T in39 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY BOOKS lately PrinteJ and Sold h J. Shuck BURGH, at the Sun near the Inner Temple Gate^ Fleet-flreet. ANEW Abridgment of the Law, 2 Vols. A General Abridgment of Cafes in Equity, Wood's Inftitutes of the Common Law. Tlie Common Law Common-plac'd. The Statute Law Common-plac'd. Coki\ Reports in Etigl'ifh, 7 Vols. Chancery Pradices, 2 Vols. All the Rules and Orders of the Courts of King's Bench and Common Pleas. Les Macatoria. Harvey s Eiiglifh Precedents for Juftices. A Supplement to the Attorney's Pocket Com- panion, in which is a Treatife of Fiues and Re- loveriis. Hawkins's Pleas of the Crown, with great Ad- ditions. Law of Evidence. An iffay to afcertain the Value of Leafes, and Annuities for Years and Lives. By Wey" )nan Lee^ Efq^ Scrivener's Guide, 2 Vols, with large Addi; tions. ^J^J^^^^^^^^ TREATISE O F Common Recoveries^ THEIR NATURE and USE. To which is added The CASE of ^age and j^apiDato more fully Reported than in any other Book extant : A K D ALSO A C A S E between the late Earl of E)erljp and the Coheirs of his Elder Brother. WITH lS)2ecetJentiS for Amending EccoUctic^ : And a Complete TiVBLE to the Whole. By N, P I G o T T , Efq^ late a Barrifter of the Inner 'Temple. Non m'lh'i Soli Laborav'i, fed omnibus Exquirentibus Scientiam, In the SAVOY: Printed by E. and R. NUTT, and R. GOSLING, (Afligns of E. Sayer^ Efq;) for 3^. S)l)UCbbMr5l), at the Sun near the Inner Temple Gate in Fleet-ftreet. M DCC XXXIX. T n39 CO in TREATISE O F Common Recoveries. CAPUT I. C>f tijc €)?(3in, Mature anti Wt of Coinnxon asecoi^enes* A Common Recovery is a certain Definition of Form or Courfe allow'd by Law Rewvcry.'^ to be obferved for the better Af- fnrance of Lands, and generally ufed for the barring Eftates Tail, Remainders and ReverEons. I cannot fay this is B an 7L>6G70 t %%tmi\lt of Common aaccoi^cries. an exaft logical Definition, but rather a Defcription, as all legal Definitions are, for omnis definitio in Lege per iciilofa. Common Recoveries being now ge- nerally iifed to bar hftates Tail, it may not be amifs to look into the Origin of Eiiates Tail, which our Anceftors have been fo fond of, and which by Expe- rience, have been found to have created many Inconveniencies to the Common- wealth. The Origin of UttUton tcUs US, that an Eftate Tail Lftates Tail, -^ • i n i • isalimittd Eiiate, wherem the Donor in his Gift expreffes what Sort of Heirs fhall inherit ; fo the Law co-operating with the Donor's Intention, makes the Eftate Tail. Thefe Eftates are not, by this Name, found in any antient Wri- ters ; for the Law of the twelve Ta- bles m^akes no Mention of them, yet that Lav/ calls the Agnati to inherit; and in the Media Juris-prudentia there were Inftitutions and Subftitutions like our Remainders ; ai^-ltbc Qivil Law ^^- ^ ■ ■ had Z XUiititt of Common ^mUtitS. -j had a greater Regard to the Male than Female Line, till the Emperor Jitfllnian^ in his Novels, put both on an equal Footing. The JerviJJj Law, which is the moft antient written Law, takes no Notice of thefe Sort of Eiiatcs : Lideed, the Daughter of Zetophe had, on the Fai- lure of Iffue Male of their Family, claimed the Inheritance, which fhews, as long as there were Sons, the Daugh- ters did not inherit ; but the Succeflion among the Jews was generally the fame as the antient Romans, It is therefore to be inquired, if thefe Eftates Tail had not their Origin from the Feodal Law : And it is probable they had ; fmce that Law admits no Female Suc- ceflion, I mean in its Purity, before the Feodum Feminium was introduced ; and by that Law, as ufed in England, the eldeft Son took the Eftate, and it al- ways went according to the Tenor of the Inveftiture or Grant, which is the B 2 very ^7 4, Z Xtcrttifc of ConmionJSecotirrics* very feme as our Ellates Tail, where the Voluntas Donationls, is the Rule and Meafure of the Eftate ; and as the Conqueror introduced Military Services into this Kingdom, which arofe from the Feodal Law which was in Ufe in Normancfyy long before the Conqueft ; fo this infenfibly carried the Eftate to the eldeft Son, and occaiioned the Statute of Entails : For before the Con- queft, by the Britiflj Law, all the Soas inherited, and fo was the Law in Wales in Edward the Firft's Time. Nam all^ ter ufitatum efl in Wallia quam in Ang- lia quoad Succejjlonem hereditatis^ eo quod her edit as in Wallia partibilis jit int' he- redes Mafculos : And my Lord Hale is of Opinion, that till King Johns I'ime, the hereditary Succellion to the eldeft Son^ was not fettled. But this muft be underftood of Socage Land , for from the Conqueror's Time, the Fee- dal Tenures of Knights-Service were ia- troduced; and there the ildeft Son in- herited ^ Z Xuatitt of Conimon JRecoi^cries* ^ herited ; and this held till the Sfetutc De DoniSy when the Lords and great Men being fond of perpetuating their Names, and handing down their Eftatcs to their Families, by that Statute, crea- ted thefe Eftates Tail. At Common L'lw all Eflates were Fee-fimple, Abfolute or Conditional, which created a wonderful Qiiiet and Repofe to the Publick ; but when this Family-Law was introduced, and thefe fetter'd Inheritances ettablilh'd, it is not to be imagined what Suits, Trou- bles and Difputes they created ; as in- deed it always happens wdien the Grounds of the anticnc Common Law of this Kingdom are alter'd. And th^ Reafon is obvious, for the Common Law cf England haviiig its Force from immemorial Cullom; and, as my Lord Coke obferves, being refined by the Ex- perience of many Ages, its Goodncfs is found by its Ufej but when this ex- cellent Conftitution is alter'd by a pc- ficive Z Xtrntitt of Common ^ttGbttitS, fitive Law, though the Change has a gay Outficic, yet Time ftiews the Ii> conveniencies of the Alteration ; and the Legillature having only a prefent Conveniency in View, the new Law, when ufed, manifefts that what was in- tended profitable, proves often Deftruc- tive, and fo it fell out in making the Statute of Donis, which created Eftates Tail, turning all thofe Eftates which were Fee-fimple at Common Law, into thofe Curtaifd Eftates, which being of an amphibious Nature, and participa- ting fo much of a Fee as to be Inheri- tances, and yet Tenant in Tail in fome Refpefls, having only an Eftate for Life, this odd Mixture created infinite Difficulties, not forefeen, but experi- mentally found to be very troublefome to the QLiiet of the State. Thefe Eftates being thus made by the Statute of Wejlminfter the 2d, had va- rious Fates, every Age looking on them with a different Afpefl. 5 Ed, 3, 14. 2 ^ They :^ Xttatitt of Couuiiou MttoUtits. 7 They were by Herle faid to be fage Gen- tlemen that made this Afl: ; and tho' the Statute De modo Icvandi Fines, was a moft excellent Law, yet the Statute of Vyjjlm. 2. having provided (^wd Finis ipjo 'Jure fit nullus, the Judges con- itrued a Fine levied by Tenant in Tail, a Difcontinuance, but no Bar ; fo that for 2 CO Years thefe Eftates were fa- vour'd ; and the Nobility being always fond of this Afl, by Reafon it prefer- ved their Eilates for their Family againft Forfeitures, even of Felony and Trea- fon, there was no Hopes of getting it repealed by the Legiflature ; and there- fore the Judges were forced to ufe their Art by Conftruflion, to avoid this A6!:, and remedy the intollerable Inconve- niencies introduced by it. Fide Moore 1 56". It IS true, prcctoris efl Jus dicere non Condere, and this altering the Law, and evading the Statute of Weflm. 2. feems to be a taking away the Force of a po- fitive i ^ XUiXtift of Conimott JJccoteticS* liclve Law without the Legiflative Power; but Ufe and Cuitom have given Com- //r^- mon Recoveries a Sanation, iHft^' the Judges will not now let them be Iha- ken or reflefled on. The Origin of 'pj^^ Oii^in of Coinmon Recoveries, Common Re- c> ^ ^ ^ ' Lo^cries. and the Occauon oi introducing them has been much controverted among the Learned ; and fome are of Opinion that Edrv. 4. feeing the great Effufion of Blood in the unhappy Difputes be- tween the Houfes of T'ork and Lancafler ; and finding, that tho' he ufed the Extre- mity of Law agalnft the oppoiite Par- ty, by attainting them of High Trea- fon, yet their f dates were proteSed in the Sanfluary of Entails, and the Son who fucceeded the Father, gene- rally inherited his Principles and Party as well as Ellate. To remedy this, and to give People an Opportunity to Dock their Eftates, this wife Prince brought Taharitm\ Cafe on the Stage, in the twelfth Year of his Reign, as King I James Z Xteatife of Conunon 3XtcohtxitS, sf James I. did Calvin s Cafe, and King — ^ James II. Edward Hale's Cife, where the judicial Decilion was made Auxiha- ry to the Police, However it wa?, it: muft be owned Tahartms Cafe was cunningly managed, for Prima Facie, that feems to be an adverfe Judgment, and the Opinion of the Court was for the Ifllie in Tail, againft the Recovery. The Cafe was this, Tenant in Tail Ge- neral, makes a Feoffment in Fee, and takes back an Eftate to him and his Wife, and the Heirs of their Bodies, and the Wife dies, a Precipe is brought agamfl: Tenant in Tail, and he vouches the Common Vouchee, and held that Eftate Tail was not barred , becaufe Tenant in Tail was feized of another Eftate, and the Recovery in Value, The Recovery which is theReafon of barring the liTue, which i" 'he goes according to the Eftate vvhereof fi,'g°'ie°ifT^; the Tenant was feized at the Time q^ ?>o^]^ccordu^l ro the Eftate the Recovery, and not in Recompence Tenant in t;ui of the Eftate he had not, fo that here of!' ^° ' ^ C Tenant lo Z Hvcatifc of Coinnion HccoDmrs. Tenant in Tail being in of a Special Eflate Tail, the firft Eftare Tail was not barred. But by what was fail by the Bench in thisCaie, it appears, the Judges were of Opinion, that if in this Cafe Tenant in Tail had come in as Vou- chee, he had then come in of all E- ilates he ever had, though difcontinued and turned to a Right ; fo that from this Gdfe, 12 Edn\ 4. 14, 19. moftdats the ^ra of Common Recoveries. But it feems to others that they are of far greater Antiquity ; for when the Judges law the ill Confequences thefe fetter'd Ertates introduced, and that they Icok'd towards a Perpetuity, they always en- deavoured to leflen their Authoricy. And ray Lord Coke in Mary Poningtons Cafe, 10 R. I'. 6. cites feveral Cafes that from Edn\ III.'s Time the Judges were of Opinion that a Common Re- Fcr r!ieR^^ coverj was a good Ear to an Efiate Tail. ;''^''' '^ And the Rife of them feems to be from •-*^'5-3- Oftavian Lombard'^ Gale, 44 £. 5. 21. ------ ' The Z Xrratifr of Coniuiou Utcobrrirs. The Cafe "^'^s^Ocl avian Lombard brought a Replevin for taking his Cattle, tha Defendant avows, tor that one Xicho' hts was feized in Tail, and had lUue J'jhn and Joan) Nicholas dies, John being then beyond Sea, Joan iheDaughrer en- ters, and has hlue Xicholas. who enters; jfohn the Sen returns from beyond Sea, and flies for the Land, and on an A- greement, releafes to Xicbolas, and for this Releafe Xicholas grants him icl, a Year, with a Claufe of Diflrefs, and for Rent Arrear avows on the Land charged, then in the Hands ot the liiuo of- Xicholas. and the Diitreii heid gccd. Now the Gift of this Cafe is, Tenant in Tail pro Lite redime^da, grants to one that had a prior Right to the Efiatc a Rent-charge, in Conf deration of a Keleaie of his Right, this being for the Benefit of the IlTue, held he could not avoid ir. From this Ground it fcems Common Recoveries had their Origin ; for the LTue in all Common Recoveries C 2 is IX 12, Z XttatiU of Coininon 3^tmUxits. is fuppofed to have a Recompence in Value for the Eftate loft, and this Re- compence in Value is the Reafon of his being barred. T. 'j Edrv. 4. 19. PL 25. Indeed it may be reafonably objected that this ^ is all Siippofal, fince it is no- torious that in Reality, the Iffue on a Common Recovery has no Recompence, and this is all a Fiflion of Law. That is true, but in Fiviione Jure fubfiflit £- quhas ; and all Laws have their Fic- tions, and all groundtd on Reafon. How- ever, it mult be owned, that this occa- jQoned very hard Cenfures on Common Recoveries by the Learned ; fee Sir Tho* mas Craigg^^ De Feodis \6i» fays, Et li' cet ex Jure Anglorum provideri in Feodo Taliato pojit^ ne in fraudem h^eredum qui in Tailio fuccedere deberet^ Alienatio fiat, qui tamen in foro -verfantur, callidis ar- tibus mentemLegis Jubvertunt, ilf exIHicig} licitum 'per ambages faciunt^ dum quod Vaff alius alienare non potejt^ propter Con* ditioncm in feodo TaUiato exprejfant^ id ei COlIU' Z Xuatitt of Common MttoUtits^ 1 3 colludenti five Conjentientiy fimulatm con- tradi^or ( Revera autem Feodi Emptor ) ex tacito confenjii Judicio Feodum evinclt^ nil Recuperationem vocant. But let the Opinions of others be what they will of Common Recoveries, the Pubhck has found the Benefit of them, and being now Common A ffu ranees, the Judges, (as ray Lord Hohart on another Occafion fays) are even Aftiiti in fup- porting them and inventing Reafons to maintain their iiuthority. Hence it is, that for fev^eral Centuries the fole Rea* fon given for Common Recoveries was the Recompence in Value the Illue had, or by PoHibility might have. But in Procefs of Time it happen'd that there were many Cafes wherein the Ifliie or Party barred, could have no Poilibility ■of Recompence ; as if there be Te- nant in Tail, Remainder for Years ; if Tenant in Tail fuiters a Recovery, the Remainder is barr'd, tho' no Recom- pence in Value can extend to a Term which 1 4 ^ XxtiXtiit of Coinuion ^SittoUtitS. which is but a Chattel. So if a Feme Covert and her HullDand are vouched, fhe is barr'd, tho' the Recompence ex- tends not to her ; fo contingent Eftates are barr\l without a Recompence. And therefore the Judges have been of O- pinion, that the Recompence in Va- lue is indeed the true Reafon for bar- ring the lllue in Tail, but no Reafon for barring the Reveifion or Remainder; but the Reafon why they are barred is, that the Recoveror is by Suppofition of Law, in of the Rftate Tail, and that Eftate Tail, by like Suppofition of Law, continues for ever*. And at Common Law the Donee pofl prole m jiijchatam might have alien'd and have barr'd the Donor ; fo thefe Common Recoveries were Conveyances excepted out of the Statute of Bonis ^ and is a Privilege in- herent, and annexed to the Eftate Tail, and not taken away by that Statute. And ttie Recoveror being in of the E- dtate the Donee had, and the Eftate Tail Z Xttatiit of Comniott 3Sitcohnits. 1 5 Tail continuing in Judgment of Law, he in Remainder is fo barr'd that no Charge by him can ever take Place. There is another ObjeSion made againil Common Recoveries, which is, that when the Tenant appears and vou- ches to Warranty, that it is notorious here was never any Warranty among them, it being all a Fi£lion and Inven- tion to bar the Entail, But as to this it muft be obferved, that whenever I'e- nant in Tail is vouched, he comes in of the fame Poffeffion he had before, and to warrant this Poffeffion ; for when a Man is vouched to warrant, and enters into Warranty, the Law prefumes he parted with the firfl: Poffeffion with Warranty, and comes now to warrant it, purfuant to this Warranty ; and that if it were otherwife, he would not enter into the Warranty, but counter- plead it, and demand the Lien or Ground on which the Tenant founds his Warranty ; but if without deman- I dins 15 The Nature aiid Ufe of Common Re^ coyeries. Z Xuatitt of Common laccoi^etics* ding the Lien he enters into Warranty, none can fay he never warranted ; for the Tenant cannot iay the Vouchee ne- ver gave him a Warranty, becaufe the Vouchee has entred into Warranty ; and the Vouchee cannot fay he never war- ranted, becaufe his entring into War- ranty is an Eftople by Record, which binds him and his Heirs : So none privy to the Record can deny it, nor can any Stranger gain-fay it, becaufe the Law will always preiiime, when any one en- ters into \Varranty, that there was a Warranty by Feoffment or Grant of fuch an Eftate as he who is vouched had before ; and this is Prefumptio Jn* ris, and grounded on Reafon ; for being to the Vouchee's Prejudice, and he binding himfelf to render the Value of the Land in Demand, the Law will - not prefume he would thus Prejudice himfelf, unlefs he had warranted. The Objeflions again ft Common Re- coveries being cleared, we are now to 2 conlider :^ Tttatitt of Contmon ^ttohttits. 1 7 confider their Nature and Ufe. As to their Nature, they are in many Things like Recoveries on Title, and for this Reafon in every Common Recovery there muft be a Demandant and Tenant, and the Tenant being, as has been faid be- fore, prefumed to have aWarranty, calls in his Warrantor, who is Vouchee, and he vouches over the Common Vouchee, and Judgments are given juft as in ad- verfary Suits, wherein there is aVouchen And the Land being recovered by him that brought the Writ, the Tenant is left to his Remedy over, againft him that made Default, and came not according to his Warranty to defend the Tenant, and fo has Judgment over, againfl him to recover in Value, and by this Means the Eftate Tail, that was made by the Tenant or his Anceftors, is barred ; for that it is pretended he had now no Power to intail the Land whereunto he had no juft Title, as now appears by the Recovery, the Land being evifted D and 1 8 :^ xtmiit of €Qmmm Mttmtits^ and recovered from him. And though thus far Common Recoveries agree with Recoveries on Title, yet in other Things they differ ; for a Recovery on a Title cannot be to an Ufe ; but a Common Recovery being a Common AlTurance, is always either to the Ufes declared, or to the Ufes the Land was before. There is likewife a Difference between a Recovery and a Fine ; for a Fine proves a Right in him that levies it, but a Common Recovery difapproves and difaffirms all Title of him againft whom it is had, Popham 23, and this fo ftrongly, that if there be three or four Difcents call after the Recovery fuffered, the Recoveror may enter, for the Recovery binds the Blood, and dif- approves the Title. 6 Edw. 4. 1 1. Be- fore 32 J/. 8. cap, 31. Common Re- coveries had fo llrong an Operation, that if a Fr^ccipe had been brought a- gainft Tenant for Life, and Recovery fuffered, it had bound thofe in Re- 1 mainder f :k Xtmift of Coninion MmUtits. 1 9 mainder ; fo if after the Stat. 3 2 H". 8. and before the Stat. 14 El/^. Tenant for Life had let for Years to one who made a Feoffment, and a Precipe had been brought againft the Feoffee, and he had vouched Tenant for Life, tliis had bound the Remainder ; but the Stat. 14 £//^. cap. 8. helps it. 10 i?. 43. 3 Cro. 562. Moore PL ^^>^, Coke's Entr. Pl.^. It muft not be omitted that feveral Statutes, as well as 32/:/. 8. and 1 4 EL have call'd thefe Common Recoveries Feigned Recoveries, and feemed to caft a Refleflion on them ; but that in Rca- hty was only a Refleflion upon the A- bnfe of Common Recoveries. But on the other Hand, 7 H. 8. c. 4. allows them, and enafts, Recoverors may avow without Attornment. 10 i^. 37, 38. Dr, and Student 88. which lliews they were lawful; for it is not to be pre- fumed the Legifliture would give any D z Coun- 20 :k Xtmtilt of Common ^B^tttibttits* Countenance or Remedy to Things il- legal. As to the Ufe of Common Recove- ries, they were invented and are ufed to bar Eftates Tail and Remainders, and Reveificns expeflant on them, and to reduce all Eftates to that Purity and Condition they were in at Common Law% and to avoid, as much as may be, the Inconveniencies the Statutes of Donis brought into the Common- wealth, fince without thefe Recoveries, as my Lord Coke obferves, Tenant in T ail can make no Jointure for a Wife, Provilion for his Children, or Payment of his Debts. The Origin, Nature and Ufe of Common Recoveries being fhewn, I lliall here Recapitulate fome Obferva- tlons made before, and fet forth what Cafes occur in the Books in this Mat- ter. Firft, a Common Recovery, by Te- / nant in Tail, bars the Eftate Tail, and all Z Xtmik of Common Wittabttits^ z i all Remainders and Reverlions thereon €xpeflant; for at Common Law, that which is now an Eilate Tail being a Conditional Fee, no Remainder could be after a Conditional Fee ; for a Fee, by the Rules of Law, cannot mount on a Fee. Now, though the Statute of Bonis turns this Conditional Fee into an Eftate Tail, yet a Recovery, as has been obferved before, was an inhe- rent Privilege not taken away by thaC Statute 5 and it is a Conveyance excep- ted out of that Statute by Conftruftion of Law ; and for this Reafon, he who shore 377. comes in under Tenant in Tail, is liable to all his Charges ; for the Recoveror comes in, in Continuance of the Eftate Tail, for the Recovery inlarges the Eftate Tail, which, by Suppolition of Law, has a perpetual Continuance; 2 Leih 29. I Mod, I 10, III. Sid. 2850 5 Keb. 289. And this is the true Rea- ion why the Remainders and Reverlions .are barred ; but the Reafon why the z Iffue 22 :^ Xxtatiit of Contntott Becoijctics;. IlTue is barr'd by a Common Recovery, is the intended Rccompence, 2 Lev. 30. und this Recompence is regarded in Law, and though in Reality there is none, yet the Law fuppofes a Recom- pence, and for this Realon the Iffue is never barr'd without a Recompence or a PoiTibihty of one ; for which Reafon if Tenant in Tail makes a Feoftment in Fee, and a Precipe is brought againfl: the Feoffee, who vouches Tenant in Tail, and he vouches the Common Vouchee, this bars the Eftate Tail, be- caufe Tenant in Tail coming in as Vou- chee, he (hall be in the Degree of Te- nant in Tail, and the Recompence in Value he has, or by Poffibility may have, goes to the Eftate Tail, and when he comes in as Vouchee, he comes in of all Eftates he ever had. Rut if in this Cafe, if Feoffee had re-enfeoffed Tenant in Tail, and the Pt^iccipe had been brought againft Tenant in Tall, and he had vouched the Common Vou- chee, :^ Xreatifc of Conunott Uttohttits. 