coveries to bar estates tail, or whether their virtue for that purpose had been earlier recognized'. Coke says in Mildmay's Case that "about 1472 the judges, on consultation had amongst themselves, resolved that an estate tail might be docked and barred by a Common Recovery", while in Mary Portington's Case, he says that this method of barring an Estate Tail was “not newly invented in 1472, but oftentimes affirmed before";" citing a number of black-letter authorities and concluding that "these resolutions and opinions of law produced the judgment in 1472, which was not of any new invention, but proved and approved by the resolution of the sages of the law at all times after the Act De Donis until 1472. And the judges of the law then perceiving what contention and mischiefs had crept into the quiet of the law by these fettered inheritances, on consideration of the said act and of former expositions thereof by the sages of the law gave judgment that in such case the estate tail should be barred."

Taltarum's Case itself does not expressly decide on the validity of a Common Recovery, for while the plaintiff pleads a common recovery suffered by defendant's ancestor, defendant admits it, and sets up a previous estate tail in his ancestor, which alone, he says, was defeated by the common recovery suffered, and the Court agree with him: but it is assumed by both parties and by the Court itself that the Common Recovery in which T. Taltarum is concerned is effectual in barring some estate tail in the ancestor.

The procedure of a Common Recovery was based on the doctrine of Warranty, by which the heirs to an entailed estate were barred by the alienation of their ancestor, if they obtained from him Assets, or lands of equal value to those alienated. This proviso was satisfied if they had a right to lands of equal value, though the right might be valueless. The tenant-in-tail, therefore, who wished to alienate arranged that a fictitious suit should be brought against him for the lands: this he met, not by an assertion of his own title, but by calling upon a person

1 See Pollock, p. 83, note. Reeves, III. 18, where Mr Reeves and Mr Finlason entirely disagree as to the

effect of Taltarum's Case.

2 6 Rep. 40.
310 Rep. 37.

whom he alleged to have granted to him the lands in question to warrant or defend the grant he had made. The alleged grantor appeared and acknowledged that he was bound to warrant, but then disappeared and failed to warrant. Whereupon the fictitious plaintiff had judgment against the tenant-intail for the lands which he claimed, and the tenant-in-tail had judgment over against the fictitious grantor who had so basely failed to defend his grant. This judgment over, or right to recover lands of equal value from the defaulter, served as Assets to the heir of the tenant-in-tail, who was therefore barred. And Lord Coke expressly rests his defence of Common Recoveries on this "intended recompense'," and lays down, "that the judgment given in such case for the tenant-in-tail to have in value is a bar to the estate tail, although no recompense be had"." For of course the heirs never did recover lands of the value they had lost: the defaulting warrantor was a man of straw, who had no lands to lose, and was indeed in later times, when the comedy was in full working order, the Crier of the Court of Common Pleas, who passed the Law Terms in failing to warrant for the consideration of fourpence per failure.

It is hardly necessary to set out in detail the technicalities of the Common Recovery, either at the time of Taltarum's Case, or as ultimately developed by the needs of conveyancing. The proceedings were based on an elaborate series of fictions, and were complicated and expensive in the highest degree; slight slips in them might prove fatal to the title to the land, and it was impossible to find any satisfactory justification for the numerous stages of the procedure, or reasonable explanation of its existence, other than a historical statement of its origin. The Real Property Commissioners in their first Report speak of "the whole mass of technical law relating to common recoveries," as "a mere excrescence on the main body of our laws;" and claim to have shown both their "inaptitude for the purpose for which they (Common Recoveries) have been applied, and the shifts and contrivances to which ingenuity has been obliged to resort in order to render them subservient to those

1 Mildmay's Case, 6 Rep. 40.

2 Mary Portington's Case, 10 Rep.

37.

3

pp. 30, 31.

76

COMMON RECOVERIES

purposes." Previous legal authorities indeed rarely, if ever, even attempted to explain the reason of a Common Recovery, but contented themselves with upholding it. "None ought to be heard," says Coke, “in dispute against the legal pillars of common assurances of lands and inheritances1." In a case which he mentions, "Hoord an utter barrister of counsel with the plaintiff" (who was barred by a Common Recovery) "rashly and with great ill will inveighed against common recoveries, not knowing the reason and foundation of them, who was with great gravity and some sharpness reproved by Sir J. Dyer, C. J., who said he was not worthy to be of the profession of the law, who durst speak against Common Recoveries, which were the sinews of assurances of inheritances and founded upon great reason and authority", but, adds Coke, "non omnis capit hoc verbum." In short, the procedure in Common Recoveries, invented to evade a Statute, complicated from time to time with provisions against all manner of technical difficulties, became an elaborate and teclinical formality, whose parts had survived their uses, whose elaboration was only productive of expense, and whose technicality abounded in deadly traps for any but the most skilled and careful lawyers. It had degenerated from a fiction which at its best was cumbrous to a juggle which had hardly the merits of solemnity.

