c. 74, s. 8.

have passed all the lands intended to have been passed thereby, 3 & 4 Will. 4, in the same manner as it would have done if there had been no such error, misdescription or omission (i).

(i) A recovery was amended under this section by inserting the words Amendment of "right of free warren," the right having always gone with the property in recoveries. question, and the deed to lead the uses conveying all hereditaments. (In re Trisden's Recovery, 4 Bing. N. C. 253; 5 Scott, 638.)

In the exemplification of a recovery, the name of the tenant was inserted in the place of that of the demandant and vice versa: it was held, as it was apparent upon the deed how it was intended that the parties should be described, the defect was remedied by this section, and that no amendment was necessary. (Wickens, dem., Windus, ten., 9 C. B. 711.)

In a recovery the court of C. P. will not allow the christian names of the vouchee (erroneously transposed in the warrant of attorney) to be made right, amendments never being allowed in that instrument. (Lamont, vouchee, 3 Scott, 666; 2 Bing. Ñ. C. 297.) Where the deed to lead the uses of a recovery is sufficient to cover all the lands intended to be passed, an application to amend the recovery by inserting the name of the parish is unnecessary. (Re Watkins, 9 Dowl. P. C. 58.) The court refused to permit an old recovery to be amended by the insertion of a parish, the words of the deed being large enough to embrace it, and the omission being consequently cured by this section. (Evans, vouchee, 2 Scott's N. R. 83.) See further, as to the amendment of fines and recoveries, Cruise, Dig. tit. XXXV. c. 5, XXXVI. c. 6; 2 Wms. Saund. 94.

Jurisdiction to amend saved.

tion in cases not provided for.

9. Provided always, and be it further enacted, that nothing Saving jurisdic in this act contained shall lessen or take away the jurisdiction of any court to amend any fine or common recovery, or any proceeding therein, in cases not provided for by this act.

Defect of Tenant to the Præcipe, Non-inrolment of Bargain

and Sale.

cases where bar

10. No common recovery already suffered or hereafter to be Recoveries made suffered shall be invalid in consequence of the neglect to inrol valid in certain in due time a bargain and sale purporting to make the tenant gain and sale is to the writ of entry or other writ for suffering such recovery, not duly enrolled. provided such recovery would have been valid if the bargain and sale purporting to make the tenant to the writ had beeu duly enrolled.

Defect of Legal Tenant to Præcipe.

quence of

tenants to the

certain cases.

11. No common recovery already suffered or hereafter to be Recoveries insuffered shall be invalid in consequence of any person in whom val of there an estate at law was outstanding having omitted to make the not being proper tenant to the writ of entry or other writ for suffering such reco- writs of entry very, provided the person who was the owner of or had power made valid in to dispose of an estate in possession, not being less than an estate for life or lives in the whole of the rents and profits of the lands in which such estate at law was outstanding, or the ultimate surplus of such rents and profits, after payment of any charges thereout, and whether any surplus after payment of such charges shall actually remain or not, shall, within the

3&4 Will. 4, time limited for making the tenant to the writ for suffering c. 74, s. 11. such recovery, have conveyed or disposed of such estate in possession to the tenant to such writ (k); and an estate shall be deemed to be an estate in possession notwithstanding there shall be subsisting prior thereto any lease for lives or years, absolute or determinable, upon which a rent is reserved, or any term of years upon which no rent is reserved (1).

Equitable fines and recoveries.

Requisites to make good tenant to the præcipe.

(k) Fines and recoveries were levied or suffered of equitable estates, and had, with a few exceptions, the same operation as they would have had if the estates had been legal; but neither a fine nor a recovery of an equitable estate produced a forfeiture of a particular estate, or destroyed contingent interests, except in the instance of a recovery suffered by an equitable tenant in tail, which would bar the entail, and all interests to take effect on the determination or in derogation thereof. Fines and recoveries of equitable estates must have been levied and suffered in the same courts, and with the same formalities, as those of legal estates; but there was some difference between legal and equitable recoveries, so far as regarded the tenant to the præcipe. (See First Real Property Report, p. 29.)

