& another v. VAUGHAN. CARESWELL And if this voucher had been within the lien, yet it ought not to be foreign, namely, in a county in England, because it could not be tried; for the statute 34 & 35 H. 8. c. 26. has provided for the trial of a foreign voucher in any county in Wales, but if a foreign voucher be in any county in England, the justices may proceed notwithstanding such foreign voucher. And though the voucher be not counterpleaded but demurred to, it is still peremptory upon the tenant if it be adjourned, as it is here, for it is within the same mischief; and so is 2 Inst. 243. expressly; wherefore a rule was given for affirmance of the judgment unless cause in this term. [ 42 ] Every day of the great sessions is as a several return. The great sessions may be adjourned to Monday if a Sunday intervenes, and need not be continued for six days together by the statute 34 and 35 H. 8. c. 26. s. 14. And now in this term, Turner serjeant, of Gray's Inn, took another exception, that it appears by the record that the court of great sessions begun on a Wednesday, whereas it is appointed by the statute 34 & 35 H. 8. c. 26. "that each of the said sessions shall be kept and continued by the space of six days in every of the said shire at either of the said times as hath been used within the said three shires of North Wales." And he said in North Wales the sessions always begun on a Monday, and continued for six days together without intermission: but here if the sessions begin on a Wednesday, a Sunday will intervene, which is not according to the custom of North Wales, and consequently not according to the statute. Sed non allocatur; for it does not appear that the sessions begun on a Wednesday, but the plea was adjourned until Wednesday in the next great sessions, so that the sessions might have begun on a Monday, and the plea adjourned to Wednesday in the same sessions, for every day of the sessions is as a several return; and the plea may well be continued to every day of the sessions. And Kelynge chief justice, and the court, thought that it would have been well enough if the sessions had begun on a Wednesday, for the intervention of Sunday does not discontinue the sessions, but they may be adjourned to Monday, because Sunday is dies non juridicus. And the sessions may be well kept and continued by the space of six days, notwithstanding the intervention of Sunday; for the statute does not appoint that they shall be kept and continued for six days together, or next and immediately following, but only for six days, which must be the length of the sessions, but is not necessary to be altogether without the interposition of Sunday or other feast. And the judgment was affirmed (7). (7) This perhaps may not be an improper place to take some notice of common recoveries; for though they are fictitious proceedings and amicable actions, yet it is necessay the actores fabulæ, as they are sometimes termed, should be the same as in adversary suits; there must, for instance, be a demandant, a tenant, and a vouchee; and the writ must be brought against such person only as would be an unexceptionable tenant in an adversary action. Pigott 28. A common recovery is with great correctness defined to be "a conveyance on record, invented to give a tenant in tail an absolute power to dispose of his estate, as if he were tenant in fee simple." Willes's Rep. 451. Martin v. Strachan. Being a judgment in a real action, it cannot of course be commenced without an original; if however it be suffered without, it is not void, but only voidable by error. 3 Rep. 3. a. Marquis of Winchester's case. The writ sued out upon this occasion is a writ of entry sur disseisin in the post, which is often called a præcipe, and the defendant the tenant to the præcipe. Pigott, 28. It is absolutely necessary that the tenant to the præcipe should have an estate of freehold by right or by wrong in the lands to be recovered; therefore where the limitation in a settlement was to the use of R. D. for and during the term of 99 years, if he should so long live; and from and after his death, or other sooner determination of the term, to the use of trustees and their heirs during the life of R. D. to support contingent remainders; remainder to the use of the first son and issue male of the body of R. D. lawfully begotten, and to the heirs male of the body of such first son lawfully issuing; and for default of such issue to the use of all and every other son and sons of R. D. severally and successively in tail male, with divers remainders over; R. D. together with his only son F. D. levied a fine, and suffered a recovery to the use of R. D. in fee. Willes C. J. of the C. P. delivered the unanimous opinion of all the judges in the house of lords, that the freehold vested immediately in the trustees during the life of R. D. as a vested, and not a contingent, remainder, and was in them at the time of levying the fine; and therefore as the fine did not convey to the conusee an estate of freehold, and make him a good tenant to the præcipe, the recovery was void. Willes's Rep. 327. Parkhurst v. Smith, lessee of Dormer. It was never necessary that the tenant should have the freehold at the time of suing out, or even the return, of the writ of entry; if he acquired the freehold at any time before judgment it was sufficient. Thus where the tenant appeared on the return of the writ of entry, and vouched the tenant in tail, and a summoneas ad warrantizandum issued, before the return whereof tenant in tail conveyed to the tenant by lease and release for life; and then appeared at the return of the writ of summons, and vouched over the common vouchee, it was assigned for error that the tenant was not seised of the freehold at the return of the writ of entry, but the recovery was held good; for per Holt C. J. if the tenant to the præcipe acquires the freehold before judgment, it is sufficient, for it cannot be said to be a recovery against him that had nothing. 