or Common Recovery, in English law, a species of assurance by matter of record; concerning the original of which it must be remarked, that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain (see Tail); and afterwards encouraged by the finesse of the courts of law in Edward IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. We have here, therefore, only to consider, first, the nature of a common recovery; and, secondly, its force and effect.

1. A common recovery is a suit or action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoverer. To explain this as clearly and concisely as possible, let us, in the first place, suppose David Edwards to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remain-

ders, and reversions, and to convey the same in fee-simple, Recovery, to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ called a praecipe quod reddat, because these were its initial or most operative words when the law-proceedings were in Latin. In this writ the defendant Golding alleges, that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the defendant out of it. The subsequent proceedings are made up into a record or recovery roll, in which the writ and complaint of the defendant are first recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, "vocatie," or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding the defendant demands leave of the court to impark, or confer with the vouchee in private; which is (as usual) allowed him. And soon afterwards the defendant Golding returns to court; but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the defendant Golding, now called the recoverer, to recover the lands in question against the tenant Edwards, who is now the recoveree: and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the crick of the court, who, from being frequently thus vouched, is called the common vouchee, it is plain that Edwards has only a nominal recompense for the lands so recovered against him by Golding; which lands are now absolutely vested in the said recoverer by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail to Golding the purchaser.

The recovery here described, is with a single voucher only; but sometimes it is with a double, treble, or farther voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee. For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised; whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards both first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default; whereby the defendant Golding recovers the land against the tenant. Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded.

This supposed recompense in value is the reason why the issue in tail is held to be barred by a common recovery. For, if the recoveree should obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing), these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail. The reason will also hold with equal force as to most remaindermen and reverionsers, to whom the possibility will remain and revert, as a full recompense for the reality which they were otherwise entitled to: but it will not always hold; and therefore, as Pigott says, the judges have been even affluti, in inventing other reasons to maintain the authority of recoveries. And, in particular, it hath been said, that though the estate-tail is gone from the recoveree; yet it is not destroyed, but only transferred, and still subsists; and will ever continue to subsist (by construction of law) in the recoveror, his heirs and assigns: and as the estate-tail so continues to subsist for ever, the remainders or reverions expectant on the determination of such estate-tail can never take place.

To such awkward shifts, such subtile refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design for which these contrivances were set on foot, was certainly landable; the unriveting the setters of estate-tail, which were attended with a legion of mischief to the commonwealth: but, while we applaud the end, we cannot but admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light than as the formal mode of conveyance by which tenant in tail is enabled to alien his lands. But, since the ill consequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent, it hath often been wished that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis; which perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations: or by vesting in every tenant in tail, of full age, the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or, lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term-time, and enrolled in some court of record; which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, but by the precedent of the statute 21 Jac. I. c. 19., which, in the case of a bankrupt tenant in tail, empowers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in fo national

a concern, the emoluments of the officers concerned in passing recoveries are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrollment.

2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates tail, but of remainders and reverions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoverer, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reverions. But, by statute 34 & 35 H. VIII. c. 20., no recovery had against tenant in tail of the king's gift, whereof the remainder or reversion is in the king, shall bar such estate-tail, or the remainder or reversion of the crown. And by the statute 11 H. VII. c. 20., no woman, after her husband's death, shall suffer a recovery of lands settled on her by her husband, or settled on her husband and her by any of his ancestors. And by statute 14 Eliz. c. 8., no tenant for life, of any sort, can suffer a recovery so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery, either he, or the tenant to the praecipe by him made, must vouch the remainder-man in tail, otherwise the recovery is void: but if he does vouch such remainder-man, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had, it is as effectual to bar the estate-tail as if he himself were the recoveror.

In all recoveries, it is necessary that the recoveror, or tenant to the praecipe, as he is usually called, be actually seised of the freehold, else the recovery is void. For all actions to recover the seizin of lands must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold cannot be recovered of him who has it not. And, though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be adores fabule, properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the praecipe, is removed by the provisions of the statute 14 Geo. II. c. 20., which enacts, with a retrospect and conformity to the ancient rule of law, that, though the legal freehold be vested in leisses, yet those who are entitled to the next freehold estate in remainder, or reversion, may make a good tenant to the praecipe; and that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet if it be in the same term, the recovery shall be valid in law: and that though the recovery itself do not appear to be entered, or be not regularly entered on record, yet the deed to make a tenant to the praecipe, and declare the uses of the recovery, shall after a possession of 20 years be sufficient evidence on behalf of a purchaser for valuable consideration, that such recovery was duly suffered.

Recovery of persons drowned, or apparently dead. See Re-animation, and the articles there referred to.

REGRENT, Cowardly, Faint-hearted; formerly a word very reproachful. See Battel.