had a chance of the reversion's vesting within the twenty years, in which case they might bring a writ of error, but not afterwards. be barred. Tit. 35. c. 14. 27. A person may bar himself from bringing a How it may writ of error to reverse a common recovery, by the same means by which he may bar himself from bring- § 24. ing a writ of error to reverse a fine. Thus Pigot "If he who suffers a common recovery levy a pa. 169. says, fine, or make a feoffment, he cannot have a writ of error to reverse it." 28. A release of errors from the common vouchee cannot be pleaded in bar of a writ of error to reverse a common recovery. 29. In a writ of error to reverse a common recovery, the defendant pleaded a release of all errors by the last and common vouchee. It was resolved by all the Judges that such a release could not be pleaded; for the common vouchee was put in only for form, and in truth he rendered nothing; therefore it was against reason that his release should bar others that suffered the loss, and were entitled to have a remedy by the reversal of the judgment. Norrice v. sified. 30. As a common recovery can only be reversed A Recovery by a writ of error, or some proceeding of a similar may be falnature, to which none are entitled but those who have an immediate interest in the lands, the law allows all strangers, whose interests are affected by a common recovery, to falsify it. And it is laid down Booth, in his Law of Real Actions, chap. 24, that a common recovery may be falsified, 1°, by entry Pigot, 156. and plea; 2°, by action; 3°, by action and plea; and 4o, by plea only. 31. A common recovery may be falsified and invalidated on a trial in ejectment; for if a common reco 1 Vesey, 403. 3 Atk. 313. ante, § 22. By a Tenant for Years. 1 Inst. 46 a. very is given in evidence, and set up by way of defence, the plaintiff may show any defect in the recovery; and if the Court is of opinion that the recovery is void, and the plaintiff entitled to recover, such recovery is completely falsified, as to that action. 32. Thus, it may be shown that the person against whom the writ was brought had no estate of freehold in the land at the time; and the cases of Dormer v. Parkhurst, Goodtitle v. Chandos, and Taylor v. Horde, which have been already stated, are instances of recoveries falsified in ejectment, for want of a good tenant to the præcipe. 33. In the case of Sir Butler Wentworth, which was tried at the bar of the Court of Common Pleas in Mich. 1744, evidence of weakness of understanding was admitted to invalidate the deed, by which a tenant to the præcipe was made, for the purpose of suffering a common recovery; and the effect of the recovery was by that means defeated. 34. In the case of Hume v. Burton, Lord Chancellor Lifford cited the case of Jones ex dem. Hale v. Cave, tried at Hereford at the Lent assises in 1765, by Sir Eardley Wilmot, in which evidence was admitted to prove the weakness of understanding of a vouchee in a common recovery, who appeared by attorney, and the recovery was by that means invalidated. A motion was made the next term for a new trial, on account of misdirection of the Judge, and it was contended that such evidence ought not to have been admitted; but the motion was refused. 35. At common law, if the tenant of the freehold had suffered a common recovery, it operated as a good bar to all terms for years derived out of the freehold; ΙΟ for the person who recovered the lands was supposed to come in by a title paramount, so that he was not bound by the leases of the person against whom he recovered: besides, a termor for years could not in Plowd. 83. any case falsify a common recovery. 36. By the statute of Gloucester, 1 Edw. I. c. 11. a remedy was given to the lessee for years, by way of receit and trial, whether the recovery was upon good title, or by way of collusion; and in case it appeared that the recovery was by collusion, then the lessee for years was permitted to enjoy his term, and the execution was staid until the determination of the term. Bro. Ab. tit. 37. The operation of this statute not having been found sufficiently extensive, another act was made, 21 Hen. VIII. c. 15, whereby it is provided, that a 198. 220. Vaugh. 127. tenant for years may falsify a feigned recovery had against the person in reversion. $69. 38. Although a common recovery can only be re- Courts of versed by the Court of C. P. in the first instance, Equity. and by the Court of K. B. upon a writ of error from the Court of C. P., yet the Court of Chancery can, Tit. 35.c. 14. in fact, invalidate a common recovery, where it appears to have been obtained by fraud or imposition, by compelling the recoveror to convey the estate to the person who is entitled in equity to have it, or by declaring the recoveror to be a trustee for such person. 39. Where a person who was deaf and dumb suf- Ferres v. fered a common recovery of entailed lands, assisted 2 Ab. Eq. Ferres, by his uncle, and then settled the same to certain 695. Stanhope v. the Lord Chancellor said he ought to be taken care of in equity; and it appearing that the uncle was concerned in point of interest, the settlement was set aside. But had he been assisted by an able and faithful relation, that was not interested, equity would not have relieved him in so reasonable an act as this appeared to be. 40. A court of equity will also restrain the operation of a common recovery to those purposes for which it was intended, and will not allow it to have a more extensive effect. 41. Where a father, on his son's marriage, by lease and release conveyed lands to trustees and their heirs, to the use of the father for life, remainder to his wife for life, remainder to the son for ninety-nine years, if he should so long live, remainder to trustees during his life to support contingent remainders, remainder to the son's intended wife for life for her jointure, remainder to the first and every other son of that marriage in tail male, remainder to the daughter or daughters of that marriage and the heirs of their bodies, till they should, out of the rents, issues, and profits have received 3000l., remainder to the heirs of the body of the son, remainder to the second son of the father, and to his first and other sons, remainder to the right heirs of the son for ever. The marriage took effect, and they had only two daughters, who being in possession after all the other estates determined which were precedent, suffered a recovery to the use of themselves and their heirs; and one question in this case was, whether by this recovery the remainders were not barred. And it was argued that they were, because the primary intention of this limitation was to make them tenants in tail, and the raising of the 30007. was but a secondary intention thereof; and when they, being so tenants in tail, suffered a recovery, this barred their estate tail, and the remainders depending thereon. But the Lord Chancellor was clear of opinion, both upon the first speaking to it, and the next day after, that this was but in the nature of a security for the 30007.; and though the recovery barred the estate tail and remainders at law, yet the daughters were but in the nature of trustees (after the 3000 7. raised) for those in remainder; that before the recovery they had but an estate tail for their security for that sum; that after the recovery they had the fee-simple; but still the same in a court of equity was but a security till that money was raised; that those in the remainder had the equity of redemption in the same manner as the person who made that security would have had if no such limitation in remainder had been; therefore they might at any time, by paying off that 3000 7. determine the estate of the daughters, and then the daughters would be but trustees for them. 42. Where a person is prevented from suffering a common recovery by force and management, the Court of Chancery will compel the parties to act as if the recovery had been suffered. 11 Ves. 638. 43. Thus, where Lord Waltham being tenant in Luttrell v. tail, and meaning to suffer a common recovery, and Olmius, by will to give real interests to his wife, Mr. Luttrell, who by his marriage had an interest to prevent the entail being barred, did, by force and management, prevent the testator from executing the deed to make the tenant to the præcipe. Lord Thurlow's opinion was clear, that though at law Mr. Luttrell's lady was tenant in tail, and which made it stronger, she was no party to the transaction, |