it, being to be considered as a bar of the old entail only. This was a slight question, and deserved little notice where tenant in tail is vouched, he comes in of every estate he has: if it had been his intention only to have barred the old entail, he would have declared so. 2d question, which is the only one that deserves serious consideration, is as to the operation of the recovery. In general, a fine or recovery by one joint tenant only, severs the joint tenancy, and operates on a moiety. Co. Lit. 187. makes the distinction between a joint estate given to the husband and wife during the marriage, and a joint estate to them before marriage. In the former case their interest is not severable, in the latter case they take in moieties. The doubt in Cuppledike's case arose on a joint estate during marriage; and 1 Leon. 270. is mistaken as to Lord Coke's doubt, for the case of a joint estate before marriage is not mentioned in Cuppledike's case. The question seems to have been determined in Simmond's case, Moore, 92; the only doubt is, whether the husband and wife can hold moieties; and in that case all the Judges held, there were several estates tail between husband and wife. It follows that the recovery in this case is a severance of the joint estate, and passes a moiety. 60. The power of suffering a common recovery is one of those privileges which is so inseparably annexed to an estate tail, that it cannot be restrained by any condition, limitation, proviso, or covenant whatsoever. The Power of suffering a Recovery cannot be restrained. 1 Inst. 223 b. 1 Burr. 84. 61. Thus, where C. Corbet covenanted to stand Corbet's Case, seised of lands to the use of himself for life, remain1 Rep. 83. der to the use of R. and the heirs male of his body, Mildmay's with divers remainders over. Provided that if R. or 6 Rep. 40. any of the heirs male of his body should attempt or Case, Mary Portington's Case, 10 Rep. 37. procure any act, or thing, by which any estate tail so limited should be undone, barred, or determined, that then the uses and estates to him limited, who should so do, &c. should cease, only in respect to such person so attempting, in the same manner as if such person so attempting, &c. were naturally dead; and that then immediately in all such cases, the uses of such lands should be to such persons, for such and the like estate, and in the same manner and form, and with such remainders over, and under such limitations and restrictions, &c. as if such persons so attempting, &c. were naturally dead. Afterwards Corbet died, and R. the first tenant in tail suffered a common recovery to his own use. The person next in remainder entered; and upon the question, whether such entry was lawful or not, the Court of Common Pleas unanimously agreed, that this proviso to cease an estate limited to one, and the heirs male of his body, as if the tenant in tail were dead, was repugnant, impossible, and against law. For the death of tenant in tail, was not a cesser of the estate tail, but the death of tenant in tail without issue of his body, was the determination thereof. any 62. So where lands were devised to several daughters successively in tail, with a proviso, that if of them should conclude and agree to or for the doing or execution of any act, &c. whereby the lands entailed, &c. or any estate or remainder thereof should by any way or means be discontinued or aliened, or should do any act or thing whereby the lands might not descend, remain or come as limited by the will, that then the person so concluding and agreeing to or for the doing and execution of any such act, &c. should immediately after such conclusion and agreement, &c. lose and forfeit such estate and benefit as she and they might claim, in such manner as if she or they had never been named in the will, and thenceforth the estate and estates limited to her or them should utterly cease, as fully to all intents and purposes as if she or they were dead, without heirs of their bodies. The first tenant in tail concluded, and agreed to suffer a common recovery, and suffered one accordingly; the next in remainder claimed the estate as forfeited; and contended, that if the donor could not restrain the recovery after it was suffered, because thereby the remainder was barred, yet he might restrain the conclusion and agreement to suffer it, to prevent the bar by the recovery. But it was adjudged, that tenant in tail cannot be restrained by any condition or limitation from suffering a recovery; and that it was absurd to say that the recovery itself cannot be prohibited by any condition or limitation, and yet that the conclusion or agreement to suffer it may be prohibited; and it was also laid down in the arguments in the same case, that the levying a fine within statute 4 Hen. VII. c. 24. and 32 Hen. VIII. c. 36. to bar the issue, was of the number of those incidents to an estate tail which could not be restrained by condition. 63. Although a condition that tenant in tail shall not suffer a recovery is void, yet it appears to have been held by Lord Cowper, that a covenant not to suffer a common recovery will bind the assets of the covenantor. Plummer, 2 Vern. 635; 64. Thus, where a person, in consideration of Collins v. marriage, settled lands upon himself for life, remain- 1 P. Wins. der to his intended wife for life, remainder to the heirs 104. of his body on his wife to be begotten, remainder to his own right heirs, and covenanted with the trustees, that he would not suffer any recovery to bar the limi tations in the settlement. The husband suffered a recovery of these lands to the use of himself and his Vide 2 Ver- heirs. The Lord Chancellor was of opinion, that the non,233.251. covenant did not bind the land so as to defeat the recovery. But it being pressed, that they might be at liberty to sue the executor, and recover out of the personal assets, an issue was directed to try what the wife and the issue of the marriage were damnified by the breach of this covenant. King v. An Heir in to inspect &c. 65. Where an heir in tail is disinherited by a common recovery, and seeks for relief in a court of Title Deeds, equity, the recovery, together with the deeds for making a tenant to the præcipe, will be directed to be brought before a Master, that the person thus barred may have an opportunity of inspecting them, and of seeing whether any thing can be discovered for his advantage. 2 P. Wms. 177. Bettison v. Farringdon, 3 P. Wms. 363. A COMMON recovery differs very much in its Α operation from a fine, for it has not the effect of establishing an undoubted title after a certain number of years. A fine was originally introduced into our law as a public and solemn mode of alienation, and its force in barring entails arose from two statutes, made some centuries after. A common recovery was first introduced, for the purpose of barring entails only, and therefore it has not so extensive and powerful an effect as a fine. But in consequence of the principle, that where a recovery is suffered, the recoveror thereby acquires a new estate in fee simple, it follows that a recovery has several other effects besides that of barring estates tail. 2. All those who are parties to a recovery are Parties. bound by it, because, being a matter of record, they |