such a fine, it is a forfeiture of his estate for life. (b) But where the person who has the next estate of inheritance joins with the tenant for life in levying a fine, it does not then operate as a forfeiture. (c) A fine sur concessit levied by a tenant for life will not operate as a forfeiture of his estate, because it only transfers such an interest as the tenant for life may lawfully pass, without divesting or displacing the estates in remainder or reversion. A fine by a copyholder will operate as a forfeiture, and no acceptance of rent by the lord will make the estate good. A fine sur done, grant, and render, alters the course of descent, though a fine sur cognizance de droit come ceo, &c., where no uses are declared, or it is declared to the use of the cognizor and his heirs, does not. (d) The king cannot be barred by a fine, to which he is not a party; nor ecclesiastical corporations who are restrained from alienation: (e) though a bishop, dean, or vicar, may be himself barred by his own nonclaim. It is a rule of law that no estate or interest can be barred by a fine, unless it is divested out of the real owner, either before the fine is levied, or by the operation of

(b) 9 Rep. 106. b. Smith v.

Abell, 2 Lev. 202. (c) Bredon's case, 1 Rep.76. 1 Vent. 160.

(d) Price v. Langford, 1 Show. 92.

(e) Magd. Coll. case, 11Rep.

78. b.

the fine itself; that is, unless the real owner is put out of possession of such estate or interest; while he continues in possession, a fine will not affect him. (f) And it is not only necessary that a person should be out of possession to be affected by a fine; but it is also requisite that the party levying the fine, should have an adverse possession, inconsistent with that of the person to be barred; so that if the possession of the person who levies a fine be consistent with that of any other person, the latter will not be affected by it. (g) A rent, right of way, or common, in the possession of a third person, cannot be barred by fine. (h) Where women, having estates in dower or jointure, discontinue or alien them, such discontinuances are declared to be void by stat. 11 Hen. VII. c. 20., and by the stat. 32 Hen. VIII. c. 36. s. 32. it is declared that no fine levied by a woman of any such estate as is mentioned in the stat. 11 Hen. VII. shall be of any effect. By the 32 Hen VIII. c. 28. s. 6. it is declared that no fine levied by a husband, of any lands, whereof he is seised in right of his wife, shall be prejudicial or hurtful to the wife or her heirs. A springing or shifting use cannot be defeated or destroyed by a fine levied of the estate out of which such use is to arise.

(ƒ) 5 Rep. 123. b. 9 Rep. (g) 5 Cruise 235. Edit. 3d. (h) Ibid. 237.

106. a.

23

CHAPTER II.

ON THE NATURE AND EFFECT OF COMMON RECO

VERIES.

A COMMON recovery is a judgment obtained in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in such suit. (a) It was originally invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the Courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only estates tail, but also all remainders and reversions expectant thereon. From that time common recoveries have become extremely frequent; and have ever since been considered as common assurances, by means of which tenants in tail are enabled to bar their estates tail, and to convert them into estates in fee simple.

Although the action on which a common recovery is founded be fictitious, yet the same mode

(a) Bacon's Tracts 148. 5 Cruise 283. Edit. 3d.

of proceeding must be pursued, and all those forms strictly adhered to, which it is necessary to observe in an adversary suit.

The first thing necessary to be done in suffering a common recovery is, that the person who is to be the demandant, and to whom the lands are to be adjudged, should sue out a writ or præcipe against the tenant of the freehold; from which such tenant is usually called the tenant to the præcipe. To this writ the tenant appears in Court, either in person or by attorney: but, instead of defending the title to the land himself, he calls on some other person, who upon the original purchase is supposed to have warranted the title, and prays that that person may be called in to defend the title which he warranted, or otherwise to give the tenant lands of equal value to those which he shall lose by defect of his warranty. This is called the voucher, vocatio, or calling to warranty. The person thus called to warrant, usually denominated the vouchee, appears in Court, is impleaded, and enters into the warranty; by which means he takes upon himself the defence of the land. The demandant then desires leave of the Court to imparl, or confer with the vouchee in private, which is granted, of course. Soon after the demandant returns into Court, but the vouchee disappears, or makes default; in consequence of which, it

is presumed by the Court, that he has no title to the lands demanded in the writ, and therefore cannot defend them; whereupon judgment is given for the demandant, now called the recoveror, to recover the lands in question against the tenant; and for the tenant to recover against the vouchee, lands of equal value in recompence for those so warranted by him, and now lost by his default. This is called the recompense of recovery in value: but as it is customary to vouch the crier of the Court of Common Pleas, who is thence denominated the common vouchee, the tenant can only have a nominal, not a real, recompence for the land thus recovered against him by the demandant. A writ of habere facias seisinam is then sued out, directed to the Sheriff of the county in which the lands thus recovered are situated; and, on the execution and return of this writ, the recovery is completed. The recovery here described is with a single voucher but recoveries are generally suffered with double, or with further voucher, as the exigency of the case may require; and then there are several judgments against the vouchees. In a recovery with double voucher, which is the most frequent, the tenant in tail conveys an estate of freehold to some indifferent person, against whom the writ is brought. This person, being tenant to the præcipe, vouches the