2 5 chee, there Tenant in Tall not being feized cf the Eftate Tall, but of an- other Eflate, there the Iffue is not barr'd, becaufe the Recovery in Value goes according to the Eftate whereof he was feized, and in Pofieffion at the Time of the Recovery, and not in Re- compence of the Eftate he had not ; it ^^^^' • ^^^ e-^- is true, as has been faid before, the hoL 'z5. Vouchee in the firft Cafe may demand the Lien, and then Ihall only be barr'd of that Eftate to which the Warranty is annex'd; for the Recompence goes according to the Lien, but when Te- nant in Tail comes in as Vouchee, and demands not the Lien, then he comes in of all Eftates he ever had. Plorp, Max- rtpell's Cafe, 8. 14. And this Rule of the Recompence in Value is fo true, that when the Iffue has no Recompence, he is not barr'd ; as if there be a Re- covery againft Tenant in Tail and no Voucher, as by Default, and Tenant in Tail dies, the Iffue is remitted, but if i 4 ^ Xtutiit Of Coniiiion Sitcoijetie^. if he had vouched over, there had been no Remitter, becaufe he has, or may have A {lets, and if he fliould fallify, he would have the Eftale Tail and At fets alfo : And it is a known Rule, that the Ifllie in Tail never can defeat any A61 but what is to his Advantage ; and if the Iffue has Aflet?, or a Poffibility of Afiets, it is fufficient, and the Re- covery in Value goes to him that lofes the Tenancy, and Formedon lies for the Affets, and he has fuch Ellate in the Affets as he loft, Flon^, 514. a. And there is a very good Cafe to this Pur* pofe 17 Edrp, 2. 545, J* Chamber'* laines Cafe, which was this, Aflize of Novel DilTeizip by B, againft A, and jf, jf, anfwers as Tenant, and vouches to Warranty A. who enters into the War- ranty, and pleads with the Plaintiff, and Judgment is given that the Plaintiff fhall recover againft jf. and he over, againft A and J, brings a Writ of Error to reverfe this Judgment, and held that Error :^ XuatiU of Contmon JSecobetieS^ if Error does not lye, for y. is by the Judgment to recover againft A the Vouchee, who was Tenant, fo jf. had nothing to do with the Judgment, be- ing at no Lofs. And its there held, that Voucher in Aflize is not like Voucher in other Pr^cipe's ; for in other Writs, when Vouchee enters into Warranty, the Tenant is out of Court, and the Vouchee only Party to the Plea ; but here he cannot lofe but by Verdidl: of the Affize ; and here, if the Tenant fhould reverfe the Judgment, he will be reftored to the Land loft, and have Recovery in Value alfo, and he who has the Lofs muft have Error, and that is the Vouchee, which Ihews how much Notice the Law takes both of the Lofs and Recompence ; but from this Cafe it muft not be concluded that the Com- mon Vouchee in a Common Recovery may have Error, for he is only a for- mal Party, and the Court takes No- tice of it. Ho!;. 28. 3 Cro, 2, 3. E Secondly, (7 z $ %%xtzx\it of Common 3arcol3eric5. Secondly, We muft oblerve that tliefe Common Recoveries are now become Common AiTurances of Land, and therefore are favoured by the Judges, and the Intent of the Parties refpefled and fupported as far as may be. 2 R. 74. 3 Re-p. 5. 5 i^. 20. 146. and a Fine, Recovery and Deed to lead the Vje^ are all but one Conveyance, tho' they have feverai Operations, which fee well debated in Cromwell and Andrerph Cafe. 1 Cro, i 5. Thirdly, As to their common Ufe and Method, if the Tenant be in Court and the Vouchee, then there is no great Difficulty in the Matter, it is all done at the Bar ; but if the Tenant be ab- fent, then there muft be a Dedimus pO' teflatem de Attorn faciend' is> tertio Sumons^ ad Warrand^ ; and then Care muft be taken that all be regularly and carefully done. If there be Father Te- nant for Life, Remainder to the Son in Tail, Remainder over, and a Recovery is ^%tmitt of Common ^XttoUtitS, is to be fufFer'd, ic is fafeft to have a Recovery with treble Voucher ; and let the Tenant to the Precipe vouch the Father, and the Father the Son, and the Son the Common Vouchee ; for by this Means, if the Father has any an- tient Entail veiled in him, he coming in as Vouchee, is barr'd, which would not be if the Precipe was brought a- gainft the Father, and he vouched the Son. And the Party who is concern'd to look into a Recovery, is carefully to fee if the Writ of Entry be duly filed, and the Proceedings regularly entred, and to have an Exemplification of the Recovery ; for I have known fome At- torneys fo remifs as to take all the Fees for a Recovery, and barely take it at the Bar, and do nothing more. E2 CAPUT ^7 ^8 Z Xtmitt of ConnionJSetotericS* CAPUT II. £)f tl)e Xmmt to ti)e Prxcipe. IN every real Suit there mull: be a De- mandant and Tenant, the Deman- dant is the Party grieved, and who, in the Gourfe of Juftice demands a Repa- ration for the Tort done him. The Tenant is the Wrong-doer, and who with-hoids the Land or other Thing de- manded, fo that though Common Re* coveries are deem'd to fome Intents fic- titious, yet there muft be Adores fahuU^ for which Reafon there muft be a Te- nant to the Praecipe ; that is, the Writ of Entry muft be brought againft one that is aflually feized of the Freehold by Right or Wrong, or elfe the Reco- very IS void ; for in every Real Aflion there muft be a good Tenant to the Freehold, otherwife he cannot render the Land as the Writ commands ; and though Z Xu^tift Of Comnton MmUtits. 19 though the Tenant may plead Non- tenure, yet if he does not, the Iffue in Tail is not barr'd, who may plead Nient Tenant tempore !?revis, 1 2 Edw. 4. shore 347, 12, 19. becaufe the Iffue is not eftop- ped fince he claims Per formam Doni^ 3 R. Marquis of Wincheflers Cafe. But if there be a good Tenant to the Fr^» cipe, before the Return of the Writ, it is good ; for even in adverfary Writs, if the Tenant was not Tenant at the Tefle of the Writ, but was before the Return, it was well. If he were not Tenant at the Return of the Writ, he might abate the Writ by pleading Non- tenure ; but if in that Cafe he vouched over, then as to himfelf he admitted the Writ good ; but then the Vouchee might counter-plead the Tenancy ; but if the Vouchee does not counter-plead the Tenancy, it is good againft them all by Eftoppel. But in this Cafe the Te- nant fhall not Recover in Value, be- caufe he is at no Lofs; but if he be- z come Z Xtt^tiit of Common aaecot^ettcsf. come Tenant after the Voucher, and before Judgment is given, where the Vouchee is fummon'd ad Warrantl^au' diim by Writ, and appears at the Re- turn, as in Lacy and Williams Cafe. Salk. 568. Then the Judgment not being given on the Precipe, but on the laft Voucher, this Judgment binds the Land ; fo that when the Recoveror takes out Execution, the Tenant by a fubfequent Purchafe cannot avoid this, for the Tenant is become a Lofer, and fhall recover in Value againft the Vou- chee, and the Vouchee over. Hut. 1 1 2, 115. And if it be a Recompence by Eftoppel, this concludes Parties and Pri- vies, and is good to bar them. Stiles j 1 9, ISIow if it be thus in Adverfary Writs, much more in Common Recoveries ; and therefore in Common Recoveries, if there be a good Tenant to the Pr^- cipe any Time before Judgment, it is good, with this Diverfity, that if the Tenant comes to the Land by his own 2 A£t, :^ Xtmiit of Couiniou ^tco\)ttits. 3 1 A(S, he can never plead it to abate the Demandant's Writ, but has thereby made the Writ good ; but if he comes to the Land by A£l of Law, he may abate the Wric by pleading Non-tenure. As if a Son has a Praecipe brought a- gainft him in the Life of his Father, and his Father dies, he may plead Non- tenure, if the Land defcended to him by his Father's Death, i H,6. 12. ^H. 5. 9, 8 Edrp, 3. 82. 37 H 6. i5. 3 H. 7. 8. 41 Edrv. 3. 5. There is another Reafon why a Te- nant to the Precipe is neceffary, 7;/j^. becaufe the Eftate Tail of the Vouchee is barr'd only in Refpefl: of the Aflets recovered, or which by Poflibility may be recovered in Value : Now till the Demandant iiies Execution againft the Tenant to the Precipe, the Tenant can- not have Execution againft the Vou- chee, nor the Vouchee againft his Vou- chee ; and if the Tenant to the Pr^-^ ape had nothing in the Land, no Exe- cution Z XuUiXt df Common Becobetiesf. cution can be fued againft him, and if no Execution can be fued againft him, no Recovery can be had over in Value, and confequently no Recompence to bind him, and fo the Recovery can be no Bar. And to inforce this, Littleton^ in Taltarunis Cafe fays, when there is no Tenant to the Prcecipe^ there is no Recovery, becaufe there is none againft whom the Demandant may recover the Land, and a Recovery proves not the Tenement feiz'd, but fuppofes it. P/6>w?- .den in Manxrvelh Cafe, elaborately urges this Point, and endeavours to prove that a Common Recovery may bs good, where there is no Tenant to the Praecipe. ISow all his Arguments feem to centre in this, that all Parties and Privies to the Recovery are eftopped, to ■fay there was no Tenant to the Pr^c/pe againft the Admittance on Record. But it is plain that Eftoppels bind not the iflue in Tail ; and the Law is now ifettled, that if there be no Tenant to the :^ ^tcatife of Common ^mtnits. 3 3 the Precipe y the Common Recovery is void, and the liTue in Tail may falfify, that is, reverie it for this Error ; for the Recovery in Value (as has been faid before) goes to him that has the Lofi, or lofes the Tenancy ; and he that lofes may aver againft a Stranger that he loft nothing, fo fliall recover nothing : And if fo, a fortiori, the If- fue in Tail, who comes paramount all Gonclufions and Eftoppels, may aver Nient Tenement* tempore brevis, 3 ^« 5* 6. 6o, a, 1 2 Edrp. 4. 1 2. 1 9. Cro, Car, 3 09, Cro. EL 21. Moor 2 5 5. 4 Leon, 23. But if one that has a Remainder in Fee fuf- fers a Common Recovery, it binds and eftops his Heirs, though there is no Te- nanfto the Praecipe, Stiles 7^10, 2 Croke 2 1, and in a Writ of Right, a Recovery may be good without a Tenant to the Precipe, I Vent. 360. But in a War- rantia Chartce^ he who brings the Writ nuift be Tenant of the Land the Day of the Writ purchafed ; and it is a F good 54 Z Xtmtilt of Cointnott Becoberics* good Plea to fay Nient Tenement" Jour del Brief ; fo if one releafe with Warran- ty, he may vouch him that releafed ; but it is a good Plea to fay Releafee had nothing at the Time of the Releafe. Hob, 11, 24. Though a Tenant to the Precipe be fo effentially neceffary to a Common Re- covery, yet if a Stranger who has no- thing in the Land be added and made Tenant with him that is feized of the Land, it hurts not, for the Recom- pence in Value goes to him that loll the Eftate. i P^ent. 350. Having Ihewed the Reafon why a Tenant to the Precipe is fo abfolutely neceffary in a Common Recovery, I fhall now fet down the Cafes that occur in the Books about this Matter, which will ferve to illuftrate this Point. Leifee for another's Life, makes a Leafe for iixty Years and dies, and he in Reverfion, being Tenant in Tail, fuf- fer'd a Common Recovery, and held I Erro* % XUiititt of Common Mmhttits. 3 5 Erronious for want of a good Tenant to the Precipe; for the Freehold was cafl: on Lefl'ce for Years as Occupant, and fo, he or fame claiming under him, ought to have been Tenant to the Frcccipe, i Keb, 735, 78$. Hufband makes a Feoffment to the s i^^^p- <^. Ufe of himfelf for Life, Remainder to his Wife for Life, Remainder to the Heirs of their Bodies, and a Pr.mpe is brought againft him and his Wife, and they vouch Common Vouchee, this bars not the Entail, for the Woman is not a proper Tenant to the Precipe, for the Reafons that fhall be hereafter de- clared : So if a Man be Tenant for Life, Remainder to B, in Tail, if a Precipe be brought againft both, this bars not the Entail ; fo of a Pr^dps againft Mortgagor and Mortgagee ; And the Reafon of all thefe Cafes is, be- caufe the Land recovered in Value fiiall be in the fame Degree as the Land loft ; and when a Joint Prcccipe is brought ,F 2 againft 3 s % Xteadfe of Coininon Kcccitieties %^rf, Be- againft Baron and Feme, Tenant for ciiis uas foi- Life and him in Remainder, Morgagor ter Oiiiiiioft, ,ner!ychei.t.^^j Mortgagee, ic fuppofeth them to yernowthe be Tointcnants, and the Tudsment muft Rcafoii comes J ^ ' J O to hold, quod be aEainit them as Tointenants, and the n)ide in P^ge^ ^ . , •' , , i * and Hay- Recovery m Value according to the Ac- rtja)d\ Cnfe " " " ■2. Salk. 5-"0 tion, whereupon he recovered, and fo Idee ^ua>e f^2i\[ bc the Executiou, then the Re- covery in Value being accordingly, it is in the iame Degree the Eflate Tail was, fo no Bar to the Iflue in Tail or Re- mainder, the Recovery being of a Joint- Eftate. Further, the Caufe of the Bar is, the Affets recovered in Value, and none ftiall be admitted to fay the Aflets went other wife than the Reco- very is ; and in thefe Cafes the Writ being Joint, and the Tenants vouching as Jointenant?, the Recompence goes to fuch Joint Eftate Tail the Tenants had, and not to the Eftate Tail of the Feme or him in Remainder, 3 R* 6. and the Itlue is never barred, but where Reco- very in Value goes in lieu of the firft Entail, Z Xuatitt of Conunon Mtcohttits. 3 7 Entail, which this Joint Eftate cannot, and the Affets and Recompence caufing the Bar, the AfTets cannot veft in him in Remainder only, and fo go to the Eftate Tail, but muft enfue the Lofs by the Recovery, whereby it vefts in Baron and Feme and Tenant for Life, and Remainder-Man jointly. Dyer z'^i, 3 Cro. 570. \o R, 39. 645. Thefe are the Reafons given for thefe i lcoilp*?. Cafes, which indeed favour of a won- ^ ^"'"' ^' derful Subtil ty ; and though no Man would venture to fufter a Recovery in this Manner, yet thefe feem to me to be Apices Juris, and perhaps if now agitated again, would not be fo eafily admitted, fmce the Courts at Law now see the cafe ufe all Means to fupport Common Re- fj/^J^^^-^' coverics, as Affurances, now common- 3;^''^'^, i?i^ r 1 r /^ r l^ where thefe ly uted tor Conveyance of Eltates. Idea Recoveries /v feem to be ^iccre* good. If there be Tenant for Life, Re- mainder in Tail, Remainder in Fee, if he in Remainder in Tail fuffers a Com- mon 3 z :3t XxttAiit of ConunDit 5aetdt)tt!Cg. mon Recovery, it bars not the Entail, becaufe no Tenant to the Praecipe -, but if he in Remainder in Fee fuftcrs a Re- covery, that bars his Heirs, as has been faid before. Dyer z^z, i Rolfs Abr, 39^. Moore 3 56". ^ inii 342. Lands are given to Hiifliand and Wife, and the Heirs of the Body of the Hul- band, Remainder over, the Hufband alone fuffers a Recovery, wherein he is Tenant to the Precipe, and vouches the Common Vouchee, this is no Bar to the Iffue, or him in Remainder ; for the Recompence cannot enure to the Eftate, the Wife having a Joint Eftate with her Hufband, flie cannot be a Partaker of the Recompence, becaufe fhe was no Parry to the Recovery ; for the I-itate between Hufband and Wife is an entire Eflate, and no Moiety be- tween them ; fo the Hufband alone no good Tenant to the Precipe, and the Ettate Tail and Remainder depended on the Eiiate of Hufband and Wife, as on an Z Xttutift of Coinnion MtmUtitS. 3 9 an entire Eltate. 5 R. ^. Owey^ 129, 1 3 o. Moore 2 1 c. ^//m' of a Joint E- ftate conveyed to them before the Co- verture ; for there one Moiety is barr'd. Aloore 9 5^ Cooke Marquis of Winchejier's Cafe. But if Hufband be feized in the Right of his Wife for Life, Re- mainder in Tail to A, Remainder over to B. Hufband by Bargain and Sale in- roU'd, or by Le fe and Rtleafe grants the Land to another, againft whom a, Precipe is brought, who vouches A, and a Common Recovery is had f this bars all the Remainder and Entail, for here was a good Tenant to the Pnecipe, 2 Roll's Abr, 394. So is Ciiple dick's Cafe. Hufband and Wife feized for Life, Re- mainder to the Heirs Male of the Body of the Hufband^ Hufband difcontinues,. and a Precipe is brought againft the Dif- continuee, who vouches the Hufband, who vouches the Common Vouchee^ this is a good Recovery. 3 R. 6. a. Though 40 7i Xtttititt Of CotntttOtt 33itt6i)ttitS. Though a Tenant to the Pr^uipe be abfolutely neceflary in every Common Recovery, yet if it be by Diffeifin, it is good in many Cafes. As if Tenant in Tail be diiteifed, and a Precipe is brought againft the Diffeifor, and he vouches Tenant in lail, who vouches over, this bars the Entail. So in Lift' coin College Cafe, a Man makes a Feoffiiient, to the Intent the FeofFee Ihould re convey to him and his Wife, and the Heirs Male of his Body, which they do accordingly, and he has Iffue a Son, and dies, the Son in his Mother's Life- time, Tenens liberi Tenementiy which muft be intended by Diffeifin, (being on pleading, and to be taken moft ftrongly againft the Pleader) fuffers a Common Recovery, and Wife Releafes with Warranty, and notwithftanding i I H. 7. cap. 20. held the Entail barr'd. 3 R. 58. I Infl. 326", 365.^. I Mod. 218. 2 RoU\ Abr. 395. I Upon ::^ Xtt&tiXt of Cotmnoniaccoijeties;* Upon what has been already faid, it IS apparent there muft be a Tenant to the Precipe, either by Right or Wrong, and therefore in many Cafes it may feem wholly impraflicable for thofe who have the Remainder in Tail to fut fer a Recovery : The moft ufual Way is for him in Remainder to get the Te- nant for Life to furrender to him con- ditionally ; and in this, though the Te- nant for Life keeps the Poflellion, yet the Recovery will be good. But if a Common Recovery be to be fufFer'd of a Manor, wherein are many Leafes for Lives of Part of the Manor, tho' the Praflice has been to get Surrenders from the Leffees, that is only abuu' dans Cautela ; and I take it not to be neceflary ; and I think the Recovery good, though the particular Tenants for Lives did not furrender ; for the Reverfion of the Lands leafed for Lives, remains Hill Part of the Manor ; and the Fine or Deed that made the Tenant G to 41 42r :^ %tmi(t of Common l^ecot^ctirig* to tliG Precipe, carried the entire Ma- nor to him, as well Reverlions as Poffeft fions ; for the Manor being an entire Thing, the Freehold thereof was in the Tenant to tlie Precipe, to make this good, I fliall endeavour to prove two Things. Firft, That whatever is Part of the Manor, whether in Poffeffion or Re- verfion, pafled with the Manor. Secondly, That the Reverlions of the Tenants for Life are Part of the Ma- nor, and pafb'd by Grant of the Ma- nor to the Tenant of the Precipe, and confequently the Recovery of the Ma- nor a good Recovery. • As to the firfl: Point, if we look into the antient Year- Books, which are moft nice and exa£l in all Real Aftions, vve cannot find one Inftance of a Pr^- cipe of a Manor, and another of Lands .ieaied for Lives, that are Part of the 'Manor ; But on the contrary, if a Man -brought a Precipe of a Manor, and in it :7K Xttutift of Cojunion MttoUtitS. 4 j k demanded any Lands, Part of the Manor, he muft eithet abridge his- Plaint, or if the Tenant pleaded this Matter in Abatement^ the Writ was abated quia bis pctitum^ it being fu- perfluoLis to demand the fame Thing twice ; and if Lands are mentioned with a Manor, they {hall be intended to be no Part of the Manor^ becaufe all that is Part of the Manor is com- prehended in a Praecipe of the Manor ; as 35 jF/. 6. 17. Sci fac to have Exe- cution of the Manor of Dale, and fix Acres of Land, it is no Plea to fay the fix Acres are Parcel of the Manor, be- caufe the contrary fhall be intended. 48 Ed, 3. II PL 2, Sep fac on a Fine of the Manor of B. and demands forty Acres of Land, and twenty as Parcel of the Manor, the Tenant pleads Nient Comprise, and held no Plea, becaufe every Part and Parcel of the Manor pafs'd by the Grant of the Manor by 'the Fine, and therefore the proper Plea G 2 • was 44 ^ Xttntiit of Common 33imtttitS. was Nient parcel, which fht-ws thdt if the Land be Parcel of the Manor, whe- ther in Pofleffion or Reverlion, it paffes by Grant of the Manor, which i? an entire Thing, 34 H. 5. i, 2. Precipe of a Manor, Entry into a Part, abates the Writ, allter of Acres fevered. 2. Roll. Abr. ^g ^Q t:l;)e fecood Point, it muft be yH. ' confeffed that the Revcrfion of the Te- nements in Leafe was in the Owner of the Manor, otherwife he could not have the Rents and Services ; fo that it muft be either a Reverlion in Grofs divided from the Manor, or elfe Part of the Manor. That it iliould be a Reverfion in Grofs, divided from the Manor, has no Colour or Realon ; for when a Man is feized of a Manor and Demefnes in Pofleffion, and makes a Leafe for Life, and parts with the Pofleffion of what he fo leafes in Lieu cf the Pofleffion, he has the Reverfion and Services, which are annex'd to the Manor and Part of It, and the Reverfion and Services na- I turally Z Xuatitc of Comnion Mttohttits. 