It had been established that an equitable estate for life and a legal remainder in tail would not unite, so as to make a good recovery; and that in order to make a good tenant to the præcipe there should have been a legal estate for life, with a legal remainder in tail, or an equitable estate for life, with an equitable remainder in tail. (Shapland v. Smith, 1 Br. C. C. 75; Salvin v. Thornton, Id. 73, n.; S. C. Ambl. 545. See Iveson v. Pearman, 3 B. & C. 811; 4 B. & Ad. 55; 1 Collect. Jurid. 214; Doe d. Cadogan v. Ewart, 7 Ad. & Ell. 670.) A recovery suffered by an equitable tenant for life with a legal remainder in tail was void. Thus, where an estate was conveyed to a purchaser and his trustee and their heirs, to the use of the purchaser and trustee and the heirs and assigns of the purchaser for ever, it was held, that a recovery suffered by a devisee in tail under the will of the purchaser after his death, but in the lifetime and without the concurrence of the trustee, in whom the legal estate of freehold for life was vested, was bad, as the tenant in tail had no legal estate in her, except a remainder in tail expectant on the determination of the trustee's life estate and an equitable estate during his life. (3 B. & Cr. 799.) But an equitable remainder in tail might have been barred although the person making the tenant to the præcipe had the legal estate. (3 Ves. 125.) Where a legal tenant in tail conveyed his estate to a trustee or mortgagee, and was afterwards desirous of suffering a recovery, the concurrence of his alienee in making a tenant to the præcipe was necessary, and the recovery without it would not have been effectual. But this rule was held not applicable by analogy to trust estates, and therefore if equitable tenant in tail with equitable remainder over conveyed his interest to another person and his heirs by way of mortgage, or upon such trusts as left the ultimate beneficial ownership in himself, a recovery suffered of the secondary equitable estate was valid without the concurrence of the mortgagee or trustee in the conveyance making the tenant to the præcipe. (Nouaille v. Greenwood, Turn. & Russ. 26. See Casborne v. Scarfe, 1 Atk. 603.)

A testator who was entitled to the equity of redemption in freehold premises, subject to a mortgage in fee, devised the premises to J. P. and another as trustees, on trust, in the first place, out of the rents to pay off the mortgage; and he then gave 107, a year out of the rents in the events which happened to E. P., and the remainder of the rents to J. P. and S. M. P. equally; and, after the death of E. P., he devised certain parts of the premises to J. P. and the heirs of his body. S. M. P. died in the lifetime of E. P.; J. P. then joined in suffering a recovery for the purpose of barring the estate tail; but neither E. P. nor the next of kin of S. M. P. joined in making the tenant to the præcipe: it was held that the concurrence of E. P. was not necessary, but that the concurrence of the next of kin of S. M. P. was necessary, and that the recovery was, for want of such concurrence, invalid as to one moiety of the premises. (Penny v.

Allen, 7 De G., M. & G. 409; 3 Jur., N. S. 273.) The eldest son and heir of S. M. P. was in possession of the rents of all the devised premises, and joined in respect of certain parts of them of which he was himself tenant in tail in making the tenant to the præcipe. The court refused, in the absence of any other circumstances tending to prove it, to presume a surrender to him of S. M. P.'s estate pour autre vie, or to regard him as having a title to it by general occupancy. (Ib.) It was held, that there could be no general occupancy, whether the estate pour autre vie was regarded as legal or equitable, and that the person beneficially entitled, and not the executor or administrator of S. M. P., was the proper person to concur in making the tenant to the præcipe. (Ib.)

Lands were devised (before stat. 7 Will. 4 & 1 Vict. c. 26) to L. and his heirs in trust to permit and suffer A. to take the rents and profits during A.'s life, "with this proviso, to pay" W. out of the same, an annuity for her life, and if A. died before W., to permit W. to enjoy the lands for her life; and, after the deaths of A. and W. the devisor gave and devised the lands to the heirs male of A., remainder over. A. and W. both survived the devisor. A. survived W., and after W.'s death suffered a common recovery. It was contended that A. took an equitable estate only for his life under the will, with a legal estate tail in remainder under the same instrument, and therefore that the recovery was inoperative to bar the estate tail or remainder over. It was held, that assuming L. to have had a legal estate during W.'s life, A. was legal tenant in tail male after W.'s death, and that the recovery barred the estate tail and remainders. (Adams v. Adams, 6 Q. B. 860.)

