thereby making the description of the lands to be "in Myton, in the town and county of Kingstonupon-Hull." The deed to lead the uses described the parcels to be situate "in the lordship of Myton, in the county of York, or in the town and county of Hull, lately purchased of Thomas Yates." And it was proved by affidavit, that one William Crowle purchased of Thomas Yates the lands intended to pass, being in the township of Myton, in the town and county of Kingston-upon-Hull, and, in 1728, settled them successively on George and Richard Crowle in tail that George died without issue, and Richard, being then tenant in tail, and having no other lands in Kingston-upon-Hull, did, in 1754, suffer this recovery. The Court directed notice to be given to the tenant, and, on his consenting, made the rule absolute. 17. A recovery, which had been suffered nine Loggin and Pullen, years before, was ordered to be amended, by putting Barnes, 21. the word Trul, the name of a vill, into its proper place, according to the deed of uses. Trul had been by mistake put into the recovery as an advowson, not as a vill where land lay. It was objected against this amendment, 1st, That the estate was in trustees at the time of the recovery, and, consequently, the trustees not being parties, there was no good tenant to the præcipe. 2dly, That the lands were customary tenure. 3dly, That the parties who suffered the recovery were volunteers. 4thly, That the wife of Pullen, the vouchee, was dead, and a recovery could not then be suffered to bar the remainders. The Court said, they would not enter into the question, whether in equity recoveries of trust estates would bar legal remainders, or into the other objections. When the recovery was amended, valeat quantum valere potest, the intention of the parties was the foundation for the amendment. The transaction appeared to be fair, and without fraud or collusion. The principle upon which they went, was the statute 8 Hen. VI., to amend the misprison of the clerk. A præcipe was the cursitor's instruc2 Bos. & Pull. tion for an original writ; a deed of uses was the clerk's instruction for a recovery. The præcipe and deed were the things to amend by; and Mrs. Pullen being dead, an amendment was the only remedy left. Dowse v Reeve, 578. 1 Taunt. 257. Id. 355. Judgment. Barnes, 20. 22. Writ of Wilton v. Barnes, 23. 2 Wils. R. 2. 18. Where there has been a mistake of the clerk in the words of the judgment, the Court has ordered it to be amended. 19. Thus, there are two instances where, upon motion to amend a recovery, by striking out the words, it is adjudged, and inserting the words, it is considered, the Court has ordered it to be done; because such an amendment related to the act of the Court in giving judgment. 20. Amendments have also been allowed in the writ of seisin, and the return thereof. 21. Thus, where a writ of seisin was rightly directed to the sheriffs of the city of York, but not returned in the name of any sheriff; though a mistaken return in the singular, instead of the plural number, was endorsed on the writ; the prayer of seisin and return of the writ were ordered to be first amended, and the roll and exemplification accordingly. 22. No amendment, however, is allowed in a combe something mon recovery, unless where there appears an evident to amend by. mistake or misprision of the clerk, or where there is something to amend by. There must ante, c. 3. 23. Thus, in the case of Wynne and Wynne, an Barnes, 17. application was made to the Court of Common Pleas, § 38. to amend the teste and return of the writ of entry, and a rule to show cause. The Court, after hearing counsel on both sides, and consideration, was of opinion that all amendments must be consistent with the rules of law, and there must be something to amend by. In this case the vouchees by law could not appear until the return day of the writ of summons, and the power of attorney given by Alithea to appear on that day was revoked by her death in the intermediate time. By the statute 8 Hen. VI. original writs are amendable if wrong by misprision of the clerk, or where there is any thing to amend by. Here was no misprision of the clerk, the writ was made agreeable to his instructions, and there was nothing to amend by; the amendment prayed was to amend in the first instance. The rule was discharged. Acton v. 24. Thus, where a motion was made to amend a recovery, by striking out the city of Litchfield, and inserting the county of Stafford, with other conse- 874. quential amendments, wheresoever the names of the county and sheriff occurred, and also by inserting Longden (the name of a vill) after Abnall, another vill named in the recovery; the Court observed, that it was a gross mistake in the attorney concerned, in suing out only one recovery instead of two; and that they would willingly give the parties all the assistance they legally could to effect their evident intent, but it was beyond their power. In the cases of amendments which had been cited, the party had no estate in the vill or county struck out; therefore, quoad hoc, the recovery had no operation; but the present application was, to annul a valid recovery in the city of Litchfield, which had operated upon lands therein for near forty years, and to substitute Pearson v. 4 Taunt. 155. Id. 226. in its stead a recovery in the county of Stafford. The motion was refused. 25. In a recovery, a farm called Thiefside, otherwise Thievishead, was described to be situated in the forest of Inglewood, in the parishes of Heskit in the Forest and St. Mary's Carlisle, or one of them, in the county of Cumberland. It was afterwards discovered that the whole of the said farm was not within the parishes of Heskit in the Forest and St. Mary's Carlisle, as described in the recovery; but that part of it was in the parish of Lazonby, in Suncox, &c. the county of Cumberland. It was moved to amend the recovery, by inserting the word "the parish of Lazonby," on an affidavit of the owner of the lands, Dawney, &c. the vouchee, stating as above, and that he meant to include all his estates in the county of Cumberland in the recovery, and that he did not know, when he suffered the recovery, that any part of the said farm was in the parish of Lazonby. The Court would not, on this affidavit alone, grant leave to amend; but upon reading the deed to lead the uses, there was found the following clause: "And all other the estates, manors, or lordships, messuages, lands, tenements, and hereditaments whatsoever, situate, lying, and being in the county of Cumberland." This was holden by the Court sufficient to warrant an amendment, as it appeared on the face of the deed itself. And the rule for amendment was made absolute. Id. 798. TITLE XXXVI. RECOVERY. CHAP. VII. Effect of a Recovery in barring Estates Tail, Remainders, and Reversions. 1. Ancient Modes of barring Estates Tail. 12. A Recovery bars an Estate Tail. 30. And all Remainders and Reversions. 41. And an Entail of a Rentcharge. 44. Effect of Recoveries with 65. An Heir in Tail allowed to THE SECTION 1. Tit. 2. c. 2. HE variety of inconveniences which were pro- Ancient duced by the statute De donis conditionalibus, Modes of barring and the impossibility of obtaining a parliamentary Estates Tail. repeal of it, induced the Judges to adopt every possible means of evading and invalidating its effect; but the progress was gradual, and it was a long time before it was completely effected. $ 44. 2. The first rule which the Judges adopted on this subject was, that the issue in tail could not avoid the alienation of his ancestor, provided he was left a recompence in value for the estate tail which he had alienated. Thus it was determined very soon 10 Rep. 37 b. after the statute De donis, that if a tenant in tail lost his estate tail and recovered over in value, such recovery in value was a good bar to the estate tail; because the issue had a recompence. 2 Comm. 303. |