4 5 turally follow the Right and Nature of the Land. As if a Bifhop hath a Ma- nor, and a Tenancy efcheats, he has the Tenancy ^ure Ecclefie ; for the Te- nancy came in Lieu of the Services, and the Services being Part of the Ma- nor, the efcheated Tenancy became Part of it, and is incorporated to it. And our Cafe is ftronger ; for if a Te- nancy efcheated, which has Time im- memorial been held of the Manor, is incorporated to the Manor, and be- comes Part of it when it falls, a fortiori the Reverlion, which was never divided from the xVTanor, and was always Part of it, paffes by Grant or Recovery of the Manor. And in our Cafe there was only a Teinporary Jntereft granted for Life, and therefore the Reverfion remains in the Grantor, as what he ne- ver parted with, and the Services attend the Reverlion ; and as the Pofleffion was Part of the Manor, fo are the Rever- fion and Services which follow the Ma- nor 4^ Z Xreatife of Common 33itmUtkSi nor as a Recompence far and in Lieu 'of the Pofleffion granted to Tenant for Life. Lift, JeB, 590. And this is not like the Cafe of the Grant of a Manor, excepting an Acre, for there the Acre is divided from the Manor. 6 R. 55, '66, But jeven in that Cafe, as to him ■that has a Right to demand the Manor, it remains Parcel, ^inch 18. So if one leafe a Manor for Life, except the Ad- vowfon, thereby the Advowfon becomes Difapendant, becaufe the Exception fe- vers it from the Manor : But if one grant an Advowfon Appendant for Life, the Reverlion is ftili Part of the Manor, and paffes with it, 5 R, ii,b. which ftiews the Difference between an •Exception which fevers the Thing ex- cepted from the Manor, and a Leafe for Life ; for by the Leafe nothing paf- •fed but what the Leffor intended, and what is not leafed remains in the Leflor in another Degree, 38 H. 6. 38. a. If ^one leafe an Acre Parcel of a Manor • 1 for Z %UiUitt Of Common J^tcoicties:* 47 for Life, and after grant the Manor,- the Reverlion pafl^s, beca aie the Acre was always Part ot the Ad^anor, and no more pailes than what was granted, and that is only for Life ; lo what was not granted remains in the Grantor ; and though the proper Term of Law for this is a Reverfion, yet the natural plain Senfe is no more, than that I am Itill feized of what is not granted, that is of the Land, Parcel of the Manor in another Degree than when in PoiTef- iion. If I am feized of a Manor, and am diffeized of an Acre Parcel of the Manor, it is not fevered in Right, tho' it is fevered in PolTeflion ; for by my Entry it becomes Parcel again. AL 7. H, 7. 8 PL 10. fo an aflual Severance is no Severance in Right, much more where there is no Severance at all. As to Authorities in Point, the Rooks are full of them, where it is unanimoufly held, that if a Man feized of a Ma- nor leafes Part of it for Life, the Re- verlion 43 1^ xtmiit of Common ^mutits* verfion ftill remains Part of the Manor. Litt.ScEt. 590. I In ft* 324, 325. where a Diverfity is taken that a Reverfion of Part may be Parcel of a Manor in Pof- feffion, but a Part in Poffeffion cannot be Parcel of a Reverfion. 2 Leon 222, Cro, EL $zz. ^ R.iz. 11 R,$o. Cro.Ca, 306", 308. Winch 46. Litt, Se6l. 149, 227,557,591. I //^y?.i04, 151,323.^. 2 2^, a, b. And of this Opinion were Sir Edward Northey^ Attorney General, Mr. Serjeant Ltitmch, Mr. Serjeant Bro' derick^ Mr. Richard IVehb, and Mr. PoxP' ley, in a Cafe of great Concern left to be determined by Opinion of Coun- fel, between the Earl of Pembroke and the Lord Wind/or , touching fome Leafes for Live?, which not being furrender'd, were fuppofed not to be barr'd by a Recovery fuffery by the Earl of Pern" broke, which being now queltion'd by the Lord Wind/or, who married the only Daughter and Heir of the late Lord Pembroke^ the Cafe being fully weighed Z Xtmitt of Coininott ^etob^if «♦ 49 weighed and debated by Counfel of both Sides, it was agreed that the Reverfion of thofe Tenements in Leafe for Life pafs'd, and the Entails therein were well dock'd, by the Recovery fufter'd by the Earl of Pembroke, in which Cafe Sir Edward Northey ftarted a Difficulty that the Tenant to the Precipe being made by Fine, the Reverfion could not pafs without Attornment ; but as to that it is plain the Reverfion pafs'd by the Fine without Attornment, i Jnjl. 319, 320. and the Fine being to an Ufe, there needs no Attornment ; fo if it had been by Bargain and Sale inroU'd, or Leafe and Releafe ; for the Efl:ate vefts by Operation of the Statute of XJfes, which is by A£1 in Law, fo no Attornment neceflary, i Jnji, 309, Moore 32, 68. Hob, 16^, 3 Leon, loi. 6 R, 58. 1 jfones 244. And the Ob- jeflion was waived, and Lord Wind/or had the Lands in Difpute ; and the fame Point hath fince been agreed and deter- H mined JO ZXttatitt of Common Bccotjccitsi^ mined in the Earl of Derby s Family, -vide the Appendix. If the Land of which the Recovery is intended to be fuffered, is not Part of a Manor, and is in Leafe for Life, then it muft be furrendred to him that has the Reverfion or Remainder, before he makes a Tenant to the Praecipe', or if the Surrender be after the Convey- ance, that makes the Tenant to the Precipe, then to the Tenant to the P/<€- cipe ; and by miftaking this, feveral Recoveries have been fet aflde : As for Example, If after the Leafe and Re- leafe executed to make the Tenant to the Pr^cipCy the Tenant furrenders to the Releafor, this is void, for he has no Reverfion for the Surrender to operate upon. Tliough, as has been before obferv'd, where there is a Leafe for Life, no Part of a Manor, that muft be furrendred to make a good Tenant to the Pr^cipe^ yet no Term for Years hinders him that has the Freehold from fuffering a Com- I mon :^ Xnatitt of Common liXttomits. s < mon Recovery, becaufe the Law has little Regard to Terms for Years, which are only Chattels. And by the Statute of Glouceft. cap. 1 1. Leffee for Years in London^ may falfify a Common Reco- very, whereby the Judgment is not to be ftaid, but the Execution fufpended during the Term, and this is done by a Writ De Inqtiirendo ftiper Statut^ Glouc\ and tried in the Huftings, and extends to other Towns that have iuch Courts ; but the Statute extends not to any Cafe but where the Leafe is by Deed, nor to Tenant by Statute Elegit^ iffc. But now the Stat. 2 1 H. 8. cap. 1 5, extends to all Leafes out of London, and by that Statute the Leffee fhall be received to falfify the Recovery before Judgment, and it ftiall fufpend the Execution ; but then he muft not only aver the CoIIu- fion, but plead fome Bar to the Plain- tiff's Title; and this Statute extends to all thofe Cafes where the Vouchee or Tenant lets Judgment go by Default. Hz A 5i Z Xxt&tiit of Common IRecotoerirs^ A Fine was levied in order to make a Tenant to the Precipe ^ and a Writ of Entry brought againfl; the Conufee, who vouches, and Recovery had, and doubted if this be a good Recovery ; for the Fine having no life declared, the Ufe refults to the Gonufor, and fo here is no good Tenant to the Pr^- cipe, Tho' this Cafe has not received a formal Decifion, as I remember, and Sir Edrpard Northey and Mr. Foley were ftrongly of Opinion the Recovery was void, yet it feems, with Submillion, the Recovery is good y for at Common Law a Fine was TranJaBio Judicialis^ a final judicial Agreement on Record. And though a learned Judge has ob- ferved it is not a Feoffment of Record, yet it has the Force and Effefl: of a Feoffment. Now at Common Law, if a Fine was levied without Confidera- tion, as in a Fine, there needs none, the Conufee was Tenant to all Writs, till the Statutes of Perners of Profits 2 and Z XvtatiU of Common Mtcabttits. 55 and Ufes ; and by the Statute of Ufe?, though the Ufe refuked back to the Conufor, where no Ufe was declared, yet the Intent of the Parties always guided the Ufe, and there could be no refulting Ufe againft the Parties exprefs Intention, fo that whenever the Ufe refults, it is becaufe the Parties intended it, fo not contrary to their Intent, which is the Guide of Ufes, i R, i oo,a. 6 R, 64, b. Now in this Cafe the plain Intent of the Parties here was to make a Tenant to the Pr^ecipey and that is Ihewn on Record, by the Writ of En- try brought againft the Conufee, and the Fine, Recovery and Deed, are all but one Affurance to cut oif the En- tail, 2 i^. 72. ^. 2 Lev. 54. Cro. Can 321. Hardrejs 402, And the Reafon of the contrary Opinion feems to be, that thefe Gentlemen took the Statute of Frauds to extend to Ufes, which ic does not, but only to Trufts ; for if a Man buys Land and pays for it, and has 54 ^ Xveafife of Conwnon HetotJericS* has no Conveyance, but a Fine witl> out any Declaration of the Ufe of itjl it is certainly good. Since the foregoing Part, and indeed all this Book was wrote, the following Cafe has been refolved: A, Tenant in Tail, levied a Fine, and after fuffered a Recovery, wherein the Conufte was Tenant, who vouched the faid A, and there was no Deed to declare the Ufes. It was objefted, the Ufe of the Fine refulted to the Conufor, and though the Intent of the Fine was to make a Tenant to the Precipe, yet no Ufe or Truft can be averr'd lince the Statute of Frauds. But Lord Chief Juftice Holty and the Court of Qiieen's Bench, held the contrary ; for at Common Law the Ufe was always intended to be to the Co- nufee, and was never averr'd in Plead- ing, unlefs it were to the Ufe of a Stranger ; then it mufl be averr'd, and held, the Party was in by the Fine, and a good Tenant to the Praecipe, and that Z Xtmiit of Common Witcohttits. 5 5 that the Statute of Frauds extends not to Ufes that arife by Operation of Law, but to fuch Ufes as are to third Perfons, which are Trufts, and fince the Statute, neither Conufor nor Conufee. can by Parol aver the Ufe to a third Perfon. 8 Ann, B,R, Lord Anglefea againft Lord Altham. Vide Latch, 257. This Cale is reported in z Salk, 6j6. but he has miftaken the Year, for it was not 8 ^r. 3. but 8 Ann, and alfo in a Book intitled Reports of Cafes in Equity, f, 1 6, I find in feveral of the Law Books it is faid, that in fome Cafes a Recove- ry may be good without a Tenant to the Precipe bvEftoppel ; but this I take ^^ to be, where jie^vho fuffers the Re co- .^^^^-^*- ^^' ' ^ very is Tenant^in ^e ; for Eftoppels ^ y* - ^^ ^ , ^Z bind not the Ifiue in Tailf becaufe he*^-^"*^^ ^'^ '/" ^ / / claims PaHmounT per formam Doni ; *f/; and fo is the Cafe of Bull and Wyatty h/Jbt^i Cro, 388. One Riginald and his Wife ;Jii^feiz'd in Fee, Jure uxoris, by Inden- vf^ ture let the Land Hahend' a die datiis, for $€ Z Xtmitt of Common 3Rccot3crieS. for Life of the Leflee, rend ring Rent, with a Letter of Attorney to deliver Seiiin : The Attorney made Livery the fame Day, fecundam for mam Charu: Leffee enters and pays the Rent: The Wife dies : The Heir before Entry fuf- fers a Common Recovery, and the Court held the Leafe void, and Livery the fame Day it bears Date void, and urged that the Leffee entring, and pay- ing the Rent, he is Tenant at Will, and not a Diffeifor ; but admitting it a Dif- feilin, and there was no Tenant to the Precipe, yet held he and all claiming un- der him eftopped. To make a good Tenant to the Pr^» cipSy in order to fuffer a Common Re- covery, it may be done either by Fine, Feoffment, Leafe and Releafe, or Bar- gain and Sale enroU'd ; and this latter Way by Bargain and Sale feems good be- fore Enrollment, if the Deed be enrolled within fix Months by relation ; for in a ftronger Cafe^ if a Man bargain and fell Z Xttatitt of Cointnou Jlccolieries; yj fell Land by Deed, and before Enrol- ment bargain and fell again, and the firft Deed is inrolled within fix Months, the Bargain and Sale is good, which flievvs the Freehold was in the firft Bar- gainee, otherwifc could not transfer it. 2 Inft. 6'7 5. Nqy io5. z Cro. 5^, 409. Owen I yo. Dyer zi^* Moore ^i, yet in Praflice, I have known fome very able Counfei refufe to let the Recovery be fufFered till the Deed of Bargain and Sale, that makes Uie Tenant to the Pr^- cipe, is inrolled, which is certainly the fafeft Way, though good, if inroU'd after. 2 Infi. 675. If the Tenant to the B'^cipe be made by Feoffment, Care muft be taken that Livery be duly made before the Reco- very ; if it be by Leafe and Releafe, it muft be duly executed before the Re- covery, and not helped by antedating it, though nothing is more common among Attorneys than to bring the the Deeds to Weftminjler^ and often I execute 58 ^ Xveatife of Common J^ecolierieS* execute them after the Recovery taken at Bar. A Writ of Entry was returnable Quinden Martini^ i6 Nov, being a Monday^ the Term ended the Wednef' day following ; the Leafe and Releafe were dated the i6ih and 27th of Nov, /^ -^nd the Recovery taken on Wednesday Z/^' 2. the 28 th at the Common Pleas Bar, and ill, for it appeared on the Face of the Recovery, that there was no Te- nant to the Precipe, for the Writ of . '^ Entry was returned before the Releafe bore date ; and though the Prothono- taries, and fome able Men held it good, yet on good Advice, it was held Erro- nious. Upon Confideration of the Cafe a- bove-m.ention'd, the Recovery is certain- ly void ; for fince a Recovery was fuf- fer'd of that Term, on the 25th of Nov. viisi, ^linden Mdrtlni, it cannot be otherwife prefum'd but that the Te- nant on that Day appear'd to the Writ, 1 and Z Xuatitt of Conmton WitcoUtits. $ 9 and Judgment was then given, and the Releafe bearing Date the 27 th of Nov. it plainly appears there was no Tenant to the Precipe, becaufe Judg- ment was given ^dnden' Martini; and though the Recovery was taken at Bar the 28 th, and fo noted by the Ser- jeants, yet the Judges take no No- tice of that, and of nothing but what appears on the Record. Note, By the Gircuitiers it is faid, that all Deeds to make a Tenant to the Pr^e^ cipe, ought to be dated before the Term, ^^ : ^ y becaufe the Term is one Day in Law, Z , L^l //^ and all that is done in the Term relates to the fird Day, and a Deed after cannot be given in Evidence ; but that may be eafily cur'd, by taking an Exemplifica- tion of the Writ of Entry. If Tenant for Years be made Te- nant to the Pret(eff^ band, whether feifcd jointly with his Wife, whether by Moieties or Entire- ties, or feiied only in Right of his . Wife, may create an Eftate of Freehold during the Coverture, and thereby make a good Tenant to the Prcccipe, without his Wife's joining ; and this now is in conllant Experience and Praftice, and fav^es the Charge of a Fine. As to Ideots and Madmen, the Law has fo high a Regard to Matters of Re- cord, that a Fine levied, or a Recovery fuffer'd by them is unavoidable ; and to prove this, there is a notable Cafe, Hu^b Leivis. in Confideration of 60 /. enfeoffs jf, Williams of the Manor of D. and J. Williams is bound to Hugh Lervis in a Bond of 100/. for Payment of 50/. J, Williams devifeth the Ma- nor to William Wynne and his Heirs, and dies, William Wynne pays the 50 /. to Hugh LeiviSj who levies a Fine of the faid Manor to William Wynne, and by Oflice found Hugh Lewis was an I Ideot, :^ Xttatik of €mnmn Mtmhtxits, 7 $ Idcot, a Nativitatt^ and held the Fine good, for both Hugh and his Heirs are eftopped to fay he was an Ideot ; and the Court would rather Judge the Of- fice void, than bring this judicial A£1: in Queftion, or the Judgment of the Court that accepted the Fine, z And, 153. Attainder is a legal Difability ; and therefore if Tenant in Tail be attaint, and an Office found, the Land granted to A. who fells it to B. who fufFers a Common Recovery, and therein vouches Tenant in Tail, the Remainders arc not barr'd. Godb, 218. But Allen in I Keb. 30. contra Arguendo^ i Kek 598. Bui notwithftanding the Opi- nion in Godh. yet it feems there is fuch a Scintilla Juris in the Tenant in Tail, after an Attainder, that by a Common Recovery, if there be a good Tenant to the Pr^ecipe^ he may bar the Iffue, Reverfions and Remainders ; for if the King pardon the Party, and reftore the L Land, 74 ZXtmtiU Df Cdiumott ^ecoijeties* I.and, though the Attainder is in Force, he may bar the Entail. Alien is alfo another legal Difability, and if an Alien be Tenant in Tail, this is a good Eftate Tail, but not defcen- dible to his Iffue, 9 J^. 141. But if Lands are given to an Alien in Tail, Remainder to C. in Fee, the Alien fuf- fers a Common Recovery, and after an Office is found, this Recovery bars C. and the King has a good Fee ; for till Office he was feifed, and there was a good Tenant to the Fr^ecipe. Godk 102. Noys 137. Befides thefe natural and legal Difabi- lities before -mentioned, Gonveniency, Decency and Order hinder fome from fuffering Recoveries, and therefore the King cannot fuffi^r a Common Reco- very, for if he fuffer a Common Re- covery, he muli be Tenant or Vouchee ; and in both Cafes the Demandant muft count againft him, and there mult be Judgment againft him, which the Law does Z Xteatife of Cominon ^tcomits. 7 j does not fufFer, fo cannot come in as Tenant by Receipt 5 but if the Party- have any Warranty, he muft pray him in Aid. i Ou 96, 97. ^ Other Perfons difablcd are thofe that J'j?^""' '''^''- for fome particular Reafons are fo by tute. A3 of Parliament, occafioned by the Abufe of Common Recoveries : And firil by the 1 1 H. 7. cap, 20. whereby n H.7. c. ^c it is enafted, That if any Woman which had or hereafter ftiould have any Eftate in Dower for Life, or in Tail jointly with her Husband, or only to herfclf, or to her Ufe, of any Manors, iffc. of the Purchafe or Inheritance of her Husband^ or given to the Husband and Wife in Tail, or for Life, by any the Anccftors of the Husband, or any other Perfon or Perfons feifed to the Ufe of the faid Husband, or of his Anceftors, and have or fhall hereafter, being Sole, or with any after taken, Husband fuffer a Recovery, isfc, then the Recovery to be void, and that then L 2 it j6 Z XttutiU of Common Bfcattettesf* it lliall be lawful to the I'crfuii or Per- fons, i5''c, to whom the laid Manors, ilfc, belong, after the deceafe of the faid Woman, to enter, iff.c. provided this AQ: extend not to any Recoveries had with the Heir next inheritable to the Woman, nor where he or they that next after the Death of the faid Wo- man fhould have the Eftate of Inheri- tance in the faid Manors, i5^c. be af- fenting or agreeing to the faid Recove- ries, where fuch AlTent is of Record^ -or enroU'd. This Afl was made to Remedy a very great Abufe crept in by the frequent Ufe of thefe Common Recoveries ; for being now become one of the Common AiTurances of the Realm, and the com- mon Method ufed to bar Entails, Join- treffes who had been advanced by their Husband?, and had Eflates Tail limited to them by their Husbands, or their Anceftors, and which Eftates were de- ii^ned for the Benefit of their lifue, ,j irequentlj Z Xttatitt of Conunon 3Sitto\Mim. 77 frequently ufed thefe Common Reco- veries, among other Difcont I nuances this Statute mentions, and thereby gave thefe Eftates from their Iffue and Huf- band's Family. To remedy this A^ bufe this AQ. was made; and to prevent, not only every Bar, but every Difcon- tinuance, and to preferv€ the Entail for die Benefits of the Iflue inheritable by Force of it ; and therefore if A. makes a Feoffment in Fee to the \J{h of himfelf and his Wife, and the Heirs of their Bodies lawfully begotten, A. has Iffue B. and dies, the Feme is dif- feifed, B. releafes to the Diffeifor, and has Iffue C, Feme releafes to the Diffei^ for,, with Warranty, Diffeifor fufFers a Recovery, and vouches Feme; B, dies^ his Iffue may enter. 3 R. 59. If Tenant in Fee marries, and has Iffue a Son, the Wife dies, Baron takes a fecond Wife, and fettles his Eftate on Jhimfelf and his Wife, and the Heirs of iheir two Bodies lawfully to be begot- ten^ jZ Z Xuatitt of Cointnon Eecotietiesf* ten, and has Iffue another Son, and dies, the Mother and her Son make a Tenant to the Prcccipe^ againft whom a Writ of Entry is brought, and he vou- ches the Mother, and Ihe her Son, and he the Common Vouchee; this a good Common Recovery, and bars the Ellate Tail, and all Remainders and Rever- Cons ; for the Intent of the Ail was not to fave the Eftate only for him that was Heir apparent, but for the Ifllie of that Entail ; and the Provifo of the Afl: extends to him next inheritable, and that is in this Cafe, the Ififue in Tail, 3 J^. 59. 1 Jones 3 I. Hob, 332. Mac Williams'^ Cafe, which was this very Cafe, but turned on another Point ; and wherever the Heir in Tail conveys or affures the Land to another, and the Wife releafes or confirms with Warran- ty to perfe£l the AlTurance, it is not within this Afl. 3 R. 60. If a Man makes a Feoffment in Fee to the Ufe of himfelf and his Wife I in Z Xttatitt of Common WitcoUtitS. 