tenant in tail, who vouches over the common vouchee, upon whose default judgment is given for the demandant against the tenant to the præcipe, and for him against the tenant in tail, and for the tenant in tail against the common vouchee. stances ne suffering a Writ of The circumstances necessary to the suffering Circuma common recovery are, first, that a proper cessary to writ be sued out; secondly, that the person recovery. against whom the writ is brought, be actual tenant of the freehold; thirdly, that such tenant vouch over some other person; fourthly, that judgment be given for the demandant against the tenant, and for the tenant against the vouchee; and, fifthly, that the recovery be executed by the sheriff of the county in which the lands lie. (b) A common recovery may be suffered on any writ by which lands are demand- entry. able; and the writ which is now usually sued out for that purpose is the writ of entry sur disseisin en le post, which is the safest for purchasers, because they need not fear writs of error for wrong or illegal vouchers. There is a fine payable to the Crown at the alienation office, upon suing out a writ of entry of the same nature as that upon suing out a writ of covenant to levy a fine and if a recovery be suffered without an original writ, it is not absolutely void, but only voidable. (c) (b) 5 Cruise, Tit. 36. c. 2. (c) Anon. Lit. Rep. 299. Of the tenant to the Præcipe. It is absolutely necessary that the tenant to the præcipe, or person against whom the writ of entry is brought, should have an estate of freehold in possession, either by right or by wrong, in the lands demanded by the writ, at the time when the recovery is suffered, or before judgment is given, (d) or sometime during the term in which the recovery is suffered; (e) and though his estate be afterwards defeated, the recovery will be good. Leases for lives, at rent, however, need not be surrendered, (f) though persons having a prior estate for life must join.(g) Where the possession has gone with a recovery for a long time, the Court will presume a surrender by the tenant for life, although no surrender be proved: (h) but not where the possession has not accompanied the recovery. (i) Where the person who intends to suffer a recovery is in actual possession of the freehold, he may convey it to any stranger, for the purpose of making him tenant to the præcipe, by fine, feoffment, grant, bargain and sale inrolled, or lease and release. (d) Lacy Williams' Rep. (f) 14 Geo. 2. c. 20. (h) Green v. Froud, 1 Vent. (i) Goodtitle v. Duke of Chandos, 2 Burr. 1056. And if a fine be levied in order to make the tenant to the præcipe, even though no use be declared, (in which case the use generally results), it shall still enure for that purpose. (k) A husband, seized in right of his wife, may alone make a good tenant to the præcipe without fine. (1) When the tenant to the præcipe is made by bargain and sale; the bargainee may appear, and vouch before entry, or before the bargain and sale is enrolled, provided it be enrolled within six lunar months, as prescribed by the statute.(m) And a recovery is good after twenty years, though the deed making the tenant to the præcipe be lost, if it appear that the persons joining in such recovery had a sufficient estate and power to suffer the same. The conveyance generally used for the purpose of making the tenant to the præcipe, is, either a lease and release, or a bargain and sale enrolled, (n) neither of which will be void for any trifling inaccuracy.(o) The bargain and sale is considered as the most eligible conveyance, an office copy of the inrolment, (k) Altham v. Anglesey, GilThrustout bert's Rep. 16. v. Peake, 1 Stra. 12. (1) Roll. Ab. Tit. Recov. A. pl. 4. (m) Robinson v. Comyns. Forrest. 164. 27 Hen. 8. (n) See the deeds of Release examined and proved on oath, being sufficient evidence of it. (p) Where the lands are of considerable value, or are intended to be sold in parcels, it is most advisable to make the tenant by a deed inrolled; that purchasers may on referring to the inrolment, and, if necessary, taking an office copy of it, have complete evidence of the validity of the recovery; by this means the owner, on a sale of the estate in parcels, may avoid the necessity of giving the purchasers copies of the recovery deeds. (q) If the deed should happen not to have been enrolled within the time prescribed by the statute, still, if the lands are out upon leases for years, or in the hands of tenants at will, it has been observed, there is room to contend, that though the deed be void as a bargain and sale, for want of due inrolment, yet it may operate as a grant of the reversion expectant on those particular estates. (r) A feoffment, with livery of seisin, was frequently in use, for the purpose of making the tenant to the writ; and it was formerly the general opinion, that though the feoffor had only a naked possession, yet a fee simple passed by the livery, either by right or by wrong. But this doctrine has, in some respects, been denied in a case where the tenant was made by feoff (p) 10 Anne, c. 18. s. 3. (q) 1 Prest. Con. 22. (r) Hargrave and B.'s Co. Litt. Book iii., note 294. ment, (s) which seems to be the principal reason (t) Hargrave and B.'s Co. Litt. Book iii. note 285. (u) Touchstone, c. 9. (v) The only use of a fine is, to put the evidence of there being a good tenant to the writ upon record. Hume v. Burton, Ridg way's Parl. Cases, 273. (w) Where a tenant in tail, 31 |