courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now therefore only to consider, first, the nature of a common recovery; and, secondly, its force and effect.

A

1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit or action, either actual or fictitious and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that its form and method will not be easily understood by the student who is not yet acquainted with the course of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of these commentaries. How- [358] ever I shall endeavour to state its nature and progress, as clearly and concisely as I can ; avoiding, as far as possible, all technical terms and phrases not hitherto interpreted.

Let us, in the first place, suppose David Edwards (w) to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a praecipe quod reddat, because those were its initial or most operative words, when the law proceedings were in Latin. In this writ the demandant Golding alleges that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. (x) The subsequent proceedings are made up into a record or recovery roll, (9) in which the writ and complaint of the demandant are first recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding the demandant desires leave of the court to imparl, or confer with the vouchee in private; which is (as usual) allowed him. And soon after

to avoid the fine. 1 Dowl. & R. 340. 5 B. & A. 687. Under a devise to trustees in fee to permit A. H. to receive the rents and profits for life, remainder to W. H. in tail, remainder to J. S. in fee, held that a fine with proclamations levied by W. H. to a stranger in the lifetime of A. H. was void, and cousequently the heir of J. S. was not barred by non-claim and want of entry. 5 M. & S. 326. A husband claiming in right of his wife, in order to avoid a fine, must enter within five years after his title accrues. S B. & A. 474. If a fine be levied by tenant for life, which turns the estate of the reversioner to a right of entry, who devises without entering, if the devise be of any effect, the devisee must enter within the same time within which the devisor, if living. or his heir must have entered. 1 Taunt. 578. He who would take the benefit of the second saving in the 4 Hen. VII. must, First, be other than a party or privy to the fine. Secondly, the right must first come to him. Thirdly, it must first come after the fine and proclamation. Fourthly, it must come by matter before the fine. Ib. See also 8 T. R. 516. If ejectment be brought before all the proclamations have been made, under 4 Hen. VII. c. 24. it is not necessary to prove an actual entry to avoid the fine, considering it to operate only as a fine at common law; but by defendant's confession of lease entry and ouster, the merits only of the lessor's title are put in issue. 9 East, R. 17. In case of a fine of the whole, by one of two tenants in common; actual entry is not necessary to avoid it. 1 B. & A. 87. 1 N. R. 1. Chitty.

wards the demandant, Golding, returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree: and Edwards has judgment to recover of Jacob Morland lands of equal value, in [359] recompense for the lands so warranted by him, and now lost by his

default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter. (2) This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the cryer of the court (who, from being frequently thus vouched, is called the common vouchee), it is plain that Edwards has only a nominal recompense for the land so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchasor.

some

The recovery, here described, is with a single voucher only; but times it is with double, treble, or farther voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee. (a) For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised; whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. (b) If Edwards therefore be tenant of the freehold in possession. and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Moreland the common vouchee; who is always the last person vouched, and always makes default whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded.

[360] This supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For if the recoveree should obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing), these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail. (c) This reason will also hold with equal force, as to most remainder-men and reversioners; to whom the possibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to: but it will not always hold: and therefore, as Pigot says, (d) the judges have been even astuti, in inventing other reasons to maintain the authority of recoveries. And, in particular, it has been said, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred: and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs and assigns: and, as the estate-tail so continues to

Z pag. 301.

A See Appendix, pag. xviii. c Dr. & St. b. 1. dial. 26.

b Bro. Abr. tit. Taile, 82. Plowd. 2.

d Of com. recov. 13, 14.

subsist for ever, the remainders or reversions expectant on the determination of such an estate-tail can never take place.

:

22

To such awkward shifts, such subtile refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that subborn statute de donis. The design for which these contrivances were set on foot, was certainly laudable; the unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth but, while we applaud the end, we cannot but admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But, since the ill consequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent; it hath often been wished, that the process of this conveyance was shortened, and ren- [361] dered less subject to niceties, by either totally repealing the statute de donis; which, perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations or by vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term time, and enrolled in some court of record: which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, and the decisions of our own courts of justice, which allow a tenant in tail (without fine or recovery) to appoint his estate to any charitable use, (e) but also by the precedent of the statute (ƒ) 21 Jac. I. c. 19., which, in case of the bankrupt tenant in tail, empowers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers, concerned in passing recoveries, are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrolment.

