It was ordered and adjudged, "That the said decree or order of dismission complained of in the said appeal should be reversed. And it was further ordered and adjudged, that the bill should be retained for twelve months, and that the plaintiffs should be at liberty, in the meantime, to bring such action or actions at law as they should be advised, &c. And it was further ordered and adjudged, that the said defendant Edward Thornycroft should not insist, in such action or actions, or on any trial to be had thereon, on the fine mentioned in the pleadings, or on any non-claim which had ensued thereon, or any other fine or non-claim which might have incurred since filing the original bill."

TITLE XXXVI.

COMMON RECOVERY.

CHAP. I.

Of the Origin and Nature of a Recovery.

CHAP. II.

Of the Writ of Entry and the Tenant to the Præcipe.

CHAP. III.

Of Voucher, Judgment, and Execution.

CHAP. IV.

In what Courts and of what Things a Recovery may be suffered.

CHAP. V.

Of the Parties to a Recovery.

CHAP. VI.

Of the Amendment of Recoveries.

CHAP. VII.

Effect of a Recovery in barring Estates Tail, Remainders, and Reversions.

CHAP. VIII.

Effect of a Recovery in barring particular Persons, Estates, and Interests.

CHAP. IX.

Of some other Effects of a Recovery.

CHAP. X.

What Persons, Estates, and Interests are not barred by a Recovery.

A RECOVERY, in its most extensive sense, is the Origin of

restoration of a former right, by the solemn

judgment of a court of justice; and judgments, whe

Recoveries.

ther obtained after a real defence made by the tenant, 2 Inst. 321. or upon his default, or feint plea, have equally the

same force and efficacy to bind the right of the land

so recovered, and to vest a free and absolute estate

in fee simple in the recoveror.

148,

2. A common recovery is a judgment obtained Bac. Tracts, in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by person who is last vouched to warranty in such

the

suit.

Plowd. 43.

3. A common recovery departs so far from the original modes of transferring property, and is in itself so complicated and artificial, that if we had no historical evidence of the time when it was first adopted among the common assurances of the law, we might safely pronounce it to be in some respects a modern invention. But the fact is well known that we are indebted to the ingenuity of the ecclesiastics for the introduetion of common recoveries, in order to evade the statutes of mortmain, by which they were prohibited from purchasing, or receiving under pretence of a free gift, any lands or tenements whatever.

4. To effect this purpose the religious houses used to set up a fictitious title to the lands intended to be given or sold, and brought an action against the tenant to recover them; the tenant by collusion made no defence, whereby judgment was given for the religious house, which then recovered the lands by sentence of law, upon a supposed prior title. And although proceedings of this kind were carried on by a 2 Inst. 429. species of conventional fraud, between the religious house and the tenant of the land; yet the Judges held, that in these cases the religious communities did not appropriate such lands per titulum doni vel alterius alienationis, as the statute de religiosis, 7 Edw. I. expresses it; and that they were not within the words, aut alio quovismodo arte vel ingenio. For as recoveries were prosecuted in a course of law, they were presumed to be just; and it was accordingly held that they were not within the statute.

5. The notoriety and evidence which attended feigned recoveries was such, that they were not used by the ecclesiastics alone, but were soon adopted by lay persons, as a common mode of transferring lands. Thus it appears by the statute of Gloucester 6 Edw. I.

that feigned recoveries were at that time in constant

use; for it is provided by the 11th chapter of that sta- 2 Inst. 321. tute, that a termor for years might falsify a feigned recovery, suffered by the owner of the inheritance.

6. The want of moderation on the part of the ecclesiastics counteracted the effects of their ingenuity; being gratified by the success of their practices, they had such frequent récourse to feigned recoveries, as to occasion a parliamentary interference; for, by the statute of Westminster 2, 13 Edw. I. c. 32. 2 Inst. 429. it was enacted, that in all cases where ecclesiastical persons recovered lands by default, a jury should try the right of the demandants to the land, and if the religious house was found to have a title, they should recover seisin, otherwise it should be forfeited to the immediate lord of the fee, in the manner directed by the statute de religiosis.

7. In consequence of this statute, feigned recove ries seem to have been disused for a considerable time; nor were they again brought into general practice until some centuries afterwards, when they were resumed as a mode of evading the strictness of the statute De donis conditionalibus.

44.

8. Many attempts had been made by the people to Tit. 2. c. 5. procure a legislative repeal of this offensive and impolitic statute, which were constantly and successfully opposed by the great barons; but as the inconveniences arising from entails were so manifest, the ingenuity of the Judges was continually exerted in contriving different modes of evading them. At length a case arose in 12 Edw. IV. in which it was in effect determined, upon principles which will be explained in a subsequent chapter, that a common recovery, suffered by a tenant in tail, should operate as an