tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a præcipe quod reddat, because those were its initial or most operative words when the law proceedings were in Latin. In this writ the demandant Golding alleges that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. The subsequent proceedings are made up into a record or recoveryroll, in which the writ and complaint of the demandant are first recited whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, desires leave of the court to imparl, or confer with the vouchee in private which is (as usual) allowed him. And soon afterward the demandant Golding returns to court, but Morland the vouchee disappears, or makes default. Whereupon. judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question, against the tenant, Edwards, who is now the recoveree; and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the crier of the court (who, from being frequently thus vouched, is called the common vouchee), it is plain that Edwards has

only a nominal recompense for the land so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding, the purchasor.

This supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For if the recoveree should obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing), these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail...

To such awkward shifts, such subtle refinements, and such strange reasoning were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design for which these contrivances were set on foot were certainly laudable; the unriveting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot admire the means.

2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. . . In all recoveries it is necessary that the recoveree, or tenant to the præcipe, as he is usually called, be actually seised of the freehold, else the recovery is void. For all actions, to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold cannot be recovered of him who has it not.

..

4 KENT. COM., 497. Of Fines and Recoveries.-Alienation by matter of record, as by fines and common recoveries, makes a distinguished figure in the English code of the common assurances of the kingdom. But they have not been in much use in any part of this country, and probably were never adopted, or known in practice in most of the States. The conveyance by common recovery was in use in Pennsylvania, Delaware and Maryland, before the American revolution; but it must have become obsolete with the disuse of estates tail. Fines have been occasionally levied in New York for the sake of barring claims; but by the New York Revised Statutes1 fines and common recoveries are now abolished. . . . The conveyance by fine, as a matter of record, transacted in one of the highest courts of common law, has some great advantages, and merits a more serious consideration. Its force and effect are very great; and great solemnity is required in passing it, because, said the statute of 18 Edw. I., "the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those who are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied, unless they put in their claim within a year and a day." This bar by non-claim was, afterwards, by the statute of 4 Hen. VII., extended to five years. These statutes, and this bar of non-claim after five years, were reenacted in New York, and continued in force until January, 1830; and common recoveries were equally recognized by statute as a valid mode of conveyance down to this lastmentioned period. Such a formal, solemn, and public mode of conveyance, with such a short bar by non-claim, was resorted to in special cases, where title had become complex, and the property was of great value, and costly improvements were in immediate contemplation.

1 Vol. II., 343, sec. 24.

CHAPTER IV.

GRANT AND ATTORNMENT.

Co. LIT., 172, a. "Grant," concessio, is in the common law a conveyance of a thing that lies in grant and not in livery, which cannot passe without deed; as advowsons, services, rents, commons, reversions, and such like.

171, b. "Fait," Factum, Anglice a deed, and signifieth in the common law, an instrument consisting of three things, viz., writing, sealing, and delivery, comprehending a bargaine or contract between party and party, man or woman. It is called of the civilians literarum obligatio.

49, a. So to conclude this point; of freehold and inheritances some be corporeall, as houses, &c., lands, &c.; these are to passe by liverie of seisin, by deed or without deed; some be incorporeall, as advowsons, rents, commons, estovers, &c.; these cannot passe without deed, but without any liverie. And the law hath provided the deed in place or stead of a livery. And so it is if a man make a lease, and by deed grant the reversion in fee, here the freehold with attornement of the lessee by the deed doth passe, which is in lieu of the livery. See Bract., lib. 2, cap. 18.

LIT., § 551. Attornement is, as if there bee lord and tenant, and the lord will grant by his deed the services of his tenant to another for terme of yeares, or for terme of life, or in taile, or in fee, the tenant must attorne to the grantee in the life of the grantor, by force and vertue of the grant, or otherwise the grant is void. And attornement is no other in effect, but when the tenant hath heard of the grant made by his lord, that the same tenant do agree by word to the said grant, as to say to the grantee, I agree to the grant made to you, &c., or I am well content with the grant made to

you; but the most common attornement is to say: Sir, I attorne to you by force of the said grant, or I become your tenant, &c., or to deliver to the grantee a pennie, or halfepennie, or a farthing, by way of attornement.

§ 567. Also, if a man letteth tenements for terme of yeares, by force of which lease the lessee is seised, and after the lessor by his deed grant the reversion to another for terme of life, or in taile, or in fee, it behoveth in such case that the tenant for yeares attorne, or otherwise nothing shall passe to such grantee by such deed. And if in this case the tenaunt for yeares attorne to the grantee, then the freehold shall presently passe to the grantee by such attornement without any liverie of seisin, &c., because if any liverie of seisin, &c., should be or were needfull to bee made, then the tenant for yeares should be at the time of the livery of seisin ousted of his possession, which should bee against reason, &c.

§ 568. Also, if tenements be letten to a man for terme of life, or given in taile, saving the reversion, &c., if hee in the reversion in such case grant the reversion to another by his deed, it behooveth that the tenant of the land attorne to the grantee in the life of the grantor, or otherwise the grant is voyd.

§ 569. In the same manner is it, if land be granted in taile, or let to a man for terme of life, the remainder to another in fee, if he in the remainder will graunt this remainder to another, &c., if the tenant of the land attorne in the life of the grantor, then the grant of such a remainder is good, or otherwise not.

$570. P. 12. Edw. 4. It is there holden by the whole court, that tenant in taile shall not be compelled to attorne, but if he will attorne gratis, it is good enough.

Co. LIT., 316, b. This is added to Littleton, and therefore, though it be good law, and the booke truly cited, yet I passe it over.

ID., 309, a.

"Attornment" is an agreement of the ten