2 Salk. 568. Lacey v. Williams, S. C. Carth. 472. 1 Ld. Raym. 227. 475. Holt. Rep. 614. Comb. 425. S. P. 1 Show. 347. Samborne v. Belke. But in consequence of the relation which the judgments had to the day of the return of the writ upon which the judgment was given, it frequently happened that although the deed to make a tenant to the præcipe was in fact executed before the appearance of the parties in court, yet the recovery was void on account of the relation back of the judgment to a day prior to that on which the deed was executed. As where a writ of entry was returnable a conditional surrender from the tenant for life, or join with him in conveying an estate to the tenant to the præcipe. Pigott, 41. But now with respect to lands let out on leases for lives, the statute 14 Geo. 2. c. 20. s. 1. reciting that several leases had been theretofore, and were thereafter likely to be made of honors, castles, manors, lands, tenements, and hereditaments 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 thereof to join, in order to make tenants to the writs of entry or other writs for suffering common recoveries, frequently occasioned great trouble, difficulty, and expence to tenants in tail, and the same could not in many cases be obtained by reason of the uncertainty in whom the legal estate of freehold under such leases was vested, and also by reason of the disabilities and incapacities of such lessees, or persons claiming under them; by means whereof purchases and family settlements were often delayed, and might be in great danger of being defeated, enacts, "that all common re"coveries suffered, or to be suffered in "his majesty's court of common pleas on the 26th of November, the lease and release to make a tenant to the præcipe were dated on the 26th and 27th, and the recovery was taken in court on the 28th; the recovery was held erroneous, because the judgment related back to the 26th, on which day the tenant had not the freehold. To prevent which the statute 14 G. 2. c. 20. s. 6. was passed, which enacts, "that every recovery shall be deem"ed good and valid to all intents "and purposes, notwithstanding the "fine, or deed or deeds, making the "tenant to the writ, should be levied "or executed after the time of the judg"ment given in such recovery, and the "award of the writ of seisin, provided "the same appear to be levied or ex"ecuted before the end of the term, "great session, session or assizes, in "which such recovery was suffered, and "the persons joining in such recovery "had a sufficient estate and power to "suffer the same." It has been held that, though the deeds to make a tenant to the præcipe be not executed till after the execution of the writ of seisin, still the recovery will be good by this statute, if the deeds be executed in the term in which the recovery is suffered. 2 H. Black. Rep. 46. Goodright v. Rig-"at Westminster, or in any other court by, afterwards affirmed in error in the "of record in the principality of Wales; king's bench. 5 Term Rep. 177. [c]" or in any of the counties palatine, or At the common law the writ would only lie against him who was actual tenant in possession of the freehold; 2 Leon. 58. Ard's and Smith's case; therefore where lands were let out on leases for lives, tenant in tail could not suffer a recovery unless he procured conditional surrenders from the lessees for lives, or they joined him in making the tenant to the præcipe: nor can he at this day, where there is an estate for life limited prior to his estate tail, unless he procure "in any other court having jurisdiction "of the same, of any honors, &c. with"out any surrender or surrenders of "such lease or leases, or without the concurrence, or any conveyance or from such lessee or lessees, 66 assurance or other person or persons claiming under such lessee or lessees, in order "to make good tenants to the writs of "entry, or other writs, whereupon such "recoveries have been or shall be had "or suffered, shall be as valid and ef [c] And afterwards in Dom. Proc. Cruise's Dig. 2d ed. vol. v. p. 339. 66 "fectual in law to all intents and purposes whatsoever, as if such lessee or lessees, or any other person or per"sons claiming under him, her, or "them, had conveyed or joined in conveying, or shall convey or join in "conveying a good estate of freehold "to such person or persons, as has or "have been, or shall become, tenant or "tenants to such writs of entry, or "other writs whereupon such common "recoveries have been or shall be "suffered." This is a declaratory law, and seems to have restored the original tenant to the præcipe; for, before the statute of quia emptores terrarum (18 Edw. 1. c. 1.) subinfeudations, upon which rents and services were reserved, did not prevent a writ of entry from lying against the freeholder of the seignory; and therefore when common leases for one or more life or lives reserving rent came in use, they resembled subinfeudations, and ought not to have prevented the præcipe from being brought against the owner of the freehold under which the leases were granted. 