79 in Tail, Remainder to the Husband in Fee, and dies, and leaves a Daughter, his Wife enfeint with a Son, the Rever- fion deilends to the Daughter, though the Mother and Daughter join in a Re- covery, yet this is void as to the after- born Son. 3 R, 61. To bring the Feme within the Com- pafs of this Aft, the Provilion mull come purely from the Baron or fome of his Ancertors ; and therefore if one be feiied of Lands in Fee, and has If- fue two Daughters, and on the Mar- riage of one agrees, in Confideration of 150/. and the Marriage, to levy a Fine to the Husband and Daughter, and the Heirs of the Body of the Daugh- ter, if the Husband dies, leaving Iffue by her, ftie may by Common Recovery bar this Fntail ; for it is out of the Aft, being a Provifion made by her Father, and the Confideration of 1 50/. was not regarded. But if Husband and Wife in this Cafe fell the Land, and purchafe Ec Z Xtmtitt of Common MttoUtitS. purchafe other Land with the Money, and fettle it as aforefaid^ this is withm the Statute, and fte cannot by a Com- mon Recovery bar the IlTue, for the Money was the Husband's, and this a Purchafe made by him within the Sta- tute. Palm, 2 I, 3 2, 2 1 6, 2 1 7, I Jen, 13, 254. 2 Cro. 624. Cro, Car, z^^, Plon^d, 464, I Inji, -^66, A Man feifed of Land in Fee, le- vied a Fine to the Ufe of himfelf for Life, and after to his Wife in Tail, Ge- neral Remainder to a Stranger in Fee ; this is within the Words of the Afl:, and out of the Intent of the Afl: ; for limiting the Eftate to her and the Heirs of her Body, with Remainder to a Stranger, Ihews he meant any Iffue of her Body fhould inherit by any other Husband. Cro, El, 2. A Man feifed of Lands in Fee levied a Fine to the Ufe of himfelf for Life, and after to his Wife and the Heirs of her Body by him begotten, they both 2 bavins Z Xtt^titt of Common ^ecofcrtif s. s i having Iffiie, fuffer a Recovery ; and I Inft, 355. b. faid it is void; but I cannot fee how this can be Law^ fur the Huftand and Wife joining, may- bar their Iffue by a Recovery. 2 Cro,^-] 5. A Man feifed Jure Uxoris^ they two levy a Fine, and Gonufee grants and renders the Land to them in Special Tail, Remainder to the right Heirs of the Husband, they have Iffue, and the Husband dies, Ihe marries again and fufFers a Common Recovery 3 this is within the Letter, but out of the Mean- ing of this Afl, which extends not to any Cafe but where the Eftate is by Gift or Conveyance of the Husband or his Ancejftors ; and here originally the Eftate moved from the Wife. If there be Great Grandfather, Grandfather, Father and Son, and the Great Grandfather feized Jure Uxorls before the Statute of Ufes, fettles the Eftate to the Ufc of the Grandfather " for Life, Remainder to his Wife for M '" Life, Zz :3i ^teatife of Conitnon ^accol^eties^ Life, Remainder to the Father and C his intended Wife, and the Heirs of their two Bodies, Remainder to the Son in Tail; Great Grandfather dies, and then the Statute of Ufes is made, his Wife enters, Father dies, and C. his Wife, with an after-taken Husband, fufters a Common Recovery, and held to be within the Meaning of this A£1 ; for the Land was the Great Grandfa- ther's, and the Settlement equivalent to an immediate Gift made to the Father and his Wife, and the Donors are the Baron's Ancellors. Bendloe 40. If the Baron alone fufFers a Recove- ry of the Wife's Lands, fiie may enter after his Death ; for as the Stat. 1 1 H.7. hinders the Difcontinuance of the Wife, fo 32 H. 8. c. 28. makes the Husband's not prejudicial to the Wife, who at Common Law was on a Difcontinuance put to her Cui in Vita., but by this Statute may enter. . 2 Infl, 58 i. 1 The :^ Xuatitt of Conunott 33itcoUtitS. 83 The next Stat, that difables particular star, ^^u.s, Perfons from fuffering Common Reco- ''''^'''^'' veries, is 33 i^. B» cap, 3 1. whereby a Common Recovery fuffered by Tenant for Life, without the Confent of him in Remainder or Reverlion, was made void. This Statute is at large in Raflal^ printed in i5i8. By this Aft all Re- coveries againft Tenant for Life or by the Curtefy, isfc, are void ; but if af- ter this a£1 Tenant for Life had made a Leafe for Years, and the LelTee had made a Feoffment, and a Precipe had been brought againft the Feoffee, and he had vouched Tenant for Life, this w^as out of the Statute, becaufe Tenant for Life was not then feifed for Life, and had only a Right, and the Eftatcs in Remainder and Reverfion were turn'd to a Right ; and at Common Law -a^ Recovery againft Tenant for Life with Voucher on a lawful Warranty, with a Recovery in Value, was a Bar to him in Remainder or Reveriion, which this M 2 Statute 84 51 Xtmiit of Cottirtion Betol^etieS, Statute remedied ; and the Reafon was, becaufe the particular Eftate and Re- mainder were but one Eftate and one Warranty extended to both, and fo the Recompence in Value extended to both Eftates. lo R. 44, 45. But this Statute is repealed by the Stat. 14 Eli^. c, 8. which makes fuller Provifion for avoiding Recoveries fuffer'd by Tenant for Life, and fuch others. The next Statute relating to Com- stat. 34 & 3J mon Recoveries is 3 4 is^ 3 5 H. 8. r. 20; ' '"'^' ^°' whereby it is enafted, that if the King give any of his own Manors, Lands, ^c. or caufe or procure another in Confideration of Money or other Lands, to give any Manors, ^c, to any of his Subjeft or Servants in Tail, in Recom- pence of their Service, Remainder to the King in Fee-fimple or Fee-tall, fuch "Eftates Tail are not to be barr'd ; for thereby it is enafled. That no feigned Recovery hereafter to be had by Aflent of Parties, againft any Tenant or Te- nants ♦ ^5 .naiits 111 i'ail, of any Lands, Tenements and Hereditaments, whereof the Rever- fion oi Remainder at the Time of fuch Recovery had,fliall be in the King, fhall bind or conclude the Heirs in Tail ; but that after the Death of every fuch Te- nant in Tail, againft whom fuch Reco- very Ihall be had, the Heirs in Tail may enter, hold and enjoy the Lands, i^c, recovered according to the Form of the Gift ill Tail, the faid Recovery notwithftanding. It is vexata Queflio, how far at Com- mon Law a Remainder veiled in the King was diverted by Recovery and DiC- continuance ; and this very Aft was made to prevent thefe Recoveries bind- ing the Ifliie, but extends only where the Gift was by the King or his Procure- ment. Before the Statute of Donlsy when the King created a conditional Fee, there was no Reverfion, but a Poffibili- ty In the King ; and if the Donee had Iffue, and aliened, the King's Poffibility 86 z Xtcatif e of Common aaecoteties* was barr*d, as well as that of a com- mon Perfon ; but the Statute of Donrs turned that Pcflibility into a Reverfion, fo that the QLieftion is, if, at this Day, one make a Gift to A, in Tail, Remain- der to B. in Tail, Remainder to the King in Fee ; if in this Cafe A, fuffers a Common Recovery, this bars A, and his Iflue, and the Remainder to B» but not the King's Reverfion, for that can- not be difcontinued or put to a right, or pluck'd out of him by the AQ. of a third Perfon ; and therefore the Diffe- , rence feems to be, that by an A£1: in Law a Remainder or Reverfion may be divelled out of the King, but not by Aft of the Party ; as if there be Te- nant in Tail, Remainder to A. in Fee, Tenant in Tail d'fcontinues in Fee, and takes back an Eftate to him.felf for Life, Remainder to the King in Fee, Tenant in Tail dies, the Iffue is remit- ted, and the Remainder pulled out of the King, and veils in A. but the Afl of Z Xvtatitt of Coniinon 3SitcoUvits. s 7 of the Party as a Fine or Common Recovery, Ihall never divefl: any Eftate, Remainder or Revexfion out the King ; but if a Recovery be on good Title againft Tenant in Tail, and the King has the Remainder by defeaiible Title, there it lliall divefl the Remainder out of the King, and reftore and remit the right Owners. Ployed, 483, 555. Dyer 344. 2 -R. 53. 8 J^. 76. I Infi. 354. 6 RolL Abr, Tit. Common Recovery, In the Refolution of that Cafe, Moore 344, the Court was of Opinion all was ^cluef!/, barr'd till it came to the Crown ; and ^'^'* fo is Brooke , Tit. Jjjfurance, PL 6, and fo is the common Opinion, that the Crown is not barr'd. If one make a Gift in Tail, and the Crown defcend to him; or if the King's Anceftor, not being King, make a Gift in Tail, and the Reverfion defcends to him', the Eftate Tail may be barr'd. ^ R, 1 5, If a Man makes a Gift in Tail, 22 ^ Xtt^tik of Conmion ^mutitsl Tail, Remainder in Fee, he in Remain- der grants his Eflate to another for Life, Remainder to the King in Fee, on Condition to be void on Payment of Money : A Recovery by Tenant in Tail bars the King's Remainder and Condition ; for the Grant was void, 2 i^. 5 2. Noy 1^2. T^elv. 149, i Leon. 8. But if Tenant in Tail of the Gift of the King, makes a Gift in Tail, the fecond Donee is not within the Statute ; for his Eftate, as far as it could dififfirm the Reverfion of the King, though it could not take it out of him, and his Poffeffion, was injurious to the Eitate given by the King. Jones 251. If the Kmg grant an Eftate Tail, re- ferving the Reverfion to himfelf, and after grants the Reverfion to another; Tenant in Tail may fuffer a {.Jommon Recovery, and thereby bar the Rever- fion. If a SL)bje(3:, by the King's Provi- fion or Procurement, makes a Gift in I Tail, ^ Xttatitt of Common ^ctofcetitisr. 83 Tall, and then grants the Reverfion to the King for Life or Years only ; in this Cafe the Eftate Tail, Remainders and JReverlions may be all barr'd by a Com- mon Recovery. If there be Tenant in Tail, Remain- der or Reverfion in Fee to another, and he in Remainder or Reverfion, by Deed of Bargain and Sale enroll'd, bargain and fell his Reverfion to the King ; or if one covenant to (land feifed to di- vers Ufes, Remainder to the King in Fee, if Tenant in Tail, in either of thefe Cafes fuffers a Common Reco- very, this bars thefe Reverfions. In the Earl of Cbeflerfield's Cafe, it was held by all the Judges of England^ that if the King make a Gift in Tail, faving the Reverfion to himfelf, and afterwards give Leave to the Tenant in Tail to fiiffer a Common Recovery, and to that Intent the King grants the Re- verfion to others on Truft, after the Recovery had, to re-convey it to him, N the 90 Z Xtmtiit Of Contnion Jaecoteties. the Tenant in Tail fuffers a Common Recovery, this bars the Entail and Re- verfion, and is not within this Statute, becaufe the Reverfion was once fevered from the Crown, and the Privity of Eftate gone ; and the Statute mull bs intended to reft rain Common Recove- ries, where the Reverlion is in the fame Plight that it w^as at firft, without any Alteration. Hard, 409. In the great Cafe of the Earl of Der^ by, the Qtieftion, among others, was. If an Eftate Tail created by King Ri- chard III. .which after by a private Ait, of the Fourth of James I. was limited otherwife to the Heirs Male of that Family, Reverfion in the Crown, was within this Statute ? And the Judges were of Opinion, that notwithftanding this private Afl: of Parliament made fome Alteration, (t^/^O ^^^^ Tenants in Tail to be Tenants for Life, with Re- mainders to their Sons in Tail Male, yet all thcfe Limitations being within 1 the 1^ Xuatitt of Comtnon lice cUtits. 9 1 the Compafs of the fiift Entail, as the King was Donor, the liTue could not be barr'd by Fine or Common Reco- very. Raym. 338. If the King, in Confideration of Mo- ney, or other Confideration by Way of Provifion, procure a Subjefl: to fettle his Lands on one of his Servants in Tail, for Recompence of Service, by Deed of Bargain and Sale enrolled, with Re- mainder to the King in Fee ; and all this appears on Record, the Tenant in Tail cannot by a Common Recovery, bar his Iflue ; and the latter Words of this AQ. (had done or fuffered by or againft any fuch Tenant in Tail) mull be in- tended where Tenant in Tail is Party or Privy to the Afl:, be it by doing or fuffering that which ftiould work the Bar, and not by mere PermiiTion. As if Tenant in Tail of the Gift of the King, Reverfion to the King Expectant is diffeifcd, and Difleifor levy a Fine, and five Years pafi, this bars the Eftate Tail. And fj if a collateral Warranty N 2 be ^2 3t %tt&tiU of Common 3accot»etitS* be made by the Anceftors of the Do- nee, and the Donee fuffer the Warranty to defcend withouc any Entry made in the Life of his Anceftor ; this binds, becaufe he is not Party or Privy to any Afl either done or fuffered by or againll him. I In/i, 373. Moore 4^7. Sid»i66. contra, 3 Cro, 595. i Cro, 13. iii^.78. Telv.'^iy 73, 74. 8 i^. 77. I And.^6, Vide in the Appendix a notable Cafe on this Srat. in the Earl of Derby % Family. Stat. 14 Eiiz. The next Statute relating to Com- cap.8. mon Recoveries is 14 £//^. c, 8. where- by it is ena£ted, that all Recoveries had or profecuted by Agreement of Parties, or by Covin, againft Tenant by the Curtefy, Tenants in Tail, after Poffi- bihty of Iflue extincl, for Term of Life or Lives, or Eftates determinable on Life or Lives of any Lands, Tene- ments and Hereditaments, whereof fuch particular Tenants are fo feiled, or againft any other, with Voucher over of fiach particular Tenants, or of any having Right or Title to any fuch 2 parti- Z Xu&titt of Common ^Sitttibttits. 9 j particular Eftates from henceforth (as againft the Reverfioners or them in Re- mainder, or againft their Heirs and Sue- cefTors) fliall be clearly void ; provided this Ad: fhall not prejudice any Perfon that Ihall by good Title recover any Lands, is^c, without Fraud, hy Rea- fon of any former Right or Title. Alfo every fuch Recovery had by the Gon- fent or Agreement of the Perfon in Reverfion or Remainder, appearing of Record in any of the King's Courts, Ihall be good againft the Party fo affen* ting. Though the Stat. 32 H. 8. provided fufficiently againft Common Recoveries fufFered by Tenant by the Curtefy, Te- nant Jpres Poflibility, Tenant in Dower or for Life, yet feveral Inventions were fet on Foot to evade that Aft, all which were fully remedied by this Aft, 14 EL and therefore if any of thefe Tenants now fufFer Common Recove- ries, either as immediate Tenants or as Vouchees, 94 ^ Xttatitt of Coniinon Jaecoteriesf* Vouchees, without the Affent, and to the Prejudice of him in Reverfion or Remainder, fuch Recoveries are void, and bar not the Reverfion or Remain- der, and are Forfeitures ; fo that it Te- nant for Life be made Tenant to the Precipe, or comes in as Tenant in Law by Voucher, the Recovery is void ; but if he in Remainder agrees, then it is good. So if there be Tenant for Life, Remainder in Tail to A, Remainder to B. with divers Remainders over, and a Precipe is brought againft Tenant for Life, who vouches A, and he the Com- mon Vouchee, this is a good Recovery, and bars all Entails, Reverflons or Re- mainders. So if one leifed of Lands in Fee, and has Iffue two Sons, A. and J3. by his firft Wife, and a Daughter by his fecond Wife, and devife his Land to his W' ife for Life, Remainder to B. in Tail, and dies ; in this Cafe the Re- verfion defcends to A. his eldeil Son. If a Writ of Entry is brought againft the Z Xtmitt of Common Mttmtits. 9 s the Wife, and fhe vouches B, who vou- ches the Common Vouchee, this is a good Common Recovery, and bars the Remainders and Reverfion, though the Heir in Reverfion never affented. If a Writ of Entry is brought againlt Te- nant for Life, and he makes Default after Default, and then the next in Re- mainder is received, or if he prays in Aid of them next in Remainder or Re- verfion, and they vouch over, this is a good Recovery. And though the Stat, 1 1 H. 7. 32 H. 8. 35 FL 8. fay the Recovery mall be void, that is, only to the Heir, Iffue or Remainder- Man, as the Cafe happens, but it is good among the Parties. As to Ecclefiaftical and Spiritual Per- fons, as Archbiftiops, Biiliops, Dean and Chapters, Prebendaries, Parfons, iffc. a Common Recovery by them is prohibited, as \yell as other Alienations, ,by feveial Afls of ParliamiCnt. CAPUT ^6 z Xtttitiit of Cotmiiou aaccoterieg» CAPUT IV. j©f tbDat %l)ms a ConuiiouJac^ t(ii)ttv nmv be fuffereu* A Common Recovery being a Com- mon Affurance, may be fuffer'd of all Things that a Writ of Covenant for levying of a Fine lies ; only it lies not De Fojfato Stagno Pifcar' Carocat' tenl tlje Difference betlDeen Com^ mon ^ttoUtits Xbitl^ fmgle ^ottctjer, ann tljofe itoitl) 2Dou^ We ^ottcDer* A Recovery may be had either with- out any Voucher, or with Cngle, double or treble Voucher; if there be a Recovery had without any Voucher, the Iffue in Tail is not barr'd, for the Reconipence in Value being the Reafon of barring the Iffuc, a Recovery by Default, Confeflion, or Nient dedire^ binds not the Iffue, for he has no Re- conipence, and is not eftopped by his Father's Judgment; for he claims Para- mount the Ettoppel, per for mam Doni ; and therefore in this Cafe the Iffue may fallify. If Z Xtmitt of Coiitntou Mtcohttits. 1 09 If the Recovery be with fingle Vou- cher, this is good to bar the Ellate the Tenant was in Pollcffion of at the Time of the Recovery, but no other Eftate; if with double Voucher, and the Tenant in Tail comes in as Vouchee, then it bars all the Eftates he has in Poffeflion, and all others, though difcontinued and turned to a Right ; fo that a Common Recovery, with a double Voucher, is in all Cafes moft iafe 5 and the true Reafon of this Difference between a Common Recovery with fingle and dou- ble Voucher is, that in a Common Re- covery with fingle Voucher brought againit Tenant in Tail, who vouches over the common Vouchee, if the Par- ty be in of another Eftate, the IfTue after Tenant in Tail's Death, may plead Nient Tenant' tempore brevis nee un» qiiam pofiea, and lo the Recovery void, for he is not ellopped, for at the Time of the Writ, not being Tenant of the Eftate 110 :% Xttatik of CotHtnott aaccol3et:ieS4 Eftate Tail, he can have no Recovery over of that Eftate, for he was not fei- fed of it, and a Common Recovery does not prove the Tenant was feifed of an Eftate Tail, but fuppofes it, and at the Time of the Recovery, he being in of another Eftate, the Iffiie lias right to the firft Entail, notwithftanding the Recovery ; and if the I flue enters after the Death of Tenant in Tail, he is re- mitted ; fo if Tenant in Tail difconti- nue in Fee, and repurchafes the Land, and grants a Rent and dies, the Ifliie ihall hold it difcharged ; and though the Anccftor has Judgment to recover m Value againft the Common Vouchee, that binds not the Ifliie, for he cannot recover in Value of the firft Entail, for that was difcontinued, and a new Eftate taken, and the Donor cannot warrant, by Reafon of the firft Entail, becaufe the Tenant is in of another Eftate, and this Recovery in Value cannot go to the Eftate Tail, becaufe the Tenant was I in ZXtmtiitof Common Becoijeties* in of another Eftate, and whether the Tenant in Tail Ihall recover in Value againft the Donor or his Heirs, or a- gainft an Eftranger, by Reafon of a Releafe with Warranty, is all one ; for the Land recovered in Value againft the Donor, (who, by Suppolition in Law, is always fuppofed to be vouched by the Donee, who fuffers the Com- mon Recovery) or Releafor, muft be an Eftate Tail, as well in one Cafe as the other ; but if he who recovers in. Value was not in of the Eftate Tail, then the Land recovered in Value cannot go in Lieu of the Eftate Tail ; for it is a Rule that an Eftate Tail lliall never be avoided by a Recovery in Value, if that which is recovered in Value comes not in Lieu of the Eftate Tail, which it does not in this CaJe, and therefore it defeats not the Eftate Tail, but that defcends to the Ifllie ; and by his En- try getting the Poftellion, that accou- pled with the Right, remits him ; and this 1 1 1 112 5( %tmi(t of Coniinou aatcobctics* this being no more than a Recovery on a falfe Title, amounts only to a Dif- contl nuance. If one gives Lands to J, in Tall, and after J* recovers in Value againft the Donor, of this Land recovered in Value the Iflue (hall have a Formedon, fo is not prejudiced, becaufe the Land reco- vered in Value, is in Lieu of the Lands loft by the Recovery; and that very Land ihall be faid to be the Gift of the Donor, becaufe it comes in the Place and in Recompence for that which was given and evi&ed by the Recovery. But if y. S, gives Lands in Tail to B. and after B, recovers againft C. by a Releafe with Warranty, this Land recovered Ihall not be faid to be the Gift of J, S. but of C. So in the Cafe of a Recovery with fingle Voucher, where the Tenant is in of another Eftate, the Land re- covered in Value cannot be in Lieu of the Eftate he was not feifed of when he was 1 enant to the Fr iz-^ 124 ^ Xttatiit of Coninion aSf coiieticsf^ feifin, fufFers a Common Recovery,' though this be void for want of a Te- nant to the Prccclpe^ yet the Difleifee, and all claiming under him, are eftop- ped, Cro, Car. 388. So if there be Te- nant for Life, Remainder to Baron and Feme, and their Heirs, and they fuf- fer a Common Recovery, or come in as Vouchees, this binds them and their Heirs, Stiles 3 19. And generally all are bound by a Common Recovery that cannot falfify, 2 Cro, 592. And tho' a Common Recovery bars the Iffue, and all Remainders and Reverfions, and all Things dependant, incident or derived out of the Remainder, yet it bars not Things collateral to the Eftate Tail. 2 Cro, 592. 2 Rolfs Rep. izi. Tenant for Life, Remainder in Tail, he in Remainder lets for Years, to be- gin after the Death of Tenant for Life, and after Tenant for Life fufters a Re- covery, wherein Tenant in Tail is vou- ched. Tenant for Life dies, and the ?