-D-^ 



History of the English Landed Interest. 



The inconYenience of a strict entail was felt by parents of 

 children disobedient -witli impunity, by farmers deprived of 

 tlieir leases, by creditors defrauded of their debts, and by pur- 

 chasers cheated of lands through the practice of vendors in 

 secretly entailing the property sold. As we have said the 

 efforts of the Commons to obtain any alteration in the law- 

 were frustrated by the opposition of the great landlords. The 

 remedy, however, came about by the collusive process known 

 as " A Fiction of Common Recovery." The judges could not 

 allow a law to be entirely disregarded, but they were favour- 

 able to any method of evasion which the aggrieved landowners 

 could devise, provided it were sufficiently ingenious to baffle 

 any future attempts to upset their judgment by the issue of the 

 tenant in tail. The latter determined to work out a scheme 

 initiated by the clerical houses in evading the statutes of Mort- 

 main. The recovery of the entailed property by means of a 

 friendly plaintiff, on a fictitious title was the groundwork of 

 their plans, but it was not sufficiently secure jper se against 

 the possible attempt of the tenant's issue to recover the lands 

 entailed upon them by means of a writ of formedon} The 

 opponents of entail contrived therefore a still more intricate and 

 ingenious process, introducing a third party to the collusion. 

 The tenant in tail having secured a friendly plaintiff, or de- 

 mandant as he was technically termed, appeared in court in 

 the apparent roZe of defendant, and called in a fictitious person- 

 age to witness that he had warranted the title of the lands in 

 tail. This the witness admitted, but when further called upon 

 for a defence, he suffered judgment to go against him in de- 

 fault. 



The court therefore adjudged that the demandant should 

 recover the lands from the tenant in tail, and that lands of 

 equal value should be handed over to the latter by the default- 

 ing vouchee, as the fictitious witness to the warranty was 

 technically termed.^ As this device gradually became re- 

 duced to a nicety, the proceedings grew even more complicated, 

 and the lands were first conveyed by a deed called the recovery 



1 So called because they claimed per formam doni. 



2 Vide "Williams, Laio of Real Property^ ch. 2. 



