the præcipe was not seised at the return of the writ, he might avoid it by pleading non-tenure; if instead of that he vouched over, then he admitted the writ to be good as to himself, but still the vouchee might counterplead the tenancy; if he did not, the recovery would be good by estoppel against the parties to it; however, in such a case, the tenant to the præcipe could not recover over in value, because he had lost nothing; but if the tenant acquired the lands after the voucher, and judgment was given against him, it would bind the land; and as the tenant had lost the land, he would recover in value against the vouchee: so that the recovery would be effectual. This being the law in adversary suits, it ought certainly to be so in common recoveries, which the Judges take notice of as common assurances, and which they will always support, if possible. It was adjudged that this recovery was good; and Lord Chief Justice Holt said, the general rule was, that if the tenant to the præcipe acquired the freehold at any time before the judgment was given, it was sufficient; because it cannot then be said, that the recovery was had against a person who had nothing in the lands and it was not enough in a counterplea of voucher to say, the voucher had nothing in the lands at the time of the voucher, without adding nec unquam postea; therefore a writ might be made good by a subsequent purchase, so might a voucher; which was the more reasonable, because the demandant might have a good cause of action, although the tenant had not the land when he comSambourn v. menced his suit; so that it was sufficient, in law, if Belke, the tenant had the land to render at any time before judgment. 1 Show. 347. S. P. 24. By the statute 14 Geo. II. c. 20. § 6. it is enacted, that from and after the commencement of the said act every recovery already suffered, or thereafter to be suffered, shall be deemed good and valid to all intents and purposes, notwithstanding the fine, or deed or deeds, making the tenant to such writ, should be levied or executed after the time of the judgment given in such recovery, and the award of the writ of seisin as aforesaid; provided the same appear to be levied or executed before the end of the term, great session, session or assises, in which such recovery was suffered, and the persons joining in such recovery had a sufficient estate and power to suffer the same as aforesaid. dem. Burton 25. In ejectment, the jury found a special verdict Goodright ex that Sarah Williams, being tenant in tail of the pre- v. Rigby, mises in question, conveyed the same by lease and re- H. Black. Rep. vol. 2. lease, dated the 19th and 20th of November 1778, 46. to a person to make him tenant to the præcipe, in order that a common recovery might be suffered, which was accordingly suffered, and a writ of seisin awarded, tested the 6th of the same month of November, returnable in 15 days of St. Martin; to which the sheriff returned, that he, by virtue of the said writ, on the 10th of November in the same term, did cause full seisin of the premises therein mentioned to be delivered to the demandant. It was. contended, that this recovery was void, for it appeared upon the record, that seisin was delivered by the sheriff ten days before the date of the conveyance to the tenant of the freehold, when, in fact, Sarah Williams was in possession of the lands; and that this case was not within, the statute 14 Geo. II. c. 20. § 5. which arose from the fictitious relation VOL. V. Pigot, 58. Wilson on Durnford and East's Rep. vol. 5. p. 177. to the first day of the term, and was made for a dif- A writ of error was brought upon this judgment in the Court of King's Bench. Lord Kenyon observed, that the sense of the clause in the statute 14 Geo. II. was, that the recovery should be valid, provided the deed making a tenant to the præcipe was executed before the end of the term in which the recovery was suffered; and it appeared upon this verdict, that the deeds making the tenant to the præcipe were executed within the term. And though the statute, in enumerating some of the defects for which remedy was to be applied, does not mention this particular defect, it has always been understood, that the act was intended to remedy every defect of this kind, provided that which is there made a condition be complied with, namely the making of the tenant to the præcipe before the end of the term in which the recovery is suffered; nor could the words of the statute be satisfied by any other. construction. The other Judges concurred in opinion with the Lord Chief Justice, and the judgment was affirmed. A writ of error was then brought in the House of Lords, where the judgment was affirmed. Lives need. 26. It is not only necessary for a person who Leases for suffers a common recovery to have an estate of free- not be sur hold in the lands, but it is also necessary that it rendered. should be an estate in possession; for the person against whom the writ is brought must be actual tenant in possession of the freehold; so that it frequently happens, that persons who are entitled to estates of inheritance in lands, are notwithstanding disabled from suffering common recoveries of them, in conséquence of their not having a freehold in possession. This happens in two cases: first, where the lands are let out on leases for lives: and secondly, where there is an estate for life prior to their estate of inheritance. 27. Before the statute of quia emptores, subfeuindations, whereon rents and services were reserved, did not prevent a writ of entry from lying against the I Burr, 115. lord of the seigniory. When common leases to farmers for one or more life or lives, reserving rent came in use, they resembled subinfeudations, and therefore ought not to have prevented the præcipe from being brought against the owner of the freehold under which the leases were granted; but it was thought necessary and became usual for the person who intended to suffer a recovery, to get conditional surrenders from the lessees for life, in order to become seised of a freehold in possession, and be thereby enabled to make a good tenant to the præcipe. 28. This practice was productive of several inconveniences; the lessees for life were sometimes unwilling, and frequently unable, from want of age or understanding, to make such surrenders; and it being in some instances doubtful in whom such leases for lives were vested, the statute 14 Geo. I. c. 20, reciting that several leases had been and were likely to be made of honours, &c. for one or more life or lives, under particular rents thereby reserved and to be reserved; and that procuring surrenders of such freehold leases, or the tenants to join, frequently occasioned great trouble, difficulty, and expence to tenants in tail; it is therefore enacted, § 1, "That all common recoveries suffered or to be suffered in His Majesty's Court of Common Pleas at Westminster, or in any court of record in the principality of Wales, or in any of the counties palatine, or in any other court having jurisdiction of the same, of any honours, castles, manors, lands, tenements, or hereditaments, without any surrender or surrenders of such lease or leases, or without the concurrence or any conveyance or assurance from such lessee or lessees, in order to make good tenants to such writs of entry or other writs, whereupon such recoveries |