Of execu tion. pears by attorney, die before the return day of the writ of summons, the recovery is void; because the judgment could not possibly have been given until the vouchee had appeared in Court and made default; and as the vouchee could not appear until the return of that process which issued for the sole purpose of bringing him into Court, it follows that judgment must have been given after the death of the vouchee, which was a determination of the warrant of attorney. And these facts being collateral to the record may be assigned for error. (h) If a writ of summons be returnable on a Sunday, and the vouchee die on that day, the recovery is void; because Sunday being a dies non juridicus, judgment could not possibly have been given till the Monday following; so that it must have been given after the death of the vouchee. (i) Where the demandant has obtained judgment against the tenant, and the tenant against the vouchee, the Court awards the writ of Habere facias seisinam, in the same manner as upon a judgment in an adversary action, to the sheriff of the county in which the lands lie, directing him to put the recoveror into possession of the lands, which he has recovered; and when the (h) Wynne v. Wynne. Sheepchanks v. Lucas, 1 (i) Swann v. Broom, 3 Burr. 1595. 1 Black. Rep. 496. 526. writ is returned, the recovery is complete and executed. The writ of seisin should bear teste the fourth day inclusive after the return of the writ of entry, or last writ of summons, when the vouchee comes in by writ of summons: and there should be fifteen days between the teste and return of the writ of seisin. It is, however, said in the case of Goodright v. Rigby, (k) that the day named in the return of the writ of seisin is immaterial, it not being necessary to name any particular day, as the return would be good without it. All that was necessary was, that seisin should be delivered after the judgment, and before the return of the same writ; and that the proceedings should all be in the same term. A judgment in a recovery has no operation; nor does it alter the nature of the estate, until it appears to have been regularly executed by the return of the writ of seisin. And as nearly all recoveries are now suffered to uses, the recoverors do not acquire any seisin, and consequently no use can arise, until the recovery is executed, that is, until the writ of seisin is returned; for it is never now actually executed. (1) If a recovery be suffered of lands let on leases for years, the recoverors have not the reversion presently by the judgment: but it (1) W. Jones 10. 2 Stra. (k) 2 Hen. Black. 63. 1185. 5 T. R. 179. must be executed. (m) By stat. 7 Hen. VIII. c. 4. all recoverors are allowed the same remedies against lessees for lives and years, by distress, avowry, and action of debt, for rents and services which became due after the recovery, to which the person against whom the recovery was had was entitled. (n) If a person suffer a recovery, and die before the writ of seisin be issued, the recoveror may have execution against the heir. (o) The award, execution, and return of the writ of seisin by the Sheriff, must all appear upon record; and if the execution of a recovery be not found in a special verdict, it cannot be presumed by the Court. (p) By stat. 43 Eliz. c. 3. s. 1. it is enacted that every original writ of entry in the post, or other writ whereupon any common recovery shall be suffered, the writs of Summoneas ad warrantizandum, the returns of the said originals and writs of summons, and every warrant of attorney as well of every demandant and tenant as vouchee extant and in being, may, upon the request or election of any person, be enrolled in rolls of parliament, and that the enrolment of the same or any part thereof shall be of as good force and validity in law to all intents and purposes for so much of any of them so inrolled as the same being extant and remaining were or ought to be. The recovery having been completed by the return of the writ of seisin, a certificate of all the proceedings is then made out under the seal of the Court, and delivered to the party suffering the recovery, which is called the exemplification. From what has been said, the effect of a common recovery with proper vouchers will appear to be an absolute bar not only of all estates tail, but of all remainders and reversions expectant on the determination of such estates, and of all charges and incumbrances created by the persons in remainder and reversion. (q) And the power of suffering a recovery is one of those privileges so inseparably annexed to an estate tail, that it cannot be restrained by any condition, limitation, proviso, or covenant whatsoever. (r) If a tenant in tail levies a fine with proclamations, and afterwards suffers a recovery, although the estate tail was destroyed by the fine, yet still the recovery will bar the remainders and reversion depending on the es (q) Mary Portington's case, 10 Rep. 37 b. Capel's case, 1 Rep. 62. Cholmley's case, 2 Rep. 52. Hudson V. Benson, 2 Lev. 28. Sir T. Ray. 236. (r) 1 Inst. 223. b. 1 Burr. of the efoperation fect and of a reco very. tate tail. (s) But if a person be attainted of treason, and afterwards suffers a recovery, it will not bar the remainders or reversion; because a person attainted is not capable of taking any thing but for the benefit of the king. (t) An equitable or trust estate tail, and all equitable remainders expectant thereon, and also the equitable reversion, may be barred by a common recovery, without the concurrence of the persons in whom the legal estates are vested. (u) But though a recovery will bar an equitable as well as a legal remainder, (v) yet the estate must be completely legal or completely equitable; and therefore a person who is seised of only an equitable estate for life and a legal remainder, cannot of himself suffer either a legal or an equitable recovery. (w) But if the tenant for life has the legal as well as the equitable estate for life, he may bar an equitable estate tail. (x) Estates tail of the gift of the crown may be barred by a recovery, unless they have been given as a reward for services: but it is doubtful whether the reversion in the crown would be barred. (y) A recovery may be suffered of a rent-charge (s) Herbert v. Binion, 1 Roll. 223. (t) 2 Roll. Ab. 394. (u) Burnaby v. Griffen, 3 Vez. 276. Litt. Book 3. n. 249. (w) Salvin V. Thornton, Amb. Rep. 545, 699. (x) Brydges v. Brydges, 3 Ves. 120. (v) Hargrave and B. Co. (y) Plowd.553. 1 Inst.335, a. |