recoveror. A 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 [*358] *with the course of judicial proceedings, which cannot be thoroughly explained, till treated of at large in the third book of these commentaries. However, 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.

Practice as to suffering recoveries.

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 præcipe 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 (y), 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 afterwards 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

(w) See Appendix, No. V.

(x) S. 1.

(y) S. 2.

lands in question against the tenant, Edwards, who is now the recoveree:* and Edwards has judgment to recover of [*359 ] Jacob Morland lands of equal value, in recompence 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 recompence, 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 recompence for the lands 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.

double voucher.

The recovery, here described, is with a single voucher Recovery with only; but sometimes 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 præcipe 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 Morland, 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 recompence of equal value against Barker the first vouchee; who recovers the like

(z) Pag. 301.

(a) See Appendix, pag. xviii.

(6) Br. Abr. tit. Taile, 32; Plowd. 8.

The reasoning upon which the doctrine of recoveries was for

founded.

against Morland, the common vouchee, against whom such ideal recovery in value is always ultimately awarded.

This supposed recompence in value is the reason why the issue in tail is held to be barred by a common recovery. merly said to be For, if the recoveree should obtain a recompence 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 recompence 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 hath 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 subsist for ever, the remainders or reversions expectant on the determination of such estate-tail can never take place.

They are now considered as a mere formal mode of conveyance.

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 stubborn statute de donis. The design, for which these contrivances were set on foot, was certainly laudable; the unriveting 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 [ *361 ] 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,

(c) Dr. & St. b. 1, Dial. 26.

(d) Of Com. Recov. 13, 14.

361

and rendered 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 a 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.

and effect.

2. The force and effect of common recoveries may appear, 2. Their force 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 (14). So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror, 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 or reversion of the crown.

And by the statute 11

The tenant to the præcipe

seised of the

freehold.

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 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 præcipe 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 præcipe, 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 must be actually tenant to the præcipe, 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 fabulæ 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 præcipe, 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 præcipe ;-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 tenant to the præcipe, and declare the uses of the recovery, shall, [ *363] *after a possession of twenty years, be sufficient evidence, on behalf of a purchasor for valuable consideration, that such

(f) Salk. 571. (g) Pigot, 28. (h) Pigot, 41, &c.; 4 Burr. 1. 115.