^'^-'^ Leafe Z Xttatitt of Cottitnon MtmUtits. Leafe held good, for the Leflee may falfify. Cro. Eii^, 7 1 8 If Tenant in Tail grant a Rent in Fee, or make a Leafe, and fiiffer a Recovery, and die, the Rxoveror can avoid neither of them, for he is eftop- ped to fay Recoveree had not a Fee- iimple. Poph, 5. A Common Recovery bars alfo con- tingent Remainders ; and therefore if a Man is leifed in Fee, and devifes to his eld eft Son* Thomas, for Life, and if he died without Iffue living at the Time of his Death, to Leonard, another of his Sons, and his Heirs ; but li Thomas had liTue living at his Death, then the Fee to remain to the right Heirs of Thomas, Devifor dies, Thomas enters and fufFers a Common Recovery, and dies without Iffue, and held Leonard barr'd ; for Thomas, by the Will, had an Eftate for Life, Remainder to his Heirs, not executed ; and though the .Reverfion defcended to him, as Heir, 125 this / iz6 :3i Xtmitt of Common Mmutits. this merges not the Eflate for Life, contrary to the exprefs Will, but leaves an Opening for the Interpofition of the Mefne Remainders, when they happen ; fo the Eftate here to Thomas, being for Life, and the Eftate to Leonard contin- gent, the Recovery bars it. Sid. 47* Raym. 28. i KeL 29, 119. Jones "j'^. I Lev. 1 1 . The Reafon is becaufe the ( Recovery deftroys the particular Eftate^ which is the Prop of the contingent Remainder ; and where-ever a contin* ^ gent Remainder is limited to depend / on an Eftate of Freehold, which is ca« ^>^ pable to fupport a contingent Remain* \ der, it is always conftrued to be a Re- l^ rnainder, and not an executory Devife. And where the Remainder is contin* gent, if the particular Eftate, whereon it depends, be deftroyed, the Remain- der is gone ; fo a Devife to A. for Life^ ^Vf/? ^"^ Remainder to his next Heir Male : J, y//t ^^' fufFers a Common Recovery, the Re- k/;»^/4»^>"' «iainder is gone and deftroyed, i R. 66^ U^'>^ Z XttMite of Common 3SitcoUtltS. i z 7 Archer^sC^k, Cro, El. 453. So if ic be to the right Heirs of a Stranger living, for the Eftate is certain, though the Perfon is uncertain. Sid. 47. Though a Common Recovery bars a contingent Remainder, yet it bars not an executory Devife, nor a fpringing Ufe. It muft be owned, that People have been very ingenious in perplexing the Law; for thefe Terms are barba^ rous and unknown to the Common Law, and therefore it will be fit to fee what an Executory Devife is. An Executory Devife is where an fi* ftate devifed by a Teftator, is future, and to arife on a Contingency ; and is properly where fuch an Eftate is made by Will, which cannot, by the ftrift Rules of the Common Law, take Efc feft ; but the Party ^s Intention appear- ing plainly, the Judges, by Conftruc* tion, make it good. There are two Sorts of Executory Devifes, one where the whole Fee-fimple pafles ; and that ,128 7i%tcmktA€m\tm'^'"^^' ^ ms. is properly an hxe^u'c y a., le : The other a Kind of future L.tvile, where the Fee does not paf ^, but in the In- terim defcend^ to the heirs, Thefe Executory Devifes are permit- ted propter rei necejjltatem ; and every Executory Devife of a Freehold, mult be of a Fee, ard on Condition ; but when a particular Fftate is limited, and the Inheritance paffes out of the Gran- tor, then it is a Contingent Remainder; but if the Fee veils in any Perfon, and is to veil in another, on a Contingen- cy, then it is an Executory Devife, which needs no Ellate to fupport it, be- caufe the Ellate defcends to the Heir at Law, till the Contingency happen?. A Man devifes to one and his Heirs, and if he dies without Heirs, then it (hall remain over to B, this is a void Devife ; for a Fee cannot mount on a Fee. But if a Man devifes to A, and his Heirs, and if he die without Illue, living J, S, then to J, S, and his Heirs, I this Z Xuatitt of Contmou Mmhttits. V29 this is a good Executory Devife, not a Remainder,and a Recovery by 7^. does not bar it, 2 Cro, 591. Fo if Lands are gi« ven to B, and his Heirs, as long as C. has Heirs of his Body, and B, fufFers a Common Recovery, this bars not the Donor of his Poffibiliry, for he had not a Remainder or Reverfion, but an Intereft and Poffibility, which cannot receive a Recompence in Value. So if Lands are devifed to A, and his Heirs, as long as B, has Heirs of his Body, Remainder over, and A, fuJfFers a Com- mon Recovery, this does not bar the Remainder, for it is an Executory De- vife, and it is not feen in Law till it appears, and has no Dependance on the fir 11 Eftate. Sid. 202, i Mod. 1 1 1. A Man by his Laft Will devifes to /^u.^^^^f' > ^ jf, B, for ninety-nine Years, if he fo long lives, Remainder to the firft and other Sons of J. B. in Tail Male, Re- mainder to J, W. for ninety-nine Years, if he live fo long, Remainder to his S, firft 130 % XtttitiU of Common 3aecoi)eries* firft and other Sons in Tail Male, Re- mainder to the Heirs Male of the Body of Elii^abeth Long, Remainder to his right Heirs. And Sir Edward Nortbey was oF Opinion that the Remainder to the firft Son of J. B. was an Executory Device, but it feems this cannot be conftrued an Executory Devife, becaufe all Executory Devifes are raifed by Gonftruflion of Law, which makes the fecond Devife precede the firft, to fupport the Teftator's Intentions (as in Manning's Cafe). Now in this Cafe there can be no fuch Conftruftion : And if the Remainder to the firft Son of J. B. be conftrued an Executory Devife, then all the fubfequent Re- mainders muft be conftrued Executory Devifes, or be void. If they are con- ftrued Executory Devifes, that tends direflly to a Perpetuity ; if they are conftrued void, then the Will of the Teftator is not performed ; for he in- tended the fubfequent Remainders li- 1 inited Z Xnatitt of €mmnm Mtcobttits. 1 5 1 mited to the fccond and other Sons of J. B, and the firft and other Sons of y. IV. and the Heirs A4ale of EU^aheth Long^ (hould take as well as the firit Son of J, B. But this Intention being con- trary to Law, the Remainder to the firft Son of J, B. and all the fubfequent Remainders are void. And of this Opinion were the Judges, but the Judg- ment was reverfed ?^ Domo Procerum, and the Son of Elizabeth Long, though Trin. Tarra^ his Mother was living, bad the Eftate. '^'^' Beamont ver. Long^ in a Writ of Error a Cavri Scaccarii, A, and his Wife feifed of a Copy- hold Eftate, Jure TJxorh^ he and his Wife furrender to the Ufe of Huft)and and Wife, and the Heirs of the Hu{- band; the Huft)and furrenders to the Ufe of his Will, and after devifes to the Heirs of the Body of the Wife, if he or they live to attain the Age of Fourteen Years ; and for want of fuch Heirs, then to the Ufe of C, and his S 2 Heirs, nz Heirs: Devlfor died, the Wife married D, by whom Ihe had IlTue E, the Huf- band fufFers a Common Recovery, this bars not, for this is an Executory De- vife to the Heirs of the Body of the Wife. Raym. 162, It is faid zCro.^^z. If he to whom Executory Devife is made come in a Vouchee, his Heir is barr'd, Sect ^^re. If the Remainder be in Abeyance, a Common Recovery bars, as Tenant in Tail, Remainder to the right Heirs of J. S, Tenant in Tail fuffers a Com- mon Recovery, this contingent Remain- der is barr'd. 6 jR. 42. Raym, 28. Sid, 47. I KeLz^. zKeb,!^-]. 3 Keb.T^Z^. A Man (feifed in Fee) by Leafe and Releafe, fettles his Eftate to the Ufe of himfelf for Life, Remainder to M. his Daughter, for ninety-nine Years, if fhe lives fo long. Remainder to Truftees, and their Heirs, to preferve contingent Remainders } and after the Determina- tion of the faid Term, or the Death of Z Xuatitt of Common ^tcohmts. r 3 5 M. then to the Ufe of the Heirs of the Body of the faid M. lawfully to be be- gotten ; and for Default of fuch Iffue, then to the Ule of A, for ninety-nine Years, if fhe live fo long, Remainder to the faid Truftees, and their Heirs, during the Life of the faid A, but in Truft for the Heirs of the Body of the faid A. lawfully to be begotten ; and after the Determination of that Eftate, and the Death of the faid A, then to the only Ufe of the Heirs of the Body of the faid A. like Remainders to B. and C. and D, with like Limitations to the Heirs of their Bodies, Reverfion to a Stranger in Fee. Grantor dies, M. enters, and has a Son that attains to Twenty-one Years of Age ; the Mother and Son cannot, in this Cafe, fufter a Common Recovery, and thereby bar the Remainders ; for the Remainder to the Heirs of the Body of M. being fup- ported by the Freehold limited to the Truftees^ was a contingent Remainder^ and 134 ^ %tmitt of Common i^tcobcticg. and no Entail executed ; and fo no Re- covery can be where there is no Entail. It is true a Common Recovery would bar the contingent Remainder, if the Truftees, who were in Truft for the Heirs of her Body, joined ; but that would prejudice M. and her Son j for on her Death, he that has the next Remainder vcfted, would have the E- ftate ; fo the barring the contingent Eftates, would be no Advantage, but a Difadvantage to M, and her Sons, and all the contingent Remainders. A Common Recovery bars not a contingent Executory Eikte. So if one have an Eftate in Fee, determinable on a Limitation or Condition ; as if Lands are given to A, and to his Heirs, until B, pays him lool, and then to remain to B. and his Heirs : A fuffers a Com- mon Recovery, this bars not B. but on Payment of the Money he fhall have the Land. Palm. 132. Br id, 3. So if a Writ of Entry be brought againft the Mortgagee, Z Xttatitt of Comniou 3Xtcmtits. 1 3 5 Mortgagee, and he fufFers a Common Recovery, this bars not the Mortgagor; but if the Mortgagee vouch the Mort- gagor, it is good, but it is no bar, unlefs he be vouched. 2 Roll. Rep. zzz, 2 Cro. 592. I Keb. 30. If one has an Eftate for Life, with Power to make a Jointure, and fuffer a Common Recovery, his Power is ex- tinguilhed ; for the Eftate to which the Power was annex'd, is gone and forfei- ted by the Recovery. Aliter of a colla*- teral Power to make Eftates ; as where Executors had Power to fell. Vent.iz^^ z6. I Mod, III. I Keb. 31. 3 Keb, 291. Leafe for Life to A. Remainder to B. in Tail, E.emainder to C. in Tail, Re° mainder to the right Heirs of A. Pro- vifo that Ao (liall have Power to make Leafes in Polleffion, Reverlion, or Con- tingency, to commence after Death of B» without Iffue. A. makes a Leafe for Years, to comm.ence after the Death 1 3 5 7i Xttatitt of ComtttOtt aatcobetieS* Death of B. without Iffue, B. fufFers a Common Recovery, this bars the Leafe, Raym. ii6. So if an Eflate be limi- ted to one for Life, Remainder to his firft and tenth Sons in Tail Male, and for want of fuch Iffue, to Truftees for 500 Years. If any Tenant in Tail in Poffeffion, fuffer a Common Recovery, the Remainder for 500 Years is barr'd. Sid. 102. I KeL 462. 3 KeL 488. One made a Gift in Tail, determina- ble on the Donee's Nonpayment of 1 00 /. Remainder to B, in Tail : Tenant in Tail, before the Day of Payment, fuf- fers a Common Recovery, and after pays not the Money ; yet becaufe he was Tenant in Tail, when he fuffered the Recovery, all is barr'd. 1 Mod.i 1 1, I Keb. 31. 3 ICeb, 291. A Term fubfequent to the Eftate Tail, as to rife after Failure of Iffue Male, is barrable, as has been faid be- fore, by Common Recovery ; but if a Man make a Leafe for 100 Years to B. Z Xtmitt of Comtnon Bccofceties* 137 B. to commence after the Leflbr's Death, without Iffue Male, in Truft for Payment of Daughters Portions, and after, by another Deed, limits the Lands to the Ufe of himfelf for Life, Remainder to his firft and other Sons in Tail, a Common Recovery bars not the Terra for i oo Years ; for the firft Term was precedent, and the Eftate created by different Deeds, but by the fame Deed Alit\ And the Cafe of Goodier and Clarke^ i Lev. 3 5. was a Settlement in Confideration of Mar- riage, and a looc/. to the Ufe of the Hufband forLife, Remainderto his firft, fecond and tenth Son in Tail Mile, and if he died without Iffue Male, Re- mainder to the Ufe of his Daughters, for a Term of Years to raife i 500 A Re- mainder over. The Huft)and has a Son and Daughter, and dies, the Son died without Iflue, fo the Land remained over, according to the Settlement ; and there held, the Son might have barr'd T this 1 J s % Xteatif e of Conimon Jaecoijetiesf. *8^'iV^2 6 ^^^^ Term by a Common Recovery ; but Sid. lol it is plain the Cafe was not rightly fta- ^ ted ; for it fecms this Term created for Daughters Portions, was in another Eiit 9uare if pf^ccdent Dccd made before the Settle- fuchLeafebe nient, and then could not be barred. mence ^fttr I Keb, ^6 1, And fo held by the Lord Su'r' °^ Chief Juitice Holt, Andrews ver. Stroud^ T. >) Anne, B. R, So the Difference is, when the 1 erm is precedent to the En- tail, and when fubfequent ; fo is Hud- fon's and Benfons Cafe, 2 Lev. i6. but better reported i Mod. 108. A. covenants to levy a Fine to the Ufe of himfelf and the Heirs Male of his Body, Remainder in Tail to fe- veral others, Remainder to his own right Heirs, provided. always, and if i: fliall happen that there be a Failure of IlTue Male of his Body, and Anne his Daughter be married, or of the Age of Twenty-one ' Years, then fhe to have 2CO /. a Year for ten Years. Tenant in Tail dies leaving Iffue Male, who enters ^ Xvtatih of Comtnon Mtto\)ttits. i j 9 enters and makes a Leafe for a thou- fand Years, and levies a Fine, and fufFers a Common Recovery, and dies without lilue ; Anne was Twenty- one Years old, and held the Rent of 200 /. per Annum, well barr'd by the Common Recovery, becaufe the Remainder out of which it ilfued, is barred. 3 ICeb, 274, 287, 292. Raym, 236', i Mod. 108. 2 L^t;. 28. Cro,El.']6^, If a Gift in Tail is made, rendring Rent, and Tenant in Tail fufFers a Re- covery, this bars not the Rent, but it remains as a collateral Charge on the Land, diftrainable of Common Right; but if there had been a Condition of Re-entry for Nonpayment, the Condi- tion had been gone. Cro, El. 'jzf, 768, 769. Jenk. Cent. 413. 3 Leon. 161, 2 And, 170. 2 Lev. 30. If the Iflue in Tail comes in by Title Paramount, the Recovery of his An- ceftor bars him not, i i^. 95. a. T 2 If 1^0 TLXttatitt of Common ^Recot^eticst*^ If Baron be feifed in Tail, jfure Uxorisy Remainder in Tail to B. Re- mainder to C, Baron bargains and fells the Land, and a Precipe is brought againft the Bargainee ; this bars all the Remainders, but not the Feme. 2 RoL Abr. 394. If A. be Tenant in Tail, Remainder to B. in Tail, Remainder to ^. in Tail, A. makes a Feoffment, Feoffee fufFers a Common Recovery, and vouches B, his Entail and all fubfequent Remainders and Reverlions are barred, but not the firft Entail to A. 7^ R, 6. If an Eftate be limited to a Man and the Heirs Male of his Body, as long as fuch a Tree Hands, a Common Reco- very bars this Eftate, i Mod, iii. 3 Keb, 392. If Tenant in Tail levy a Fine with Proclamations, and after the Proclamations, fuffer a Common Recovery ; though by the Fine with Proclamation, the Eftate was well bar- red, yet this bars the Remainder, tho' there :^ Xtmtitt of Commott ^Sittoutits, there was no Eftate Tail at the Time of the Recovery. 2 RoL Ah. 394, Cro.EL 388. Feoffment to the Ufe of himfelf for Life, Remainder to his firft Son in Tail Male, and before a Son is born Tenant for Life fuff'ers a Common Recovery, and after a Son is born he cannot avoid it, becaiife Remainder not in Effe; and for that Reafon it fhould not bar, bwcaufe Remainder not being in Ejfe^ the Re- compence cannot extend to it, 2 Leon. 224. Moore 201. But the true Rea- fon is, becaufe the Remainder was con- tingent, and the Eftate on which it de- pended gone ; and a Fine or Feoffment in this Cafe, would have deftroyed the Remainder, as well as a Common Reco- very 3 fo if Remainder be in Abeyance, An Eftate was fettled by A. to the Ufe of himfelf for ninety* nine Year?, if he live fo long. Remainder to jB. for ninety-nine Years, if he live fo long. Remain- Mi 142 ^ Xteatife of Common MttaUtkS^ Remainder to Truftees to preferve con- tingent Remainders, Remainder to the firft and other Sons of B. Remainder to the right Heirs of B. B. has no liTue, he and his Truftees join in a Feoffment, this bars the Remainder to the right Heirs of B, and his firft Son, if any born after ; for thefe Remainders were con- tingent ; but if the Remainder had been to the right Heirs of A, it had been his Antient Revcrfion. Tigot and Pigoty in Cane. Mich, i z Ann, CAPUT vn, C^f ^oucljiug auu aaecol^erp in HEN the Tenant to the Prae- cipe has a Writ of Entry brought againft him, in order to fuffer a Common Recovery, he appears either in :^ Xuatitt of Common Mtmttits. 1 4 3 in Perfon or by Attorney, and takes upon him the Defence of the Land, and vouches to Warranty, that is, alledges he had the Land of another, who in the Conveyance thereof, bound himfelf to warrant, and make good the Title ; fo prays that Party may be called in to defend the Title ; and this, in Law, is called a Voucher, which, as my Lord Coke defcribes it, is when the Tenant calls in another into Court to defend the Land, or otherwife to have other Land of him of the Value of the Lands loft, by Reafon of his Warranty ; and he who vouches is called the Voucher, and he who is vouched the Vouchee ; and if the Vouchee be in Court, he immediately enters into Warranty ; but if he be not in Court, then goes out sl Sum ad Warr\ and then the Entry is vocat' inde ad Warr A. B. Smrt in Corri pr^ediSio tf habeat eum hie a die^ ^c. per Aux ilium Cur* idem dies dai eftpartibus pr^d' hic^ i^c. And though in the Cafe I of m ^ Xttatiit of Common JRecoi^etieff* of Common Recoveries, the vouching and every Thing elfe feems to be Mat- ter of Form, yet the ftiewing the Na- ture of Voucher in Adverfary Writs, will illuftrate this Matter. At Common Law all were to appear in Perfon, before Juilices in Eyre ; and therefore if the Vouchee were not there the firft Day, he was amerced, See Stat, of MarlhridgCy 27 Wefim. i. cap, 39. and 10 Ed, 1, de Vocatis ad Warr\ 14 Ed, 2. c, 1%, and what Alterations they have made in the Common Law. In all Poffeffory Aflions, if the Te- nant vouches to Warranty, and the Demandant counterpleads the Voucher, and will aver the Tenant or his An- ceftor?, whofe tieir he is, was the firil that entred, he fhall be received in all Writs of Entry that make mention of the Degrees, none fhall vouch out of the Lien ; but if a Diffeifor makes a Leafe for Life, Remainder in Fee, Dif- feifee brings a Writ of Entry in the I Pevy Z Xuatitt of Common Wimutits, 1 45 Per, againft LelTee for Life, who makes Default, and he in Remainder is re- ceived, he may vouch out of the De- grees, and a Voucher is properly on a Feoffment with Warranty ; but on a Releafe with Warranty, the Party is put to his Warrantia Charts. M. iz H.-j,:^, Precipe quod reddat againft A* who' vouches B. who enters into Warranty, and after the Demandant releafes all his Right to A, A. cannot plead this, for the Continuance in Court is be- tween the Demandant and Vouchee ; but the Vouchee may plead it, or a Releafe to himfelf T. 5 H, 7. 59, 40* Jenk, Cent, ico. In fome Cafes a Man may vouch himfelf as Formedon againft Hufband and Wife, they vouch the Huft)and, and ftiew for Caufe, that the Father of the Hufband enfeoffed certain Perfons, who gave the Land to Huftiand and Wife in Tail, and vouch the Hufband to fave the Entail, M . i i H. 7. 7. And U in 14^ ^ Xttatitt of Conunott 3iaccot>erir5* in all Cafes where a Man vouches him- felf, he muft Ihew Gaufe, M, 1 2 H.^.j. Precipe quod reddat againfl: one who vouches himfelf to fave an Entail, and the Voucher accepted, and a SumadlVarr[ iffues, and Summons returned. Vou- chee makes Default, Tenant appears. Grand Cape awarded, for it is in the Degree of another Perfon, tho' vouches himlelf, P. 42 £. 3. i5. And in fome Cafes the Vouchee may vouch the De- mandant himfelf; as Aflize of Mort^ aunceftery by Ijahel in London^ who vou- ches a Foreigner, and the Record fent into the Common Pleas, and Procefs againft the Vouchee, who enters Cngly into Warranty, and pleads that one Alice was feifed in Fee, who took the Vouchee to Hulband, and had Iffue Jjabel the Demandant, and Alice is dead, and the Vouchee Tenant by the Curtefy, and prays in Aid of him, 41 £. 3.7. 1 The ^ Xu&titt of Common ^Jlctobeties* 1 4 7 The Tenant vouches J, Pinfar^ and on the Surn ad Warr\ J. Pinjar, Chap- lain, appears and demands the Lien, Te- nant pleads it is not the fame Perfon, the Demandant prays Seifin oftheLand, and the Counter-plea held ill, for after Voucher granted, the Demandant fhall not have Counter-plea ; and it is not Reafon that by a Stranger's appearing the Tenant ftiould Jofe his Warranty, and a Capias ad Valentiam awarded a- gainft the true J, Pinjar, PaJcb^Cy 45 Edn>, 3. 