8. Of the Agreement to suffer the Recovery. In every well drawn deed, the agreement to suffer the recovery is fully and clearly expressed. The common form of this clause is in the appendix. A shorter form is also added. The variations in the form, arising from circumstances, are noticed in the opposite pages. 9. Of the Declaration of Uses. To the clause prescribing the mode of suffering the recovery, there is generally added a declaration of the uses of the recovery itself. This declaration should be in the form in the appendix, or to that effect, mutatis mutandis. It seldom happens, that this declaration is omitted. When it is omitted, the use will result (a), unless from the consideration paid by the demandant, or from some other circumstance, the beneficial ownership is evidently to remain with him. The cases of Moxon v. Moxon, and Hodges v. Fowler, in the Exchequer 1777, and Com. Dig. Uses, D. 2, p. 622, are authorities that the use will result, and it will result to the different parties, according to their former ownership, that is, to tenant for life, for life, &c. &c. with this difference only, that a tenant in tail, instead of taking back an estate-tail by resulting use, will take back an estate in fee, depending on the title to his estate-tail. Mr. Cruise, in his Essay on Uses, p. 205, adverts to the title, depending on the resulting use as doubtful, on the ground that it is not (x) Armstrong v. Wolseley, 2 Wils. 19, clear that the use which results is in tail or in fee; but the cases seem to admit of no doubt on this point, for though they say the recovery shall enure to the " former uses (y)," no thing more is meant, than that the parties shall take according to the estates which they had at the time of suffering the recovery (2).—Indeed, Mr. Cruise considers the case of Nightingale v. Ferrers(a), as a direct and positive authority, that where a tenant in tail suffers a common recovery without any declaration of the uses, the resulting use is to him in fee.-One, however, of our best read lawyers doubted on this point.-But there were special circumstances in the case, namely, a partial declaration of the uses, without any declaration of the use of the fee: and on the contrary a declaration that the recovery should not enure to any other uses. On the same case Mr. Fearne gave an opinion in these terms.-"I conceive that where a "tenant in tàil is vouched in a common 66 recovery, it bars the estate-tail, and all re"mainders and reversions thereon depending and expectant, and expands the estate "into a fee-simple, abstracted from the (3) Walker v. Snow, Palm, 359. "declaration of the uses of such recovery: "because a fee-simple is recovered, and "therefore where no use of the fee is de clared in such a case, and there is no consi“deration to raise the use in the recovery, it "results to the tenant in tail in fee.2 Roll. Abr, "789, pl. 1. Godbolt, 180.-Bury v. Tay"lor, Gilb. Law of Uses, 61, 64. And if such recovery be with the concurrence of a pre"ceding tenant for life, then the use also "results to him for his life. Vide Walker v. "Snow, Palm. 359; and consequently, I 46 apprehend, that where the use of such 66 recovery is only partially, and not com"pletely limited, as far as the limitation "fails, that is, the unlimited use results in the 66 same manner as the whole use would have done, if there had been no limitation of any part of it." 66 46 Frequently, a title depends partly on a recovery, and partly on a will, made by the person who suffers the recovery; and as a will is revoked by the recovery, if suffered subsequently to the will (6), the attention should be directed to see, either that the will is subsequent to the recovery, or if prior, that (b) Dister v. Dister, Lev. 108. Marwood v. Marwood, 3 P. W. 163. Darley v. Darley, Buller's N. P.267, 7 Bro. P. C, 177, it has been republished since the recovery: and in general it is prudent to advise a person, who suffers a recovery, to republish his will, if he has previously made any. In Selwyn v. Selwyn (c), the will was made before the recovery was suffered, but after the deed to lead the uses was executed.--In that particular case the will was supported, on the ground already noticed. The prevailing opinion, some few years ago, was, that the tenant in tail, by suffering a common recovery, acquired a fee-simple, and that this fee-simple was a new estate. For this reason, the owner of the estate was considered as the first purchaser, so that his estate was descendible, in all cases, to his heirs ex parte paternû.--The law is now settled on this point, and the distinctions which are established are: First, If tenant in tail by purchase suffers a common recovery, to the use of himself in fee; as he was tenant in tail by purchase, the fee taken under the recovery will descend from him to his heirs ex parte paterná (d). And this distinction has been applied as well to copyhold, as freehold lands (e). Though upon principle, (c) 2 Burt. 1131. (d) Martin. Strachan, Str. 1179, 1 Wils. 2, 66.5 T. Rep. 107. (e) Crowe v. Baldwere, 5 Term Rep. 104, |