Tit. 35. c. 7. Writ of Entry. 1 Bos. & Pull. 137. COMM SECTION 1. OMMON recoveries being judicial proceedings must be carried on according to the established forms and solemnities of a suit at law; but as they are suffered with the consent of all the parties, and considered as common assurances, the Court of Common Pleas has in many cases allowed them to be amended, on the same ground as that on which fines are amended. 2. A mistake in the writ of entry, on which a common recovery was suffered, was, in a modern case, Cross v. Grey, allowed to be amended, by inserting 50 acres intead · of 30. Lord Ch. J. Eyre doubted whether the Court had power to do it, in consequence of the determination in Lord Pembroke's case; but Mr. Jus Tit. 35. c. 7. tice Rooke observed, that by the stat. 8 Hen. VI. c. 12. original writs might be amended, as to mistakes of the clerks. 3. Where an evident mistake appears in the names Names of the or description of the parties, the Court has allowed Parties.. it to be amended. Norton, Dyer, 105. 4. A common recovery was suffered in a writ of Pinde v. entry in the post against Elizabeth Pinde, and in the warrant of attorney she was called Alicia: the warrant was allowed to be amended. Pigot, 170. 5. A common recovery was agreed to be suffered, Chapman v. Bacon, wherein John Chapman and Richard Elton were to be demandants. By the mistake of a clerk, the writ of entry was sued out in the names of John Chapman and John Elton. The recovery was allowed to be amended. 6. A warrant of attorney was given, in order to Idem. suffer a common recovery, by William Reynolds and Hester his wife. The serjeant who took the warrant of attorney certified the same to be given by William Reynolds and Margaret his wife: and the mittimus and transcript were made of a warrant given by Margaret, and the recovery was entered accordingly. It was allowed to be amended. 7. A common recovery was suffered by R. Callow Thurban v. Pantry, et ux', without mentioning the name of the wife, Pigot, 171. and it was allowed to be amended. Coulthard, 8. A recovery was allowed to be amended, by Mayre v. changing the words Ann the wife of Henry Goodwin 2 Black. Rep. to Elizabeth, in conformity to a fine and deed to lead 1230. the uses of it. 9. A rule was made absolute to amend a common recovery, by transposing the names of the demandant and tenant, pursuant to the deed making a tenant to the præcipe for the recovery. Biscoe had been demandant, and Lord tenant; but, by the deed, Lord was to be the demandant, and Biscoe the tenant. Lord v. Biscoe, Description 10. In the same manner, where a mistake appears of the Estates. to have been made in the description of the estates Skinner v. Laud, Pigot, 171. Whitwell v. Brook v. Jenkinson v. C. P. Henzell v. 2 Black R. 3 Wils. R. Wheeler v. intended to be comprehended in a recovery, it has been allowed to be amended. 11. A common recovery was agreed to be suffered of lands in Alphampton and Magna Hermney, in the county of Essex; but by mistake the same was suf fered of lands in Alphampton and Lamarsh. It was ordered to be amended. 12. A common recovery was agreed to be suffered of lands in New Church, Levington, and Mersham, but New Church was totally omitted. Upon ex amining the deed to lead the uses, it was ordered to be amended. 13. A common recovery was agreed to be suffered of two messuages and one garden in London; but being only suffered of one messuage, it was allowed to be amended. 14. The præcipe and writ of entry in a common recovery were allowed to be amended, by adding the names of several parishes which had been omitted. 15. The deed to lead the uses of a recovery, mentioned "all the vouchee's lands in Aldenham, or elsewhere, in the county of Kent, in the occupation of Robert Goddard." Robert Goddard rented one entire farm of the vouchee (all sworn to be intended to 2 Bos. & Pul. pass by the recovery), being principally in the parish of Aldenham, but part thereof lay in the parish of Mersham, which was not known to the parties when the recovery was suffered. The Court, after taking a day to consider of it, allowed the recovery to be amended, by inserting the word Mersham. 560. Milbank v. Watson v. 2 Black. R. 16. On a motion to amend the recovery of lands, &c. in the town of Kingston-upon-Hull, by inserting the words in Myton, and the words, and county, 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. Pullen, 17. A recovery, which had been suffered nine Loggin and 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 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. prayer of 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 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. |