for life. If the eldest son, who has a remainder in tail under a family settlement, should privately suffer a common recovery, and his father live many years afterwards, it might as well be argued, "that length of time from the date of the recovery should induce a presumption that the father surrendered his estate for life." And his Lordship declared himself as clear, that if there had been a long possession by the tenant in tail after the death of the tenant for life, though such a possession might be ascribed to the entail, the presumption ought to have been made, upon the ground of acquiescence under it, and the probability arising therefrom, "that the parties knew that the recovery was not defective." Rules of property ought (his Lordship said) to be generally known, and not to be left to loose notes, which rather serve to confound principles, than to confirm them. He therefore proposed to have a conference with all the Judges upon this case: which proposal did not arise, he said, from any doubt about the matter (for he was more confirmed in his opinion than he was yesterday), but for the sake of having so considerable a rule of property settled, and of rendering it notorious and public. For which purpose, he (at first) ordered it to stand over till next term: but afterwards, upon its being agreed by all the parties, that, in Mr. Grenville's case, there was a great number of years during which the tenant in tail had been in possession after the death of the tenant for life; and upon the now defendant's counsel candidly declaring "that they themselves were fully satisfied with the present opinion of the Court," he retracted his proposal, and said he would not trouble the Judges with it, since the counsel were so candid as to acquiesce entirely in the opinion that the Court had already intimated. How a Tenant to the Præcipe may be made. By Fine. His Lordship further added, that he would have it understood, that possession of the tenant in tail, after the death of the tenant for life, does leave a ground of presumption "that there was a surrender." But, in the present case, there was no possession after the death of the tenant for life: the ejectment was brought immediately. 38. When the person who means to suffer a common recovery is in actual possession of the freehold, he may convey it to any stranger, for the purpose of making him tenant to the præcipe, by fine, by feoffment, grant, bargain and sale enrolled, or lease and release. 39. It is sometimes thought expedient to make a tenant to the præcipe by fine; not only on account of the notoriety of this species of assurance, but because even an erroneous fine gives such an estate to the cognizee as is sufficient to make him a good tenant to the præcipe. And Lord Hale has said, that 3 Keb. 597. the cognizee of a fine Oct. Purif. would be a good tenant to the præcipe, in a recovery suffered the same day; and the Court would presume a priority to support a conveyance. Lloyd v. 40. A writ of error was brought against a person who was made cognizee of a fine, in order to make him tenant to the præcipe; and after the recovery had been suffered, the fine was reversed for error; yet the recovery was held good; because there was a sufficient tenant to the præcipe at the time. 41. But if the fine was in itself absolutely void; as if the person who levied it had no estate of freehold in possession of the land; there the recovery would be void, because in that case the fine passed no estate. 42. Thus in the case of Dormer v. Parkhurst, where ante, f 21. a fine was levied by a tenant for years and a remainder-man in tail, to make a tenant to the præcipe; it was determined that the recovery was void, because none of the parties to the fine had an estate of freehold in possession in the lands. Burton, 43. In a celebrated case which arose in Ireland, Hume v. and which will be stated in a subsequent chapter, it infra, c. 11. was held by the House of Lords there; contrary however to the opinion of a majority of the Judges, and of the Lord Chancellor; that where a fine was levied by the Earl of Ely for the purpose of making a tenant to the præcipe, and a recovery was suffered thereon in the same term, the fine should be deemed conclusive evidence of the sanity of the cognizor, and of his capacity to suffer the recovery; the fine and recovery being considered as one assurance. Though no Use be § 20. 44. It has been already stated, that where a fine is levied without any consideration or declaration of use, the use and legal estate immediately result to the cognizor of the fine, so that the cognizee has only a seisin of an instant. In consequence of this doctrine, where a fine was levied in order to make a 3 Keb. 113. tenant to the præcipe, and a writ of entry was brought against the cognizee of the fine, on which a common Pigot, 52. recovery was suffered, it was doubted whether such a recovery was good; for as no use was declared on A a Altham v. Gilb. R. Holt. 733. 11 Mod. 210. and the statute of uses and although, since the statute of uses, the use results back when no use is declared, yet the intent of the parties always guided the use, and there could be no resulting use against the express intent of the parties; so that whenever the use results, it is because the parties intend it. Now, in a case of this kind, the evident intention of the parties is to make a tenant to the præcipe, which appears upon the record, by the writ of entry being brought against the cognizee; and therefore he must have such an estate as will make him a good tenant to the præcipe. These principles have been fully established in the following cases. 45. A tenant in tail levied a fine to J. S. and his Anglesey16. heirs, in order to make him tenant to the præcipe in 1 Salk. 676. a common recovery, but no use was declared on the fine. Seven years after, a writ of entry was brought against J. S., who vouched the cognizor of the fine, and a common recovery was thus suffered. The question was, whether J. S. had an estate of freehold in him at the time of the recovery. It was contended, that although the legal estate passed by the fine to J. S., yet as no use was declared, it immediately resulted back to the original owner of the estate; so that J. S. had no estate in the lands when the recovery was suffered, and therefore was not a good tenant to the præcipe. But it was held by Lord Holt and all the other Judges, that when a fine was levied, or a feoffment made to a man and his heirs, the estate was in the cognizee or feoffee, not as an use, but by the common law, and might be averred to be so. And as in this case the intention of the fine plainly appeared to be for the purpose of making a tenant to the præcipe, the use and estate should be allowed to have vested in J. S. and not to have resulted to the cognizor of the fine. v. Peake, 46. In a subsequent case, Lord Ch. Just. Parker Thrustout said, that a fine being levied, and no use declared, 1 Stra. 12. and a recovery having been immediately after suffered of the same lands; the writ of entry being brought against the cognizee of the fine, showed that the intent of levying the fine was, to make a tenant to the præcipe. 47. It has been often doubted, whether a husband, A Husband seised Jure Tenant to the without Fine. seised jure uxoris, could make a tenant to the Uxoris may præcipe of his wife's land, without her joining him in alone make a a fine. This doubt probably arose from the words of Præcipe Lord Talbot, in the case of Robinson v.Cummins, as reported by Mr. Forrester; for there his Lordship is said Pa. 167. to have expressed himself thus:" It hath been said, that a feme tenant in tail, and her husband, cannot make a tenant to the præcipe without a fine; but whatever may be the case where a husband is merely seised in right of his wife, is not necessary for me to determine; because in this case Sir J. Robinson did, by his intermarriage, become entitled to an estate by the curtesy; and therefore he alone, without his wife's jeining, might have made a good tenant to the præcipe." 48. In an opinion given by the late by Mr. Booth Cases and Opinions, on this subject, he observes, that this report of Lord vol. 1. 436. Talbot's argument is incorrect; that he himself was vol. 2. 132. present at the hearing of that case, and had a very full note of it; and that Lord Talbot's words were these:-"If I should lay it down as a rule, that where the wife is entitled to an estate tail in possession, her husband and she could not make a tenant to the præcipe, for the docking of the entail, without a fine, because the law is supposed to appoint no other |