begin, the time continues to run, notwithstanding any FINES. subsequent disability.

But as the time does not begin to run till the third proclamation has been made, it seems, that though the person be not under the disability at the time the fine was levied, yet if he become so before the last proclamation, he shall not be bound to claim within five years from the last proclamation, but shall have till that period after his disability be removed.

If, however, the disability of a person, under the impediments mentioned in the act, be once wholly removed, so that the time once begin to run, the term will proceed, though he immediately after fall into the same predicament, and continue so for the remainder of the five years, and he shall be as much precluded, and his heir, if he die, as if he had been free from the impediment the whole of the five years.

But if a person to whom a right accrues to lands of which a fine has been levied, labours under any of the disabilities specified and excepted in the statute 4 Hen. 7, and dies before his disabilities are removed, it seems to be a doubtful point whether the heir of such person be obliged to make his claim within five years after the death of his ancestor, or be allowed an indefinite time for the purpose. The better opinion, however, should seem to be, that such heir is not confined to make his claim within the period, but may enter at any indefinite period afterwards.

b Doe v. Jones, 4 Term. Rep. 301.

See Plow. 366.

• Ibid. 375.

&c.

f See 2 Inst. 519; Cro.
Eliz. 219; 1 Leon. 211;
Sav. 128; 1 Cru. 258; 1 Ca.
Op. 423; Dillon v. Lemon,

See Cru. on Fines, 258, 2 H. Blac. 584; and Sugd.

Vend. & Pur. 168.

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RIES.

Definition of

a common

recovery.

CHAP. II.

OF COMMON RECOVERIES.

IN treating of common recoveries we may consider,

1. THE NATURE AND ORIGIN OF COMMON RECO

VERIES.

II. WHAT PERSONS MAY SUFFER RECoveries.

III. OF WHAT THINGS A RECOVERY MAY BE SUFFERED,
AND BY WHAT DESCRIPTION.

IV. IN WHAT COURT RECOVERIES MAY BE SUFFERED,
AND OF THE MANNER IN WHICH THEY ARE TO

BE SUFFERED.

V. THE EFFECT AND OPERATION OF A RECOVERY.

I. OF THE NATURE AND ORIGIN OF COMMON
RECOVERIES.

A COMMON recovery, in its ancient and more extensive sense, may be defined to be a restitution, by the judgment of a court of record, of a former right, of which the recoveror has been defeated; but in its modern and more usual sense it is a "certain form or course allowed by law to be observed for the better assurance of lands, and generally used for the barring estates-tail, remainders and reversions";" or, more accurately, a judgment obtained in a fictitious suit, in which lands are recovered against the tenant of the freehold, in consequence of a default made

See nature, &c. of common recoveries stated and explained, Master d. Tregon

well v. Strachan, ¦5 Durnf. & East, 107, n.

b

Pig. Recov. 1.

by the person last vouched to warranty in such suite; which recovery being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror; for judgments, whether obtained after a real defence made by tenant to the writ, or pronounced upon his default or feint plea only, had, at the common law, the same efficacy to bind the land in question.

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common re

The origin of common recoveries (1), and the occa- The origin of sion of introducing them, has been much controverted; coveries. some are of opinion that the origin of common recoveries is to be dated from the time of Edward 4, who, observing the great effusion of blood occasioned by the unhappy disputes between the houses of York and Lancaster, and finding that though he used the extremity of law against the opposite party, by attainting them of high treason, yet their estates being protected in the sanctuary of entails, this had little effect on their families; and the son who succeeded the father generally inherited his principles and party, as well as estate: to remedy this inconvenience, and to give people an opportunity to dock their estates, suffered or instigated Taltarum's case to be brought before the court in the twelfth year of his reign, as King James 1 did Calvin's case, and King James 2, Edward Hale's case, where the judicial decision was made auxiliary to his policy, by declaring in effect, that a common recovery, suffered by a tenant in tail, should be an effectual destruction of the entail; for, though primâ facie, Taltarum's case seems to be an adverse judgment, and the court held that estate-tail not to be barred, because, as that case was cir

(1) See Pig. Recov. 8; Cru. Recov. c. 1; Shep. Touch. 37; Doct. and Stud. Dial. 1, c. 26; Sayer ex dem. Atkins v. Horde, 1 Burr. 115.

