), unless the title of such issue be defeated by the birth of a more immediate heir in tail (a).

Nor does it extend to lands settled by the wife (b), or given by any of her friends, or proceeding from the voluntary gift of a stranger (c); nor to lands settled on the

(x) Clifton v. Jackson, 2 Vern. 489.

(y) Kirkman v. Thompson, Cro. Jac. 474.

(z) Mackwilliam's case, Hob. 332. Lincoln College

case, 3 Co. 59,

(a) 3 Co. 61, b.

(b) Laughter v. Humphrey, Cro. Eliz. 524.

(c) Ward v. Walthew, Cro. Jac. 173.

148-149 OF SEISIN TO RAISE THE USES.

wife in general tail, with remainder to her in fee (d); nor when she is tenant in general tail, and the fee is limited to a stranger [148] (e). In short, the restraint on alienation is merely for the benefit of the husband, his issue, or heirs.

Nor does this statute extend to copyhold lands (f).

[149]Of the Necessity of a Seisin in the Demandant before any Uses can arise under the Recovery.

To perfect the legal title under a common recovery, and to give a seisin to the demandant in the recovery, a writ of seisin (except in some particular cases, as where there is a reversion expectant on a term of years, and there is an entry or claim) must be sued and seisin delivered (g); and until such seisin is delivered, no uses can arise under the recovery (h). Till there is a writ of execution, and that writ is executed, there is not any seisin in the demandant, as the means of supplying a seisin to the uses : and until there is such seisin, the person claiming under the uses, hath no legal estate

(d) See 4 Co. 3, b.

(e) Foster v. Pitfall, Cro.
Eliz. 2.

Hughes v. Clubb, Com.
Rep. 369.

Gilb. Ten. 181.

(g) Witham v. Lewis, 1 Wils. 48.

4 Bro. P. C. 504.

(h) Mo. 141, in Shelley's

(f) Harrington v. Smith, case. 2 Siderf. 41, 73.