1 Burr. 115. Taylor v. Horde. But with respect to prior estates for life they are expressly excepted in the statute 14 Geo. 2. c. 20. s. 2. by which it it is provided, "That nothing in this "act contained shall extend or be con"strued to extend, to make any common "recoveries valid and effectual in law, "unless the person or persons entitled "to the first estate for life, or other greater estate (in case there be no ́"such estate for life in being) in re" version, or remainder next after the "expiration of such leases, has or have, "by some lawful act or means, conveyed or assured, or joined in con"veying or assuring, or shall by some "lawful act or means convey or assure, "or join in conveying or assuring, an "estate for life at the least, to such 66 "" or shall become, tenant or tenants to "the writs of entry, or other writs, 66 whereupon such common recoveries "have been or shall be suffered." The surrender of the prior estate for life must be made to him who has such immediate remainder or reversion in tail before he makes a tenant to the præcipe; for if it be after, it will be void, inasmuch as there will then be no remainder or reversion for the surrender to operate upon; therefore in that case it ought to be made to the tenant to the præcipe. Pigott, 50. But sometimes it will be presumed that the tenant for life surrendered his estate, though there be no proof of it; as where possession has accompanied a recovery for a long time. Thus in an ejectment upon a trial at bar for lands in ancient demesne, a recovery in the court of ancient demesne was produced, which had been suffered a long time before, and possession had gone accordingly; but it appeared that part of the land was leased for life, and the recovery was suffered by him in the reversion, with a single voucher, so that there was no tenant to the præcipe. However the court said, that as possession had gone along with the recovery for so long a time, they would presume a surrender; 1 Vent.257. Anon. S. C. 1 Mod. 117. by the name of Green v. Proude, and 3 Keb. 310. Green v. Froud. So where collateral evidence has been given of a surrender by tenant for life, the recovery has been adjudged good. As where on a trial at bar, the lessor of the plaintiff claimed under an intail in a family settlement, by which part of the estate appeared to be in jointure at the time of the recovery, and it was insisted, that there was no tenant to the præcipe for that part; but it was answered by the defendant that after 40 years had elapsed, a surrender should be presumed according to 1 Vent. 257.; and to fortify this presumption they offered in evidence the debt-book of an attorney then dead, who had, among other expences of suffering the recovery, charged for drawing a surrender of the jointure estate, and for engrossing two parts of it, which the court received, for it was a material circumstance in the inquiry into the reasonableness of presuming a surrender, and not to be suspected to be done for that purpose; and the court declared, "that without that circumstance they would have presumed a surrender," and desired it might be taken notice of "that they did not require any evidence to fortify the presumption, after such a length of time." 2 Str.1129. Warren v. Grenville. But where there is no ground for such presumption, and possession has not gone with the recovery, the court will not presume a surrender. As where a jointress tenant for life of part of the estate, was in possession thereof at the time of the recovery, and continued in possession until her death, when an ejectment was brought by the person in remainder for that part which was in her possession, the court held, that as possession had not gone with the recovery, but continued in the tenant for life until the ejectment, they could not presume a surrender, and the recovery was void as to that part, and thought that the proposition in Strange was too general. 2 Burr. 1065. Goodtitle v. Duke of Chandos. Indeed, where a person has a power to suffer a recovery, omnia presumuntur rite et solemniter acta, until the contrary appears. Cro. Jac. 455. Griffin v. Stanhope. 2 Lutw. 1549. Leigh v. Leigh: but if the contrary appear, there is an end of such presumption. As where on a trial at bar in K. B. in Easter term 1747, the validity of two common recoveries in 1714 and 1721, came in question, it was ruled by the court, that though at such a distance of time proper tenants to be præcipe should be pre sumed, where no deed appears; yet it appearing in the principal case, that there were deeds inrolled for that purpose, wherein proper parties did not join, so that it was manifest there were no good tenants to the præcipe, the court could not presume there were good tenants; and therefore directed the jury to find against the recoverers; which they did accordingly. 2 Str. 1267. Keen v. Earl of Effingham. It is held that a husband seised of an estate tail in possession in right of his wife, may make a good tenant to the præcipe by deed only, without the wife's joining him in a fine. Pigott, 71, 72. Cruise, 52–55. 2d edit. Harg. and But. Co. Litt. 326. b. in the note. The tenant to the præcipe may be made either by fine, feoffment, lease, and release, covenant to stand seised, surrender, or bargain and sale enrolled; if he be made by the latter, it is held that he may appear and count before the enrolment of the bargain and sale, provided it be enrolled within six months as prescribed by the statute; for though the freehold does not pass until enrolment, yet when that is done, the freehold is considered as having passed from the bargainor at the time when the bargain and sale was executed by relation. Cas. temp. Talb. 164. Robinson v. Comyns. Pigott, 56, 57. It appears by what has been said, that the validity of common recoveries has frequently been called in question on account of irregularities in making a tenant to a præcipe; therefore to obviate this inconvenience, the statute 14 Geo. 2. c. 20. s. 5. already referred to, was made; which, reciting that it had frequently happened that the deeds for making the tenants to the writs of entry, or other writs, for suffering common recoveries, had been lost, or that the fines or deeds making the tenants to the said writs had not been levied or |