6, Praecipe quod reddat Tenant vouches two Heirs, and pleads one is under Age, and prays the Parol may demur ; the Demandant replies, at full Age, and prays an Infpe£lion and Procefs till the Sequatar Jub fuo periculo, and at the Re- turn does not appear ; the Demandant prays Seiiin of a Moiety, and a Sum' ad Wan' for the other Moiety, T. 45 £.5.23. If two are vouched, and one makes Default, a Capias ad Falen U 2 iflfues 1 4^ 3t Xtmitt of Common 5Recoi3etic^. iffues of all againft him that made De- fault. J And the Method ufed for Recovery of Land on Voucher in Adverfary Writs, is to be obferved, lince it con- duces much to the Underftanding the true Reafons Common Recoveries are grounded on. If the Vouchee be not in Court, then a Simi adWarr' goes our, and if the Sheriff return the Vouchee fummoned, and he make Default, then a Capias ad Valentiam goes out for the Tenant ; but if on the Sum' the Sheriff retorn iV/7, an Alias , and after a Pluries go out, and then a Sequatur fubjuo Fericulo iffues ; and if Vouchee makes Default, Judgment fhall be given for the De- mandant to recover the Land, but no Judgment for the Tenant to recover in Value, becaufe it appears Vouchee had not Affets, i Inft. loi. So if a Sum- mons be returned, and a Default made, and a Capias ad Valentiam iffue, and aiS//7 is returned, an Alias and Plus Pluries if- fues. ZXn^titt of Common WitcoUtitS, 149 fues, with a Sequatur fub fuo Pericuh on the Pluries. If on the Retorn of the Caad Valentiam^thQ Vouchee makes Default again, Judgment (liall be given for the Demandant againfl: the Tenant, and for the Tenant againfl: the Vou- chee; and in fhort, the Procefs to call in the Vouchee is 2. Suni ad Warr\ if the Sheriff returns a Summons, and Vouchee makes Default, then a Magnum Cape ad Vat goes out, and if on it he makes Default, Judgment is given againfl: him, and that he fliall have in Value againfl: the Vouchee, but if Vouchee appears and makes Default, then a Par^ vum Cape ad Fal' goes out, and on another Default, Judgment as before ; but if the Sheriff returns Nil, then an u4Iias iff Pluries iff Sequatur fub fuo PericulOy and the Tenant has no Recovery over, as has been faid before; if there be a Default of the Vouchee at the Return of the Sequatur fub fuo Periculo^ then the Tenant muft be call'd, and if he make I Default, J so % Xttatiit of Conmion Becofeetirg* Default, a Petit Cape is awarded, and no Judgment till the Return, Ke!. 41, If the Sheriff return not the Writ through the Tenant's Default, Deman- dant may pray Seifin of the Land. On every Sum ad ]Varr\ in Adverfary Writ?, there muft be nine Returns between the Tefle and Ret' ; but the Praflice is otherwife in Common Recoveries, by the Stat. \6 Car. 2. c, 6» vide poft. At Common Law, as appears by the faid Statute, were nine Returns, the Words are thefe, ^^ And whereas be- ^' fore the making this Av^, all Writs " of Sum ad Warr againft Vouchees " upon Common Recoveries had in *' Writs of Entry and Writs of Right *' of Advowfon, had nine Returns, in- " cliifive ; now for the more Ipeedy " perfefling fuch Recoveries, be it En- *^ afled, That all and every fuch Writs '' of Sum^ ad Warr' upon the Appear- *' ance of the Tenanc to every fuch '[ Writ of Entry or Writ of Right of " Ad- :% Xuatitt of Common WiuaibttitS. 1 5 1 " Advowfon, lliall and may be made *' and abridged to five Returns, as Writs *' of Sum* ad Wan in Writs of Dower, *^ unds nil habet,^^ The Returns are not abridged in this Cafe in Irelandy but they are never ob- ferved ; for where the Voucher appear by Attorney, they make them appear gratis, inftantly, without any Day gl- ven ; and though this is aflignable for Error, yet upon fearch, the Precedents appearing all uniform in this Point, it may be faid Communis Error facit Jus ; and therefore it has not been thought advifable to bring a Writ of Error on this Defefl:. If two enter into Warranty, and one dies, the Lien does not furvive, but his Heir fliall be fummoned with the Survivor. T. 17 £. 3. 41. Tho' in Common Recoveries, which are always by Allent of Parties, the Vouchee never demands the Lien, yet he may, and then his Warranty extends no 1 52 :^ Xtmtitt of Cotttmott BecobcticiS*- lio farther than the Lien, as appears by PIoTvd, ManxYpelh Gafe. 2 Brorpnil 171. But If without demanding the Lien, one enters generally into War- lanty, there fhall be an Execution of all Warranties, and it binds all Rights. If Tenant in Tail vouches in an Ad- verfary Aflion, and recovers in Value, and has Execution, and after the Re- covery is falfify*d by him, and he has the Land again, yet he Ihall retain the Land recovered in Value for fear of future Lofs, becaufe his Warranty is determined ; for when he has had Judg- ment and Execution, he has had the EfFeft of his Warranty, and can vouch no more on that Warranty, i o R. Mary Fortington^ Cafe. Hob, 27. CAPUT 31 XttMU Of Coinmoit 3^mUxits. 1 5 3 CAPUT VIIL £)f €xmitimi, auD tlje Cflaf e tije AFTER the Demandant has Judg- ment in a Common Recovery a- gainft the Tenant, and the Tenant againft the Vouchee, and the Vouchee againft the common Vouchee, the Court a- vvards a Habere fac Seifinam to the Sheriff of the County where the Lands lie, which is returned, and fo the Re- covery compleat and executed. And though this is not much regarded, being only Matter of Form, yet in many- Cafes it is not fafe to proceed 'till there is a Return of the Habere fac* Seiji" nam ; for whenever a Recovery is to Ufes, as all Common Recoveries are, no Seifin is in the Recoveror, no Ufe raifed, X 'till 154 :^lCt:eat(fe of Common 3aecoi)cnes. 'till the Execution of the Recovery ; for 'till then the Land paffed not. Moore 281. r. 7 F. 4. 17. So that till then no Ufe arifing, the Party to vvhofe Ufe the Com- mon Recovery is declared to be, can convey nothing, for Nemo dat quod non bahet. If Tenant in Tail fuflFer a Common Recovery, and dies before Execution, Execution may be fued againft his IITue, TloYpd. 55, 375. I R' 6, If Lands be conveyed to A, and his Heirs, with Warranty, and the Grantee fufFer a Common Recovery to the Ufe of him and his Heirs, it is but the old Eftate in Degree and Privity, as before. So if Lands be conveyed to A, in Fee, with Warranty to him, his Heirs and Afligns, and A. fuffers a Common Recovery to theUfeof a Stranger, the Recoveror may vouch as Affignee, Hob. 27. And when- ever a Common Recovery is fufFered by a Man to his own Ufe, he is in the Eftate as he was before. Tenant Z Xttatik of Comtnott MtcohttkS. i {$ Tenant in Tail morfgages his Lands, and after fufFers a Common Recovery to make a Jointure, this Recovery ex- tends the Eftate Tail, and lets in the precedent Mortgage in Prejudice of the Jointure ; becaufe the Recoveror comes in in Continuance of the Eltate Tail, and fubjefl: to all Incumbrances of Te- nant in Tail ; and in this Cafe the Court of Chancery will not relieve, I Chan. Rep. 120. Recoverors in Common Recoveries, their Heirs and Afligns, by the Statute 7 H. 8. c, 4. have like Remedy againft LefTees for Lives and Years, by Diftrefs, Avowry, and Aflion of Debt for Rents and Services that fliall be due after Re- covery, as the Party had before ; and alfo like Aflions of Wafte, and on Di- fturbances in Prefentations, as the Let for had. If a Man make a Leafe for Years to begin at Michaelmas^ referving Rent, X z and I $6 :?t Xtmiit of Comnion 3accDi3crieiS* and before Michaelmas fufFers a Com- mon Recovery ; the Recoveror fliall, in this Cafe, diilrain for the Rent which Leffor before the Recovery could not. I In[i. 104. CAPUT IX. €)f falfifpins Common Jaecobcries. A Common Recovery may be de- feated, fruftrated and reverfed, which is call'd faHifying, many Ways, as by Entry and Plea, by Adion, by Aftion and Plea, by Plea only. By En- try and Plea, when the Party's Entry is not taken away by the Recovery, and he brings his Affize, and the Recovery is pleaded againft him, and he pleads Matter to avoid the Recovery ; But to clear thefe Points, let us iee who may falfify in an Adverfary Recovery. If one Z Xuatitt of Coniinott Becolier ics^ 1 5 7 one be oufted by Covin, between the Demandant and him that oufts, the Te- nant and Demandant brings an AfTize againft the Party that oufted the Te- nant, the Tenant may have an Aflize ; and on the Special Matter fhewed, Ihall avoid this Reco^'ery. By Aflion and Plea, that is, when the Entry of the Party that has Right, is taken away by the Recovery, and on a real Aflion brought, the Recovery is pleaded in Bar of the Right, this may be falfify'd by Plea, and fo by Aflion only, or by PJea only. The Gaufes for falfifying Recoveries, are Covin, an elder Right or Title, Want of Jurifdiflion in the Court, War- ranty and Aflets, a Releafe, Feint plead- ing, no Tenant to the Freehold, orWant of Eftate in the Tenant; to make out which, fee the following Authorities. Sa fac on a Judgment in a Cejfavit, againft a Parfon, who prays in Aid of the Patron and Ordinary, who makes Defaults 1 53 ^% Xtmiit of Connnon mecDl^ericS^ , - Default,and on the Default, Judgment gl- / ven ; and now to the Set fac\ the Parlon '^ pleads Non Ceffavit ; and by Martin and Pajion, he iliall not falfify this Reco- very againft his Predeceffor, but is put to his Juris Vtrum^ lo H. 6, 5, 5. Sci fac' againft an Abbot, on a Judg- ment in an Annuity had againft his Pre- deceffor, the Abbot pleads that his Pre- deceffor confefs'd the Judgment, when he had a Releafe of the Annuity ; and per Cur\ He Ihall not thus avoid the Recovery ; for his Predeceffor had the Fee-fimple, and not like a Parfbn who is ^odamodo Tenant for Life, who Ihall avoid it, where it is without Aid pray'd of Patron and Ordinfary, 30 Jfi ^.45, 45. Annuity againft a Parfon who prays in Aid of Patron and Ordinary, who makes Default, and the Parfon tries the Title, and lofes, this binds the [Succef- for, and he fhall not falfify the Reco- very in the Point tried, though all the z ^ Jury Z Xvtatite of Conmiou Mtcohttits. 1 59 Jury be dead, fo that he cannot have Attaint. 3 4 H. 6. 2. k 10. Affize ; Tenant pleads in Bar a Reco- very in Dower; PlaintifF replies, that the Lands demanded are in the Cinque Ports, \Jbi breve Domini Regis non cur* rity and held the Plea ill ; for Judg- ment at Weftminfler, for Lands in the Cinque Ports , good ; Aliter of Lands in Wales. 36 H 6. b, 32? 33. Writ of Forcible Entry, the PlaintifF makes Title by a Recovery in a Writ of Right againft the Leffor of the De- fendant ; the Defendant pleads, that at the Time of the Writ of Right brought, his Leffor had aliened the Reverfion to A, to whom he attorn'd, and held good. I H. 7. PL 7. A Parfon made a Leafe for Years, and afterwards in a ^are Impedit brought againft him and the Patron, they pleaded feintly, Leffee (hall not falfify, becaufe if the Parfon had re- figned, the Leafe had been gone. TL z6 H.Z. PL 3. En- X 60 % %tm\U of Conimon Becotjeties* Entry in the Pofl^ the Tenant vou- ches, and the Vouchee makes Default, and LeiTee for Years of the Tenements, prays to be received on the Statute of Glouc\ becaufe Vouchee is now Tenant j and by the Statute of H. 8. if he is not received, he may now be admitted to falfify. 27 H. 8. PI. 20. Note, Where it is faid in the old Books, that Privies cannot falfify in the Point tried, that muft be underftood in a Scf fac\ on the fame Judgment, or in another Aflion of the fame Na- ture ; but in an Aflion of a higher ISIature, the Parties may try the fame Thing again ; and there is a Diflference where the Parties have not the abfolute Fee in them as Parfon?, Prebendaries, iffc, there the Sticceffor is not bound ; but in Aflions of the fame Nature, may falfify, or have Juris Vtrum ; but where, by the Common Law, they have the mere Right as Bilhops, i^c. there they cannot falfify. 6 R,S.a. 2 Father Z Xuatitt of Conimon 3Rccoiieries^ i6i Father Tenant in Tail, enfeofFs his Son, and diffeifes him, and levies a Fine, the Son enters before Proclamation paft, and enfeofFs A, who makes a Leafe for Years to J5. the Iffue in Tail, on a Formedon, recovers on a feint Defence. B. brought an Ejeflment, and held that he might falfify the Recovery in the Formedon. 2 Cro. 589, 610, Moore PL 503. 0)ven 15. Diffeifor makes a Feoffment in Fee, the Feoffee leafes for Years, DifTeifee recovers againil: Diffei- for in an Affize ; on a Nil' tie! tort pleaded i Leffee fliall be admitted to fal- iify in the Point try'd, and to plead that the Diffeifor Ne dsffeije pas ; for he is a Stranger, and at Common Law, every Stranger may faliify, becaufe he cannot have Error or Attaint, and where he has Wrong, by natural Equity he ought to have Rcdrefs. 5 Cro, 284. In Dower a Termor pray'd to be received for his Term made by Leafe betore the Coverture ; and held by the Y , Court, i6i 3( Xteatif e of Commott Becobmcs* Court, that in this Cafe, the Judgment fiiall be general; but the \Vrit (hall command the Sheriff to go to the Land, and to deUver Seiiin to the Feme, but not to ouft the Tenant ; fo that thereby Demandant has Rever- lionandthe Rent. 3 Cro. 5^3, 564. Tenant for Life, Remainder in Tail, the Remainder-Man makes a Leafe for Years, to commence after the Death of Tenant for Life ; a Common Recovery is fuffered by Tenant for Lite, who vouches him in the Remainder, the Lef- fee for Years may falfify. 3 Cro, 718. Where it is faid in the Books, one ihall not falfify where he is Party, it hath three Exceptions; firft, if the Party can Ihew that the Recovery was void in Law ; fecondly, if the Recovery was of Lands in D. and they lie in C. thirdly, if the Recovery were on a Writ that is aba- ted. 2 Cro, ^66, Tenant in Tail acknowledges a Sta- tuxe and dies, a Sc! fac is brought a- I gainft :^ XttaMt of Common ^mUtits. i <^ j gainft the Iffue, and the Sheriff returns him Tenant of the Land, and he ap- pears to the Writ, and pleads Rein per Difcentj and Verdift againft him, and before Judgment leafes to 5. he cannot in this Cafs fallify ; for here, by this Judgment, the IlTue is bound and chargeable with the Statute ; and he being bound, his Leffee that claims un- der him is bound alfo. The Cafe is well argued, 3 Bulft, 345. where are many good Cafes put about fahifying Recoveries. RoL Rep, 424. As to Tenant in Tail, it is held in all the Books, that the Iffue in Tail Ihall never falfify in the Point tried ; and therefore if a Recovery be againft Tenant in Tail, and a Nient Dedire pleaded, the Iffue has no Remedy, but by Attaint ; but if the Verdidl be on a collateral Matter, and not on the Title, or by Default, he may falfify, Brooke^ Tide Faux'ifier Recovery^ PL 4. Y 2 A Man ^4 ^ %tmitt of Common ^aecoberies* A Man recovers Lands, and brings a Sa fac againft M. N, and after brings a Sci' fac againft J. Tertenant, who pleads M, N, was not Tenant at the Time of the firft 6"^/' fac brought, nee anquam pojlea, but one B, whofe Eftate the Tenant now has, fo the Recovery void, and held a good Avoidance of the Recovery; and yet Non Tenure^ gene- rally is no Plea. Brooke^ Fauxifier Re- covery^ PA 32. By the Stat. 21 H8. r. i «^. Tenants for Years, by Stat. Merch, Staple or Eh' gh, may faliify feigned Recoveries fuf- fered by them in Reverfion ; and tho' none can falfify in the Point tried, yet in fome Cafes vv^here the Party cannot have Attaint, he may ; but none can in any Cafe falfify, without making Title, nor can he falfify who claims under him that fuffered the Recovery. Thefe are the Rules laid down for falfify ing Recoveries in Adverfary Writs, and Common Recoveries may alfo in many Z Xtmitt of Comniott ^mutit^. 1 6 5 many Cafes be avoided. As if there be no Tenant to the Precipe, or if the Writ is brought againfl: a Stranger that had nothing, and he vouches Tenant in Tail in PofTeffion, or becaufe he that hath the Eftate and Right, is not Party or Privy to the Recovery. As when a Writ of Entry is brought againll the Diffeifor, and he vouches a Stranger, or if another have a Term or Intereil: at the Time of the Common Recovery, there they may falfify to fave their Interefts ; or if it be by Covin by Tenant for Life to difinherit the Reverfioner ; or if there be an Error of Subftance in the Recovery, a Writ of Error h'es. And where a Common Recovery is avoidable, it muft be avoided by him that is barred by the Recovery, as by the Iffue of Tenant in Tail, or if none, by the Remainder-Man, or Reverfioner by Writ of Error ; and if Tenant for Life fujflFer a Recovery, he in Reverfion may falfify during the Life of Tenant for i66 Z XttAtiit of Common 3Xtttii)ttitS. for Life, or after his Death. And whenever a Common Recovery is falfi.- fied, it is by Writ of Error, by Plead- ing, and in fome fpecial Cafes, by Mo- tion of Court If an Infant reverfe a Common Re- covery for Nonage, he mud do it under Age. I Mod. 49. Sid, 321. i Lev. 142. See Stat, of Glouc, c, 11. that Lef- fees in London may falfify. 21 if. 8. f. I 5. 2 Inji, 3 22, 3 23, 324. CAPUT Z Xttatitc of Common Mmi^ttits. 1 57 CAPUT X. i©f €rto?S in Common WittoU^ tits, ano in tbijat Cafes Com^ mon^aecDberies ano lines ma^ be amenoeo^ Common Recoveries being judicial Executions of the Agreement of Par tie "5 the Law gives them all favour- able Gonftrufliion imaginable ; And the Judges even extend their Power to ferve the Parties Intentions ; and the Courts at Weflminfler are ever ready to fupport them^ where- ever they can, but yet fo as to keep up the Form of judicial Pro- ceedings, and not totally to introduce Barbarifm, and encourage Ignorance* And for the Support of Common Recove- ries, being Common Affurances of Land, the Stat. 23 EL c, 3. enaft?, That no Common Recovery lliall be reverfed for falfe 1 6^ z xxtMiit Of Common 3^tmUtit&* falfe or incongruous Latin, Rafure, In- terlining, Milentry, Omiffion of the Return of the Sheriff, or any other Want of Form. By the Star. lo t^ 1 1 If. 3. c. 14. No Fine or Common Recovery, or any other Judgment, unlefs Error brought in twenty Years ; if Perfons wfrdy i^c, then within five Years after the Impe- diment removed. A Writ of Error was brought to re- verfe a Common Recovery had at the Grand Seffions in Wales ; and the Er- ror afligned was, that the Summons is dated after the Ded, poteftat. and fo no Warrant of x\ttorney at the Time of Appearance, but held good, Sid. zip. And in this Cafe the Court, to fupport the Com.mon Recovery, will intend • there was another Warrant of Attor- ney, Raym, 11, 34, 90. i Kel^. 34. I Lev. 13c. Dyer 12c, contra^ i Leon, %6, and in Raym, 71. held that the Ded.poteflat. is no Part of a Fine, though 1 a War- 7i Xtmiit of Comnton WittoUtitS. 1 6^ a Warrant of Attorney is of a Reco- very ; but if the Party be dead, then it is ill. 2 Vent. 96. 20 H, 7, 9. Writ of Entry Ret^ die Lunxe quart'* Septiman ^adragef.ni prox' futur\ ftiall be referr'd to the fourth Week next, not the next Lent. Cro.El. 589. If tlie Vouchee die before Judgment, or be under Age, and appear'd in Per- fon, or by Attorney, it is Error, i RoL 301. Dyer ^o. Palm. 224. An erroneous Common Recovery is good till reverfed, by Reafon of the in- tended Recompence ; and if Tenant in Tail fuffer an erroneous Recovery, and after difleife the Recoveror, and dies, his Iffue fhall not be remitted ; for the Re- covery fhall be prefumed good, till it is reverfed. 3 -R. 3 . i o jR. 3 84 If he who fuffers a Common Reco- very levy a Fine, or make a FeofFmenr, he cannot have a Writ of Error to re- verfe it, Z And J 70 z Xtcatife of Common Wittt^tttitS. And Common Recoveries being only Common Affurances, the Court of Common Pleas does amend and fnpply the Defefls of Clerks and Attornies in the entring up fuch Recoveries:, or in Writs relating to the fame. So a Com- mon Recovery was agreed to be fuffer'd, wherein John Cbapham and Richard El' ton, were to be Demandants, and by Mi- ftake of the Clerk, the Writ of Entry was fued out in the Name of John Chap- ham and John Elton, and the Recovery fuffer'd in the Name of John Elton, in- ftead of Richard, and this Recovery a- mended, Trin. z Car, i . Chap ham ver. Ba- con. The Rule for this Amendment is to be found in the Remembrance of Rules in Foley s Office, that Term, on the third Skin, and firfl: Side of the fame Skin. A Warrant of Attorney was given in order to fufFer a Common Recovery, by William Reynolds, and He/ler his "Wife ; but the Serjeant that took the ■ Warrant of Attorney, certifies the fame 2 to Z %uatiU of Comuifttt Mtmttits* i ^ i to be given by the faid William Reynolds^ and Margaret his Wife, and the Mitti- mus and Tranfcript were made of a Warrant given by Margaret, and the Re* CGvery entred accordingly, and all ordered to be amended. Mich,^ Car. i. the fame OiSce, fifth Skin, on the Back of the fame. • A Common Recovery agreed to be fuffered by Arthur Go/ding iff Ua", of Lands in Aiphamton, ^ Magna Hermny^ in Com Effex^ but by Miftake, the fame was fuffered of Lands in Alphampton and Lamarfljy and ordered to be amend* ed in the Writs of Entry, Seifin and Entry of the Recovery, M, 6 Car. i ; Skinner verfus Laud, the fame Office, fecond Skin, the Back of the Skin. A Common Recovery fuffered by J^. Callorp iD" Ux, but the Name of the W^ife totally omitted ; and this order'd to be amended, M. 8 Car. i. Thurban verfus Pantry ; fame Office, third Skin, on the Back of the fame. Z X A Com* 17 2 Z %xmiU of ConmionlRecoliertes^. A Common Recovery was agreed to be fuflFered of Lands in Nem? Churchy Levington and Mer/ham, but Nevp Church was totally omitted in the Recovery ; and this upon reading the Indenture, ordered to be amended, T. 13 Car. i. Whetwell verfus Mafiers '^ fame Office, fecond Skin, firft Side. A Common Recovery was agreed to be fufFered of two MefTuages and one Garden in London, and fufFered only of one MelTuage, and ordered to be a- mended, Tr, 13 Car. i. Brooke ver. Bid- dolph, fame Office, firft Skin, firft Side. A Writ of Entry for a Common Recovery was fued out returnable in Craflin Animartm, and a Recovery fuf- fered thereon, but the Writ of Seifin made returnable, the fame Return as the Writ of Entry, and this ordered to be amended, P. i5 Car, i. Donca- fler verfus Campion^ the fame Office, third Skin, fecond Side. A Deed Z Xuatik of Commott ^XtcohttitS. 