To make a legal tenant to the præcipe it was absolutely necessary that there should be possession by seisin in fact or in law; but the equitable owner never had the legal seisin, often not the actual possession, and very frequently not even the right to call for either. In the one case, if it were shown that the possession was not in the party, and consequently would not pass from him, the purpose of the conveyance was frustrated, no legal freehold being acquired; but in the other case it was not the object, nor could ever be the effect of the conveyance, to transfer the possession, but only to pass the equitable interest; and therefore an equitable recovery was held to be valid though the tenant in tail was not at the time in the actual receipt of the rents, which a trustee had paid over to others under a decree which was afterwards reversed. (Lord Grenville v. Blyth, 16 Ves. 224.) The possession and the right to it are presumed to go together till the contrary is shown, and the rightful owner will not be held out of possession unless it be shown that some other person has adversely obtained possession at the time of executing the deed making the tenant to the præcipe. (Pigott v. Waller, 7 Ves. 122.) Nothing short of a disseisin or intrusion can prevent the freehold in law from remaining in the party entitled to it, and a person not having an estate of freehold cannot suffer a recovery, though in possession. Where a tenant in tail in remainder expectant on an estate for life had obtained possession of the settled estate under a judgment in an action of ejectment, and during the life of the tenant for life made a feoffment with livery of seisin to a third party to make him tenant to the præcipe, for suffering a common recovery, in which the tenant in tail was vouched, it was held that the taking possession under the judgment in ejectment did not amount to a disseisin of the freehold, as there was no tortious ouster (see Litt. s. 279; Co. Litt. 153); and that the feoffment, without the concurrence of the jointress, did not make a good tenant to the præcipe, and that the recovery was void, because there was no disseisin of the jointress, nor ouster of her freehold; that the feoffment was made really under an idea of having a right to suffer a recovery, and not with an intention to constitute a disseisin, and that if it were done with that intention, it amounted to a feoffment in form only, and was not such a feoffment as was in use of old; no transmutation of the possession passed by it, but its object being secret and collusive, it ought not to work a constructive disseisin. (Taylor, dem., Atkyns v. Horde, 1 Burr. 60; Cowp. 689; 6 Br. P. C. 633, Toml. ed.; see Butl. Co. Litt. 330 b, n.) It is a general rule that unless the persons entitled to the actual possession of the land concur in a

3 & 4 Will. 4,

c. 74, s. 11.

3 & 4 Will. 4, c. 74, s. 11.

Certain cases in

which fines and recoveries shall

by this act.

feoffment, it will not defeat their interest. (Doe d. Maddock v. Lyons, 3 B. & C. 388.)

If a tenant in tail, after having assigned dower, suffered a recovery without the concurrence of the widow, it was void as to the part assigned, for want of a good tenant to the præcipe. (Row v. Power, 2 Bos. & Pul. 1.) But a dowress who had not entered was not a necessary party to a recovery. (4 Br. C. C. 525. See Gilb. Ten. 26; 5 Cru. Dig. p. 246, pl. 18.) So where tenant in tail conveyed his estate to the use of himself and his intended wife for their lives, with remainder to the heirs of their bodies, and after marriage the husband alone suffered a recovery, it was held to bar but a moiety, and to be a severance of the joint estate. (Moody v. Moody, Ambl. 649. See Co. Litt. 187; 2 Br. C. C. 180.) So where there were two joint tenants of a manor, and a writ of entry of the whole manor was brought against one of them, on which a common recovery was suffered, it would only be good for the moiety of the person against whom the writ was brought, but as to the other moiety, it would be void for want of a tenant to the præcipe. (Winchester's case, 3 Rep. 1; Collyer v. Mason, 2 Brod. & Bing. 685.) The above clause in the act will not, it is conceived, be applicable to cases similar to the three last cited.

(1) Allusion has been already made to the stat. 14 Geo. 2, c. 20, which dispensed with the concurrence of persons holding freehold leases in making tenants to the præcipe. (See ante, p. 304.)

