6. By a rule of the Court of Common Pleas, Trin. H. Black, 30 Geo. III. it is ordered, that from and after the R. 1. 526. first day of Michaelmas term then next ensuing, in every common recovery wherein the vouchee or vouchers shall appear at the bar of that Court, for the purpose of suffering such recovery, the writ of entry shall be sued out and produced at the time of the recording of the vouchee's or voucher's appearance at the bar, at the foot of the præcipe in such recovery. 7. The writ on which a recovery is suffered, ought Construed favourably. to be similar in every respect to a writ which is sued out for the purpose of commencing an adversary suit. The courts, however, make a distinction between a breve adversarium and a breve amicabile, and will 2 Roll. R. 67. construe the latter in a much more favourable manner than the former. Case, 5 Rep. 40. Poph. 22. 8. A writ of error was brought to reverse a com- Dormer's mon recovery, which had been suffered on a writ of entry in the post, of a manor, and of a yearly rent or pension of four marks; and also of an advowson. One of the errors assigned was, that a writ of entry in the post does not lie of an advowson. But it was unanimously determined, that the judgment should be affirmed: because a common recovery was not to be compared to a judgment in an adversary suit; as it was by usage and custom become a common assurance and conveyance of lands, and was had by the mutual consent of the parties; et consensus tollit errorem. Besides, if it were otherwise, no recovery could be suffered of an advowson, or common in gross, or of many other things; which would be highly inconvenient. 9. A writ of entry bore date 1st of March, 7 Eliz. and the return was made die Lunæ quarta septimana Barton's Case, must have the Freehold. quadragesimæ prox. futur., the said first day of March being the first week of Lent, 7 Eliz.; and upon this it was inferred, that the tenant was not to appear till Monday in the fourth week of Lent, 8 Eliz. which was a long time after the voucher appeared and vouched over; so that the recovery was void, because there was judgment upon a voucher before the return of the writ, till which the Court had no power to proceed. But it was determined that the original writ should be construed, as it was written, to be returnable on Monday in the fourth week of the same Lent, 7 Eliz.; for it should be taken (as it was written shortly) in such a manner as to make the recovery good. Tenant to the 10. A common recovery being a real action, Præcipe, who carried on through all its forms, 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; because if he has not the freehold, it would not be in his power to restore the lands, as the writ directs. And, in common recoveries, there is an additional reason because, as the demandant can recover nothing against the tenant unless he has the freehold, so the tenant can have no recompence in value against the vouchee for what he has lost; for until the demandant sues out execution against the tenant, the tenant cannot have execution against the vouchee : and if the tenant has nothing in the land, no execution can be sued against him, nor can any recovery in value be had over; consequently, there will be no recompence to bind him, and the recovery will be no bar. Pigot, 28. infra, c. 7. 11. If the tenant to the præcipe has the freehold at the time when the recovery is suffered, though his estate be afterwards defeated, yet the recovery will be good. 4 Leon, 84. Goldsb. 82. 12. Lands were given to an alien in tail, remain- Anon. der over to another in fee: the alien suffered a common recovery, and died without issue. All this was found by office; and it was contended that the alien was not tenant to the land when the recovery was suffered but the Court held the contrary, that the recovery was good. 13. If a writ of entry is brought against the tenant of the freehold and a stranger, the recovery will be valid; for the recompence in value will go to the person who has really lost the estate. 1 Vent. 358. Paulin v. Case, 14. If there be two joint tenants of a manor, and Winchester's a writ of entry of the whole manor is brought against 3 Rep. 1. one of them, on which a common recovery is suffered, it will only be good for the moiety of the person against whom the writ was brought; but as to the other moiety, it will be void, for want of a tenant to the præcipe. 15. It has been long settled, that a devise to executors for payment of debts, and until debts are paid, only gives the executors a chattel interest in the lands thus devised, and therefore does not prevent the disposal or descent of the freehold; so that if, after such a devise, the testator gives the same lands to a person for life, the freehold will vest in such devisee immediately on the death of the testator, and he will be enabled to make a good tenant to the præcipe. 16. So if a testator gives his executors full power to receive the mesne profits of his estates in a particular place, upon trust to pay his debts, and afterwards devises those estates to a person for life, the 1 Inst. 42 a. 8 Rep. 96 a. Carter v. Barnardiston, 1 P. Wms. 505. 3Brown Parl. Ca. 64. freehold will, on the death of the devisor, become vested in such devisee for life, and he may make a good tenant to the præcipe. 17. Thus, where Sir Michael Armyne being seised in fee of several estates in the counties of Huntingdon, Lincoln, &c. made his will, and thereby desired, that his executors would take care to see all his debts and legacies paid, by making sale of his personal estate; and as his debts were great, he devised to his executors all his manors and lands of Cherry Orton and Botolph Bridge, to be by them sold for the most that could be got, and the monies arising from such sale disposed of in the payment of his debts and legacies. And, lest both his personal estate and the monies to arise from such sale should not be sufficient, the testator gave his executors full power to receive the mesne profits of his whole estate lying in Pickworth and Willoughby, in the county of Lincoln. The testator then devised the said manors of Pickworth and Willoughby, after such time as his debts and legacies should be paid by the rents and profits thereof, to Evers Armyne, Esq. for his life, without impeachment of waste; and in case the said Evers Armyne should have any issue male, then to such issue male and his heirs for ever; and after the decease of the said Evers Armyne, in case he left no issue male, then after such time as his debts and legacies were fully paid, he devised the manor of Pickworth to Thomas Style in fee. Evers Armyne, the devisee, having got into possession of the said manors of Pickworth and Willoughby, suffered a common recovery of them before the debts were paid, and declared the uses thereof to himself in fee. This case having been heard in the House of Lords, the Judges were directed to give their opinions, "whether the estate for life was vested in Evers Armyne at the time of the recovery, before all the debts were paid, so that he could make a good tenant to the præcipe?" And the Lord Chief Justice of the Court of Common Pleas, in the name of all the Judges, who had consulted together, delivered their unanimous opinion, "that the estate for life was vested in Evers Armyne at the time of the recovery." 18. It has been sometimes doubted in practice, whether, upon the death of a person whose widow is entitled to dower, the heir can suffer a recovery before assignment of dower, without the concurrence of the widow. No case of this kind has ever, I believe, been determined; but it follows, from the principles laid down by Lord Ch. Baron Gilbert, that Ten. 26. such a recovery would be good: for, he says, the law casts the freehold on the heir immediately upon the death of the ancestor; but the law does not cast Tit. 6. c. 4. dower on the wife, for she takes it by her own act. § 1. It is true, that when the widow is endowed, the possession which the law casts on the heir is avoided, and the widow is considered as being in from the death of her husband; but still the heir had the free- Lit. § 393. hold until dower was assigned, which is sufficient to support the recovery. 19. As it is absolutely necessary that the tenant to the præcipe should have an estate of freehold, it follows, that those who have not an estate of freehold. cannot suffer a recovery; because they cannot convey a freehold to the person against whom the writ is to be brought. 20. Thus, where a lessee pour auter vie made a Keb. 735. lease for sixty years, and died in the lifetime of the 785. cestui que vie; the person in remainder, being tenant |