The Sun.
London, England, 1829-06-25 00:00:00

PRICE 7D.

serve a life estate, or to prevent the extinguish-
ment of powers, it is•nece~sary that in the deed
declaring the uses of the fine the parties should
express that intention. From want of due atten•
tion to the different tenures by which lands are

held, cases of forfeiture not unfrequently occur.

Other mischief's arising from want of due
caution in the use of fines are known to every

practitioner. In short, the skill and nicety re-
quired in levying fines for particular purposes, to
avoid any of the other effects incident to them,
are frequently so great, that irreparable mischiefs
are often produced by unskilful or careless prac-
titioners.

A Common Recovery is a judgment in a ficti-
tious suit, in the nature of a real action brought
by the dentandant against the tenant of the free-
hold, who vouches some perso❑ to warrant the
lands, and judgment is given for the dewandant
to recover them against the tenant, in conse-
quence of the person vouched, or the person
last vouched, if there should be more than one

vouchee, making default in defending the title to
the lands, which title he is supposed to have
warranted. In a recovery, the regular process of
a real action is pursued throughout, and no
comprothise takes place as in a fine. Common
recoveries were invented by-ecclesiastics, in order
to elude the Statutes of Mortmain, and were in

constant use for that purpose until checked by
the Statute 'Westminster 2, 13 Edw. I, c. 32.
In consequence of the principles laid down in
the 12 Edw. IV., in Taltarum's case, a common

recovery was afterwards applied to the purpose of
evading the Statute of Westminster 2, 13 Edw.
1., c. 1, commonly called the Statute Dc Donis
Conditionalibus, by virtue of which the old
common law estate of fee simple conditional was
abolished, and the modern estate tail was intro-
duced, with such restrictions, that the tenant in
tail could not alienate the lands entailed, nor
make them subject to his debts in the hands of •
his successors, nor were they liable to forfeiture
for felony or treason, the last of which incidents
was, in those disturbed times, considered by the
Crown as a serious evil. In the long interval of
nearly 200 years between the passing of the
Statute De Donis and the application of reco-
veries to the evading of that statute, there was no
contrivance, except that of warranty in a few
cases, by which lands entailed could be unfet-
tered. During that interval many attempts were
made in Parliament to procure the repeal of that
statute, but without success, on account of the
uniform opposition of the great landed proprie-
tors. Awkward as was the contrivance of a re-
covery for unfettering lands entailed, yet it was
considered a great boon to the public, because it
removed the mischiefs which arose from the ten-
dency of the Statute De Donis to establish

perpetuities.
The principal use of a recovery is to enable a
tenant in tail to bar not only his estate tail, but
also all remainders, reversions, conditions, col-.
lateral limitations, and charges, not prior to the
estate tail, and to acquire or pass a fee simple or
an estate commensurate with the estate of the
settler; but a reversion vested in the Crown
cannot, as it is generally- understood, be barred
by a recovery.
A recovery will produce other effects, viz. :it
will operate by estoppel, when suffered without a
proper tenant to the pratipe, or by persons
having contingent or expectant or other rights or
interests, •or by expectant heirs, and in some
other cases, so as to conclude the parties suffer-
ing it and all persons claiming under them,
except issue in tail ; it will operate as a confirma-
tion of all prior estates or charges made by the
tenant in tail who suffers it ; it will release or ex-
...

tinguish rights, interests and powers ; it will
destroy or extinguish contingent remainders and
executory interests ; it will work a discontinuance
to the issue in tail, if not duly suffered by tenant
in tail ; it will revoke devises ; it will create a
forfeiture in many cases, when suffered by a tenant
for life, or by persons not having the freehold.
Although it is not usual to suffer a recovery,
except when it is necessary to bar entails and re-
mainders over, yet, when resorted to for those
purposes, it is not unfrequently made use of at
the same time to convey, release, bar, or extin-
guish the estates, rights, powers and interests of
married women and others.

In order to operate as a bar to an estate tail,
and the remainders and reversion, it is necessary

that a proper writ be brought, and that there be
a demandant, tenant, and vouchee. The writ
must be brought by the demandant against the
person who has the immediate freehold, who is
technically called the tenant to the prcecipe ;
for all actions to recover the seisin of lands, to be
effectual, must be brought against the actual te-

nant of the freehold. Hence a tenant in tail,
who has not himself the immediate freehold,
must, in order to bar by a recovery the entail and
the remainders and reversion, procure the con-
currence of the person who 'has the immediate
estate of freehold. In consequence of the diffi-
culties which frequently occurred in procuring a \
conveyance from leases for lives to make a tenant ••
to the prcecipe, their concurrence was dispensed
with by the statute 14 Geo. 11. c. 20 ; and by
the same statute the person entitled to the first
estate for life or other greater estate in reversion
' expectant on the leases, was made competent to
make the tenant to the prcecipe, and was for that
purpose considered as having the immediate free-
hold. The common law required that a tenant
to the prcecipe in a recovery should have the
freehold before and at the time of judgment
given. But the above-mentioned statute, 11
Geo. 11. c. 20, has made a recovery valid, if the
freehold is vested in the tenant to the
prcecipe before the end of the term, great ses-
sion, session, or assizes, in which it is suffered,
notwithstanding the fine or deed for making the
tenant to the prcecipe should be levied or exe-
cuted after the judgment has been given in such
recovery, and the writ of seisin has been awarded.
Thus it appears that the Legislature has relieved
common recoveries from one of the requisites in
real adverse suits, and in doing so has incum-
bered them with a legal fiction. In a recovery
by a tenant in tail, it is necessary that he should
vouch some person to warranty. If the writ is
brought by the defendant against the tenant in
tail, and he vouches over another person, the
recovery only bars the estate tail, of which the
tenant in tail is then seized, and the remainders
aNd reversion. This recovery is called a Reco-
very with single Voucher. If the writ is brought
by the demandant against another person who has