RECOVERY. 



court (who, from being frequently thus vouclied, is called the 

 common -vouchee) it is plain that Edwards has only a nominal 

 recoMipenfe for the lands fo recovered againll him by Guid- 

 ing ; which lands are now abfolutely veftcd in the faid rc- 

 coveror by judgment of law, and feifin thereof is delivered 

 by tha fheriff of the connty. So that this coUufivc re- 

 covery operates merely in the nature of a conveyance in 

 fee-fimple, from Edwards the tenant in tail, to Golding 

 the purchafor. 



The recovery, here defcribed, is with a fingle voucher 

 only ; but fometimes it is with dmibk, treble, or farther 

 voucher, as the exigency of the cafe may require. And in- 

 deed it is now ufual always to have a recovery with double 

 voucher at the leaft : by firlt conveying an citate of free- 

 hold to any indifferent perfon, againft whom the pmcipe is 

 brought ; and then he vouches the tenant in tail, who 

 vouches over the common vouchee. For, if a recovery be 

 had iramediately againft tenant in tail, it bars only fuch 

 cRate in the premifes of which he is then aftually feifed ; 

 whereas if the recovery be had againft another perfon, and 

 the tenant in tail be vouched, it bars eveiy latent right and 

 intereft which he may have in the lands recovered. If Ed- 

 wards therefore be tenant of the freehold in podeflion, and 

 John Barker be tenant in tail in remainder, here Edwards 

 doth firft vouch Barker, and then Barker vouches Jacob 

 Morland the common vouchee ; who is always the lail per- 

 lon vouched, and always makes default : whereby the de- 

 mandant, Golding, recovers the land againft the tenant Ed- 

 wards, and Edwards recovers a recompenfe of equal value 

 againft Barker the firft vouchee ; who recovers the like againil 

 Morland the common vouchee, againft whom fuch ideal re- 

 covery in value is always ultimately awarded. 



This fuppofed recompenfe in value is the reafon why the 

 iff^ue in tail is held to be barred by a common recovery. 

 For if the recoveree Ihould obtain a recompenfe in lands 

 from the common vouchee (which there is a poffibility in 

 contemplation of law, though a very improbable one, of his 

 doing) thefe lands would fupply the place of thofe fo re- 

 covered from him by coUufion, and would defcend to the 

 iffue in tail. This reafon will alfo hold with equal force, 

 as to n.ojl remainder-men and reverfioners ; to whom the 

 poffibility will remain and revert, as a full recompenfe for 

 the reality, which they were otherwife entitled to : but it 

 will not always hold ; and therefore, as Pigott fays, the 

 judges have been even q/luli, in inventing other reafons to 

 maintain the authority of recoveries. And, in particular, 

 it hath been faid, that, though the eftate-tail is gone from 

 the recoveree, yet it is not dejlroycd, but only transferred ; 

 and ftill fubfifts, and will ever continue to fubfift (by con- 

 ftruftion of law) in the recoveror, his heirs, and affigns : 

 and, as the eftate-tail fo continues to fubfift for ever, tlie 

 remainders or reverfions expedant on the determination of 

 luch eftate-tail can never take place. 



