19. In adversary suits, if upon a writ of summoneas Booth, 43. Pigot, 148. ad warrantizandum, the sheriff returned the vouchee 1 Inst. 101 b. summoned, and the vouchee made default, a capias ad valentiam issued for the tenant. But if the sheriff returned nihil upon the summons, an alias and a pluries issued, and then a sequatur sub suo periculo; and if the vouchee still made default, judgment was given for the demandant; but no judgment was given for the tenant, because it appeared that the vouchee had not assets. 20. Where the vouchee, who comes in upon a writ of summoneas, appears by attorney, the warrant ought to bear date after the teste of the writ of summoneas. But still the omission of this circumstance will not invalidate a recovery. Lloyd, 1 Lev. 130. 21. In a writ of error to reverse a common reco- Wynne v. very, the error insisted on was, that the warrant of T. Raym. 16. attorney of the vouchee bore date before the writ of 1 Sid. 213. summoneas; to which it was answered, that the vouchee might appear in person without any writ of summons, and therefore that the recovery was good, and the process void. The Court said, that a common recovery being a common assurance, they would intend another warrant of attorney, made in due time. 22. By the common law, a writ of summoneas ad warrantizandum had nine returns. By the statute 16 Cha. II. c. 16. § 10. the returns were abridged to five; and now, by the statute 24 Geo. II. c. 48. § 8. they are reduced to four inclusive: as if the writ of entry is returnable on the morrow of All Souls, then the writ of summoneas must be returnable from the day of St. Martin in fifteen days, being the fourth and last return of Michaelmas term. And if there are three vouchers, the writ of summons for the Barnard v. 1201. second vouchee is to be returnable four returns, both inclusive, from the return of the summons of the first vouchee: and writs of summons are tested four days inclusive from the writ of entry. 23. The Court of Common Pleas will not enlarge the return of a writ of summons, so as to make a term intervene between the teste and the return. 24. Thus where a motion was made in Easter term 18 Geo. III. that the writ of summons in five re2 Black, Rep. Coveries might be tested in the Michaelmas term preceding, and be made returnable in that Easter term, instead of the usual course authorized by the statute 24 Geo. II. c. 48, which is, that it should be tested the fourth day inclusive from the return of the writ of entry, and be returnable the fourth return after the return of the writ of entry; in consequence of which writs of summons must be returnable either in the same term in which they were tested, or at farthest, in the very next term. The occasion of this application was, that Earl Cowper, the vouchee, had acknowledged the warrants of attorney to appear to the summons, before commissioners appointed by dedimus (which recited the summons as returnable in the preceding Hilary term) at Florence, on the 13th December 1777, but they did not arrive in England till after the end of Hilary term; and as the return is usually of the same term wherein the recovery is in fact arraigned at bar, and the teste must precede the actual acknowledgement of the warrant of attorney by the vouchee, this proceeding could not be made regular, without suing out a writ of summons with a much longer return than the course of practice will at present allow. The like inconvenience must occur whenever the vouchee dwells in any distant country, as the East or West Indies; but that objection had been used to be cured in a very unwarrantable manner, by altering the date of the caption after it arrived in England, so as to suit the term in which the recovery was arraigned, till the late rule of the courtin Hilary term, 14 Geo. III. (which directs, inter alia, an affidavit to be made of the true time of taking the caption) put a stop to this, among other gross irregularities in the practice of suffering recoveries. The Court conceived that they had not power to make such a rule, or at least that as they could not foresee all its consequences, it would be highly imprudent to authorize such a proceeding by a previous direction from the Bench; but intimated that no. blame should fall on the officer who should make out the process as prayed for, but the same to be at the hazard of the parties, and without prejudice to any future question that might arise on the validity of such recoveries. 25. A motion similar to this one was made in Gibbons v. Stevenson, Mich. 19 Geo. III. and received the same denial from the Court. The facts were, that the dedimus was tested the 26th February 1777, and recited a writ of summons returnable the first day of Easter term 1777; so that properly the summons should have been returnable, and the recovery had, in Hilary 1778, which the distance rendered impossible. Therefore, on application to the Master of the Rolls, he ordered the cursitor to make out a writ of entry returnable in Michaelmas term 1777; upon which the officer made out a writ of summons returnable in the next Hilary term, of which term the tenant's appearance was entered; and then they imparled 2 Black. Rep. 123. OfJudgment. 1 Inst. 9 b.. Burton's ante, c. 2. § 9. from Hilary to Easter, from Easter to Trinity, and from Trinity to Michaelmas, when the recovery was arraigned. And if the vouchee was then living, it was apprehended that the recovery would be valid; but if he was dead, it would be erroneous. 26. In consequence of the default made by the person who is last vouched in a common recovery, and his departure in despite of the court, judgment is given that the demandant shall recover seisin of the lands in question, and that the tenant shall recover against the vouchee lands of equal value to those warranted by him, and now lost by his default: and as soon as judgment is given, the recovery becomes binding on all the parties to it, and their heirs. 27. The entry of the judgment upon the record is thus-"Therefore it is considered that the aforesaid W. G. do recover his seisin against the said W. L. of the tenements aforesaid, with the appurtenances; and that the said W. L. have of the lands of the aforesaid W. G. to the value, &c." 28. In every common recovery the demandant acquires by the judgment the fee simple of the lands recovered, although the word heirs be not mentioned; because the writ being brought for the absolute property of the lands, if judgment is obtained, it must be for so much as was demanded in the writ; and in all adversary suits, every recoveror recovered a fee simple. 29. If judgment be given in a common recovery before the return of the writ of entry, or where the vouchee is summoned, before the return of the writ of summ as, it is void; because the court has no power to proceed until the return of the writ of entry, and the appearance of the vouchee: for the parties are not supposed to appear until the return of that process, which issues for the sole purpose of bringing them into court. 30. In every species of action the death of either of the contending parties puts an end to the suit and therefore, in a common recovery, if either the demandant, the tenant, or any of the vouchees, die before judgment is given, the recovery is void. the Return Day of the Writ. 4 Rep. 71 a. Pigot, 59. 31. Judgments however are not always considered It relates to as having been given on the day on which they are pronounced, but have frequently a relation to the first or some other day of the term in which they are given. And if all the parties are living on the day to which the judgment relates, the recovery will be good; for the Judges take no notice of the day on which the recovery was passed in court. 32. It has been stated, that all judgments relate to Tit. 35. c. 2. § 73. the first day of the term. But in the case of a common recovery, if the writ of entry is returnable on the second or any other return day of the term, the judgment will then relate to that return day, and not to the first day of the term; for the courts will not consider the judgment to have been given prior to the return of the writ of entry. And where the term, by the proceedings in it, suffers a division, as where any process issues during the continuance of the term, then the judgment relates to the essoign day of the return of that process, and not to the first day of the term. : 33. It follows, that when the vouchee in a common recovery appears in person at the return day of the writ of entry, there the judgment relates to the return day of the writ of entry, and is considered in law as having been given on that day. But if the vouchee Selwin v. Burr. 1131. |