The general doctrine was, that where the heir claimed, as heir, the lands warranted, he was bound by the warranty, in those cases only, where he inherited, from the ancestor, fee simple lands of equal value; but, where he claimed as purchaser, he was bound by the warranty, though no such lands descended upon him. This is the meaning of the maxim, that warranty, when lineal, is a bar with assets; and when collateral, is a bar without assets, to the right of the tenant in tail, on whom it devolved. By these artifices, the force of entails was eluded. In the progress of time, methods were discovered, by which the law allowed them to be absolutely destroyed. The first of these has received the name of a common recovery. In the language of the courts, a recovery is the effect of a sentence, in a solemn judgment,whereby the party is restored to a former right. In the particular language of our courts, when applied to judgments in adversary actions, it is the effect of a sentence, by which, in a suit instituted for the recovery of an estate claimed by the party, judgment is given him, that he shall recover it, according to his claim. In a suit of this nature, when really adversary, the judgment, whether given after defence, or upon default, equally bound the right to the land. Of this, tenants in tail availed themselves, to deliver their estates from the entails to which they were subject. They permitted the entailed lands to be recovered against them, on a fictitious process, but, with a secret confidence, reposed in the recoveror, that, after the recovery was completed, he should reconvey the lands to the party in fee simple; and in the mean time, permit him to take the profits of them. Another mode, by which the destruction of entails was allowed to be effected, was the application of the legal operation of fines. In the notion of our courts, a fine is a compromise, with the leave, and under the sanction of the court, of a real action, for the recovery of land. It is common to all courts of justice, to permit suits commenced in them, to be compromised, and to give their sanction to the compromise. In the civil law, and in the feudal law of other countries, this species of compromise is termed a transaction. The process itself, therefore, we have in common with them. But, it is peculiar to our law, to use it as a mode of eluding the restraints imposed by the law of the land on the alienation of real property. A writ is brought against the tenant in tail, by which the party suing out the writ, demands the lands, against the tenant, on his supposed previous agreement or covenant, to convey the land to him. The tenant is understood to be satisfied with the justice of the claim, and therefore applies for the license of the court, to make the matter up. This is granted. The parties thereupon enter into a concord or agreement.

By this, the tenant acknowledges the lands to be the right of the demandant. This acknowledgment, being made with the leave, and under the sanction, and entered on the records of the court, had the effect of a judgment. Of this process, tenants in tail availed themselves, to bar their estates tail, in the same manner they did of judgments: they procured a fictitious suit to be instituted against them, and settled it, by a fictitious compromise, in which they acknowledge the right to be in the demandant; with the same secret confidence reposed in him, that he should hold the estate in trust for them, and convey it according to their directions. Thus, through the medium of a collusive suit and judgment, which are now called a common recovery, in one instance, and of a collusive suit and compromise, which are now called a fine, in the other, entails were totally defeated. It is unnecessary, here, to trace the steps by which this has been effected. Common recoveries were originally a deceit upon courts of justice. When the sanction of the courts was first given them, it was done indirectly, with great caution, and some degree of artifice. It was not till the reign of Edward the 4th, that they obtained the unequivocal sanction of a solemn decision of a court: and it was a much later period, before their effects were recognized by the legislature of the country. The introduction of fines was effected in a much bolder manner. The statute de donis had said fines should be null; the statute of the 4 of Henry 7, or at least that of the 32 of Henry 8, said they should be valid. The different effects of a fine and a recovery do not fall within this inquiry. (Mr. Cruise's valuable treatises upon them are well known.) It seems sufficient to observe, generally, that a fine is binding on the issue in tail only; a recovery is binding both on the issue and those claiming in reversion or remainder. A still more summary and easy opening of entails has been granted by the legislature, in favour of the crown, by 33 Hen. 8, c. 39, in favour of the creditors of traders, by the 21 Jac. 1, c. 19, whereby the commissioners are authorized to sell the bankrupt's entailed lands; in favour of general creditors, by the acts for the relief of insolvent debtors; and in favour of charitable donations, by the 43 Eliz. c. 4.

VI. 9. The alienation hitherto spoken of, except that referred to in the last observation, has been confined to cases where it is the act of the party himself; and is, therefore, termed voluntary alienation. But in many cases, it is produced by the act of law against the party's own will. In these cases, it is termed INVOLUNTARY ALIENATION. Here its effects must be considered, with respect to the party himself, his heir, and the special prerogative of the king. In every instance the genius of the feud appears. With respect to the party himself, the tendency of the feud to secure to the lord the services of the tenant, and to take landed property from commerce, has been noticed. It was a consequence of those principles, that the party was not at liberty to subject either himself, or his lands, to the payment of his debts. When, therefore, at the common law, a person sued a recognizance, or judgment for debt, or damages, he could neither take the body, nor the lands of the debtor, except in some special instances, into execution. He could only take in execution his goods and chattels, and the profits of his lands. For those the law gave him the fieri facias, by which the sheriff was commanded to cause the sum, or debt recovered, to be made out of the goods and chattels of the debtor; and the levaria facias, by which the sheriff was ordered to seize the debtor's goods, and receive the rents and profits of his lands, till the creditor was satisfied. Thus, at the common law, neither the person nor the lands of the debtor could be attached for debt. But, by the 25th of Edw. 3d. c. 17, the body of the debtor was made liable, by a writ of capias ad satisfaciendum, to imprisonment, till the debt was satisfied; and the statute of Westminster 2. 13th Edw. 1st. ch. 18, granted the writ of elegit, by which the defendant's goods and chattels are delivered, to the creditor, at an appraised value; and if these are not sufficient, then the moiety or one-half of the freehold lands of the debtor, are delivered to the creditor, to be retained till the debt is levied, or the debtor's interest in the land is expired. Afterwards, under the statute de mercatoribus, 13 Edw. 1, the merchant might cause his debtor to appear before the mayor of London, or any of the other persons mentioned in the act, and there acknowledge his debt.