recovery, they hoped the court would hear his defence and determine therein before any judgment were given against them; and that they were only lords of the manor to obey, &c.; and prayed that their rights might be preserved. This demurrer having been allowed, an appeal was Ann. 1685. brought in the House of Lords, where it was contended on the part of the appellant, that this was the only remedy which he had; for as no writ of error» or false judgment, lay for reversing a recovery or judgment obtained in a copyhold court, the only method was by bill or petition to the lord, in the nature of a writ of false judgment, which of common right he ought to receive; and to cause errors and defects in such recovery or false judgment to be examined. That in all cases where any party, having a right to a freehold estate, was barred by a judgment, recovery, or fine; such party, of common right, might have a writ of error, if the same were a court of record; and a writ of false judgment, if in a court baron, or county court. And there could be no reason why a copyholder should be without remedy, when a false judgment was given; and the rather for that in real actions, as this was, the proceedings in the lord's courts were according to those in Westminster Hall. That though a common recovery was a common assurance, yet it was never pretended that a writ of error to reverse it was refused on that pretence; and if the lord of a manor refused to do his duty, the Court of Chancery had a jurisdiction to compel him thereto. That though common recoveries were favoured, and had been supported by several acts of parliament, yet no parliament ever thought fit to deprive the parties bound by such recoveries, of the benefit of a writ of error. On the other side it was argued for the respondent, that the person who suffered the recovery had a power over the estate, that she might both by law and conscience, upon a recovery, dispose of it as she should think fit; that she had suffered a recovery, according to the custom of the manor, though not according to the form of those suffered in Westminster Hall. That the suffering of recoveries in any court, and the method of proceeding in them, were rather notional than real things; and in the common law courts, they were taken notice of, not as adversary suits, but as common assurances; so that even there, few mistakes were deemed so great, but what were remedied by the statute of jeofails, or would be amended by the assistance of the Court. And if it were so in the courts at Westminster, where the proceedings were more solemn, and the Judges were persons of learning and sagacity; how much rather ought this to stand, which was suffered in 1652, during the times of disorder, and most proceedings informal and in the English tongue, in such a mean court, where there were few precedents to guide them; where the parties themselves were not empowered to draw up their own proceedings, but the whole was left to the steward, who was a stranger to the person concerned; and therefore it was hard and unreasonable that men's purchases should be prejudiced by the ignorance, unskilfulness, or dishonesty of a steward, or his clerks. That there was scarce one customary recovery in England which was exactly agreeable to the rules of common law: that the questioning of this might, in consequence, endanger multitudes of titles, which had been honestly purchased; especially since there could be no aid from the statutes of jeofails, for they did not extend to courts baron. That there was no precedent to force lords of manors to do as this bill desired, and the lords of manors were the ultimate judges of the regularity or errors in such proceedings. That there was no equity in the prayer of this plaintiff; that if the lord had received such a petition, and were about to proceed to the reversal of such recovery equity ought then to interpose, and quiet the pos session under those recoveries: that Chancery ought rather to supply a defect in a common conveyance, and decree the execution of what each party meant and intended by it, than assist the annulling of a solemn agreement, executed according to usage, though not strictly conformable to the rules of law. The appeal was dismissed, and the decree affirmed. 21. The determination in the above case can only be accounted for from the late period at which the recovery was attempted to be reversed; and from the circumstance of its having been suffered during the civil wars. It would be very dangerous to conclude from it that every lord of a manor has a discretionary power to receive or refuse a petition to reverse a recovery suffered in his court: for justice requires that a petition of this kind, when brought within a reasonable time, should be as much ex debito justitiæ, as a writ of error to reverse a recovery suffered in the Court of Common Pleas. 22. Where a recovery has been suffered of lands held in ancient demesne, in the lord's court, the proper mode of reversing it is by writ of deceit. 23. Thus, where a writ of deceit was brought to Rex v. Firereverse a common recovery, suffered of lands which brace, Barnes, 258. were held of the manor of Havering ate Bower in the county of Essex, which is ancient demesne, and Within what Time. $25. of which the King is lord. The defendants confessed the action, and the Attorney General remitted damages, and prayed judgment. A rule was made for judgment nisi causa, which was made absolute on affidavit of service; no cause being shown. 24. The statute 10 & 11 Will. III. c. 4. has been Tit. 36. c. 11. already stated, by which it is enacted, that all writs of error for reversing fines or recoveries must be brought within 20 years after such fine levied, or recovery suffered. It does not appear to have been determined whether this statute extends to petitions to reverse recoveries suffered of copyholds, or to writs of deceit to reverse recoveries suffered of lands held in ancient demesne. The late Mr. Serjeant Hill held that it did extend to petitions and writs of deceit; and gave the following reasons for his opinion: "The statute in question is a remedial law, and made for the quieting title and possessions under ancient fines and recoveries, as appears by the express words, as well as from the subject of it; therefore it ought, by the known rules of law, to receive a liberal construction, and to be extended to all cases within the mischiefs intended to be remedied, even if the words were not comprehensive enough in their strict literal sense to extend to them. But in this case I think the words are sufficient to include the case in the bringing any question; for, by the purview, statute applicable to the term of twenty years. In the construction of remedial statutes, the full extent is to be given to every word in the purview, in suppression of the mischief intended to be remedied, notwithstanding the title or the preamble be not equally extensive." a 1 Inst. 60 b. Lee v. Brown, 25. Lord Coke says, if by custom copyholds may be Surrender. entailed, the same by like custom, by surrender, may be cut off; and that it had been so adjudged. In case in 15 Ja. the Court of King's Bench held, that an entail of a copyhold could not be cut off by surrender, unless it were by special custom, and directed the jury to find accordingly. And it was said, that to maintain this custom, it ought to be shown that a formedon had been brought upon such a surrender, and judgment given that it did not lie: yet it was agreed that it was a strong proof of a custom, that they to whose use such surrenders had been made, had enjoyed the lands against the issue in tail. copy Upchurch, 26. In a case concerning lands held of the manor Hill v. of Northall in Essex, it was agreed, that where hold lands might be entailed, a custom that a surren- § 12. der should be a bar or discontinuance of such estate, was good. 27. It appears to have been settled in some modern cases, that a surrender by a tenant in tail of a copyhold will bar his issue, without a special custom, unless a special custom be found that a recovery is necessary. 28. A. being a copyholder, covenanted by marriage White v. articles to surrender to trustees, to the use of himself Thornburg, Prec. in Cha. for life, remainder to his wife for life, remainder to 425. the heirs male of his body, remainder to his own right heirs. A. died without having made any surrender, Gilb. R. 107. 2 Vern. 705. |