recovery can divest any estate in remainder or reversion out of the King. He then says, that if a recovery be on good title against tenant in tail, and the King has the remainder by a defeasible title, there it shall divest the remainder out of the King, and restore and remit the right owners. 50. 57. This opinion appears to be founded on the determinations in Wiseman's case, and Cholmeley's 2 Rep. 15 & case, where the Court held that the limitation of the reversion to the Crown was void, and therefore that such reversion was barred by the recovery; but admitted that if the reversion had been well vested in the Crown, it could not have been barred. This doctrine has been however denied by some modern lawyers of great eminence. The late Mr. Macnamara, in a very able opinion on a question of this kind, contended that the stat. 34 & 35 Hen. VIII. was merely declaratory of the common law; and that where an estate tail was not protected from the effects of a common recovery, a remainder or reversion in the Crown, expectant on it, was not protected. That the contrary opinion would be introductive of something like a perpetuity; for by a limitation of the ultimate reversion to the Crown, the tenants in tail could only acquire a base fee in the estate. late Mr. Serjeant Hill was of the same opinion. 58. The usual mode of acquiring a good title to an estate tail, whereof the reversion is in the Crown, c. 51. is, by obtaining an act of parliament, enacting that the reversion shall be divested out of the Crown, and vested either in the tenant in tail, or in some other private person; by which means it becomes barrable by a common recovery. And the 59. By the statute 21 Hen. VIII. c. 15. § 4. it is enacted, that no manner of statute staple, statute Vide Stat. 30 Geo. III. Local and Acts, 51 G. III. c. 68. Estates held by Elegit, &c. Executory merchant, nor execution by elegit shall be avoided, or in any ways made frustrate by means of any feigned recovery. 60. A common recovery does not bar an executory Tit.38.c. 17. devise; of which the reason will be given in a subse Id. quent title. But if the person entitled to the executory devise is party to a recovery suffered by the person to whom the fee is first devised, and comes in by way of vouchee, it is said that he would be barred. Writ of THE judgment obtained in a common recovery Error. being a matter of record, and similar in almost Tit:35. c. 14. every respect to a judgment given in an adversary § 1. suit, can only be reversed by a writ of error. 2. Any alteration may however be made in a Id. § 2. recovery, before it is completed. And a recovery may be amended, as to any mistake or misprision of the officers of the court, at any time. The cases on ante, c.6. this subject have been already stated. 8. A writ of error to reverse a common recovery must be brought in the Court of King's Bench, unless the error is in the process, in which case it may be reversed in the Court of Common Pleas. 4. By the stat. 34 & 35 Hen. VIII. c. 26. § 113. it is enacted, that all errors and judgments before Who may bring it. Anon. 5 Mod. 396. Henningham v. Windham, 1 Leon. 261. I Burr. 412. any of the justices of the great sessions in Wales, in pleas real or mixt, shall be redressed by writ of error returnable before the justices of the Court of King's Bench in England, 5. No person has a right to bring a writ of error for the purpose of reversing a common recovery, unless he has an immediate interest in the lands of which it has been suffered. 6. Thus where a writ of error was brought in the Court of K. B. to reverse a common recovery, and judgment was obtained thereon: but it appearing afterwards that the plaintiff in error had no immediate title to the lands, there being a remainder-man before him, the Court reversed their former judgment of reversal. 7. The right to bring a writ of error descends to the person to whom the land would have descended, in case the recovery had not been suffered. 8. T. Henningham being seised to him, and the heirs male of his body, had issue, Henry his eldest son, and three daughters, and Arthur and two other sons by his second wife. Upon the death of T. Henningham, Henry entered, suffered a common recovery, and died without issue. Arthur the second son brought a writ of error to reverse this recovery, to which it was objected, that he was only of the balf blood. The Court determined that the right to bring a writ of error descended to the person who would have been entitled to the land if no recovery had been suffered; and therefore that Arthur was entitled to the writ of error. 9. In the case of Sheepshanks v. Lucas, which has been already stated, an objection was made to the writ of error, because the plaintiff did not show how his title arose. But the Court said, that a complete title need not be set forth in a writ of error: it was only required of the plaintiff in error to show the connection and privity between the person against whom the recovery was had, and the person who brought the writ of error; for it was not like a proceeding to try the right of land, or to recover the land itself. 10. The right of bringing a writ of error to reverse a common recovery does not pass to the Crown on an attainder for high treason. 3 Rep. 1 11. A tenant in tail suffered a common recovery; Winchester's the remainder-man was attainted of treason, and Case, executed; and by act of parliament forfeited to the King all his manors, &c. reversions, remainders, uses, possessions, offices, rights, conditions, and all other his hereditaments. The recovery being erroneous, the King brought a writ of error to reverse it. Adjudged, that the writ of error was not given to the King by any words in the act of forfeiture, the party having no right of entry, but only a right of action; which did not pass by those general words, But admitting that the writ of error had passed to the King by the words of the act, yet it would not pass from him to a patentee, by a general grant of the manor, cum pertinentiis, and of all the interest, claim, and demand therein; notwithstanding the clause de speciali gratia. For if the King could grant it, that grant must be by virtue of his prerogative, as no common person could do it; and then it ought to be by express and precise words. 12. A recovery ought not to be reversed, unless writs of scire facias are issued against the terretenants and the heir; because errors in a common There must be a Writ of Scire facias, |