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vouches over the common vouchee, upon whose default judgment is given for the demandant against the tenant to the præcipe, and for the tenant to the præcipe against the tenant in tail, and for the tenant in tail against the common vouchee.

TITLE XXXVI.

RECOVERY.

CHAP. II.

Of the Writ of Entry and Tenant to the Præcipe.

2. Writ of Entry.

7. Construed favourably.

10. Tenant to the Præcipe, who must have the Freehold.

22. At what Time the Tenant must have the Freehold.

26. Leases for Lives need not be

surrendered.

47. A Husband seised Jure Uxoris may alone make a Tenant to the Præcipe without Fine.

51. Feoffment.

53. Grant.

54. Bargain and Sale enrolled. 55. Lease and Release.

29. But Persons having a prior 56. A Recovery good after 20

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Years, though the Deeds

to make a Tenant to the Præcipe are lost.

38. How a Tenant to the Præcipe 56. A Recovery sometimes good

may be made.

39. By Fine.

44. Though no Use declared.

without a Tenant to the Præcipe.

SECTION 1.

IT appears from the preceding chapter, that the

following circumstances are necessary to the suffering of a common recovery. First, that a proper writ be sued out: Secondly, that the person against whom the writ is brought be actual tenant of the freehold: Thirdly, that such tenant do vouch over some other person: Fourthly, that judgment be given for the demandant against the tenant, and for the tenant against the vouchee and Fifthly, that the recovery be executed by the sheriff of the county

Writ of
Entry.
3 Rep. 3 a.

Booth, 176.

in which the lands lie. I shall now proceed to explain more particularly those different circumstances.

is a

2. A common recovery being a real action, cannot of course be regularly commenced without a proper original writ; but may be suffered on any writ by which lands are demandable. The writ which is now usually sued out for that purpose writ of entry sur disseisin, in the nature of an assise, which is properly grounded on a disseisin done to 2 Inst. 154. the demandant himself; it may be brought in the per, the per and the cui, and the post; and in common recoveries it is always brought in the post. And the reason why this writ was chosen for the purpose of suffering common recoveries was, because the tenant may, in this species of action, vouch at large, and is not bound to vouch within the degrees of the per, the per and the cui, and the post; so that it is the safest action for purchasers, who need not fear writs of error for wrong or illegal vouchers.

of

3. There is a fine payable to the Crown at the Alienation office, upon suing out a writ of entry, Tit. 35. c. 2. the same kind as the fine payable on suing out a writ of covenant to levy a fine.

§ 16.

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4. If a recovery be suffered without an original writ, it is not absolutely void, but only voidable.

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5. A common recovery was suffered, but no writ of entry was filed; in consequence of which a writ of error was brought. It was moved, that it might be examined whether any writ of entry had been filed or not; but the Court denied it : though if it appeared upon record that a writ had been filed, then they would consider whether a new writ should be filed or not; and it was said, that if a recovery was exemplified, pursuant to the statute 23 Eliz. though some part of it was lost, yet it would be aided.

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R. 1. 526.

6. By a rule of the Court of Common Pleas, Trin. H. Black, 30 Geo. III. it is ordered, that from and after the first day of Michaelmas term then next ensuing, in every common recovery wherein the vouchee or vouchers shall appear at the bar of that Court, for the purpose of suffering such recovery, the writ of entry shall be sued out and produced at the time of the recording of the vouchee's or voucher's appearance at the bar, at the foot of the præcipe in such

recovery.

7. The writ on which a recovery is suffered, ought Construed to be similar in every respect to a writ which is sued favourably. out for the purpose of commencing an adversary suit. The courts, however, make a distinction between a

breve adversarium and a breve amicabile, and will 2 Roll. R. 67. construe the latter in a much more favourable man

ner than the former.

Case,

5 Rep. 40.

8. A writ of error was brought to reverse a com- Dormer's mon recovery, which had been suffered on a writ of entry in the post, of a manor, and of a yearly rent or Poph. 22. pension of four marks; and also of an advowson. One of the errors assigned was, that a writ of entry in the post does not lie of an advowson. But it was unanimously determined, that the judgment should be affirmed: because a common recovery was not to be compared to a judgment in an adversary suit; as it was by usage and custom become a common assurance and conveyance of lands, and was had by the mutual consent of the parties; et consensus tollit errorem. Besides, if it were otherwise, no recovery could be suffered of an advowson, or common in gross, or of many other things; which would be highly inconvenient.

9. A writ of entry bore date 1st of March, 7 Eliz. and the return was made die Lunæ quarta septimana

Barton's Case,
Pop. 100.
Cro. Eliz.308.

must have the

Freehold.

quadragesimæ prox. futur., the said first day of March being the first week of Lent, 7 Eliz. ; and upon this it was inferred, that the tenant was not to appear till Monday in the fourth week of Lent, 8 Eliz, which was a long time after the voucher appeared and vouched over; so that the recovery was void, because there was judgment upon a voucher before the return of the writ, till which the Court had no power to proceed. But it was determined that the original writ should be construed, as it was written, to be returnable on Monday in the fourth week of the same Lent, 7 Eliz.; for it should be taken (as it was written shortly) in such a manner as to make the recovery good.

Tenant to the 10. A common recovery being a real action, Præcipe, who carried on through all its forms, it is absolutely ne cessary that the tenant to the præcipe, or person against whom the writ of entry is brought, should have an estate of freehold in possession, either by right or by wrong, in the lands demanded by the writ; because if he has not the freehold, it would not be in his power to restore the lands, as the writ directs. And, in common recoveries, there is an additional reason: because, as the demandant can recover nothing against the tenant unless he has the freehold, so the tenant can have no recompence in value against the vouchee for what he has lost; for until the demandant sues out execution against the tenant, the tenant cannot have execution against the vouchee: and if the tenant has nothing in the land, no execution can be sued against him, nor can any recovery in value be had over; consequently, there will be no recompence to bind him, and the recovery will be no

Pigot, 28.
Booth, 3.

infra, c. 7.

bar.

11. If the tenant to the præcipe has the freehold

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