liable to be raked up from any depth; but the modern practice tends, on sales or mortgages, especially the former, to accept titles of moderate, not infrequently even of scanty, length; and a title in an Abstract would only under very special circumstances be carried up to the time when fines were current. For example, the transaction might be a mortgage, which does not ordinarily admit of the machinery of "special conditions;" and it might under peculiar circumstances be impossible to find a satisfactory root of title later than 1834. Under such circumstances one or more fines might possibly appear on the title.

II. COMMON RECOVERIES.

A common recovery, usually styled merely a recovery, was a collusive action, in the form of a real action, prosecuted to a collusive judgment, instead of being, like a fine, compromised before judgment. The epithet common was intended to distinguish these kinds of collusive recoveries from genuine actions of recovery prosecuted upon a bona fide claim of right; but the epithet is usually omitted, because the context is usually sufficient to indicate the sense in which the word is used.

Collusive actions of recovery appear to have been devised by the ecclesiastical corporations

as a means to evade the statutes of mortmain, which forbade conveyances to be made to them without the royal licence. When a pious donor was minded to make such a gift, the intended object of his bounty brought a feigned action: to recover from him, upon a pretended title paramount, the lands which he intended to give; he appeared and confessed the action; whereupon judgment of recovery was given against him; and such a judgment, being in the eye of the law an adverse proceeding, could not be styled buying and selling, or a gift, within the meaning of the Statute De Viris Religiosis, 7 Edw. 1. The law was accordingly compelled to begin to distinguish in such cases between collusive actions and actions brought upon a bona fide claim of right; and it was promptly enacted by Chapter 32 of the Statute called the Statute of Westminster the Second, 13 Edw. 1, that when ecclesiastical persons should implead others, who should make default, inquiry should be made by a jury whether the demandant had a good title; and that, if found affirmatively, the judgment of recovery should stand good; but if collusion should be proved, the land sought to be collusively recovered was forfeited to the lord of whom it was held, if he should demand it within a year; and each successive lord had a further six months to make the like demand; and in default of claim by any lord, the right

accrued to the king. The statute De Viris Religiosis had contained similar provisions.

These ancient collusive actions of recovery have so far a resemblance to the common recoveries of the later practice, that they were real actions collusively prosecuted to judgment. But they were mere judgments upon a claim admitted, and there was no reason why they should take effect in any way except by estoppel between the parties. This would not have sufficed for the purpose to be served by the more modern assurances styled common recoveries, which were used to bar estates tail; because, after the statute usually referred to as De Donis Conditionalibus, which was Chapter 1 of the same Statute of Westminster the Second, no heir in tail was estopped by any judgment of recovery given against his ancestor. A mere judgment of recovery would no more have estopped the issue in tail, than it would have estopped the chief lord of the fee, under Chapter 32, if the judgment had been obtained by an ecclesiastical person. The efficacy of common recoveries to bar estates tail, depended upon the peculiarities of the law of warranty.

A warranty was a covenant, entered into by the warrantor, to warrant the title of the warrantee to the specified lands to which the covenant related. In constructing a clause of warranty it was absolutely necessary to use

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the Latin word warrantizo, or its French or English equivalent; and no other words would supply the want of this technical word. If the covenant purported to be made by the warrantor for himself and his heirs, with the warrantee and his heirs, the burden of the warranty descended upon the heirs of the warrantor, and the benefit of the warranty descended upon the heirs of the warrantee. There were three methods by which the warrantee or his heirs might enforce their rights under the warranty. (1.) If the warrantor or his heirs should bring an action to recover the lands, the warranty might be pleaded in bar of the action; and this plea was styled a rebutter.* (2.) The warrantee or his heir might bring an express action against the warrantor or his heir, by means of a writ styled a writ of warrantia carta, to recover an equivalent if he had been evicted from the lands, or if he was in danger of being evicted by a pending action. (3.) In the course of an action brought against the warrantee or his heir, he might generally vouch to warranty (vocare ad warrantizandum) the warrantor or his heir: a process much resembling the "third party procedure" under R. S. C., Ord. XVI., r. 48; for it amounted to bringing the warrantor or his

*This is not the ordinary meaning of the word, as used in the old system of pleading. It commonly meant the defendant's answer to a sur-rejoinder by the plaintiff.

heir into the action, upon a claim that the defendant was entitled to be indemnified by them against loss or damage. It was this process which gave its efficacy against the issue in tail to the judgment in a common recovery.

The extraordinary enthusiasm for defeating restraints upon the alienation of land, which has for centuries distinguished English judges, led them after a time to perceive that the law of warranty might, with some plausibility, be supposed to afford a method whereby to evade the statute De donis, so as to enable a tenant in tail to alienate the intailed lands for a fee simple. There is evidence that this idea for a long time simmered in the minds of the judges; and at length it was inferred from remarks which fell from the judges in a case known as Taltarum's Case, which was decided in Michaelmas Term, 12 Edw. 4, or 1472, that a judgment of recovery against a tenant in tail in possession, if accompanied by a judgment in his favour for the recovery of lands of equal value from another person whom he had vouched to warranty, would bind the issue in tail. This view being subsequently acted upon, it was sustained by the Courts; and thus common recoveries may be said to have been invented.

This form of recovery, where the tenant in tail was himself sued and vouched somebody