RECOVERY, COMMON. 



RECOVERY, COMMON. 



HO 



Order in England, and Confewor to King Henry the Fifth. Edited 

 by the Uv. \V. W. Shirley, M.A. 



6. The Buik of the Croniolu of Scotland; or, A Metrical V, I-M. n 

 of the History of Hector Boece ; l>y William Stewart. Edite<l by W. 

 It. Turnbull, Eq. In '! volumes. 



7. Johannu Capgrave Liber de lllustribus HenricU. Edited by 

 the Rev. F. C. Hingerton, M.A. 



8. BUtoria Monasterii 8. Augustini Cantuarienau, by Thomas of 

 Klmhani, formerly Monk and Treasurer of that Foundation. Kill: id 

 by C. Hardwick, M.A. 



9. Eulogium (HUtoriarum sive TemporU), Chronioon ab Orbe con- 

 dito usque ad Annum Domini 1866 ; a Monacho quodam Malmesbiriensi 

 exaratum. Vol. I. Kdit. d by F. S. Haydon, Esq., B.A. Two other 

 volume* are in the press. 



10. Memorial* of King Henry the Seventh : Bernard! Andrea; 

 TholoaatU de Vita Regis Henrici Septimi Historia ; necnon alia qua;- 

 dam ad eundem Regem Spectantia. Edited by J. Gairduer, Esq. 



11. Memorials of Henry the Fifth. I. Vita Henrici Quinti, 

 Roberto Redmanno auctore. II. Versus Rhythmici in laudem Regie 

 Henrici QuintL III. Elmhami Liber Metricus de Henrico V. 

 Edited by C. A. Cole, Esq. 



12. Munimenta GUdhalUc Londoniensis ; Liber Albus, Liber Cus- 

 tumarum, et Liber Horn, in archivis Gildhallte asservati. Vol. I., 

 Liber Albus. VoL II. (in Two Parts), Liber Custumarum. Edited 

 by H. T. Riley, Esq., M.A. 



13. Chronica Johaunis de Oxenedes. Edited by Sir H. Ellis, K.H. 



14. A Collection of Political Poems from the Accession of Edward 

 HI. to the Reign of Henry VIII. YoL I. Edited by T. Wright, Esq., 

 M.A. A Collection of Political Prose for the same period is also in 

 the press. 



15. The 'Opus Tertium' and 'Opus Minus' of Roger Bacon. 

 Edited by the Rev. J. S. Brewer, M.A. 



16. Bartholomcei de Cotton, Monachi Norwicensia, Historia Augli- 

 cana (A.D. 449-1298). Edited by H. R. Luard, M A. 



17. The Brut y Tywysogion, or, The Chronicle of the Princes of 

 Wales. Edited by the Rev. J. Williams ab Ithel. 



18. A Collection of Royal and Historical Letters during the Reign 

 of Henry IV. Vol. I. Edited by the Rev. F. C. Hingeston, M.A. 

 A second volume is in the press. 



19. The Represser of over much Blaming of the Clergy. By 

 Reginald Pecock, sometime Bishop of Chichester. Vols. I. and II. 

 Edited by C. Babington, B.D. 



20. The Annales Cambria;. Edited by the Rev. J. Williams ab 

 ItheL 



In the Preei. 



Ricardi de Cirencestria Speculum Historiale de Gestls Reguni 

 Anglim. (AJ>. 447-1066). Edited by J. E. B. Mayor, M.A. 



The Anglo-Saxon Chronicle. Edited by B. Thorpe, Esq. 



Le Livere de Reis de Brittanie. Edited by J. Glover, M.A. 



Recueil des Croniques et Anchiennes Istories de la Grant Bretaigne a 

 present nomme Engleterre, par Jehan de Waurin. Edited by W. 

 Hardy, Esq. 



The Wars of the Danes in Ireland : written in the Irish language. 

 Edited by the Rev. Dr. Todd. 



Original Letters and Papers illustrative of the History of England 

 during the Fifteenth Century. Edited by the Rev. J. Stevenson, 

 M.A. 



A collection of Sagas and other Historical Documents relating to the 

 Settlements and Descents of the Northmen on the British Isles. 

 Edited by George W. Dasent, Esq., D.C.L. 



The Works of Giraldus Cambrensis. Edited by the Rev. J. S. 

 Brewer, M.A. 



Letters and Papers of the Reigns of Richard III. and Henry VII. 

 Edited by James Gairdner, Esq. 



Munimenta Gildhallic Londoniensis; Liber Albus, Liber Custumarum, 

 et Liber Horn, in Archivis GildhaUie asservati. Vol. 111. ': 

 tions from the Anglo-Norman portions of the Liber Albux ; Appendix ; 

 Glossaries; and Index. Edited by H. T. Hilev, E*,., .M.A. 



Descriptive Catalogue of Manuscripts relating to the Early History 

 of Great Britain. Edited by T. Duffus Hardy, Esq. 



lit prngrat. 



Historia Minor Matthsei Paris. Edited by Sir F. Madden. 



Letters and Treatises of Bishop Grossetete, illustrative of the Social 

 Condition of his Time. Edited by the Rev. H. R. Luard, M.A. 



Chronicon AM hamensis, Auctoribns Dominico Priore 



Eve*hamise et Thoma de Marlebcrge Abbate, a Fundatione ad Annum 

 1213, una cum Continuatione ad Annum 1418. Edited by the Rev. 

 W. D. Macray, M. A. 



A Roll of the Irish Privy Council of the 16th year of the Reign 

 of Richard II. Edited l>y the Rev. James Graves. 



