Such a piece of solemn juggling could not long have held its ground, had it not been supported by its substantial benefit to the community; but, as it was, the progress of events tended only to make that certain which at first was questionable; and proceedings on the principle of those above related, under the name of Buffering common recoveries, maintained their ground, and long continued in common use us the undoubted privilege of every tenant in tail. The right to suffer a common recovery was considered as the inseparable incident of an estate tail, and every attempt to restrain this righl was held void (n). Complex, however, as the proceedings above related may appear, the ordinary forms of a common recovery in later times were more complicated still. The lands were in the first place conveyed, by a deed called the recovery deed, to a person against whom the action was to be brought, and who was called the tenant to the praecipe or writ (o). The proceedings then took place in the Court of Common Pleas, which had an exclusive jurisdiction in all real actions. A regular writ was issued against the tenant to the precipe by another person, called the demandant; the tenant in tail was then required by the tenant to the praecipe to warrant his title according to a supposed engagement for that purpose; this was called vouching the tenant in tail to warranty. The tenant in tail, on being vouched, then vouched to warranty in the same way the crier of the Court, who was called the common vouchee. The demandant then craved leave to imparl or confer with the last vouchee in private, which was granted by the Court; and the vouchee, having thus got out of Court, did not return; in consequence of which, judgment was given in the manner before mentioned, on which a regular writ was directed to the sheriff to put the demandant into possession (p). The proceedings, as may be supposed, necessarily passed through numerous hands, so that mistakes were not unfrequently made and great expense was always incurred (q). To remedy this evil, an act of parliament (r) was accordingly passed in the year 1833, on the recommendation of the commissioners on the law of real property. This act, which in the wisdom of its design, and the skill of its execution, is quite a model of legislative reform, abolished the whole of the Cumbrous and suspicious-looking machinery of common recoveries. It has substituted in their place a simple deed, executed by the tenant in tail and inrolled in the Court of Chancery (s) : by such a deed, a tenant in tail in possession is now enabled to dispose of the lands entailed for an estate in fee simple; thus at once defeating the claims of his issue, and of all persons having any estates in remainder or reversion.
The reversion barred.
(l) 2 Black. Com. 360. (m) 2 Black. Com. 360;
Cruise on Recoveries, 258.
Tenant to the precipe.
Vouching to warranty.
(n) Mary Partington's case, 10 Rep. 36; Co. Litt. 224 a; Fearne on Contingent Remainders, 2G0; 2 Black. Com. 116.
(o) By stat. 14 Geo. II. c. 20, commonly called Mr. Pigott's Act, it was sufficient if the conveyance to the tenant to the praecipe appeared to be executed before the end of the term in which the recovery was suffered, 1 Prest. Con. 61, et seq.; Goodright d. Burton v. Rigby, 5 T. Rep. ] 77. Recoveries, being in form judicial proceedings, could only be suffered in term time.
(p) Cruise on Recoveries, ch. 1, p. 12.
A common recovery was not, in later times, the only way in which an estate tail might be barred. There was another assurance as effectual in defeating the claim of the issue, though it was inoperative as to the remainders and reversion. This assurance was a fine. Fines were in themselves, though not in their operation on estates tail, of far higher antiquity than common recoveries (t). They were not, like recoveries, actions at law carried out through every stage of the process; but were fictitious actions, commenced and then compromised by leave of the Court, whereby the lands in question were acknowledged to be the right of one of the parties (u). They were called fines from their having anciently put an end, as well to the pretended suit, as to all claims not made within a year and a day afterwards (w), a summary method of ending all disputes, grounded on the solemnity and publicity of the proceedings as taking place in open Court. This power of barring future claims was taken from fines in the reign of Edward III. (x); but it was again restored, with an extension however of the time of claim to five claim to five years, by statutes of Richard III. (y) and Henry VII.(z); by which statutes also provision was made for the open proclamation of all fines several times in Court, during which proclamation all pleas were to cease; and in order that a fine might operate as a bar after non-claim for five years, it was necessary that it should be levied, as it was said, with proclamations. But now, by a statute of the present reign (a), all fines heretofore levied in the Court of Common Pleas shall be conclusively deemed to have been levied with proclamations, and shall have the force and effect of fines with proclamations. A judicial construction of the statute of Henry VII. (b), quite apart, as it should seem, from its real intention (c), gave to a fine by a tenant in tail the force of a bar to his issue after non-claim by them for five years after the fine; and this construction was confirmed by a statute of the reign of Henry VIII., which made the bar immediate (d). Since this time the effect of fines in barring an entail, so far as the issue were concerned, remained unquestioned till their abolition; which took place at the same time, and by the same act of parliament (e), as the abolition of common recoveries. A deed inrolled in the Court of Chancery has now been substituted, as well for a fine, as for a common recovery.