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1. Their nature.

the 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.

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. 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

bly established, that estates tail and all
remainders and reversions in such es-
tates (with an exception as to estates
tail granted by the crown, as a reward
for public services,) may be barred, by
going through the processes of fines and
recoveries, why should not the opera-
tion be simplified? Originally, subter-
fuge was necessary to conceal the de-
sign of making real property the sub-
ject of free commerce; that necessity
no longer exists. Why still employ the
language of technical (and therefore,
to unprofessional persons, obscure) fic-
tion, rather than that of plain truth,
which would be intelligible to the par-
ty upon whose property it was to oper-
ate?
The feigned actions in question,
when all the forms have been accurate-

ly observed, not unfrequently lead to consequences of a very deplorable kind: the instances are frequent in which a testator, by suffering a recovery after his will was made, (perhaps with the sole intention of rendering that will more effectual), has left those destitute whom he was bound in duty, and was most desirous, to provide for; but this result has followed as a necessary corollary of that doctrine by which a recoveror (a fictitious recoveror) is said to be in of a new estate, even though, in fact, he may only take the very same, in all respects, which he had before. The whole system, with all its intricate, cumbrous, and expensive machinery, requires new modelling.

I can; avoiding, as far as possible, all technical terms and phrases not hitherto interpreted.

suffering recoveries.

Let us, in the first place, suppose David Edwards (w) to Practice as 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 lands in question against the tenant, Edwards, who is now the recoveree: *and Edwards has judgment to recover of Ja- [359] cob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default;

(w) See Appendix, No. V.

(x) S. 1.

(y) S. 2.

Recovery with

double voucher.

which is agreeable to the doctrine of warranty mentioned in the preceding chapter (z). 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 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 feesimple, from Edwards, the tenant in tail, to Golding, the purchasor.

The recovery, here described, is with a single voucher 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

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

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 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 placet.

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

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The reasoning doctrine of recoveries was formerly said to be

upon which the

founded.

They are now considered as a mode of con

mere formal

veyance.

[ *361 ]

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 common-wealth: 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 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 possibily 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 (f) 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

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