To fuch awkward <hifts, fuch fubtile refinements, and 

 fuch ftrange reafoning, were our anceftors obliged to have 

 recourfe, in order to get the better of that ilubborn ftatute 

 de don'ts. The dcfign, for which thefe contrivances were 

 fet on foot, was certainly laudable ; the unrivctting the 

 fetters of eftates-tail, which were attended with a legion of 

 mifchiefs to the commonwealth : but, while we applaud the 

 end, we cannot but admire the means. Our modern courts 

 of juftice have indeed adopted a more manly way of treating 

 the fubjedl ; by confidering common recoveries in no other 

 light, than as the formal mode of conveyance, by which 

 tenant in tail is enabled to aliene his lands. But, fince the 

 ill confequeiices of fettered inheritances are now generally 

 feen and allowed, and of conrfe the utility and expedience 



of fetting them at liberty are apparent ; it hath often 

 been wifticd, that the procefs of this conveyance was 

 (hortened, and rendered lefs fubjedl to niceties, by either 

 totally repealing the ftatute de donit ; which perhaps, by 

 reviving the old dodtrine of conditional fees, might give 

 birth to many litigations : or by vcfting in every tenant 

 in tail of full age the fame abfolute fee-fimple at once, 

 which now he may obtain whenever he pleafcs, by the col- 

 lufive fiftion of a common recovery ; though this might 

 poffibly bear hard upon thofe in remainder or reverfion, by 

 abridging the chances they would otherwile frequently have, 

 as no recovery can be fuffered in the intervals between term 

 and term, which fometimes continue for near five months 

 together: or, laftly, by empowering the tenant in tail to 

 bar the eftate-tail by a folemn deed, to be made in term 

 time and enrolled in fome court of record ; which is liable 

 to neither of the other objeftions, and is warranted not 

 only by the ufage of our American colonies, and the de- 

 cifions of our own courts of juitice, wiiich allow a tenant 

 in tail (without fine or recovery) to appoint his eftate to 

 any charitable ufe, but alfo by the precedent of the ftatute 

 21 Jac. I. c. 19. which, in cafe of a bankrupt tenant in 

 tail, empowers his commiffioners to fell the eftate at any 

 time, by deed indented and enrolled. And if, in fo national 

 a concern, the emoluments of the of&cers, concerned in 

 palling recoveries, are thought to be worthy attention, 

 thofe might be provided for in the fees to be paid upon each 

 enrolment. 



The force and e^ffeff of common recoveries may appear, 

 from what ha-, been faid, to be an abfolute bar not only of 

 all eftates-tail, but of remainders and reverfions expeftant 

 on the determination of fuch eftates. So that a tenant in 

 tail may, by this method of affurance, convey the lands held 

 in tail to the recoveror, his heirs and affigns, abfolutely free 

 and difcharged of all conditions and limitations in tail, and 

 of all remainders and reverfions. But, by ftatute 34. and 

 35 Hen. VIII. c. 20. no recovery had againft tenant in 

 tail, of the king's gift, whereof the remainder or rever- 

 fion is in the king, (hall bar fuch eftate-tail, or the remain- 

 der or reverfion of the crown. And by the ftatute 

 1 1 Hen. VII. c. 20. no woman, after her huft)and's death, 

 ftiall fufter a recovery of lands fettled on her by her huf- 

 band, or fettled on her hufband and her by any of his an- 

 ceftors. And by ftatute 14 EHz. c. 8. no tenant for fife, 

 of any fort, can fuffer a recovery, fo as to bind them in 

 remainder or reverfion. For which reafon, if there be 

 tenant for life, with remainder in tail, and other remainders 

 over, and the tenant for life is defirous to fuffer a valid re- 

 covery ; either he, or the tenant to the prxcipe by him 

 made, muft -uouch the remainder-man in tail, otherwife the 

 recovery is void : but if he does vouch fuch remainder-man, 

 and he appears and vouches the common vouchee, it is then 

 good ; for if a man be vouched and appears, and fuffers 

 the recovery to be had againft the tenant to the precipe, it 

 is as effectual to bar the eftate-tail as if he himfelf were 

 the recoveree. Salk. 571. 



In all recoveries it is neceffary that the recoveree, or tenant 

 to the pritcipe, as he is ufually called, be aftually feifed of the 

 freehold, elfe the recovery is void. (Pigott, 28.) For all 

 aftions to recover the feifin of lands, muft be brought 

 againft the aftual tenant of the freehold, elfe the fuit 

 will lofe its effeft ; fince the freehold cannot be recovered 

 of him who has it not. And, though thefe recoveries 

 are in themfelves fabulous and fictitious, yet it is necef- 

 fary that there be aSores fabulx, properly qualified. 

 But the nicety thought by fome modern praftitioners 

 to be requifite in conveying the legal freehold, in order 



to 



