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fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay them more open to alienations; being well aware that power will al- [ 355 ] ways accompany property. But doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar (which they were expressly declared not to be by the statute De Donis), the statute 32 Hen. VIII., c. 36, was thereupon Statute of made, which removes all difficulties, by declaring that a fine Feres, 13 levied by any person of full age, to whom or to whose ances- c. 36. tors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail; unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestor, assigned to her in tail for her jointure ;o or unless it be of lands entailed by act of Parliament or letters patent, and whereof the reversion belongs to the crown.

From this view of the common law, regulated by these statutes, it appears that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.

The parties are either the cognizors or cognizees, and these Parties to a are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture." And, indeed, as this is almost the only act that a feme covert, or married woman, is permitted by law to do (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband''), it is, therefore, the usual and almost the only safe method, whereby she can join in the sale, settlement, or encumbrance of any estate.

Privies to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood, or other right of representation. Such as are the heirs general of the cognizor, the issue in tail, since the statute of Henry the Eighth, the vendee, the devisee, and all others who must make title by the persons who levied the fine. For the

• See statute 11 Hen. VII., c. 20.

Privies to a fine.

disseized by B., and then levied a fine sioned a forfeiture, of which the re-
to C., this fine, being inoperative upon mainder-man, reversioner, or lord might
the seizin, would have extinguished A.'s take advantage or not at his option.
right for the benefit of B.; but this may (Cr. El., 254; 8 East, 553.)
well be doubted after the modern cases.
(See, too, 12 East, 154, n.)

(14) A fine levied by a lunatic was
A fine also operated as a confirmation valid (at law, though in equity relief
of all prior defeasible estates and charges might have been had. (2 Vern., 678;
made by the cognizor, and when levied Toth., 101; 4 Rep., 124; 12 Rep., 124;
by a tenant for life, in tail after possibil- 1 Per. & D., 126.)
ity of issue extinct, or for years, or by a
copyholder, and not confined in its na- (15) Mr. Hargrave shows that this is
ture and operation to such estate as the not the true reason, ante, 351, note 7.
coguizor might lawfully pass, it occa-

a fine. Bar of

c. 16

act of the ancestor shall bind the heir, and the act of the prin[ 356 ] cipal his substitute, or such as claim under any conveyance

made by him subsequent to the fine so levied.p Strangers to Strangers to a fine are all other persons in the world, except

only parties and privies. And these are also bound by a fine, strangers by unless, within five years after proclamations made, they internon-claim.

pose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea; and persons who are thus incapacitated to prosecute their rights have five years allowed them to put in their claims after such impediments are removed." Persons, also, that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that

such right accrues.q"And if within that time they neglect to Stat. 4 Ann., claim, or (by the statute 4 Ann., c. 16) if they do not bring an

action to try the right within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the stat.

ute of non-claim. Fine void But, in order to make a fine of any avail at all, it is necesparties have sary that the parties should have some interest or estate in the

lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might, without any risk, defraud the owners by levying fines of their lands; for, if the attempt be discovered, they can be no sufferers, but must only remain in statu quo; whereas, if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner, if claimed in proper time. It is not, therefore, to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire,s the estate is forever barred by it. Yet where a stranger, whose presump

tion can not thus be punished, officiously interferes in an estate [ 357 ] which in nowise belongs to him, his fine is of no effect, and

nay at any time be set aside (unless by such as are parties or privies thereuntot) by pleading that “partes finis nihil habue

unless the

a freehold interest in

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(16) In the case of a married woman, which to prosecute her right. (4 Per. the husband was barred after five years & Dav., 285.) from the levying of the fine, and, consequently, the wife being unable to sue (17) And that even where their re. without him during the coverture, she version is expectant upon a mere term was bàrred for the remainder of the cov- of years, unless, indeed, the fine has been erture; but on that disability ceasing, levied by one who has ousted the terinshe had a new term of five years within or, and thus claims adversely to him. (9

Rep., 105, b; 4 Per. & D., 286.)

runt. And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea.u Wherefore, when a lessee for years is disposed to levy a fine, it is usual for him to make a feofsment first, to displace the estate of the reversioner, and create a new freehold by disseizin." And thus much for the conveyance or assurance by fine, which not only, like other conveyances, binds the grantor himself and his heirs, but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted

by law.”

recovery.

