verdict, that the deeds making the tenant to the præcipe were executed within the term. And though the statute, in enumerating some of the defects for which remedy was to be applied, does not mention this particular defect, it has always been understood, that the act was intended to remedy every defect of this kind, provided that which is there made a condition be complied with, namely the making of the tenant to the præcipe before the end of the term in which the recovery is suffered; nor could the words of the statute be satisfied by any other. construction. The other Judges concurred in opinion with the Lord Chief Justice, and the judgment was affirmed. A writ of error was then brought in the House of Lords, where the judgment was affirmed. Lives need 26. It is not only necessary for a person who Leases for suffers a common recovery to have an estate of free- not be sur hold in the lands, but it is also necessary that it rendered. should be an estate in possession; for the person against whom the writ is brought must be actual tenant in possession of the freehold; so that it frequently happens, that persons who are entitled to estates of inheritance in lands, are notwithstanding disabled from suffering common recoveries of them, in consequence of their not having a freehold in possession. This happens in two cases: first, where the lands are let out on leases for lives: and secondly, where there is an estate for life prior to their estate of inheritance. 27. Before the statute of quia emptores, subfeuindations, whereon rents and services were reserved, did not prevent a writ of entry from lying against the 1 Burr. 115. lord of the seigniory. When common leases to farmers for one or more life or lives, reserving rent came in use, they resembled subinfeudations, and therefore ought not to have prevented the præcipe from being brought against the owner of the freehold under which the leases were granted; but it was thought necessary and became usual for the person who intended to suffer a recovery, to get conditional surrenders from the lessees for life, in order to become seised of a freehold in possession, and be thereby enabled to make a good tenant to the præcipe. to 28. This practice was productive of several inconveniences; the lessees for life were sometimes unwilling, and frequently unable, from want of age or understanding, to make such surrenders; and it being in some instances doubtful in whom such leases for lives were vested, the statute 14 Geo. I. c. 20, reciting that several leases had been and were likely to be made of honours, &c. for one or more life or lives, under particular rents thereby reserved and to be reserved; and that procuring surrenders of such freehold leases, or the tenants to join, frequently occasioned great trouble, difficulty, and expence tenants in tail; it is therefore enacted, § 1, all common recoveries suffered or to be suffered in His Majesty's Court of Common Pleas at Westminster, or in any court of record in the principality of Wales, or in any of the counties palatine, or in any other court having jurisdiction of the same, of any honours, castles, manors, lands, tenements, or hereditaments, without any surrender or surrenders of such lease or leases, or without the concurrence or any conveyance or assurance from such lessee or lessees, in order to make good tenants to such writs of entry or other writs, whereupon such recoveries "That have been or shall be had or suffered, shall be as valid and effectual in law, to all intents and purposes whatsoever, as if such lessee or lessees, or any other person or persons claiming under him, her, or them, had conveyed or joined in conveying, or shall convey or join in conveying, a good estate of freehold to such person or persons as has or have been, or shall become tenant or tenants to such writs of entry, or other writs whereupon such common recoveries have been or shall be suffered." join. 29. Although the above statute has made the sur- But Persons render of leases for lives unnecessary, yet it does having a prior Estate not extend to estates for life, prior to the estate of for Life must which a recovery is intended to be suffered; such estates must therefore still be surrendered to the person against whom the writ of entry is brought; for this case is expressly excepted in the statute 14 Geo. II. c. 20., it being thereby provided, § 2, "That nothing in that act contained should extend or be construed to extend to make any common recoveries valid and effectual in law, unless the person or persons entitled to the first estate for life, or other greater estate, in case there was no such estate for life in being, in reversion or remainder, next after the expiration of such leases, has or have by some lawful act or means, conveyed or assured, or joined in conveying or assuring, or shall by some lawful act or means convey or assure, or join in conveying or assuring, an estate for life at the least to such person or persons as has or have been, or shall become tenant or tenants to the writ of entry, or other writs whereupon such common recoveries have been or shall be suffered." 30. The prior estate for life ought to be surrendered Pigot, 50. to the person who has the remainder or reversion, A Surrender is sometimes presumed. Green v. Froud, 1 Vent. 257. 1 Mod. 117. Gartside v. before he makes a tenant to the præcipe. But if the surrender is made after the execution of the deed, by which the lands are conveyed to the person who is to be tenant to the præcipe, it must then be made to him, otherwise it will be void; because the person who is to suffer the recovery has then no reversion in him for the surrender to operate upon. 31. Common recoveries having long been considered as common assurances of lands, and in the nature of conveyances by consent, the Judges have sometimes presumed, in consequence of particular circumstances, that the tenant for life had surrendered his estate, though no surrender was actually proved; and therefore, where the possession has accompanied a recovery for a long time, the Court will presume a surrender by the tenant for life. 32. In an ejectment upon a trial at bar for lands held in ancient demesne, a recovery in the court of ancient demesne was produced, which had been suffered a long time before, and the possession had gone accordingly. It appeared that part of the land was leased for life, and the recovery was by the person in reversion, so that there was no tenant to the præcipe. But the Court said, that as the possession had gone with the recovery for so long a time, they would presume a surrender; as in an appropriation of great antiquity, a licence has been presumed, although none appeared. 33. Where, after a recovery, the deeds were suppressed by the tenant for life, so that it could not be made out whether he had surrendered his estate for life to the tenant to the præcipe or not; it was decreed for the recovery, without allowing a trial at law; for where deeds are suppressed, omnia præsu muntur. 34. Where collateral evidence has been given of a surrender by a tenant for life, the recovery has been deemed good. Warren ex 2 Stra. 1129. 35. Upon a trial at bar, the lessor of the plaintiff dem. Webb claimed under an old entail in a family settlement, v. Grenville, and part of the estate appeared to be in jointure to a widow, at the time her son suffered a common recovery. The defendant who claimed title under the recovery not being able to show a surrender of the mother's life estate, it was insisted that there was no tenant to the præcipe, as to that part; so that the remainder, which the lessor of the plaintiff claimed, was not barred. To obviate this objection, it was insisted by the defendant, that after so long a time had elapsed, a surrender should be presumed, according to the doctrine laid down in the case of Green v. Froud; and to fortify this presumption, they offered to produce in evidence the debt book of Mr. Edwards, an attorney at Bristol, then a long time dead; wherein he had charged 321. for suffering the recovery, two articles of which charges were, for drawing a surrender of the mother's estate 20s. and for engrossing two parts thereof, 20 s.; and that it appeared by the book that the bill had been paid. This being objected to as improper evidence, the Court were of opinion that it should be allowed; for it was a circumstance material upon the inquiry into the unreasonableness of presuming a surrender of the widow's life estate, and could not be suspected of having been done for this purpose. If Edwards had been living, he might undoubtedly have been examined; and after his death, this was the next best evidence, and it was accordingly read: after which the Court declared, that without this circumstance they would have presumed a surrender, and desired it might be |