Ten. 175. the manor, in the nature of real actions, against the tenant in tail, (admitting that copyhold land might be entailed) it should be a discontinuance, and should toll the entry of the heir in tail. For inasmuch as plaints in the nature of real actions were warranted by the custom, it was an incident which the law annexed to the custom, that such a recovery should make a discontinuance. 9. This determination only says that a recovery in the lord's court shall operate as a discontiuuance, and take away the entry of the heir. And Lord Ch. B. Gilbert observes, that a recovery with voucher does not, of common right, bar the entail of a copyhold; but that, as to the entailing of them, custom is requisite; so, without custom, the entail cannot be cut off. The reasons are, because without an intended recompence in value, no recovery shall bind, and the surrenderee comes in in the post by the lord, and is not in in the per by the party; and so no warranty can be annexed to the copyholder's estate. Besides, they have only an estate at will, to which no warranty can be annexed of common right; for no estate less than a freehold is capable by common right of having a warranty annexed to it. And accordingly it was T.Raym.162. adjudged in Clun's case; and all the Judges held that the recovery did not bind without à custom. But there is a quere whether judgment was given for the plaintiff upon the principal matter or not; for it seemed to have been a discontinuance, and then the defendant's entry could not be lawful. There were two other cases where this question came in dispute, but was not resolved. It was held in the case of Church v. Wyatt, that a recovery by custom might bar, which implied that without a custom it could not bar. But in the case of Oldcot v. Level Moor. 637. Id. 753. it was agreed that a recovery might be in the court of the lord, that would bar a copyhold; and there it was said generally, and was not put upon any custom. 10. The usual mode of suffering a common reco- Pigot, 103. very in a copyhold court is thus: the tenant in tail. surrenders it to some other person, to make him tenant to the præcipe, and then a plaint, in the nature of a writ of entry in the post, is brought against him, who vouches the tenant in tail, and he vouches over the common vouchee. 11. By the statute 47 Geo. III. sess. 2. c. 8. it is enacted, that it shall be lawful for every person, not being under coverture, and for every feme covert (being secretly examined), to appoint an attorney or attorneys for the purpose of surrendering the copyhold or customary tenements of which a common recovery shall be proposed to be suffered, to make him or them tenant or tenants to the plaint, and also to appoint any other person or persons to appear as vouchee or vouchees for suffering such recoveries; which shall be as good as if the parties appeared in person. 12. It was resolved by the Court of Common Pleas Keen v Kirby, in 27 Cha, II. that where a tenant for life of a copy- 1 Mod. 199. hold suffered a recovery as tenant in fee, it was no 2—32. forfeiture of his estate; for the freehold not being concerned, and it being in a court-baron, where there is no estoppel; and the lord who was to take advantage of it, if it were a forfeiture, being a party, it was not to be resembled to the forfeiture of a free tenant; and that customary estates had not such accidental qualities as estates at common law, unless by special custom. 4 Rep. 23 a. Oliver v. Taylor, 1 Atk. 474. Effect of such a Recovery on 13. A recovery upon a plaint, in the nature of a real action against a tenant in tail, is a discontinuance, and takes away the entry of the heir in tail. 14. If lands are customary freeholds, and pass by surrender in a burrough court, it is said that a recovery of such lands suffered in the Court of Common Pleas may be good. 15. It was resolved in a modern case, that a recothe Descent. very of a copyhold has the same effect as a recovery of a freehold, with respect to the descent. Roe v. Baldwere, 5 Term R. 104. Tit. 36. c. 9. $ 14. 16. J. Younger being seised in fee of freehold and copyholds, devised certain parts of his estate to S. Atkinson in fee, and other parts to S. Atkinson for life, with remainder to E. Waterfield in tail. These two estates afterwards came to C. Bowker in tail, one of which she took by purchase, under a limitation to the daughters of E. Crow, the other by descent under the estate tail limited to E. Waterfield. C. Bowker being so seised in tail of the different parts of these estates, in different rights, suffered a common recovery, with her husband, of the whole ; and a question arose on the effect of that recovery, as to the respective parts of the estate. Lord Kenyon said, it seemed to have been admitted that the case of Martin v. Strachan decided this case, as far as it went. According to that case it stood thus: the common recovery put an end to the estate tail; the estate immediately afterwards became an estate in fee; and the party whose estate was converted into a fee, if he took the estate tail as a purchaser, must take the fee as a purchaser; or if he took the estate tail by descent, must take the fee also by descent, as from the same ancestor. A distinction, however, had been taken, between the operation of a common recovery respecting copy holds, and freeholds. But it would lead to perplexity if different rules were applied to different sorts of estates. Copyhold estates were neither within the statute De donis nor that of uses; neither were they the subject of entails, unless there was a custom in the manor to warrant it, which was admitted in this case. It was in conformity to the rule respecting real estates, and to prevent any estate being unalienable, that the same rule was adopted in the case of copyholds, as a means of unfettering estates and to prevent perpetuities. And he knew of no authorities which made any distinction in this respect between copyholds and freeholds: in all other points where the lord of the manor was not prejudiced, the same rule of descent applied equally to both. That this case had been ingeniously argued on the forms of a recovery; and it had been compared, as to the copyholds, to a feoffinent and re-feoffment. But this was by no means like the case of a feoffment and re-feoffment, and the Court could not enter into these forms; they were perhaps inexplicable; but they must be taken as a mere mode of conveyance by a tenant in tail, and ought to be so considered in all respects it was so considered by the courts in Martin v. Strachan. Without, however, wasting time in going through the doctrine laid down by Lord Ch. J. Lee in that case, he thought the Court was bound to adopt the authority of it, and apply it to both these species of property. Therefore that part of the estate which the person who suffered the common recovery took by purchase, must go to the heir ex parte paterna; and that which she took by descent from the maternal ancestor, to the heirs ex parte materna. : How such Recoveries may be reversed. Fitz. N. B. 12. 17. A common recovery suffered in a copyhold court can only be reversed by petition to the lord, in the nature of a writ of false judgment. 18. If an erroneous judgment be given in a for1 Inst. 60 a. medon in a copyhold court where the King is lord, 4 Rep. 30 b. Edward's the party against whom the judgment is given may Case, sue by bill or petition to the King, in the Exchequer 1 Roll. Ab. 539. Chamber, in the nature of a writ of false judgment, for the reversal of the judgment. For as, in the court of a common person, the proper suit for reversal thereof is to the lord by petition; so it is here to the King: and the Exchequer Chamber is more proper to sue in to the King by petition, than the Chancery, because it concerns the King's Smith v. Dean manor. 19. The Court of Chancery will not, however, compel a lord of a manor to receive a petition in the nature of a writ of false judgment, to reverse a recovery suffered thirty years before. 20. A bill was brought to compel the Dean and Chapter of St. Paul's, as lords of the manor, to receive a petition in the nature of a writ of false 1 Vern. 367. judgment, for reversing a common recovery suffered in the manor court above thirty years before; whereby a remainder in tail, which the plaintiff claimed, was barred; suggesting several errors in the proceedings, and praying that the said lords might be commanded to examine the same, and do right thereupon. To this bill the defendant Rugle demurred; and the Dean and Chapter, by answer, insisted that it was the first attempt of the kind, and therefore of dangerous consequence; and conceived it not fit to proceed on the said petition, unless compelled thereto by course of law. That Rugle being the person concerned in interest to contest the sufficiency of the common |