TITLE XXXVI. RECOVERY. CHAP. IV. In what Courts, and of what Things, a Recovery may Court of Common Of the Counties of Lancaster and Durham. Of the County of City. 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. S By the stat. 34 & 35 Hen. VIII. c. 26. § 6. the 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. 7. By the custom of several manors in which there Copyhold are copyholds, a recovery may be suffered in the Courts. 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 sufered. 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. Vide infra, c. 10. Turner v. Advowsons. Recov. 97. Bayley v. Un. of Oxford, 2 Wils. R. 116. 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 cannot be suffered. 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. 13. Thus where the validity of a common recovery, which had been suffered of an advowson in gross and 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. Tit. 35. c.6 14. In consequence of the statute 32 Hen. VIII. Tithes, &c. c. 7. which has been already stated, a common reco- §8. very may now be suffered of every kind of ecclesiastical or spiritual profits, which are in the hands of Dormer's lay persons; as of tithes, oblations, portions, pen- c. 2. § 8. sions, &c. Case, ante, 15. It is said by Pigot that a common recovery But not of a cannot be suffered of a fishery, common of pasture, Pigot, 96. Fishery, &c. estovers, services to be done; nor of a quarry, a West Symb. mine, or a market; because these things are not in Touch. 41. 77 b. § 3. demesne, but in profit only. 16. With respect to the descriptions which are By what Descriptions. necessary to be used of those things whereof a common recovery is suffered, they should be the same as in a præcipe quod reddat, in an adversary suit. But as recoveries have been long considered as common assurances, and conveyances by consent, great indulgence has been shown to them by the Judges. 1 Thinne, Vent. 51. 1 Lev. 27. 17. Thus where a person who was seised of a ma- Thinne v. nor and of two closes reputed part of the manor, suffered a common recovery of the manor with the appurtenances; and whether the recovery was a bar as to the two closes was the question. It was resolved by all the Court that the lands reputed parcel of the manor should pass; because it appeared by the deed of uses to have been the intent of the parties that they should pass; and because the constant practice and received opinion, since Sir Moyle Finch's case, had Tit. 35. c. 16. been, that lands reputed parcel should 18. A person being seised in tail, among other lands, of two marshes, called Knightsswick and Southwick, lying in an island called Camby, in the parish of Northfleet, suffered a recovery, in which South Benfleet and many other parishes were named, and also Camby, but the parish of North Benfleet was pass. § 13. Baker v. Johnson, 2 Mod. 49. Lever v. 2 Mod. 47. S. C. by the Name of Jones v. Wait, 1 Mod. 206. Addison v. 1 Mod. 250. 2 Vent. 31. omitted. And the question was, whether the lands in North Benfleet passed or not. The Court agreed, that the town and parish being omitted, though Camby was a lieu connu, yet being in a town, the recovery did not extend to it. That a recovery in a town, parish, or hamlet, is good; and perhaps in a place known out of a town, parish, or hamlet; but to admit a recovery of lands in a place known in a town, would be absurd, for there is no town in which there are not twenty places known. This case was denied to be law by Lord Chief Justice North, who said that it had been long disputed whether a fine of lands in lieu connu was good, but that in the time of King James I. the law was settled in that point that it was good; and for the same reason a recovery would be good, for they were both amicable suits, and common assurances, and as they grew more in practice, the Judges have extended them farther. 19. Sir Samuel Jones being tenant in tail of lands in Shrewsbury and Cotton, which were within the liberties of Shrewsbury, suffered a common recovery of all his lands lying within the liberties of Shrewsbury; and the question was, whether the lands in Cotton, which was a distinct vill, though within the liberties, should pass. It was adjudged, that as the jury had found Cotton to be a vill within the liberties of Shrewsbury, the lands in Cotton should pass by the recovery. 20. In ejectment a special verdict was found, that there was a parish of Rippon, and a vill of Rippon, but the latter was not co-extensive with the former: Freem. 241. that a person who was tenant in tail of lands in the parish, but out of the vill, bargained and sold all his lands lying in the parish of Rippon, with a covenant to levy a fine and suffer a recovery to the uses of the |