1 7 j A Deed to make the Tenant to the PrtecipCy was executed, dated i Nov. 2 2 Car, 2. and Common Recovery fuffercd thereon, and the Writ of Entry made Rei' tres Mich\ before the Date of the Deed, and this ordered to be amended, and the Writ of Entry mstde, RepXrafiin Animarum^ M. 4 W, iff M. Bunce tf at verfus Greenway <^ af : This Rule is in the Remembrance of Mr. Borretth Office. A Deed was made to make a Tenant to the Precipe, dated the 1 1 Nov, and a Common Recovery fufFered, and the Writ of Entry made returnable menfe Mich\ before the Date of the Deed, and this ordered to be amended. Mick 5 W. isf M. Wamy verfus Jodrell. A Common Recovery had been dif- fered, and the Writ of Entry made Ret\ before the Date of the Deed, that led the Ufes of it, and which made the Tenant to the Fr^cipe^ and on reading the Deed, ordered to be amended. M. 5 }f. to' M. Warkhoiife verfus Watts : This m Z Steatite of Coumton ^mUtits. This Rule may be found in the Re- membrance of Mr. Cookers Office. A Fine and Common Recovery were agreed to be levied and fuffered of the Manor of Inkfield, in Corri Salop ^ and by Miftake, the fame was made Ingk" feiUy and both ordered to be amended, vi^, the Fine in the Record of the King's Silver, in the Foot and Note of the Fine, and in all the Places of the faid Fine and the Recovery. In the Writ of Covenant, Writ of Entry, Exem- plification, i^ habere fac* Seifinam, 9 IV. 3. Int' J. Foflre, Ar iff Ux. And this Rule may be found in the Remembrance of Mr. Cookers Office. A Fine and Common Recovery a- greed to be levied and fuffisred of Lands in Cranley^ in Coni Surry ^ and by Mi- ftake, the fame was written Crairley ; and on Examination of the Proceedings therein, and perufal of the Deeds to make a Tenant to the Precipe, and de- claring the Ufes of the faid Fine and Recovery, :h Xtmiit of Coininou MmUtits. 1 7 5 Recovery, the fame were ordered to be amended in the feveral Parts of the Fine and Recovery, and in the Writs of Covenant, Entry and Seifin, Tn 4 jfac. 2. Int^ William Freeman, Gen ^cer iff William Montague, Jun\ Ar^ i!f Ux^ Defon: This alfo may be found in the Remembrance of Mr. Cooke's Of- fice. A Common Recovery was agreed to be fufFered of Lands in Weflon, in Com Gloiic\ and by Miftake, written Wajionf and ordered to be amended in the Re- cord, and other Places of the faid Re- covery, and in the Writs of Entry, Sei- fin, i!fc. M. 1 I W. 3. Int' Simon Smith, Ar Pet en* i!f Ric^um Comit^ Dor jet y iff ar Tenen ; which Rule may be found in the Remembrance of Mr. Cooke's Of- fice. If Tenant be prefent and vouch to Warranty A, and one appears for him, it is P>ror, and the Appearance void ; for he ought to appear in Perfon, or elfe a Surn 175 Z Xtmiit of Common WittmtitS. a Sum^ ad Warr' ; and where Summons is entred on the Roll, there, at the Re- turn, the Vouchee may appear in Per- fon, or by Attorney, i Leon, 85. Page verfus Hay ward. Trin. 3 Annac, B, R. ^jVjIchoIas Searl devifed to his Niece •^ ^ Mary Bryant, and the Heirs Male of her Body, upon Condition, and pro- vided that fhe intermarry with, and have Iffue Male by one Surnam'd Searl; and in Default of both the faid Con- ditions, he devifed to Elizabeth Bryant^ [in the fame Manner] and in Defefl: thereof, he devifed to George Searl for fixty Years, if he fo long live. Remain- der to the Heirs Male of the Body of the faid George^ and their Iffue Male z for 31 Xtmitt of ComntDn MtcoUtitS. 1 7 7 for ever : Mary, and Elii^ialpeth with her Hufband, for fhe had then mar- ried one Cl'fty joined in a Fine to make a Tenant to the 'Pr leafe to him by the Demandant, after he has enter'd into the Warranty, is good, and the Vouchee may plead it after the laft Continuance, and it is as good as if it had been made to the Tenant himfelf ; and it is not material whether there was any real Warranty twixc the Tenant and the Vouchee ; but when that has been once admitted upon Record, lince there might have been a Warranty between them, it is all one as if there had been ; and this might 1 90 % Steatite of Common aaecoi^eties* might be collefled from the Cafes of Common Recoveries, 5 Co. if they were obferved. If Tenant in Tail is diffeifed, and a Precipe is brought a- gainft the Diffeifor, who vouches Dif- feifee -, that will bar the Eftate Tail, isfc, and yet here is no Warranty be- tween the Diffeifor and Tenant in Tail; for though there was none, yet feeing there might have been one, for the Diffei- fee might have releafed to the Diffei- for, with Warranty, now it is admit- ted on Record, it is all one as if there had been a Warranty ; and the Diffei- fee Tenant in Tail coming in, in Right of the Entail, the Eftate Tail, ^c. is barred: I fuppofe this to be an Adverfe Action. Tenant in Tail with War- // ranty makes a Feoffment in Fee with Warranty, or levies a Fine ; the Te- y nant in Tail can never have his Eftate ,' Tail again, againft his own Feoftment, i j>. make ufe of the Recovery againft him to deraign the Warranty Paramount \ r^ ^ and the Reafon is, becaufe all the while there might have been a Warranty, and it is fuppofed in the Recovery ; and fo where a Stranger is vouched, and vouches over Tenant in Tail, and he over the Common Vouchee, that will be good, becaufe there might have been fuch real Warranties. Feoffee with Warranty to him, his Heirs and Afligns, makes a Gift in Tail, the Re- mainder in Fee, the Donee makes a Feoffment in Fee, the Feoffee (hall not vouch as Aflignee, becaufe he comes not in Privity of Eftate ; and fo is I Infl, 385. But if in that Cafe the Feoffment of the Tenant in Tail had been with Warranty, if he had been vouched he might have deraigned the War- i^z Z xxmtitt of Common 3^uoUtits. aR.Abr.394. Warranty Paramount. If Tenant in ^'^' Tail be attainted of Treafon, and the King grants the Land to J. S. who bar- gains and fells to B, agamfl: whom the Praecipe is brought, and he vouches y. S. and he vouches over the Common Vouchee ; that fhall not bar the Re- mainders ; for y. S. does not come in in Privity of the Eftate Tail, and io none of the Remainders could be af- fefled by the Warranty ; but fuppofe the Patentee had vouched the next Re- mainder-Man ; that had been a Bar to all the Remainders, becaule he in the next Remainder that was vouched, came in, in Privity of the Eftate Tail ; and this is warranted by the Cafe put in Cuppledikes Cafe, 3 Coke 6. a. That if £ A, be Tenant in Tail, the Remainder to / B.'m Tail, the Remainder to C, in Tail, '^ the Remainder to D. in Fee, A, makes ' a Feoflment in Fee, the Feoffee fuffers \ a Common Recovery, in which B, is vouched, and he vouches over the Com- mon Z Xttatitt of Comnion Mtto\)mts. 1 9 5 mon Vouchee; in this the Eftate Tail of/y; _/- j^. is not barred, but B. and all the Re- ^^^'- 5^^^/ mainders over are barred ; And fo, by the fame Reafon, if the Patentee had vouched hitn in the next Remainder, in that Cafe in Roile^ the Common Reco- very had been a Ear. But it is objedled, that the Vouchee had nothing in the Land ; but to that I anfwer, that he has entred into the Warranty, and by that has fubjefled his own Heir to ren- der the Value, and the Tenant in Tail who was vouched, comes in in Privity of the Eftate Tail, a« much as where the Tenant in Tail has made a Feoff- ment, or been diffeifed, and during the DifTeifin, i5fc, is vouched ; and it is no ObjedHon that there was no real War- ranty in D, the Stranger and Tenant in Tail ; for if that were a fufficient Qb- jeflion, it would over-turn all the Reco- veries, and confequently unfettle all the Eftates in England ; but the Warranty is admitted upon Record, and being io C c admitted 154 ^ Xteatife of Common aaecofeeties^ admitted between Perfons that were ca- pable of having made fuch a Warranty, it is all one as if there had been really and in Fafl fuch a Warranty ; but then it is made a Queftion, what Eftate the Stranger fliall recover in Value ; and to that I anfwer, that he (hall recover a Fee-fimple; for the Tenant in Tail and his Heirs are eftopped by the Record to fay that the Stranger had not any Eftate in the Land ; and if they cannot aflign any fpecial Eftate, that he had not a Fee-limple, and this Eftoppel will be of Avail, for it does not affefl: the Eftate ^ Tail, but the Affets in the Fee-fimple. I have mentioned this Matter, becaufe it _, may be of very good Ufe to have Re- coveries in this Manner, for thofe that purchafe an Eftate of a Family may I have a very good Title upon the Foot .. of one Settlement; yet there may be / latent Settlements in the Family, and fo it is the wifeft Way for a Purchafor' to bring in as many of the Family as he Z Xuatitt of Common ^tcoUvits, 1 9 5 he can, and vouch them all. To the Third, which was the fecond great Point, he faid that the great Difficul- ty of it was upon the Account that the Recovery in Value muft not be pro*« portionable to the Lofs ; for by the Joint Voucher, the Recovery in Value muft be Joint ; whereas the Vouchees were Tenants in Tail of the whole, the one in Poffeffion, the other in Remain- der ; and this indeed would be a great Gbjeftion, if the Cafe were confidered upon the Foot of the Eftoppel, for the Tenant in Tail will be eftopped during his Life, to claim any more than a Moiety of the Recompence in Value ; but then after his Death the IlTue in Tail will not be eftopped, but may fay that the other was Tenant in Tail in Remainder, had not any Eftate in PofTeffion in the Land, fo the Recom- pence will enure to him alone ; and there is no DitFerence between this Cafe and the Cafe of Bare verfus Snorv> G c 2 in 1^6 Z Xxmiit of Common 5aecDl)eries. in PloTV, 514. where the Hultand was Tenant in Tail of Lands, and a Pre- cipe was brought againft him and his Wife, and they vouched over the Com- mon Vouchee, and the Recovery was held to be good j for there it was objec- ted that theRecompence in Value, which was the Caufe of the Bar, fhould by • the Surviving of the Wife go to her by Conclufion, and fo no Reafon to bar the Iffue in Tail ; but it was held that the IlTue in Tail fhould not be bound by any Eftoppel, which his Fa- ther admitted by joining in Voucher with his Wife, any more for the Re-- compence in Value, than he fhould be by an Eftoppel made by his Father, for the old Entail Land which is recovered againft his Father, but was abateable againft the Wife, to fay that ilie had loft nothing, and that his Father was fole Tenement in Tail, and flie had nothing. Cro* EL 376. h. and that he being the Perfon that had loft the whole. Z Xvtatitt of Common ^ttohttits. 1 9 1 whole, fhould have the whole Recom- pence, and that of the fame Eftate that he had loft, and the Feme fhould have nothing. There was a Cafe in Trin. 1557. Rot. 179 or 180, between M/^r- rell and Osburny a Report of which 1 have under my Lord Chief Juftice Bridgmans own Hand in a Manutcript I have of his, where this very Point came in Queftion. My Lord Ch. Juft. Bridgman was a very ftudious Gentle- man, and though he kept to his Cham- bers, yet he had an Account brougat him of all that paft in the Courts. The Cafe was in a Formedon in Remainder expeflant upon an Eftate Tail ^ the Te- nant in Tail pleads in Bar a Common Recovery on a.Pr^cipe againft the Grantee cf Tenant in Tail, in which Tenant in Tail and a Stranger were jointly vou- ched, and vouched over the Common Vouchee ; and it was refolved that this was a good Recovery, and bound all the Remainders: And Bridgman men- tions 1 Z Xttatitt of Common ^aetoijeeies. tions the Cafe zz H. 8. Br. Recovery in Value 27. is to the fame Purpofe ; there the Feme was Tenant in Tail, and a Pr Park in Latham. That the Manor of Neivburgh and two hundred and fifty Acres of Land, Part thereof, lye in Latbom ; that Nevp Park, at the Time of the Settlement, 29 Car. z. was Parcel of the Manor of Lathom, and was ever fince reputed Par- cel thereof ; but both Nervburgh and Nexp Pai'k, at the Time of the Settle- ment, 29 Car. 2. and the Recovery I 5 W. 3. were in the Pofleffion of Do- rothea Helena, Countefs Dowager of Derby, and the faid Lord Finch and others the Truftees, at the fame Times, E e 2 were 2 I r 2 12 %%tmiit6l€oimmn 3SittoUtitS^ were feifed thereof for the Life of the faid Countefs Dowager. They find that William Earl of Der^ by had liTue James ^ who had Iffiie Charles J who had Iffue William-George' Richard, who died without Iffue Male 4 Nov, 1702. That the Defendant Earl James is Heir Male of the Body of Charles^ and younger Brother of the laft Earl Wit' Uam^George- Richard J and Great Grand- fon and Heir Male of the Body of the faid Earl William. That the Leffors, the Countefs of Anglejea and Lady Elizabeth Stanley ^ are Daughters and Coheirs of Earl William -George-Richard ; that on his Death they enter'd and made the Leafe to the Plaintiff* prout^ i^c. and whe- ther the Defendant the Earl be Guilty as to thefe, the Jury iubmic to the Judgment of the Court. Lord Chief Baron Ward was of Opi- nion with the Defendants, as to the Manor Z Xuatiit of Commott Mmi)cUes. Manor of Lathom, iD'c, on the Stat. 34 i7. 8. which reftrains Tenant in Tail of the Gift of the Crown from ahening, againft the Opinion of the other three Barons, who held the Intail in this Cafe was a fraudulent Contri- vance, not within the Meaning of this Statute. The Cafe on the Statute of Mortmain was cited, as it appears in Farmers Cafe, 3 Co, 78. b, and more largely in Magdaleris College Cafe, 1 1 Co. 73. b. 74. As to the filling up the Blanks after the firft Day of the Affizes, they all agreed, that being by Confent of the Parties, though the Words inferted might be void, it could not avoid the Deeds as to what was contained therein at the Time of Sealing ; and befides, the Deeds had then done their Ojffice, and made a good Tenant to the Precipe for the Manor of Lathom, and what was comprifed in the Deeds the firft Day of the Afllzes. 21 2 14 31 Xrcatif e of Cotninoit ISlecoberieS* As to Ncwhurgb and New Park, Baron Price cited the Cafe i Infl.T^z^.k that if a Leafe for Life was made, the Re- veriion remains Parcel of the Manor, and pafTes with the jManor; which was not denied by any of the Barons, and feemed to be agreed by all ; but they diltinguiflied this Cafe, as being by Deed and Fine, and held it therefore a Difcontinuance and a Temporary Seve- rance, during the Life of Dorothea He- Una, Countefs Dowager of D^r^V ; and therefore the Recovery was void as to thefe, for want of a good Tenant to the Precipe, And purfuant to this Judgment in Ejeflment, the whole Manor of Lathom (except Newburgh and New Park, and except Crofshall, which flood upon an- other Title) was adjudged for the De- fendant, and therewith above loco/. pir Ann. in Leafes for Lives have been held and enjoyed under this Recovery ever fince, as Parcel of the Manor wherein Z Xttatik of Cojinncn i^r tolimes. 2 1 5 wherein the Intail was- barr'd by this Recovery. The Authorities for the Reverfions on Freehold Leafes for Lives, remain- ing Parcel of the Manor, are very many, befides i In/}, 324. k R and F, leafe Part for Life, and 'J^•3•<■•39• then levy a Fme of the Manor, and the Reverfion paffed. The Diveriity, that after a Leafe for .qH.^.f.^R, Life of an Acre the Reverfion remains ^'^°'^i ^°™' 10?. o. Parcel of the Manor, and paffes there- ^ And. 52. with ', but if the Manor be leafed, ex- " ' '^^'^' ' cept an Acre, the Acre is fevered. So an Advowfon appendant granted ^'■'^■' R^^^- for Life remains appendant, and palTes f^n. g.f.^^.. with the Manor or Lands to which it is c-ir^'^'"'' appendant. ^ ^^""- -'-'■ Theolafs Digefl of Writs, /. 37. Cap, tm- droit deiixfois demandcj 2 Roll. Ahr. 58. Grants Y 1, 2, 120, 121. Manor D. 1 Rolh Abr, 633. Dijco.ninuance^ B. 5. 26Aff, PI ^^, 1 And cX iSl. 11 6 % %utiiiit of Common aaccoi^eties^ And the Stat, 7 R 8. f. 4. concern- ing Avowries for Rents and Services, feems built on this Foundation, that fuch Reverfions are comprifed and pafs in Recoveries as Parcel ot Manors. And it feems owing to the Difwife of Real AQions that this comes now to be queftioned. iV.S.Upon the D zsitho f William-George' Richard Earl of Derby, Mr. Star key of Pre/ton was appointed by Earl Jamcs^ and Mr. Ward by the Coheirs, to in- fpe£l the Writings and adjuit their re- fpcftive Rights to the Eftates of the deceafcd Earl ^ and this Point, ^7^. That the Reverfions on Leafes for Lives paf- fed by this Recovery as Parcel of the Manor, was agreed by them, and after- wards, upon a Reference to the Earls of Pembroke^ Roche fier and Scarborough, the fame Point was admitted. And laftly, after the Judgment given in the Exchequer, upon a Reference to Mr. Ri- chard Webb and others, whereby at laft 2 all Z Xvmitt of Common Mtttibttits, z 1 7 all remaining Difputes were fettled be- tween the Heir Male of Earl William and the right Heirs of the late Earl Wil- liam-George-Richard. All the Manor of Lathom in Po fie (lion and Reverfion, ex- cept Crojshallj Newburg and Nen^ Parky was awarded to the right Heirs, and the fame have lince been fold and en- joyed accordingly. And note; The Determination by the Barons in the Cafe of Newburg and New Parky that the Fine in this Cafe made the Severance of thefe Parcels from the Manor, feems to imply that in other Cafes where there is no Fine, there is no Severance, but the Reverfion in Fee remains Parcel, and pafTes with the Manor according to the former Au- thorities. Ff Prece- 2 1 8 :^ xttatiit of Common Becotieries* Precedents of Rules for Amending Recoveries. E after 34 Car. 2. wyriey. Between Richard Tregeare^ Gent. Plaintiff, and M- cholas Gennysy Gent De- fendant. of Tenements with the Appurtenances in Tremthicke Chapel Grounds^ Chapel' Meadovp, Hendra Meadoiv, Twinna Wales, in the Parifh of Lancefloriy St, Mary Magdalen la Witton, and St. Thomas the Apoftle^ in the County of Cornwall. 1 6 May. TJ^Orafmuch as it appears to ^ the Court here, after the Examination as well of the Plaintiff and Deforcient, as upon the Infpedlion and I Exami- Z Xxtatitt of Common 3XtcoUvitS. Examination of the Fine levied be- tween the Parties aforefaid, and the Indenture declaring the Ufes of the Fine, that by the Omiflion or Mifpri- fion of the Clerk, who made and in- grolled the Praecipe and Concord of the fame Fine, he fuppofed the faid Te- nements to lie amongft others in the Parilh of Lance/Ion, when in Fa£l there is no fuch Parilh within the whole County of Cornwall, but ought to be in the Parifh of St. Stephens near Lan- ceflon ; it is ordered by the Court, that as well the Praecipe and Writ of Cove- nant, as all Entries and Records of the Faid Fine, in all Offices which it hath palled through, be amended and reflified by putting in the Words {St, Stephens near) as by Law it ought to be done. By the Court. Cooke. F f 2 Hillary 2ip 2 20 Z Xuatiit of €ommon3Sitttibttits. Hillary 3 Anna. fiorr«t. Court eney^ Efq; ^g^inik Blake and his Wife. 1 2 i*)?^. T X P O N reading a former ^l Rule of the Ninth In- ftant February in this Term, made be- tween the faid Parties, and upon the Affidavit of Nathaniel Lotty it is or- dered, that the Writ of Covenant in this Gaufe be amended by inferting thefe Words (and Knowflon) in the a- forefaid Writ, and that all Entries and Procefs made thereon be amended by the faid Writ, according to the fame Rule. On the Motion of Serj. Hooper. By the Court, Cooke. Hillary Z Xuatiit of Common ISittohttits. 2 z i Hillary 3 ^nna. Courteney, Efq; againft Blake ^°"^^"* and his Wife. 1 1 Nov. TT T is order'd that the Defor- jL cients, upon Notice of this Rule to them given, fliew Caufe to this Court on Tuejday next why the Writ of Covenant in this Caufe Ihould not be amended by inferting therein (and Knorvfton) and why all the Entries and Proceedings thereupon made out by the faid Writ fliould not be amended. By the Court, Hooper. The fame againft the fame. (To vvit)Tr XPON reading a former the laft Term made between the faid 2 Parties, 22 2 7i Xtmiit of Contmott WLtttUtitS. Parties, it is order'd that the Defor- cienib, upon "Notice of this Rule to them given, ilicw Calife td this Court on Monday the laft Day of this Term, why the Writ of Covenant in this Caufe fhould not be amended by inferting (and Know ft on) and why all the En- tries and Proceffes thereupon made by the laid Writ fliould not be amended according to the fame Rule. By the Court. Gumonc. Mich. 13 Car. i. Drake and Another againft Biddulph. WHereas a certain Fine was pro-' fecuted here in Court between Anthony Biddulph, Plaintiff, and Jnne Browuy Widow, and J^ohn Brorvn, De- forcients, of two Mefluages and one Garden, Z Xteatife of Common 3Xtto\)ttits. Garden, with 'he Appurtenances in the Parilh of St Albans in Great Wood-ftreety London, in the Term ol Eafler laft, that a Recovery thereof might be had of the aforefaid two Mtffuages and one Gaiden in the Term of the Holy Trinity kit, ar.d in the fame Term the afore- faid Biddulph, by the aforefaid Fine bemg Tenant, appeared at the Bar here and vouched to Warranty the aforefaid jfohn Brown^ Clerk ; neverthelefs the Prothonotary in his Remembrance wrote and tntred the Praecipe and Recovery a- forefaid to be had of one Meiluage and one Garden, and afterwards a Writ of Entry upon Diffeijin in le poft was pro- fecuted of one MelTuage and one Gar- den, according to the Entry in the Pro- thonotary 's Remembrance, returnable in the Octave of the Holy Trinity in the fame Term, where it ought to have been of two Meffuages and one Garden, ac- cording to the faid Fine and Concord between the Parties aforefaid, and the true 22} 224 Z%ttatittol€ommon3^ttoUtits, true Intention of them : Now upon the Affidavit of George Almery of the Truth of the Premiffes, and the Exa- mination thereof in Court, in the Pre- fence of the Parties aforefaid, and by their Confent, it is order'd by the Court, 20 OEhob. that the Curfitor of London amend the Writ of Entry aforefaid, and make it of two Mefiuages and one Garden ; and that the Entry of the Recovery thereupon and other Procefs made out by the Clerk of the Protho- tary be hkewife amended. On the Motion of Serj. Heath, Hill. Z Xnatitt of Common Mecohhits. 