2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoverer, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But by statute 34 & 35 Hen. VIII. c. 20., no recovery had against tenant in tail, of the king's gift, whereof the remainder or reversion is in the king, shall bar such estate-tail, or the remainder [362] or reversion of the crown. And by the statute 11 Hen. VII. c. 20. no woman, after her husband's death, shall suffer a recovery of lands settled on her by her husband, or settled on her husband and her by any of

(22) (hief justice Willes has declared that "Mr Pigot has confounded himself and every bo dy else who reads his book, by endeavouring to give reasons for and explain common recoveries. I only say this," he adds, "to shew that when men attempt to give reasons for common recoveries, they run into absurdities, and the whole of what they say is unintelligible jargon and learned nonsense. They have been in use some hundreds of years, have gained ground by time, and we must now take them, as they really are, common assurances." I Wils. 73. Christian.

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his ancestors. And by statute 14 Eliz. c. 8. no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery; either he, or the tenant to the praecipe by him made, must vouch the remainder-man in tail, otherwise the recovery is void: but if he does vouch such remainder-man, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had against the tenant to the praecipe, it is as effectual to bar the estate-tail as if he himself were the recoveree. (ƒ)

In all recoveries it is necessary that the recoveree, or tenant to the praecipe, as he is usually called, be actually seised of the freehold, else the recovery is void. (g) For all actions, to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold cannot be recovered of him who has it not. And though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulae, properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the provisions of the statute 14 Geo. II. c. 20. which enacts, with a retrospect and conformity to the ancient rule of law, (h) that, though the legal freehold be vested in lessees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to the praecipe ; -that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet, if it be in the same term, the recovery shall be valid in law;—and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a te

nant to the praecipe, and declare the uses of the recovery, shall af[363] ter a possession of twenty years be sufficient evidence, on behalf of a purchasor for valuable consideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurance by matter of record. *

f Salk 571.

g Pigot, 28.

b Pigot, 41, c. 4 Burr. I. 115.

(23) But the act does not prevent her levying a fine jointly with her husband, or after his death with the consent of the remainder-man, such consent appearing on record, or by deed enrolled. Cro. Jac. 474. Cruise on Recov. 160. Archbold.

(24) If a tenant in tail, to whom the estate has descended ex parte materna, suffer a recovery, and declare the uses to himself in fee, the estate will descend to an heir on the part of the mo ther, even if he had the reversion in fee from his father, and vice versa; but if he took the estate-tail by purchase, the new fee will descend to the heirs general. 5 T. R. 104. If then a person, who has inherited an estate-tail from his mother, wish to cut off the entail, and to make the estate descendible to his heirs on the part of the father, after the recovery he ought to make a common conveyance to trustees, and to have the estate reconveyed back by them, by which means he will take the estate by purchase, which will then descend to his heirs general-Mr. Christian's note.

(25) It is proposed in this miscellaneous note to state the more recent decisions on recoveries. When and How recoveries are passed.-The exemplification of a recovery is in the nature of a record, and cannot be impeached on the ground of defects, or supposed marks of fraud in the deed, not noticed in the exemplification; and would be good although the latter were not in existence. 3 Dowl. & R. 499. The court of common pleas permitted a recovery to pass, although alterations had been made in the caption of the warrant of attorney, the affidavit of the acknowledgment, and the notarial certificate. 1 Bingb. 72. So, though the words "their attorney" were omitted in the warrant of attorney given by two vouchees. 1 Bingh. 212. So, where the words" to gain or lose" were omitted in the warrant of attorney. 8 Taunt. 164. But not where, instead of having prefixed to it, the praecipe, "command C. D. gent." &c. it began, "A. B. gent. demands against C. D." &c. nor would the court allow the warrant of attorney to be amended. 8 Taunt. 167. And where the dedimus described the vouchee (who was the son of a peer) as a commoner, (" George Harry Grey, Esq.") and he had signed the acknowledgment as

Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the use of fines, and of recoveries. 26 For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them. (i) And if a consideration appears, yet as the most usual fine, "sur cognizance de droit come ceo, &c." conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements (wherein a variety of uses and designations is very often expedient), unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements in the vast and intricate machine of a voluminous family settlement. And if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As if a tenant in tail, with reversion to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee; that is what by law he has no power of doing effectually, while his own estate-tail is in being. He therefore usually, after making the settlement proposed, covenants to levy a fine (or if there be

i Dyer. 18.

a peer ("Grey"), the court refused to allow the tenant's appearance to be recorded, except conditionally, that the counsel should keep the papers in his hands till the vouchee returned from abroad, when the acknowledgment might be taken anew. 2 Bing. 313. An affidavit of a commissioner, that the wife of a vouchee was examined separately from her husband, cannot be received or filed, if it was not made at the time the acknowledgment was taken. 4 Moore, 113. A recovery may pass, as of Easter term, the premises being in Northumberland, and the documents not reaching town till the day after that term; though the proceedings went on in Trinity, and reached the cursitor's office in Michaelmas term following. 8 T. R. 75.

As to Amendments.-The word island, to colony, by some persons at Demarara, allowed to pass. 7 Moore, 372. The writ of summons allowed to be altered as to the return upon affidavit, shewing several vouchees resident in different counties, one of whom, through illness, was unable to sign it till after the first return day, ibid. 269.; but court refused to permit an advowson to be inserted in a recovery suffered 70 years ago without an affidavit, shewing how the presentations had gone on since. Ibid. 268. 4 Taunt. 257. The attorney must pay the costs of amendments necessary from his negligence. 4 Moore, 171. An amendment by altering the parish was refused, or elsewhere" being omitted, and nothing in the deed by which it could be made, although there was strong evidence to shew that the lands lay in the parish proposed to be inserted. 1 Bing. 425. See also as to amendments in the warrant of attorney, 1 Bing. 343. As to the Parish or Place, 2 Bing. 93. 1 Moore, 95. 2 Moore, 237. 6 Moore, 259. 8 Taunt. 86. 191. 262. 244. 3 Moore, 326. In the Description, 7 Moore, 257. 1 Bing. 317. 8 Taunt. 683. 2 Moore, 299. 4 ib. 49. 2 B. & P. 560. As to the Name of the party or premises, 8 Taunt. 27. 556. 1 Bing. 22. 6 Moore, 46. 53. 224. 5 Moore, 474. 98. 3 ib. 673. 2 Bro. & B. 98. In Writ of Entry, 4 Moore, 514. 8 Taunt. 197. And generally the court will make any amendment necessary to effectuate the original intention of the several parties, upon consent of all the parties.

Acknowledgments taken Abroad. See the same title in note 20. ante 357. They must be on parchment, although by the law of that country the certificate of a Dutch notary requires a Dutch stamp, which can only be imprinted on paper. 4 Moore, 481. 2 Bro. & B. 65. See 6 Moore, 69. Where the demandant died before the return of the writ of seisin, and the acknowledgment was taken at the Cape of Good Hope in June 1817, and the dedimus was tested in January preceding, the court refused to make the writ of entry returnable in one month from Easter-day 1817, or the writ of summons in three weeks from the day of the Holy Trinity following, or the tenant's appearance to be recorded as of the Trinity Term, and the recovery to pass as of that 8 Taunt. 104. The dates of the day and month being omitted in the endorsement of the commissioner's affidavit, but the notary had put it at the end of the certificate, being the same as that on the affidavit; held that the recovery might pass. 4 Moore, 348. 2 Bro. & B. 7. S. C Affidavit of the acknowledgment may be made before the British consul, if no notary or British magistrate resides within a reasonable distance. 4 Taunt. 275. Chitty

term.

(26) See in general, 1 Prest. on Conv. 319. as to the distinction between deeds to lead deeds to declare, uses; and in general, 2 Prest. Conv 1 to 123