IV. The fourth species of assurance, by matter of record, is IV. Common a common recovery; concerning the original of which it was formerly observed,y that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain, and afterward encouraged by the finesse of 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 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.*

common re

1. And, first, the nature of it; or what a common recovery Ist. The nr 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 re-covery. u 5 Rep., 123. Hardr., 401.

y Pages 117, 271. * Hardr., 402. 2 Lev., 52.

(18) See 7 Scott, 59; 1 Cr. & J., 535. terminable upon the failure of the issue

of the person to whom the estate was (19) This tortious act of the termor granted in tail; upon which event the was a forfeiture of his term, which the remainder-man may enter. (2 Lord reversioner might have taken advantage Raym., 778; 3 Burr., 704; 7 T. R., 276; of (within five years) or not as he pleas- 8 T. R., 211.) If tenant in tail, with an ed. If he did not accept the forfeiture, immediate reversion in fee, levies a fine, the term subsisted for all purposes, and the base fee merges in the reversion, he had a new right at the expiration of and he thus gains a fee-simple, which the term; and in the mean time, if he will become liable to all the encumbrancould have procured the term to be ces of the ancestors from whom the esvested in a trustee for himself, might tate-tail descended; as judgments, recoghave used it for his defense against the nizances, and such leases as are void with disseizor. (1 Wms. Saund., 319; 4 Per. respect to the issue in tail. This has & Dav., 285.)

frequently happened in practice, from

such a person being ill advised to levy a (20) It is not necessary to be in pos- fine, instead of suffering a recovery. (5 session of the freehold in order to levy a T. R., 108; 1 Cru., 274.) A recovery fine; but if any one entitled to the in- suffered by any tenant in' tail lets in all heritance, or to a remainder in tail, lev- the encumbrances created by himself, ied a fine, it will bar his issue and all which were defeasible by the issue in heirs who derive their title through him. tail, and after the recovery they will fol(Hob., 333.) A fine by tenant in tail low the lands in the hands of a bona fide does not affect subsequent remainders, purchaser. (Pig., 120; 2 Cru., 287.) but it creates a base or qualified fee, de- (Christian.) * See ante, p. 348, n. *.

covered 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 ( 358 ] student who is not yet acquainted with the course of judicial

proceedings, which can not be thoroughly explained till treated of at large in the third book of these Commentaries. However, I shall endeavor 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 Edwards2 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. The subsequent proceedings are made up into a record or recovery roll,b in which the writ and com

plaint of the demandant are first recited; whereupon the tenSingle ant appears, and calls upon one Jacob Morland, who is supvoucher.

posed, 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 afterward 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, [359] who is now the recoveree; and Edwards has judgment to re

cover of Jacob Morland lands of equal value, in 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. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the crier of the court (who, from being frez See Appendix, No. V. a $ 1. 60 2. < Page 301

Double voucher.

quently 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 seizin 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 purchaser.

The recovery here described is with a single voucher only; but sometimes it is with double, treble, or further 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 Jeast; 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. 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 seized; 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. 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 recompense of equal value against Barker, the first vouchee, who recovers the like against Morland, the common vouchee, against whom such ideal re- [ 360 ] covery in value is always ultimately awarded.

This supposed recompense in value is the reason why the supposed issue in tail is held to be barred by a common recovery. For, from the if the recoveree should obtain a recompense in lands from the common 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.f 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,& 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 d See Appendix, page xviii.

[ Dr. & St., b. 1, dial. 26. • Bro. Abr., tit. Taile, 32. Plowd., 8. 6 Of Com. Recov., 13, 14.

vouchee.

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