2 2 5 HilL 5 yin?!^. Bet^^een Edward Ahncy^ K\ ^°°^'- and William Longueville^ Efq; Plaintiffs^ and Hc7iry Earl o^ Clarendon and £^- t^^jfri ii^T^'i^, Efq; Son and Heir apparent of the fame Earl, Deforcients ; and be- tween Anthony Heck ^Gent Demandant, Edward Ah- ney^ K'. and William Lon^ ^//^z;///^, Efq; Tenants; Ed-- ward Hyde^ Efq; Son and Heir Apparent of Henry Earl ofC/^;v;^(i^;^ Vouchee. of Tenements in Laverftoake^ Pitton, Weftgrimflead^ Alderbury. St, Martins Winterhorne^ Earles and Plrton^ other- wife Purton^ otherwife Furiton, in the County oi Wi:ts, 1 1 Feb. T~^Orafmuch as it appears to r the Court here, upon the G g Infpec- 2 2 5 % Xtmiit of Common 33imWitS. InfpeSicn of a certain Indenture tri- partite brought here into Court, bear- ing Date the Seventh Day of February in the Thirty-fifth Year of the Reign of the late King Charles II. made be- tween the aforefaid Henry Earl of Clarendon and Henry Hyde ^ Efq; of the firfl: Part, the aforefaid Edward Abney, Knt. and William Longnevilhy Efqj of the fecond Part, and the afore- faid Anthony Heck of the third Part, for declaring the Ufes of the faid Fine and Recovery, that the Nanies of the Places called Clarendon and Clarendon Park in the faid Indenture mentioned, in which lies great Part of the Lands and Tene- ments agreed by the fame Indenture to be comprifed in the fame Fine and Re- covery, were omitted out of the faid Fine and Recovery, by the Mifprifion of the Clerk who profecuted the faid Fine of the Oftave of the Purification in the Term of St. Hillary in the above- faid Thirty-fifth Year, and the faid Re- covery of the Term of Eafler in that 2 fame Z Xnatitt of Common MmUtits, fame Year ; and alfo upon reading divers Rules formerly made by the Court here, for adding the Names of Places omitted in divers Fines and Re- coveries, it is order'd by the Court that the Gurfitor of the County of IVihs amend the Writs of Covenant and En- try between the Parties aforefaid, by inferting in the faid Writs, next after the Word Puriton, thefe Words {Clarendon and Clarendon Park) and alfo that all Parts of the faid Fine between the Parties aforefaid, and the Recovery a* forefaid, and the Exemplification there- of, and the Writ of Seilin between the faid Parties, be amended on Record, in the fame aforefaid Words (Clarendon and Clarendon Park) in all Places necef- fary. On the Motion of Mr. Serj. Broddrick and Cheflnre, By the Court, Darby. G g 2 Mich. zii 2 28 % %xt&Uit of ComiiiDn laecobertesd Mich. 6 Car. i . Gulfloii. Skinner and Others againft Land. 'Hereas in the Term of St. HiU lary m the Fifth Year of King Charles^ upon a Writ of Entry upon Diffeifin in le poji, the Tenant vouched to Warranty Arthur GouldingCy Gent, and Anr^e his Wife, of fifteen Acres of Land and one Acre of Meadow, with the Appurtenances in Alphamflon and Lamarfloe in the County of E^ex : Now upon Infpe£lion of the Feoff- ment made by the aforefaid Gouldinge and his Wife to the faid Tenant, it ap- pears that the aforefaid Acre of Mea- dow lies in Great Henney, and not in Lamar [Ij ; and fo the aforefaid W rit of Entry was profecuted, by the Mifpri- lion of the Clerk, of Tenements in Al^ phamflon and LamarJJ?^ and a Common 2 Recovery Z Xreatifeof Common MtcoUxits. Recovery thereupon ; and an Exempli- fication of the. fame was had, where it jliould have been of Tenements in Al- phamflon and Great Hmney ; therefore it is order'd by the Court, that the Gurfitor of the County aforefaid a- mend the Writ of Entry aforefaid, and that the Name of the aforefaid Village of Lamarf/j be expunged by him, and in the Place thereof the Name of the Village of Great Henney be inferted ; and that the Prothonotary*s Clerk alfo amend the Entry of the Recovery afore- faid, and the Exemphfication thereof; and alfo the Writ of Seifin profecuted upon the Writ of Entry aforefaid^ ac- cording to the faid Writ of Entry afore- faid fo amended. By the Courts 11^ Trin^ 230 3t ICteatife of Cotimwu 3arcoi)cties* Tri?!. 13 Car. i. cuifton. IVightwick and Another againft Majiers. UPON Infpeflion as well of a certain Indenture made between Thomas Maflers^ Tenant of the one Part, and Humphry Wightwick^ Gent, and George Wightwick^ Gent. Deman- dants, of the other Part, (hewn here in Court for declaring the Ufes of a Recovery here in Court, between the Parties aforefaid, had in the Term of St, Hillary laft paft, and alfo upon the Cognizance of the aforefaid Thomas Majiers then prefent here in Court, it is found that that Recovery had fliould be of three Meffuage?, one Dove- houfe, four Garden-, eighty- fix Acres of Land, twenty Acres of Meadow, and fifty Acres of Pafl:ure, with the Appurtenances in Sibington^ Nexpchurch and Mar/ham in the County of Kent ; but upon Oath of William Codd^ one of the Z Xttatite of Cottunon Mtcohttits. the Attornies of this Court now pre- fent here in Court, it appears, that as well in the Writ of Entry of that Re- covery had in the aforefaid Term of St. Hillary, as in the Writ of Seifin thereupon alfo profecuted, and in the Entry of the Recovery aforefaid, th» aforefaid Word Nerpchurch, by the Neg- ligence of the Clerk, was intirely omit- ted ; now it h ordered by the Court, the twenty- fir ft Day of Jime in this fame Term, that as well the Writ of Entry as the Writ of Seifin, and the Entry of that Recovery between the Parties aforefaid of Record be amended, and the aforefaid Word Newchurch in all of them be inferted, and that a>s well the Writs aforefaid, as the Roll of the Entry of Recovery aforefaid, be brought into Court here for the Purpofes afore- faid, and amended here in Court, with- out Delay in this Particular. On the Motion of Mr. Serj. Clarke. By the Court, Mich. ^3' 2 32 :?i Xxtatiit of CoiujuDu 3^tmmts, Mich. 1650. ^ G^r. 2. Pinfent, fine bctwecn George Parker, Efq; and Thomas JoIIey, Plaintiffs, and Charles Cot- ton, Efq; and his Wife, Deforcients. Fine from the Day of the Ho/y Trinity^ in three Weeks, 1^49. UPON the feparate Oaths of the aforefaid George Parker and Charles Cotton made here in Court, and by Confent of the fame Charles Cotton prefent here in Court, it is ordcr'd by the Court this 1 9 Nov. that the Name of the Village of Waterfall^ by the Neg- hgence of the Writer omitted, be put in as well in the Writ of Covenant as in certain other Parts of the aforefaid Fine. On the Motion of Serj. G. Clarke. By the Court, Gardner, TABULA. TABULA. CAPUT I. -- /- ' -'' ^ ^^ OF the Origine, Nature and Ufe of Common Recoveries. Concerning the Origine of Eftat^s Tail, if . any among the Romans or J-ews^ invented by the Feodal Law, and were fird intro- - duced into England by the Conqueror. All Eftates at Common Law Fee-(imple. Statute of Donh created Edates Tail;, the the Mi [chief of thefe Eftates, and the Rea- Ton of- it. What Reputation Eftate Tail had feverai Ages. Concerning the Origine of Common Recove- ries, {uppofed by fome to be begun by Taltarums, Cafe, but rather to arife from the Reafons drawn from OBaviaji Lorn- hard'?, Cafe. The Reccmpence in Value, the Reafon of the liTue being barred, though only a Fic- H h tion, ^ TABULA. tiori, and this Fid ion occafioned the learned Cavils againft Common Recoveries. Common Recoveries bar where no Recom- pence j as Tenant in Tail, Remainder for Years faffers a Recovery, Remainder barr*d, though Recompence cannot extend to a Chattel •, fo Tenant in Dower and contin- gent Remainders barred without a Recom- pence. Recompence in Value is the Reafon for bar- ring the HFue j but the Reafon for barring Remainders is, Recoveror is in of the E- ftate Tail, which continues, and Common Recoveries a Conveyance excepted out of the Statute, and an inherent Privilege an- nexed to Eftates Tail. When Tenant in Tail is vouched, he comes in of the fame Pol?eflion he had before, and to warrant it ^ and when one enters into Warranty, the Law will always pre- fume there was one on Feoffment or Grant. Common Recoveries like Adverfary Recove- ries, and fuch Judgments, but Recoveries on Title cannot be to a Ufe, as Common Recoveries are. Recovery binds Blood e and difapproves the Title ;, though feveral Difcontinuances after Recovery, Recoveror may enter ^ and though Recoveries reiled- -cd on by fome Statutes, countenanced by others. 2 The TABULA. The Ufe of Common Recoveries. Common Recovery bars liTue, Remainders and Reverfions, and Recoveror comes in under Tenant in Tail, and is liable to all his Charges, and enlarges the Eftate Tail , jf comes in as Vouchee, comes in of al{ E- ftates, if is Tenant to the Fr^cipe^ only the Eftate he then had is barred *, for the Recompence extends not to that he had not. Where Ilfue has no Recompence not barred, and therefore Recovery by Default with- out Voucher binds him not, but on Entry is remitted ^ but aliter where has or may have AiTets and Recovery in Value. Are favoured and Fine, Recovery and Deed to lead the Ufe one Conveyance. Where Recovery is to be fuffered by the Fa- ther on Marriage of his Son, it is fafeft to do it with treble Voucher. X'' G A P U T IL ^' : 5 /^ OF the Tenant to the VvAcipe, ^> -- The Reafon v/hy there mud be a Te- nant to the Vr&cipe \ if there is none, the IITue in Tail may plead Wtent Tenant, Hh2 If TABU L a: If thet'e be a good Tenant before die Returri' of the Writ, it is good:, if were not 'le- iiant at the Return, mr^ht abate it by Plea of Non-teimre ; but if he vouches, he ad- mits the Writ, but Vouchee may counter- plead the Tenancy •, but if he does not, it is good againft them all by Eftoppel, but than Tenant recovers not in Value, becaufe loft nothing If Tenant became Tenant after the Voucher, Judgment is given on the Voucher, not on the TrAcipe, fo binds. In Common Recoveries if there be a good Te- nant any Time before Judgment, it is good 5 and if comes to the Land by his own Ad, cannot abate the Writ , aliter if by Aft in Law, as Difeent. If there is no Tenant, the Demandant cannot fue Execution againft him^ nor he againft Vouchee ^ and Eftoppels, though of Record, bind not HTue in Tail •, aliter of Tenant in Fee, a Recovery binds him, though no. Tenant. if Jin Eftranger that has nothing is made Te- nant with the True-tenant, it hurts not. Leilee for another's Life makes a Leafe ibr Years, and died, and he in Remainder, being Tenant in Tail, fufFers a Recovery, and void, for Freehold was in Leflee for Years by Occupancy 3i|. Ji Huf^ TABU L A. Hufband Tenant for Life, Remainder to Feme in Tail, Praecipe againft both ill ^ fo if there be Tenant for Life, Remainder in - Tail, Precipe againft both ill . {o agatnft Mortgagor and Mortgagee, becaufe Land recovered in Value (hall be in the fame Degree as the Land lofl". Lands given to Hufband and Wife, and the Heirs of the Body of Hufband, Remain- der over, Hufband alone fuffers a Reco- very, it is no Bar^ but if Hulband difcon- tinues, and Precipe againft Difcontinuce, and Hufband comes in as Vouchee, it is good to bar Baron, not Feme. Concerning Tenant to the Precipe by DiiTei- fin. Concerning Surrender by Tenant for Life to make a good Tenant to the Precipe, If a Recovery be of a Manor, Part whereof is- in Leafe for Life, needs no Surrender , the Reafun of this. Surrender by Tenant for Life muft be to him that has the Reverfion. ^ ^ Term for Years hinders not Recovery ^ and z^*?- -f / A^ { by Statute of Gloucejier, Tenant for Years ^/.e^% ^ \!i in London^ may falfify - S^^x57* Fine levied, and a Writ of Entry againft Co- ^""^y-^-^'^^^ nufee, and no Ufe declared of the Fine, ds-z^^tn^ «ta yet a good- Recovery. . <(- ^ Statute SJn^^Jc TABULA. Statute of frauds extends to Trufls, not to Ufes. Recovery good without a Tenant to the VtA" c'lpe^ where Party has a Fee. Tenant to the VrAcrpe may be made by Fine, Releafe, Feoffment, Bargain and Safe inrolled, and though good before Inrol- ment, it is fafeft to inroll it before the Re- covery faffered. If Te nant to the V rAci^e appear to be made ^^ by Releaiedated afteF the Return of the \Vrit, it is ill. Termor made Tenant to the Vr/ecipe^ extinguifhes not his Term. f - A*'*v J^^5^5 intend a Tenant to a Vr^cipe or ■ *'*' *^/r ^ Surrender, where Recovery of ten Years ,- ^ A^lf'^'' Standing. ^p / C-. /-^ ' _^ / ^..^^/->^-^ CAPUT III. ;- i^^\h 0^ ^- - '^ , ^ ,^ \ A 7^^ ^^y ^^^^^ ^ Common Recovery. ^ //-«r^ '^y^_^\\ Infants cannot : Whereof the Privi- c£t^'^ ^* ^/^"^ leges Infants have by Law. f •t^/^ttV If an Infant faffers a Recovery, either in Per- y ///^ fon or by Attorney, it is erroneous, but ^/yf-* ' ^ ' J. -> by Guardian by Privy Seal it is good. ^,^j,^^^ '>*^"*' Concerning the Difability of Coverture. Of r^^i ^ H^^^ the antient Form of Examination of a Feme ^J^ z' ifi^ ^ ^ ^ Covert in a Recovery. fWi^'"^ *'^ ' Common T A B U L A. Common Recovery by a Feme Covert, bars her Dower. t.ands given to Hulband and Wife, and the Heirs of the Body of the Hufband, he grants^ a FrAcipe againft Grantee, the Huf- band is vouched, and vouches over, bars the Entail, not the Wife : But if Lands are given to Hulband and Wife, and the Heirs of their Bodies, he difcontinues and comes in as Vouchee, no Bar \ fo if Lands given to Hulband and Wife, and the Heirs of the Body of the Hulband, and FrAcipe againll him alone. Lands given to Hulband and Wife, and the Heirs of their Bodies, Fracipe againft them, and they vouch Common Vouchee, good , fo if to Hulband and Wife, and Heirs of Body of the Wife , but if it be to Huf- band for Life, Remainder to Wife in Tail, ^ Fr^ctpe againft both ill. Hulband and Wife Tenants in Special Tail before Marriage, Remainder to Huft^and in Tail Male, Remainder to J, 5. >n Fee, Baron grants, a Precipe againft Grantee, who vouches Baron ^ and doubted if barred for a Moiety. Concerning Recoveries by Ideots and Mad- men. An Oftice finding one an Ideot a tJativitate^ who had before levied a Fine, fet aiide. Tenant TABULA. '"fenant in Tail attainted, difabled to faffer a Recovery. Alien, where his Recovery bars the Eftate Tail, and where not. The King cannot fuffer a Common Recovery. Women Jointreiles difabled to fuffer Reco- veries by Stat. II H, J, c. 20. Feoffment to the Ufeof a Man and his Wife, and the Heirs of their Bodies, Man dies, having lifue B. Feme is dilfeifed, B, re- leafes to Dilfeifor with Warranty, and has IlTue C. and dies, Dilfeifor fuffers a Com- mon Recovery, and vouches Feme , this bars not C. A Man feifed in Fee marries and has IfTue a Son, his Wife dies, he marries again, and fettles his Eflate en himfelf, his Wife, and the Heirs of their Bodies, and dies . Mo- ther and Son join in Recovery, bars the Heir. Lands fettled on Baron and Feme in Taii, Baron dies, leaving a Daughter, Feme enfeint with a Son, Recovery by Wife and Daugh- ter bars not the after born Son. If a Man fettles Lands with his Daughter in Tail, in Confideration of Money paid by the Hufband, it is out of the Ad ^ but if the Land be fold by Baron and Feme, and Lands purchafed and fettled, aliter. Lands TABULA. Lands limited to a Man for Life, Remainder to his Wife in Tail, Remainder to a Stran- ger in Fee, out of this Ad. If Hulband and Wife join, they may bar the IfTae. Baron feifed jure itx\ they levy a Fine, and Lands rendred to them in Special Tail, he dies, fhe may by Fine bar the IlTae. If Land move from any Anceftor of Baron, within thex^dr. By this Statute Recoveries by Tenant for Life sraf. -^iH.^. -•void. •^•si." Recovery at Common Law by Tenant for Life, bars him in Remainder, becaufe the particular Eftate and Remainder but one Eftate. Remainder veiled in the King cannot be dif- srat. 34 ^ -^^ continued or pulled out of the King by ■^^ 8. <■• io." Common Recovery ^ and fuch Remainder cannot be diverted by Ad of Party, but by Ad in Law. If the King's Anceftor, not being King, makes Gift in Tail, this is out of the Ad ; fo if Subjed created an Eftate Tail, and Rever- fion is granted to the King. If Tenant in Tail of the Gift of the King, make a Gift in Tail, the fecond Donee not within this Ad. li If TABULA. If the King grant an Eftate Tail and referve the Reverfion, and after he grants the Re- verfion. Recovery good, and bars all. Where the Reverfion is granted to the King for Life or Years, it may be barred ^ fo wherever Reverfion is fevered from the Crown, and Privity gone. Where King is Donor, and fome little Alte- ration is mad,Qvin the Entail by a privateAd of Parliament, yet if Reverfion continues in the King, it cannot be barred. If the King procure Subjed to intail Lands on his Servant, and it appears on Record, if i*s within the Ad. The Tenant in Tail mult do or fuffer, and bare Permifiion not within the Ad. fo Nonclaim on a Fine. staM4£/;«. Hinders all Tenants for Life, in PofTeflion ^' ^' or Right, from fufFering Recoveries, or ta come in as Vouchees. CAPUT IV. /.^ f/>^/^ OF what Things a Common Recovery may be fufiered, and what not. Reputed Manor palTeth Lands within a Liber- ty, and a Place known. Of TABULA. Of a Rent, Penfion, &c. If a Man have a Moiety or third Part of Lands, and fafFer a Recovery of all, the Moiety or third Part palTes. How a Recovery is to be fuffered of Copy- hold Eftates. Recovery of Lands in Antient Demefne. Recovery of a Truft Eftate good, without Tenant to the Precipe. to/\. CAPUT V. -^ /^Cf ^ Z' //jr THE Differences between a Common Recovery with (ingle and with double Voucher. If a Recovery be with fingle Voucher, it is a good Bar of the Eftate the Tenant in Tail was polTeiTed of, but no otherwife \ but if comes in as Vouchee, bars all E- ftates he ever had. Ha CAPUT w TABULA. CAPUT VI. - /9^ ^^^ HAT is barred by a Common Reco- very. Q J -f ' Recovery enlarges tlie Eftate Tail, and Jets in - ^/^y^f^o-- - 2I1 Tenant in Tail's Ind3mb rance.s. /2(r. /S^- "^a - ^^ ^ Tenant in Dower, or JointrefTes, who join {/ ^*' ' ' in a Recovery, barred. Tenant for Life, Remainder in Tail, he \n Remainder leafes to commence after the Death of Tenant for Life, and after Te- nant for Life and Remainder-Man fuffer a Recovery, the Leafe is good. If Tenant in Tail grant a Rent or Lcafe^ Recovery makes thefe good. Common Recovery bars contingent Remain- ders. Bars not executory Devices or fpringing Trufts. Where there is no Eftate Tail executed. Re- covery bars not. \; -A Bars, not a Poflibility or a contingent Execu- tory Eftate. If one has an Eftate for Life, with Power to make a Jointure ^ aViter of a collateral Power to make Eftates. Gift in Tail determinable on the Donees, paying 100/. Remainder to B. in Tail, Tenant in Tail before Day of Payment {w^- fers a Recovery, all barred. Term tabula: Term fabfequent to an Eftare Tail, as to rife, on Failure of IlTue Male barrabie , aliter if precedent Gift in Tail, rendring a Rent, the •Rent not barred by a Common Recovery j but if Condition to re-enter, that barred. If lllue in Tail comes in by Title Para- ^"^(nount. Recovery bars not. A Man feifed Jure Ux' for Life, Remainder in Tail to £. Remainder to C. Baron bar- gains and fells, and Fr^ctpe againft Bar- gainee, who vouches B» this bars the En- tail and C alfo. Lands limited to B. and his Heirs as long as fuch a Tree ftands, barrable by Recovery, if Tenant in Tail levies a Fine with Pro- clamations, though Entail extind, fubfe- quent Recovery good. Bars a Remainder not in EJfe^ fo contingent Remainders. CAPUT "^W. ^ /4^^ /S^ OF Vouching and Recovery in Value. Concerning Vouchers at Common Law, and Counterplea thereof. Where one may vouch himfelf. Concerning Vouchers and Qounterpleas in Adverfary Adions. I Con- TABULA; Concerning Vouchers in Common Recove- ries. CAPUT VIII. -//^^^ OF Execution and the Eftate the Reco- veror has by the Common Recovery, No Ufe arifes till Execution returned. If Tenant in Tail dies before Execution, it may be fued againft his IlTue. Recovery lets in precedent Incumbrances. fSS Recoverors have the fame Remedy againft Leffees as LelTors had before the Recovery fuffered. /SS CAPUT IX. /-!, ^^ / '^ 7 OF Falfifying Common Recoveries. / By what Ways a Recovery may be fal- fif/d. Several Cafes of falfifying Adverfary Reco- veries. Illue in Tail (hall never falfify in the Point tried. 2 . -Who T A B U L A. Who may Falfify upon Stat. 7$ H, S, c,i 5. For what Caufes a Common Recovery may be falfify'd, and how. CAPUT X. OF Errors in Common Recoveries, and in what Cafes Recoveries and Fines may be amended. Several Cafes where Court has amended Com- mon Recoveries and Fines, or helped them- by a liberal Conftrudion, FINIS. t^ % LAW LIBRARY ^5\ ITNTVERSITY OF CALIFORNLl UC SOUTHERN REGIONAL LIBRARY FACILITY i|iiiiiiiiiiiiiiiiir~ " AA 000 856 709