Polychronicon Ranulphi Higdeni, with Trevisa's Translation. Edited 

 by C. Babington, B.D. 



RECOVERY, COMMON. A common recovery was a judgment in 

 a fictitious suit, in which the tenant of the freehold was the def. 

 and the judgment was given in consequence of default made by the 

 person who was last vouched, that is, summoned to warranty in such 



suit. It was used for the purpose of barring estates tail and all re- 

 mainders and reversions expectant thereon. 



A common recovery 'was in tlu 1 form of a judgment obtained in a 

 real action, and accordingly tin- mo.li- of procr-i-dini; was the same as in 

 an action uot |ji-t.i;i.is. The plaintiff in tho action, or demandant, who 

 sought to recover the lands, sued out u writ 



called, from the words of the writ (I juste, 



Ac. reddat B, the lands in question) against the person who hail the 

 freehold of the estate, and who was called the tenant t the pi 

 He appeared to the writ; but instead of defending his title, i 

 (vocavit) some other ]><! von who was supposed to be bound to warrant 

 the tenant's title, and ho pr.i;,. I that th- person so vouched (the 

 vouchee) might defend the title .so warranted, or that, if he could not, 

 he might give the tenant lands of equal value which he 



might lose by failure of the warranty. The vouchee, having appeared, 

 undertook the defence <>i - title, but he purpose 



do so, and ou his default the court gave judgment, which W;LS that the 

 demandant or recoverer should recover the lands against the 1 

 and that the tenant shoui :am.-l the vouchee lands of equal 



value. Such lands were called the recompense or recovery in value. 

 By the first judgment the d. fee simple of the 



estate. The whole proceeding being a 1 n usual to make 



the common crier of the Court of Common Pleas the vouchee, who 

 was hence called the common vouchee. This proceeding was called 

 recovery with single voucher; but there might be recovery with 

 double or treble voucher, in which case judgment was given against 

 the several vouchees. Where an estate tail was to be barred, there 

 was double voucher, the tenant in tail conveying an estate of freehold 

 to some person, against whom the demandant brought the pnecipe, 

 who then vouched the tenant in tail, who vouched over the common 

 vouchee, who of course made default, and judgment was accordingly 

 given for the demandant against the tenant to the pnccipe, for the 

 tenant to the prsccipe against the tenant in tail, and for him against 

 the common vouchee. 



On judgment being given, a writ of habere facias . < sued 



out, which, though not executed, waa returned as if it had been, and 

 the recovery was then complete. 



A defect in any one of the proceedings might vitiate the recovery. 

 One of these circumstances of the greatest practical import-in < 

 the making a good tenant to the pnecipe ; for unless the person against 

 whom the writ was brought was actual tenant of t i 

 could be no good recovery. It was however sufficient if he acquired 

 the freehold at any time before judgment was given in the suit ; and 

 by 14 Geo. II., c. 20, 6, it was sufficient if he acquired the fn 

 after judgment and the award of the writ of execution. 



It was usual for the tenant iu tail to be vouched in recovery to bar 

 estates tail, because the validity of the recovery was founded on the 

 doctrine that the estate which the tenant in tail obtained by virtue of 

 the warranty in lieu of that which he lost by the vouchee's default, 

 would descend to the heirs in tail, just as the estate would have done 

 which the tenant in tail had lost. Itistrue that the recompense eonld 

 not extend to the person entitled to the reversion, nor to contingent 

 interests ; but this defect, which would have been fatal if the trans- 

 action had been real, was never considered to impair the eUicacy of the 

 fictitious proceeding. And it was a settled principle that the estate 

 obtained by way of recompense would only follow the course of I 

 of that estate of which the tenant in tail was seised at the time of the 

 recovery ; and therefore if the tenant in tail at the tune of the recovery 

 was not seised of an estate tail according to the form of the original 

 gift, the recompense in value would descend according to the estate 

 which he had at the time of the recovery, and not according to the 

 original gift ; and consequently those who claimed under the original 

 gift would not be barred because they obtained no recompense in 

 It might happen in various ways that the estate which the ten 

 tail had at the time of the recovery was not the estate tail accordiug to 

 the original gift. To prevent this inconvenience, the tenant in tail 

 gave an estate of freehold to some person in order to ir, ke liiiii 

 tenant to the pnecipe. This was done in various ways, but generally 

 by bargain and sale enrolled, or by lease and release. The insti 

 which transferred the estate of freehold generally contained tin- 

 ration of the uses of the recovery, as hereinafter mentioned. The 

 action being brought against the tenant to the pnccipe, he vouched 

 the tenant in tail, who vouched over the common vouchee. As the 

 tenant in tail confessed the warranty, and undertook the defence of the 

 action, he was considered to submit all his rights in the land 

 effect of the recovery, which was called a recovery with doni 



A common recovery was gen ;rd in the Court of CM 



Pleas; but common recoveries of lands in the counties palatine of 

 I luiham and Lancaster were suffered in the respective courts of those 

 counties. A recovery of lauds held in ancient d. 



the courts of the manors of which such lands were held ; and in many 

 manors a recovery might be suffered in the customary courts of such 

 manors of which the copyholds were parcel. 



The effect of a common recovery differed in several respects from 

 that of a fine. A fine was originally introduced as a mode of alienation 

 by record, and its effect in barring entails was owing to the st 

 4"llen. VII., c. 24, and 37 Hen. VIII., c. 19, which were uot made till 

 several tenturios after the introduction of fines. A common recovery 