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RIES.

cumstanced (1), tenant in tail was seised of another estate
and the recovery in value, which is the reason of barring
the issue, goes according to the estate whereof the tenant
was seised at the time of the recovery, and not in recom-
pense of the estate he had not; so that here tenant in tail
being in of a special estate-tail, the first estate-tail was
not barred. Yet, by what was said by the bench in this
case, it appeared that the judges were of opinion, that if
in this case the tenant in tail had come in as a vouchee,
he had then come in of all the estates he ever had, though
discontinued and turned to a right; and therefore been
barred; whence, from this case, most writers date the æra
of common recoveries. Others, however, think they are
of far greater antiquity, and apparently with reason; for
it is clear that when the judges saw the ill consequences
these fettered estates. introduced, and that they tended
towards a perpetuity, they greatly discountenanced them,
and endeavoured to lessen their authority. And my Lord
Coke, in Mary Portington's case, cites several cases, in
the reign of Edward 3, in which the judges were of
opinion, that a common recovery was a good bar to an
estate-tail. Whence Mr. Pigot infers, that common reco-
veries originated from the case of Octavian Lombard, who,
in the 43d year of Edward 3', brought a replevin for
taking his cattle: the defendant avows, for that one
Nicholas was seised in tail, and had issue John and Joan:
Nicholas dies; John being then beyond sea, Joan the
daughter enters, and has issue Nicholas, who enters: John
the son returns from beyond sea, and sues for the land, and
on an agreement releases to Nicholas, and for this release
• 10 R. 37, 6.
f Yr. Bks. 21.

(1) In Taltarum's case, tenant in tail general made a feoffment in fee, and took back an estate to him and his wife, and the heirs of their bodies: the wife died; a præcipe was brought against the tenant in tail, who vouched the common vouchee. Year Books, 12 Edw. 4. 14, 19.

Nicholas grants him twenty pounds a year, with a clause of distress, and for rent arrear avows on the land charged, then in the hands of the issue of Nicholas, and the distress is held good. Now the gist of this case is, tenant in tail pro lite redimenda, grants to one, that had a prior right to the estate, a rent-charge, in consideration of a release of his right; and this being for the benefit of the issue, it was held that he could not avoid it: from this ground, therefore, he concludes common recoveries had their origin; for the issue in all common recoveries is supposed to have a recompense in value for the estate lost, and this recompense in value is generally deemed the reason of his being barred; and although it may be objected that this is all supposition, since it is notorious that, in reality, the issue on a common recovery has no recompense, and this is all a fiction of law, which has occasioned much censure to be cast on these recoveries (1); yet it may be observed, that in fictione jure subsistit equitas; and all laws have their fictions, and all grounded on reason; and the public having now experienced the beneficial effects of them, and they being become common assurances, the judges are even astuti in supporting them, and inventing reasons to maintain their authority. But though, for several centuries, the sole reason given for common recoveries was the recompense in value the issue had, or by possibility might have, yet it could not but have been perceived, in process of time,

T. 7 Edw. 4, 19, pl. 25.

(1) See Sir Thomas Craigg's De Feodis, 161, who says, "Et licet ex jure Anglorum provideri in feodo taliato posit, ne in fraudem hæredum qui in tallio succedere deberet, alienatio fiat qui tamen in foro versantur, callidis artibus mentem legis subvertunt, et ex illicito licitum per ambages faciunt, dum quod vassallus alienare non potest, proptor conditionem in feodó talliato expressam, id ei colludenti sive consentienti, simulatus contradictor (revera autem feodi) ex tacito consensu judicio feodum evincit, illi recuperationem vocant."

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RIES.