Whatever may have been the law before Taltarum's Case, there is no doubt that, after 1472, the way of evading Estates Tail by Common Recoveries was in constant use; and that in consequence the restraints on alienation, and the limited line of succession, imposed by the Statute de Donis, were gone. The class legislation of Parliament was defeated by the national legislation of the judges, at the cost of the introduction into Real Property Law of a fiction which, like Frankenstein's monster, became too powerful for its authors.

Another method whereby the strictness of the Statute De Donis was evaded was by the Levying of fines. A Fine was the compromise of a suit, whether fictitious or actual, as distinguished from a Common Recovery which was the prosecution of a fictitious suit to judgment. In the time of Glanvil, the suit was genuine : "Contingit autem multototiens loquelas 1 Mary Portington's Case, 10 Rep. 40.

motas in Curia domini regis per amicabilem compositionem et finalem concordiam terminari......dicitur talis concordia finalis, eo quod finem imponit negotio adeo ut neuter litigantium ab ea de cetero poterit recedere1." The Modus Levandi fines of 1290 recites that a fine solemnly levied concludeth or barreth all parties and privies to the fine and their heirs, and all other persons in the world, being of full age, out of prison, of whole memory and within the four seas the day of the fine levied, unless they make their claim of their action within a year and a day. That these Fines were then well known as means of transferring lands is shown by the fact that the Statute de Donis contains an express provision against them: "Et si finis super hujusmodi tenemento imposterum levetur, ipso jure sit nullus, nec habeant haeredes hujusmodi aut illi ad quos spectat reversio, licet plenae sint aetatis, in Anglia, et extra prisonam, necesse apponere clameum suum."

The barring of all claims by non-claim within a year and a day was abolished by an Act of 13603, which shortly provided that the plea of non-claim of fines should not be taken for a bar in time to come. This Statute, "whereby" as Coke says "great contention arose, and few men were sure of their possessions," was repealed by an Act of 1483, practically re-enacted by an Act of 1489. This last statute has been treated by Hume and others as a deep device of Henry VII. to obtain free alienation in land by weakening the force of entails. It is sufficient to point out that entails had practically been destroyed by the time of the decision as to common recoveries in 1472, and also that the Statute of Henry VII. only re-enacts the preceding Statute of Richard III., which, as the Act of an usurper, might be taken to require confirmation. And Lord Bacon in his history of the reign discovers no such design in the Act. The two statutes together give all, except parties to the fine, five years in which to claim against it. At the expiration of this period they were barred by non-claim. But heirs in tail or in remainder

might have no right to the estate till the death of the levier of the fine, their ancestor, and he might survive the fine by more than five years, thus barring their claim. The Statute therefore expressly provides that persons whose title did not accrue till after the levying of the fine should have five years from the accrual of their title in which to claim. Thus the Statute instead of destroying Estates Tail seems rather intended to preserve them'. But subsequent provisions of some technicality left it open to doubt whether a fine levied by a tenantin-tail did not really bind his own issue, and in 1528 the judges were divided on this point, three holding that the Statute of 1489 was not a bar to the issue and four that it was. An Act of 1540 resolved this doubt by the provision that fines levied with proclamations according to the Statute should immediately bar the heirs in tail of the tenant levying the fine, without any time being allowed during which they might claim with success. In this Act, however, certain exceptions were contained, notably that the Act should not apply to lands the alienation of which was restrained by Parliament or to entailed lands the reversion of which was in the king. These exceptions left open to consideration the effect, by itself, of the Statute of 1489, and in the reign of Charles II. eight judges against three held that by the Statute of 1489 also a fine levied by a tenant-in-tail barred his issue2.

As the system of Common Recoveries as bars to Estates Tail had been definitely established in 1472, the recognition in 1540 of the efficacy of fines for the same purpose was only of secondary importance. There were however two classes of cases in which the use of a fine instead of a common recovery was advisable. If the tenant-in-tail had also a reversion or remainder in fee, there was no one who need be barred but his privies or heirs, and this could be effected by a fine without the necessity of resorting to a common recovery. Secondly, where a remainderman in tail desired to bar the entail, but the person having the freehold in possession refused to play his part in a common recovery, a fine was the only 1 Barrington, Ancient Statutes, 3rd ed. p. 402.

2 Murray dem. Derby v. Eyton and Price, T. Raym. 260.