Remedial Clauses qualified.

12. Provided always, and be it further enacted, that where any fine or common recovery shall before the passing of this not be made valid act have been wholly reversed, such fine or recovery shall not be rendered valid by this act; and where any fine or common recovery shall before the passing of this act have been reversed as to some only of the parties thereto, or as to some only of the lands therein comprised, such fine or recovery shall not be rendered valid by this act so far as the same shall have been reversed; and where any person who would have been barred by any fine or common recovery, if valid, shall before the passing of this act have had any dealings with the lands comprised in such fine or recovery, on the faith of the same being invalid, such fine or recovery shall not be rendered valid by this act; and this act shall not render valid any fine or common recovery as to lands of which any person shall at the time of the passing of this act be in possession in respect of any estate which the fine or common recovery, if valid, would have barred, nor any fine or common recovery which, before the passing of this act, any court of competent jurisdiction shall have refused to amend nor shall this act prejudice or affect any proceedings at law or in equity, pending at the time of the passing of this act, in which the validity of such fine or recovery shall be in question between the party claiming under such fine or recovery, and the party claiming adversely thereto; and such fine or recovery, if the result of such proceedings shall be to invalidate the same, shall not be rendered valid by this act; and if such proceedings shall abate or become defective in consequence of the death of the party claiming under or adversely to such fine or recovery, any person who but for this act would have a right of action or suit by reason of the invalidity of such fine or recovery shall

;

retain such right, so that he commence proceedings within six 3 & 4 Will. 4, calendar months after the death of such party (m). c. 74, 8. 12.

(m) A decision in the Exchequer Chamber in Ireland, reversing the decision of the Queen's Bench, is stated to have put a construction upon the 9th section of the Irish act (which is the same as the 12th section of the English act, and which excepts, out of the previous sections, cases where any person at the passing of the act was in possession in respect of any estate which the recovery, if valid, would have barred), which does not seem to be warranted by the words and intention of the legislature. (Sugd. Statutes, p. 187, 2nd ed.; Davies v. D'Arcy, 3 Ir. C. L. Rep., N. S. 617; 4 Ir. Ch. Rep., N. S. 87.)

V. CUSTODY OF THE RECORDS OF FINES AND RECOVERIES. 13. After the thirty-first day of December, one thousand eight hundred and thirty-three, the records of all fines and common recoveries levied and suffered in his Majesty's Court of Common Pleas at Westminster, and all the proceedings thereof, shall be deposited in such places and kept by such persons as the said Court of Common Pleas shall from time to time order or direct; and the records of all fines and common recoveries levied and suffered in his Majesty's Court of Common Pleas at Lancaster, and all the proceedings thereof, shall be deposited in such places and kept by such persons as his Majesty's justices of assize for the county palatine of Lancaster for the time being shall from time to time order or direct; and the records of all fines and common recoveries levied and suffered in the court of pleas of the county palatine of Durham, and all the proceedings thereof, shall be deposited in such places and kept by such persons as the said court of pleas shall from time to time order or direct and in the meantime the said records and proceedings shall remain in the same places respectively where they are now deposited, and be kept by the respective persons who would have continued entitled to the custody thereof if this act had not been passed; and while the said records and proceedings respectively shall be kept by such persons respectively, searches may be made and extracts and copies obtained as heretofore, and on paying the accustomed fees; and when any of the records and proceedings shall, by the order of the court or justices having the control over the same, be kept by any other person, then, so far as relates to the records and proceedings in the custody of such other person, searches may be made, and extracts or copies obtained, at such times and on paying such fees as shall from time to time be ordered by the court or justices having the control over the same; and the extracts or copies so obtained shall be as available in evidence as they would have been if obtained from the person whose duty it would have been to have made and delivered out the same if this act had not been passed (n).

(n) By 5 & 6 Will. 4, c. 82, the offices in the Court of Common Pleas connected with fines and recoveries are abolished. The records and documents concerning the duties of such offices are to be transferred to the officer of the Court of Common Pleas appointed under 3 & 4 Will, 4, c. 74, for