After 20 years the Deeds to

make a Te

nant to the Præcipe are sufficient Proof of a Recovery.

them so enrolled, as the same being extant and remaining were or ought by law to be.

53. The proper evidence of a recovery is the exemplification of it; but there are many exemplifications of recoveries suffered between the commencement of the reign of Queen Anne and that of King George II., whereof no entries upon the rolls in the Treasury of the Court of Common Pleas, nor any writ of entry, summons, or seisin, can be found. Mr. Pigot having, in the course of his practice, discovered repeated instances of this neglect, procured the following statute to be passed, in order to prevent the inconveniences which might arise, in making out titles to lands, from omissions of this kind.

54. 14 Geo. II. c. 20. § 4. " Whereas by the default or neglect of persons employed in suffering common recoveries, it has happened, and may happen, that such recoveries are not entered on record, whereby purchasers for a valuable consideration may be defeated of their just rights: for remedy thereof, be it further enacted by the authority aforesaid, that where any person or persons hath or have purchased, or shall purchase, for a valuable consideration, any estate or estates, in lands, tenements, or hereditaments, whereof a recovery or recoveries is, are, or were necessary to be suffered in order to complete the title, such person and persons, and all claiming under him, her, or them, having been in possession of the purchased estate or estates from the time of such purchase, shall and may, after the end of twenty years from the time of such purchase, produce in evidence the deed or deeds making a tenant to the writ or writs of entry, or other writs for suffering a common recovery or common recoveries, and declaring the uses of a recovery or recoveries,

and the deed or deeds so produced (the execution thereof being duly proved) shall, in all courts of law and equity, be deemed and taken as a good and sufficient evidence for such purchaser and purchasers, and those claiming under him, her, or them, that such recovery or recoveries was or were duly suffered and perfected, according to the purport of such deed or deeds, in case no record can be found of such recovery or recoveries, or the same shall appear not to be regularly entered on record: Provided always, that the person or persons making such deed or deeds as aforesaid, and declaring the uses of a common recovery or recoveries, had a sufficient estate and power to make a tenant to such writ or writs as aforesaid, and to suffer such common recovery or recoveries."

TITLE XXXVI.

RECOVERY.

CHAP. IV.

In what Courts, and of what Things, a Recovery may

Court of
Common
Pleas.

Of the Counties of Lancaster and Durham.

Of the
County of
Chester and

City.

A

SECTION 1.

COMMON recovery can in general only be suffered in the Court of Common Pleas at Westminster, because a real action cannot be commenced in any other court.

2. Common recoveries may, however, be suffered of lands lying in the counties palatine of Lancaster and Durham, in the respective courts of those counties, and not in the Court of Common Pleas at Westminster, because the King's ordinary writs do not run in those counties.

3. The county of Chester having been palatine ever since the Conquest, has always had courts of its own for the cognizance of pleas in all real actions, and common recoveries have been suffered in those courts.

By the stat. 34 & 35 Hen. VIII. c. 26. § 6. the S Chief Justice of Chester is authorized to hold sessions twice in a year, in the shires of Denbigh, Flint, and Montgomery; and by § 40. of the same statute it is enacted, that every person suing a writ of entry in the post for any recovery, shall pay such fines for the same as is used in the King's Chancery.

4. By the statute 43 Eliz. c. 15. § 4. it is recited, that the mayor of the city of Chester had been time out of mind accustomed, in all common recoveries suffered before him, to award writs of dedimus potestatem, and to receive warrants of attorney from the tenants or vouchees in such recoveries.

Sessions in

Wales,

5. By the statute 34 and 35 Hen. VIII. c. 36. § 40. Of Great it is enacted, that common recoveries may be suffered at the courts of great sessions in Wales, in like manner and form as in the Court of Common Pleas in England.

6. By the custom of London common recoveries of Hustings may be suffered, upon writs of right, of lands lying in London. 3 Rep. 57 b. within the precincts of the city of London, in the Bohun's Priv. court of hustings.

241.

Courts.

7. By the custom of several manors in which there Copyhold are copyholds, a recovery may be suffered in the copyhold or customary court of such manor, of the copyholds held thereof; of which an account will be Tit. 37. c. 2. given in the next title.

8. A common recovery may be suffered of every Of what kind of real property, whereof a writ of covenant may covery may Things a Rebe brought, for the purpose of levying a fine; as of be suffered. an honour, barony, manor, castle, messuage, land, meadow, pasture, underwood, heath, moor, &c.; and in general a common recovery may be suffered of any thing whereof a writ of entry sur disseisin, or any other writ of entry, will lie.

9. A common recovery may be suffered of an undivided part, as well as of the whole. And where a Cro. Car. 110. person who was seised of a third part of a manor, suffered a recovery of a moiety of the manor, it was held good for a third part.

Rents. Pigot, 97.

10. A common recovery may be suffered of a rentcharge issuing out of lands. And therefore if one grants a rent to A. in tail, remainder to B., a common recovery may be suffered of it. But of an annuity charged on personal estate, a common recovery 1 Bro.R.316. cannot be suffered.

Vide infra,
c. 10.

Turner v.
Turner,

Advowsons.

ante, c. 2.

§ 8. Recov. 97.

Bayley v. Un. of Oxford,

2 Wils. R. 116.

11. It was determined in Dormer's case, that a common recovery might be suffered of an advowson in gross, upon a writ of entry. Mr. Pigot says, this must be understood of an advowson appendant to a manor; but could not be of an advowson in gross, since the parson has the freehold; and that therefore it ought not to be by writ of entry en le post, but by writ of right of advowson.

12. A common recovery may however be suffered of an advowson in gross, and a small quantity of land, on a writ of entry sur disseisin.

and

13. Thus where the validity of a common recovery, which had been suffered of an advowson in gross one acre of land, upon a writ of entry sur disseisin, was questioned, as to the advowson. Upon searching for precedents, sixteen were found where recoveries of advowsons in gross and a little land had been suffered, upon writs of entry sur disseisin; and no case found where such a recovery was ever held bad.

The Court refused to hear any argument against the recovery; but said, that if this were res integra, perhaps it might not be right; yet quod fieri non debuit factum valet. And gave judgment that the recovery was good.