Ch. iii. § 41-44. the Court of King's Bench, reversing the judgment in th erecovery, would be affirmed. After hearing counsel on this writ of error, the Judges were directed to deliver their opinions upon the following question, viz. "Whether the recovery is good, or erroneous, the return day of the writ of summons being on Sunday, the 13th of May, on which day Edward Swann the younger died ?" And the Lord Chief Baron of the Court of Exchequer, having conferred with the rest of the Judges present, acquainted the House, "that they all agreed in their opinion, that the recovery was erroneous." Whereupon, it was ordered and adjudged, that the judgment of the Court of King's Bench should be affirmed. tion. 1 Inst. 361 b. 42. When the demandant has obtained judgment of Execu in a common recovery against the tenant, and the tenant against the vouchee, the Court awards a writ of habere facias seisinam, in the same manner as upon a judgment in an adversary action, to the sheriff of the county in which the lands lie, directing him to put the recoveror in possession of the lands which he has recovered; and when this writ is returned, the recovery is complete and executed. 43. The writ of seisin should hear teste the fourth Wilson, 373. day inclusive after the return of the writ of entry, or last writ of summons, when the vouchee comes in by summons and there should be fifteen days between the teste and the return of the writ of seisin. § 25. 44. It is said in the case of Goodright v. Rigby, ante, c. 2. that the day named in the return of the writ of seisin 2 H. Black. is immaterial, it not being necessary to name any R. 63. particular day, for the return would be good without it; all that was necessary was, that seisin should be delivered after the judgment, and before the return W. Jones 10. 2 Stra. 1185. 1 Wils. R.55. 5 Term R. 1 Inst. 104 b. May be had against the Heir. 1 Rep. 93. Must appear upon Record. of the writ, and that the proceedings should all be in the same term. 45. A judgment in a common recovery has no manner of operation, nor does it alter the nature of the estate, until it appears to have been regularly executed by the return of the writ of seisin; and as almost all common recoveries are now suffered to uses, the recoverors do not acquire any seisin, and consequently no use can arise until the recovery is executed; that is, until the writ of seisin is returned, for it is now never in fact executed. 46. If a common recovery be suffered of lands let on leases for years, the recoverors have not the reversion presently by the judgment, but it must be executed. 47. By the statute 7 Hen. VIII. c. 4. all recoverors in common recoveries are allowed the same remedies against lessees for lives, and years, by distress, avowry, and action of debt, for rents and services which be come due after the recovery, to which the persons against whom the recovery was had were entitled. 48. If a person suffers a recovery and dies before the writ of seisin is issued, the recoveror may have execution against his heir. 49. Thus, in Shelley's case, it was unanimously resolved, that although Edward Shelley died on the very day on which the recovery passed, and consequently before the writ of seisin could have been issued, yet that execution might be sued against his heir *. 50. The awarding of a writ of seisin, its execution, and return by the sheriff, must appear upon record: * In this case Lord Coke states the writ of seisin to have been awarded immediately after the judgment; and the record prefixed seems to warrant such statement. and if the execution of a recovery be not found in a special verdict, it cannot be presumed by the Court. Lewis, 6 Brown Parl. 51. Thus in ejectment the jury found a special Witham v. verdict, that Henry VII. granted the manor of 1 Wils. Rep. Witherslack to Thomas Earl of Derby, to hold to him 48. and the heirs male of his body; that Thomas Earl of Ca. 327. Derby, grandson to the said Thomas, suffered a recovery of the said manor, and afterwards entered into the said manor, and was seised thereof; but no writ of execution or entry of the recoverors appeared upon the special verdict in which this recovery was found: and the Court of King's Bench was of opinion, that as execution was not found, it could not be presumed, and therefore that the recovery was not good. A writ of error was brought in the House of Lords: and it was argued, that this judgment was erroneous, and that a writ of execution, though not expressly found, ought to have been presumed, for the following reasons: First, from the exemplification of the recovery itself, as found; its antiquity of above 230 years; its being entered upon the rolls; the dignity and quality of the parties to it; and a fresh entry of Earl Thomas, expressly found to have been made after such recovery. Secondly, from the impossibility of any other proof of actual execution, as it was well known, that amongst the rolls of the recoveries of that and the preceding reigns, the award of the writ of execution is not entered or indorsed upon one in twenty of them, as has been usual of late years; and upon search in the proper offices where the writs of execution of recoveries suffered in those early times ought to be filed, not one of such ancient writs is to be met with. Thirdly, because had any objection been made at the time of the trial of the recovery on this account, the Court would and ought to have di rected the jury to find the execution of it from the exemplification itself, and the possession of the de fendant and his ancestors, agreeable to it. And if so, it is difficult to give a reason why the courts of law should not draw the same legal conclusions, and make the like legal implication from facts themselves, which they would direct a jury upon their oaths to do. Fourthly, from the fatal consequences which might attend this judgment: for if this doctrine should be established, that the Judges ought not to presume execution at this distance of time, it might shake the titles of great part of the property of this kingdom, which probably may depend on the validity of ancient recoveries, suffered before the statute 34 Hen. VIII.; for if a jury should think proper to insist upon evidence to support such ancient recoveries, which, for the reasons above, appears impossible to be laid before them, as no attaint or other remedy against them would lie in such case, all property might be subjected to an arbitrary and perhaps corrupt determination of a jury, without any redress whatever. On the other side it was contended, that the judgment of the King's Bench should be affirmed, because it did not appear that any writ of seisin was ever awarded upon the common recovery suffered by Earl Thomas, or that the same was ever carried into execution by writ of seisin, or otherwise; for, until a writ of seisin is awarded, executed, and returned, (all which must appear upon record, and cannot be presumed) it is not a perfect recovery, and operates nothing; and no new estate is gained to the recoveror, nor any use raised thereby, nor is the former estate altered or changed. And it was so determined upon a question on this very recovery, so long ago as in the reign of Sir W. Jones King James I. And, as in the present case, no new 10. estate was gained to the recoveror, no new use raised, nor the old estate changed or altered by this recovery, Earl Thomas still continued tenant in tail. After hearing counsel in this cause, the following questions were proposed by the House to the Judges: First, Whether sufficient matter was found in the special verdict, whereupon the common recovery of 5 Hen. VIII. can be adjudged or taken to be a complete valid recovery? And secondly, if not, whether, by law, a venire facias de novo ought to be awarded in this case? The Lord Chief Justice of the Common Pleas delivered the unanimous opinion of the Judges, that there was not sufficient matter found in the said special verdict, and that a venire facias de novo ought to be awarded. Whereupon the judgment of the King's Bench was affirmed *. Recoveries ceedings in may be on rolled, 52. By the statute 23 Eliz. c. 3. § 1. it is enacted, All the Prothat every original writ of entry in the post, or other writ, whereupon any common recovery shall be suffered, the writs of summoneas ad warrantizandum, the returns of the said originals and writs of summoneas ad warrantizandum, and every warrant of attorney, as well of every demandant and tenant, as vouchee, extant and in being, may, upon the request or election of any person, be enrolled in rolls of parchment; and that the enrolment of the same, or of any part thereof, shall be of as good force and validity in law, to all intents and purposes, for so much of any of 66 * In a modern case Lord Kenyon says of this determination :-Lord Derby's case has always been considered as a strange case; and the Judges of succeeding times have been astonished that no application was made to the Court of Common Pleas to rectify the defect in that recovery according to the usual practice of the Court." 5 Term Rep. 179. |